We learned last week that as long as the current members of the City Council are setting policy, the so-called affordable housing state of emergency that's been in place in San Diego since 2002 is a not-terribly-funny joke.
On April 3, the City Council voted 5-3 to cave in to the demands of the Building Industry Association, which had sued the city over its inclusionary-housing ordinance, the law passed in 2003 that requires developers to either set aside some housing units as affordable or pay an in-lieu fee that, ostensibly, would be used to build affordable housing.
At issue is when the in-lieu fee is assessed. The city assesses it later in the development-approval process; the BIA wants it assessed earlier. Why? Because, currently, the fee is rising each year, and developers would save a total of somewhere between $9 million and $43 million on housing projects that are already in the pipeline. In future years, the fee will be tied to housing prices, so, theoretically, it could go up or down, but it most likely would continue to rise at a modest rate, so the Building Industry Association is, in effect, attempting to ratchet down the fee through legal intimidation.
The BIA and Mayor Jerry Sanders got together and hammered out a "compromise" that was not so much a compromise as it was a total capitulation to the builders. The "compromise" was presented to members of the City Council last week. Before they voted, two lawyers from the City Attorney's Office told them they had a strong legal defense of the city's current policy. That didn't seem to matter to City Councilmembers Jim Madaffer, Brian Maienschein, Kevin Faulconer, Scott Peters and Tony Young, who all voted for the settlement. To their credit, Donna Frye, Toni Atkins and Ben Hueso voted no.
The effect of the vote was to hand millions of dollars back to the builders right away and many millions more in the future-money that's supposed to be building affordable housing. The only downside in voting no was the risk of the city having to pay the BIA's legal fees and court costs in the event of a legal loss.
Given their political ideologies, Madaffer, Maienschein and Faulconer-and to some extent, Peters, too-could be expected to side with the BIA. The guy we're disappointed in is Young, who represents a district with so many lower-income residents.
During the City Council meeting, Young tried to get to the crux of the legal issue when he asked about the intent of former City Councilmember Ralph Inzunza, who made the original, rather vague motion on when the fee should be assessed. But no one told Young that Inzunza's intent that day in 2002 was made irrelevant in May 2003, when the City Council, mindful of the BIA's protest, clarified the intent of its ordinance. While we sympathize with Young's inability to get that information (he wasn't on the City Council in 2003, but his boss at the time, Charles Lewis, was one of the members who asked for the clarification), it shouldn't have been necessary for him to vote to stand up to the BIA.
The story grew more intriguing with the publication of an excellent story by the Voice of San Diego's Evan McLaughlin that detailed how the staffs of three city departments-Planning, Development Services and the Housing Commission-had recommended against the compromise. That is, until Sanders intervened. Sanders met first with the BIA, and then city staffers, and the result was a changed recommendation. Under the new executive-mayor form of government, city staffers report to Sanders.
Mr. Mayor, are you strong-arming your staff into making recommendations to the City Council that conform to your policy goals? We hope not, because that would mean the City Council wouldn't have the benefit of the staff's genuine expert opinion-and those critics who worried that too much power is being consolidated in the mayor's office would be vindicated.
There's still a chance for Young and Peters to change their minds; the compromise will come back to the City Council for final adoption. We urge them to grow a spine and stand up to the builders. And we urge City Attorney Mike Aguirre to make a stronger case to the City Council for rejecting the capitu-mise.
At last week's meeting, there was much gassing about fixing the "broken" inclusionary-housing ordinance, particularly from Madaffer. The way to fix the ordinance is to scrap the in-lieu fee altogether and to require developers to build on-site affordable housing. But the BIA will fight it; therefore, in light of last week's vote, such a bold policy move doesn't stand much of a chance.