A local housing activist just called San Francisco out on a rather alarming error — city officials and planners thought they had until May 31 to get the all-important revision to the general plan's Housing Element approved by the state, but the deadline is actually January 31.
There's no time in recent memory that the bureaucratic, backroom planning business of San Francisco's Housing Element has been front-page news, let alone making the news at all. But given the state's ongoing housing crisis, a looming deadline for cities to submit their latest revisions to their plans for building housing is being used as a bit of a cudgel by the governor's office to force the hands of city governments that have been historically reluctant to build at an adequate pace.
San Francisco is one of those cities, and it's one that has garnered special negative attention from Sacramento. In early August, we learned that the California Department of Housing and Community Development (HCD) was launching an unprecedented audit of SF's housing approvals process and its pipeline of projects, saying the city has "the longest timelines in the state for advancing housing projects to construction, among the highest housing and construction costs," and the department had received the most complaints about SF compared to any other jurisdiction statewide.
The city is on the hook not only for showing it has at least 82,000 housing units in its pipeline to be constructed by 2031 — i.e. in about eight years — but also for showing that it has alternative plans worked out if some of those projects don't get built. As the Chronicle reported in August, housing and YIMBY activists have been sounding alarm bells about the city's over-optimistic pipeline, and suggesting that planners were doing all they could to avoid unpopular rezonings that would densify some of the city's least dense neighborhoods, i.e. much of the western half of the city.
There's been some movement on that, with Planning unveiling a new draft Housing Element last week that would add about 34,000 units, largely through up-zoning on main corridors in the Outer Sunset and Outer Richmond. The public comment period on that is pretty brief, and ends tomorrow.
But this week we learn that, in this comedy of errors, another potentially fatal error was about to occur. 34-year-old software engineer and housing activist Kevin Burke had been listening to the Planning Commission’s Sept. 29 hearing online when he heard a staffer quoting May 31 as the deadline for the Housing Element to be adopted. This was, under the advice of the city attorney and perhaps based on some previous deadlines, being interpreted as the hard deadline following a 120-day grace period from the January 31 deadline.
As the SF Business Times reports, under the letter of the law, a "builder's remedy" take effect as soon as the city is out of compliance with the state — i.e. developers get to ram through whatever projects they please, legally, until compliance is achieved. That would mean a total free-for-all for developers between February and June, assuming the city stuck to its current timeline for adopting the Housing Element by May 31.
Burke wrote to HCD to clarify, and they responded, confirming that the "builder's remedy" and possible withholding of state funds would take effect during the period of non-compliance.
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
This may all just be a technical glitch, and exceptions might be made — as the Examiner reports, discussions are ongoing about how the grace period applies. And the city says that the state has long known it was aiming for a May 31 deadline, and never said anything.
"We’re working with HCD and the City Attorney’s Office to clarify HCD’s recent interpretation of the 120-day grace period,” Planning Department chief of staff Dan Sider said in a statement.
SF Planning's website still shows a timeline that extends through early April, for the approval and adoption of the final Housing Element. But now it's not clear if planners and other officials will have to greatly speed things up and put in some extra work over the holiday season to get this wrapped up by January 31.
YIMBY activists contend that San Francisco needs to be more aggressive with rezoning, and more pragmatic about mega-projects like the decade-stalled ParkMerced development, which remains a significant piece of the pipeline.
Meanwhile some progressives argue that the state is simply being unfair, and that as an urban center of the Bay Area, San Francisco is being asked to shoulder too much of the housing burden that's being created by job growth in other municipalities around the Bay that are far less dense.
"[State officials] would be better off directing that energy to cities like Milpitas and Cupertino that are way less dense and adding thousands of jobs while failing to build the housing to house those workers," said Lee Hepner, an attorney for the American Economic Liberties Project and former aide to Supervisor Aaron Peskin, speaking to the Chronicle in August.
Hepner said of San Francisco, "We are exceeding our market rate housing goals by a long shot, but that doesn’t seem to be enough for the state. It’s frustrating."
Calling the state's approach "neo-liberalism at its worst," Supervisor Dean Preston wrote to HCD over the summer saying, in part, "There is certainly a discussion to be had about luxury housing development in an expensive city like San Francisco, but it would seem strange if that were your priority at a time when most of the working class cannot afford a roof over their heads."
In any event, the state holds the purse strings for potentially tens of millions of dollars in funding for many things that could be jeopardized if the city fucks up this Housing Element adoption. And you can bet that some opportunistic developers may try to finagle some quick deals if they end up in a legal gray zone with that "builder's remedy" by February. Stay tuned.
Photo: Josh Hild