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At its upcoming Wednesday, Oct. 16, meeting, the Atherton City Council will have one last chance to make changes to the town’s draft housing element before submitting it to the state.
The California Department of Housing and Community Development, HCD, told Atherton that it has to submit a revised housing element to the state by the end of the council’s Oct. 16 meeting, or face consequences.
City Attorney Mona Ebrahimi said that consequences for Atherton being out of compliance with state requirements could include the town being ineligible to receive state funds for certain programs, monthly fines that could range between $10,000 and $100,000 and the loss of all local land use authority. If Atherton remains noncompliant with state housing law, the financial penalties can be multiplied by a factor of six.
Though the Oct. 16 meeting is the council’s last chance to make changes to the town’s housing element plants, the council will mostly only be able to make minor tweaks. The largest decision that the council has yet to make is which properties throughout the town will be the first to be rezoned for multifamily housing. Atherton has historically been zoned for only single-family housing.
Several other jurisdictions throughout California have tried to challenge the consequences for housing element noncompliance in court, but Ebrahimi said that she is “not aware of a single jurisdiction that has prevailed.”
“Basically, they have all settled and paid significant sums of money, have agreed to adopt a housing element that they didn’t necessarily agree with and … in some examples that we’ve seen, they have the state actively monitoring all of their land use approval,” she said. “My real concern is that, as much as there may be comments against the housing element, we may end up with a housing element that is far worse than anyone would have wanted otherwise.”
Additionally, as long as Atherton’s housing element remains out of compliance with state housing requirements, the town remains open to builder’s remedy applications.
Atherton’s Oct. 2 City Council meeting was the last chance that council members had to make substantive changes to the town’s housing element plans before the town’s new housing element deadline from the state. Council chambers were packed, with over 50 residents attending the meeting in person, and another 40 attending virtually.
The seven-hour-long marathon meeting, which ran from 4-11 p.m., was the continuation of the council’s original housing element meeting on Sept. 18. This gave town staff only two weeks to implement the changes to the housing element and associated zoning and municipal code sections that were requested by the council.
What changes have been made to the town’s housing element plans?
In the past month, between its Sept. 18 and Oct. 2 meetings, the Atherton City Council made a number of changes to the town’s housing element plans. Many of these changes were aimed at incentivizing or requiring developers to develop in such a way that maintains privacy for single family home neighbors of multifamily developments.
Throughout public comment, residents emphasized how important maintaining privacy in Atherton is, and urged the council to make any changes possible to maximize privacy.
“Please maximize the height of the screening,” said Tom Georgie, a neighbor of the property at 23 Oakwood, which is slated to be rezoned for multifamily housing. “There is absolutely no amount of screening that will not destroy our privacy.”
Objective design standards for multifamily housing in Atherton originally set the maximum height for multifamily housing at 40 feet. Following comments from the council, the maximum height for multifamily development has been changed to 34 feet — the same height limit that exists for single family development in the town.
The council also requested that the front wall of multifamily developments be limited to 28 feet if built at the front of the lot’s front setback. The front wall is allowed to gain one foot in height for each foot back from the setback the building is placed, up to the maximum of 34 feet.
However, council also directed town planners to develop a program that will allow builders to push into the front yard setback by up to 10 feet, as long as they increase the setback in the rear by the same amount.
Landscape screening requirements for multifamily developments were also changed to match what is currently required for single family homes in Atherton. This means that developers of multifamily developments have to plant their landscape screening before the town can issue a certificate of occupancy. The council also raised the height for landscape screening of parking areas from 6 feet to 8 feet.
Previously, the council had opted to ban all communal outdoor spaces, such as pools, sports courts, barbeques and playgrounds from multifamily housing in town. Individual units were not restricted from having outdoor gathering spaces. After discussion during the Oct. 2 meeting, the council opted to allow outdoor communal spaces within the buildable area of the lot, but not within the setback area.
“I have to say that I think it’s wrong to not allow people in apartments to barbecue and be outside,” said Mayor Diana Hawkins-Manuelian. “I think that’s a human right to be able to go outside, and … to say you can’t have a barbecue and you can’t have an outdoor seating area seems cruel and crazy to me.”
‘I have to say that I think it’s wrong to not allow people in apartments to barbecue and be outside. I think that’s a human right to be able to go outside, and … to say you can’t have a barbecue and you can’t have an outdoor seating area seems cruel and crazy to me.’
atherton Mayor Diana Hawkins-Manuelian
Town planning staff also made several changes to respond to requests from HCD, including clarifying certain sections, fixing typos and graphics as well as adding additional narratives to certain sections of the housing element.
The council directed staff to set the floor area ratio in areas with multifamily housing to 45%, but to provide developers with a 10% floor area ratio increase if they opt to put all parking for the complex underground. The council also decided that habitable attic space would no longer be exempted from the floor area ratio.
The newest version of the housing element also includes commitments to specific metrics for multifamily housing. Atherton will conduct a review of multifamily housing construction in 2027, and if fewer than three of the sites identified for multifamily housing have development or development proposals at the time, the town will further modify its zoning at that time to allow for additional housing in town.
If this additional rezoning is necessary, the council would have to adopt the new zoning by the end of September 2029, to be effective in January 2030. This program was developed because the state indicated that Atherton’s multifamily housing strategy requires additional monitoring to meet HCD’s requirements.
Where will multifamily housing go in Atherton?
As the plans currently stand, there are 10 properties that Atherton has identified as opportunity sites for multifamily housing in the town. However, that doesn’t mean that all 10 properties will necessarily be finalized at the Oct. 16 meeting.
Currently, the identified multifamily opportunity sites include 197 Ravenswood Ave., 175 Ravenswood Ave., 185 Ravenswood Ave., 999 Ringwood Ave., 352 Bay Rd., 318 Bay Rd., 296 Bay Rd., 23 Oakwood Ave. and several sites located on schools and open space throughout the town.
When the housing element plans were reviewed by the Atherton Planning Commission on Aug. 28, commissioners recommended that the City Council remove the four properties along Bay Road and Ringwood Avenue from the town’s housing plans.
This recommendation came in response to complaints from multiple neighbors about the possible unsuitability of the sites for multifamily housing, due to the sites’ proximity to single family homes, possible contribution to already gnarly traffic along Bay Road and Ringwood and Coleman avenues, noise and privacy concerns and concerns about safety, as the driveways of the sites would interact with bike and pedestrian routes for children heading to Menlo-Atherton High School and local elementary schools.
“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.”
However, at the same Aug. 28 meeting, the Atherton Planning Commission unanimously approved the town’s CEQA analysis, which found that the sites are suitable for multifamily housing. According to a staff report prepared for the Oct. 16 meeting, Atherton staff do not recommend that the council follow the planning commission’s recommendations.
Council members have not yet given any indication whether or not they plan to follow the commission’s recommendations to remove those four properties from the town’s housing plans.
Town planner Brittany Bendix has said previously that she is not sure that the town’s plans will be accepted by the state if the council opts to remove the four properties in question.
“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 at the Aug. 28 meeting.
In the staff report for the Oct. 16 meeting, Bendix says that if the council had opted to pursue environmental analysis for more sites throughout the town, and analysis of those sites for the possibility of 20 units per acre, the council would have more leeway to remove properties from consideration.
The town is required to plan for multiple kinds of housing, including multifamily housing, in order to meet the state’s requirements to “affirmatively further fair housing.” In order to affirmatively further fair housing, Atherton cannot opt to place all of their multifamily rental housing on schools, private clubs and colleges — as the town previously attempted to do — because renters would have to be affiliated with those institutions to gain access to the housing.
“As a reminder, only eight sites (being considered for multifamily housing) that are within a (single family) zoning district provide opportunities for the development of multifamily housing without an institutional affiliation,” Bendix wrote in the report. “Removing any four properties is a reduction in the AFFH program by fifty percent.”
As part of the housing element plan, the draft housing element also proposes that housing be built on several school sites throughout the town — Sacred Heart Schools, Menlo School and Menlo College — for students and/or staff at a density of 20 or 40 units per acre, depending on the site. Several park and open space sites are also included in the housing element plans, such as a section of the Menlo Circus Club and California Water Service land for staff members.
These park and open space developments would not help Atherton meet its AFFH requirements, but they will help the town reach the overall numbers of housing units that it is required to build between now and 2031 (348).
Concerns about multifamily housing
Though Atherton is currently at the end of the eleventh hour of its housing planning process, many residents commented at the council’s Sept. 18 and Oct. 2 meetings that they want the council to have “courage” and go back to the drawing board despite the threat of consequences from the state.
A common complaint from residents is that the process the council undertook for choosing sites to rezone for multifamily housing was arbitrary and “capricious.”
“The process of selecting the particular sites seems arbitrary,” said one resident named Martin. “The right way to do this process is to choose criteria and apply them equally to all sites. A huge burden is being borne by neighbors like us who have three of these properties right next to us. … The arbitrary nature of the site selection is in my mind a big violation of the public trust.”
Despite environmental analysis undertaken by the town showing that noise and traffic impacts can be mitigated, several residents commented saying that they believe the analysis did not accurately assess those impacts given that there will be several large developments in Menlo Park nearby the sites on Ravenswood Avenue and Bay Road that are under consideration for rezoning in Atherton.
Several commenters said that they would prefer the council reconsider their plans and to put the multifamily housing along El Camino Real, rather than anywhere else in town.
“I would support multifamily housing on El Camino, instead of in our small neighborhoods, where it’s going to devastate our privacy,” said one resident named Stephanie. “These people already live off El Camino, they already bought homes off a major highway, so build there.”
The council previously scrapped the idea of rezoning a swath of El Camino after residents threatened the town with legal action if the lots were rezoned. Homeowners in that region also certified that they would never sell their homes to developers, making it unlikely that the parcels would become multifamily housing, and forcing the town to reconsider.
Other areas of El Camino have smaller lots, with each lot totaling about a third of an acre, and the state does not view lots of that size as large enough to fulfill multifamily housing mandates.
“HCD has indicated to us that they do not view lots that are (smaller than) a half acre as good opportunity sites for multifamily, and all of the lots on (El Camino Real) and close to Caltrain are … a third of an acre,” said Council member Stacy Miles Holland at the Oct. 2 meeting. “That’s why those sites were not included in our CEQA analysis.”
During the Oct. 2 meeting, the council decided to specify in the town’s zoning code that lots under half an acre would not be eligible for rezoning for multifamily housing.
Council member Rick DeGolia said that adding this to the town’s zoning code would help further protect Atherton residents from development.
“We are establishing a multifamily district that never existed before,” he said. “We should provide as much limitation as we reasonably can, otherwise, at some point, it’s at risk of being expanded.”
What comes next?
Atherton City Manager George Rodericks said that it is likely that the council will adopt and submit the town’s housing plans at Atherton’s upcoming meeting.
“At least that is what staff recommends they do,” he wrote in an email to this news organization.
Rodericks said that once the full housing element package is submitted to HCD, the department will review it and provide the town with a formal comment letter. This process is expected to take 30 to 60 days.
HCD could find that the town is in “substantial compliance,” meaning that they suggest no or minimal revisions to the town’s housing plans. In which case, the town will have to begin immediately implementing all of the programs, policies and goals laid out in its housing element. Atherton is only shielded from builder’s remedy proposals once the housing element is fully certified by the state.
On the other hand, HCD could find that Atherton’s newest housing element draft is not in substantial compliance with state requirements. In this case, the department would provide the town with a formal comment letter outlining the changes that need to be implemented for the housing element to be approved.
If HCD once again rejects Atherton’s housing plans, the town would need to return to discussions with the planning staff, City Council and the planning commission to address the comments made.
If the council chooses not to adopt and submit the town’s housing element plans to HCD at the Oct. 16 meeting, the town will likely face consequences from the state, including possible suit from the state Attorney General’s Office, fines, ineligibility for state funds and grants and more. If the town challenges a suit from the state in court, it could be forced to adopt a less favorable version of the housing element and to pay additional fines as part of a settlement.
The town cannot make any further substantive changes to the housing element or associated zoning codes following the Oct. 16 meeting. Any large changes would jeopardize the town’s chance at certification by the state.
“We can address drafting errors, typos and grammar changes,” said Rodericks. “The town can consider making those changes as part of a clean-up ordinance at a future date. However, HCD will be following the town’s next steps closely, and changes cannot be undertaken that would undermine the adopted programs, policies or revisions.”
The Oct. 16 meeting will take place at 6 p.m. in the Atherton Council Chambers at 80 Fair Oaks Lane.
Read the most recent version of Atherton’s housing element at tinyurl.com/AthertonHousingElement.
The whole premise that you need more houses to make housing affordable is awkward. Putting more people in the existing houses would offer affordable, and very good, accommodation. Many of the Atherton properties could take in a resident couple as servants as was done in many houses in Victorian times. If a gardener/cleaner/chef team had quarters in a home or ADU, they could reduce their commute time and serve a few families and pay very low rent, or be offered free accommodation in lieu of payment – not something the IRS will like most probably. This would help reduce Atherton’s carbon footprint too – which towns will have to do.