On Thursday, the San Francisco Planning Department explained to “incensed” city commissioners how it got the wrong deadline to submit its Housing Element to the state, even though it has been in close conversations with the California Department of Housing and Community development for months.
Planning Director Rich Hillis said that he had spoken to the state’s HCD after the bombshell news was dropped via Twitter that the Housing Element, the city’s eight-year housing development plan, had to be approved by the Board of Supervisors and Mayor London Breed by Jan. 31, not May 31, a three-month grace period the department had assumed just a few weeks ago. The scheduling snafu may have come up because “different divisions” of the state department weren’t on the same page, he said.
Last week the SF City Attorney told the SF Planning Commission that the Builder’s Remedy and other penalties did not kick in for 120 days after the Housing Element deadline expires. Today HCD clarified that that’s not accuratehttps://t.co/JyXXDxJSXD pic.twitter.com/io36HSsxxD
— Kevin Burke (@derivativeburke) October 6, 2022
“Frankly, I don’t know if they knew that come January 31, we were out of compliance,” Hillis said of the state’s Housing Element team, adding that the Twitter confirmation of the January deadline came from its “enforcement section.”
“One hand wasn’t talking to the other,” he said.
The timeline might not have been clear, but the consequences for missing the deadline are: San Francisco must have a Housing Element approved and sent on to the state by the Jan. 31 deadline or the city could face the loss of millions of dollars in affordable housing funds. In addition, it could face the “builder’s remedy,” a legal provision that takes approval control out of local hands if a proposed development has at least 20 percent affordable housing. Those projects become approved automatically.
Planner Maia Small said that, “given the many meetings we have had with HCD,” news of the Jan. 31 deadline was “a surprise,” but that the failure to meet the timeline “could have significant consequences” such as “the loss of potential funding and all of our zoning regulations.” Therefore, the department is prepared to move forward with a new schedule to meet the shorter deadline, she said.
“This is not the process we wanted,” she said. “We know this is a big change and it may not feel fair, but we can do this.”
At one point in the meeting, Planning Commission President Rachael Tanner questioned staff about the schedule miscommunication.
“Did you ask HCD, ‘Did you see our schedule when we met and you just kind of thought to yourself, well, I guess they want to be late?’” Tanner asked. “I am just trying to understand how they’re squaring that long engagement we’ve had with them in our schedule and the lack of communicating, ‘Hey, by the way, that’s going to be outside of the compliance period.’”
The department will be back at the commission on Nov. 3 to “unpack” its current submission to HCD and talk about how it will implement the zoning changes required to build 82,000 new housing units by 2031, which is triple the number of state-required units from the last Housing Element cycle. On Nov. 15 the department will go before the Board of Supervisors to give them a presentation about the Element. Two days later, it will be back at Planning to initiate adoption of the Element and certify the plan’s EIR. It then hopes to get the plan pre-certified for approval by HCD before it comes back to Planning to have the plan adopted on Dec. 15, which is the last commission meeting for the year. On Jan. 10 it will bring the Element before the Board of Supervisors for a first reading in the hopes it will be approved and signed by the mayor in time to meet the Jan. 31 deadline.
Assuming the deadline is met, HCD then has 90 days to certify the element, during which time the builder’s remedy would not be in effect. It would only begin if HCD determines that the city’s element is out of compliance and the city cannot rectify that within the 90-day period.
“There’s also some question as to whether their interpretation of whether something’s substantially compliant versus it being looked at from the court system might be different,” department staffer Small added.
Tanner said that the shortened deadline was “not great for us, the board or community members,” but that it was not the most distressing part of the schedule change. Instead, she said she was “ incensed” and that it was “shocking” that the state chose to relay the information via Twitter “versus any number of other means of communication.”
Commissioner Sue Diamond said that the state’s actions were “outrageous” and that she felt the opportunity for community groups and commissioners to read through and discuss the element was “getting truncated enormously on this massive policy shift.”
But even given the “missed opportunity,” she said the city had to move quickly while communicating to the state “how upsetting it was to get this information at the last moment given what it means to the process and what we have sacrificed.”
“I feel like we have no choice,” she said. “We need to do everything we can to meet the schedule.”
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