STATE OF CALIFORNIA - BUSINESS, CONSUMER SERVICES AND HOUSING AGENCY GAVIN NEWSOM, Governor
DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT
DIVISION OF HOUSING POLICY DEVELOPMENT
2020 W. El Camino Avenue, Suite 500
Sacramento, CA 95833
(916) 263-2911 / FAX (916) 263-7453
www.hcd.ca.gov
June 2, 2023
Timothy Rood, Director
Community Development Department
City of Hercules
111 Civic Drive
Hercules, CA 94547
Dear Timothy Rood,
RE: City of Hercules’ 6
th Cycle (2023-2031) Revised Draft Housing Element
Thank you for submitting the City of Hercules’ (City) revised draft housing element update that was received for review on April 3, 2023. Pursuant to Government Code section 65585, subdivision (b), the California Department of Housing and Community Development (HCD) is reporting the results of its review. In addition, HCD considered comments from YIMBY Law and Greenbelt Alliance, pursuant to Government Code section 65585, subdivision (c).
The revised draft element addresses many statutory requirements describe in HCD’s March 6, 2023 review; however, revisions will be necessary to substantially comply with State Housing Element Law (Gov. Code, § 65580 et seq.). The enclosed Appendix describes the revisions needed to comply with State Housing Element Law.
As a reminder, the City’s 6th cycle housing element was due January 31, 2023. As of today, the City has not completed the housing element process for the 6th cycle. The City’s 5th cycle housing element no longer satisfies statutory requirements. HCD encourages the City to revise the element as described above, adopt, and submit to HCD to regain housing element compliance.
Public participation in the development, adoption and implementation of the housing element is essential to effective housing planning. Throughout the housing element process, the City should continue to engage the community, including organizations that represent lower-income and special needs households, by making information regularly available and considering and incorporating comments where appropriate. Please be aware, any revisions to the element must be posted on the local government’s website and to email a link to all individuals and organizations that have previously requested notices relating to the local government’s housing element at least seven days before submitting to HCD.
Timothy Rood, Director
Several federal, state, and regional funding programs consider housing element compliance as an eligibility or ranking criteria. For example, the CalTrans Senate Bill (SB) 1 Sustainable Communities grant; the Strategic Growth Council and HCD’s Affordable Housing and Sustainable Communities programs; and HCD’s Permanent Local Housing Allocation consider housing element compliance and/or annual reporting requirements pursuant to Government Code section 65400. With a compliant housing element, the City will meet housing element requirements for these and other funding sources.
For your information, some general plan element updates are triggered by housing element adoption. HCD reminds the City to consider timing provisions and welcomes the opportunity to provide assistance. For information, please see the Technical Advisories issued by the Governor’s Office of Planning and Research at:
https://www.opr.ca.gov/planning/general-plan/guidelines.html.
HCD is committed to assisting the City in addressing all statutory requirements of State Housing Element Law. If you have any questions or need additional technical assistance, please contact Connor Finney, of our staff, at [email protected].
Sincerely,
Paul McDougall
Senior Program Manager
Enclosure
City of Hercules 6th Cycle (2023-2031) Revised Draft Housing Element Page 1 June 2, 2023
APPENDIX
CITY OF HERCULES
The following changes are necessary to bring the City’s housing element into compliance with Article 10.6 of the Government Code. Accompanying each recommended change, we cite the supporting section of the Government Code.
Housing element technical assistance information is available on HCD’s website at https://www.hcd.ca.gov/planning-and-community-development/hcd-memos. Among other resources, the housing element section contains HCD’s latest technical assistance tool, Building Blocks for Effective Housing Elements (Building Blocks), available at https://www.hcd.ca.gov/planning-and-community-development/housing-elements/building- blocks and includes the Government Code addressing State Housing Element Law and other resources.
A. Housing Needs Resources and Constraints
1. Affirmatively further[ing] fair housing in accordance with Chapter 15 (commencing with Section 8899.50) of Division 1 of Title 2…shall include an assessment of fair housing in the jurisdiction. (Gov. Code, § 65583, subd. (c)(10)(A).)
Fair Housing Enforcement and Capacity: While the element briefly mentions sites were identified in compliance with Government Code section 8899.50 and 65008, identifying sites does not address the extent of these laws. For example, Government Code section 65008 declares any land use action null and void if it has a discriminatory effect.
The element could discuss who the City incorporates these provisions in its land use decision making process. Further, the element should discuss how the City complies with other fair housing related laws. Examples include Government Code sections 11135, 65915 (State Density Bonus Law) and 65589.50 (Housing Accountability Act).
Please see HCD’s affirmatively furthering fair housing (AFFH) (p. 29) at https://www.hcd.ca.gov/planning-and-community-development/affirmatively-furthering- fair-housing.
Identified Sites and AFFH: As noted in prior reviews, the AFFH and sites analysis should address all the income categories of identified sites with respect to location, the number of units by all income groups and how that affects the existing patterns for all components of the assessment of fair housing. If concentration of the Regional Housing Needs Allocation (RHNA) by income group exacerbates existing patterns of segregation, the element must include off-setting programs to promote inclusion and equitable quality of life throughout the community.
Contributing Factors to Fair Housing Issues: The element was not revised to address this finding. Please see HCD's prior review for additional information.
2. An inventory of land suitable and available for residential development, including vacant sites and sites having realistic and demonstrated potential for redevelopment during the
City of Hercules 6th Cycle (2023-2031) Revised Draft Housing Element Page 2 June 2, 2023
planning period to meet the locality’s housing need for a designated income level, and an analysis of the relationship of zoning and public facilities and services to these sites. (Gov. Code, § 65583, subd. (a)(3).)
Approved/Pending Projects: The housing element establishes the affordability and availability for most pending projects; however, the Hill Town development is listed as including 30 units affordable to moderate income households but still must demonstrate affordability based on actual or anticipated rents, sales prices or other mechanisms ensuring affordability (e.g., deed-restrictions). In addition, the element should also discuss any known barriers to development of the Hill Town development in the planning period such as phasing requirements or build out horizons that go beyond the eight-year planning period.
Suitability of Nonvacant Sites: While the element included additional information on the site selection process, it must still evaluate the extent existing uses impede additional development and demonstrate the potential for redevelopment on nonvacant sites.
Please see HCD’s prior review for additional information and HCD will send sample analyses under separate cover.
Electronic Sites Inventory: As a reminder, pursuant to Government Code section 65583.3, the City must submit an electronic sites inventory with its adopted housing element. The City must utilize standards, forms, and definitions adopted by HCD.
Please see HCD’s housing element webpage at https://www.hcd.ca.gov/planning-and- community-development/housing-elements for a copy of the form and instructions. The City can reach out to HCD at [email protected] for technical assistance.
Zoning for a Variety of Housing Types:
• Emergency Shelters: While the element revised Program H3-4 to only require sufficient parking to accommodate staff working in the shelter, it appears emergency shelters are allowed only with an administrative use permit– while administrative, apparently it is still a discretionary process. The element must demonstrate emergency shelters are permitted without a conditional use permit or other discretionary action and with sufficient capacity to accommodate the identified need for shelters or include a program to amend the zoning ordinance to meet the statutory requirements. Please note, HCD will not be able to find the housing element in compliance until it is demonstrated that a zone is available to permit emergency shelters without discretionary action.
For your information, Chapter 654, Statutes of 2022 (AB 2339), adds specificity on how cities and counties plan for emergency shelters and ensure sufficient and suitable capacity. Future submittals of the housing element may need to address these statutory requirements. For additional information and timing requirements, please see HCD’s memo at https://www.hcd.ca.gov/sites/default/files/docs/planning- and-community/ab2339-notice.pdf.
City of Hercules 6th Cycle (2023-2031) Revised Draft Housing Element Page 3 June 2, 2023
• Multifamily Housing: The element was not revised to address this finding. Please see HCD's prior review for additional information.
• Accessory Dwelling Units (ADUs): While Program H2-4 commits to update the City’s ordinance to comply with state law, it includes a timeline for amendment by 2027. Program H2-4 should be revised to commit to a timeline earlier in the planning period (e.g., by 2025).
Electronic Sites Inventory: Pursuant to Government Code section 65583.3, subdivision (b), upon adoption of the housing element, the City must submit an electronic version of the sites inventory with its adopted housing element to [email protected].
Please note, the City must utilize standards, forms, and definitions adopted by HCD when preparing the sites inventory. Please see HCD’s housing element webpage at https://www.hcd.ca.gov/community-development/housing-element/index.shtml#element for a copy of the form and instructions. The City can reach out to HCD at [email protected] for technical assistance.
3. An analysis of potential and actual governmental constraints upon the maintenance, improvement, or development of housing for all income levels, including the types of housing identified in paragraph (1) of subdivision (c), and for persons with disabilities as identified in the analysis pursuant to paragraph (7), including… …fees and other exactions required of developers, and local processing and permit procedures... (Gov.
Code, § 65583, subd. (a)(5).).
Processing and Permit Procedures: While the element shows compliance with AB 101, it still does not address the findings required for approval regarding “the area surrounding the project site can be planned and zoned in coordination and substantial compatibility with the proposed development.” As noted on previous reviews, this requirement should be analyzed as a potential constraint on approval certainty and should include a program(s) to address or remove identified constraints.
Housing for Persons with Disabilities: The element was not revised to address this finding. Please see HCD’s prior review for additional information.
4. An analysis of potential and actual nongovernmental constraints upon the maintenance, improvement, or development of housing for all income levels, including… …requests to develop housing at densities below those anticipated in the analysis required by subdivision (c) of Government Code section 65583.2, and the length of time between receiving approval for a housing development and submittal of an application for building permits for that housing development that hinder the construction of a locality’s share of the regional housing need in accordance with Government Code section 65584... (Gov. Code, § 65583, subd. (a)(6).)
Approval Time and Requests for Lesser Densities: The element was not revised to address this requirement. Please see HCD’s prior review for additional information.
City of Hercules 6th Cycle (2023-2031) Revised Draft Housing Element Page 4 June 2, 2023
B. Housing Programs
1. Identify actions that will be taken to make sites available during the planning period with appropriate zoning and development standards and with services and facilities to accommodate that portion of the city’s or county’s share of the regional housing need for each income level that could not be accommodated on sites identified in the inventory completed pursuant to paragraph (3) of subdivision (a) without rezoning, and to comply with the requirements of Government Code section 65584.09. Sites shall be identified as needed to facilitate and encourage the development of a variety of types of housing for all income levels, including multifamily rental housing, factory-built housing, mobilehomes, housing for agricultural employees, supportive housing, single-room occupancy units, emergency shelters, and transitional housing. (Gov. Code, § 65583, subd. (c)(1).)
As noted in Finding A2, the element does not include a complete site analysis; therefore, the adequacy of sites and zoning were not established. Based on the results of a complete sites inventory and analysis, the City may need to add or revise programs to address a shortfall of sites or zoning available to encourage a variety of housing types.
In addition, Program H2-8 (Development on Nonvacant Sites) should go beyond targeting development once in the planning period and should identify and pursue opportunities at least annually.
2. The Housing Element shall contain programs which assist in the development of adequate housing to meet the needs of extremely low-, very low-, low- and moderate- income households. (Gov. Code, § 65583, subd. (c)(2).)
Assist in Development Programs: As noted in the previous review, the element must include a program(s) with specific actions and timelines to assist in the development of housing for extremely low-, very low-, low-, and moderate-income households, including specific actions to assist housing for persons with special needs (e.g., farmworkers, elderly, homeless and persons disabilities, including developmental). Please see HCD’s prior review for additional information.
3. Address and, where appropriate and legally possible, remove governmental and nongovernmental constraints to the maintenance, improvement, and development of housing, including housing for all income levels and housing for persons with disabilities. The program shall remove constraints to, and provide reasonable accommodations for housing designed for, intended for occupancy by, or with supportive services for, persons with disabilities. (Gov. Code, § 65583, subd. (c)(3).)
As noted in Findings A3 and A4, the element requires a complete analysis of potential governmental and nongovernmental constraints. Depending upon the results of that analysis, the City may need to revise or add programs and address and remove or mitigate any identified constraints.
City of Hercules 6th Cycle (2023-2031) Revised Draft Housing Element Page 5 June 2, 2023
4. Promote and affirmatively further fair housing opportunities and promote housing throughout the community or communities for all persons regardless of race, religion, sex, marital status, ancestry, national origin, color, familial status, or disability, and other characteristics... (Gov. Code, § 65583, subd. (c)(5).)
As noted in Finding A1, the element must include a complete assessment of fair housing. Based on the outcomes of that analysis, the element must add or modify programs. As noted in the prior review, goals and actions must specifically respond to the analysis and to the identified and prioritized contributing factors to fair housing issues and must be significant and meaningful enough to overcome identified patterns and trends. Actions must have specific commitment, metrics, milestones, and geographic targeting and, as appropriate, must address housing mobility enhancement, new housing choices and affordability in higher opportunity areas, place-based strategies for community revitalization and displacement protection.
C. Public Participation:
Local governments shall make a diligent effort to achieve public participation of all economic segments of the community in the development of the Housing Element, and the element shall describe this effort. (Gov. Code, § 65583, subd.(c)(9).)
As noted in the prior review, the element must still summarize the public comments and describe how they were considered and incorporated into the element.