No CUP, No Setback Games: HCD Tells Oakland How SB 684 Works

You've got a small infill lot zoned for multifamily and a plan for a handful of homes on it — the exact kind of starter-home project SB 684 was written to unlock. Then the city's response lands: pull a conditional use permit, and by the way, your project doesn't meet the front-yard setback or the open-space minimum. A ministerial project is suddenly back in the discretionary line, and your unit count is shrinking to fit a setback.

Here's the thing: HCD's position is that none of that is allowed.

What Oakland asked, and what HCD said

On February 19, 2025, HCD sent the City of Oakland a Letter of Technical Assistance covering two real SB 684 projects: the MLK Project at 3701 Martin Luther King Jr Way (seven units on a 6,034-square-foot site, in the CN-3 zone) and the Market Street Project (four units on a 4,987-square-foot site, in the RM-2 zone). Both sites already allow multifamily use. Both rely on Government Code sections 65852.28 and 66499.41 — the sections SB 684 (Chapter 783, Statutes of 2023) added.

Oakland planned to require a CUP for the MLK Project — standard, the city said, for CN-3 residential projects that don't include commercial development within 30 feet of the street frontage — plus 75 square feet of open space per unit. For the Market Street Project, staff wasn't requiring discretionary approval but was holding the 15-foot front-yard setback.

HCD found both to be problems.

No CUP — "under any circumstance"

SB 684 creates, in HCD's words, a:

"streamlined ministerial approval process for development projects of ten or fewer residential units on urban lots under five acres located on sites that allow for multi-family residential uses"

Ministerial means no discretionary permit and no hearing. So when Oakland asked whether it could still require a CUP, HCD's answer was blunt:

"A CUP shall not be required under any circumstance for a parcel map or a tentative and final map for a housing development project qualifying under Government Code sections 65852.28 and 66499.41."

The conclusion:

"The City may not require a CUP for any project qualifying under Government Code sections 65852.28 and 66499.41."

That is HCD's read of the statute, not a court ruling — but it's the read a city gets measured against.

Setbacks and open space can't shrink the project

The harder question is objective standards. Cities like to point out that a setback or open-space rule is "objective," and therefore fair game. HCD's position is that objective isn't enough:

The City may not impose any objective standard that, among other things, physically precludes the development of a project built to the allowed densities as specified in Government Code section 65583.2, subdivision (c)(3)(B), i.e., "default densities."

Both Oakland projects sat within those default densities and met the thresholds the applicants asserted — lot sizes of at least 600 square feet and average unit size no larger than 1,750 square feet. So HCD's conclusion:

"Therefore, the City is obligated to reduce the front yard setback and open space requirements to the extent necessary to accommodate the units at the proposed density and size."

In plain terms: the setback and open-space minimum bend to the allowed unit count — not the other way around.

The one exit door

HCD didn't say a city can never decline a project. It said the bar is high:

"The City may only disapprove a housing development project qualifying under Government Code section 65852.28 if it makes a written finding, based on a preponderance of the evidence, that the proposed project would have a specific, adverse impact on public health and safety and there is no feasible method to mitigate or avoid the impact."

A CUP process, an open-space table, or a front-yard line is not that finding.

Verified against HCD's Letter of Technical Assistance to the City of Oakland, dated February 19, 2025 (Market Street and 3701 Martin Luther King Jr Way).

What this means if you're the one building

A Letter of Technical Assistance is HCD's interpretation, not settled law — courts remain the final word. But if your SB 684 project is being routed through a CUP, or asked to lose units to a setback or open-space rule, HCD has already told a city in writing that both moves are off the table. Pin down the qualifying facts — ten or fewer units, a lot under five acres, a multifamily-zoned site, lots of at least 600 square feet, average unit no larger than 1,750 square feet — and confirm how each requirement squares with Gov. Code sections 65852.28 and 66499.41 with your jurisdiction and your own counsel before conceding anything.

What CrossBeam does with it

When the letter lands on your desk, CrossBeam turns it around the same day: what each item is actually asking, the code or law behind it, and a written response you can hand to your team or your attorney — the back-and-forth that used to eat weeks, done in a couple of hours.