Staedler: With SB 9 legislative confusion, let’s shelve Opportunity Housing

The San Jose Planning Commission held a study session last Wednesday to discuss the contentious item of SB 9 and Opportunity Housing. City staff did the best they could to describe the impacts of SB 9 and the amount of housing that potentially could be developed with this legislation. There is a long list of disappointing items that came from this poorly written piece of legislation. It requires a large amount of interpretation by planning employees and the state will not provide guidance until next February.

The first disappointing item is that the applicant must “attest that they plan to live on one of the lots for at least three years.” This opens up a loophole for an applicant to sign the attestation and then make an excuse for not living there without any recourse by the city for enforcing this requirement.

Why would legislation be written this way? “Plan to live” seems like a purposefully written way to bait and switch the true intent of this legislation. Affordable housing covenants clearly state the affordability levels with clear income limits. They don’t say “intend to provide” affordable housing to certain income levels. I would like for the writer of this part of the legislation to stand up and explain themselves for this.

Another requirement is the applicant will not be allowed to develop a parcel occupied by a tenant in the last three years. How is that going to be enforced? Another attestation without any enforcement capability? This has the potential for large amounts of displacement of renters by property owners with the financial capability to build extra units without any financing.

An additional requirement is the applicant cannot subdivide adjoining lots. What if the applicant creates multiple, single-purpose entity LLCs for adjacent lots? Those entities will be deemed different from applicants. The city will not dig into ownership structures and a long list of due diligence, they will just process the application.

The study session also highlighted that most parcels are too small to feasibly subdivide. Per the Terner Center for Housing Innovation, UC Berkeley: “Of 331,000 single-family parcels in Santa Clara County, Terner Center estimates 30,500 are market-feasible for new units.”

The implementation of SB 9 is going to be difficult for city staff. California should have done a better job drafting this legislation, but again they leave it open to interpretation and potential litigation.

With all of that being said, I believe San Jose should shelve Opportunity Housing. We need to honor the intent of the 2040 General Plan and get back to the business of getting urban village plans approved and implemented. Staff time would be better spent on larger development projects and ultimately updating California Environmental Quality Act documents for North San Jose housing projects when allowed.

I wish everyone a happy holidays as we enter December. Onward and upward!

San José Spotlight columnist Bob Staedler is vice chair of the Santa Clara County 2021 Advisory Redistricting Commission, and a principal at Silicon Valley Synergy, a San Jose-based land use and development consulting firm. His columns appear every first Monday of the month. Contact Bob at [email protected] or follow @BobStaedler on Twitter.