Sausalito’s fishy housing plan
Like the approaching storms, get ready for another atmospheric river of YIMBY housing lawsuits to soak the Bay Area.
Last month, YIMBY Law and other housing advocacy groups sued 12 Bay Area governments for failing to meet the state’s Jan. 31 deadline to adopt “housing elements” outlining how they plan to accommodate their share of the 2.5 million homes California has directed cities to prepare for by 2030.
By Wednesday, YIMBY Law plans to announce a lawsuit against Sausalito for voting to adopt a housing blueprint that allegedly fails to comply with state law. Keith Diggs, an attorney for YIMBY Law, told me this is the first lawsuit of which he’s aware that challenges the substance of a Bay Area city’s housing plan.
Sausalito met the state’s Jan. 31 deadline — but only by hastily approving a blueprint that “cut a lot of corners,” Diggs said, and didn’t allow adequate time for public input. Indeed, on Jan. 30 — just four days after the state Department of Housing and Community Development notified Sausalito that its draft plan to accommodate 724 new homes failed to comply with state law and required substantial edits — the City Council adopted a twice-revised housing element at a special meeting.
Why the rush?
By adopting a plan at the last minute, Sausalito appears to have been trying to avoid falling prey to the “builder’s remedy,” which allows developers to bypass local zoning standards in cities with noncompliant housing elements for residential projects with a certain percentage of lowincome or moderate-income units.
But Sausalito didn’t seem as concerned with following other aspects of state law, such as identifying feasible sites where homes could actually be built.
To some residents’ surprise, the city’s draft housing plan identified their properties for possible redevelopment — without their knowledge or consent.
“I am shocked that you have approved my house for a recommendation to the state without any contact with me, and without any notice period or hearing,” resident Jim Girardeau wrote to the planning commission in a Jan. 29 email.
Other proposed sites were “unsuitable for development” because they were “mostly underwater,” representatives of real estate development company Home3 Inc., wrote in a Jan. 30 letter to the City Council. Among them: A site located at 100 Spinnaker Drive, which “has a significant portion in the water” and a negative residual land value of $15 million, making development financially infeasible.
That wasn’t the only underwater property Sausalito identified for development. At an address listed only as “In Bay,” Sausalito proposed building as many as 35 units on a patch of underwater eelgrass, citing the “potential for waterbased housing.” Yet, in response to public comments, the city acknowledged that the San Francisco Bay Conservation and Development Commission places strict limitations on the amount of “liveaboard housing allowed in the marinas.”
Both the Spinnaker Drive site and the eelgrass patch were removed from the housing element the City Council adopted after a five-hour meeting on Jan. 30 — though the plan calls for expanding water-based housing at another site. The plan was submitted on Feb. 27 to the state housing department, which considers the city to be out of compliance while its plan is under review.
City manager Chris Zapata said Sausalito would not comment because it has yet to see the lawsuit, but described the housing element as the “result of years of community engagement, collaboration and hard work.”
The city’s absurd site inventory, however, is just one prong of YIMBY Law’s lawsuit. The other has to do with Sausalito’s failure to analyze its housing element under the California Environmental Quality Act. According to a document I reviewed, Sausalito filed a CEQA notice of exemption on Feb. 1, arguing that the housing element “would not result in any direct or indirect physical changes to the environment” because it is “strictly a policy document and does not provide entitlements to any specific land use projects.”
It might seem strange for pro-housing advocates to sue a city for failing to undergo CEQA review, which is often weaponized to delay or deny new developments. But Diggs argued that Sausalito’s attempted evasion of CEQA is just a means of “kicking the can down the road” and will force developers to conduct more of the environmental analysis the city should have conducted itself, further delaying projects and driving costs up.
Developers, however, don’t seem dissuaded.
In its letter to the Sausalito City Council, Home3, the real estate development company, said it was excited to use the builder’s remedy and other state streamlining laws to bypass “overly restrictive local regulations.”
“We believe new housing is especially needed in high-resource, economically segregated communities, like Sausalito,” wrote Home3 Chief Executive Officer Nils Bunger and Chief Operating Officer Marcio van Muhlen, citing a “moral imperative” to increase regional housing supply.
There is also, of course, a financial imperative for developers to build more housing. But who can blame them for wanting to unleash the power of state law on affluent cities that for decades have stymied new developments, driving low-income Californians out of the state and exacerbating wealth gaps?
There are some local governments that are justifiably upset at having to bend themselves to Sacramento’s rules and regulations. But state laws restricting local government oversight of new housing wouldn’t have been necessary if those governments had been amenable to building more housing in the first place.
Instead, they’ve identified underwater parcels of land for new housing and declared themselves mountain lion sanctuaries to avoid duplexes. Cities either need to get serious about doing their part to solve the state’s housing crisis — or accept the consequences without complaint.
There are some local governments that are justifiably upset at having to bend themselves to Sacramento’s rules and regulations. But state laws restricting local government oversight of new housing wouldn’t have been necessary if those governments had been amenable to building more housing in the first place.