The Ark
May 4, 2023
Kevin Hessel and Hemananthani Sivanandam

State officials this week delivered a sweeping rejection of Belvedere’s eight-year housing plan, leaving little untouched as they questioned the city’s efforts to address equitable housing and avoid rezoning, its aggressive plan for second units and legal positions that have stymied consideration of the Mallard Pointe redevelopment project.

In its May 1 letter, the California Department of Housing and Community Development also made clear its position that Belvedere broke state law when it adopted the 2023-2031 housing element ahead of initial state review and that “revisions will be needed to comply” with housing law. The state therefore asserts the city is fully exposed to all punitive measures for missing compliance deadlines, from by-right development to lawsuits from the attorney general.

Belvedere City Manager Robert Zadnik stood fast, however, asserting despite the plain language of the letter that the city’s already in substantial compliance and not legally exposed.

The 14-page review cites nearly four dozen deficiencies and was among the longest critiques for Marin jurisdictions, saying Belvedere only met “some” requirements versus the “many” or “most” for other deficient drafts.

“This was the worst review in Marin so far,” Jennifer Silva of the Campaign for Fair Housing Elements said on social media. Silva was among several pro-housing watchdogs who submitted comments to the state criticizing the plan as insufficient.

“This letter is a wholesale takedown of their housing element. It missed the mark by the widest margin of any housing element in Marin,” said land-use attorney Riley Hurd, who represents the landowners seeking to redevelop the 22-unit Mallard Pointe community across from Belvedere Community Park with a 40-unit mix of single-family homes, duplexes and apartments. “After this review, Belvedere should be rolling out the red carpet for our project.”

Leaders for Belvedere Residents for Intelligent Growth, or Brig, the local group fighting the Mallard Pointe development, found the response disappointing.

Brig Chair John Hansen said the agency went to “extraordinary lengths … to point out even the most minor technical faults.”

Under its regional allocation, Belvedere is required to identify sites where it can realistically accommodate at least 160 new units and ensure local zoning and other policies and programs encourage their creation. The City Council on Jan. 24 adopted a 192-unit plan, providing a buffer in case sites get rejected or future development is less than expected and must be made up elsewhere.

But adoption came before the document went to the state for initial 90-day review as a hedge against the punitive builder’s remedy. Jurisdictions without an adopted, compliant plan before Feb. 1 lost their ability to enforce local zoning and general-plan rules and are required to approve certain affordable housing by right under less-restrictive state law until they get a state-approved element in place.

The early adoption was immediately met with both a lawsuit from Californians for Homeownership, a nonprofit arm of the California Association of Realtors, and a notification from the state that the move violated compliance requirements and it would not treat the document as being adopted.

“(The) letter … confirms the position taken in our litigation against the city,” the homeownership group’s lawyer, Matt Gelfand, said by email, adding that the letter also confirmed “the city is among the least compliant of the drafts that (the state) has reviewed.”

A Marin judge declined the group’s request for a swift ruling, and Gelfand said it has now, at least temporarily, agreed to withdraw the suit “to allow the city time to assess its next steps.”

“The city has agreed to ‘toll’ our statute of limitations to allow us to refile our lawsuit, which we may or may not choose to do depending on the city’s response to (the) comments,” he said. “A lot will depend on whether the city decides to amend the housing element or stick with what they have.”

Belvedere officials were clear in saying early adoption and self-certification sought to leverage the specter of costly, lengthy court battles to discourage builder’s-remedy applications from even being filed. The plan may have worked, as no such applications have been to date, Zadnik confirmed — though the Mallard Pointe lawyer suggested that may soon change.

If an application had gone to court, officials said, they hoped the state housing agency would accept the element as submitted, or at least with minor revisions, to bolster a defense that early adoption was in good faith.

However, the agency instead had significant concerns about a number of the city’s claims, particularly on development of second units, Mallard Pointe and The Boardwalk shopping center, which make up more than 70% of identified sites.

Second-unit projections ‘confounding’

The review said Belvedere “presents confounding information” on its assumptions about accessory-dwelling-unit production, which was central to the city’s plan to avoid any need for rezoning.

The city’s housing-element consultant, Ande Flower of EMC Planning Group, had long said the state’s formula for Belvedere would allow the city to include production of 21 accessory units over the next eight years, but to not submit a plan with more than double, or 42. Housing-element watchdogs, including Silva and the Greenbelt Alliance, repeatedly warned officials not to exceed the formula at all or risk getting rejected.

To reach their target, city councilmembers solicited residents to sign letters of interest in creating second units on their properties — at one point working behind the scenes with Brig and instructing its members to sign with the explicit goal of avoiding rezoning — giving repeated assurances there was no obligation to build or rent.

One recipient of the letter circulated by Brig contacted The Ark and the state, questioning the ethics of the practice. The housing agency’s review lists The Ark’s editor, Kevin Hessel, among those whose “comments” were considered for its response, though Hessel’s records show his only correspondence was an unanswered media inquiry to the agency’s compliance-review email address seeking comment about the council-Brig collaboration. The Ark has requested copies of all public comments, which were not supplied by press time.

For the housing element, the city ultimately collected 41 signatures to present to the state, some 30 of which were included in the site list as the “realistic capacity” for development, alongside 14 other accessory units listed elsewhere in the site inventory, for a submission total of 44. That’s roughly a quarter of all units in the plan and more than the consultant’s recommended maximum.

Reviewers balked.

“Even the most favorable recent trends would result in a significantly lesser number of (accessory units) in the planning period,” the state wrote. “For your information, (housing agency) records show an average of only one (accessory) unit per year.”

According to the draft housing element, some five units total were completed between 2017 and 2022 — though another nine more each were said to be under construction, have a building permit or in the plan-check phase.

The state said the letters of interest weren’t enough to support the production claims and that the city would have to evaluate the likelihood that units would actually be built — and rented — to be considered toward the required unit count. The state also wants to know what survey tools were used, how it was administered and what the actual resident responses were.

The city’s outlined incentive programs mostly aligned with state requirements and building an informational website. It said it’s still developing more programs, including a potential requirement for all new home construction to include an accessory unit, with in-lieu fees for developers who opt out.

Zadnik declined to comment on whether the city will attempt to better demonstrate owner intent to build and rent or whether it will seek to make up the potential unit shortfall elsewhere.

Separately, the agency said Belvedere’s accessory-unit laws at the time of review weren’t consistent with state law and that it would provide a list of compliance issues in a separate document, which wasn’t available at press time. Belvedere has since updated several portions of its accessory-unit laws, so it was unclear if those changes would satisfy the state.

Mallard Pointe and rezoning

Further, the state review said it appears Belvedere will indeed need to perform some rezoning to meet its housing requirements, a prospect that could trigger a major ripple effect.

Compliant housing elements require jurisdictions submit a costly and time-consuming environmental-impact report. Belvedere asserted that because its housing plan required no rezoning — all the development it identified could happen within the existing rules, and there were no changes from the impact report prepared for the previous housing element — it didn’t need a new one. The city exempted itself and adopted the new housing plan without a new environmental analysis.

If required by the state, rezoning may trigger the need for a new analysis, which would take months to complete while the city remained exposed to penalties like the builder’s remedy and lawsuits from developers and the state attorney general.

One such project that may require rezoning is the Mallard Pointe proposal, state reviewers said.

Hurd, the project lawyer for the site, has long argued that the current housing element states multifamily housing is allowed in the site’s R-2 zone. He said this preempts the older zoning code that specifically prohibits apartments, noting in part that if there’s any inconsistency in allowable density, the general plan takes precedent; the housing element is a component of the general plan. Hurd asserts duplexes alone can’t reach the maximum density allowed, so under state-bonus-law provisions the city can’t prohibit a plan that prevents full development, whether that’s through bans on apartments, height limits or other standards.

City officials have taken the position that apartments are not allowed, and the Mallard Pointe developers must apply for a waiver under density-bonus laws. Hurd has since taken that further, asking in October for a full concession for relief based on nearly $4 million in estimated construction-cost savings of an apartment over duplexes — though he still argues the project should need neither a waiver nor a concession.

A ruling to disallow the apartment complex on legal grounds is a key to objections from Brig, which asserts the prohibition on apartments is clear and that duplexes can accommodate up to 48 units on the site — more than being proposed by Mallard Pointe — so apartments aren’t necessary and the waivers don’t apply.

But state officials have now weighed in with the housing-element review and appear to agree with Hurd, saying the prohibition on apartments is inconsistent with the existing general plan. It said Belvedere must review its R-2 zone and “correct any inconsistency with the … housing element,” which Hurd takes to mean that apartments must be allowed.

“It’s a really big deal for (the agency) to put to rest the oft-repeated Brig argument that you can’t have apartments,” he said. “We now have the final word from (the state): Apartments have to be allowed at Mallard Pointe.”

Hansen, the Brig chair, disagrees.

“It appears that (the agency) is merely repeating a discredited legal theory put forth by the Mallard Pointe developer’s attorney. Note that (it) provides no analysis or explanation to support this assertion, because none exists,” he said last week. “It is unfortunate that (the agency) would so uncritically accept and repeat a developer’s self-interested interpretation.”

Though not mentioned by state reviewers, the Mallard Pointe application requests just 40 units, while Belvedere stated the site would have 48 — more than the developer intends — which inflated the total unit count in the element. It also didn’t cite the single accessory unit in the development application, obscuring the full number of second units the city is relying on.

Zadnik declined to comment on the agency’s zoning assertions and on the inconsistency in the development expectation for Mallard Pointe.

Hurd said Belvedere has promised the project its first public hearing in June, and he’ll be considering the reception to the project in light of the state’s findings, which also require the city to identify government and local constraints.

“We’ll have to think about using the builder’s remedy,” he said. “My hope is they just give us the hearing. Eighteen months, no hearing, neighbor group threatens to sue every time we submit (documents) — we need to look no further than the Mallard Pointe application to understand the housing impediments in Belvedere, period.”

The Boardwalk and site potential

In general, the state said Belvedere’s housing element didn’t include a complete enough site analysis for the city to establish the adequacy of the sites or zoning, or for the state to fully examine it.

However, it remained skeptical of Belvedere’s inclusion of The Boardwalk shopping center, which “has been in the past two housing elements as a potential site for housing but has yet to actualize into housing.”

Owners the Belvedere Land Co. have said that, with rezoning, as many as 130 units could be built at the complex, where the jurisdiction is split with Tiburon for 65 potential units on each side. Under Tiburon’s housing element, the town will rezone its portion of the property from commercial to mixed use of up to 35 units per acre.

Late in Belvedere’s deliberation process, the city removed rezoning to mixed use at 35 units per acre for its half of The Boardwalk, keeping it as commercial mixed use, which allows residential at 30 units per acre over commercial ground floors. That could force the property owner to use Assembly Bill 2011, which takes effect July 1 and allows by-right development of affordable housing in commercial corridors; 100% affordable housing is allowed anywhere, but near transit centers at least 15% must be lower income, or alternatively 8% for very-low and 5% for extremely low incomes.

That’s in line with Belvedere’s consideration of a policy that would require at least 15% affordable housing in new multiunit developments.

But the housing agency has now told both Tiburon and Belvedere that it needs more information on how they’ll be working together to accommodate redevelopment across jurisdictions, where Belvedere’s refusal to rezone may prove a factor in the state’s approval of both plans.

Further, state rules require that sites like The Boardwalk, which were identified in city’s previous housing elements, be rezoned within three years at specified densities to allow for new housing — including by-right approval for projects with at least 20% lower-income housing.

Realistic site potential

The shopping center is among the nonvacant sites that Belvedere said could accommodate that lower-income housing, with the city listing 38 potential affordable units there.

But state reviewers said if more than half of new lower-income housing citywide is being identified at sites that are already developed, they need significantly more information to determine whether those units will realistically be created within the next eight years. Belvedere Lagoon-area sites alone include 69 of the 96 total lower-income units in the plan, representing some 72% of the city’s inventory, including buffers.

That includes sites in residential areas that are allowed to have fully nonresidential uses, such as the Christian Science Church and the St. Stephen’s Episcopal Church parking lot, where the city said 12 of 13 potential units would be for lower incomes.

Though again not cited in the state’s response, one commenter on the draft who contacted The Ark asserted the Christian Science Church should not be included in the inventory, as it was designed by Warren Callister, who is identified in the Cultural, Archaeological and Historic Resource Preservation element of the city’s current general plan as a significant architect. City staff reports over the years have cited the church as an architecturally significant building.

The Ark contacted church leaders, with a February response letter from the executive committee stating they were aware it was included in the housing element but without confirming any intent to permanently stop services there, demolish the building and redevelop it as housing. A California Public Records Act request to the city came up empty, with Belvedere unable to provide any correspondence indicating any communication with the property owner about redevelopment.

In a separate twist, the state housing agency notes some of the other sites appear to be too small for low-income housing development. While the state’s Senate Bill 9 has gained attention for allowing single-family lots to be split to allow up to four units, the state has separately made clear that sites smaller than a half-acre cannot be considered adequate to accommodate lower-income housing.

Belvedere has listed 16 lower-income units on sites the state deems to be too small and said it won’t accept those unless Belvedere can prove lower-income housing was developed on equivalently sized sites during the prior planning period, or that programs will be in place to help owners consolidate small sites.

Zadnik declined to comment on how the city might address the use of nonvacant and too-small sites for lower-income housing.

One major concern by Brig members and public officials is whether Belvedere’s infrastructure can support the population increase resulting from 160 new units. They regularly assert there’s a disconnect between the state’s housing requirements and the local ability to provide services, water in particular.

The state appears to be unsympathetic, saying in one short section that Belvedere must do more to “clarify whether there is sufficient total water, sewer and dry-utility capacity (existing and planned) to accommodate the regional housing need and include programs if necessary.”

Equity and fair housing

The state housing agency also requested more information on policies, programs, constraints and local history related to equitable and fair housing, from resolving the impacts of historic land use, segregation and access to opportunity to how the city is addressing housing for special-needs populations and allowing for emergency shelters, navigation centers and supportive housing.

Since the draft first began being developed and revised for submission to the state, residents and city officials alike have taken issue with the tone. For the first time, jurisdictions are required to complete a section on affirmatively furthering fair housing, which includes a self-assessment that seeks to combat discrimination by taking “meaningful actions to overcome patterns of segregation” that can result from housing policy itself and to “foster inclusive communities.”

Vice Mayor Peter Mark described the document’s tone as sometimes drawing unsupported, incendiary conclusions about the city and its residents, while Mayor James Lynch said they’re often unflattering and negative. Councilmember Sally Wilkinson called the section “woke.”

Officials spent considerable time in final meetings before adoption revising the tone, striking language stating “Belvedere must play its part in meeting the growing demand for housing” along with a section defining segregation, its contributing factors and the negative, generational impacts to access and opportunity — including that “segregation patterns are affected by policies that appear race-neutral, such as land-use decisions and the regulation of housing development.”

A study by Bay Area Equity Atlas found Belvedere to be the most segregated area of white wealth in the nine-county region.

State reviewers appeared to take note, saying the city’s next revisions must utilize “sources of local data and knowledge” along with “relevant factors such as historical land use — zoning, initiatives, growth control — that impacted socio-economic patterns.”

It added that a full analysis of sites should address how the city identifies sites by income category “and how that affects the existing patterns for all components of the assessment of fair housing, e.g., segregation and integration, access to opportunity.”

The state criticized the city for regularly using “general and vague statements” about its programs, citing several that must be revised with stronger commitments, including addressing homeless needs, tenant matching, permit streamlining and employee-housing opportunities.

It said the current element also fails to quantify the number of elderly people or those experiencing homelessness, their special housing needs and the challenges they face, like the availability of units and programs and funding to address those gaps.

It notes there’s no analysis of policies to facilitate and encourage the development of single-room-occupancy units, which reviewers said are “a particularly relevant and significant housing type given the city’s total area size and its unique geographical constraints.”

The state also said the element must analyze how its three-bed limit for emergency shelters might be a development constraint and that there’s no evidence of programs for by-right low-barrier navigation centers or permanent supportive housing, or zoning that allows for employee housing.

A second draft of the element will need to go back to the state housing agency for 60-day review. Zadnik said staff and consultants are already working on amendments to the housing element to respond to the state and that when ready they’ll be available for public review. The Planning Commission will hold at least one public hearing, he said, before the update is forwarded to the City Council for consideration and adoption.

To read the draft housing element and the state’s initial-review letter, visit and click the “see what’s new” button.

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