By David M. Greenwald
Executive Editor
Oakland, CA – Last week the Attorney General Rob Bonta announced that he is going to hold the city of Encinas “accountable” for a denial of a permit for the Encinitas Boulevard Apartments if the city fails to take corrective action to approve a modified version of the project.
This is something we should be watching closely – how does the state handle rejected housing projects and how might it impact our community going forward?
According to Bonta’s office, in November of 2021, the city of Encinitas “blocked the development of a 277-unit housing project in a wealthy suburban neighborhood that had previously been identified as suitable for the development of lower-income housing and zoned accordingly. The proposed project would have included 41 units set aside for lower-income families and should have been approved under state housing laws that restrict local 
governments’ ability to deny permits for such projects.”
It would have set aside about 20 percent of its units for very low and low income housing.
In a letter to the city, “Based on our current understanding of the revised Project, it appears that approval of the revised Project would be in the best interests of Californians and consistent with the City’s obligations under State law.”
The AG continues, “We urge the City to take prompt action to consider and approve the revised Project if and when a new application is submitted. If the City fails to do so, the Attorney General is prepared to take immediate steps to hold the City accountable.”
The AG believes that the city violated the Housing Accountability Act and the Density Bonus Law when it rejected the project.
According to the AG, under the Housing Accountability Act, local agencies cannot disapprove housing development projects that comply “with applicable, objective planning, zoning, and subdivision standards and criteria, including design review standards, in effect at the time the application was deemed complete” absent public health or safety concerns.
Moreover, “if a local agency finds that a proposed housing development project is inconsistent with
applicable and objective standards and criteria, it must provide the applicant with written documentation to that effect.”
In this case, the city found the project was “inconsistent with certain development standards. However, Density Bonus Law “compels local agencies to waive standards that preclude the development of qualifying projects.”
However, the only such exception invoked by the City was that granting the waivers “would be contrary to state or federal law.”
Here, the City contended that granting the waivers would be contrary to the Density Bonus Law itself. But the AG argues, “nothing in the Density Bonus Law requires the City to apply any development standards, and no good faith reading of that statute could support that reading.”
To the contrary, “because the Project qualifies for a density bonus, Petitioner is entitled to an unlimited number of waivers of development standards that would otherwise have the effect of physically precluding the development of the Project.”
For these reasons, the AG argues, “the City had no valid basis to deny the requested waivers under the Density Bonus Law.”
The AG believes that the city has violated its obligation under state law to affirmatively further fair housing.
Under Government Code section 8899.50, the City must affirmatively further fair housing, which means it must take “meaningful actions” to “address significant disparities in housing needs and in access to opportunity, replacing segregated living patterns with truly integrated and balanced living patterns, transforming racially and ethnically concentrated areas of poverty into areas of opportunity, and fostering and maintaining compliance with civil rights and fair housing laws.”
Therefore, the City cannot take any action that is materially inconsistent with its obligation to “foster inclusive communities free from barriers that restrict access to opportunity based on” level of income.
AG Bonta warns that if the city “fails to approve this project” – AG Bonta will “promptly act to hold the city accountable.”
There are some real sticks here that cities should be paying attention to.
The AG notes, “Encinitas has not met its share of the regional housing need for either very low- or low-income households; the Project will not have a significant, adverse impact on health or safety, nor will it violate state or federal law; and the Project is consistent with both the zoning and the general plan land use designation.
“The City will have no discretion but to approve the Project as revised.”
But even more so is this: “HCD already notified the City that it violated the Housing Element Law when it disapproved the Project. If HCD finds that the City is no longer in substantial compliance with the Housing Element Law, then the City will not be able to disapprove any qualifying housing development project simply because of its inconsistency with either the City’s zoning or its general plan.”
How will this impact cities like Davis? Davis at this time is out of compliance with HCD. And what happens if voters reject projects in Davis through Measure J – will the state step in at some point? That seems like a real risk at some point especially if the city falls short of its affordable housing requirements.
In November, Attorney General Bonta announced the creation of a Housing Strike Force within the California Department of Justice. The AG’s office noted, “The Housing Strike Force is actively monitoring compliance with state housing laws, and recently sent letters notifying Woodside and Pasadena of violation of SB 9.”
It won’t. Davis has been one of the most compliant cities in the state.
And why do you suppose that is? Is it because the council decided to approve megadorms, despite being warned in advance that they wouldn’t fully count? And now, is trying to have them fully-counted, anyway?
If the council sets up a situation in which they offer-up agricultural land outside of city limits to meet RHNA requirements, SACOG won’t approve it – knowing that it’s not within the city’s ability to make that decision. They’ve already warned against doing so.
By the way, what does this tell you regarding HCD’s view of Davis being “responsible for” student housing?
Regardless, the implication here is that every city along the coast will have to expand its boundaries to meet RHNA requirements. And yet, there isn’t even one that is doing so. Not one. The state does not consider land which is outside of city boundaries, nor is the goal to encourage sprawl.
It’s a risk of approving DiSC, for sure – since it creates demand for 1,729 more housing units than it accommodates on site. Say so, right in the EIR. This is absolutely something that HCD will consider, regarding future rounds of RHNA requirements.
Also in light of the coming world food shortages that we’re all being warned about should we really be taking farmland permanently out of circulation?
On the other hand, the 100 acres of land can be offset with research on food systems. UC Davis has some interesting research coming out as I shared last week that could make food systems far more productive on far less land.
Oh, can that happen David? Notice how you didn’t say “will be offset”.
And then there’s that “could” word.
Correction: DiSC creates a demand for 1,269 more housing units that won’t be accommodated onsite. (I neglected to subtract-out the 460 onsite housing units from the 1,729 total new demand.)
Good point, Keith – regarding farmland. So much for sprawl “saving the world”.
I’d like to know what the impact on Davis’ water supply would be, as well – not just from DiSC, but from Shriner’s, Palomino Place, the space inside of Mace Curve, and of course – the “other half” of DiSC.
Not to mention cumulative traffic impacts of all of these proposals, which haven’t been analyzed.
Actually, in reviewing this article (and skimming through others online), it appears that the situation in Encinitas has nothing to do with RHNA requirements. I’m gathering (online) that Encinitas is not out of compliance at this point.
And yet, still must approve this development, per the Attorney General – based upon other factors.
I challenge anyone to show otherwise.
I think the issue is not with RHNA requirements as it appears you’re right; that Encinitas has an approved Housing Element.
The issue I believe is compliance with SB 35 (which I wrote about and was posted previously) and the ministerial approval process (if the project is multi-family, specific infill, required affordable units…etc… and is in compliance with the general plan; the project gets a rubber stamp of approval without anymore input….basically “anti-NIMBY” measures).
City of Davis water supply comes from two current sources and another available unused source.
Surface water from the Sacramento River is available most years and provides the majority of our water. When a “Shasta Critical” year is declared by the state, our surface water supply is reduced or stopped. At that point we revert to groundwater. That happened last year and will be the case again this year.
The balance of our water in a normal year comes from deep-aquifer wells. There are 5 – 6, but my understanding is that only 4 are active. Those draw water from very deep aquifer(s) that are not directly recharged by current rainfall patterns. This means they are not subject to overdraft when pumping increases due to drought.
Though the exact mechanism of recharge is not fully understood, the water is known to be older than WWII because it does not test positive for the Radium isotope that is found in water that passed through surface soil after atomic bombs were tested aboveground in the 1950s and 60s. It may be lateral recharge from very broad aquifers of water that may even be prehistoric. But monitoring indicates that we are not over-pumping this source, particularly since it is the city’s backup and contributes only 10 – 30% of our water most years. UCD also uses this water.
When the city went to the deep-aquifer water, it stopped using a couple of dozen shallower wells that are still functional. These are similar to what local farmers use. They draw from a few hundred feet, water which is directly recharged by rainfall. Those wells are available for use if there were to be an emergency with the deep aquifer wells combined with a cessation of surface water (an unlikely but not impossible situation).
The quality of the water from those wells was posing a regulatory issue as the state tightens water quality standards. There was a risk of over-drafting those aquifers. Land subsidence was occurring in the Zamora region in Yolo County, probably due to overdrafting by the cities of Woodland (which has no deep-aquifer wells) and Davis. But they are still there and still viable as alternatives in a sustained drought emergency.
Groundwater is very well studied locally because we have a land-grant college here. Conjunctive use of the shallower groundwater and surface water has been considered to be in reasonable balance locally. Some farmers use wells, some irrigate with water from Indian Valley Reservoir. Those using surface water help to recharge the wells for those who are pumping. And some farmers can go back and forth, as needed. Davis and Woodland moving to surface water for the majority of our water reduced pressure on the shallower groundwater supplies.
There are areas where housing growth is a threat to water supply. It isn’t likely to be an issue here. Davis is somewhat uniquely situated with having alternate and even a backup source of water.
I’m certainly open to updated information on this topic.
Thanks, but (now) wondering why Davis would be under any form of water restriction for existing households and businesses. From your post, it sounds like the city can pump all the water it wants to, without any impact to anyone or anything.
If it’s “prehistoric”, then (by definition) it’s not being recharged.
It’s a state policy.
https://www.cityofdavis.org/city-hall/public-works-utilities-and-operations/water/water-conservation
I, of course, did not say that or anything like that.
This is very much like that:
If there’s a limited supply, then by definition adding more demand will reduce the amount available to others. There’s no way around that.
As I recall, this was one of the issues regarding the new development in Folsom, as well. Essentially requiring existing residents and businesses to “conserve for more development”.
I also recall that this impact was purposefully downplayed. Sort of an attempt to “muddy” the reality, so to speak. Though pretty soon, there won’t be enough water to create mud. 🙂
Correct. Folsom, as far as I know, only has surface water available, from Folsom Reservoir. Their “plan” was to provide water for new development through conservation of existing water supply.
Just happened across this article, and decided to post it using my best (text) impersonation of Professor Farnworth’s (Futurama) catch-phrase, “Good News, Everyone”:
https://www.msn.com/en-us/news/us/4-cities-sue-to-stop-new-california-law-permitting-more-homes-in-single-family-neighborhoods/ar-AAVIPOU?li=BBnbfcL
Also, was Davis one of the 240 cities opposed to SB 9? And if not, why not? (Unfortunately, I think I already know the answer to both of those questions.)
If you say (as you did),
why ask?… I think I already know why, and don’t need to ask a question…