Oct 17 2022

Urgent Action Needed to Avert Disaster and City Losing Zoning Control in Three Months

City must adopt a substantially-compliant Housing Element in three months.

Piedmont is required under State law to adopt a compliant Housing Element by January 31, 2023, or the City will be subject to severe penalties, including loss of much zoning control the very next day.   I don’t think decision-makers or the community are fully tuned into the gravity of the situation.

The laws are not the same as they were five or six years ago, so this lack of awareness may stem from not having experienced this situation before. However, the world has changed. Given the lack of movement on the Housing Element, we are headed toward a train wreck, and all of the granular discussions and work on the element may be moot if the City does not adopt a substantially-compliant Housing Element in three months.

The State Dept of Housing and Community Development (HCD) just clarified 10 days ago that the 120-day grace period that we as a community have been told the City has applies only to the shortened zoning implementation period (one year vs. three years). Everything else, including the dreaded “builder’s remedy” that was enacted by the State in 2019 under which a City loses zoning control, kicks in the following day. See letter from the State to this effect regarding San Francisco here https://twitter.com/derivativeburke/status/1578070771972247552/photo/1

So, come February 1, 2023, anyone can propose any building of any height anywhere, and as long as there is a modest affordable component, they don’t need to comply with zoning regulations, and the City would have no power to deny it. It doesn’t matter what height or setbacks the proposed development has. Santa Monica has seen 4,000 non-zoning compliant housing units—many of them 10 to 15 stories in the middle of neighborhoods—approved in just the eight months their element has not been in compliance. See https://smdp.com/2022/10/12/new-15-story-project-automatically-approved-due-to-late-housing-element/ There are numerous such examples from Southern California where Housing Element deadlines were a year or two ahead of ours, and undoubtedly we will see the same happen in the Bay Area come early next year.

Even if the City has a certified element say by May of next year, if someone files a development application in April, they would be grandfathered and the City would not be able to deny these projects. They just need to get the application in. These projects are not subject to non-objective design review under State law, so nothing can hold them back.

We are already out of time to have a State-certified Housing Element by January end, given that HCD has 90 days to review a first draft and the City has not turned one in. The City can, however, still adopt a substantially-compliant element by the due date and continue to seek State certification. While ideally the City should have State certification as proof of its compliance, it can still assert substantial compliance with State laws while certification is sought. We can do this soon by using the last Housing Element draft and updating housing sites with the direction the Council provided in early summer, and then sending this for HCD review. If there are changes that result from HCD review, the City would make changes, and re-adopt.

Many community members have disagreements with aspects of the current proposal, as do I (I think densities along Grand can be much higher in five- or six-story buildings and along Highland in say four stories than what staff proposals state, numbers in Moraga Canyon should be lower as that area is not walkable or accessible to services and has steep slopes, and the City should also encourage small-plexes in existing neighborhoods). But the broader interest of the community rests on having a compliant, adopted element in place.

Some have pointed that the City Charter demands a vote on allowing multifamily housing on Public lands. They are right, and anyone with a straight reading of the Charter would come to the same conclusion. But if City rules (whether through charter or a City Council action) run afoul of State laws and the City is not able to fulfill its RHNA obligations and have a Housing Element in place in time, all that is irrelevant. Recent court cases do not favor local opposition to State rules. We are also past the time for a vote, even though technically the Charter demands it, and the City leadership should have been attuned to this much earlier. But now waiting for a vote or inaction otherwise will result in alternatives that are much worse. We are running out of time to stop someone from proposing 15-story buildings along Grand or Highland avenues, or maybe a five story-one next to your house, resulting in totally unplanned, non-cohesive development.

All cities are racing to adopt the Housing Element by the January 31st deadline. Just Google San Francisco or Oakland Housing Element and you will find dozens of articles. This should be the single highest priority in the community right now. We need THIS council to move on this now and for the NEXT Council in January to keep marching with this in the broader community interest, regardless of what happens in the upcoming elections. Not to mention our obligations under State law to meet our share of regional housing need and support housing for a diversity of incomes.

Rajeev Bhatia, Piedmont Resident

Editors’ Note: Opinions expressed are those of the author.

9 Responses to “Urgent Action Needed to Avert Disaster and City Losing Zoning Control in Three Months”

  1. Amazing article! Thank you, Rajeev. Let’s hope it generates some action.

  2. According to a recent analysis by the UCLA law school, the so-called “builder’s remedy” is far from guaranteed to happen. I’m in no way suggesting that Piedmont should not act as promptly as possible, but the poor staff at HCD is going to have their hands full since the majority of the submitted HEs in both southern and northern California have not been certified upon their initial submission.

    It’s also going to be challenging for any potential applicant using the “builder’s remedy” to find an available site in our built out community. One cannot file a development application on property they do not own, or have optioned.

  3. I agree. It’s time (past time) for the City to submit a draft Housing Element to the state. We are one of the last cities in Alameda County to do so. Cities that dither and get caught up in fruitless, counterproductive efforts to vote or sue the state will have even less control over their zoning, not more.

    On the question of the Charter’s requirement for a vote, I think the issue is more legally ambiguous and nuanced than Rajeev suggests. See the City’s latest explainer:


  4. A zone is fundamentally only two issues: The boundary that separates it from other zones and what uses are allowed in that zone. Without this we have gas stations next to schools, tanneries next to day-care centers, and smelting plants next to homes. The City FAQ states:
    “The City Charter does not state that a vote is required to amend regulations within a zone, such as allowed uses or density.” The City is entirely ignoring controlling and changing use within zones.

    I can see the City’s argument that allowing high-density multi-family housing in Zones B and D is only a density change as currently single family residential is allowing in those zones. But importantly single family residential is allowed in all five Piedmont zones meaning the City can arbitrarily allow high-density multi-family housing complexes throughout the City. Of course this will never happen in Zone E, the estate zone which raises a number of other interesting questions as to why any perceived burden of RHNA is being placed on lower Piedmont and not being shared by upper Piedmont.

  5. Just sending the Housing Element to the State, as Irene suggests, is not going to help. The City needs to ADOPT the element by the Jan 31 deadline. That was the main point of my article.

    A lack of adopted or non-compliant Housing Element will result in many other consequences besides just the builder’s remedy, which is not just theoretical. It’s going to take the City a long time to get HCD certification — less than half of the LA County cities have it one year past the original deadline, and the longer this goes on, the greater the City’s exposure. Just sending the element to the State doesn’t make the City compliant with State laws. Absent State certification (which we are not going to have Jan 31st, even if we turn in the Housing Element to the state tomorrow), the City would need to adopt the Housing Element with certain findings to find it substantially compliant with state law.

  6. No time has been “dithered” on submitting the HE by addressing this question of a vote. Presumably the City Attorney has been at work on that question while staff and consultants address HE revisions. And the imminent deadline is of the City’s own making – the City has always said May 31, 2023 was the final submission deadline, after which the City would be out of compliance. Now the community is told (by other sources) that the deadline for a compliant HR is January 31, 2023. Which is it?

    Is there a grammarian in the house? If anything, I think that explainer makes the case for a vote, especially criteria #2. “… reduce, enlarge OR reclassify a zone without a vote”. Doesn’t “or” imply there are two cases that trigger a vote?

    The real nuance surrounds the City’s definition of use. Rick is right- Chapter 17 allows for single-family residences in all zones, even B. The City is arbitrarily concluding that because one type of housing is allowed, all types are. There must be case law to support that interpretation. If not, then the next Council will have to sort this out.

  7. Garett and Rick, I agree that a straight reading of the charter requires a vote. Either the City can find sites that don’t impinge on the charter (that is, not on Public land), or if the Council adopts it with some housing on Public lands without a vote, it would be hard to turn that decision over in a vote, without the same vote also identifying additional sites where the same housing can be accommodated (as that is another recent State law requirement). Just an up or down vote is not going to help, as just a no vote will be unlawful. This is going to be too complex an issue to be handled through a public vote, and that in any case will be hard to do in three months.

  8. I agree – the timing will not work for a vote (especially now with only three months, if that is the new deadline) and the only community vote on this matter, indirectly and ineffective, is the upcoming Council election. Pending that outcome, if residents want to assert their charter rights they will have to do so on the next ballot. There may well be a ballot question to amend the Charter on the next ballot as one of the first actions of the HE is to convene a study of the Charter and how it is an impediment to affordable housing.

  9. If I’m understanding this correctly, zoning changes need a vote according to the charter, but the submittal and the adoption of the Housing Element is not a zoning change, thus not requiring a vote.

    However, the state can somehow punish Piedmont if the city does not subsequently adopt the necessary zoning changes to allow the housing shown on the HE to happen, but those changes will require a vote. If so, what’s the point of the subsequent vote?
    I’m beginning to think that there will be some sort of pushback or political/legal changes before the more draconian scenarios are allowed to happen.

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