What is a Housing Element?

    A state-mandated policy document that identifies where and how cities will accommodate existing and projected future housing needs for people of all income groups. As one of 7 elements of the Fairfax General Plan, it is required to be updated every eight years.

    Why does Fairfax need to plan for more housing?

    The need for every city and county in California to plan for their 'fair share' of the projected housing need is based in Housing Element Law, enacted in 1969 (Government Code Section 65583). The concept behind the law is that, in order for the private development market to adequately address housing demand, local governments must adopt housing plans that provide opportunities for – and not unduly constrain – housing development.

    How much housing does Fairfax need to plan for?

    The number of housing units each city and county must plan for is determined by the California Department of Housing and Community Development (State HCD) every eight years, referred to as housing ‘cycles.’ In the upcoming 6th cycle, Fairfax is currently expected to plan for a minimum of 490 housing units.

    How is Fairfax's housing assignment determined?

    The California Departments of Finance (DOF) as well as the Housing and Community Development (HCD) forecasts the need for housing within each region based on population projections. This process is called the Regional Housing Needs Assessment (RHNA).

    The regional planning agency for each region then must distribute the projected housing among its member local jurisdictions. Fairfax falls within the region governed by the Association of Bay Area Governments (ABAG). For the 2022-2030 planning cycle, the State has determined that the Bay Area must plan for an additional 441,176 new units, of which Fairfax is expected to provide a minimum of 490 new homes.

    Why is the 490 unit number referred to as a RHNA number?

    RHNA stands for Regional Housing Needs Allocation. For the Bay Area, the Association of Bay Area Governments (ABAG) was tasked with allocating a number of units to each city, town, or county according to their criteria. The Town of Fairfax was allocated 490 units according to ABAG. This allocation determination is in an appeal period through July 2021 and the final RHNA number is scheduled for release in December of 2021. Please visit the Project Documents page for more information.

    What was the result of the Council's appeal of the RHNA numbers

    The Town's appeal was officially denied and the City's RHNA number remains at 490 housing units. The Town of Fairfax submitted an appeal to ABAG, and the Town’s hearing in front of ABAG Administrative Committee was reviewed. The Administrative Committee's Preliminary Action was to deny the appeal. The final RHNA number was released in December of 2021: Fairfax’s appeal was officially denied and the City's RHNA number remains at 490 housing units.

    Is Fairfax required to build the housing assigned?

    Under current state law, cities are not required to build housing units. Housing construction is still driven by the private market. Instead, a city is required to ensure that sufficient lands are available to accommodate all assigned units ‘by right.’   To do so, cities must determine whether enough land is available to accommodate its RHNA assignment. If not, then the city is required to designate new sites for this purpose – usually through amending the General Plan and Zoning designation to allow for multifamily housing development.

    What happens if a city does not adopt a housing element or if the housing element does not comply with state law?

    The penalties for non-compliance have increased in scope and severity over the past few legislative cycles, and they currently include:

    Limited access to state funding, including transportation funding for local roadway maintenance and capital improvement projects;

    Court imposed fines of up to $600,000 per month. The statute also allows the state to collect these fines by withholding state funding due to the city.

    Lawsuits: When community’s housing element is found to be out of compliance, its General Plan is at risk of being deemed inadequate and therefore invalid, opening the possibility for lawsuits.

    Consequences of lawsuits include:

    • Court mandated compliance
    • Court suspension of local control on building matters, freezing the community’s ability to issue building permits, zoning changes, etc.
    • Court approval of housing developments on behalf of the community Attorney fees associated with the lawsuit

    Over the past 20 years, cities and counties throughout the Bay Area (including Corte Madera, Pittsburg, Pleasanton, Alameda, Benicia, Fremont, Rohnert Park, Menlo Park, Napa County, and Santa Rosa) have faced legal challenges to the adequacy of their housing elements. In virtually every case, the city settled by amending their housing element and/or zoning ordinance to accommodate more housing and paid the plaintiffs’ attorneys fees. Each of these cases were filed prior to the most recent amendments to the state housing law which make it exceedingly more difficult for cities to win such cases.

    What good is my participation?

    The State of California has declared a 'housing supply crisis' and holds all local communities accountable for accommodating an assigned housing target, regardless of available land capacity. Your participation is essential to creating a plan that represents Fairfax's core values while meeting regional and state-mandated housing goals.