HomeMy WebLinkAboutRichard Walker - Public Law Center (Item 5) PUBLIC + ' LAWCENTER
Providing Access tojustice For Orange County's Low Income Residents
September 7, 2021
Mayor Letitia Clark
Mayor Pro Tem Austin Lumbard
Members of the City Council
City of Tustin
CityCouncil@tustinca.org
HousingElement@tustinca.org
CC: Colin Cross, Land Use & Planning Analyst
Land Use and Planning Unit
HousingElements@hcd.ca.gov
Colin.Cross@hcd.ca.gov
RE: City of Tustin Draft 6th Cycle Housing Element
Dear Mayor Clark, Mayor Pro Tem Lumbard, and Members of the City Council,
Public Law Center("PLC")is a 501(c)(3)legal services organization that provides free
civil legal services to low-income individuals and families across Orange County. Our services
are provided across a range of substantive areas of law, including consumer, family,
immigration, housing, and health law. Additionally, PLC provides legal assistance to community
organizations. Further,the mission of our Housing and Homelessness Prevention Unit includes
preserving and expanding affordable housing. Thus, we write on behalf of individuals in need of
affordable housing in Orange County to comment on the City of Tustin ("the City") Draft 6th
Cycle Housing Element.
Government Code Section 65583 requires that a housing element consist of an
identification and analysis of existing and projected housing needs and a statement of goals,
policies, quantified objectives, financial resources, and scheduled programs for the preservation,
improvement, and development of housing.' Additionally, the housing element shall identify
adequate sites for housing, including rental housing, factory-built housing, mobilehomes, and
emergency shelters, and shall make adequate provision for the existing and projected needs of all
economic segments of the community.2
Here, we provide comment on the City's Draft 6th Cycle Housing Element that was
submitted to California Department of Housing and Community Development("HCD") for
review on July 1, 2021 in connection with the City's review of revisions of the Draft on the
agenda for the City Council meeting dated September 7, 2021. Many of our comments are in line
' Cal.Gov.Code Section 65583.
2 Cal.Gov.Code Section 65583.
601 Civic Center Drive West• Santa Ana,CA 92701-4002• (714)541-1010•Fax(714)541-5157
RE: City of Tustin Draft 6th Cycle Housing Element
September 7, 2021
p. 2
with HCD's Review Letter dated August 27, 2021 ("HCD Review Letter").3 While we recognize
that the Agenda and Staff Report for the September 7, 2021 City Council Meeting references
addressing some of the issues raised in the HCD Review Letter, it is impossible to respond to
such changes or determine if they are adequate since,to our knowledge, no copy of the revised
Draft has been made available for public review. As of the finalization and submission of this
letter, it was not available as part of the Agenda for the City Council Meeting or on the City's
website regarding the Housing Element Update. As a reminder,the "City must proactively make
future revisions available to the public, including any commenters,prior to submitting any
revisions to HCD."5
Emergency Shelters
The housing element shall include the identification of a zone or zones where emergency
shelters are allowed as a permitted use without a conditional use or other discretionary permit.6
The identified zone or zones shall include sufficient capacity to accommodate the need for
emergency shelter.7 Additionally, each local government shall identify a zone or zones that can
accommodate at least one year-round emergency shelter.$ The local government may identify
additional zones where emergency shelters are permitted with a conditional use permit.9
A local government with an existing ordinance or ordinances that comply with these
requirements shall not be required to take additional action to identify zones for emergency
shelters.10 The housing element must only describe how existing ordinances,policies, and
standards are consistent with these requirements.11
The City states that"homeless facilities are permitted by right in the MCAS Tustin Specific
Plan and are allowed throughout the remainder of the City either as an outright permitted or
conditionally permitted use depending on the number of residents in the project."12 The City has
identified a number of organizations that serve its homeless population, including several
shelters:
• Temporary Shelter,Inc.: 57 beds for men,women, and families with children;13
• Village of Hope: undetermined number of beds;14
• Laurel House: unspecified number of beds for teenagers.15
s California Department of Housing and Community Development,Letter re:Review of the City of Tustin's 61
Cycle(2021-2029)Draft Housing Element,August 27,2021 ("HCD Review Letter").
4 See https://www.tustinca.org/121141ousing-Element-Update,last checked September 7,2021.
5 HCD Review Letter,Page 13.
6 Cal.Gov.Code Section 65583(a)(4)(A).
'Cal.Gov.Code Section 65583(a)(4)(A).
'Cal.Gov.Code Section 65583(a)(4)(A).
9 Cal.Gov.Code Section 65583(a)(4)(A).
10 Cal.Gov.Code Section 65583(a)(4)(D).
" Cal.Gov.Code Section 65583(a)(4)(D).
12 Cal.Gov.Code Section 65583(a)(4)(A);Cal.Gov.Code Section 65583(a)(4)(D);City of Tustin,Draft Housing
Element 2021-2029,11-27(June 2021).
13 City of Tustin,Draft Housing Element 2021-2029,A-3(June 2021).
14 City of Tustin,Draft Housing Element 2021-2029,A-3;D-60-62(June 2021).
15 City of Tustin,Draft Housing Element 2021-2029,D-62(June 2021).
601 Civic Center Drive West• Santa Ana,CA 92701-4002• (714)541-1010•Fax(714)541-5157
RE: City of Tustin Draft 6th Cycle Housing Element
September 7, 2021
p. 3
However,the City has not described the existing ordinances that comply with the requirements
above or described how its existing ordinance and shelters can accommodate its housing need.16
The City must provide more information about its ordinance to meet this requirement or the City
must include a program to amend its zoning code within one year of adoption of the housing
element to identify zones with sufficient capacity to accommodate the housing needs of the
City's unhoused populations.
Assessing mergency Shelter Need
The need for emergency shelter shall be assessed based on the capacity necessary
to accommodate the most recent homeless point-in-time count conducted before the start of the
planning period, the need for emergency shelter based on number of beds available on a year-
round and seasonal basis, the number of shelter beds that go unused on an average monthly basis
within a one-year period, and the percentage of those in emergency shelters that move to
permanent housing solutions.17 The need for emergency shelter may be reduced by the number
of supportive housing units that are identified in an adopted 10-year plan to end chronic
homelessness and that are either vacant or for which funding has been identified to allow
construction during the planning period.18
The City only used the 2019 Point-In-Time count to determine that its homeless
population consists of 95 unsheltered and 264 sheltered people.19 However,the City has not fully
analyzed its emergency shelter need.20 First, the City does not consider the number of beds that
go unused or the percentage that move to permanent housing.21 Second, the City should consider
its ability to accommodate its sheltered homeless population. If there are limits to how long a
person may stay at a shelter, some of the sheltered individuals may become unsheltered. Third,
while the City identifies various shelters and facilities serving the unhoused populations of
Tustin, it does not analyze whether there is sufficient capacity to accommodate the individuals
identified in its Point-In-Time count.
The City does not specify how many emergency shelter beds (not including transitional
housing)there are at Village of Hope or Laurel House. In discussing Village of Hope in the
City's Review of Past Performance, the City described the Village of Hope as "a 192-unit
emergency and transitional housing project . . . at the former MCAS Tustin" and that they have
"increased their transitional housing capacity to up to 387 beds, an increase of 195 beds."22
However,the City also describes Village of Hope as providing 262 units for transitional
housing.23 The City must differentiate between emergency shelter beds and transitional housing
16 Cal.Gov.Code Section 65583(a)(4)(D).
"Cal.Gov.Code Section 65583(a)(7).
18 Cal.Gov.Code Section 65583(a)(7).
19 City of Tustin,Draft Housing Element 2021-2029,11-14(June 2021).
20 Cal.Gov.Code Section 65583(a)(7).
21 Cal.Gov.Code Section 65583(a)(7).
22 City of Tustin,Draft Housing Element 2021-2029,A-3(June 2021).
23 City of Tustin,Draft Housing Element 2021-2029,D-26(June 2021).
601 Civic Center Drive West• Santa Ana,CA 92701-4002• (714)541-1010•Fax(714)541-5157
RE: City of Tustin Draft 6th Cycle Housing Element
September 7, 2021
p. 4
units at Village of Hope to accurately determine its emergency shelter need.24 Similarly, Laurel
House is described as shelter for homeless teenagers but does not specify how many beds are
available. The City must identify the specific capacity and utilization of beds at Laurel House to
assess its emergency shelter need. Based on the limited information provided, it is impossible to
realistically determine how much of the City's homeless population is actually sheltered. The
City must reanalyze its emergency shelter need.
Multijurisdictional Agreements
A local government may satisfy all or part of its requirement to identify a zone or zones
suitable for the development of emergency shelters by adopting and implementing a
multijurisdictional agreement,with a maximum of two other adjacent communities, that requires
the participating jurisdictions to develop at least one year-round emergency shelter within two
years of the beginning of the planning period.25 The agreement shall allocate a portion of the new
shelter capacity to each jurisdiction as credit toward its emergency shelter need, and each
jurisdiction shall describe how the capacity was allocated as part of its housing element.26 Each
member jurisdiction of a multijurisdictional agreement shall describe in its housing element all
of the following:
• How the joint facility will meet the jurisdiction's emergency shelter need.27
• The jurisdiction's contribution to the facility for both the development and ongoing
operation and management of the facility.28
• The amount and source of the funding that the jurisdiction contributes to the facility.29
The aggregate capacity claimed by the participating jurisdictions in their housing elements
shall not exceed the actual capacity of the shelter.30
The City lists the Sheepfold Shelter31 as an emergency shelter that serves its unhoused
women and children survivors of domestic violence and recognizes that the shelter serves
'Village of Hope and Laurel House are both Christian-oriented programs and facilities. See
https://www.rescuemission.org/shelter/village-of-hope/(last visited August 18,2021)and https://hopcharbor.org/
(last visited August 18,2021).While we do not doubt these programs provide an important and vital service to the
community they serve,the religious affiliation of the programs limits who may access and benefit from these
services.Individuals and families who are not Christian or who do not ascribe to any faith or religion would likely
not be able to meaningfully access or benefit from these services.
25 Cal.Gov.Code Section 65583(d)(1).
26 Cal.Gov.Code Section 65583(d)(2).
2'Cal.Gov.Code Section 65583(d)(3)(A).
28 Cal.Gov.Code Section 65583(d)(3)(B).
29 Cal.Gov.Code Section 65583(d)(3)(C).
30 Cal.Gov.Code Section 65583(d)(4).
31 Additionally,the Sheepfold Shelter is a non-denominational Christian program that requires attendance to daily
Bible study and Sunday church services. As mentioned previously with regards to Village of Hope and Laurel
House,while there is no doubt this program provides an important and vital service to the community it serves,the
religious requirements and affiliation of the program limit who may access and benefit from these services.
Individuals and families who are not Christian or who do not ascribe to any faith or religion would likely not be able
to meaningfully access or benefit from these services. See https://thesheepfold.org/the-sheepfold.php?Our-Program-
5 (last visited August 18,2021).
601 Civic Center Drive West• Santa Ana,CA 92701-4002• (714)541-1010•Fax(714)541-5157
RE: City of Tustin Draft 6th Cycle Housing Element
September 7, 2021
p. 5
portions of Orange and San Bernardino counties.32 The City does not claim that there is a
multijurisdictional agreement with the other jurisdictions that use this shelter to house its
homeless population.33 Further,the City does not provide any of the information listed above that
would enable the City to count Sheepfold's beds towards its emergency shelter need pursuant to
a multijurisdictional agreement.34 Without this information,the City cannot claim that the
Sheepfold Shelter houses any of its homeless population.
Emergency Shelter Standards
The local government shall also demonstrate that existing or proposed permit processing,
development, and management standards are objective and encourage and facilitate the
development of, or conversion to, emergency shelters.35
Although the City identifies the Tustin Legacy Specific Plan and other unspecified sites
as containing zones that permit emergency shelters,the City does not indicate whether
development standards for these zones are objective.36 The City must provide the details of its
emergency shelter standards to demonstrate that they are objective and encourage and facilitate
the development of emergency shelters to comply with California law.37
Special Housing Needs
The housing element must analyze special housing needs, such as those of the elderly;
persons with disabilities,including a developmental disability;38 large families; farmworkers;
families with female heads of households; and families and persons in need of emergency
shelter.39 An analysis of special housing needs by a city or county may include an analysis of the
need for frequent user coordinated care housing services.40
The City references each group with special housing needs, but fails to fully analyze their
demographics or their housing needs.41 And while the City does identify some programs that
may be considered to address these special housing needs, such programs are inadequate and
generally vague and noncommittal.
32 City of Tustin,Draft Housing Element 2021-2029,D-60(June 2021).
33 Cal.Gov.Code Section 65583(d)(1);Cal.Gov.Code Section 65583(d)(2).
34 Cal.Gov.Code Section 65583(d)(3).
35 Cal.Gov.Code Section 65583(a)(4)(A).
36 Cal.Gov.Code Section 65583(a)(4)(A);City of Tustin,Draft Housing Element 2021-2029,11-27(July 2021).
37 Cal.Gov.Code Section 65583(a)(4)(A).
38"`Developmental disability' means a disability that originates before an individual attains 18 years of age,
continues,or can be expected to continue,indefinitely,and constitutes a substantial disability for that individual.As
defined by the Director of Developmental Services,in consultation with the Superintendent of Public Instruction,
this term shall include intellectual disability,cerebral palsy,epilepsy,and autism.This term shall also include
disabling conditions found to be closely related to intellectual disability or to require treatment similar to that
required for individuals with an intellectual disability,but shall not include other handicapping conditions that are
solely physical in nature." Cal. Welfare and Institutions Code Section 4512.
39 Cal.Gov.Code Section 65583(a)(7).
40 Cal.Gov.Code Section 65583(a)(7).
41 Cal.Gov.Code Section 65583(a)(7).
601 Civic Center Drive West• Santa Ana,CA 92701-4002• (714)541-1010•Fax(714)541-5157
RE: City of Tustin Draft 6th Cycle Housing Element
September 7, 2021
p. 6
For example, Program 1.19 Fees, Exactions, and Permit Procedures states that the City
will "consider waiving or modifying various fees or exactions normally required where such
waiver will reduce the affordability gap associated with providing housing of the elderly and for
very-low- and low-income households.42 However, the City simply states it will consider taking
certain actions then vaguely describe the actions it will take. Program 2.4 Housing for Persons
with Disabilities states that the City will "continue to work with the Regional Center for Orange
County to develop and implement an outreach program . . . that informs families within the City
of affordable housing and services available for persons with developmental disabilities."43 The
City does not explain how the outreach program will operate, such as how the City will identify
these residents.
Although the City has Program 2.5 to affirmatively further fair housing and numerous
programs generally encouraging affordable housing,the City does not specifically address how it
will assist large households that might have lower incomes, face overcrowding, and have limited
availability of adequately sized affordable units;44 female parent households that often have
lower incomes and difficulty obtaining affordable childcare, healthcare, and supportive
services;45 or farmworkers with lower incomes and are seasonally employed.46 The element
provides employment statistics for farmworkers,but fails to analyze the housing needs of this
group. Cal. Gov. Code Section 65583(c)(9)(1)(C) states that a program is necessary to provide
for sufficient sites to meet the need with zoning that permits farmworker housing use by right,
including density and development standards that could accommodate and facilitate the
feasibility of the development of farmworker housing for low- and very low income households.
In its next draft, the City must describe how it can address the needs of all its special housing
groups by making firm commitments to take a detailed set of actions.
The City must more fully analyze the required special housing populations and their
unique needs and then develop programs with specifics that actually commit the City to
addressing those needs.
Reducing RHNA By Units Built
A city may reduce its share of the regional housing need by the number of units built
between the start of the projection period and the deadline for adoption of the housing element.47
If the city does so, the city shall include a description of the methodology for assigning those
housing units to an income category based on actual or projected sales price,rent levels, or other
mechanisms establishing affordability.48
The City describes three housing developments that have been approved or entitled and
counts these units toward its RHNA.49 However, none of these units will be built between the
42 City of Tustin,Draft Housing Element 2021-2029,IV-12(June 2021).
43 City of Tustin,Draft Housing Element 2021-2029,IV-15(June 2021).
44 City of Tustin,Draft Housing Element 2021-2029,11-13(June 2021).
45 City of Tustin,Draft Housing Element 2021-2029,11-13(June 2021).
46 City of Tustin,Draft Housing Element 2021-2029,11-13(June 2021).
47 Cal.Gov.Code Section 65583.1(d).
"Cal.Gov.Code Section 65583.1(d).
49 City of Tustin,Draft Housing Element 2021-2029,B-1-2(June 2021).
601 Civic Center Drive West• Santa Ana,CA 92701-4002• (714)541-1010•Fax(714)541-5157
RE: City of Tustin Draft 6th Cycle Housing Element
September 7, 2021
p. 7
start of the projection period and the deadline for adoption of the housing element.50 Therefore,
the City cannot count any of these units toward its R14NA.51 Even if it could, the City did not
describe its methodology for assigning those housing units to an income category based on actual
or projected sales price,rent levels, or other mechanisms establishing affordability.52
Additionally,it is unclear whether some of the units,particularly those that are a part of Village
of Hope,would actually be considered units that count toward the City's RHNA, as Village of
Hope is described as a"transitional housing facility."53
Constraints
Governmental Constraints
The housing element must contain an analysis of potential and actual governmental
constraints upon the maintenance, improvement, or development of housing for all income
levels, including the types of housing identified in Section 65583(c)(1),54 and for persons with
disabilities,55 including land use controls, building codes and their enforcement, site
improvements, fees and other exactions required of developers, local processing and permit
procedures, and any locally adopted ordinances that directly impact the cost and supply of
residential development.56
The analysis shall also demonstrate local efforts to remove governmental constraints that
hinder the locality from meeting its share of the RHNA and from meeting the need for housing
for persons with disabilities, supportive housing, transitional housing, and emergency shelters.57
In addressing governmental constraints, the City discusses land use controls, fees and
improvements, building codes and enforcement, and local processing and permit procedures.58
However,the City only touches on how land use controls can be both constraints and tools for
housing and describes residential land use designations and their associated zoning and
densities.59 The City only notes that height limits may be a constraint on housing and does not
explain how the City might mitigate this constraint.60 The City continues to describe specific
plan areas, overlay zones, other types of districts, and density bonus law but does not analyze
50 Cal.Gov.Code Section 65583.1(d).
51 Cal.Gov.Code Section 65583.1(d).
52 Cal.Gov.Code Section 65583.1(d).
53 City of Tustin,Draft Housing Element 2021-2029,B-2(June 2021).
54"Housing for all income levels,including multifamily rental housing,factory-built housing,mobilehomes,
housing for agricultural employees,supportive housing,single-room occupancy units,emergency shelters,and
transitional housing." Cal. Gov. Code Section 65583(c)(1).
55"'Developmental disability' means a disability that originates before an individual attains 18 years of age,
continues,or can be expected to continue,indefinitely,and constitutes a substantial disability for that individual.As
defined by the Director of Developmental Services,in consultation with the Superintendent of Public Instruction,
this term shall include intellectual disability,cerebral palsy,epilepsy,and autism.This term shall also include
disabling conditions found to be closely related to intellectual disability or to require treatment similar to that
required for individuals with an intellectual disability,but shall not include other handicapping conditions that are
solely physical in nature." Cal. Welfare and Institutions Code Section 4512; Cal.Gov.Code Section 65583(a)(7).
56 Cal.Gov.Code Section 65583(a)(5).
57 Cal.Gov.Code Section 65583(a)(5).
58 Cal.Gov.Code Section 65583(a)(5).
59 City of Tustin,Draft Housing Element 2021-2029,11-22-23(June 2021).
60 Cal.Gov.Code Section 65583(a)(5);City of Tustin,Draft Housing Element 2021-2029,11-23(June 2021).
601 Civic Center Drive West• Santa Ana,CA 92701-4002• (714)541-1010•Fax(714)541-5157
RE: City of Tustin Draft 6th Cycle Housing Element
September 7, 2021
P. 8
constraints associated with these land use controls. Instead, the City generally claims that its
"land use regulatory mechanisms accommodate the development of housing at a range of
densities and products and do not constrain the potential for new construction at densities
suitable to meet the needs of all income ranges, although assistance may be required for units
offered at prices affordable to lower income households."61 However, the City must address how
it will mitigate the height limit constraint, analyze how its other named land use controls may be
constraints, and explain how it came to the conclusion that its land use regulatory mechanisms do
not constrain new development.
Regarding housing for persons with disabilities, the City claims that its definition of
"family" is not a constraint, that the City follows California law in developing multi-family
complexes,that the City allows residential care facilities, and that improvements for disability
accommodations only need a building permit.
The City also asserts that it"previously amended the Zoning Code to remove
governmental constraints to reasonable accommodation for the disabled. ,62 The City should
explain how it analyzed its zoning code for constraints,how it removed governmental
constraints, and whether there is any room for improvement, especially in light of Program 1.5.
Although the City claims it already removed constraints to housing in its zoning code, Program
1.5 Zoning Code Streamlining Program states the City will "evaluate and implement when
possible, zoning code amendments that will facilitate application streamlining" and "evaluate
and consider amendments to existing commercial and industrial Specific Plans for potential
inclusion of additional residential units within the respective areas."63 The City should clarify the
constraints associated with the zoning code that warrant the creation of Program 1.5 and, instead
of implementing"when possible" and"considering" amendments, the City must make
commitments to take detailed actions that address such constraints.
In addressing fees and improvements, the City states that, although"development fees are
not considered a constraint to housing," fees and site improvements "contribute to the total cost
of development," "impact the final purchase or rental price," and"can significantly add to the
cost of producing housing."64 First,the City should explain why it does not consider
development fees a constraint when they actively raise the price of housing. Second,the City
must revise Program 1.19 Fees, Exactions, and Permit Procedures, stating that the City will
"consider waiving or modifying various fees or exactions normally required where such waiver
will reduce the affordability gap associated with providing housing of the elderly and for very-
low and low-income households," to remove noncommittal language.65
The City acknowledges that building codes "have the potential to increase the cost of
housing construction and/or maintenance."66 The City attempts to justify this additional cost by
61 City of Tustin,Draft Housing Element 2021-2029,11-27-28(June 2021).
62 City of Tustin,Draft Housing Element 2021-2029,11-29(June 2021).
63 City of Tustin,Draft Housing Element 2021-2029,IV-5(June 2021).
64 City of Tustin,Draft Housing Element 2021-2029,11-30(June 2021).
65 City of Tustin,2021-2029 Housing Element Draft,IV-12(June 2021).
66 City of Tustin,2021-2029 Housing Element Draft,II-34(June 2021).
601 Civic Center Drive West• Santa Ana,CA 92701-4002• (714)541-1010•Fax(714)541-5157
RE: City of Tustin Draft 6th Cycle Housing Element
September 7, 2021
P. 9
explaining that"the City of Tustin's building codes are based on regulations necessary to protect
the public health, safety, and welfare of its residents" and that it adopted the 2019 California
Building Code with minor amendments, "none of which are expected to pose a constraint to
development."67 However,the City does not explain how its building codes protect its residents
or how it concluded the California Building Code contains no constraints to housing. Further,
Program 1.2 Objective Design Standards states that the City will adopt"objective design
standards for clarity to development community and facilitate high quality residential
development citywide."68 The City does not explain what objective design standards it will
develop or how these standards will address any of the constraints discussed and must do so in
its next draft.
Regarding local processing and permit procedures, the City explains that"the evaluation
and review process required by the City procedures contributes to the cost of housing" and that
"City policies provide for the minimum processing time necessary to comply with legal
requirements and review procedures" according to State law.69 Although the City does not
analyze how this process acts as a constraint on housing, Part of Program 1.11 Development and
Permit Streamlining states that the City will "use technology and revise internal processes to
reduce processing time, which in turn reduces development costs."70 If the City did not consider
its process a constraint, this program would not be necessary. The City must conduct a full
analysis of its process and procedures, explain how they act as constraints, and specifically
address how Program 1.11 and other programs can mitigate the constraints.
The City also identifies "the number of staff and amount of staff time available for
processing development projects" as a governmental constraint and explains that"since the
workload is determined by outside and uncontrolled forces (economy and market for housing
and availability of general fund revenue), a shortage of staff time may occur which could lead to
increased processing time for development projects.,,71 However the City does not explain how it
can mitigate this constraint in any of its programs and must do so as it revises its Draft.
Nongovernmental Constraints
The housing element must also analyze potential and actual nongovernmental constraints
upon the maintenance, improvement, or development of housing for all income levels, including
the availability of financing, the price of land, the cost of construction, the requests to develop
housing at densities below those anticipated in the analysis required by Section 65583.2(c), and
the length of time between receiving approval for a housing development and submittal of an
application for building permits for that housing development that hinder the construction of a
locality's share of the RHNA.72
67 City of Tustin,2021-2029 Housing Element Draft,II-34(June 2021).
68 City of Tustin,2021-2029 Housing Element Draft,IV-4(June 2021).
69 City of Tustin,2021-2029 Housing Element Draft,II-34(June 2021).
70 City of Tustin,2021-2029 Housing Element Draft,IV-8(June 2021).
71 City of Tustin,2021-2029 Housing Element Draft,II-35-36(June 2021).
72 Cal.Gov.Code Section 65583(a)(6).
601 Civic Center Drive West• Santa Ana,CA 92701-4002• (714)541-1010•Fax(714)541-5157
RE: City of Tustin Draft 6th Cycle Housing Element
September 7, 2021
P. 10
The analysis shall also demonstrate local efforts to remove nongovernmental constraints
that create a gap between the locality's planning for the development of housing for all income
levels and the construction of that housing.73
In addressing nongovernmental constraints,the City discusses construction costs, land
costs, and availability of financing.74 Here, the City discussed how the high cost of construction
materials can be a constraint for building affordable housing but claims that costs can be reduced
by reducing the amount of amenities to a number that is just above the minimum needed for
"health, safety, and adequate performance."75 The City does not describe what amenities will not
be included and should include information on how the reduced amenities will still provide a
sufficient quality of life to residents in the units. The City also claims that"raw land and
improvement costs comprise approximately 40-50 percent of the total development costs of a
residential unit," and that land costs have increased, which can make homeownership
unattainable for some people.76 Although the City claims that the land costs are more a function
of the site than the jurisdiction, it does not include any additional information about steps it will
take to ensure that high land costs do not increase the rent or associated costs for residents.77
Finally,the City claims that variable rate mortgages can cause a constrained housing
market and raise prices and includes tables showing the change in median home prices for Tustin
and other jurisdictions from Q2 2019 to Q2 2020, which are often"out of reach of Tustin's low
and very low-income households."78 However,the City does not include any information about
how they plan to ensure that these variable rates do not create home prices that are too high for
lower income residents. The City also simply mentions that credit worthiness plays in home-
ownership by forcing those with poor credit to accept higher interest rates or insufficient loan
amounts.79 It does not discuss how it will address these issues. The City must provide more
details about these constraints on housing and describe specific actions it will take to address
them.80
Site Inventory
The housing element must include an inventory of land suitable and available for
residential development, including vacant sites and sites having realistic and demonstrated
potential for redevelopment during the planning period to meet the locality's housing need for a
designated income level.81
73 Cal.Gov.Code Section 65583(a)(6).
74 Cal.Gov.Code Section 65583(a)(6);City of Tustin,2021-2029 Housing Element Draft,II-18(June 2021).
75 City of Tustin,2021-2029 Housing Element Draft,II-18(June 2021).
76 City of Tustin,2021-2029 Housing Element Draft,II-19(June 2021).
77 Cal.Gov.Code Section 65583(a)(6).
78 City of Tustin,2021-2029 Housing Element Draft,II-20(June 2021).
79 City of Tustin,2021-2029 Housing Element Draft,II-21 (June 2021).
80 Cal.Gov.Code Section 65583(a)(6).
81 Cal.Gov.Code Section 65583(a)(3);Cal.Gov.Code Section 65583.2(a).
601 Civic Center Drive West• Santa Ana,CA 92701-4002• (714)541-1010•Fax(714)541-5157
RE: City of Tustin Draft 6th Cycle Housing Element
September 7, 2021
P. 11
Determining Site Capacity
Based on the information provided in the site inventory, a city or county shall determine
whether each site in the inventory can accommodate the development of some portion of its
share of the regional housing need by income level during the planning period.82
To determine the number of housing units that can be accommodated on each site when
local law or regulations require the development of a site at a minimum density, the HCD shall
accept the planning agency's calculation of the total housing unit capacity based on the
established minimum density.83
To determine the number of housing units that can be accommodated on each site when
the jurisdiction does not adopt a law or regulation requiring the development of a site at a
minimum density, the jurisdiction shall demonstrate how the number of units determined for that
site will be accommodated.84
The number of units that can be accommodated on each site shall be adjusted as
necessary based on the potential and actual governmental constraints upon maintenance,
improvement, or development of housing, including land use controls and site improvements; the
realistic development capacity for the site; typical densities of existing or approved residential
developments at a similar affordability level in that jurisdiction; and the current or planned
availability and accessibility of sufficient water, sewer, and dry utilities.85
Because the City does not adopt a law or regulation requiring the development of a site at
a minimum density,the jurisdiction must demonstrate how the number of units determined for
that site will be accommodated.86 Here, the City appears to use a"defined default density" of 30
du/ac when calculating the expected capacity of each of its sites.87 However,the City does not
explain how it calculates the number of units that can be accommodated on each listed site, and
does not address any of the other required factors.88 Instead, the City merely claims that"[all] 16
identified sites to meet RHNA have appropriate zoning to allow residential development, at
densities to achieve the estimated capacities and,without inhibitors, such as stringent standards,
that inhibit residential development."89 In particular,when discussing Site 2, the City describes
housing currently built within the Site area, but does not discuss the density of the existing
housing, or make any connection between current density in the area and expected future
density.90 The City must provide actual analysis regarding how it determined the site capacity of
each of its sites in its next draft, including analysis regarding constraints.
82 Cal.Gov.Code Section 65583.2(c).
83 Cal.Gov.Code Section 65583.2(c)(1).
'Cal.Gov.Code Section 65583.2(c)(1).
85 Cal.Gov.Code Section 65583.2(c)(2).
86 Cal.Gov.Code Section 65583.2(c)(1).
87 City of Tustin,2021-2029 Housing Element Draft,B-13(June 2021).
88 Cal.Gov.Code Section 65583.2(c)(2).
89 City of Tustin,2021-2029 Housing Element Draft,B-12(June 2021).
90 City of Tustin,2021-2029 Housing Element Draft,B-5(June 2021).
601 Civic Center Drive West• Santa Ana,CA 92701-4002• (714)541-1010•Fax(714)541-5157
RE: City of Tustin Draft 6th Cycle Housing Element
September 7, 2021
p. 12
In addition, the City provides a chart, titled "Sites to Meet RHNA Estimated Income
Distribution Reference."91 This chart explains how very-low-income,low-income,moderate-
income, and above-moderate-income units will be distributed among Sites IA, 113, 2, 3-6
(grouped together), and 7-16 (grouped together).92 However, the City fails to designate any units
for extremely-low-income housing. Without this information, it is impossible to determine
whether the City will be able to meet its housing needs for all income levels.
Lastly, it is impossible to determine how the City will allocate units because the City
groups several sites together in its chart, and many of these sites also contain multiple lots. For
example,the City states that Sites 3, 4, 5, and 6 will accommodate 168 very-low-income units,
30 low-income units, 83 moderate-income units, and 219 above-moderate-income units.93
Together, Sites 3 through 6 contain twelve individual parcels; the City does not provide any
information regarding how units are distributed among these parcels. The City must provide
further information regarding how it will distribute housing for all income levels among its sites,
and among the lots within each site, in its next draft.
Site Inventory
The inventory of land must include the following: (1) a listing of properties by assessor
parcel number;94 (2)the size of each property;95 (3)the general plan designation and zoning of
each property;96 (4) a description of existing or planned water, sewer, and other dry utilities
supply, the availability and access to distribution facilities;97 (5)whether the utilities are
available and accessible to support housing development or if there is an existing general plan
program or other mandatory program or plan, including a program or plan of a public or private
entity providing water or sewer service,to secure sufficient water, sewer, and dry utilities supply
to support housing development;98 (6) a map that shows the location of the sites included in the
inventory;99 (7)the number of units that can realistically be accommodated on that site;100 and
(8)whether the site is adequate to accommodate lower income housing,moderate-income
housing, or above moderate-income housing.101
The City's site inventory is incomplete. First, the City fails to include assessor parcel
numbers for the lots within Site 113.102 Second,the City lists zoning designations for each larger
project, not for individual parcels.103 Third, the City does not describe existing or planned
utilities for any of the sites within its inventory.104 Fourth,while the City does provide maps
91 City of Tustin,2021-2029 Housing Element Draft,B-10(June 2021).
92 City of Tustin,2021-2029 Housing Element Draft,B-10(June 2021).
93 City of Tustin,2021-2029 Housing Element Draft,B-10(June 2021).
'Cal.Gov.Code Section 65583.2(b)(1).
95 Cal.Gov.Code Section 65583.2(b)(2).
96 Cal.Gov.Code Section 65583.2(b)(2).
9'Cal.Gov.Code Section 65583.2(b)(5)(A-B).
98 Cal.Gov.Code Section 65583.2(b)(5)(A-B).
99 Cal.Gov.Code Section 65583.2(b)(7).
100 Cal. Gov.Code Section 65583.2(c).
101 Cal.Gov.Code Section 65583.2(c).
102 Cal.Gov.Code Section 65583.2(b)(1);City of Tustin,2021-2029 Housing Element Draft,B-16(June 2021).
103 Cal.Gov.Code Section 65583.2(b)(2).
104 Cal.Gov.Code Section 65583.2(b)(5)(A-B).
601 Civic Center Drive West• Santa Ana,CA 92701-4002• (714)541-1010•Fax(714)541-5157
RE: City of Tustin Draft 6th Cycle Housing Element
September 7, 2021
p. 13
showing the location of each site included in the inventory, the maps are low-resolution and
difficult to read.105 Moreover,the maps do not specify which APN(when applicable) is assigned
to which lot within the map. It is generally possible to determine which APN is assigned to
which lot by comparing acreages: for example, the map for Site 1A106 does not specify which
APN is assigned to which lot, but this information is possible to deduce since the acreage varies
from 0.002 to 36.17, and the lots are clearly different sizes.107 However,the maps should specify
this information without the reader having to make their own deductions and calculations. Fifth,
the City does not provide the number of units that can realistically be accommodated on each
parcel but allocates capacity based on the larger site.108 Finally,because the City does not assign
sites to individual parcels,it cannot assign these sites to income levels.109 The City must provide
the requisite information for each individual parcel in its next draft.
Lower Income Sites
If a jurisdiction designates sites that have been previously identified, sites smaller than
half an acre, or sites larger than ten acres to accommodate its lower income housing needs, the
sites must satisfy extra criteria.110
Previously Identified Sites
A vacant site that has been included in two or more consecutive planning periods that
was not approved to develop a portion of the locality's housing need cannot be deemed adequate
to accommodate a portion of the housing need for lower income households unless the site is
zoned at an appropriate density and the site is subject to a program in the housing element
requiring rezoning within three years of the beginning of the planning period to allow residential
use by right for housing developments in which at least 20% of the units are affordable to lower
income units.111
City identified Sites 113, 2, 11, and 12 to accommodate its RHNA.112 The lots within
these Sites are vacant, and were included in the 4th and 5th cycle planning periods and were not
approved to develop a portion of the City's 5th Cycle RHNA.113 These sites cannot be deemed
adequate to accommodate a portion of the City's lower income RHNA unless the site is zoned as
an appropriate density and the site is subject to a program in the housing element requiring
rezoning within three years of the beginning of the planning period to allow residential use by
right for housing developments in which at least 20% of the units are affordable to lower income
units.114 However, it is unclear whether these sites were zoned at an appropriate density. The
City must identify appropriate densities for each site in its next draft to keep these sites on its
inventory.
105 Cal.Gov.Code Section 65583.2(b)(7).
106 City of Tustin,2021-2029 Housing Element Draft,B-24(June 2021).
107 City of Tustin,2021-2029 Housing Element Draft,B-16(June 2021).
108 Cal.Gov.Code Section 65583.2(c).
109 Cal.Gov.Code Section 65583.2(c).
110 Cal.Gov.Code Section 65583.2(c).
111 Cal.Gov.Code Section 65583.2(c).
112 City of Tustin,2021-2029 Housing Element Draft,B-16 to-20(June 2021).
113 Cal.Gov.Code Section 65583.2(c).
114 Cal.Gov.Code Section 65583.2(c).
601 Civic Center Drive West• Santa Ana,CA 92701-4002• (714)541-1010•Fax(714)541-5157
RE: City of Tustin Draft 6th Cycle Housing Element
September 7, 2021
p. 14
Site Size
If a site is smaller than half an acre or larger than ten acres, it cannot be deemed adequate
to accommodate lower income housing unless the locality can demonstrate that sites of an
equivalent size were successfully developed during the prior planning period for an equivalent
number of lower income housing units as projected for the site.115 Alternatively, the locality may
provide other evidence to HCD that the site is adequate to accommodate lower income
housing.116
The City identified several sites smaller than half an acre:117
• Site 1A,APN 430-381-38
• Site 2,APN 430-391-59
• Site 2,APN 430-391-60
• Site 3,APN 500-141-09
• Site 4,APN 500-022-09
• Site 6,APN 432-041-17
• Site 6,APN 432-041-14
• Site 9,APN 401-583-01
• Site 9,APN 401-583-15
• Site 10,APN 401-601-05
• Site 10,APN 401-601-06
• Site 10,APN 401-601-07
• Site 10,APN 401-601-09
• Site 11,APN 401-584-04
• Site 11,APN 401-584-05
• Site 11,APN 401-584-06
• Site 11, APN 401-584-07
• Site 11,APN 401-584-08
• Site 11,APN 401-584-09
• Site 13,APN 401-573-13
• Site 14,APN 401-622-18
• Site 15,APN 432-074-08
• Site 16,APN 401-631-13
• Site 17,APN 500-071-12
These sites cannot be deemed adequate to accommodate lower income housing unless the
locality can demonstrate that sites of an equivalent size were successfully developed during the
prior planning period for an equivalent number of lower income housing units as projected for
the site or can provide other evidence to HCD that the sites are adequate to accommodate lower
income housing.'18 The City does not provide any analysis regarding sites of equivalent size, or
any other evidence that the site is adequate, such as developer interest or similar uses on adjacent
lots. In particular, regarding the small site within Site IA, the City cites a recently entitled
115 Cal.Gov.Code Section 65583.2(c)(2).
16 Cal.Gov.Code Section 65583.2(c)(2).
117 City of Tustin,2021-2029 Housing Element Draft,B-16 to-21 (June 2021).
118 Cal.Gov.Code Section 65583.2(c)(2).
601 Civic Center Drive West• Santa Ana,CA 92701-4002• (714)541-1010•Fax(714)541-5157
RE: City of Tustin Draft 6th Cycle Housing Element
September 7, 2021
p. 15
market-rate development in neighboring Site IB.119 However, one market-rate development is
not evidence that the area can support non-market-rate, low-income housing.
The City also identified several sites larger than ten acres:120
• Site IA,APN 430-381-95
• Site 113, Tract 18197 (25.437 acres)
• Site 113, Tract 18197 (19.424 acres)
• Site 2,Unidentified parcel (46.748 acres)
• Site 2,APN 430-391-03
• Site 10,APN 401-601-01
Again, these sites cannot be deemed adequate to accommodate lower-income housing
unless the locality can demonstrate that sites of an equivalent size were successfully developed
during the prior planning period for an equivalent number of lower income housing units as
projected for the site or can provide other evidence to HCD that the sites are adequate to
accommodate lower income housing.121 Since the City does not provide the requisite evidence or
provide any analysis regarding how it plans to ensure that these large lot sizes will accommodate
low-income housing,these sites cannot be deemed adequate to accommodate lower-income
housing. The City must provide extensive analysis regarding both small and large lot sizes in its
next draft, and provide evidence that these sites are adequate to support low-income housing.
Calculating the Number of Lower Income Units
In determining site capacity for lower income units, the City has not explicitly met either
of the following requirements: (1)provide an analysis demonstrating how the adopted densities
accommodate this need, including,but not limited to, factors such as market demand, financial
feasibility, or information based on development project experience within a zone or zones that
provide housing for lower income households;122 or(2) fall into a density deemed appropriate to
accommodate housing for lower income households.123 The City must provide the requisite
analysis or clarify whether sites for lower income units fall into the appropriate residential
density.
Nonvacant Sites
If a jurisdiction designates a site that is nonvacant, it must describe the existing use of the
property-124 If a nonvacant site is owned by the city or county, the description shall also include
whether there are any plans to dispose of the property during the planning period and how the
city or county will comply with the Surplus Lands Act.125
119 City of Tustin,2021-2029 Housing Element Draft,B-4(June 2021).
120 City of Tustin,2021-2029 Housing Element Draft,B-16 to-19(June 2021).
121 Cal.Gov.Code Section 65583.2(c)(2).
122 Cal.Gov.Code Section 65583.2(c)(3)(A).
123 Cal.Gov.Code Section 65583.2(c)(3)(B).
124 Cal.Gov.Code Section 65583.2(b)(3).
125 Cal.Gov.Code Section 65583.2(b)(3).
601 Civic Center Drive West• Santa Ana,CA 92701-4002• (714)541-1010•Fax(714)541-5157
RE: City of Tustin Draft 6th Cycle Housing Element
September 7, 2021
p. 16
For nonvacant sites,the jurisdiction shall specify the additional development potential for
each site within the planning period and explain the methodology used to determine the
development potential.126 The methodology shall consider multiple factors, including: (1)the
extent to which existing uses may constitute an impediment to additional residential
development; (2)the jurisdiction's past experience with converting existing uses to higher
density residential development; (3)the current market demand for the existing use; (4) an
analysis of any existing leases or other contracts that would perpetuate the existing use or
prevent redevelopment of the site for additional residential development; (5)development trends;
(6)market conditions; and(7)regulatory or other incentives or standards to encourage additional
residential development on these sites.127
First, the City has not identified the existing uses for each individual parcel and must do
so to allow for a more accurate analysis of sites.128
Second,the City identifies one nonvacant site that is owned by the City as available to
accommodate its housing need.129 The City states that the building currently occupying this lot,
the Tustin War Memorial, is "currently vacant and permanently closed."130 However, the City
does not explicitly state whether it will dispose of the property during the planning period, and
does not state if or how the city will comply with the Surplus Lands Act.131 To continue using
this site to meet its RHNA needs, the City must specifically state how it plans to comply with the
Surplus Land Act; particularly, how it plans to dispose of the property on the site during the
planning period.
Third,the City identifies several other nonvacant sites within Sites 4, 5, 6, 7, 8, 9, 10, 16,
and 17, but does not specify the additional development potential or explain the methodology it
used to determine the potential.132 For example, Site 4 is within the Red Hill Avenue Specific
Plan (RHASP)Area.133 Sites within this area are "prime for revitalization," because while
currently it is primarily a commercial and retail corridor, mixed-use residential is now allowed in
the area.134 However,while the city does specify the additional development potential for Site 4,
and claims that there have been "development interest discussions" in the past regarding the site,
the City does not explain its methodology, or consider any of the required factors mentioned
above.135
The City must address how it plans to address and quantify the additional development
potential of the multiple nonvacant sites it claims will be suitable to accommodate its housing
needs. Moreover, the City must provide robust analysis regarding the methodology it uses to
126 Cal.Gov.Code Section 65583.2(g)(1).
127 Cal.Gov.Code Section 65583.2(g)(1).
128 Cal.Gov.Code Section 65583.2(b)(3).
129 City of Tustin,2021-2029 Housing Element Draft,B-19(June 2021).
130 City of Tustin,2021-2029 Housing Element Draft,B-8(June 2021).
131 Cal.Gov.Code Section 65583.2(b)(3).
132 Cal.Gov.Code Section 65583.2(g)(1).
133 City of Tustin,2021-2029 Housing Element Draft,B-5 to-6(June 2021).
134 City of Tustin,2021-2029 Housing Element Draft,B-5(June 2021).
135 Cal.Gov.Code Section 65583.2(g)(1).
601 Civic Center Drive West• Santa Ana,CA 92701-4002• (714)541-1010•Fax(714)541-5157
RE: City of Tustin Draft 6th Cycle Housing Element
September 7, 2021
p. 17
quantify the development potential. The City should provide this data in its draft; otherwise,it
should remove these sites from its RHNA.
Presumption of Impeding Additional Residential Development
An existing use shall be presumed to impede additional residential development, absent
findings based on substantial evidence that the use is likely to be discontinued during the
planning period.136
Here, the City has failed to overcome the presumption that the existing uses impede
residential development because it has not provided substantial evidence that the existing uses
are likely to be discontinued during the planning period.137 First,regarding Sites 4 and 5,which
are under the same ownership, the City claims that"[past] development interest discussions have
ensued with the owners, interested developers and the City regarding this property."138 However,
nebulous assertions of past"interest," without any timeline for development or other quantifiable
goal, is insufficient evidence that the current property use is likely to be discontinued. Site 6 also
has current residential uses, and the City says there is currently a"shopping center with
commercial, retail, restaurants and service stations (only one active)" on the lot.139 While only
one service station being active may imply a certain amount of inactivity, it is not enough to
compensate for the fact that the lot is still being actively used. Second, Sites 7 and 8 are currently
occupied by a physical therapy business and a hotel, respectively,140 and while the City says that
a major tenant on the lot in Site 10 vacated in 2015-2016,141 it does not mention what, if
anything,will become of the other current commercial tenants in Site 10. Lastly, regarding Site
16, the City mentions "significant owner and developer interests" and previous mixed-use
residential plans submitted to the City,but does not provide any substantial evidence that the
current commercial activity on the site will cease during the planning period.142 The City has
failed to provide any convincing evidence that the owners of these properties will cease their
existing uses, and it seems very unlikely that these properties will be actually available for
residential use. The City must provide evidence that these properties' existing uses will not
impede residential development or remove the sites from its next draft.
Accessory Dwelling Units
A jurisdiction may count an ADU for purposes of identifying adequate sites for
housing.143 The number of ADUs identified is based on the number of ADUs developed in the
prior housing element planning period, whether or not the units are permitted by right; the need
for these units in the community; the resources or incentives available for their development; and
any other relevant factors determined by HCD.144 To estimate the number of ADUs that will be
developed in the planning period, a jurisdiction must generally use a three-part approach
136 Cal.Gov.Code Section 65583.2(g)(2).
137 Cal.Gov.Code Section 65583.2(g)(2).
138 City of Tustin,2021-2029 Housing Element Draft,B-6(June 2021).
139 City of Tustin,2021-2029 Housing Element Draft,B-6(June 2021).
loo City of Tustin,2021-2029 Housing Element Draft,B-7(June 2021).
141 City of Tustin,2021-2029 Housing Element Draft,B-8(June 2021).
142 City of Tustin,2021-2029 Housing Element Draft,B-9(June 2021).
143 Cal.Gov.Code § 65852.2(m);Cal.Gov.Code §65583.1(a).
144 Cal.Gov.Code Section 65583.1(a).
601 Civic Center Drive West• Santa Ana,CA 92701-4002• (714)541-1010•Fax(714)541-5157
RE: City of Tustin Draft 6th Cycle Housing Element
September 7, 2021
P. 18
addressing (1) development trends, (2) anticipated affordability, and (3)resources and
incentives.145
The City has estimated that 100 ADUs will be created during the 6th Cycle.146 The City
based this project on"the recent past performance as well as the new legislation," "the City's
efforts to allow and encourage such units" and that"a current SB2 grant funded project will
result in the preparation of citywide accessory dwelling unit design guidelines with
accompanying examples."147 However, the City does not consider the need for these units in the
community; any other resources or incentives available for ADU development; or the availability
of ADUs and JADUs that will be part of the rental stock,rather than used as offices or guest
houses.148 If the City intends to use its own analysis to estimate its 6th Cycle ADU production, it
must explain how it considered these additional factors in its next draft.
Otherwise,the City may utilize one of the approaches that HCD Staff has stated they
would accept without further analysis or incentives: (1) average, yearly ADU applications from
the beginning of the 5th Cycle to 2017, multiplied by five; or(2) average ADU applications per
year since 2018, multiplied by eight. If jurisdictions anticipate a higher ADU production, HCD
will require more analysis and incentives to show the higher production can be met. However, it
is impossible to determine whether the City has estimated its 6th Cycle ADU production
accurately under these formulas.
First, the City has provided conflicting information about these 27 ADUs from its recent
past performance. In its review of past performance, the City specifies that 15 ADUs were
constructed, 4 were under construction, and 8 "are in the plan check process."149 This would
mean that only 15 ADUs were actually constructed during the 5th Cycle and 12 were in progress
when the 5th Cycle ended. Then in its evaluation of its progress towards its 5th Cycle RHNA,
the City states that only 12 ADUs at undefined income levels were approved and under
construction, seemingly referencing the 12 ADUs that were in progress at the end of the 5th
Cycle.150 It appears that these 12 ADUs were identified separately from the 100 projected ADUs
in the City's Summary of RHNA Credits and Remaining Need.151 This means that the City is
taking one of these two approaches: (1) calculating its 6th Cycle ADU estimate using only the 15
constructed ADUs from the 5th Cycle, or(2) calculating its 6th Cycle estimate using all 27
ADUs in various stages of construction from 5th Cycle,while simultaneously counting the 12 in-
progress ADUs towards its 6th Cycle RHNA.
145 HCD,ADU Handbook, 19(December 2020).
146 City of Tustin,2021-2029 Housing Element Draft,B-3(June 2021).
147 City of Tustin,2021-2029 Housing Element Draft,B-3(June 2021).
148 Cal.Gov.Code Section 65583.1(a);HCD,Accessory Dwelling Units(ADU)and Junior Accessory Dwelling
Units(JADUs),Requisite Analysis,https://hcd.ca.gov/community-development/bWlding-blocks/site-inventory-
analysis/accessory-dwelling-units.shtml(last visited Mar.21,2021).
149 City of Tustin,2021-2029 Housing Element Draft,A-2,A-13(June 2021).
150 City of Tustin,2021-2029 Housing Element Draft,A-61 (June 2021).
151 City of Tustin,2021-2029 Housing Element Draft,B-3 (June 2021).
601 Civic Center Drive West• Santa Ana,CA 92701-4002• (714)541-1010•Fax(714)541-5157
RE: City of Tustin Draft 6th Cycle Housing Element
September 7, 2021
P. 19
Second,the City has partially based its 100 ADU estimate on its overall ADU production
from the 5th Cycle rather than its average ADU production, as HCD Staff's formulas require.152
If the City intends to use one of HCD Staff's recommended formulas, the City must calculate its
average ADU production from the 5th Cycle and explain which 5th Cycle ADUs it takes into
account. In doing so, the City cannot use the 12 in-progress ADUs to calculate its 5th Cycle
average while simultaneously using the 12 in-progress ADUs towards its 6th Cycle RHNA.
Anticipated Affordability
Although the City utilized the Southern California Association of Governments'
("SCAG') affordability assumptions to assign its estimate ADUs to income categories, as
allowed,the City must apply these affordability assumptions to a revised number of estimated
ADUs, as discussed above.153
Resources and Incentives
The housing element must include a plan that incentivizes and promotes the creation of
ADUs that can offer affordable rents for very low, low-, or moderate-income households.154
Resources and incentives include policies and programs to encourage ADUs, such as:
• Prototype plans;155
• Reduce or eliminate building permit/development fees;156
• Expedited procedures;157
• Affordability monitoring programs;158
• Incentives for affordability;159
• Financing—construction &preservation;160
• Outreach,promotion, and educational materials;161 and
• Amnesty programs (SB 13).
The City estimated 100 ADUs for the 6th Cycle "based on the recent past performance as
well as the new legislation and the City's efforts to allow and encourage such units" and that"a
current S132 grant funded project will result in the preparation of citywide accessory dwelling
unit design guidelines with accompanying examples."162
To that end, Program 1.8 Accessory Dwelling Units Programs states that the City will
first"promote the construction of accessory dwelling units in new and existing residential areas
by updating City codes in compliance with State law, and focusing on education and
152 City of Tustin,2021-2029 Housing Element Draft,A-2,B-3 (June 2021).
153 SCAG,6'Cycle Housing Element Update Technical Assistance—ADU Affordability Analysis Presentation,9
(August 27,2020).
154 HCD,ADU Handbook, 19(December 2020);Cal.Gov.Code § 65583.1(a);Cal.Health and Safety Code §
50504.5.
155 HCD,ADU Handbook, 19(December 2020).
156 SCAG,Accessory Dwelling Units(ADUs),SCAG Housing Element Digital Workshop,6(August 27,2020).
157 HCD,ADU Handbook, 19(December 2020).
151 HCD,ADU Handbook, 19(December 2020).
159 SCAG,Accessory Dwelling Units(ADUs),SCAG Housing Element Digital Workshop,6(August 27,2020).
160 SCAG,Accessory Dwelling Units(ADUs),SCAG Housing Element Digital Workshop,6(August 27,2020).
161 SCAG,Accessory Dwelling Units(ADUs),SCAG Housing Element Digital Workshop,6(August 27,2020).
162 City of Tustin,2021-2029 Housing Element Draft,B-3(June 2021).
601 Civic Center Drive West• Santa Ana,CA 92701-4002• (714)541-1010•Fax(714)541-5157
RE: City of Tustin Draft 6th Cycle Housing Element
September 7, 2021
p. 20
awareness."163 The City states it will create a"website with ADU permit guidance."164 Second,
Program 1.8 states the City will "establish a partnership with a non-profit(i.e. Casita Coalition)
or OCCOG to develop [an] ADU accelerator program to create a one-stop-shop comprehensive
resources for homeowners interested in developing an ADU' with an emphasis on helping
seniors and people with disabilities.165 Third, Program 1.8 states the City will "establish an
Accessory Dwelling Unit Legalization and Delay of Enforcement program to allow owners with
existing unpermitted ADUs to legalize the structure" per State law.166 Finally, Program 1.8 will
create an"ADU Monitoring Program and Database."167 The City also states that"City staff is
currently developing citywide ADU design guidelines and updating the Zoning Code to
streamline the ability to construct ADUs as an affordable housing option."168
However,this program is vague and, as written, it cannot be determined whether it will
actually incentivize and encourage ADU production.169 The City does not explain what its ADU
permit guidance will contain or how this guidance will work to incentivize or encourage ADU
production. The City also does not state whether it has reached out to Casita Coalition or
OCCOG about such a partnership or whether those organizations or any other nonprofits are
interested in such a relationship. Further,the City does not explain what resources the one-stop-
shop will provide or how those resources will encourage ADUs. The City also does not explain
how this one-stop-shop will assist seniors or people with disabilities, such as providing financial
assistance or incentives for affordability.170 Similarly,the City does not explain how it will
encourage residents with illegal ADUs to participate in its amnesty program, such as with
financial assistance.171 The City does not explain how it will monitor ADUs,what the program
will monitor, or what information an ADU database will contain, such as affordability
monitoring.172 Finally, the City does not explain how its ADU design guidelines will actually
incentivize ADU production. Instead, the City should consider providing pre-approved plans,173
reducing or eliminating development fees,174 and create expedited procedures to streamline
processing.175 Therefore,to justify a high ADU production estimate, the City must revise
Program 1.8 to include more details and more incentives.
Programs
The housing element must include programs that allow the jurisdiction to achieve its
stated housing goals and objectives. Programs must set forth a schedule of actions during the
163 City of Tustin,2021-2029 Housing Element Draft,IV-6(June 2021).
164 City of Tustin,2021-2029 Housing Element Draft,IV-6(June 2021).
165 City of Tustin,2021-2029 Housing Element Draft,IV-7(June 2021).
166 City of Tustin,2021-2029 Housing Element Draft,IV-7(June 2021).
167 City of Tustin,2021-2029 Housing Element Draft,IV-7(June 2021).
168 City of Tustin,2021-2029 Housing Element Draft,A-2,A-13,11-35(June 2021).
169 HCD,ADU Handbook, 19(December 2020);Cal.Gov.Code § 65583.1(a);Cal.Health and Safety Code §
50504.5.
170 SCAG,Accessory Dwelling Units(ADUs),SCAG Housing Element Digital Workshop,6(August 27,2020).
171 SCAG,Accessory Dwelling Units(ADUs),SCAG Housing Element Digital Workshop,6(August 27,2020).
172 HCD,ADU Handbook, 19(December 2020).
173 HCD,ADU Handbook, 19(December 2020).
174 SCAG,Accessory Dwelling Units(ADUs),SCAG Housing Element Digital Workshop,6(August 27,2020).
175 HCD,ADU Handbook, 19(December 2020).
601 Civic Center Drive West• Santa Ana,CA 92701-4002• (714)541-1010•Fax(714)541-5157
RE: City of Tustin Draft 6th Cycle Housing Element
September 7, 2021
p. 21
planning period, each with a timeline for implementation.176 The jurisdiction may recognize that
certain programs are ongoing, such that there will be beneficial impacts of the programs within
the planning period, that the local government is undertaking or intends to undertake to
implement the policies and achieve the goals and objectives of the housing element.177 The
jurisdiction may do so through the administration of land use and development controls, the
provision of regulatory concessions and incentives, the utilization of appropriate federal and state
financing and subsidy programs when available, and the utilization of moneys in a low- and
moderate-income housing fund of an agency if the locality has established a redevelopment
project area pursuant to the Community Redevelopment Law.178
To make adequate provision for the housing needs of all economic segments of the
community, the program shall address housing issues such as inadequate site inventories,
meeting lower income housing needs,removing constraints,maintaining affordable housing,
promoting affirmatively furthering fair housing, preserving assisted housing developments,
encouraging accessory dwelling units, and facilitating public participation. To make these
programs most effective, HCD recommends jurisdictions include the following: definite time
frames for implementation; an identification of agencies and officials responsible for
implementation; a description of the local government's specific role in program
implementation; a description of the specific action steps to implement the program; proposed
measurable outcomes; demonstration of a firm commitment to implement the program; and an
identification of specific funding sources, where appropriate.179
Inadequate Site Inventory
If a jurisdiction cannot identify adequate sites to accommodate its share of the RHNA for
all income levels,its housing element must include a program to identify sites that can be
developed for housing within the planning period.180 If the jurisdiction cannot do so without
rezoning, the jurisdiction must identify actions that will be taken to make sites available during
the planning period with appropriate zoning and development standards and with services and
176 Cal.Gov.Code Section 65583(c).
177 Cal.Gov.Code Section 65583(c).
178 Cal.Gov.Code Section 65583(c).
179 HCD,Building Blocks:A Comprehensive Housing-Element Guide,Program Overview and Quantified
Objectives,https://hcd.ca.gov/community-development/building-blocks/program-requirements/program-
overview.shtml(last visited Apr.4,2021).
iso Cal.Gov.Code Section 65583(c)(1)(B).
601 Civic Center Drive West• Santa Ana,CA 92701-4002• (714)541-1010•Fax(714)541-5157
RE: City of Tustin Draft 6th Cycle Housing Element
September 7, 2021
p. 22
facilities and to comply with the requirements of Section 65584.09.181 The identification of sites
shall include all components specified in Section 65583.2.182
Here, the City provides Program 1.1, titled"Residential Development- Available Sites,"
with the objective to "[prepare], process and adopt TLSP Specific Plan Amendment within three
years to allow additional units to meet RHNA."183 This program is intended to rezone Site IA to
accommodate residential development.184 However,the City provides almost no details
regarding how this program will operate. Instead, the City merely claims that it will be
completed by October 2024. For example,there are no details regarding whether the units will
have sufficient water, sewer, or dry utilities, as required by law.185 The City must greatly expand
on how its rezone program will accommodate its needs for very-low- and low-income housing.
Additionally, the City describes how Program 1.7, titled`By-Right Approval of Projects
with 20 Percent Affordable Units on"Reuse" Sites," will "explore" approving projects that
provide 20 percent or more of its units at rents affordable to lower income households.186 The
City also states that the goal of this program is to "Amend Ordinance."187 The City should
provide greater detail regarding how this program will accomplish this goal,beyond mere
exploration, and describe the resources and incentives it will use to ensure the program is
successful. It appears that this Program is required by State Housing Element law, as described
above, as such, simply"exploring" the Program is insufficient and the City must actually adopt
such a Program as it relates to previously identified sites.
Farmworker Housing
The City does not specifically identify farmworker housing by right.188 Instead, the City
states that"Tustin is an urbanized community with no undeveloped parcels zoned for agriculture
as a principal use; however, some residential zones allow a range of agriculture and related uses.
181"For housing elements due pursuant to Section 65588 on or after January 1,2006,if a city or county in the prior
planning period failed to identify or make available adequate sites to accommodate that portion of the regional
housing need allocated pursuant to Section 65584,then the city or county shall,within the first year of the planning
period of the new housing element,zone or rezone adequate sites to accommodate the unaccommodated portion of
the regional housing need allocation from the prior planning period."Cal. Gov. Code Section 65584.09(a). "The
requirements under subdivision(a)shall be in addition to any zoning or rezoning required to accommodate the
jurisdiction's share of the regional housing need pursuant to Section 65584 for the new planning period." Cal. Gov.
Code Section 65584.09(b)."Nothing in this section shall be construed to diminish the requirement of a city or
county to accommodate its share of the regional housing need for each income level during the planning period set
forth in Section 65588,including the obligations to(1)implement programs included pursuant to Section 65583 to
achieve the goals and objectives,including programs to zone or rezone land,and(2)timely adopt a housing element
with an inventory described in paragraph(3)of subdivision(a)of Section 65583 and a program to make sites
available pursuant to paragraph(1)of subdivision(c)of Section 65583,which can accommodate the jurisdiction's
share of the regional housing need." Cal. Gov. Code Section 65584.09(c);Cal.Gov.Code Section 65583(c)(1).
182 Cal.Gov.Code Section 65583(c)(1)(B).
183 Cal.Gov.Code Section 65583(c)(1)(B);City of Tustin,Draft Housing Element 2021-2029 IV-2(June 2021).
184 City of Tustin,Draft Housing Element 2021-2029 B-5(June 2021).
185 Cal.Gov.Code Section 65583.2(h);Cal.Gov.Code Section 65583(b)(5)(B).
186 Cal.Gov.Code Section 65583.2(h);Cal.Gov.Code Section 65583(c)(3)(B)(iii-iv);City of Tustin,Draft
Housing Element 2021-2029 IV-6(June 2021).
187 City of Tustin,Draft Housing Element 2021-2029 IV-6(June 2021).
188 Cal.Gov.Code Section 65583(c)(1)(C).
601 Civic Center Drive West• Santa Ana,CA 92701-4002• (714)541-1010•Fax(714)541-5157
RE: City of Tustin Draft 6th Cycle Housing Element
September 7, 2021
p. 23
However, some farmworkers may commute to nearby farming operations outside of the city."189
The City should specifically address the need for farmworker housing in its next draft.
Emergency Shelters
If the local government cannot identify a zone or zones with sufficient capacity to
accommodate the need for emergency shelter, the local government shall include a program to
amend its zoning ordinance to meet the requirements of Section 65583(a)(4)(A) within one year
of the adoption of the housing element.190
Because the City has not provided details regarding its existing emergency shelter
ordinance and has not accurately calculated its emergency shelter need, it is impossible to
determine whether the City must include a program to meet statutory requirements.191
Regardless, the City's Program 2.1 (Modified)Emergency, Transitional, and Supportive Housing
is intended to address the City's emergency shelter need by "[continuing] to support countywide
efforts to assist approved homeless providers as part of the Tustin Legacy Reuse effort" and
"[retaining] 192 emergency shelter beds and [expanding] by 125 beds."192 However,this
program does not explain how the City plans to support these countywide efforts or how it
expects to expand its shelter capacity by 125 beds. To make this program effective,the City
should follow HCD recommendations and provide a description of the specific action steps to
implement the program,proposed measurable outcomes, and firm commitments to implement
the program.193 The City should also include a program to amend its zoning code, if necessary,to
ensure that it can accommodate the need for emergency shelters or explain how the current
zoning satisfies this requirement.
Affirmatively Furthering Fair Housing (AFFH)
Housing elements must incorporate the obligation to affirmatively further fair housing in
the following sections: (1) outreach, (2) assessment of fair housing, (3) site inventory, (4)
identification and prioritization of contributing factors, and (5) goals, policies, and actions. Each
section is addressed below.194
Outreach
The City forgets several elements of an adequate AFFH outreach analysis. First, although
the City lists key stakeholders that it"invited to participate in the planning process,"195 it does
not indicate whether any of these stakeholders actually participated. If not a single stakeholder
engaged the City during the planning process, stakeholder participation cannot be "meaningful,
189 City of Tustin,Draft Housing Element 2021-2029 II-13 (June 2021).
190 Cal.Gov.Code Section 65583(a)(4)(A).
191 Cal.Gov.Code Section 65583(a)(4)(A).
192 City of Tustin,Draft Housing Element 2021-2029,IV-13(June 2021).
193 HCD,Building Blocks:A Comprehensive Housing-Element Guide,Program Overview and Quantified
Objectives,https://hcd.ca.gov/community-development/building-blocks/program-requirements/program-
overview.shtml(last visited Apr.4,2021).
194 HCD, Affirmatively Furthering Fair Housing:Guidance for All Public Entities and for Housing Elements,21
(April 2021).
195 City of Tustin,Draft Housing Element 2021-2029 D-70,Appendix B Index of Interested Parties(June 2021).
601 Civic Center Drive West• Santa Ana,CA 92701-4002• (714)541-1010•Fax(714)541-5157
RE: City of Tustin Draft 6th Cycle Housing Element
September 7, 2021
p. 24
frequent, and ongoing."196 Second, the City's list of key stakeholders does not describe"for what
purpose" the City consulted these stakeholders, even though HCD requires such a description.197
Third, the City does not summarize "comments and how comments are considered and
incorporated (including comments that were not incorporated), particularly with changes to the
housing element."198 Finally, the City does not summarize"issues that contributed to lack of
participation in the housing element process by all economic segments,particularly people with
protected characteristics, if that proves to be the case."199 Because the City omits these
components, which HCD demands in an AFFH outreach section, the City does not meet HCD's
standards.
Assessment of Fair Housing
A fair housing assessment needs to have a summary of fair housing enforcement and
capacity.200 In addition, the assessment must analyze these five areas: (1) fair housing
enforcement and outreach capacity; (2) integration and segregation patterns and trends related to
people with protected characteristics; (3)racially or ethnically concentrated areas of poverty or
affluence; (4) disparities in access to opportunity for people with protected characteristics,
including persons with disabilities; and (5) disproportionate housing needs within the
jurisdiction, including displacement risk.201 Furthermore, each of these analyses must include
local and regional patterns and trends, local data and knowledge, and other relevant factors.202
The analyses should each arrive at conclusions and have a summary of fair housing issues.203
Fair Housing Enforcement and Outreach Capacity. The City must supplement its
analysis of fair housing enforcement and outreach capacity. While the City analyzes recent fair
housing enforcement and outreach capacity,204 the City does not consider"trends in patterns over
196 HCD,Affirmatively Furthering Fair Housing:Guidance for All Public Entities and for Housing Elements,21
(April 2021).
197 HCD,Affirmatively Furthering Fair Housing:Guidance for All Public Entities and for Housing Elements,22
(April 2021).
198 HCD,Affirmatively Furthering Fair Housing:Guidance for All Public Entities and for Housing Elements,22
(April 2021).
199 HCD,Affirmatively Furthering Fair Housing:Guidance for All Public Entities and for Housing Elements,22
(April 2021).
200 HCD,Affirmatively Furthering Fair Housing:Guidance for All Public Entities and for Housing Elements,62
(April 2021).
201 HCD,Affirmatively Furthering Fair Housing:Guidance for All Public Entities and for Housing Elements,27-
28,62(April 2021).
202 HCD,Affirmatively Furthering Fair Housing:Guidance for All Public Entities and for Housing Elements,62
(April 2021).
203 HCD,Affirmatively Furthering Fair Housing:Guidance for All Public Entities and for Housing Elements,62
(April 2021).
204 City of Tustin,Draft Housing Element 2021-2029 D-8(June 2021).
601 Civic Center Drive West• Santa Ana,CA 92701-4002• (714)541-1010•Fax(714)541-5157
RE: City of Tustin Draft 6th Cycle Housing Element
September 7, 2021
p. 25
time. ,205 Additionally,the City presents Tustin-specific data 206 but no regional data about
housing-related cases.207 Finally,the City only mentions one organization,the Fair Housing
Foundation,208 even though HCD states that the City should include "a listing of local, regional
and state agencies and organizations active in the locality."209 The City's long list of key
stakeholders210 implies that the City omitted relevant agencies and organizations from its agency-
and-organization listing. This omission leaves the City's analysis incomplete. Until the City adds
the above information, the City has not tailored a satisfactory analysis of fair housing
enforcement and outreach capacity.
Segregation and Integration. The City needs to bolster its segregation-and-integration
discussion. First,because the City only considers static data compiled from 2013 until 2019
about persons with disabilities, familial status, and income groups,211 the City does not analyze
these groups' integration and segregation "trends in patterns over time."212 Second,the City
relies solely on state-provided data throughout the entire section,213 without assessing local data
or knowledge or other relevant factors "beyond data that identifies and compares concentrations
of groups with protected characteristics."214 If the City's analysis were sufficient, "it would at
least" have these data.215
RIECAPs and RCAAs. The City must improve its analysis of racially or ethnically
concentrated areas of poverty (R/ECAPs) and racially concentrated areas of affluence (RCAAs).
Although the City identifies both regional and local incidence of R/ECAPs and RCAAs,216 the
City's examination does not extend to"patterns in trends over time."217 Furthermore,the City
205 HCD,Affirmatively Furthering Fair Housing:Guidance for All Public Entities and for Housing Elements,24
(April 2021).
206 City of Tustin,Draft Housing Element 2021-2029 D-8(June 2021).
207 HCD,Affirmatively Furthering Fair Housing:Guidance for All Public Entities and for Housing Elements,24
(April 2021).
208 City of Tustin,Draft Housing Element 2021-2029 D-8(June 2021).
209 HCD,Affirmatively Furthering Fair Housing:Guidance for All Public Entities and for Housing Elements,28
(April 2021).
210 City of Tustin,Draft Housing Element 2021-2029 Appendix B Index of Interested Parties(June 2021).
211 City of Tustin,Draft Housing Element 2021-2029 D-20 to-28(June 2021).
212 HCD,Affirmatively Furthering Fair Housing:Guidance for All Public Entities and for Housing Elements,24
(April 2021).
213 City of Tustin,Draft Housing Element 2021-2029 D-8 to-28(June 2021).
214 HCD,Affirmatively Furthering Fair Housing:Guidance for All Public Entities and for Housing Elements,25
(April 2021).
215 HCD,Affirmatively Furthering Fair Housing:Guidance for All Public Entities and for Housing Elements,24
(April 2021).
216 City of Tustin,Draft Housing Element 2021-2029 D-28 to-34(June 2021).
217 HCD,Affirmatively Furthering Fair Housing:Guidance for All Public Entities and for Housing Elements,24
(April 2021).
601 Civic Center Drive West• Santa Ana,CA 92701-4002• (714)541-1010•Fax(714)541-5157
RE: City of Tustin Draft 6th Cycle Housing Element
September 7, 2021
p. 26
forgot to include local data and knowledge and other relevant factors.218 The City must add this
information before satisfactorily finishing its R/ECAPs and RCAAs analysis.
Access to Opportunity. The City's access-to-opportunity section does not answer several
required questions. The City does, as is necessary, have a section for disproportionate housing
needs for persons with disabilities.219 Also, the City does include sections for educational,
economic, transportation, and environmental disparities in access to opportunity.220 However,
these sections do not address the following:
• Employment Opportunities
o Where protected groups live and how that affects their ability to obtain a job
o Employment trends by protected groups
• Transportation Opportunities
o Disproportionate transportation needs for members of protected groups
o Combined housing and transportation cost impacts on protected groups
• Environmental Opportunities
o Consistency with the environmental justice element
o Policies,practices, and investments that impact access to environmentally healthy
neighborhoods
Furthermore,the City neglects to tackle patterns in access to opportunity. To comply with
HCD's guidance, the City "should, at minimum," analyze these topics.221
Disproportionate Housing Needs, Including Displacement. The City needs to consider
several data sources that it missed in its section on disproportionate housing needs and
displacement. Notwithstanding the City's use of federally and state-provided data,222 the City
does not employ local data or knowledge or other relevant factors while analyzing substandard
housing and displacement risk.223 Since these data sources are"[p]articularly important to this
analysis,"224 the City must utilize them before finalizing its disproportionate housing needs and
displacement section.
218 HCD,Affirmatively Furthering Fair Housing:Guidance for All Public Entities and for Housing Elements,24-25
(April 2021).
219 HCD,Affirmatively Furthering Fair Housing:Guidance for All Public Entities and for Housing Elements,36
(April 2021).
220 City of Tustin,Draft Housing Element 2021-2029 D-35 to-49(June 2021).
221 HCD,Affirmatively Furthering Fair Housing:Guidance for All Public Entities and for Housing Elements,35-36
(April 2021).
222 City of Tustin,Draft Housing Element 2021-2029 D-49 to-69(June 2021).
223 HCD,Affirmatively Furthering Fair Housing:Guidance for All Public Entities and for Housing Elements,24-25
(April 2021).
224 HCD,Affirmatively Furthering Fair Housing:Guidance for All Public Entities and for Housing Elements,39
(April 2021).
601 Civic Center Drive West• Santa Ana,CA 92701-4002• (714)541-1010•Fax(714)541-5157
RE: City of Tustin Draft 6th Cycle Housing Element
September 7, 2021
p. 27
Local Data and Knowledge, and Other Relevant Factors. The City's sections on local
data and knowledge and other contributions do not adequately address each of the required areas
of analysis. The City has separate sections for local data and knowledge and for other
contributions,where the City describes public comments related to the City and other fair
housing efforts.225 However,these sections do not specifically address any of the required areas
of analysis.226 Therefore,these sections cannot replace local data and knowledge and other
relevant factors that specifically pertain to each of the above sections. To satisfy State law, the
City must integrate local data and knowledge and other relevant factors into each section of the
fair housing assessment.
Site Inventory
The City must face its problematic site selection. The City admits that"a ma j ority of
identified sites are located within" "tracts with low to moderate income households, concentrated
minorities, and housing problems."227 This means that the City does not place a single site in its
high- or highest-resource areas, as shown in Figure 22.228 Although such site selection might
raise segregation and integration concerns,229 the City boasts that it can"accommodate
residential development of all income levels to further fair housing."230 For the City's site
selection to be "consistent with" its duty to affirmatively further fair housing,231 the City must,in
its site inventory discussion, at least examine such concerns about integration and segregation.
Ideally, as recommend by HCD,the City should identify sites throughout the City to ensure a
more integrated community.
Identification and Prioritization of Contributing Factors
The City incorrectly identified and prioritized contributing factors. The City lists four
factors that"may contribute to" fair housing issues,232 but does not prioritize these factors, as
California Government Code Section 65583(c)(10)(iv)requires. And afterwards, the City does
not"discuss strategic approaches to inform and strongly connect to goals and actions."233 This
mistake becomes apparent as the City identifies "[flack of affordable housing in high opportunity
areas" and "concentrated access to opportunity within high resource areas" as contributing
225 City of Tustin,Draft Housing Element 2021-2029 D-71 to-77(June 2021).
226 HCD,Affirmatively Furthering Fair Housing:Guidance for All Public Entities and for Housing Elements,62
(April 2021).
227 City of Tustin,Draft Housing Element 2021-2029 D-79(June 2021).
228 City of Tustin,Draft Housing Element 2021-2029 D-85 Figure 22(June 2021).
229 HCD,Affirmatively Furthering Fair Housing:Guidance for All Public Entities and for Housing Elements,45
(April 2021).
230 City of Tustin,Draft Housing Element 2021-2029 D-79(June 2021).
231 Cal.Gov.Code Section 65583.2(a).
232 City of Tustin,Draft Housing Element 2021-2029 D-86(June 2021).
233 HCD,Affirmatively Furthering Fair Housing:Guidance for All Public Entities and for Housing Elements,49
(April 202 1)
601 Civic Center Drive West• Santa Ana,CA 92701-4002• (714)541-1010•Fax(714)541-5157
RE: City of Tustin Draft 6th Cycle Housing Element
September 7, 2021
p. 28
factors—But none of the City's new goals or actions, except the goals and actions from Orange
County's 2020 analysis of impediments, employ mobility strategies.234 If the City strongly
connected its contributing factors to actions and goals, it would have featured mobility strategies,
since these strategies would overcome lack of access to high-opportunity areas. To fulfill HCD's
expectations,the City must align its identified contributing factors with its goals and actions.
Goals, Policies, and Actions
Many of the City's goals, policies, and actions lack specificity. First,none of the goals
and actions copied from Orange County's analysis of impediments have timelines, dates, or
objective metrics for completion.235 Take as an example the goal to "[p]rovide fair housing
education and information to apartment managers and homeowners on why denial of reasonable
modifications/accommodations is unlawful."236 This goal does not state how much or when
education will happen,which shows that the goal lacks a timeline and measurable metrics for
implementation. The City also identifies programs beyond Orange County's analysis of
impediments. And while most of these programs do have sufficient timelines and metrics, some
do not. For instance, the City promises to "evaluate and identify zoning and development
standards that will allow and encourage the construction and expansion of affordable
housing."237 Nevertheless, the City's quantified objective just repeats the goal, and its timeline
nearly mirrors the planning period. With such unquantified objectives and amorphous timelines,
the City's goals cannot have a"beneficial impact."238 Therefore,the City must amend those
goals and actions that lack adequate specificity.
Preserving Assisted Housing Developments
The housing element shall include a program to preserve for lower income households
the assisted housing developments identified pursuant to Section 65583(a)(9).239 The program for
preservation of the assisted housing developments shall utilize, to the extent necessary, all
available federal, state, and local financing and subsidy programs identified in Section
65583(a)(9), except where a community has other urgent needs for which alternative funding
sources are not available.240 The program may include strategies that involve local regulation and
technical assistance.241
234 City of Tustin,Draft Housing Element 2021-2029 D-86 to-88(June 2021).
235 City of Tustin,Draft Housing Element 2021-2029 D-86 to-88(June 2021).
236 City of Tustin,Draft Housing Element 2021-2029 D-88(June 2021).
237 City of Tustin,Draft Housing Element 2021-2029 IV-16(June 2021).
238 HCD,Affirmatively Furthering Fair Housing:Guidance for All Public Entities and for Housing Elements,51-56
(April 2021).
239 Cal.Gov.Code Section 65583(c)(6).
240 Cal.Gov.Code Section 65583(c)(6).
241 Cal.Gov.Code Section 65583(c)(6).
601 Civic Center Drive West• Santa Ana,CA 92701-4002• (714)541-1010•Fax(714)541-5157
RE: City of Tustin Draft 6th Cycle Housing Element
September 7, 2021
p. 29
Here, the City claims it will "make efforts to preserve units `at risk' at Tustin Gardens,
Westchester Park, Flanders Pointe and Chatham Village."242 The City then explains that
preserving these units is more cost-effective than replacing the units with equivalent housing.243
The City also provides details regarding two programs to preserve assisted housing: Program 3.6,
titled "Affordable Senior Housing Project and Senior Board and Care Facility," and Program 3.7,
titled "Preservation of Assisted Housing."244 However, neither program clearly explains how it
will accomplish its goal to preserve housing. For example, Program 3.6 does not explain how it
plans to "maintain" housing, while Program 3.7 merely states that the City will coordinate
"financial and administrative resources" to preserve units.245 However,neither program describes
any financial and subsidy programs it will use to achieve the goals, and neither program
describes any other concrete or quantifiable strategies it will use to fulfill the programs'
objectives. The City must provide greater detail regarding how these programs will actually
serve to preserve assisted housing developments for lower-income households in its next draft.
Public Participation
The housing element shall include a program that demonstrates a diligent effort by the
local government to achieve public participation of all economic segments of the community in
the development of the housing element, and the program shall describe this effort.246 The HCD
recommends that the local government describe who was invited to participate,who actually
participated, general comments received, and how comments were incorporated into the housing
element.247
Here, the City failed to demonstrate a diligent effort by the local government to achieve
public participation of all economic segments of the community in the development of the
housing element, and the program shall describe this effort.248 The City provided extensive
information regarding which stakeholders were invited to attend,but did not explain which
residents were invited to outreach opportunities.249 While the City provided a list of survey
respondents,the information only consisted of names, cities, states, and ZIP codes: no
demographic information was included,nor any information to determine if the survey
respondents constituted a representative sample of City residents.250 Moreover,the City did not
242 City of Tustin,Draft Housing Element 2021-2029 II-17(June 2021).
243 City of Tustin,Draft Housing Element 2021-2029 II-17(June 2021).
244 City of Tustin,Draft Housing Element 2021-2029 IV-20(June 2021).
245 City of Tustin,Draft Housing Element 2021-2029 IV-20(June 2021).
16 Cal.Gov.Code Section 65583(c)(9).
17 HCD,Building Blocks:A Comprehensive Housing-Element Guide,Public Participation,
https://hcd.ca.gov/community-development/building-blocks/getting-started/public-participation.shtml(last visited
Mar. 17,2021).
248 Cal.Gov.Code Section 65583(c)(9).
249 HCD,Building Blocks:A Comprehensive Housing-Element Guide,Public Participation,
https://hcd.ca.gov/community-development/building-blocks/getting-started/public-participation.shtml(last visited
Mar. 17,2021);City of Tustin,2021-2029 Housing Element Draft,Appendix E,4-6(June 2021).
250 City of Tustin,Draft Housing Element 2021-2029 Index of Interested Parties Housing Element Survey
Respondents(June 2021).
601 Civic Center Drive West• Santa Ana,CA 92701-4002• (714)541-1010•Fax(714)541-5157
RE: City of Tustin Draft 6th Cycle Housing Element
September 7, 2021
p. 30
provide any analysis regarding how the survey responses were incorporated into the housing
element draft.251
Lastly, the City held only two meetings: one on Tuesday,November 10th, 2020, at 6:00
P.M., and one on Tuesday, May 11th, 2021, at 5:00 P.M.252 Both meetings were held virtually.
The City should hold meetings on varied days of the week, and at different times of day, to
ensure maximum participation.253 Instead, the City held both meetings on Tuesdays, and at 5:00
or 6:00 P.M. This means it is unlikely that residents who are busy on Tuesdays, or who work in
the evenings,will attend. The City should demonstrate that it has endeavored to provide public
participation opportunities to all residents, and that it has incorporated public comment into its
draft.
Conclusion
The housing element process is an opportunity for jurisdictions to meet the needs of
California's residents, including needs for housing that is accessible to seniors, families, and
workers and the needs of extremely-low-, very-low-, and low-income families for affordable
housing. We encourage the City to consider carefully the HCD Review Letter and implement the
recommendations contained therein. We also add these additional comments in support of those
form HCD and look forward to the opportunity to work with the City and review future versions
of its Draft 6th Cycle Housing Element to ensure that this opportunity to meet the housing needs
of Tustin's most vulnerable residents is not missed.
Sincerely,
THE PUBLIC LAW CENTER, BY:
� w
Richard Walker, Housing and Homelessness Prevention Unit, Senior Staff Attorney
Alexis Mondares, Housing and Homelessness Prevention Unit, Legal Fellow
Shannon Talbot, Housing and Homelessness Prevention Unit, Summer Clerk
Lana Rayan, Housing and Homelessness Prevention Unit, Summer Clerk
Adam Snider, Housing and Homelessness Prevention Unit, Summer Clerk
251 HCD,Building Blocks:A Comprehensive Housing-Element Guide,Public Participation,
https://hcd.ca.gov/community-development/building-blocks/getting-started/public-participation.shtml(last visited
Mar. 17,2021).
252 City of Tustin,Draft Housing Element 2021-2029 Community Engagement Plan Page 7(June 2021).
253 HCD,Affirmatively Furthering Fair Housing:Guidance for All Public Entities and for Housing Elements, 10
(April 2021).
601 Civic Center Drive West• Santa Ana,CA 92701-4002• (714)541-1010•Fax(714)541-5157