State Housing Mandates Are Headed for Montecito

On May 9, the County Board of Supervisors will decide whether to approve a revised “Housing Element” for the period 2003 to 2008. The Housing Element is part of the County’s General Plan required to be updated by the State of California every five years.

In its infinite wisdom, the State has unilaterally and arbitrarily decided that for the period 2003 to 2008, Santa Barbara county, including all municipalities and unincorporated areas, must set aside land to build 17,581 new houses, regardless of the County’s present zoning restrictions, scarcity of undeveloped land or historical land use policies. Of these 17,581 houses at least 6,064, or 34%, must be in the unincorporated areas of the county.

When initially submitted to the State Department of Housing and Community Development, the County’s proposed Housing Element was found by the State to be deficient. The State asserted that the Housing Element did not comply with the State’s mandate that the County set aside sufficient land to build 6,064 housing units in the unincorporated areas of the County such as Eastern Goleta, Montecito, Summerland and portions of the North County, at densities of up to 20 units per acre.

Come 2008, there will be further mandates of increasing numbers of acres and densities, with more to come five years later.

The proposed Housing Element envisions that much of the mandated housing will be “affordable housing” units. This will greatly expand the County’s affordable housing program, one that has gone unchecked for years and has allowed fraud in procurement of units, blatant violation of occupancy, rental and sale restrictions. This has also resulted in a windfall to scofflaw owners at great damage to taxpayers. The Board of Supervisors has yet to resolve these problems despite numerous requests to investigate and reform the program.

This State housing edict is made regardless of whether citizens of this County want to be packed in like sardines by the thousands, at a loss of agricultural lands and open spaces, with accompanying detrimental impacts on the environment, traffic, safety and our quality of life. The Housing Element acknowledges that there are only 826,000 acres out of 1.63 million total acres in the County that are not owned by the Federal Government, cities or the UC system. Of those, only 4%, or 33,000 acres, are not too steep or rural to develop.

The State’s solution to scarcity of land for development, and to which the County has historically acquiesced, is to require that Santa Barbara County give up open space and agricultural lands, eliminate setbacks and parking requirements, force zoning changes for higher densities – all things which have protected our community from over-development in the past.

At present, no land in the Montecito area has been designated to be included in the 62-acre set-asides. However, the many hundreds of pages of County Planning and Development staff reports and supporting documents appended to the draft Housing Element make it very clear that Montecito and surrounding areas, regardless of zoning limitations and scarcity of undeveloped land, will eventually be targeted to contribute land for affordable housing projects.

Given this fact, the question is, How will the State force unincorporated Montecito and surrounding areas to accept affordable housing units if there are no property owners willing to contribute their land to this use?

Table 51 to the Housing Element refers to “Land Inventory Methodology” and exploitation of “under utilized properties,” which sounds a lot like the power of eminent domain could be used to deal with the problem of finding land to build all these houses.

At the public hearing on the Housing Element held on April 4, County Supervisors were asked directly whether they could promise citizens that eminent domain will not be used to force unwilling property owners in the unincorporated areas of Montecito, Summerland, Toro Canyon, Goleta and the North County to sell land to the County for re-sale to developers of “affordable housing.” There has to date been no such promise forthcoming.

Other planning changes to accommodate this explosion of development include plans for projects with affordable units to be fast-tracked. Appeals will be limited with the director of Planning and Development empowered to reject appeals. Negative declarations, rather than environmental impact reviews, will be used to get projects approved in an end run around California Environmental Quality Act. (Apparently only Ty Warner has to comply with stringent planning and development constraints and the environmental laws.)

The Housing Element “policy” favoring affordable housing, which would ignore Community Plans, eliminates zoning restrictions, forces developers to place affordable units among market rate units rather than pay in lieu of fees, and also allows demolition of existing housing to replace it with “affordable housing.” All of these concepts, if not carefully controlled, could allow substantial abuse and subject existing property owners to hardship and disparate treatment.

More importantly, at issue in this major policy decision is the question of whether Santa Barbara County will act to protect local control or cede its governmental power to act in the best interests of its citizens to the State.

A Will and a Way

The Board of Supervisors has several options. It can give in, only to have the State come back in 2008 and demand thousands more units, at even greater densities. Having acquiesced this time around, a large question will loom as to whether it has waived its legal rights.

Another option is to contest the mandate in court along with other jurisdictions that also want to protect their sovereignty. There are available legal remedies that allow the County to question the law and power of the State to usurp local control over its land use policies while not subjecting itself to penalties or fines for doing so. The County could file a declaratory relief action and request a stay of compliance and certification of the mandated number of housing units and property set-asides while the court determines the issues.

The County has the right under its police power and duty to protect the health, safety and welfare of its citizens to contest the state mandate law. Even the very one-sided staff report submitted in support of the revised Housing Element recognizes that the physical constraints of our area, availability of land (or lack thereof) and our historical land use policies and characteristics can be used to contest the mandate of 17,000-plus new housing units in the County for the 2003-2008 period. To our knowledge, no municipality or county has affirmatively challenged State housing mandates.

Lets us hope the Board of Supervisors takes a leadership position on this crucial issue and does not just cave in to the pressure to “go along” with the State’s arbitrary mandates, the result of persuasive building lobbyists and the State’s attempt to remedy its own long-term policy failure to address our burgeoning population, legal and illegal.