A Win for Housing in Clayton

We are happy to announce that, last week, Yimby Law’s latest effort has resulted in the approval of 81 units of senior housing in Clayton. The project was denied by the Clayton Planning Commission in early 2020 but was successful on appeal with the Clayton City Council voting 3-2 in favor of granting the project permits. This new housing will be an important addition for a city that has struggled to add new housing supply as its population ages.

Clayton is a small city of 11,076 people that sits in the shadow of Mount Diablo, just Southeast of Concord. Even compared to other cities in the far east bay Clayton has a relatively old population. Clayton is, however, very similar to other cities in the region in that it is composed of primarily single-family home neighborhoods with a small downtown core. For these reasons, a senior specific housing development right next to the downtown commercial area makes a ton of sense in Clayton. Not only does it provide new, high quality accessible units it also locates residents closer to the city center and reduces the need for car trips.

Unsurprisingly, many of the project’s neighbors in Clayton were not particularly enthused by the proposed development. They felt that the project was too large and inappropriate for the area. The project is taking advantage of the State Density Bonus law to add more units and so some neighbors asserted that the city should not honor state law and restrict the number of units that could be built on the site.

In the initial planning commission meeting for the final version of the project commissioners expressed concerns about the quantity and type of parking that the project committed to provide. Commissioners felt that the project should be required to provide additional parking and fewer compact-car spaces. The reasoning for this was that neither the city, the developer, or the independent third party contracted to study the project could have possibly adequately assessed the amount of parking and car-use the project would require. This is ridiculous on its face. Commissioners also felt that the city had improperly implemented the State Density Bonus Law by calculating the density bonus for the whole project rather than on a building by building basis. Both these concerns were dismissed by city staff as uninformed and improper grounds for denial.

Despite this, at the next Planning Commission meeting on the project the Commission adopted findings of denial, citing safety concerns relating to traffic to justify denying the general plan and zoning compliant project. By this point we had already submitted several letters notifying the Commissioners of their responsibilities under the Housing Accountability Act. They were aware enough of requirements to attempt to couch their denial in safety concerns but not enough to think through the potential strength of those arguments in a lawsuit. Were this case to progress to a lawsuit we are very confident we would prevail due to the lack of objective findings in the finding for denial approved by the Planning Commission.

Thankfully, the City Council saw through the neighbors’ opposition and were very cognizant of the legal liability the city could face if they denied this project. Several of the City Councilmembers were very well-informed on the legal issues facing the city and were able to clearly enumerate them to their colleagues and the public. Ultimately, though two of the City Councilmembers were opposed to the project three of them voted for it, thereby ensuring the Planning Commission’s denial was overruled and the project was approved.

This is a fantastic victory for us. We were prepared to file suit in the event that the project was ultimately denied and we successfully conveyed that to the city. They took our threat seriously and understood the consequences well enough that they were willing to approve the project despite significant opposition from neighbors. This is exactly how our model is supposed to work and we look forward to many future successes along these same lines.

Chico vs. SB 330

Chico vs. SB 330

SB 330, which passed the legislature this session and was signed by the governor, creates a new set of restrictions on how cities are allowed to downzone or decrease the intensity of residential uses. Cities are now disallowed from decreasing density or height below whatever the permitted use and intensity was on January 1st, 2018. Unfortunately, the law does not take effect until January 1st, 2020. This gives cities until the end of the year to try to downzone, with no repercussions.

Chico is attempting to rapidly pass a reduction in density and height for one of their high density zoning overlays. The proposed changes will lower the permitted density and height throughout the Corridor Opportunity Sites Overlay from 65 feet and 70 units per acre to 45 feet and 30 units per acre. This is a significant change that would drastically limit the density of housing that could be built on sites within this zone. 

The City claims that this will have little to no impact on housing production because applicants will be allowed to apply for increased density and height in return for additional restrictions, including limits on unit types and a range of subjective design standards relating to aesthetics, view preservation, and neighborhood compatibility. 

This system is clearly designed to circumvent the Housing Accountability Act and insert subjective decision making in the process of approving zoning and general plan compliant projects. Under this permitting regime, the city could arbitrarily deny increased height and density based on subjective and poorly defined standards. As we have been enforcing the Housing Accountability Act, cities have gotten more creative with their permitting processes to try to preserve subjective standards in their code. This is a particularly blatant example but the strategy is not uncommon.  

Our response to this proposed zoning and general plan amendment is made up of two parts. First, we have asserted that the HAA protects any ongoing projects from being subjected to the new zoning rules, should they pass. This is important as we have heard that the planning department is in the midst of attempting to negotiate down existing projects to lower densities and heights.

Second, we believe that the changes to the COS Zoning Overlay necessitate a new EIR or an amendment to the existing EIR for the city’s general plan. Existing case law supports the assertion that a reduction in density requires a new environmental study and has necessarily different impacts from increasing density. In People for Proper Planning v. City of Palm Springs et al., a Court of Appeals Judge ruled that Palm Springs was required to generate a new EIR for an ordinance proposing to remove density minimums.

You can read our letter to the Chico Planning Commission here and the planning staff’s response to our letter here.

On October 18th the proposed ordinance came before the Chico Planning Commission where it was passed and forwarded on to the City Council. The intention on the part of planning staff is to fast track the ordinance through the legislative process to get it passed before January 1st. We will continue to monitor this ordinance and take steps to ensure that the city prepares an EIR before ratifying this ordinance.