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By Douglas Moran

How Bad Policy Happens

Uploaded: Jul 25, 2014

Failure to lay proper groundwork for deliberations is a common cause of bad decisions. Sometimes this failure is simply ineptness, and sometimes it is a deliberate tactic by advocates to avoid scrutiny of their position. A developing example of this is a proposal to make substantial, far-reaching, long-term changes to the Housing Element of the City's Comprehensive Plan. Although this is complex proposal with highly technical aspects, only its text has been made available. There is no explanation of the intent of the various components, nor the data to understand the likely consequences, ? Despite this failure to provide the necessary groundwork, a special meeting of the citizens' advisory group ("Community Panel") has been called.(foot#1) A common pattern is for such a meeting to be misrepresented as having gotten meaningful input from a wide range of stakeholders in order to move the proposal forward. When residents finally get the information and time needed to understand what is being proposed, they are too often told that they are "too late" and admonished for not becoming involved at the proper stage of the process.

As an illustration, I am going to step through this proposal.(foot#2) (foot#3) The authors of the proposal are two prominent affordable housing advocates who are among the (appointed) members of the Community Panel.(foot#4)
The Comprehensive Plan is structured into three basic levels: "Goals", "Policies" and "Programs". "Goals" are broad, abstract statements of intent. "Policies" provide specificity to the "Goals". "Programs" describe how the "Policies" are to be implemented. In the excerpts from the proposed changes, bold text indicates changed and added passages. Please bear with me on the limited formatting capabilities of the blogging package on this site.

The reader can get the gist from the first couple of examples. Masochists may want to read to the end.

1. "H1 Goal: Change language: Maintain the unique character of residential neighborhoods while accommodating the need for more housing in appropriate locations."

When proposing a change of wording, it is inexcusable to not use the feature long available in text formatting programs to have strike-out/through text to show what has been replaced. In this case, "Maintain" is replacing "Ensure the preservation of". The change indicates an intent to greatly weaken the protection for neighborhoods, yet the authors do not indicate what they saw as the problem with the current text. But those questions pale in the face of the added text "while accommodating?": The phrase "appropriate locations" gives Staff and the Council an excuse to disregard the primary goal of this document whenever it suits them. Is this wise given their history of routinely make large concessions to developers for tiny amounts of affordable housing?

2. "H1.4 Policy: Add Program: To allow for a gradual transition from dense to less dense zones, evaluate the possible rezoning to a new transitional low-density multi-family zone or overlay for existing R-1 areas that are contiguous to multi-family and/or commercial zones."

First, the members of the Community Panel have not been provided with maps showing the locations of "multi-family and/or commercial zones". While some neighborhoods came about as large tracts of single-family (R-1) houses, there are other neighborhoods, such as mine, that have multi-family housing mixed in with the single-family homes.
Second, notice that what is to be rezoned are not the properties that are immediately contiguous, but the "R-1 areas". What do the authors mean by that?
Third, even if "area" were to somehow defined to be a small one, this would create a mechanism for progressive rezoning of R-1: Areas close to multi-family or commercial zones would be rezoned to this new zone, which is itself a multi-family zone, and this would thereby qualify the R-1 areas near it to be rezoned, and on and on. Because this would seem to offer a bonanza to developers who have the influence and knowledge to work the system, this proposed change could provoke substantial redevelopment and densification of the existing R-1 areas.
Recognize that both authors of this proposal have considerable expertise and experience with planning, zoning and the Comprehensive Plan, and advertise themselves that way. I find it implausible that they would not have considered the issues I raised above.

3a. "H2: Add Policy: Heighten community awareness regarding the social and environmental values of maintaining economic diversity in our City by providing affordable and mixed income higher-density housing along transit corridors and other appropriate locations."
3b. "H2: Add Program: Continue to provide information to the community via all forms of media regarding the need for affordable housing, the financial realities of acquiring land and building affordable housing and the reasons why affordable housing projects need to be higher density."

Although this talks of "provid[ing information", my expectation is that it will be used to proselytize for a very narrow political viewpoint. Given that the City Manager acknowledges that Staff Reports advocate for positions (foot#5) and have been widely criticized for doing so, why compound the problem? And if you need further convincing, consider the political dynamics of the Maybell-Clemo project that caused the critics to decide that a referendum is needed (that dynamic has been discussed extensively elsewhere on this website and is off-topic for this blog). I was told that at an an earlier meeting of the Community Panel, one of the authors of this proposal (Packer) wanted to include in the revised Housing Element that "residents' attitudes" were an obstacle to building affordable housing,(foot#6) but that Staff nixed that.

4. "H2: Add Program: Consider amending the Zoning Code to add an Affordable Housing Overlay zone."

Explanation: A zoning overlay allows special rules to be applied to a particular area of an underlying zone (thereby avoiding a messy proliferation of the basic zoning categories). These rules can either add restrictions or allow additional uses. For example, residents of some neighborhoods that were built as single-story houses have chosen to have a "Single Story Overlay" to preserve that characteristic. For example, there are overlays for hotels, churches, auto dealerships ? that allow them to be located where the underlying zoning wouldn't.
No explanation has been offered for what an "Affordable Housing Overlay" zone would be. I have searched the City's website and found a few mentions of this term, but no hint of what they see as a problem, or what sort of rules are being considered.
This is likely to set off alarm bells for anyone with experience in a bureaucratic organization, and for many managers: A vague agreement in principle can be recast as a commitment to approve or support the details of whatever results.

5. "H2.1 Policy: Change the last sentence: Emphasize and encourage the development of affordable and mixed income housing to support the City's fair share of the regional housing needs and to ensure that the City's population remains economically diverse."

No explanation has been offered for the addition of "and mixed income", but notice the word "encourage". "Encourage" typically means giving developers bonuses and exemptions beyond what the zoning allows, and the value (profits) from these "encouragements" have traditionally not been tied to the value (costs) of the affordable housing. Recognize that some of these "encouragements" are mandated by the State of California, and some are Palo Alto choices.
Since the City already encourages mixed-income housing in the form of BMR (Below Market Rate a.k.a. "affordable") housing as part of Market-Rate housing developments, what is the purpose of this addition? Are we to provide bonuses to developers who build a mix of Market-Rate (for-profit) units in a development? Seems far-fetched, except when you consider local history. Palo Alto's Planning staff has time and again misused, distorted and misrepresented the Zoning Ordinance and the CompPlan to benefit developers. We would be crazy not to be paranoid about this happening again.

Now about "to ensure that the City's population remains economically diverse": The City doesn't have the legal power or financial resources to achieve this. But don't dismiss this as a meaningless, feel-good statement. Instead view it as opening the door for demands for programs that their advocates will claim will address the problem.

6. "H2.1.1 Program: Change language: To allow for higher density residential development, amend the Zoning Code to permit high-density residential in mixed or single use projects in commercial areas within one-half mile of fixed rail stations and within one-quarter mile of transit [nodes along El Camino Real and San Antonio Road, ?."

The first set of changes effective convert the "consider" of the current version ("Consider amending the zoning code to allow high density residential in mixed ?") to "do it". Both the proposal's authors know from their long involvement in planning issues that mixing housing and commercial can be quite complex, and that some situations can be very destructive of commercial operations, including forcing businesses to close or to leave the area. They also know from the extensive discussions on protecting ground-floor retail that single-use housing projects (buildings that are all housing) can damage the vitality of retail in an area by reducing its density. Yet they seem quite happy to ignore all this.

On the "transit nodes" on El Camino and San Antonio: The map provided to the Community Panel was from 2002 and made no/little sense to the panel member who asked me about it. I served on the Citizens' Advisory Group for the project that generated that map, and I couldn't figure it out. As I discussed in earlier entries, the dogma of assuming that housing on these streets will generate significant transit users is faith-based, and contrary to both analysis and experience.(foot#7) Furthermore, these streets are supposed to be offer retail to the nearby neighborhoods, but again single-use housing development will further disrupt those districts.

7. "H2.1.2 Program: Change language: Allow increased residential densities and mixed-use development while ensuring that urban services, amenities and roadway capacity are not overly impacted."

The current language is "where adequate urban services and amenities, including, traffic capacity, are available." Quite the change. The current version is already quite weak because the City routinely finds ways to declare that projects will have "no significant impact", but at least that is something residents can challenge. "Not overly impacted" is essentially a declaration of "Anything goes."

8. "H2.1.3 Program: Change language: Amend the Zoning Code to increase the minimum density in all multi-family zoning districts as follows: the minimum density for RM-15 would be at least eight dwelling units per acre; the minimum density for RM-30 would be at least fifteen dwelling units per acre; the minimum density for RM-40 would be at least twenty dwelling units per acre."

The current Housing Element contains the minimum for RM-15 zones (Residential Multi-Family, up to 15 units per acre). The minimums for the higher density zones are new. The primary motivation was that developers were building well below the allowable densities because that was what was most profitable for them, and this difference made it more difficult for Palo Alto to meet the housing targets assigned by ABAG (Regional Housing Needs Assessment). A secondary motivation was that it was hoped that smaller units would mean fewer school-age children, but I don't know how that worked out. I don't know of the pros and cons of minimum densities for RM-30 and RM-40 zones.

9. "H2.1.6: Change language: Implement density bonuses and/or concessions allowing greater concessions for 100% affordable housing developments."

"Implement" was previous "Encourage" and a qualifier has been dropped: "consistent with the Residential Density Bonus Ordinance." Again, the members of the Community Panel have not been provided explanation or background information. I don't have any knowledge on this issue.

10. "H2.1.7: Add language: Develop a Transfer of Development Rights (TDR) program that is heavily weighted in favor of the development of affordable higher density housing in appropriate locations."

This seems to be intended as a change to Program H2.1.9: "Explore developing a Transfer of Development Rights (TDR) program to encourage higher density housing in appropriate locations."

The concept of TDRs is simple: Development rights that are locked onto a specific property create a use-it-or-lose it mentality that incentivizes developers to maximize each project. Allowing some transfers provides flexibility in exactly where specific development occurs and theoretically can lead to better projects. In addition to the theory-versus-practice problem, TDRs invite abuse. For example, TDRs granted to a developer for doing something that he wouldn't do anyway are "free money" (TDRs are valuable commodities), but obscures that fact from the public.

Then there is again that phrase "appropriate locations." My experience with affordable housing advocates is that virtually every location is an "appropriate location".

11. "H2.1: Add [Program as follows: To encourage the development of affordable housing, amend the Zoning Code to remove density restrictions for affordable housing projects in commercial zones along El Camino Real and San Antonio Road, while retaining the Floor to Area Ratio (FAR) requirements."

More units = smaller units. The City is apparently considering "micro-apartments" of 150-300 square feet.(foot#8)
A persistent problem has been that the City planners forget that the El Camino commercial zone is adjacent to R-1 (single family homes).

12. "H2.1: Add [Program as follows: To encourage the development of affordable housing, amend the Zoning Code to remove mixed-use requirements for 100% affordable housing projects along El Camino Real and San Antonio Road."

Again ignoring the potential for disrupting retail districts and causing problems for other commercial activities.

13. "H2.1: Add [Program as follows: To encourage the development of affordable housing, amend the Zoning Code to change the multi-family zones from RM-15 to RM-30 along Alma Street."

So it is important to increase the density of housing near transit (above), and it is important to increase the density of housing where there is little or no usable transit?

14. "H3.1 Policy: Add language: Encourage, foster and preserve diverse housing opportunities for extremely low-, very low-, low- and moderate- income households."

15. "H3.1.11 and H3.1.12: Programs: Add very low- and low- income to these programs.

Probable typo, should be H3.1.10 and H3.1.11:
H3.1.10: "Adopt a revised density bonus ordinance that allows up to a maximum zoning increase of 35 percent in density and grants up to three concessions or incentives. The density bonus ordinance will meet State standards for the provision of housing units for very low- and lower-income renters, seniors and moderate-income condominium buyers in compliance with Government Code Section 65915, et seq."
H3.1.11 "Recognize the Buena Vista Mobile Home Park as providing low- and moderate income housing opportunities. Any redevelopment of the site must be consistent with the City's Mobile Home Park Conversion Ordinance adopted to preserve the existing units. To the extent feasible, the City will seek appropriate local, state and federal funding to assist in the preservation and maintenance of the existing units in the Buena Vista Mobile Home Park."

---- Footnotes ----
1. Housing Element Community Panel Meeting: Thursday 31 July 2014, 4:30-6:30pm in the Community Room of the Lucie Stern Community Center. Open to the public, but with any comments from the public coming at the end of the meeting (typically agendized for 6:15pm).
2. The proposal involves changes and additions to Chapter 5.2 of the Housing Element (2007-2014) of the Comprehensive Plan (CompPlan). This chapter starts at numbered page 165 which in the PDF is page 175 (of 238).
3. The text of the proposal as distributed has been made available on my website because I couldn't find it on the City's site.
4.Proposal authors: Dena Mossar is currently the Vice President of the Board of the Community Working Group, and a former Palo Alto City Council member. Bonnie Packer is currently the President of the Board of Directors of Palo Alto Housing Corporation, and a former member of the Planning and Transportation Commission of the City of Palo Alto.
Although people's roles and participation in various organizations are large factors in their being appointed to the Community Panel, their participation is as individuals, and their positions do not necessarily represent those of their organizations.
5. In "Residents, developers clash over city's vision:..." (Palo Alto Weekly 2013-July-19) City Manager James Keene is reported as having acknowledged this: "The findings in the staff reports tend to support the particular staff recommendation rather than represent all views, he said." (also cited the accompanying editorial "In city that loves to plan, Palo Alto's creates cynicism").
6. This would have been in Chapter 4 "Housing Constraints", which starts on numbered page 126, which is page 135 in the PDF of the Housing Element.
7. On transit nodes: Earlier blog entry Public Transit Follies and a comment of mine (Jun 12, 2014 at 2:12 pm or search for "VTA bus") on an entry before that (The Law of Supply and XXXXXX).
8. Micro-apartments of 150-300 sqft: Mentioned in an early blog entry "Should Palo Alto really aspire to be more like a Chinese factory city?". For visualization: A typical two-car garage is at least 420 sqft. For a Volvo station wagon to just be able to fully open its doors requires a garage of just under 200 sqft (11.5 ft wide by 17 ft long). Or consider the size of single person prison cell: A sample of the range of values found by web search: 48 sqft (6x8), 84 (7x12), 140 (10x14).

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