05-11-2021 Searchable Packet - Joint Special Study Session IICITY OF CUPERTINO
CITY COUNCIL
AGENDA
This will be a teleconference meeting without a physical location.
Tuesday, May 11, 2021
6:15 PM
Televised Special Meeting Joint Study Session II- City Council, Planning Commission, and Housing
Commission
TELECONFERENCE / PUBLIC PARTICIPATION INFORMATION TO HELP STOP THE
SPREAD OF COVID-19
In accordance with Governor Newsom’s Executive Order No-29-20, this will be a
teleconference meeting without a physical location to help stop the spread of COVID-19.
Members of the public wishing to observe the meeting may do so in one of the following
ways:
1) Tune to Comcast Channel 26 and AT&T U-Verse Channel 99 on your TV.
2) The meeting will also be streamed live on and online at www.Cupertino.org/youtube
and www.Cupertino.org/webcast
Members of the public wishing comment on an item on the agenda may do so in the
following ways:
1) E-mail comments by 4:30 p.m. on Tuesday, May 11 to the Council at
citycouncil@cupertino.org, Planning Commission at planningcommission@cupertino.org
and the Housing Commission at housingcommission@cupertino.org. These e-mail
comments will also be forwarded to Councilmembers and Commission members by the
City Clerk’s office before the meeting and posted to the City’s website after the meeting.
2) E-mail comments during the times for public comment during the meeting to the City
Clerk at cityclerk@cupertino.org. The City Clerk will read the emails into the record, and
display any attachments on the screen, for up to 3 minutes (subject to the Mayor’s
discretion to shorten time for public comments). Members of the public that wish to share a
document must email cityclerk@cupertino.org prior to speaking.
3) Teleconferencing Instructions
Members of the public may provide oral public comments during the teleconference
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City Council Agenda May 11, 2021
meeting as follows:
Public comments will be accepted during the teleconference meeting. Comments may be
made during the public comment period for each agenda item.
To address the City Council and Commissions, click on the link below to register in
advance and access the meeting:
Online
Register in advance for this webinar:
https://cityofcupertino.zoom.us/webinar/register/WN_-5WWyEX5QPyFOy-RCkU6dg
Phone
Dial: 669-900-6833 and enter Webinar ID: 999 8706 5496 (Type *9 to raise hand to speak, *6 to
unmute yourself). Unregistered participants will be called on by the last four digits of their
phone number.
Or an H.323/SIP room system:
H.323:
162.255.37.11 (US West)
Meeting ID: 999 8706 5496
SIP: 99987065496@zoomcrc.com
After registering, you will receive a confirmation email containing information about
joining the webinar.
Please read the following instructions carefully:
1. You can directly download the teleconference software or connect to the meeting in your
internet browser. If you are using your browser, make sure you are using a current and
up-to-date browser: Chrome 30+, Firefox 27+, Microsoft Edge 12+, Safari 7+. Certain
functionality may be disabled in older browsers, including Internet Explorer.
2. You will be asked to enter an email address and a name, followed by an email with
instructions on how to connect to the meeting. Your email address will not be disclosed to
the public. If you wish to make an oral public comment but do not wish to provide your
name, you may enter “Cupertino Resident” or similar designation.
3. When the Mayor calls for the item on which you wish to speak, click on “raise hand,” or,
if you are calling in, press *9. Speakers will be notified shortly before they are called to
speak.
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City Council Agenda May 11, 2021
4. When called, please limit your remarks to the time allotted and the specific agenda topic.
In compliance with the Americans with Disabilities Act (ADA), anyone who is planning to
attend this teleconference City Council meeting who is visually or hearing impaired or has
any disability that needs special assistance should call the City Clerk's Office at
408-777-3223, at least 48 hours in advance of the Council meeting to arrange for assistance.
In addition, upon request, in advance, by a person with a disability, City Council meeting
agendas and writings distributed for the meeting that are public records will be made
available in the appropriate alternative format.
NOTICE AND CALL FOR A SPECIAL MEETING OF THE CUPERTINO CITY COUNCIL,
CUPERTINO PLANNING COMMISSION AND CUPERTINO HOUSING COMMISSION
NOTICE IS HEREBY GIVEN that a special joint meeting of the Cupertino City Council,
Cupertino Planning Commission and Cupertino Housing Commission is hereby called for
Tuesday, May 11, 2021, commencing at 6:15 p.m. In accordance with Governor Newsom’s
Executive Order No-29-20, this will be a teleconference meeting without a physical location.
Said special meeting shall be for the purpose of conducting business on the subject matters
listed below under the heading, “Special Meeting."
SPECIAL MEETING
ROLL CALL
STUDY SESSION
1.Subject: Special joint study session meeting with City Council, Planning Commission,
and Housing Commission on the Housing Element update.
Recommended Action: That the City Council, Planning Commission, and Housing
Commission receive the report and provide input to staff.
Staff Report
A - Baird + Driskell Memo
ADJOURNMENT
The City of Cupertino has adopted the provisions of Code of Civil Procedure §1094.6; litigation
challenging a final decision of the City Council must be brought within 90 days after a decision is
announced unless a shorter time is required by State or Federal law.
Prior to seeking judicial review of any adjudicatory (quasi-judicial) decision, interested persons must
file a petition for reconsideration within ten calendar days of the date the City Clerk mails notice of the
City’s decision. Reconsideration petitions must comply with the requirements of Cupertino Municipal
Code §2.08.096. Contact the City Clerk’s office for more information or go to
http://www.cupertino.org/cityclerk for a reconsideration petition form.
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In compliance with the Americans with Disabilities Act (ADA), anyone who is planning to attend this
teleconference meeting who is visually or hearing impaired or has any disability that needs special
assistance should call the City Clerk's Office at 408-777-3223, at least 48 hours in advance of the
meeting to arrange for assistance. In addition, upon request, in advance, by a person with a disability,
meeting agendas and writings distributed for the meeting that are public records will be made available
in the appropriate alternative format.
Any writings or documents provided to a majority of the Cupertino City Council after publication of
the packet will be made available for public inspection in the City Clerk’s Office located at City Hall,
10300 Torre Avenue, during normal business hours and in Council packet archives linked from the
agenda/minutes page on the Cupertino web site.
IMPORTANT NOTICE: Please be advised that pursuant to Cupertino Municipal Code 2.08.100
written communications sent to the Cupertino City Council, Commissioners or City staff concerning a
matter on the agenda are included as supplemental material to the agendized item. These written
communications are accessible to the public through the City’s website and kept in packet archives. You
are hereby admonished not to include any personal or private information in written communications to
the City that you do not wish to make public; doing so shall constitute a waiver of any privacy rights
you may have on the information provided to the City.
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CITY OF CUPERTINO
Agenda Item
21-9233 Agenda Date: 5/11/2021
Agenda #: 1.
Subject: Special joint study session meeting with City Council, Planning Commission, and Housing
Commission on the Housing Element update.
That the City Council, Planning Commission, and Housing Commission receive the report and
provide input to staff.
CITY OF CUPERTINO Printed on 5/6/2021Page 1 of 1
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CITY COUNCIL STAFF REPORT
Meeting: May 11, 2021
Subject
Special joint study session meeting with City Council, Planning Commission, and
Housing Commission on the Housing Element update.
Recommended Action
That the City Council, Planning Commission, and Housing Commission receive the
report and provide input to staff.
Background
On April 27, 2021, the City Council, Planning Commission, and Housing Commission
held the first of two joint Housing Element Kick-Off study session facilitated by the Santa
Clara County Planning Collaborative’s technical support team, Baird + Driskell. The
purpose of the two-part study session is to provide background for the upcoming
Housing Element update process.
State law requires that every city and county in California adopt a Housing Element
approximately every eight years. The Housing Element is part of Cupertino’s General
Plan and identifies policies and programs to meet the housing needs of the City’s current
and future residents at all income levels.
Discussion
The first study session focused on an introduction and overview of the Housing Element
structure and required sections. While there were no action items from the April 27, 2021
meeting, there was robust discussion on the topics summarized below1:
Clarification of the RHNA methodology factors and draft RHNA jurisdiction
breakdown;
Clarification of Housing Element update approval criteria from the California
Department of Housing and Community Development (HCD);
1 This list is not exhaustive. Full meeting record may be found at:
https://cupertino.legistar.com/MeetingDetail.aspx?ID=857469&GUID=B75D5783 -2830-484C-
9DB2-54078D71E18D&Options=info|&Search=
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Potential site inventory impediments (e.g., property owner sign-off) and criteria (e.g.,
State laws);
Residential units entitled vs. residential units constructed; and
An evaluation of the affordability requirements of new projects in relation to the
regional housing needs allocation (RHNA) affordability breakdown.
The second joint study session by Baird + Driskell will build on the first study session and
provide participants an opportunity to explore best practices for the required sites
inventory as well as example Housing Element policies (see Attachment A).
Next Steps
Additional study sessions and/or hearings will be scheduled when a consultant is
retained to begin the Housing Element update process. The Housing Element update
must be completed by January 2023.
Sustainability Impact
No sustainability impact.
Fiscal Impact
No fiscal impact.
Prepared by: Erika Poveda, Associate Planner
Piu Ghosh, Planning Manager
Reviewed by: Benjamin Fu, Director of Community Development
Approved by: Dianne Thompson, Assistant City Manager
Attachments:
A - Baird + Driskell Memo
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From: Paul Peninger and Joshua Abrams, Baird and Driskell Community Planning
To: Piu Ghosh, Planning Manager, City of Cupertino
Re: City Council/Planning Commission Housing Element Study Session #2
Date: May 3, 2021
Introduction
This memo provides background context and information on the General Plan Housing Element
update process in preparation for the upcoming City Council/Planning Commission joint
Housing Element Study Session on May 11, 2021. Building on study session #1 conducted on
April 271, this session will provide participants with an opportunity to learn about and discuss:
1)Requirements and strategies for meeting the City’s Regional Housing Need Allocation
(RHNA) for the upcoming 2023-2031 planning period;
2)Best practices in housing element policies and programs;
3)Potential local housing strategies for Cupertino.
General Background
The Housing Element is part of Cupertino’s General Plan and identifies policies and programs to
meet the housing needs of the city’s current and future residents. State law (Government Code
Sections 65580-65589.8) requires that every city and county in California adopt a Housing
Element, approximately every eight years. In addition, the State Department of Housing and
Community Development (HCD) reviews and determines whether each Housing Element meets
all the requirements of the law. Cupertino’s previous Housing Element was adopted in 2015
and the new document must be adopted by January 2023.
This Housing Element update process is expected to be more time intensive and rigorous than
previous cycles for several reasons. First, as displayed below, Cupertino’s proposed Regional
Housing Needs Allocation (RHNA) is significantly higher than last cycle: 4,588 total units
compared to 1,064 total units. Also, because of changes in State law, it may be harder to
identify sites that can count towards meeting the RHNA. There are also other new rules, such as
Affirmatively Furthering Fair Housing AFFH), which are in effect for the first time this cycle. As
described in the staff report for the April 27 th joint study session, AFFH will require, amongst
other things, that sites suitable for 1,884 lower income units not be concentrated in areas of
low opportunity or which are racially segregated.
1 Agenda materials and a recording of the session are available on the City’s website:
https://cupertino.legistar.com/MeetingDetail.aspx?ID=857469&GUID=B75D5783 -2830-484C-9DB2-
54078D71E18D&Options=info|&Search=
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Table 1: Illustrative RHNA for Cupertino, Santa Clara County and the Bay Area, January 202 1
Since the overall Housing Element structure and components were presented for the initial
study session on 4/27, the following information focusses specifically on policies and programs,
including new State law requirements and potential strategies for providing adequate sites to
meet Cupertino’s RHNA for 2023-2031. Where applicable, the below narrative provides
references to policies and programs in the currently adopted Housing Element2.
I.Housing Policy and Program Requirements
According to HCD, the Housing Element Policies and Programs should consist, at minimum, of
the following required types of policies and programs3:
Programs to Provide Adequate Sites
The core of the Housing Element is the identification of housing development sites suitable for
accommodating the full range of housing needs and types during the planning period4. Specific
policies and programs related to sites include:
2 https://www.cupertino.org/home/showdocument?id=12736
3 The full HCD Completeness Check List can be found here: https://www.hcd.ca.gov/community-
development/housing-element/docs/housing%20element%20completeness%20checklist.pdf
4 Detailed guidance on the sites inventory and related policies is provided by HCD in this Guidebook:
https://www.hcd.ca.gov/community-development/housing-element/docs/sites_inventory_memo_final06102020.pdf
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Large sites larger than 10 acres and small sites less than 0.5 acres. State law provides
that these sites are not assumed to be suitable for accommodating lower income
housing unless a site of that size was successfully developed in the prior planning period
or there is other evidence that the site can be developed as lower income housing. That
evidence might include proactive polices to facilitate development, such as regulatory or
financial incentives, or other strategies as detailed below. For small sites, the City
already has adopted policies in the current Housing Element related to lot consolidation
and flexible development standards. The site for the 19-unit very low-income Veranda
project was slightly larger than 0.5 acre (0.55 acre). (HE-1.3.3 and HE-1.3.4).
Non-vacant mixed-use sites (for example existing underutilized commercial properties
that could be redeveloped during the planning period). The City must justify the
development potential assumed for these sites, including the extent to which existing
uses might be a barrier to redevelopment, the City’s past experience building residences
on non-vacant sites, market demand, lease terms, and regulatory and other incentives.
As with small and large sites, relevant policies could include either regulatory or
financial incentives to assist property owners and developers during the planning
period.
In addition, the Element needs to explain why nonvacant sites identified in the previous
Housing Element planning period were not developed and, if appropriate, could include
a specific program for providing financial or regulatory incentives to support their
development. If over one-half of the City’s lower income RHNA need is accommodated
on non-vacant sites, the existing use is presumed to impede additional development
unless the City has substantial evidence that the existing use is likely to be discontinued
during the eight-year planning period.
Reuse of previously identified non-vacant sites. Non-vacant sites identified in the current
Housing Element (2015-2023) will need to be rezoned to be developable “by right” if the
City desires to use them to accommodate the City’s lower-income RHNA for the
upcoming planning period. According to HCD, “by right” means, in summary, that, if the
project does not require a subdivision and includes at least 20 percent of the base
density as affordable for lower income housing, the project is exempt from the
California Environmental Quality Act, and the City shall not require:
A conditional use permit
A planned unit development permit
Other discretionary, local-government review or approval that would constitute
a “project” as defined in Section 21100 of the Public Resources Code (CEQA)
The City’s “by right” ordinance may, however, provide that “use by right” does not
exempt the use from design review, so long as the design review does not constitute a
“project” under CEQA.
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For previously identified sites where the City has already approved a project, the City
can only obtain RHNA credit for the affordability actually included in the approved
project.
Vacant sites Identified in the Previous Two Housing Elements (2007-2014 and 2015-
2023). Vacant sites, identified in both of the previous two Housing Element updates
(cycles 4 and 5), must be developable “by right” if used to accommodate lower income
housing.
Publicly owned sites. Surplus sites owned by either the City or other public sector
entities can also be a key element of the adequate sites strategy, as already recognized
by the City’s currently adopted Housing Element in Policy HE-2.3.5.
Program to accommodate a shortfall of adequate sites to accommodate the RHNA. If
the site inventory does not show enough sites zoned to accommodate the City’s RHNA
at all income levels, the Housing Element will need to include a program to rezone
sufficient sites within three years to accommodate the RHNA at all income levels. If the
City completes the zoning after the adoption of the Housing Element, sites designated
for lower income housing will need to permit “by right” development. However, “by
right” zoning is not required if the zoning is completed in advance of housing element
adoption.
Program for Addressing No-Net Loss Requirements. The No Net Loss Law (Government
Code section 65863) requires adequate sites be maintained throughout the planning
period to accommodate the remaining RHNA by income category. If a project is
proposed on a site designated for lower income housing where fewer lower income
units are proposed than shown in the City’s housing element, the City must
demonstrate that adequate sites remain to accommodate the City’s lower income
needs. If there are inadequate remaining sites, the City must upzone another site within
180 days. The City cannot deny the project merely because the project does not include
the number of affordable units projected.
For instance, if a site is shown in the housing element to accommodate 100 lower
income units, but a project is proposed that only meets the City’s 20 percent BMR
requirement, the City would need to verify that adequate sites remain for lower income
housing despite the loss of capacity of 80 units. For this reason, the City may want to
identify a “buffer” of sites in excess of its RHNA that could accommodate lower income
housing, given the likelihood that not all sites designated for lower income housing will
be developed with 100 percent affordable projects. HCD recommends a buffer of at
least 20 to 30 percent.
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Program(s) to assist in the development of housing to accommodate extremely low, very-
low, low or moderate-income households, including special needs populations.
The current Housing Element includes these types of policies and programs under Goal HE-
2, Housing for a Diversity of Cupertino Households. Key types of programs include financial
assistance for developers of affordable housing, as well as a variety of regulatory policies to
facilitate and streamline development for housing serving lower-income households.
Cupertino policies include allowing waivers for park land dedication fees for affordable
housing units, as a financial incentive to developers.
Programs to address governmental and nongovernmental constraints to the maintenance,
improvement, and development of housing.
As discussed in the previous briefing session, the Housing Element must include a thorough
analysis of both governmental and non-governmental constraints and also set forth
proactive policies for addressing these identified constraints. For example, if permit
processing time is identified as a constraint to housing development, a program must be
included to address this constraint through process improvements that result in shorter
permit processing times.
Program(s) to conserve and improve the condition of the existing affordable housing stock.
Largely included under Goal HE-3 of the current Housing Element, these might, for example,
include maintenance and repair programs for lower-income homeowners or the
acquisition/rehabilitation of existing rental housing.
Program(s) to promote and affirmatively further fair housing opportunities.
In 2018, California adopted new requirements for jurisdictions to Affirmatively Further Fair
Housing (AFFH). While it has long been illegal for cities to discriminate based on race ,
ethnicity, religion, familial status (families with children), or other protected categories, the
AFFH rules go further and require that cities actively work to dismantle the legacy of
segregation and to create equal housing opportunities. The State recently released new
guidance on AFFH5 for cities to address fair housing issues proactively through new policies
and programs. This should include a plan so that new housing is not disproportionately put
in low-income communities of color, and also to identify suitable sites for low-income
housing that are in service- and transit-rich environments.
Program(s) to preserve units at-risk of conversion from affordable to market-rate rents.
The current Housing Element includes a policy for assisting in the preservation of at-risk
affordable housing HE-3.3.2. For this coming update, the City will once again need to assess
housing developments in Cupertino with expiring affordability restrictions in the next 10
years and develop programs and policies for preserving these units, if any. In addition, as
5 https://www.hcd.ca.gov/community-development/affh/docs/affh_document_final_4-27-2021.pdf#page=7
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appropriate, the City may wish to evaluate the loss of non-deed restricted “naturally
occurring” affordable housing that may be lost during the planning period.
Program(s) to incentivize and promote the creation of accessory dwelling units (ADUs).
The development of ADUs has been one of the non-sites strategies for meeting Cupertino’s
RHNA in past Housing Element update rounds (See Policy HE-1.3.2), and it is anticipated
that with the implementation of the recent changes to state law, that ADU produ ction will
increase significantly in the next Housing Element production period. The City must include
a program to incentivize the production of affordable ADUs in the housing element.
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II. Housing Policy Best Practices
Moving beyond the minimum requirements of the Housing Policies and Programs section, there
are a variety of best practices from other California jurisdictions that Cupertino may consider in
developing new and improved housing strategies for the upcoming update. HCD has identified
a number of exemplary Housing Elements from previous planning rounds, as well as a set of
best practices that Cupertino may consider in crafting locally appropriate Housing Strategies6.
Baird and Driskell have reviewed these examples, as well as recently certified Housing Elements
in Southern California to identify potential best practice policies and programs that may be
applicable to Cupertino. Although not exhaustive of best practices across all types of policies
and programs, Baird and Driskell have identified two major types of policies that may be
particularly applicable to Cupertino, divided into two major categories:
Regulatory/Process Improvement Programs and Policies
Funding Programs and Policies
Regulatory and Process Improvements
As discussed in the previous briefing session, the role of local jurisdictions in California is not to
build housing directly, but rather to plan and zone for an adequate supply of sites to
accommodate housing need. As such, planning and zoning regulations, standards, and
processes are perhaps the first area of improvement that cities can look to in in developing
proactive strategies to accommodate housing. Best practices from other jurisdictions in
California include7:
Streamlining the Approval Process
Provide clear and objective regulations and guidelines to prospective applicants so that
proposed projects conform to local priorities and goals
Consider “by right” approvals and form-based codes for designated uses
Provide streamlined permitting review processes for affordable housing . For example,
the city of San Diego has adopted a program that provides that 100% affordable housing
will be processed 50% faster or “Expressed,” without additional express processing
fees8.
6 https://www.hcd.ca.gov/community-development/housing-element/award-winning.shtml
7 The following bulleted text is taken from this Best Practices guide available on the HCD website:
https://www.hcd.ca.gov/community-development/building-
blocks/docs/housing_element_policy_best_practicesv1022114.pdf
8 https://www.sandiego.gov/sites/default/files/dsdib538.pdf
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Flexibility in Planning Requirements
Encourage mixed-use zones: mixed-use zones create flexible investment opportunities
for, and locate, infill housing in office or retail districts where it may be less
controversial. It also has the added benefit of reducing housing development costs by
sharing amenities and parking with other uses.
Let infill developers meet open space and parkland requirements by paying “in -lieu”
fees
Establish minimum density requirements to ensure guaranteed production of certain
number of units to meet RHNA requirements
Maximize development potential through the removal of, or significantly increasing,
building height restrictions in designated Priority Development Areas
Limit requirement for ground-floor retail to key nodes, and allow for residential uses on the
ground floor in certain locations within designated Priority Development Areas
Model Policies and Programs
City of Pasadena Housing Element 5th Cycle, Section E3: Entitlement Process
https://www.cityofpasadena.net/wp-content/uploads/sites/30/Adopted-Housing-Element-
2014-02-04.pdf?v=1620152191043
City of San Diego Housing Element 6th Cycle, Objective B, Policies H.E. B-1- B.6: Implement
Permitting Processing Improvements
https://www.sandiego.gov/sites/default/files/he-print-view-smaller.pdf
Funding Policies and Programs
Cupertino already provides support to affordable programs through the Below Marker Rate
(BMR) Affordable Housing Fund (AHF), and other programs as identified in policies HE-2.3.3 and
HE-2.3.4 of the currently adopted Housing Element. There are, however, a number of other
funding and financing tools the City may wish to consider for the upcoming update in order to
augment the City’s locally controlled resources for supporting housing development.
Supplementing the City’s residential and commercial linkage fee program, new sources of
support for the Affordable Housing Fund might for example include:
Private-Sector/Employer donations/support for specific programs
Transient occupancy tax (requires two thirds vote)
Real estate transfer tax (requires two thirds vote)
General obligation bond (requires two thirds vote)
County and/or other public sector agency funding
More information on potential sources of support for local housing trust funds, can be
found at the following sites:
Housing Trust Fund Project
https://housingtrustfundproject.org/htf-elements/revenue-sources/
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National Housing Conference
https://nhc.org/policy-guide/housing-trust-funds-the-basics/
HCD Local Housing Trust Fund Grant Program
https://www.hcd.ca.gov/grants-funding/active-funding/lhtf.shtml
The potential uses of local housing trust funds monies are numerous, but one program type
that may be of potential interest to Cupertino is the land assemblage program adopted by the
City of Pasadena through which the city issues RFPs for the development of affordable housing
when $5 million in uncommitted funds are available. Pasadena, like Cupertino, has high land
costs, so this policy would also direct staff to “examine creative partnerships and mechanisms
for land assemblage and write downs9.”
9 See Program #14, Page 29. https://www.cityofpasadena.net/wp -content/uploads/sites/30/Adopted-Housing-
Element-2014-02-04.pdf?v=1620156128981
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