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On July 2, the California Department of Housing and Community Development warned Atherton town staff that the town is “in violation of housing element law” by not providing the department a definitive timeline for finalizing its 2023-31 housing element, which is far past its January 2023 deadline for state approval. HCD warns that persistent noncompliance could result in $10,000 to $100,000 per month fines. If a jurisdiction remains noncompliant, a court can multiply those penalties by a factor of six.
The housing element is still working its way through town commissions. The latest development came during an Aug. 28 town planning commission meeting. After hearing from a slew of neighbors who live near four properties on Bay Road that were identified as possible multifamily housing sites, the planning commission unanimously recommended that the properties be removed from the plan, along with several other changes including window privacy and setback standards.
About 25 people attended the meeting to comment, and the comments got heated at times, with members of the public talking over commissioners or interrupting them.
The town is required to produce 348 units of housing during this latest cycle, 94 of which must be affordable to people at the “very low-income level,” which in San Mateo County is an individual making less than $68,550 or a family of four making less than $97,900.
According to a town staff report that was presented to the planning commission, Atherton has let HCD know that the City Council will consider the plans at its next two meetings on Sept. 18 and Oct. 16. However, failure to adopt a housing element and other related changes by the end of those two meetings could result in further enforcement actions from the state, such as daily fees for the town or a complete loss of local control over development review, according to the letter from HCD.
HCD has agreed to informally review the current iteration of the housing element documents and to highlight any concerns ahead of the final council meeting during which the town is required to adopt a plan or face enforcement action. As of Aug. 28, Atherton has not yet received any feedback from HCD, according to the staff report.
Bay Road properties
A bulk of the discussion at the Aug. 28 meeting revolved around four properties along Bay Road and Ringwood Avenue near Menlo-Atherton High School that were included in the town’s plans for multifamily housing, with many neighbors of the properties advocating to remove them from the town’s housing plan.
The Atherton City Council voted in July 2023 to add these four properties to the list of potential multifamily housing sites to take through the California Environmental Quality Act review process. In the same meeting, the council voted against adding properties along Selby Lane, Victoria Drive, Santiago Avenue and Polhemus Avenue to the CEQA review process, citing neighboring residents’ strong opposition and concerns around the likelihood of the properties actually being redeveloped.
Several commenters at the Aug. 28 meeting said that the sites along Bay Road are inappropriate locations for multifamily housing due to high traffic that exists in the area due to its proximity to M-A, noise impacts to neighboring properties and privacy concerns.
“This proposed (multifamily) zoning of the properties (along Bay Road) violates every standard of privacy,” wrote John Riddle, a resident who lives on Frederick Avenue near the four Bay Road properties, in a comment on the CEQA analysis of the properties. “The immutable right to privacy that is … integral to the nature of Atherton is so grossly violated by the 10 to 14 families with a direct sight line into every room on the back of the adjoining neighbors’ homes.”
Neighbors along Bay Road, and on Frederick Avenue, which sits behind the four Bay Road properties, said they feel like they were not afforded the same consideration as other residents in Atherton who successfully prevented nearby properties from being included in the housing element process.
“For us here on Frederick (Avenue), we’re low man on the totem pole right now,” said resident Elizabeth Jenson. “You have taken (houses) off the plan for El Camino. … We just weren’t loud enough in the very beginning when we were not aware. … Everyone else in town has taken care of their little corner of the neighborhood.”
Residents living near the Bay Road properties also spoke up about concerns over traffic, safety and quality of life. “We’re even getting solicitations to sell our properties on Frederick,” said Jenson.
One Menlo Park resident, Jane Garratt, commented that Atherton is foisting its housing problem onto Menlo Park by putting a significant portion of Atherton’s planned multifamily housing on the border between the two cities. Seven of the 10 properties that had been identified for multifamily housing in Atherton are located on the border of Atherton and Menlo Park.
“I object to your plan to put your housing on my street,” she said. “You have decided to put many of the multifamily housing (sites) to satisfy your requirement for the housing element on peripheral streets. … Why should we, who are already doing our fair share of housing element units, have to absorb yours as well?”
Several members of the planning commission agreed that the residents along Bay Road and Frederick Avenue were not considered in the council’s decision.
“You shouldn’t be the low man on the totem pole,” said Commissioner Bob Polito. “And if the City Council shows the character that they should show, they’ll treat those residents the same way they treated all the other people they backed away from.”
Chair Eric Lane agreed with Polito, saying that he thinks putting multifamily housing on Bay Road is bad urban planning due to traffic concerns. Ultimately, Lane said he doesn’t think that the City Council will accept the planning commission’s recommendation to remove the four properties.
“We never had any input on these (properties),” he said. “They (the City Council) just decided to do it. And I think that from a planning perspective, it’s a bad plan.”
However, the question remains whether the state will accept the town’s housing plans without the inclusion of those properties, as there are already very few locations where the town is even considering multifamily housing. There were only 10 potential multifamily housing sites that the town included in its CEQA analysis.
“We’re going to recommend dropping 40% of the sites from the (multifamily housing) list, so the six remaining, do you think that’s adequate for HCD?” asked Lane.
Town planner Brittany Bendix said that she is not sure if that level of rezoning will be adequate for the state to approve the town’s proposal.
“I will say that my recommendation last fall was that the town consider the density of 20 units per acre (for identified multifamily housing sites), so we’re already below what I would think that HCD would require,” she said.
The current housing plan and CEQA analysis plans for 10 units per acre on the identified multifamily housing opportunity sites.
Other recommended changes
Removal of the four properties from consideration for multifamily housing was just one of several changes to the town’s housing element plans that the planning commission recommended to the City Council.
The planning commission also recommended that town staff and council members implement the following changes to housing element documents:
- Updates to the town’s window privacy standards to require windows facing a single family home to be located at least 54 inches off the ground, or have opaque window treatments below 54 inches.
- Updates to lower the required setback at the front of multifamily homes from 80 feet to 30 feet.
- Updates to the town’s parking standards for multifamily housing, including requiring resident parking to be in a garage or underground, setting a maximum of two parking spaces per unit and requiring at least one bicycle parking space per unit, among other changes.
- Directing staff to look at how floor-area-ratio bonuses could be used to encourage developers to put parking underground and make use of attic space.
The commissioners also unanimously recommended that the council accept the CEQA analysis that was completed by town staff and consultants.
As the planning commission is just an advisory committee, it is ultimately up to the City Council to decide whether or not it wants to implement the recommended changes.
ADU strategy
In addition to the promise of state enforcement, Atherton is staring down the looming threat of builder’s remedy, which already applies to the town since it does not have the state stamp of approval on its housing element plans. Under builder’s remedy, cities that are out of compliance with state housing laws cannot deny affordable housing projects on the grounds that the project is out of compliance with the city’s general plan or zoning rules.
“We already have a request on a property on Bay Road from somebody who said ‘we’d like to do a builder’s remedy on that’,” said Lane. “If we don’t have a plan for 10 units (per acre) we’re going to have 40 (units per acre). Not having a plan that is accepted by the state is the absolute worst plan.”
City Manager George Rodericks said in an email to this news organization that there was an inquiry about a builder’s remedy (Senate Bill 330) application for 99 Irving Ave., near the intersection of Marsh and Bay roads, however there was no further inquiry or action taken by the person who inquired.
Planning commissioners also mentioned the possible builder’s remedy project in Menlo Park at the site of the former Sunset Magazine headquarters, which if built, would be the tallest building on the Peninsula. “It’s happening in other communities right now,” Lane said.
Lane says he hopes that the town can show the state that their accessory dwelling unit (ADU) plan is working to get additional affordable housing into the town.
“What we’re trying to do is … make it so the state says ‘yeah, you guys just barely made it over the bar’ to get accepted,” said Lane. “And then what I’m looking for is that our strategy around ADUs will actually get those numbers where we actually meet the estimate of what we are required to deliver without ruining the town.”
Lane says he thinks that ADUs are the “best prospect” for getting affordable housing into Atherton, because of the “prohibitively high” cost of land in the town. He said that the multifamily housing sites that the town has identified are more likely to become luxury townhouses, rather than affordable multifamily housing.
“Will anybody really want to build (multifamily housing) with the criteria that we put forth?” he asked. “If not, then our ADU plan has a chance to succeed, because we’re getting the numbers that we want.”
In the most recent draft of its housing element, Atherton says that it was able to entirely fulfill its RHNA goal for low-income housing in the prior period (2015-22) due to its ADU program. Atherton updated its ADU ordinance in May to encourage residents to build even more ADUs in town.
But Atherton’s first draft of their housing element was rejected by HCD due to their conclusion that the town was not “affirmatively furthering fair housing” by not identifying sites where affordable multifamily housing could be built.
Carol Flaherty, a housing developer and member of the Atherton Housing Coalition, a group of Atherton residents who wrote their own proposal for the town’s housing element, agreed with Lane that the Atherton plans as they stand will not actually lead to affordable housing being built on the potential multifamily housing sites.
“There is a requirement for affordability, and we in the Housing Coalition do not find $4 million townhouses to be affordable,” she said. “What you’re doing is subsidizing developers like me. We’re going to make a lot of money to the detriment of the town. We need to get back to 10 affordable units in a building that working people can actually afford so that we meet HCD’s mandates.”
Flaherty also said that the town should get rid of the option for housing developers to pay a fee to get out of making 20% of the units in a new development affordable.
Next steps
The Atherton City Council will review the drafts of the housing element and associated zoning changes along with the recommendations from the planning commission at its next meeting on Sept. 18. The council is expected to make a final decision on properties to be rezoned for multifamily housing, and vote on whether or not to submit the housing element update package to HCD at their meeting on Oct. 16.
View all documents related to Atherton’s housing element update process at ci.atherton.ca.us/627/Housing-Element-Update.
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