When Atherton City Council came together for a study session on Wednesday, Nov. 2, afternoon to discuss how to respond to the state's feedback on its draft housing element, one council member urged his fellow members to do more to try to satisfy the state's demands.
The town received a letter from the state Department of Housing and Community Development (HCD) on Monday, Oct. 31, noting that the town is overestimating how many Accessory Dwelling Units (ADUs) and duplexes it will help produce over the next eight years. Council member Bob Polito said that town staff and consultants told the council "from day one" that the plan would not be approved by HCD. He said HCD's response was essentially giving Atherton an "F" grade.
The council included multifamily housing overlays in an earlier version of Atherton's draft housing element, which must plan for 348 additional units under the state's 2023-31 Regional Housing Needs Allocation, a jump from the 93 units it was assigned the previous cycle. The council scrapped those multifamily housing plans in July following complaints from residents about a shift away from life as a single-family home community.
"Am I the only one of our council members that thinks there should be consideration of a Plan B instead of moving forward with something that's going to fail again?" he said. "We're just kicking this can down the road."
Council members Elizabeth Lewis and Bill Widmer worried in September that a Plan B with multifamily overlays would undercut its current ADU-focused plan. Council member Diana Hawkins-Manuelian, like Polito, also wanted to see backup plans.
"I'm like a lot of people that think the state is 'overreaching' into local land use issues with SB 9 (et al) and the entire RHNA process, and that maybe the next election cycle will include some relief via referendum," Polito said in an email to The Almanac after the meeting. "But I think there is real danger for the town to not make every effort to produce an approved housing element, and do so promptly."
Polito said "YIMBY" group lawsuits, invalidation of the town's general plan and threats of so-called builder's remedy projects that sidestep local zoning rules all pose "significant risk" for Atherton. He said his colleagues now need to consider a Plan B that will almost certainly include multifamily housing.
Polito, who stepped in last year to fill in when former Vice Mayor Mike Lempres moved to Paris, is not seeking office this fall and will leave the council in December. He has said that he believes a handful of well planned, high-quality multifamily projects would be vastly better for the town than the plan the council currently supports. He said in September that he would support his fellow council members in the current draft housing element until the state rejects the submission.
"Trying to achieve the state's requirement of 348 new housing units via SB 9 lot splits and hundreds (literally) of new ADUs with as little as a 4 feet setback to a neighboring property will generate negative consequences throughout the town that are way beyond what anyone realizes," he said in a Sept. 7 email.
Widmer said he thought the town's grading was more likely a "C-." He said it seems the state mostly wants more details and analysis completed.
"Parts of the letter are overly harsh," he said. "Some parts are an overreach on their (the state's) part."
Mayor Rick DeGolia said he was "pleasantly surprised" by the content of the letter, agreeing with Widmer that it seemed like the state is focused on the town gathering more analysis.
"The council has judged that if a developer must purchase land in Atherton, then it is nearly impossible to deliver affordable housing because the cost of land is so expensive," DeGolia said in an email. "That leaves Atherton with the opportunity to enable affordable housing with multifamily development on school properties and to create programs to incentivize people to build and rent ADUs at affordable rates."
DeGolia said it remains to be seen whether this strategy will succeed, but he described it as the "best (and only) bet" to provide affordable housing in an area with high land costs.
At the Nov. 2 meeting, Lewis asked staff if there had been any traction on lawsuits against the state by any coalition and what punitive actions the state has taken against jurisdictions without achievable plans.
Town Attorney Mona Ebrahimi acknowledged Lewis' frustration with the increased housing quotas, but courts seem to be backing HCD.
"There's nothing promising I could tell you that would lessen the burden," Ebrahimi said.
Town consultant Barbara Kautz said the results are much worse if the courts take over the process. Kautz said the press and courts have portrayed cities and counties unhappy with their RHNA numbers as "the bad guys."
Consultant Diana Elrod has been following the housing element process for years and said that the town's letter this year was average length. Letters are about eight times longer than they were in the past, they said.
During the public comment period, City Council candidate Greg Conlon, said he doesn't understand why the council hasn't "raised hell" about its assigned number of units being too high.
"Somebody needs to take a hard look at those numbers," he said.
Planning Director Lisa Costa Sanders said that, based on the letter, HCD wants Atherton to add multifamily housing, by right, with objective design standards.
A staff report notes the town may need to revisit multifamily overlay zone sites and additional sites for housing as part of the resubmitted housing element in order to reach compliance.
HCD considers a density of at least 20 units per acre as a "default" density that counts as meeting affordable housing requirements; however, the town isn't required to zone for density at that level to achieve certification. The town can create density at lower levels, provided that the town is able to show projects at these lower densities are feasible for affordable housing production under RHNA.
The following were previously considered and approved locations for zoning overlays by a majority the City Council:
• The property at 23 Oakwood Blvd., approximately 1.52 acres which borders Redwood City, was set at 16 units per acre. It passed 3-1-1, with DeGolia voting no and Widmer abstaining.
• The property at 97 Santiago Ave., approximately 1.42 acres, was set at 6 units per acre. 3-2, with Lewis and DeGolia opposed.
• The property at 170 Atherton Ave. in West Atherton, which is about 4 acres, was set at eight units per acre. Three council members voted yes, while DeGolia and Hawkins-Manuelian abstained from voting.
• The property at 290 Polhemus Ave. near Alameda de Las Pulgas and Stockbridge Avenue, is approximately 5 acres, was set at eight units per acre. The overlay was approved unanimously.
ADUs and SB 9
Town staff note that Atherton will also be required to create an ADU monitoring and reporting program to show affordability success. Staff has already explored this with the local nonprofit HIP Housing, which provides home sharing services.
The town expects to have its ADU resident survey completed in early December, said City Manager George Rodericks.
DeGolia said he is 100% "Yes in My Backyard," referring to building ADUs, not the pro-housing movement of the same name.
Kautz said the town faces the issue of whether ADU units fall into the low-income housing category. She also noted that HCD is "very suspicious of any community claiming a significant number of SB 9 units."
SB 9, the state duplex law that took effect in January, requires local agencies to grant ministerial approval to certain lot splits and up to two primary units on each resulting lot, with 4-foot minimum side and rear setbacks. SB 9 projects do not need to be approved by the Planning Commission or City Council, and are handled by town staff without discretionary review or a hearing.
The state may demand to know exactly where those units are going to be located, and may not accept the plan without multifamily zoning at 20 units per acre.
The City Council will have a special meeting on Thursday, Nov. 17, at 5:30 p.m. Staff will go through the HCD letter, paragraph by paragraph, to articulate what is being asked of the town; advise whether the requests are grounded in state statute; and determine how the town can address the issues raised in the letter, Rodericks in an email. From that meeting, there will likely be some policy direction questions raised by council that staff will need to analyze and report back to the council on before the council provides direction.
During a second study session on Thursday, Dec. 15, the council will try to narrow down the policy issues that will then be presented at a couple of community meetings and distributed neighborhood meetings.
"The hope is to work toward a refined document for adoption at the end of January and submission to the state," Rodericks said. "But, if we don't get there, we're at least well on our way toward more public engagement, refined and committed policies, and a document in the works."
Read HCD's letter to Atherton here.
Watch the Nov. 2 meeting here: