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Pleasanton: City staff update council on provision that is forcing Housing Element adoption by January

Concern arises statewide after developers pursue 'builder's remedy' amid grace period

The Pleasanton City Council and city staff have committed themselves to an aggressive December meeting schedule in order to adopt the city's new Housing Element by the statutory deadline of Jan. 31.

Staff told the council at the Nov. 15 meeting that while the original plan was to make use of the 120-day grace period -- as it is allowed per state law -- and adopt the Housing Element by April of next year, there are now concerns that doing so could have certain consequences.

"The reason for the scheduled amendments are principally about some recent developments that have occurred in Southern California and an emerging concern … about the so-called 'builder's remedy,'" Pleasanton community development director Ellen Clark said.

Clark said the builder's remedy is a longstanding provision of the Housing Accountability Act that has been seldomly used since it went into effect in 1990 because "it was so confusingly written that no developer ever really wanted to rely on it."

She said the provision essentially states that when a city doesn't have a certified Housing Element, developers can use that to submit project applications. Such a situation could exist on paper for cities who opt to use the grace period because technically their 2023-31 Housing Element would not be adopted as of Jan. 31.

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"The fact that you are consistent with the General Plan, with the zoning, ceases to matter," Clark said. "So it potentially gives developers a fairly broad hand to submit applications, whether or not they actually comply with the zoning or the General Plan that we might have in place. The window for that is not having an adopted compliant Housing Element in place."

She noted that some cities in Southern California whose Housing Element had not been adopted within the requisite timeframe and have seen numerous project applications being submitted under the builder's remedy are challenging those applications in court.

But nonetheless, she said that Pleasanton and the other neighboring cities in the Bay Area that were intending to use the grace period are all shifting gears to adopt their Housing Elements sooner rather than later.

The city's Housing Element is revised every eight years under state law and requires the council to identify adequate sites through the General Plan and zoning process for future residential development.

Staff have been working on the housing update since 2021 and are now in the final stages of adopting it along with finalizing -- now in an also expedited timeline -- the Stoneridge Shopping Center redevelopment framework and any objective design standards that would apply to housing developments.

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The Stoneridge Mall property is just one out of 25 sites that the city has listed for potential redevelopment in order to meet its Regional Housing Needs Allocation (RHNA) of 5,965 new units. The mall was selected as a site to develop 900 to 1,400 high-density housing units.

Since the council approved the framework concept in August, the city's Planning Commission held a joint meeting with the community on Sept. 26 and has also been working with a professional services team to develop conceptual alternatives to the redevelopment design.

Staff were previously working under that grace period with the intent on having a framework for the mall redevelopment done around the same time as adoption of the Housing Element in April. The framework was meant to gather community input, outline allowed land-uses and provide initial policy guidance and conceptual planning for the mall property.

But now, Clark highlighted the separate and joint back-to-back meetings the City Council, Planning Commission and Housing Commission in December where they will have to make key decisions regarding the framework.

Councilmember Kathy Narum asked about the mall property owners and how they felt about the accelerated time frame to which Clark said staff have been meeting with them as a group and individually frequently to talk about all the different development alternatives.

"We won't know until we get to the end, whether or not the plan that is recommended is one that everybody wholeheartedly supports but one of our approaches has been to try and get as close to that as we can," Clark said.

She added that balancing the important attributes the community wants to see at the site as well as what the mall property owners want is going to be key in developing that space.

"I think there's actually a very strong convergence of those ideas, in terms of really a good shared vision for success, for longevity, for economic vitality, for just revitalization at the mall, that I think everybody agrees are really important," Clark said.

However, one thing she wanted to make clear is that work on the framework, as well as for the Housing Element, will not be done at the end of January.

She said regarding the framework, there will still be things to fine-tune such as finances or any big picture plans and for the Housing Element, there is still more review needed after Jan. 31.

Clark clarified that when the council adopts its Housing Element in January, it will not be officially certified by the state Department of Housing and Community Development. The reason for this is the HCD will have a few months to review the city's adopted Housing Element for a second time so it can provide any additional comments about the city's plans.

HCD officials already discussed its preliminary comments with city staff in two separate meetings and have provided formal comments to the city on Nov. 14. Once the city adopts the Housing Element in January, it will submit it to the HCD with the intent of receiving preliminary certification, which is allowed by state law.

Councilmember Julie Testa questioned if staff might have to compromise any plans the city had because of the rush, but Clark said that because of the extra time after January to fine-tune and because the council already approved the initial element draft, there shouldn't be any issues.

"There may be a couple of other issues that we want you to focus on but I think for the Housing Element itself, I don't foresee compromise," Clark said. "It will require decisions to be made in a timely manner."

The council's schedule in December includes a community meeting and a separate joint City Council and Planning Commission work session to review conceptual alternatives and provide direction on concepts to incorporate into the Housing Element.

Clark said this will also be a time to possibly trim the sites list after they bring back the HCD and the environmental analysis of all the sites to the council for review.

Staff will then bring the Housing Element along with the Stoneridge framework and any objective design standards back to the council for final adoption at a special meeting on Jan. 26. The date is still up in the air as Clark pointed out staff are trying to make sure that date works for everyone.

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Christian Trujano
 
Christian Trujano, a Bay Area native and San Jose State alum, joined Embarcadero Media in May 2022 following his graduation. He is an award-winning student journalist who has covered stories in San Jose ranging from crime to higher education. Read more >>

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Pleasanton: City staff update council on provision that is forcing Housing Element adoption by January

Concern arises statewide after developers pursue 'builder's remedy' amid grace period

by / Pleasanton Weekly

Uploaded: Sun, Nov 27, 2022, 4:43 pm

The Pleasanton City Council and city staff have committed themselves to an aggressive December meeting schedule in order to adopt the city's new Housing Element by the statutory deadline of Jan. 31.

Staff told the council at the Nov. 15 meeting that while the original plan was to make use of the 120-day grace period -- as it is allowed per state law -- and adopt the Housing Element by April of next year, there are now concerns that doing so could have certain consequences.

"The reason for the scheduled amendments are principally about some recent developments that have occurred in Southern California and an emerging concern … about the so-called 'builder's remedy,'" Pleasanton community development director Ellen Clark said.

Clark said the builder's remedy is a longstanding provision of the Housing Accountability Act that has been seldomly used since it went into effect in 1990 because "it was so confusingly written that no developer ever really wanted to rely on it."

She said the provision essentially states that when a city doesn't have a certified Housing Element, developers can use that to submit project applications. Such a situation could exist on paper for cities who opt to use the grace period because technically their 2023-31 Housing Element would not be adopted as of Jan. 31.

"The fact that you are consistent with the General Plan, with the zoning, ceases to matter," Clark said. "So it potentially gives developers a fairly broad hand to submit applications, whether or not they actually comply with the zoning or the General Plan that we might have in place. The window for that is not having an adopted compliant Housing Element in place."

She noted that some cities in Southern California whose Housing Element had not been adopted within the requisite timeframe and have seen numerous project applications being submitted under the builder's remedy are challenging those applications in court.

But nonetheless, she said that Pleasanton and the other neighboring cities in the Bay Area that were intending to use the grace period are all shifting gears to adopt their Housing Elements sooner rather than later.

The city's Housing Element is revised every eight years under state law and requires the council to identify adequate sites through the General Plan and zoning process for future residential development.

Staff have been working on the housing update since 2021 and are now in the final stages of adopting it along with finalizing -- now in an also expedited timeline -- the Stoneridge Shopping Center redevelopment framework and any objective design standards that would apply to housing developments.

The Stoneridge Mall property is just one out of 25 sites that the city has listed for potential redevelopment in order to meet its Regional Housing Needs Allocation (RHNA) of 5,965 new units. The mall was selected as a site to develop 900 to 1,400 high-density housing units.

Since the council approved the framework concept in August, the city's Planning Commission held a joint meeting with the community on Sept. 26 and has also been working with a professional services team to develop conceptual alternatives to the redevelopment design.

Staff were previously working under that grace period with the intent on having a framework for the mall redevelopment done around the same time as adoption of the Housing Element in April. The framework was meant to gather community input, outline allowed land-uses and provide initial policy guidance and conceptual planning for the mall property.

But now, Clark highlighted the separate and joint back-to-back meetings the City Council, Planning Commission and Housing Commission in December where they will have to make key decisions regarding the framework.

Councilmember Kathy Narum asked about the mall property owners and how they felt about the accelerated time frame to which Clark said staff have been meeting with them as a group and individually frequently to talk about all the different development alternatives.

"We won't know until we get to the end, whether or not the plan that is recommended is one that everybody wholeheartedly supports but one of our approaches has been to try and get as close to that as we can," Clark said.

She added that balancing the important attributes the community wants to see at the site as well as what the mall property owners want is going to be key in developing that space.

"I think there's actually a very strong convergence of those ideas, in terms of really a good shared vision for success, for longevity, for economic vitality, for just revitalization at the mall, that I think everybody agrees are really important," Clark said.

However, one thing she wanted to make clear is that work on the framework, as well as for the Housing Element, will not be done at the end of January.

She said regarding the framework, there will still be things to fine-tune such as finances or any big picture plans and for the Housing Element, there is still more review needed after Jan. 31.

Clark clarified that when the council adopts its Housing Element in January, it will not be officially certified by the state Department of Housing and Community Development. The reason for this is the HCD will have a few months to review the city's adopted Housing Element for a second time so it can provide any additional comments about the city's plans.

HCD officials already discussed its preliminary comments with city staff in two separate meetings and have provided formal comments to the city on Nov. 14. Once the city adopts the Housing Element in January, it will submit it to the HCD with the intent of receiving preliminary certification, which is allowed by state law.

Councilmember Julie Testa questioned if staff might have to compromise any plans the city had because of the rush, but Clark said that because of the extra time after January to fine-tune and because the council already approved the initial element draft, there shouldn't be any issues.

"There may be a couple of other issues that we want you to focus on but I think for the Housing Element itself, I don't foresee compromise," Clark said. "It will require decisions to be made in a timely manner."

The council's schedule in December includes a community meeting and a separate joint City Council and Planning Commission work session to review conceptual alternatives and provide direction on concepts to incorporate into the Housing Element.

Clark said this will also be a time to possibly trim the sites list after they bring back the HCD and the environmental analysis of all the sites to the council for review.

Staff will then bring the Housing Element along with the Stoneridge framework and any objective design standards back to the council for final adoption at a special meeting on Jan. 26. The date is still up in the air as Clark pointed out staff are trying to make sure that date works for everyone.

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