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Plan Bay Area

Plan Bay Area Fails to Solve Our Affordable Housing Needs In Marin County

The following analysis of Marin's affordable housing challenges was submitted to the Metropolitan Transportation Commission as a public comment on the Draft Bay Area Plan and its Draft Environmental Impact Report.


INTRODUCTION

Per Senate Bill 375 (“SB375”), a statutory requirement of the Sustainable Communities Strategy (“SCS”) and Plan Bay Area and its Alternatives is to “house the region’s projected growth by income level (very-low, low, moderate, above-moderate) without displacing current low-income residents in addition to providing adequate housing for anticipated regional growth.” The Sustainable Communities Strategy requires all Metropolitan Planning Organizations (MPOs) to create transportation oriented development plans as a means of achieving those goals.

However, a review of the Draft Bay Area Plan and the Plan Alternatives (the “Plan”) and the Draft Environmental Impact Report (the “DEIR”) for the proposed Plan indicates that the Plan fails to adequately establish reasonably proof of its efficacy in encouraging the development of affordable housing, and in particular the types of affordable housing and community development most needed in Marin County and other similar areas in the region covered by the Plan. In fact the Plan's proposals and implementation, as conceived, will work against achieving the goals of SB375.

1 – The Plan Will Not Address Our Actual Affordable Housing Needs in Marin County or Similar Bay Area Cities and Counties.

As written, the Plan will contribute to the continuing loss of existing affordable housing and it will discourage and possibly preclude the types of affordable housing and community development that are actually most needed in Marin County and by most of the Bay Area cities and counties outside of the urban core areas (San Francisco, San Jose, Oakland).

Please note the following comments to support this conclusion:

The Plan essentially promotes only one affordable housing and growth solution: high density, transit oriented, multifamily development. However, the Plan fails to address, consider or even acknowledge other types of housing or our real affordable housing needs in areas like Marin. Because of this, the Plan is likely to have a counterproductive effect on that type of development needed most in most ex-urban, suburban and rural communities covered by the Bay Area Plan.

The analysis that follows will show that rather than simply counting units, as the RHNA does, the Plan needs to analyze and facilitate the types of housing that are actually needed in each prototypical community in order to achieve its goals. For the purposes of this comment “prototypical community” is defined as each different type of community development pattern that is found in the nine county Bay Area, which will be impacted by the Plan.

Definitions used in this analysis:

Marin County Suburban / Rural Example:

Examination of the affordable housing needs of Marin County cities and its unincorporated areas results in a list of housing types that are not recognized or acknowledged by the Plan. Most of the actual affordable housing “opportunity sites” in small Marin communities are found in smaller, infill locations and not in larger land parcels located near our major freeway, Route 101 (the only actual transportation corridor in Marin County). This creates a disconnect between the solutions envisioned by the Plan and the reality that our county and cities have to work with when addressing the Regional Housing Needs Assessment quotas as prescribed in their Housing Elements.

Infill and mixed-use, infill development opportunities will not benefit in any way from the methods or transportation oriented investments prescribed by the Plan.

Furthermore, in most Marin communities, social, economic and demographic trends show that there are significant under-served populations that need different types of affordable housing than the high density, multifamily housing contemplated by the Plan. However, every one of the types of housing described hereunder and the low income residents who need them will not benefit from any types of support, subsidy or investment noted in the Plan.

The types of housing needed in Marin County that are not supported or promoted by the Plan include:

Conclusion:

The Plan, as written, with its single-minded obsession with questionable high density multifamily housing as the only solution to the requirements of SB375 is both short-sighted and detrimental to promoting the types of affordable housing that are in critical need in Marin County and similar suburban and rural communities in the Bay Area. In fact the types of housing needs noted above would also apply to most ex-urban communities as well. The Plan seems to only be suited to urban areas, while ignoring feasibility in other areas impacted. How can the Plan justify its conclusions and proposals in light of the need for the many types of housing and affordable housing that it fails to consider or at all analyze?

2 - The Unintended Consequences of Plan Bay Area

Because the Plan only emphasizes programs and investments that promote high density residential development, more creative mixed use and adaptive reuse, locally based solutions are essentially “crowded out” of the market. With local zoning and planning tools (zoning bonuses, density bonuses, site designation lists, fast track processing, etc.) and the present Low Income Housing Tax Credit allocation system being dramatically skewed to only support over-sized, high density, low income or in-lieu low income schemes in Marin, affordable housing development has become a game where those are the only projects that get considered by local planning departments, whether or not they make financial sense, community sense, common sense or there’s any real market demand for them.

Note that “in lieu” housing projects typically have a mix of 80 percent high end, market rate housing, 10 percent “80 percent median income” housing, and 10 percent low and very low income housing. These are the only types of projects that can be profitable with our high land costs in Marin.

As it is, creative capital investors have little incentive to even try to fill our real housing needs (as listed above) and even if we could get these kinds of projects built, most wouldn’t be counted against our RHNA quota requirements. The Plan only makes all of this worse. The Plan is a disincentive to private investment in affordable housing and other types of needed market rate housing.

The Plan ignores many unintended consequences of its policies and programs. The problem is that the Plan, as written, only promotes one interpretation of SB375 and the Housing Law: the one that most benefits big, nonprofit developer driven, urban development projects which are inappropriate and impossible to build in Marin and other counties and cities like it. Marin has many more opportunities for infill, mixed-use renovation projects with affordable units included than for “high density housing near public transportation.”

Question:

How can the Plan justify its methods and goals in light of the fact presented above? If its charge is to create more affordable housing, how can it fail to acknowledge that its approach essentially excludes success in more than two thirds of the Bay Area impacted by the Plan? How can the Plan claim to have adequately analyzed and considered the actual housing needs and growth opportunities in Marin County or similar Bay Area communities, and arrived at the Plan in its present form?

3 – Citations of SB375 Where the Plan Is Not In Conformance.

The Plan and the Plan Alternatives are not in uniform compliance with the requirements of SB375.

Consider the following:

SB375 Citation: Section 4 (b)(2)(B) of SB375 states:

“Each metropolitan planning organization shall prepare a sustainable communities strategy, subject to the requirements of Part 450 of Title 23 of, and Part 93 of Title 40 of, the Code of Federal Regulations, including the requirement to utilize the most recent planning assumptions considering local general plans and other factors. The sustainable communities strategy shall (i) identify the general location of uses, residential densities, and building intensities within the region;”

Comment: The analysis presented above (item #1) indicates that the Plan has failed to accurately identify the general location of uses, residential densities and building intensities with regard to the actual needs and housing opportunities Marin County and other similar Bay Area locations. Howe can the Plan justify its claim to have adequately identified the general location of uses, residential densities and building intensities within Marin County and arrived at proposals that do not include so many types of housing actually needed in our communities?

SB375 Citation: Section 4(b)(1)(J) of SB375 states:

“Neither a sustainable communities strategy nor an alternative planning strategy regulates the use of land, nor, except as provided by subparagraph (I), shall either one be subject to any state approval; Nothing in a sustainable communities strategy shall be interpreted as superseding the exercise of the land use authority of cities and counties within the region; Nothing in this section shall require a city's or county's land use policies and regulations, including its general plan, to be consistent with the regional transportation plan or an alternative planning strategy.”

Comment: As demonstrated in the analysis presented above (item #1), the Plan’s single-minded adherence to proposing high density, multifamily development forces cities and counties in Marin, for all practical purposes (by way of the Housing Element certification process at HCD), to rezone and adjust their planning to conform with the development of housing types that do not address their actual affordable or market rate housing needs, or reflect the realities of the opportunities available to do so.

SB375 Citation: Section (b)(2)(E)(i) of SB375 states that the MPO shall conduct:

“Outreach efforts to encourage the active participation of a broad range of stakeholder groups in the planning process, consistent with the agency's adopted Federal Public Participation Plan, including, but not limited to, affordable housing advocates, transportation advocates, neighborhood and community groups, environmental advocates, home builder representatives, broad-based business organizations, landowners, commercial property interests, and homeowner associations.”

Comment: Based on the analysis presented above (item #1), it is clear that in arriving at its conclusions the drafters of the Plan either did not adequately research or reach out to local landowners and property owners, smaller commercial property interests (which make up the vast majority of this group in Marin County) or homeowner associations in Marin County cities in developing the Plan, or chose to ignore the needs of these groups in favor of the needs or agendas of other groups such as affordable housing advocates, transportation advocates and development interests, the needs of which the Plan better addresses. However, as demonstrated in Item #1 above, if the needs of all impacted groups had been properly assessed and reflected, the Plan would have to have included all the actual opportunities and housing needs in Marin County, which it fails to do.

Question: In light of the lack of acknowledgment of the needs of all stakeholder groups noted in this comment and analysis, how does the Plan justify its conclusions, proposals and choices of Alternatives and options?

SB375 Citation: Section 5(b)(2) of SB375 defines terms for the regulation and adds definitions to Section 65080.01of the Government Code, such as:

“ (c) "Feasible" means capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, legal, social, and technological factors.”

Comment: Based on the analysis presented above (item #1), it is clear that the Plan failed to adequately assess what kinds of housing solutions are or are not feasible in locations such as Marin County.

Question: How can the Plan justify its conclusions and bias toward transit oriented development based on a reasonable and complete assessment of the actual affordable and market rate housing opportunities and needs in Marin, as noted in Item #1 above?

SB375 Citation: Section 7 amends Section 65583 of the Government Code is amended to read:

“The housing element shall consist of an identification and analysis of existing and projected housing needs and a statement of goals, policies, quantified objectives, financial resources, and scheduled programs for the preservation, improvement, and development of housing. The housing element shall identify adequate sites for housing, including rental housing, factory-built housing, mobile homes, and emergency shelters, and shall make adequate provision for the existing and projected needs of all economic segments of the community. The element shall contain all of the following: (a) An assessment of housing needs and an inventory of resources and constraints relevant to the meeting of these needs.”

Comment: Based on the analysis presented above (item #1), it is clear that the Plan failed to adequately inventory the resources and constraints relevant to meeting the needs for affordable and market rate housing in locations such as Marin County. Further, a reasonable assessment of the opportunities for preservation and improvement of existing housing (public and privately owned), and any reasonable assessment of Marin’s actual housing needs (noted in Item #1 above) and an inventory of its resources and constraints would have produced a greater variety of solutions to Marin’s housing needs than just high density, multifamily, transit oriented development.

Therefore, because the Plan is lacking this required assessment and analysis that is demonstrated in Item #1 of this comment, the Plan fails to be in conformance with either SB375 or the Housing Element law.

SB375 Citation: Section 7 (a)(6) of SB375 requires:

“An analysis of potential and actual nongovernmental constraints upon the maintenance, improvement, or development of housing for all income levels, including the availability of financing, the price of land, and the cost of construction; and (7) An analysis of any special housing needs, such as those of the elderly, persons with disabilities, large families, farmworkers, families with female heads of households, and families and persons in need of emergency shelter.”

Comment: Based on the analysis presented above (item #1), it is clear that the Plan failed to adequately analyze the potential and actual nongovernmental constraints upon the maintenance, improvement, or development of housing to meet the actual needs for affordable and market rate housing in locations such as Marin County, or properly analyze the special housing needs of the groups noted in Section 7(a)(7) above. If it had done so, with its full knowledge of how the RHNA housing quota system “counts” qualifying housing units, it could not have possibly come up with the proposals contained in the Plan that ignore and exclude consideration of so many types of needed affordable housing (e.g. housing for the elderly, persons with disabilities, large families, farmworkers, families with female heads of households, and families and persons in need of emergency shelter).

Further, the land cost and construction costs in Marin are some of the highest in the Bay Area yet they do not appear to have been factored into any reasonable analysis of feasibility, as required by law. Therefore, for the reasons cited here, the Plan is not in conformance with either SB375 or the Housing Element law.

SB375 Citation: Section 7 (a)9)(B) of SB375 reads:

“The analysis shall estimate the total cost of producing new rental housing that is comparable in size and rent levels, to replace the units that could change from low-income use, and an estimated cost of preserving the assisted housing developments.”

In addition Section 7 (4) directs the SCS and Housing Element law to: “Conserve and improve the condition of the existing affordable housing stock, which may include addressing ways to mitigate the loss of dwelling units demolished by public or private action.”

Comment: Based on the analysis and commentary presented above (item #1), it is clear that the Plan fails to adequately analyze or compare the relative costs or opportunities to preserve existing assisted housing developments in locations such as Marin County. If it had, it would have concluded that renovation and rehabilitation of existing affordable housing in Marin is of paramount importance and it financially more economical and socially equitable than building new, high density, multifamily development.

In addition the Plan completely ignores this practical and economical solution and does not in any way address ways to mitigate the loss of dwelling units demolished, or lost from service. Therefore, the Plan is not in conformance with either SB375 or the Housing Element law.

4 – The Plan Fails To Resolves Its “Known Controversies.”

On page ES-11, the Plan acknowledges unresolved controversies, and continuing on page ES-12 it further acknowledges that only some of these are addressed in the Draft Environmental Impact Report (DEIR) for the Plan.

Among those not addressed in the DEIR are:

“(1) Whether the proposed Plan’s assumptions of future land use development patterns are feasible given that MTC and ABAG cannot regulate land uses at a regional or local level. “

Comment: Based on the analysis and commentary presented above, the Plan fails to adequately assess whether or not the Plan’s assumptions of future land use development patterns are feasible in Marin County and other similar locations. If the Plan had considered all factors, it would have to have concluded that it single-minded promotion of high density, multifamily development would not adequately address the actual and critical affordable housing needs in Marin or similar locations, and that the development of large, high density, multifamily housing projects in Marin would be in conflict with many of the existing plans and regulations of Marin’s local jurisdiction with regard to high limits, parking requirements, zoning density regulations and local general plans.

An example of this kind of “conflict” with local regulations would be the proposed Planned Development Area (PDA) in San Rafael at the Civic Center where the Plan’s proposed housing density is greatly in excess of the city’s general plan proposed densities. The city’s general plan calls for a maximum development density of 620 units in that location that are two to three stories in height. MTC, in its grant agreement with the City of San Rafael, requires the recipient to “maximize housing,” which resulted in a study by the city concluding that the general plan maximum could be raised to over 1,100 units in the PDA, despite providing no evidence of how the potential impacts would be mitigated and over the vociferous objections of the majority of residents who commented on the proposal.

All public input suggests that this kind of proposed density is not economically, social or environmentally feasible, sustainable or desirable in Marin, yet there is no evidence of responsiveness to that in the Plan.

“(2) Concerns about whether the degree and scale of growth proposed within existing communities would alter their appearance, quality of life, and affordability, and whether it would conflict with the existing plans and regulations of the local jurisdiction.”

Comment: Based on the analysis and commentary presented above, and the preponderance of public comment on the Plan, locally, it is clear that the Plan fails to adequately assess its assumptions about the impacts of the degree and scale of growth it proposes on existing communities in Marin County and other similar locations. The Plan’s single-minded promotion of large scaled, high density, multifamily development will dramatically alter the appearance, quality of life, and by the Plan’s own admission, the affordability of housing in all Marin communities that are typically one to three story development and generally suburban or rural in nature.

In addition, the scale of development being proposed would be detrimental to the quality of life, contradicting and ignoring the requirements of SB375 to be sensitive to this outcome.

“(3) Concerns that increased concentrations of population in focused areas would overwhelm existing public services and utilities such as parks, police and fire services, water supply, etc.”

Comment: The types of large scaled, high density, multifamily, low income projects that are proposed and analyzed in the Plan are inconsistent with the way sustainable planning and growth can succeed in Marin County, and since low income housing projects do not pay property taxes for vital city services, the Plan places an unsustainable financial burden on Marin’s financially stretched small cities and unincorporated areas. The Plan offers no comment or solutions or financial mechanisms to assist small Marin County cities in dealing with these fiscal challenges and is therefore infeasible, as defined in SB375, and not in compliance with SB375’s requirements for an accurate assessment of these impacts, or the California State Constitution’s ban on unfunded mandates that can unfairly and without adequate compensation, financially burden cities.

For example, as a result of the RHNA quota system and SB375, and as endorsed by the Plan, a proposed PDA development in the Marinwood neighborhood in San Rafael would increase primary school and middle school enrollment by more than 40 percent. This places an impossible financial burden on one community that will ultimately be detrimental to all its residents of all income levels. These types of outcomes are evidence that the Plan fails to adequately resolve or consider development impacts that will overwhelm existing public services and utilities such as parks, police and fire services, water supply, etc., as required by SB375.

CONCLUSIONS:

The Plan and the Plan Alternatives are not in compliance or conformance with many of the requirements of SB375 or the State Housing Element Law. Building more and more housing without commensurate jobs growth first, places and unsustainable financial burden on Marin County cities and unincorporated areas which can lead to potential bankruptcy for small cities (e.g. Vallejo, Modesto and San Bernadino).

The Plan ignores the local land use and social, economic and physical / natural constraints in Marin County and similar locations, as required under SB375. The Plan’s planning approach and skewed incentives toward large scaled TOD will contradict local efforts to promote the development of the types of affordable housing actually needed in Marin County and similar locations. If the goal of our housing laws is to provide adequate affordable housing opportunities for all income groups and particularly for those most in need (as defined in each particular location) then the Plan, as written, fails in every way to achieve that.

Examination of the Bay Area Plan and the DEIR shows that the Plan fails to satisfy the requirements of SB375 because it fails to prove that the Plan or any of the Alternatives will actually achieve the goals of providing a significant amount of housing and affordable housing for future demographic needs. The analysis presented by the Plan is neither feasible nor reasonable to achieve Marin’s future housing needs, and therefore fails to conform to the requirements of SB375 and state Housing Law.

The over-riding question is why have so many mandatory provisions of SB375 and the State Housing Law, and so many considerations for feasibility, local quality of life, land constraints, economic realities and actual housing needs, been summarily ignored in the Plan’s analysis and its proposals? In light of the comments and analysis noted herein, on what basis can the Plan justify its conclusions and proposals?

FINAL COMMENTS:

Although SB375 clearly separates its requirements from mandatory conformance by local governments in creating their general plans and making local land use decisions, there is a stark difference between what is technically required and the reality created by the nexus of Housing Element Law, SB375’s Sustainable Communities Strategy, the Plan, the RHNA quota process and the MTC / OBAG grant and transportation process. The Regional Transportation Plan (RTP) ("Transportation 2035" is the Bay Area's RTP and allocates funding to regional transportation) contains an internal consistency requirement. This consistency requirement impacts cities and counties because the “Metropolitan Planning Organization” (MPO – MTC and ABAG) only award funding to projects that are consistent with the “Sustainable Communities Strategy” (SCS).

Therefore, the incentive for cities to receive funding - or rather the threat of being denied funding - gives local governments a good reason to draft their general plans and zoning ordinances and land use regulations in ways that are consistent with the Plan and the SCS. Combine this with the fact that under the Regional Housing Needs Allocation (RHNA), state law and the process of certification from HCD, a local government is required to amend its Housing Element and rezone its land in order to accommodate the quantity of housing it is assigned under the RHNA. So in effect local government is being required to implement major aspects of the SCS, whether or not they want to or it makes any economic sense or addresses their actual affordable housing needs, and thereby losing local control of their planning and zoning despite the provisions of SB375 that disclaim that responsibility.

With this being the case, the Plan’s strict conformance with all the provisions and requirements of SB375 and state Housing Law, as discussed in this comment, become even more critical.

As indicated in this comment letter, the Plan fails to conform to the requirements of SB375 in numerous areas, making its proposals and programs unsuitable for achieving the goals of that legislation for most ex-urban, suburban and rural communities impacted by the Plan in the Bay Area.