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What is ‘by right’ and why can’t Claremont just say no to Larkin Place?

by Steven Felschundneff | steven@claremont-courier.com

The proposed Larkin Place permanent supportive housing project is considered “by-right” — but what exactly does that mean?

The by-right concept simply states that a local jurisdiction can only apply objective land use standards in evaluating a housing project and is prohibited from applying subjective standards, according to Thomas Clark who is the city’s special council for Larkin Place.

Objective standards are commonly found in the city’s zoning regulations and involve knowable and definable facts, such as requiring a 10-foot setback from the street or a 44-foot building height limit. They could also include a district of the city zoned for a specific use such as residential units only.

Subjective standards are those that involve some type of decision or interpretation. Examples include compatibility with the existing neighborhood, color palettes to be used or the angle of a roof. These types of determinations would typically be made by the Claremont Architectural Commission. Additionally, an area zoned for mixed use could require that a decision be made about what balance of residential and commercial units would be included, and therefore become a subjective standard.

According to the National Multifamily Housing Council’s Housing Affordability Toolkit, effective by-right development policy relies on a rule-based approval process. A typical by-right development will skip the city’s entitlement process entirely, meaning no architectural or planning commission approvals and no vote by the city council.

Regarding Larkin Place, the developer, Jamboree Housing Corporation, agreed to allow the project to be reviewed by the architectural commission in part because the company prefers to get buy-in from the community, including elected officials, rather than relying on by-right guarantees from the state, Jamboree’s Chief Development Officer Michael Massie said in May.

Larkin Place’s by-right status falls under the rules established by California’s Housing Accountability Act, which first became law in 1982 but was amended and strengthened in 2017. That law says in part: “The lack of housing, including emergency shelters, is a critical problem that threatens the economic, environmental, and social quality of life in California.”

One key issue lawmakers were attempting to address is a decades-long failure in California to construct enough housing to keep up with a growing population. Even though that population growth has leveled off, there remains pent up demand and limited supply, which has resulted higher housing costs for both would-be renters and buyers.

A December 2021 report from the Public Policy Institute of California, which analyzed 2020 Census data, found the state added 3.2 times more people than housing units over the past 10 years, and there are now 2.93 Californians for every occupied housing unit. The study further reported that the greatest cost increase by percentage occurred in California’s inland communities, which includes Claremont.

“California housing has become the most expensive in the nation. The excessive cost of the state’s housing supply is partially caused by activities and policies of many local governments that limit the approval of housing, increase the cost of land for housing, and require that high fees and exactions be paid by producers of housing,” according to the text of the Housing Accountability Act.

As that quote clearly illustrates, Sacramento believes much of the blame for the high cost of California housing lies in the many times cities have denied proposed housing projects. The strengthened Housing Accountability Act aims to streamline the approval process by removing obstacles local jurisdictions use to derail a project. If a builder’s proposed project can check all of the boxes for complying with existing objective standards, then the local jurisdiction must approve the development.

The law states that 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 requirement; the project would have a specific, adverse impact on the public health or safety, and there is no feasible method to mitigate or avoid this impact; the denial of the housing development is required to comply with specific state or federal laws; the proposed project is on land zoned for agriculture or resource preservation; the housing development is inconsistent with both the jurisdiction’s zoning ordinance and general plan land use designation as specified in any element of the general plan.

Larkin Place’s density at 33 units, plus the four-story structure, exceeds the zoning standards for the lot. However, because the plan calls for 100% affordable units, it qualified for an automatic 80% density bonus. Clark said that when a project qualifies for a density bonus that becomes an objective standard.

Furthermore, because the tract is zoned institutional residential, and has been identified by the city in its housing element for a number of years as an ideal location for affordable housing, this further solidifies it as a location where the state code prevails.

The location of Larkin Place, 731 Harrison Ave., is another aspect of the development which is out of the control of local officials because it is the spot the developer has selected for the project in its application.

On August 12, the California Department of Housing and Community Development sent a letter to City Manager Adam Pirrie informing him that the city had violated the HAA when the city council rejected an easement over the parking lot at Larkin Park that was to be used for access to the development. The city has until September 12 to respond to the state’s complaint.

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