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If the Town does not comply with State law, the Town can be sued and remains open to builder's remedy applications that do not have to comply with local zoning and land use laws. In addition, the Town could face significant fines from the State and a court could limit the Town's local land use decision-making authority until we adopt a compliant Housing Element. There are these and other consequences built into State law. The Town's Housing Element is subject to regulatory oversight by the California Department of Housing and Community Development. The Town must report compliance annually.
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Every jurisdiction has a General Plan that serves as the local government's "blueprint" for the future, prescribing policy goals and objectives to shape and guide the physical development of the local jurisdiction. A Housing Element is one of seven required elements of the Town's General Plan. Due to the critical nature of limited housing and housing affordability with statewide implications, State law requires Housing Elements to be updated on a regular basis. The Town of Atherton is currently part of an 8-year update cycle (2023-2031) and is working to update the Housing Element.
The Town is not required to build housing itself; rather, the Town is required to create laws and policies that affect where housing can be built, what types of housing can be built, how much housing can be built, and the process by which it is reviewed and approved. Every jurisdiction's housing plan is required to meet the mandates of the State to address housing needs over specific periods of time.
Housing Elements are a guide to all of the ways that a jurisdiction plans to meet the State mandate for affordable housing. The Housing Element will identify opportunity sites for different types of housing development and policies to guide that development. Those policies and development opportunities are translated into law via land use ordinances and zoning law.
The Town is presently predominately zoned single-family; but, with the adoption of the 6th Cycle Housing Element, the Town must identify and rezone property for multi-family development. Such multi-family development can occur at various levels of density (usually defined as how many housing units per acre). The Town is conducting an environmental review to determine the impacts of development at specific density levels in order to determine an appropriate level of density for particular properties.
Currently, the Town is looking at increased density at the following properties: (written as of 10/24/23):
999 Ringwood, 352, 318, and 296 Bay Road
175, 185, and 197 Ravenswood
properties in the Park and Open Space Zone
Private School sites
In San Mateo County, the income thresholds for affordable housing are determined by the Area Median Income (AMI) and household size. San Mateo County’s AMI for a household of four is $175,000 per year. The Town is currently considering affordable housing requirements for new multifamily developments inat the moderate, low and very low- income categories.
Area Median Income (AMI) Table for San Mateo County
HCD has not yet approved the Town's proposed Housing Element due to their conclusion that housing on private school properties did not provide housing opportunities for the general public and therefore applied discrimination in accordance with the objective of Affirmatively Furthering Fair Housing (AFFH).
To find out more about how HCD assists in the assessment of fair housing, HCD released an interactive statewide AFFH Data Viewer 2.0. This viewer provides access to the most recent fair housing data, including population demographics, concentrated areas of poverty and percentages of structures that show any disparity related to AFHH.
Affirmatively Furthering Fair Housing (AFFH). AFFH is an initiative put into place by HCD to combat housing discrimination, eliminate racial bias, undo historic patterns of segregation, and lift barriers that restrict access to housing. AFFH is in place in order to foster inclusive communities and achieve racial equity, fair housing choice, and opportunity for all Californians.
AFFH requires local governments to take meaningful actions that overcome patterns of segregation and foster inclusive communities, free from barriers that restrict access to opportunity based on protected characteristics. While federal mandates prohibited overt forms of housing discrimination, residential segregation has remained through the use of discriminatory methods that reinforce patterns of segregation that persist in California today.
In 2018, the California State Legislature passed AB 686, which was passed by the California State Legislature to expand upon the fair housing requirements and protections.
In a nutshell, AB 686 applies the obligation for:
The Housing Element typically includes:
1. Housing Needs Assessment: Examine demographic, employment, and housing trends and conditions that affect the community's housing needs.
2. Evaluation of Past Performance: Review the prior Housing Element to measure progress in implementing policies and programs.
3. Housing Sites Inventory: Identify locations of available sites for housing development or redevelopment to ensure that there is adequate capacity to address the Regional Housing Needs Allocation (RHNA).
4. Community Outreach and Engagement: Implement a robust community outreach and engagement program, with a particular focus on outreach to traditionally underrepresented groups.
5. Constraints Analysis: Analyze and recommend remedies for existing and potential governmental and nongovernmental barriers to housing development.
6. Policies and Programs: Establish policies and programs to fulfill the identified housing needs
The State of California determines the number of homes that are needed for the Bay Area, consistent with state law. The Association of Bay Area Governments (ABAG) then distributes a share to each local government in the nine (9) Bay Areas counties. Each jurisdiction is assigned a portion of the regional need at various income levels based on factors such as future population, access to jobs, and other factors. This assignment is known as the Regional Housing Need Allocation (RHNA) and is intended to promote the following objectives:
Increase the housing supply and the mix of housing types in an equitable manner
Promote infill development that encourages alternatives to solo driving and reduces greenhouse gas emissions
Balance jobs and housing
Discourage housing development patterns that segment communities
Affirmatively further fair housing
Each jurisdiction must ensure there is enough land with appropriate zoning to accommodate its RHNA allocation in its Housing Element.
The Town of Atherton has been assigned the allocations by income category, listed below for this cycle:
[Table: Town of Atherton 2023-31 RHNA Allocation]
Very Low & Low
Total New Housing Units
Projected Dwelling Units
Lot Splits (SB 9)
RM 10 (23 Oakwood)
PFS (Private Schools)
Multi-Family Residential Opportunity Sites
Dwelling Unit Total
Total Net New Units Above or below RHNA
To figure out how many units a jurisdiction must meet, the State looks at several factors - existing jobs, population growth, socio-economic population data, commute, new jobs, existing housing, housing needs, etc.
After evaluating this data, the State assigns the region (the Bay Area), a number called the Regional Housing Needs Allocation or RHNA (pronounced 'ree-nah'). It is then up to the region, in the Town's case - the Association of Bay Area Governments (ABAG) to decide how much each jurisdiction is responsible for based on their size and projections for growth (Plan Bay Area). This cycle, all jurisdictions have a higher target than in the past. More details about RHNA are available here. All jurisdictions must adopt a plan that meets or exceeds the allocation.
State law via the Housing Accountability Act (HAA) has a provision informally known as the 'builder's remedy' that provides that a local agency shall not disapprove a housing development project as defined within the Act, or condition it in a manner that renders it infeasible. The option for 'builder's remedy' only exists while the jurisdiction is not in compliance with State law (i.e. a housing element that is not certified by the State). The project proposed as the builder's remedy must meet certain criteria - such as the provision of housing for very-low, low-, or moderate-income households, or an emergency shelter. Such projects are subject to the California Environmental Quality Act (CEQA).
In order for a project to qualify for the builder's remedy, the development must be either 20% affordable to low-income categories, or 100-percent affordable to moderate income categories. Such projects are defined as residential units only; or mixed use developments with at least 2/3rds designed for residential use; or transitional or supportive housing.
The Town of Atherton has not yet received any builder’s remedy project proposals, but our neighbors in Menlo Park and Los Altos Hills have.