Off With Their Heads!

Throughout four years of public advocacy on housing issues, I have held fast to the ideal that American citizens have the right to speak to and receive a fair hearing from those that represent them. This ideal is based on a belief that the shared expertise of many would lead to informed public policy decisions by those that govern. How naïve…

”Off with their heads” is more like it.

Unfortunately, in Santa Barbara County it appears public comment is treated as something to be endured. Citizens who dare to disagree or challenge government action are the enemy. A case in point is the recent Board of Supervisors’ hearing on the legality of state housing mandates.

At a May 22, 2007, Board of Supervisors’ meeting, Brooks Firestone, 3rd District Supervisor, the current Chairman of the Board of Supervisors, requested County Counsel report to the Board explaining the State of California’s “housing element” law; a statutory edict by the State that all counties and cities must set aside land to build thousands of new living units every five years. He also asked County Counsel to brief the Board on the possible legal remedies the County has to resist these housing “mandates.”

Interestingly, prior to this request, Board Chairman Firestone wrote an op/ed piece published in the Santa Barbara News-Press on April 8, 2007, declaring the state housing mandates legally uncontestable; an opinion obviously not based upon any legal advice, or this request for a report from the County Counsel on May 22, 2007, would have been unnecessary.

The requested report followed public appeals to the Board by a number of citizens who urged the County to legally resist the State’s impingement on our local sovereignty and disregard of the health safety and welfare of the citizens of Santa Barbara County. The basis for citizen concern is the topographical, infrastructure and environmental constraints which exist in Santa Barbara County and the adverse impact which would result from paving over the little land we have left at densities of 20+ units per acre. The hard facts are that regardless of what the State “mandates,” there is little developable land left and the burden that would be imposed upon water supplies, roads, evacuation routes, and the environment, would destroy our communities and way of life.

Add to this list of legal arguments, that the huge population increase that the State insists we accommodate with thousands of mandated new houses is largely composed of foreign aliens to whom the County and State owe no duty to provide housing. California’s housing element law clearly states that any duty to provide housing extends only to Californians; legal residents of California, not those who violate the law by residing in our county and state illegally. On this basis alone the housing element law is illegal in its application by the State and can and should be legally challenged.

On August 21, 2007, the Board of Supervisors held a hearing on the report prepared by County Counsel’s Office entitled “Housing Element Law: Mandates and Risks of Defiance.”

The Board of Supervisors’ hearing on August 21, 2007, had all the hallmarks of a “set piece” (sports jargon for a soccer play which is orchestrated in advance with all players assigned a designated role to try to score a goal). It became clear as the hearing unfolded that the County Counsel’s report had been ordered simply to placate public outcry and the decision had already been made to do nothing different. At the hearing, Board Chairman Firestone even declared that the purpose of the report was to quell public opposition, becoming visibly irritated and accusatory when it did not.

Preserving the County’s Remedies… Or not

Unlike legal memorandum in the real world, the County Counsel’s report was written entirely in the negative, telling the Board everything it could not do. The memorandum did not respond to the Board’s request to describe legal remedies to contest the state housing element laws. It gave short descriptions of alleged cases, without proper citations, which in fact did not result in any legal precedent that is binding on the County. The leading legal authority that supports contesting the mandates on health, safety and welfare grounds, was not cited at all, a glaring omission that disturbed at least Supervisor Gray. The only possible explanation for the missing citation and the useless list of “cases” was to scare people into thinking there is nothing the County can do legally to contest the state housing mandates, which is untrue.

Another important fact missing from the report is that County Counsel also represents the Santa Barbara County Association of Governments (SBCAG). SBCAG is the governmental body made up of representatives of the County and cities within the County that divvies up the total numbers of new houses and land set asides mandated by the State among Santa Barbara’s various cities and the unincorporated county. This dual representation constitutes a conflict of interest disqualifying County Counsel from rendering legal advice on the housing mandates.

Recently, the City of Irvine sued the Southern California Association of Governments (SCAG) to contest being assigned 43.7 % of all of Orange County’s approximately 70,000 mandated new houses for the 2003-2008 period, even though it has only 6% of the county’s population and 8% of the available land.

However, the City of Irvine, unlike Santa Barbara County, contested these mandated numbers… in legal parlance, “preserved its remedies”… before filing the lawsuit; a fact County Counsel also failed to reveal in its report. Also missing from the report was the fact that Santa Barbara County let the statute of limitations expire on the 2003-2008 mandated numbers (17,531 new houses in total, 6,100 on 62 acres of land in the unincorporated County for 2003-2008). That important fact was also not revealed until citizens at the August 21 hearing questioned the Board.

Suddenly it is very clear exactly why County Counsel and Chairman Firestone have been insisting the County has no legal remedies and that the subject wasn’t covered in the report; unbeknownst to all of us, the County appears to have waived important legal remedies.

Throughout this public debate, Chairman Firestone has chastised the actions of citizens who object to the County’s acquiescence to State demands as futile and misleading. However, as public comment at the August 21 hearing and the City of Irvine case reveal, there are viable legal challenges available to contest the State housing mandates as an arbitrary, unconstitutional, over-reaching impingement on local sovereign rights, unfairly applied and contrary to the best interests of the health, welfare, and safety of the citizenry of Santa Barbara County.