Mill Valley's Draft Housing Element – Let's Finally Get It Right!

The following is the text of a letter sent to the Mill Valley Planning Department and the members of the General Plan Advisory Committee, who are working on the draft of our new Housing Element. The Housing Element is the document that deals with planning and zoning that relates to residential growth and affordable housing.

January 18, 2013

Dear GPAC Members:

I’m writing to comment on the letter submitted by Matthew Francois of Sedgwick LLP (attached) regarding the prior inclusion of the Safeway property in the Housing Element “Overlay” and presently as a property on the Housing Element “list.”

Safeway’s response to the GPAC’s plan is very important for several reasons. With their letter, we finally have some real world push back against the false thinking that has permeated the Housing Element process here in Mill Valley and elsewhere in the Bay Area for years.

Safeway’s legal position correctly confirms what community leaders have been saying for a decade. Property owners have property rights and free markets operate on the ability to rely on those rights and certain legal principles. But the way we are addressing our so-called “housing mandates” goes too far in the direction of usurping those rights. And since Safeway is not just another “quick profit” driven developer, as we have seen before, they are not inclined to see the Housing Element’s ideological agenda as a gift but rather as a burden. They rightfully interpret the city’s actions as intrusive and potentially damaging financially.

What is tragic is that all of this is unnecessary. We can address our obligations under Housing Element regulations without the creation of special “overlay” zones or specific site by site incentives (as was the case with the Safeway property).

What Are We Really Required To Do?

It is arguably reasonable to create a zoning map that analyzes which existing properties have potential for future development or redevelopment, some of which might include some affordable housing, based on their current use. It is also desirable to create public policy to guide development so that the character of our town is preserved, as we grow, and the growth we do get aligns with our actual demographic needs. And it may even be desirable to offer incentives to project proposals, in a competitive environment, so as to help the city realize certain affordable housing policy goals that are ill-served by the “market.” If all this is done accurately and based on facts and sound analysis, it offers every property owner an equal chance to bring proposals before the city, for consideration, and to possibly benefit from those incentives. A so-called “win win.”

But as Safeway has pointed out, it is over-reaching for our City to begin to indiscriminately dictate to individual property owners what and how those property owners will be able to develop their land, without their input or consent, or establishment of a clear public benefit or need (the health, safety and general welfare of the public), or to otherwise try to “make the market” do what it wants, without the benefit of any supportable evidence or any development knowledge. And it’s very inequitable to all the taxpaying residents of our city for the city to dole out property value enhancing zoning “gifts” to an arbitrary list of property owners who could then benefit financially and complete unfairly with other equally worthy property owners.

Again, once and for all, let’s be clear. Housing Element law does not require that the City create a zoning overlay or grant special entitlements to specific property owners. It only requires that we make a good faith effort to provide sufficient zoning for enough potential development sites to achieve the housing projection numbers (Regional Housing Needs Allocation) set by HCD and ABAG.

In my reading of the Housing Element and related regulations, I believe any interpretations of those regulations which suggests we must accept a more aggressive approach than what I’ve described above, is a case of bureaucratic over-reaching by BDC and ABAG staff, and is not the law. This requires our challenge.

Setting aside for a moment the arguments about how unfounded the data that drives RHNA numbers are and how arbitrary the ABAG allocation process is, in Mill Valley achieving the requirements of Housing Element regulations to show evidence of sufficient zoning to meet our RHNA numbers is actually very easy because we already have an abundance of land that is presently zoned for residential or commercial but is under-developed (has structures on it that do not achieve its highest and best use).

Development Common Sense

Common sense supports Safeway’s position in saying “We also request that language be added to Draft Housing Element to clarify that the inclusion of any site on the housing inventory list does not mandate the provision of housing in connection with any future development proposal.”

Knowledgeable people would no doubt agree that “development opportunities” are not just a matter of driving around and looking for vacant land. If it was that easy, we’d all be millionaires. And private property owners and private developers are better able to assess “opportunity” than any list created by City consultant or GPAC group, no matter how smart they are.

Why then has our City and particularly our Planning Department continued down this path, acting as if there is a requirement to create site specific overlays and special site by site incentives, and pretending we are capable of making good decisions about that? This has been discussed ad nauseum but nothing has changed and the consequences of this misguided approach continue to mount (e.g. The Richardson project).

For example, we’re shown a “site list” that for inexplicable reasons includes the Safeway site but not all the other parcels along Miller Avenue in the Gateway “room.” This, in spite of the fact that all of the existing buildings there except for 505 Miller Avenue and Taco Bell are potential teardown opportunities with tenants on reasonably short term leases. Why? We see impractical sites like the Safeway parcel on the list but sites with real potential, like the parking lot for Mt. Carmel Church, downtown (a perfect site for infill, mixed use with underground parking) and the Presbyterian Church site on Camino Alto are missing. And, similarly, with the residential parcels on your list, my own house, for example, which has enough spare FAR to build a second unit, is not on the list. Why am I, a taxpayer for 20 years, not being offered any incentives or benefits? 

Why does it continue to be so hard to get this simple point across? 

The City is doing everything backwards. Instead of trying to “divine” the future of real estate development and the economy we simply need to identify that adequate zoning exists (for HCD, which we have done) then offer appropriate incentives to any development proposal presented (based on well-reasoned public policy goals) that helps the City achieve its goals. Then let the market in its infinite creativity figure out how to do that for us. And make sure those “goals” are “our” goals and not those of an over-reaching staff in Sacramento or out of control quasi-government agencies like ABAG.

Public Policy Criteria

I have made suggestions about potential public policy criteria before, but I will include them again. We need more qualitative criteria that make a proposed development more suitable for approval. These need to be included in both the Housing Element and the General Plan document’s language.

Some possible public policy criteria might include incentives for properties that are:

• Economically obsolete (there is no longer any rental demand for that type of structure: i.e. a warehouse building in an office / retail area).
• Functionally obsolete (the structure is so far out of code compliance and lacks so many amenities and features that no “good” tenant will rent it).
• Hazardous (a building that is somehow a public danger due to toxic materials, etc.).
• Unsafe (a structure is in danger of collapse or damage to adjacent structures, or is otherwise a public safety problem).
• Include desirable "green" building techniques and materials or other desirable technology and safety innovations.
• Provide a desirable public amenity (a path or lane, a public space, a shelter, parking, etc.).
• Improve public access and safety (pedestrian, vehicular, etc.).