Blogging Bayport Alameda

July 8, 2021

Road to non compliance

Filed under: Alameda — Tags: — Lauren Do @ 6:08 am

With Alameda on the track toward a non compliant Housing Element I thought I would review, again, what will happen to Alameda if we don’t meet the deadline for filing a Housing Element and what happens if we don’t have a certified Housing Element.

Unlike the first time Tony Daysog was on City Council and HCD had no enforcement mechanism to force recalcitrant jurisdictions into complying with the Housing Element requirement the focus on the housing shortage today is real, sustained, and has funding to back up threats in the face of non compliance.

If we can’t get our act together to even submit the Housing Element by the deadline the immediate trigger is to cut off the spigot of state funding for anything we may want. You want some park grant money? Too bad. You want some money to repave roads? Nope.

Then if we are deemed not in compliance, which, if you don’t turn in a Housing Element that’s sort of a gimme, a whole lot of bad stuff is put into motion. Now maybe we won’t be the only city who had a hard time getting our ducks in a row and maybe the bad stuff is delayed while HCD handles much worse offenders but eventually the eye of HCD will turn our way.

This report from UCLA has a great part about state law empowering these Housing Elements:

First, the Housing Accountability Act (HAA) prohibits local governments from denying or reducing the density of certain housing development projects if the project is “consistent with the density specified in the housing element, even though it is inconsistent with both the jurisdiction’s zoning ordinance and general plan….” This precept governs all parcels the housing element deems suitable for lower income housing. Cities must provide the parcel inventory on a standard-form spreadsheet, stipulating the number of units that may be developed on each site. By making this representation to HCD and then voting to adopt the housing element, a city, through the HAA, obligates itself to waive any zoning or development standard that would preclude development of the sites to the density specified in the spreadsheet.

Second, California’s Housing Element Law and its statutory companion, the No Net Loss Law, legally obligate city councils to upzone developable parcels…as may be necessary to accommodate the city’s share of “regional housing need,” called RHNA. If the realistic capacity of still-available inventory sites drops below the remainder of the city’s RHNA obligation at any point during the eight-year planning period, the city must make up the difference within six months by identifying additional sites or rezoning. The mechanisms for enforcing these duties include decertification of the housing element by HCD, litigation by the Attorney General or private parties, a court order suspending the city’s authority to issue certain classes of building permits, and, in cases litigated by the Attorney General, escalating fines and even judicial appointment of a special master with “expertise in planning” to do the rezoning.

Third, under background principles of state law, the housing element itself, as a component of a city’s general plan, may create additional legal rights and duties. The general plan is akin to a constitution for land use; local ordinances and permitting decisions must be consistent with it…Amendments to a housing element must be submitted to HCD for pre-enactment review, and HCD may respond to improper amendments by decertifying the housing element.

Fourth, the Housing Accountability Act stipulates that if a city fails to adopt a timely, substantially compliant housing element, or has its housing element decertified, the city forfeits the prerogative to use its zoning and general plan to deny projects in which at least 20% of the units would be affordable to lower-income households. Such projects may still be denied if they violate objective health or safety standards, but not for being too tall, too dense, too ugly, or too otherwise out of whack with the city’s sensibilities. Thus, not only do compliant housing elements have, in the above-mentioned respects, the force and effect of law, but so too does a city’s footdragging on its housing element update. Such inaction suspends (by operation of state law) the city’s zoning code and general plan vis-à -vis 20% Below Market Rate (BMR) projects. [emphasis added]

I’ll note that the “No Net Loss” portion is what tripped up the City of Huntington Beach and something that Alameda was treading closely to at some point when a Councilperson wanted to revisit either the multifamily housing overlay or something.


  1. So if we don’t meet the deadline, I can build a 1000-unit skyscraper with 20% bmr on any parcel in Alameda?

    Comment by Hmmm — July 8, 2021 @ 2:47 pm

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