Against the element
County likely to be sued for illegally approving subdivision
That’s according to affordable housing advocacy group Legal Services of Northern California. As of press time, the group was threatening a lawsuit to nullify approval of the Sunrise-Douglas project because the county has not complied with state laws requiring it to provide adequate space for new affordable housing.
The group also said the project approval is just the latest example of a failure by county officials, stretching back several years, to ensure that Sacramento’s recent rampant development makes at least some room for lower-income residents.
“The county is going to have to demonstrate a much better plan for meeting its affordable-housing needs,” said Legal Services attorney Brian Augusta.
The Sunrise-Douglas project is being pushed by prominent local developer Angelo Tsakopoulos, and is ultimately slated to include some 22,000 homes, as well as commercial development and schools. The plan has been assailed from many angles, most vocally by environmental and community groups that say it will have a negative impact on air quality, traffic congestion and the local groundwater supply.
Now, affordable housing advocates say the project was illegally approved because the county doesn’t have a valid housing element as part of its general plan, pitting local control against larger state imperatives.
All local governments in California are required to have a current housing element which outlines the jurisdiction’s plan to set aside enough land to develop affordable housing for its low-income citizens. Sacramento County’s housing element expired on June 30, more than two weeks before Sunrise-Douglas was approved. Legal Services contends that the county has no authority to approve any development projects while it is out of compliance with state law. It’s like driving with expired registration tags.
The group also said that the county has failed to comply with the settlement terms of a 1996 lawsuit, in which the county agreed to set aside a large chunk of land for affordable housing. Six years ago, the county and Legal Services agreed on what is now called the Coleman settlement, in which the county agreed to set aside 1,000 acres of land to be developed with housing affordable to people in the low- and very low-income range—which includes any family that brings home less than 80 percent of the county’s median income. Six years later, the county still hasn’t met the requirement.
County officials have acknowledged that the inventory is short about 75 acres, enough space for about 1,500 homes. Legal Services suggests the county is doing some creative accounting, and that the shortfall is more like 200 acres.
“We want them to meet their obligation, and they haven’t done it,” said Augusta. “They are putting the horse before the cart. They have no business approving [Sunrise-Douglas] when they can’t comply with the law.”
A lawsuit by Legal Services last year temporarily put a stop to the city of Folsom’s plans to expand south of Highway 50. That lawsuit ultimately led to a settlement with Legal Services, and resulted in the city’s agreement to plan for more affordable housing. But Folsom city officials then found themselves under attack by city residents who didn’t want to see more apartments “dumped” in their community. The conflict in Folsom underscores how political fallout might dissuade elected officials from sticking to the letter of the law.
For their part, Sacramento County officials reject the notion that anything was done illegally. Deputy County Counsel Michelle Bach said the June 30 deadline to have a new housing element in place is really just a “target date,” rather than a hard deadline.
But state housing authorities say that is just wrong. “We certainly wouldn’t agree with that interpretation,” said Cathy Creswell, deputy director of the state Department of Housing and Community Development (HCD).
“That statute is pretty clear. It is not an advisory or a suggestion,” Creswell explained. “They must update their housing element by the deadline. As of this moment, we consider them out of compliance.”
But Creswell added that while HCD can encourage and cajole local governments to comply, there are no penalties that can be used to enforce the law. Since the housing element law has no teeth, it is usually left up to the courts to make local governments play by the rules.
Bach said that Sacramento officials had not been advised that they were out of compliance by HCD, but Creswell said the state would be in touch soon. Both sides agree that the final authority is likely to be the judge.
“If somebody decides to sue us, a court would decide it,” said Bach. Beyond that, the county plans to go ahead with the project.
It is not unusual for local governments to bend state housing rules, perhaps not surprising since there is little—short of going to court—that can be done to enforce the rules.
“Unless someone is there prodding them to do it,” Augusta said, “what incentive do they have?”
HCD’s Creswell also noted the political difficulty in planning for affordable housing. “It can be very difficult to convince communities that accommodating that kind of growth is a good thing.” That’s unfortunate, said Creswell. “The people who need affordable housing are your kids’ teachers, and the person who gives you your coffee at Starbucks.”
Until two years ago, the city of Sacramento had gone for 10 years without a valid housing element. It mostly seemed to go unnoticed until city officials realized that they might be sued, and that a lawsuit could paralyze development in the fast-growing area of the city called North Natomas.
As city officials and citizens groups hashed over the new rules, City Councilman Dave Jones and housing groups were able to get the council to adopt more stringent rules, including a “mixed-income” provision that requires all development projects in new growth areas of the city to include a certain percentage of units affordable to lower-income-level residents.
Interestingly, there is now some talk of including similar mixed-income or “inclusionary-zoning” provisions in the county’s new housing element. And, the ever-mutating regional cooperation bill being championed by Assemblyman Darrell Steinberg, AB 680, might also require local governments that have lagged in providing affordable housing to adopt some kind of inclusionary-zoning rules.
Given the timing, Augusta said he’s not surprised that the county rushed approval of Sunrise-Douglas ahead of adopting any new rules.
“I don’t think it was an accident,” he said. “I think they wanted this land locked up and exempted from any inclusionary rules.”