Santa Barbara News-Press

Opinion: Defining, challenging the alleged 'mandate'

June 17, 2007 9:18 AM

Political candidates, even those who squeak out a minimal victory, often speak of having a "mandate" from the voters. That usually means they feel free to do whatever they like regardless of the views of the people they supposedly represent and who elected them.

Dictionary definitions of mandate range from "an authoritative command" to "an authorization to act" to "a commission for governing conquered territory."

Santa Barbarans are being told by those who govern us that we must succumb to the state of California's "mandate" to build thousands of houses, regardless of whether there is available land or if it is in the best interests and general welfare of the citizenry and environment to do so.

It's hard to tell which definition of mandate applies to us, but the last one seems most apt under the circumstances.

At the Board of Supervisors meeting held May 22 in Santa Maria, the last item on a long agenda was described as a "Status Report on the Housing Element EIR." What the agenda item really was about was the ongoing process to rezone at least 62 or more acres of land in the unincorporated county to build thousands of houses at a minimum density of 20 units or more per acre to satisfy the state's alleged housing mandate.

Even though this is a subject of great interest to many residents of unincorporated Santa Barbara County, there were only two public speakers present -- not surprising, given the benign agenda description. One speaker was a ubiquitous housing advocate who champions government-subsidized housing at every opportunity and the other a representative of a developer-backed lobbying group that advocates building more houses, the more the better.

Personnel from the county's departments of Planning & Development, Long Range Planning, County Executive and County Counsel gave the status report. Even an intelligent and attentive listener could not easily have discerned from the discussion exactly what the state mandate means, from what law it supposedly emanates, who decided there should be land set aside to build 17,000 new houses every five years in Santa Barbara County (6,700 in the unincorporated areas of the county) and whether any municipality or other county has ever legally challenged the state's alleged power to do this.

Watching a tape of the hearing was a real eye-opener. It was shocking to hear County Counsel and other staff members present unable to respond with concrete facts, statutory and case citations, to the board's questions, while at the same time advocating to the board that it had no other choice but to succumb to these mandates. Staff did not even know if agricultural units or illegal second units helped meet the "mandated" numbers.

It was clear that many of the people participating, including our elected representatives, don't understand this issue any better than the rest of us. The difference is they are making decisions that will dramatically affect our lives and community for generations to come.

The truth of the matter is, there is no state "law" that forces Santa Barbara County to accept an arbitrary allotment of thousands of new houses to be built in the unincorporated county every five years.

What exists is a California law that requires every county and municipality have a "housing element." The housing element law covers a variety of subjects, many of which are the product of heavy lobbying by the building industry. While the law requires localities to absorb their "fair share of regional housing needs," it does not directly mandate that a certain number of acres of land be devoted to housing or how many units must be built, at what density, in every five-year period.

The "mandate" that the Board of Supervisors and staff keep referring to is in fact an arbitrary number that a bunch of low-level bureaucrats in the State Department of Housing and Community Development in Sacramento decide through a regulatory process should be visited upon Santa Barbara and other communities throughout the state. For all we know from the useless staff report delivered to the Board of Supervisors on May 22, the numbers demanded of Santa Barbara could have been hatched up out of jealousy by these unknown denizens of Sacramento after a particularly long, hot summer or densely foggy winter.

Equally useless was the discussion of what alternatives the county has to succumbing to this bureaucratic edict. Have there been any lawsuits by other counties or cities challenging the arbitrary numbers assigned to them? What was the outcome? What issues and legal theories were raised, decided by a court? Has the state of California moved to enforce this supposed mandate? What constitutes compliance?

It sounded from the discussion that no one knows, which is pretty scary for all of us.

We are told by the supervisors and county personnel that this alleged housing mandate is imposed by the state of California to deal with increasing population -- the same state that refuses to send National Guardsmen to the border to stop the tsunami of illegal immigrants flooding into California, thus tolerating wholesale disregard of the law. Yet when we as citizens suggest that the county challenge the state before it so readily gives in to housing demands that threaten our health (lack of water, sanitation, infrastructure), safety (fire, earthquake, limited evacuation routes), welfare (over-population, crime) and destroy the environment and community we love, we are chastised that we must be law-abiding and obey the state mandate without question.

Under these circumstances, the legal doctrine of estoppel is quite apropos. Simply stated, that means that if the state disregards the law, thus allowing our population to swell, it may not then mandate us to build thousands of densely packed houses on the little remaining land in our community to deal with its failure . . . under the law, it is "estopped" from doing so.

Opponents are not arguing that the county ignore the state's demands. Why can't the county move proactively to file a declaratory relief action or administrative action to have the regulations challenged and limited before we roll over and let bureaucrats who don't live here or care about our community decide our future? Better yet, why don't we join up with other jurisdictions to challenge this mandate?

At the very least, before any decision is made, those who represent us and whose salaries we pay with our taxes owe us a far more educated, open and informed discussion and decision-making process before they vote to pave over paradise.

The author is a former prosecutor. This is part of a series of commentaries she's writing for Voices on county housing.

The author lives in the Goleta Valley.