By David M. Greenwald
Executive Editor
Davis, CA – Last summer and this fall, the city of Davis has received extensive correspondence and comment from Legal Services of Northern California (LSNC) and the Public Interest Law Project (PILP) on the City’s proposing and pending Housing Element—Version 3.
While Legal Services is appreciative of city staff for incorporating many of their previous suggestions, they continue to have overall concerns about the Housing Element.
For instance, the city notes, that Legal Services continues to express concerns that Version 3 “does not affirmatively further fair housing” as they believe it would overconcentrate multi-family affordable housing in the southeast section of the City.
A bigger concern however might be that smaller sites with a capacity of 41 units or less were unlikely to attract affordable housing developers who would need larger parcels to secure financing.
Legal Services notes, “The City needs to rezone sufficient land to accommodate 496 lower income units,” and added, “At the same time, the City must take steps to “affirmatively further fair housing.” The purpose of this requirement is to “undo patterns of segregation and create opportunity for communities of color and other protected 
classes.”
The concern here is that while the city has identified a number of smaller sites, “These sites are unlikely to attract affordable housing developers who need larger parcels to secure affordable housing financing.”
A lot of these parcels are located in the southeast section of the city which is surrounded by existing affordable housing complexes such as New Harmony Mutual Housing Community, Owendale Community, Alhambra at Mace Ranch, among others.
Writes Legal Services, “Our clients have concerns that the City is funneling all of their multi-family affordable housing units into one section of the City. In summary, the current sites would perpetuate segregation and fail to affirmatively further fair housing.”
Legal Services suggested that the City should “commit to initiating a rezone or annexation that will increase affordable housing sites in the Northern and Western areas of the City or the City’s sphere of influence.”
They also requested that all new ADUs be required to “be deed restricted as affordable rentals for a minimum of 15 years.”
The City is committed to providing affordable housing in the community,” City Staff responded. And the city disagrees, believing “that the 2021-2029 Housing Element does affirmatively further fair housing.”
While acknowledging the concern of Legal Services, the city responded, “State law restricts the identification of sites that are smaller than half an acre to accommodate a jurisdiction’s Lower Income RHNA. The smallest site identified in the City’s sites inventory is one acre. In addition, of the 13 total sites in the inventory to address the City’s lower income RHNA shortfall, half of them (7 sites) exceed 2 acres.”
The city also believes that the “reference to a capacity of “41 units or less” is somewhat misleading.”
Instead, the city notes that “the estimated number of lower income units identified in the City’s site inventory is a conservative estimate of the potential development capacity for a site.”
Instead, the city argues, “The actual capacity of the sites included in the sites inventory fits well within the number of units that would make these sites feasible for affordable housing financing.”
In short, the city argues that “all of the proposed rezone sites meet the statutory criteria and HCD guidance, including the size criteria. The City has not relied on any sites smaller than an acre (let alone ½ acre) and has identified sites with a realistic capacity for development, estimating that capacity in a conservative manner.”
The city also pushes back on the notion that the sites are “concentrated” in certain parts of town, noting, “The City of Davis has a long-time policy of requiring and providing affordable housing in development projects and subdivisions in all areas of the City.”
The city adds, “The City also is currently processing applications for several multi-family developments proposed in Downtown Davis and several peripheral housing projects, all of which would provide affordable units if approved and built and all of which are located outside of Southeast Davis.”
The city said, “Staff does not believe the rezone program will result in an overconcentration of lower income housing within southeast Davis.”
Nevertheless, they do acknowledge that of the 13 sites included in the sites inventory, “8 of the sites are located in the southeast part,” but adds that “These sites are located in areas that are well-served by local transit and the City’s off-street bicycle network. The sites also are near two neighborhood shopping centers (Oakshade Plaza and El Macero Shopping Center) and a number of other standalone retail and restaurant buildings.”
Thus they conclude, “rezoning the proposed sites for high density housing will not overconcentrate affordable housing in the southeastern part of the City.”
In terms of annexation, Legal Services noted “the City could commit to initiating a rezone or annexation that will increase affordable housing sites in the Northern and Western areas of the City or the City’s sphere of influence.”
The city responded that while the city is currently processing planning applications for a number of peripheral developments, none of them are included in the City’s site inventory.
“While the City is not counting any of these potential peripheral proposals toward its current RHNA cycle for planning purposes (largely because of statutory criteria and HCD guidance), the City is processing these applications expeditiously,” staff writes.
Staff added, “The City considers both infill and peripheral opportunities for new housing development to be important, even if the Housing Element rezone sites do not include the peripheral sites as identified capacity toward the Lower Income RHNA.”
The city was not inclined to require affordable deed restrictions for ADUs—a frequent criticism of ADU policies has been that there is no guarantee that the units will remain affordable.
Staff responded that “staff does not believe that it would be practical or legally viable.”
The City, staff adds that it “strongly supports the construction of ADUs. They play an important role in diversifying the City’s housing stock and can provide ‘naturally occurring’ affordability, as discussed in the revised Housing Element Version 3.”
However, staff argues “the City simply does not have the legal authority to mandate that new ADUs be deed restricted as affordable housing.”
