Since the beginning of 2023, there has been considerable controversy about whether or not the Housing Elements of various San Francisco Bay Area cities are "substantially compliant" with state housing law. This issue has recently arisen around several development proposals in San Rafael.
The following letter has been sent to that city, to help clarify that issue.
Re: Development Proposals by Dominican Valley LLC for the property at Magnolia Avenue at Deer Park Avenue in San Rafael (APN 015-163-03).
Dear Ms. Giudice,
I’m writing to you as President of Community Venture Partners, Inc. (CVP), a California-based 501(c)(3) community-serving nonprofit organization, and on behalf of local residents, regarding the various residential development proposals submitted by Dominican Valley LLC (the “Applicant”), which are known as Proposals A through E, for the property at Magnolia Avenue at Deer Park Avenue in San Rafael (APN 015-163-03).
On July 28, 2023, your office responded to the five pre-application proposals submitted by the Applicant: Proposal A, submitted June 7, 2023; Proposal B, submitted June 8, 2023; Proposal C, submitted June 12, 2023; Proposal D, submitted June 13, 2023; and Proposal E, submitted June 22, 2023.
In 4 of the 5 proposals (Proposals B, C, D, E), the Applicant proposed to proceed under Government Code section 65589.5(d) et seq., also informally known as the “builder’s remedy.”In the City’s responses to each of those proposals, under “Deficiencies,” it points out why those 4 proposals do not qualify for the builder’s remedy for reasons that generally regard the required percentages of affordable/low-income units provided.
However, the evidence in the record indicates that the City’s response was inadequate and that the City needs to also inform the developer that all of the pre-application proposals fail to qualify for the builder’s remedy because the builder’s remedy only applies if a city/its Housing Element is non-compliant with state housing law at the time of the submission of an applicant’s proposals.
In this instance, at the time the Applicant submitted their proposals (beginning on June 7, 2023), the City of San Rafael was in fact in “substantial compliance” with state housing law.
The chronology of events, below, shows that the City made findings that it was “substantially compliant” with state housing law on May 15, 2023, when it formally adopted its Housing Element.
This is particularly relevant because the City’s final version of the Housing Element was subsequently certified by the Department of Housing and Community Development (HCD), with only minor changes that did not in any way impact the Applicant’s proposals.
Chronology of events that substantiate this is as follows:
May 15, 2023
City “adopts” Housing Element, making its finding that it is “substantially compliant” with state housing law.
May 17, 2023
City “submits” Housing Element to HCD for “certification.”
June 1, 2023
HCD requests minor revisions to the Housing Element, all of which the City accepts and none of which impact the applicant’s subsequent proposals.
June 7, 2023
Final version of Housing Element is “published.”
Developer begins to submit proposals, starting June 7, 8, 12, 13, and 22.
June 21, 2023
HCD acknowledges receipt of the final approved version of the Housing Element (in letter of June 22, 2023)
June 22, 2023
HCD notifies city that it has “certified” the final version of the Housing Element.
Bob Silvestri is a Marin County resident, the Editor of the Marin Post, and the founder and president of Community Venture Partners, a 501(c)(3) nonprofit community organization funded by individuals and nonprofit donors. Please consider DONATING TO THE MARIN POST AND CVP to enable us to continue to work on behalf of all California residents.