State: city broke law in denying Larkin Place easement
by Steven Felschundneff | steven@claremont-courier.com
On Monday the State of California put Claremont on notice that the city violated state law by denying an easement over a public park that would help facilitate the construction of a permanent supportive housing project.
The letter from the Department of Housing and Community Development’s Assistant Deputy Director, Local Government Relations and Accountability, David Zisser states “In denying the easement, the City of Claremont (City) has violated the Housing Accountability Act (HAA) under Government Code 65589.5.”
During its June 28 meeting, the Claremont City Council denied, by a 3-2 vote, Jamboree Housing Corporation’s request for a 24 foot by 275 foot easement across an existing parking lot at Larkin Park that would have provided access to a proposed new parking lot and affordable housing project on the adjacent property at 731 Harrison Avenue. That project, Larkin Place, had the blessing of city planning staff and had already been approved by the architectural commission. These approvals were noted in the HCD letter.
Councilmembers Corey Calaycay, Sal Medina, and Mayor Pro Tem Ed Reece voted no.
The most recent letter from HCD was not a bolt from the blue, as the agency had warned the city, and by extension the council, that denial of the easement is a violation of the Housing Accountability Act.
“On June 23, 2022, HCD sent a letter to the City stating that denying the easement equates to the disapproval of the Project and, without making the required public health and safety findings, would constitute a violation of the HAA … The City Council denied the easement despite City staff’s recommendation to approve the easement and HCD’s technical assistance informing the City that the Project qualifies for protection under Government Code,” read the August 12 letter from the state.
The message from the housing agency is quite clear: the city needs to either rectify the situation by approving the easement, or HCD may refer the situation to the California Office of the Attorney General. If Larkin Place ended up in state court, the legal costs to the city could be astronomical.
The city must provide HCD with a written response by September 12, including, at a minimum, “a specific plan and timeline for corrective action that allows the Project (via the approval of the required easement) to move forward with its plans without further delay or demonstrate that legally sufficient health and safety findings were made pursuant to Government Code.”
The reference to “public health and safety findings,” stems from California law that states affordable housing projects shall not be disapproved by a local agency unless there is a preponderance of evidence that one of five critical conditions apply: the city has met or exceeded its Regional Housing Needs Assessment; the project would have a specific, adverse impact on public health or safety; a specific state or federal law supersedes; the proposed project is on land zoned for agriculture or resource preservation; or the housing development is inconsistent with both the jurisdiction’s zoning ordinance and general plan.
City staff have repeatedly said that none of the five conditions apply to Larkin Place, and the public health provision includes a very high bar, which makes it almost impossible to deny a project on those grounds. Nonetheless, opponents to Larkin Place have seized on this language and have been pressuring city officials for a safety study.
Jamboree has proposed building a 33-unit permanent supportive and affordable housing development consisting of nine studio and 23 one-bedroom apartments, as well as a two-bedroom onsite manager’s unit. Future residents would be extremely low-income people, those who earn at or below 30% of the area median, who are either currently or in danger of becoming unhoused. In addition, tenants will have some type of disability which could include mobility issues, autism, post traumatic stress disorder, mental illness, or addiction issues.
The core issue involves a slate of new laws that make developments like Larkin Place “by right,” meaning local agencies such as the Claremont City Council have little control when it comes to approving or denying them.
But the letter from HCD goes one step further by reminding city officials that putting up barriers that might ultimately block the construction of Larkin Place, in this case the easement, also violates the law.
“As defined in the HAA, the ‘disapproval’ of a housing development project includes not only an outright disapproval of that project, but also includes ‘any required land use approvals or entitlements necessary for the issuance of a building permit.’”
On June 28, Calaycay said he was not going to have his vote hijacked by the state, referring to the “by-right” status of the project and the first HCD letter. Reece said he concluded the driveway easement over a parking lot adjacent to a soccer field was not safe. Medina expressed concern the usual approval process had been circumvented for this development.
Reached by phone on Tuesday, Calaycay said “I have no comment at this time.” Pressed further about the possible financial costs he said. “This has nothing to do with fiscal responsibility.”
The COURIER called and emailed both Reece and Medina but neither had responded as of press time.
“Because this involves potential litigation, I have no comment at this time,” said Mayor Jed Leano, who is also an attorney.
Other stakeholders, who are not elected officials, had plenty to say about Claremont’s predicament.
“Though many will experience this as a loss of local control, it is instead control that the city handed over,” said Ilsa Lund, board of directors chair for the Housing and Homelessness Collaborative. “It’s the manifestation of decades of local opposition to new housing and what California voters demanded in order to address our housing crisis. I don’t want the city to be entangled in costly litigation any more than anyone else who loves Claremont, but I don’t think we can operate outside the law by standing in the way of housing we have both a moral and legal obligation to build.”
In June, the city’s special legal counsel Thomas Clark disagreed with HCD’s assessment that denying the easement would be a violation of the law, arguing the right-of-way was not an existing access way and the agreement between the city and Jamboree involved considerable negotiation and a complete reworking of the parking lot.
“It’s completely discretionary and I believe HCD probably didn’t have all of the facts when they opined, and I think with those facts they would conclude that it’s not subject to the Housing Accountability Act,” Clark said during the June meeting.
Reached by email on Wednesday, Clark said the city will work toward a response to HCD within the time parameters imposed by that agency.
“My viewpoint was, and continues to be, that the city’s refusal to grant an access easement through the park is not a violation of the Housing Accountability Act,” Clark said.
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It’s interesting that the community has been asking for a health and safety study to address these issues, but the city and its staff have been reluctant to do so. Now The department of housing themselves are requiring it. I don’t think these issues will be put to rest until an actual study is done by an impartial 3rd party.