Most Bay Area cities and counties blow housing element deadline

Most Bay Area cities blew their state housing plan deadlines, opening themselves up to fines, funding losses and unwanted “builder’s remedy” housing project approvals.

Only 11 cities across the region have turned in adopted “housing element” plans to the state Department of Housing and Community Development by the Jan. 31 deadline, the San Francisco Chronicle reported.

On Wednesday, every jurisdiction across the nine-county Bay Area was required to be “in substantial compliance” with a state mandate to do its share to add 441,000 new houses, apartments and condominiums to the region by 2030.

Non-compliance means that developers can build larger projects than what cities may now allow, providing they provide specified amounts of below-market housing.

But the murkiness of the new playing field also makes it likely that questions of what it means to be compliant will be argued in court.

“There’s a whole set of hyper-technical details in each hypothetical scenario,” Daniel Saver, assistant director for housing and local planning with the Association of Bay Area Governments, told the Chronicle. “It’s a legal question that’s probably going to be litigated.”

State demands are much more strenuous than in the past, the result of efforts in Sacramento to make it easier to build housing at a more rapid pace.

By Feb. 1, Bay Area cities and counties were to have adopted new housing elements that are “in substantial compliance” with state expectations.

If they didn’t, then developers are allowed to build housing that fits state standards even if it is larger or denser than what local zoning allows — an option called the “builder’s remedy.”

Only 11 Bay Area cities have filed adopted drafts with the state, according to the Department of Housing and Community Development.

Those from Los Altos and San Mateo arrived on Monday. San Francisco and Oakland adopted their drafts on Tuesday. Another 13 have filed two versions of their proposed housing elements, while 71 jurisdictions have made single filings — one, San Anselmo’s, arriving at the state just last week.

Since the state has 90 days to comment on an initial draft, and 60 days to comment on a revised version, this means that a single city has completed all its paperwork and been certified: the island community of Alameda.

The revised element for Redwood City is also in compliance, according to the department.

But being in compliance is not necessarily the same as being certified.

San Francisco was slated to have its plan fully adopted by the Board of Supervisors Tuesday evening, after which Mayor London Breed could sign off and send it to Sacramento.

But state officials already have indicated the draft will pass muster, so it’s unlikely that a developer would try to push forward on a technicality.

The housing allocations were determined by the state in June 2020. Many cities and counties, however, have cut things so close that around 65 have left themselves vulnerable to the “builder’s remedy,” according to the Bay Area Council, a regional business advocacy group.

“A lot of local governments put off serious work until about 15 months ago,” said Louis Mirante, the council’s vice president of public policy and housing. “They’re like the slacker who shows up late to class and finds out there’s a test scheduled.”

While the state’s housing agency reviews the flood of plans headed its way, Mirante expects to see some frustrated developers push for quick project approvals before the state determines whether local plans are in compliance.

Affordable-housing developers might hold back, since local government support often is required to line up the funding necessary for a project to move forward. As for the for-profit builders, winning one battle might cost them in the long run.

“Developers rely on political goodwill” over time, Saver said. “Dropping a builder’s remedy on a jurisdiction is not a way to build goodwill.”

— Dana Bartholomew