By David M. Greenwald
Executive Editor
Davis, CA – Time is not our friend in this. Council was acutely aware of this fact at 1 AM as Mayor Will Arnold suggested the discussion be continued—perhaps to June 20.
June 20, as City Manager Mike Webb hinted on Tuesday, might be the last realistic opportunity to reasonably get something on the ballot for 2024. Council had the option to at least start the EIR process—which would have cost them nothing and committed them to nothing—and only one councilmember even voted for that proposal.
Two councilmembers basically said they already made the decision to forego November 2024 and so they effectively don’t care.
But they should care… because while they were acutely aware of the time at 1 AM, they seem to be oblivious to the larger clock that keeps on ticking.
Many are arguing that we need to look inward first. I agree. The problem is that we have. The number that has been thrown out is actually a mix of RHNA projects that have already been approved, some already in fact built, and most already counted in the current RHNA.
Unlike in the past, once something is included in the Housing Element, we don’t get to 
count it for the next one.
That even includes 1000 units in the downtown. So yes, we are getting some projects—Hibbert has dropped, Davis ACE is expected to drop. But both of those will count toward the current allotment of housing.
It appears that the school district is ready to sell and redevelop their administrative offices, but we are looking at just 40 to 60 units there. The city could look into their properties along Fifth Street, but taking University Commons out for its housing means not only do we lose that for the current Housing Element, but also the housing has to be replaced—which will take other potential infill projects out for 2028.
The reality is that we can look at infill first, but we don’t have large tracts of land that are undeveloped or even underdeveloped within the city.
And so, we are likely to have to find another 2000 units, and 1000 of them affordable, for the next RHNA cycle. For those still arguing those are unrealistic numbers, remember we are already getting a huge break. Woodland in this cycle is being asked to produce over 5000 units, West Sacramento over 9000 units. We are larger still than both of those cities (not for long), and required to do far less.
To get to 1000 or so affordable units is going to require peripheral housing. That’s the reality. That’s the math. Even the proposal put forward by Judy Corbett included 1400 units at Village Farms to make it work.
I don’t have a problem calling that infill, but it’s still going to require a Measure J vote to approve.
Representatives from Village Farms on Tuesday suggested they would increase density up to 1800 units. That addresses some of the concerns by members of the community that the project is not dense enough considering its nearly 400 acre size—but even with that and a healthy allotment of affordable housing onsite, it will likely take at least two and probably three of these projects to get the next RHNA.
You want the city to worry only about this RHNA? Well you have a problem… the clock is ticking.
In order for a project to count for RHNA, it has to be rezoned for housing. For infill, that’s relatively easy. But for peripheral in Davis, that requires that housing be rezoned and, in order to rezone it, it has to pass a Measure J vote.
That means by 2028, the city has to rezone all the land they wish to utilize to meet their housing allotment.
That’s going to take time—and again, the clock is ticking.
As I have pointed out elsewhere, 2024 is the best year by far to pass a Measure J vote.
Even with an aggressive timeline, 2024 is now almost off the table.
If we lose November 2024, we push things to 2025. But 2025 is not an election year. That requires special elections. Special elections where the only thing on the ballot is land use issue. The last two times we had land use issues on special elections—2005 Measure X and 2009 Measure P—they lost with 60 and 75 percent opposition.
We don’t have a lot of margin for error. Do we want to put ourselves into a position where we have to pass two or three projects in 2026? That’s also a recipe for failure.
Want to see us lose some of these? There are a lot of scenarios where that would occur and the ramifications for many will not be pleasant.
Right now Measure J doesn’t have a great track record for actually being able to pass projects—only two of seven have passed.
What will the state do if it becomes two of ten?
Moreover, fail and the city will be out of compliance with RHNA and that fact alone could compel the state to bring down the hammer.
They could take the city to court declaring that Measure J is a barrier to housing and it is difficult to see how the city would prevail under those conditions.
Some see this as a threat—I see this as a math equation.
Some have characterized modifications and changes potentially to Measure J as “gutting” the ordinance, but the city actually risks a lot more by going down this path.
There seems to be very little acknowledgement that the city is facing a ticking clock and the timeline is no longer on our side. The council has refused to act with a sense of urgency here. The community does not seem to sense the danger, even if there seems to finally be an acknowledgement for everyone that we need to figure out ways to build housing.
A guy who supports Measure J complaining about a lack of urgency on putting a measure J housing proposal on the ballot.
I don’t make this stuff up.
I’m not following the disconnect here, Ron. I think you hit the broken record one too many times.
Seriously? Where to start?
You complain about a lack of urgency while simultaneously supporting the biggest bottleneck to solving the problem.
Guess what, at least 3 CC members restated that they weren’t interested in a 2024 vote so you want to talk about beating dead horses.
By the way who can blame them. Especially if they have the slightest notion of running for a higher office someday. Look at what happened to Carson for trying to front a 100 acre business park he believed would help right the financial ship of the city.
Look at how viciously Partida got attacked with people going so far as to dig into personal BS from 25 years ago. Then you beat the drum for the CC to put something up like Lucy trying to convince Charlie Brown to kick the football again.
Measure J is a failed broken ordinance that has had all sorts of intended and unintended consequences. In this case you can’t even get to the biggest turnout election in the four year cycle. So much for direct democracy.
As for those elected who know better many lack the courage to speak up for fear that they will lose the next election. There are many Kevin McCarthy’s and too few Liz Cheney’s among us.
But you aren’t even an elected so what is your story? I guess you are a true believer.
Perhaps the City should concentrate on projects that are 100% Affordable. The RHNA numbers that are in jeopardy are the LI and VLI thresholds. There is no jeopardy in either the Market Rate or the Moderate categories.
Jim Frame has outlined a plan for concentrating the efforts on 100% Affordable. There are Federal and State monies available for projects in that category. So far the City has not made a concerted effort to pursue those funds.
The Council should seriously consider passing an Ordinance that gives significant preference to any project where all the for sale homes are priced at $599,000 or less … and ideally with deed restrictions that keep them in the same price range (plus the same annual price appreciation as allowed by Prop 13) in perpetuity.
100% affordable would not meet our need for the “missing middle” which is a dire need as well. There’s already an exemption in Measure J/R/D for 100% affordable projects.
The question is whether (1) if the available federal or state funds are sufficient on a per project basis and (2) are they competitive grants with a low chance of success for a high income community like Davis, which is largely foreclosed from other types of targeted grants?
Richard, I guess you stopped reading my comment before the third paragraph, which very directly addresses the Missing Middle. Here it is again:
The Council should seriously consider passing an Ordinance that gives significant preference to any project where all the for sale homes are priced at $599,000 or less … and ideally with deed restrictions that keep them in the same price range (plus the same annual price appreciation as allowed by Prop 13) in perpetuity.
What the law actually says is quite different than what David claims:
https://codes.findlaw.com/ca/government-code/gov-sect-65583-2/
The downtown would be a nonvacant site.
The law specifically addresses both nonvacant and vacant sites, and is different from what you’re claiming in your article.
Read the citation again.
True, the law addresses both. But my article was referring to the downtown which are nonvacant sites, and therefore they can only be in the HE once, by my reading of the law.
Your reading of the law appears to be incorrect.
While it’s a little convoluted, it reads to me that a nonvacant site can’t count twice (a vacant site can but not a nonvacant site). There is a caveat about 20 percent affordable, but that’s not going to happen in the downtown anyway. So my reading is correct.
I believe you’re still misunderstanding it.
I’m not seeing any differentiation in the law between a vacant vs. non-vacant site.
The law does not prohibit inclusion in a subsequent housing element, even if the “20% caveat” is not feasible.
What do you mean you don’t see a distinction: ““A nonvacant site identified pursuant to paragraph (3) or (4) of subdivision (a) in a prior housing element… and a vacant site that has been included in two or more consecutive planning periods” – there is clearly two different standards
There are two categories – both of which are included under the same “standard”.
Where are you seeing a difference in how they’re treated?
What “different standard” are you referring to?
Went through it with an attorney as well. The language is just bad. But clearly, nonvacant links to “a prior housing element” meaning one whereas vacant links to two or more or more than one… There is a distinction. There are ways around it, but my reading of it is correct.
In fact, I’m seeing an “advantage” if NONE of the sites are redeveloped, specifically SO that they can be included in a subsequent housing element.
The city would be better-off denying ALL of the infill proposals. Let a developer come back with a “20% Affordable” proposal – which isn’t feasible in the first place on redevelopment sites.
That’s precisely what HCD was looking to avoid – that “advantage”
Again, you appear to be looking at a description of two different categories (vacant, and non-vacant) – both which are then included under the same standard.
Your arrows (which I like, by the way) are simply pointing to the definition of those two categories.
Both have a work around (which I believe is your point), but clearly vacant = two, nonvacant = one
I’m not referring to a “work-around”.
Your claim (that these sites cannot be re-used in a subsequent housing element) is apparently NOT correct.
This is a big deal, in regard to all of your housing claims put forth.
And again, this actually provides an incentive to NOT approve any infill sites, so that they can be subsequently “re-used” – assuming that a developer does not pursue the 20% Affordable option. (Which apparently is generally not feasible.)
They can’t be included in the next Housing Element unless “the site is subject to a program in the housing element requiring rezoning within three years of the beginning of the planning period to allow residential use by right for housing developments in which at least 20 percent of the units are affordable to lower incomes households.”
Why do you now put forth the point I noted (in the law), as if you’re defending your original, incorrect interpretation of the law?
I just noticed something else, as well. It seems that this would apply regarding “vacant” sites as well (approved via Measure J).
I’m not following you, I originally was unaware that there was a work around, but it’s not a feasible work around for the downtown, so my original point was accurate.
Again, the law itself provides this as an option. It’s essentially the builder’s remedy, for cities which aren’t in compliance.
You’re now claiming that the state (which created the law) will state that their own “option” (that they force upon cities which aren’t in compliance) is not allowed to be included in housing elements, because it’s not “viable”.
Which doesn’t make much sense – logically, or legally.
And you wonder why the state’s targets will fail?
What the law actually says about RHNA and what can be counted is different than what this blog post claims:
“A nonvacant site identified pursuant to paragraph (3) or (4) of subdivision (a) in a prior housing element and a vacant site that has been included in two or more consecutive planning periods that was not approved to develop a portion of the locality’s housing need shall not be deemed adequate to accommodate a portion of the housing need for lower income households that must be accommodated in the current housing element planning period unless the site is zoned at residential densities consistent with paragraph (3) of this subdivision and the site is subject to a program in the housing element requiring rezoning within three years of the beginning of the planning period to allow residential use by right for housing developments in which at least 20 percent of the units are affordable to lower incomes households.”
https://codes.findlaw.com/ca/government-code/gov-sect-65583-2/?fbclid=IwAR09F3B_iW0Iq75J9ToKDV-q6ah8I1fdEefikqcSkZjkovqsFU-XDI71Lg0
It is ridiculous that downtown housing, which would be “vertical mixed-use”, will be amongst the most expensive housing in the city, yet it is only required to have 5% affordable housing. That make no sense and is not going to move the needle nearly enough to help with the RHNA affordable housing requirement for Davis. Our temporary affordable housing ordinance needs to increase that affordable housing requirement for vertical mixed-use to 10%-15% , particularly because so many downtown vertical mixed-use units are being proposed, in order for all that development to help with the affordable housing needs.
Further, having no parking at the Hibbert site with the new proposal for over 200 units of vertical mixed-use is also simply ridiculous. Davis does not have the robust transit system needed to eliminate parking. It would just push the parking needs onto surrounding neighborhoods. Also, what about seniors and disabled folks?
The city might want to “deny” the Hibbert proposal (and any other proposal which doesn’t include 20% Affordable housing), which would then permit the state to “require” 20% Affordable housing on the site.
And if it then doesn’t get built, it appears that it can (then) be included to address subsequent RHNA rounds – indefinitely (until/unless it actually gets built).
Problem solved.
The city can’t deny Hibbert because it meets the requirements under the Downtown Specific Plan.
Is that right? No approvals by the council or planning commission needed? They can just start bulldozing any day now, and build that proposal? Really?
If your claim is accurate, it seems that the Downtown Specific Plan itself might be legally-challengeable, in light of the state’s housing targets. Perhaps the YIMBY Law group (or some other party) might be interested in challenging the downtown plan.
Perhaps the city will need to consider “adjusting” the downtown plan, in light of the state’s relatively new targets.
“It is ridiculous that downtown housing, which would be “vertical mixed-use”, will be amongst the most expensive housing in the city, yet it is only required to have 5% affordable housing. ”
It’s because of how expensive it is to build. This is why we aren’t going to solve our housing problems with dense infill.
Well, no more expensive then building project like Sterling 5th Street housing which is 4-5 stories (vertical, higher density housing) which also built 15% affordable housing. So, there is no excuse why vertical mixed use is not required to build a minimum of 10% -15% affordable housing.
Further, rents are much higher in downtown Davis, so it is inexcusable that 10% -15% affordable housing is not required of vertical mixed-use so far. This need to be changed when updating the affordable housing ordinance.
Did you read the BAE analysis from 2018 or 2019? It’s not really a close call.
Well then how did the 15% affordable housing get built at Sterling 5th St. where it is vertical high-density housing?
Because they had a land dedication site
Yes, it has a dedicated land site for affordable housing based upon how much land it would take to accomplish 15% affordable housing with a vertical higher-density residential project.
Sterling wasn’t really vertical. It was four stories built on five acres and then they donated the remaining acre for the affordable site.
As I read the RHNA documents, “affordable” includes the Moderate Income category, which *is* the “missing middle.”
Jim – I read “low” and “very low” distinguished from middle.
References:
CA Health & Safety Code §50052.5(b)(4): “For moderate-income households, affordable housing cost shall not be less than 28 percent of the gross income of the household, nor exceed the product of 35 percent times 110 percent of area median income adjusted for family size appropriate for the unit.”
Davis Municipal Code §18.05.050: “A developer of residential ownership developments consisting of five or more units shall provide in each development, to the extent feasible, affordable housing for very low, low and moderate income households…”
I thought I found one in SACOG documents as well, but I’m not able to find it at the moment.
Looking at the RHNA chart, there is a “moderate” category:
First, I interpreted Matt’s comment as targeting 100% Affordable (legally constrained) vs affordable (market priced at certain income groups). The “missing middle” are families with income around the median household level for the region or state. Because owning a home is one of the prime means of building wealth (right or wrong) those households want to own an asset that appreciates. Otherwise they are little better off than just renting. So that housing needs to be market-based, legally mandated to fill the market. In addition, we need thousands of missing middle units, not just 340.
We should not conflate “affordable” housing with “missing middle” housing.. The former is about pricing, the latter is about density. We have every reason to want to develop market-rate missing middle housing as well.
There was some question as to the state law which seemed relatively convoluted.
However it is pretty clear if you look at the HCD – Site Inventory Guidebook there are separate requirements for nonvacant versus vacant sites.
See page 11: https://www.hcd.ca.gov/community-development/housing-element/docs/sites_inventory_memo_final06102020.pdf
“For a nonvacant site: Included in a prior planning period’s housing element (e.g., 5th cycle
housing element)”
“For a vacant site (see definition of vacant site on page 21): Included in two or more
consecutive planning periods (e.g., 5 th cycle and 4th cycle housing element)”
So clearly from this language, vacant and nonvacant sites are treated differently, with vacant sites getting two planning periods to be developed and nonvacant ones only one.
That was my understanding when I wrote the article and referenced the 1000 housing units in downtown not being able to count in the next cycle.
There is a suggestion that the city could simply reject the housing and then count a 20 percent affordable housing in the next cycle – and essentially double count the downtown.
First, of all, I don’t think they can because of the Downtown Plan and if a project meets the zoning criteria, council has no legislative authority.
Second, the city has findings that 20 percent is not feasible in the downtown.
Indeed in the guidebook there are several limitations:
· Analysis to determine if sites are appropriate to accommodate the jurisdiction’s RHNA for low- and very low-income households.
· Description of the methodology used to determine the number of units that can be reasonably developed on a site.
· Analysis to determine if nonvacant sites are appropriate to accommodate the jurisdiction’s RHNA.
The state with their update to RHNA and the Site Inventory Guidebook were explicitly trying to head off the type of maneuver that some commenters appear to recommend. But clearly, a 20 percent affordable project in the downtown is not going to pass muster of feasibility.
In short, I stand by what I wrote and having discussed with attorneys, believe my analysis is on solid ground.
So (assuming it doesn’t get built), you’re stating that it just sits there in limbo, and cannot be counted again until the following round? In other words, it just “sits out” a round – sort of a “temporary timeout”? Really?
No – not a “double” count. A separate count, during subsequent cycles.
The council is the entity which created or approved the Downtown Plan in the first place. They can change it – including the zoning. The state had NOTHING TO DO with the Downtown Plan.
If anything, the Downtown Plan seems vulnerable to a challenge.
So?
Again, the 20% Affordable plan is coming from the state itself. Are you claiming that the state would reject its own “plan” because it’s not viable? Really?
Who would the state “sue” in that case – themselves?
I don’t think so.
Which “version” of your analysis? I ask because it’s changed over the course of this article.
At first, you were claiming that unbuilt sites could not be counted again at all (at least in regard to non-vacant sites). This is clearly incorrect. Now, you’re claiming some other convoluted scenario.
While also claiming that the Downtown Plan cannot be changed.
Almost forgot your “third” claim – that there’s no possible way that the city can deny the Hibbert proposal. So that’s three questionable claims you’ve put forth, the first of which you “changed” during this conversation.
David
I will go further. The HCD regulations were adopted after a public process involving stakeholders. Based on my experiences on issues at other state agencies, the state courts are highly deferential to an agency’s interpretation of a law (which the courts recognize have to interpret muddled legislative language). Attempting to come in with a direct challenge to a regulation without having participated in the regulatory process with a new interpretation of the law will not succeed based on history.
Based upon what we’ve seen from the state, they don’t much care about local processes which restrict housing (e.g., the downtown plan).
In fact, those are the type of plans that they specifically go-after.
And the courts will likely support the state, in that case.