San Rafael officials air vexation over housing laws

San Rafael city staff are seeking guidance from the City Council as the state transforms how residential projects are reviewed and approved by cities, choking local authority.

Recent laws have opened the floodgates to applications for housing at heights and scales never seen in the city.

The shift and the speed with which projects are now mandated for approval has overwhelmed the public and left staff unsure on how to move forward, Margaret Kavanaugh-Lynch, the city’s planning manager, said during a study session last week.

“Staff has seen over the last few years that there’s some frustration on behalf of both the public and the planning commissioners when housing projects are being discussed,” Kavanaugh-Lynch said.

“The level of discretion has been greatly diminished,” she said. “Some commissioners have noted that they feel it is their role to hold the space for the discussions to take place in a public setting, while others have shared frustration with a limited role and the ability to make meaningful impact on the design of buildings.”

San Rafael officials saw the writing on the wall when the state mandated that it facilitate the creation of 3,220 new residences as part of the 10-year housing cycle ending in 2031.

After years of community outreach and more than $2 million spent, the city put together and adopted a general plan, a downtown precise plan and a housing element. All are documents that in some way aim to address the housing crisis by encouraging new development, specifically affordable dwellings for low-income residents.

One flaw that has emerged is that the downtown precise plan uses a form-based code, so there is no cap on the number of dwellings that could be proposed per acre, like in other parts of the city.

Instead, developers have to show city planners that their proposal complies with the city’s requirements and objective design standards.

In many cases, objective standards — such as height, setbacks, lot coverage, open space ratios and parking requirements — are the only discretion left to local governments when reviewing a development application.

The problem arises when a developer applies the state density bonus law.

Over the past five years, San Rafael has received 18 applications for major residential complexes. Of those, 17 applicants used the state density bonus law, which enables developers who meet a set of criteria to build bigger, taller complexes.

“It also allows for development teams to put aside the objective design standards through the use of concessions and waivers if they believe those standards would physically preclude the construction of a full project,” Kavanaugh-Lynch said. “What has become clear is there is very little discretion for cities in state density bonus law housing projects, and there is no discretion at all in ministerial housing projects such as SB 35.”

Senate Bill 35 allows qualified multifamily infill projects to go through a simplified and expedited housing approval process in jurisdictions that are not on track to meet their housing production goals.

In the past five years, 192 new residences have been built and 368 are in construction. Counting all entitled projects and projects under review, 2,710 dwellings are in the pipeline.

The study session on Feb. 2 was intended to ask the council whether staff should explore ways to revisit density downtown; look into how the Planning Commission should review housing; and consider creating a new ministerial process to encourage development that matches the council’s priorities.

Members of the council said they are interested in a new ministerial review process. Council members said agreeing to a set criteria for ministerial review could encourage developers to propose projects that are more favorable, because meeting those criteria would mean no public hearings and an expedited staff review.

Council members agreed that the Planning Commission plays an important role in the public process, and that the panel should continue reviewing housing projects, no matter the constraints.

All members said they are pro-housing, but they differ on how they feel about state mandates that constrict local authority over certain aspects of project approvals.

“My answer to that is no, if the objective is a search for limitations,” Councilmember Maribeth Bushey said in response to reviewing density downtown. “That approach, that strategy led us to where we are today. It was Sacramento overruling all of our perspectives on how we did that and brought us to a world where we don’t have enough housing.”

“We really need to revitalize downtown and improve our economic position,” Vice Mayor Rachel Kertz said. “And I think housing brings people, which then brings in more revenue.”

Mayor Kate Colin had a different view, saying that the city developed a general plan and downtown precise plan that took years and millions of dollars to put together with a community vision in mind.

“I want to defend the work that this community has done,” Colin said. “So, my answer to that would be yes, to shore up the work that is in our general plan.”

“I think some of these state laws are not very realistic for the type of city that we have, considering we are here, not in New York or in San Francisco,” Councilmember Maika Llorens Gulati said.

Councilmember Eli Hill said he is interested in talking with the Assembly and Senate about cleaning up some of the housing laws “with a more balanced approach.”

“I would say that our general plan, as it is written, is in good faith, but the state law has changed around it and it can now be used in different ways,” Hill said.

The session is the first of two. The second session is set for April. Staff expect to return with responses to the council’s comments and questions, as well as a discussion about affordable housing requirements.