For the second time in a little more than a year, affordable-housing advocates are taking the city of San Diego to court. Legal action, they say, is becoming the only way to get lawmakers to listen to them, "apart from turning out 3,000 or 4,000 people at City Hall," said Richard Lawrence, head of the Affordable Housing Coalition of San Diego, one of the groups behind both lawsuits.
The first lawsuit, in 2005, tried to slow a wave of condo conversions by arguing the city wasn't adequately considering impacts of the conversions on low-income renters, among other things. The Affordable Housing Coalition and a second group, Citizens for Responsible and Equitable Environmental Development, plan to file second lawsuit early next month in which they'll argue that the city's housing element-one of the "elements" that make up the city's General Plan and its roadmap guiding future housing development-is a vague, error-filled document that won't solve San Diego's affordable-housing problems. Should a judge rule in the groups' favor, it could mean a moratorium on all new development until the housing element is revised.
"The housing element, as written, will not take or guide the city out of its current affordable-housing crisis," said Cory Briggs, the attorney for the advocacy groups.
Every five years, each city in California must, by law, draw up a housing element. The purpose of the document is for a city to demonstrate that it's doing everything it can to plan for the housing needs of its citizens. It's also the state's way of making sure that each city strives to create its fair share of low-income housing and doesn't put up any barriers to getting that housing-or housing for any other segment of the population-built.
By law, a housing element must answer specific questions. Briggs said San Diego's housing element omits too much of the state-required information.
It doesn't, for example, take into account the city's current affordable housing shortage, Briggs said-it only looks at the projected need for the next five years. Neither does San Diego's housing element seriously analyze why housing policies over the last several years have failed to lift the city out of the "housing state of emergency" declared by the City Council four years ago and renewed monthly since then, Briggs said.
"I went through the new housing element and compared it word for word, letter for letter, to the old housing element," he said. "I highlighted all the new text. You would be amazed how little highlighting there is in some sections of the document.
"How could [the City Council] adopt a [housing element] in 1999, within a couple of years declare monthly states of emergency for affordable housing, do a revision [of the housing element] that adopts their prior methods wholesale and say that they're actually doing something for affordable housing?" Briggs said. "If the last one got you into an affordable-housing state of emergency, doing the same thing sure the hell isn't going to improve it."
Though it's been almost two years in the making, the city was under the gun to get a draft of the housing element approved. The last City Council meeting of the year was on Dec. 5 and the deadline to apply for a $4 million state housing grant is in January. No housing element, no chance of getting the grant. The council approved the housing element largely based on a letter from the state Department of Housing and Community Development (HCD) saying that the draft complied with the law. Paul McDougall, a policy specialist with HCD, confirmed that his department found the housing element in compliance. "We take this stuff pretty seriously," he said.
Jim Waring, Mayor Jerry Sanders' land-use and housing czar, told CityBeat he doesn't agree with Briggs' assessment. The housing element involved months of public outreach, meetings and workshops, he said.
"The city of San Diego does a lot better" than other cities when it comes to housing, Waring pointed out. "No one does enough.... Every big city in California is struggling with this issue. We are no different and in many ways we've done better than some and worse than others, but it is not a San Diego issue."
Waring said he offered to meet with Briggs and his clients, "and they refused. They made a decision they'd rather go to court than work through it outside of court. I personally believe that that's extremely unfortunate, counterproductive to the goal, wasteful of human and financial resources, but they have that right, and they decided to go that way."
Briggs isn't the only attorney who found the housing element legally deficient.
City Attorney Mike Aguirre wrote a memo citing many of the same items as Briggs. The City Council didn't get that memo until the end of the day on Monday, Dec. 4; the housing element was scheduled for a vote the following day. The letter from the state approving the housing element arrived on Dec. 5.
Aguirre's objections were undermined by both the lateness of his memo and a verbal skirmish he had with City Councilmembers Toni Atkins and Jim Madaffer that prompted Council President Scott Peters to call for a recess. Madaffer called Aguirre "a disgrace to the city" after the city attorney drew a parallel between the housing element and the city's pension mess, telling council members that approving the housing element would constitute an "illegal act" and that "we haven't done a very good job of [obeying the law] for a long time in this city."
The state's McDougall said he knows of no other instances in which a city attorney has opposed his own city's housing element.
Both Briggs' and Aguirre's objections to the housing element have been submitted to the state for review, said Janet Huston, HCD spokesperson. If HCD finds the objections have merit, the department will ask the city to revise the document, she said.
Shirley Edwards, head of the city attorney's land-use division, said the City Council got the memo the day before the meeting "because that was when we had the opportunity to provide it to them." Because Aguirre's office will have to defend the city against Briggs' lawsuit, Edwards couldn't comment on whether anyone in the city attorney's office had brought up any legal objections sooner. Edwards spoke only briefly at the Dec. 5 City Council meeting and offered indirect comment on the housing element's legality.
"It is important that the housing element reflect the reality of the city's crisis and set out and action plan for seriously addressing this reality. Nothing less is expected under the law," she said.
The Affordable Housing Coalition's Lawrence said he submitted a six-page letter to the city's Planning Department last year, weighing in on the housing element. The letter deals more with policy issues rather than the legal points that comprise the lawsuit. Lawrence, who was also on the city's 2003 Affordable Housing Task Force, said he saw little changes based on his letter.
"We're arguing some of the old battles here," he said. "When it comes to SROs, for instance, we're continuing to see the failure of the city to protect the SRO inventory." SROs, or single-room-occupancy hotels, are considered the housing option of last resort, renting tiny rooms for as little as $400 a month. The housing element says that the city's SRO ordinance-a law intended to protect residents and SRO housing stock-was to be revised by July of 2006. Currently, the ordinance is stuck in committee hearings.
What it comes down to, Lawrence said, is a lack of political will.
"What was as discouraging as anything about the [housing element] was the continued recognition that the size of the population that's being affected by the housing crisis has grown. The city goes forward with this housing element that simply says there's nothing the city can do to address the problems we're facing other than continue to do what we've been doing," which, Lawrence said, hasn't come close to solving the affordable-housing shortage. Currently, he pointed out, nearly 40 percent of San Diego households spend more than half their income on housing.
Tom Scott, who heads the San Diego Housing Federation, said he ultimately gave up on providing input for the housing element due to lack of time but also growing cynicism over how much a policy document can really accomplish. In the end, what it comes down to is money, he said, and that "comes down to political will of the voters. There's not too much the city can do without raising revenues.... We need the subsidy to really do much more [but] there's just no appetite to support going to voters for additional funding sources, and the mayor pretty much ran on a no-new-taxes campaign.
"The city of San Diego does more than most places do within Southern California," Scott said, but land and building costs have skyrocketed. "There's a council that really, I believe, is committed to doing as much as they can without committing what they perceive to be political suicide. We have a mayor who supports trying to do more. That's the positive side. But if you're working retail service or a service job, they're not doing enough. It gets back to the living-wage argument," Scott noted. "People have to get paid enough to live here because our housing prices are not going down."
San Diego Housing by the numbers
Projected number of low-income housing units San Diego will need through 2010:
Number of those units the city's housing element says can feasibly be built:
Number of households in San Diego earning less than $54,800:
Percentage of those households spending more than 30 percent of their income on rent:
Percentage of state budget spent on housing in 2004:
Percentage spent in 1994:
Fair-market rent for a one-bedroom apartment in San Diego:
Hours of minimum-wage work per week to afford it:
Source:City of San Diego 2005 Housing Element, California Budget Project