The YIMBY crowd is unleashing their lawsuits on cities whose Housing Elements are not yet approved by the state, and in the case of an impending Marin County lawsuit, claiming that some proposed housing sites are literally “in the water.”
Here in San Francisco, the year-plus drama over passing the state-mandated Housing Element — a long-range planning document related to housing — was finally resolved in late January with a successfully approved plan that the state OK’ed at the deadline’s 11th hour. That state required that SF submit a plan to build 82,000 new housing units by the year 2031, and had we not gotten the plan approved in time, we’d have been subject to potentially losing billions in state funding, a range of other legal and financial consequences, plus the much-discussed “builder’s remedy” that would have allowed developers to just build whatever they pleased without regard for zoning or city approvals.
But hundreds of California cities did not get their Housing Elements approved by the state’s February 1 deadline. One of these is Marin County’s Sausalito, who did not even manage to submit their plan to the state until February 28, about a full month past the deadline. The state now has 60 days to approve it (and they generally render a decision more quickly than 60 days). But until that plan is approved by the state, Sausalito is out-of-compliance on paper and potentially subject to the above-referenced legal consequences and “builder’s remedy.”
And here come those legal consequences, apparently. The Chronicle reports that YIMBY Law is insisting they will sue the City of Sausalito, with developers named in their suit claiming that sites Sausalito identified are “unsuitable for development” or even “mostly underwater.”
Though we should note a few issues with that Chronicle report. It’s an opinion piece (not marked as such on the Chronicle's home page), with very subtle labeling of “Opinion” in the top-left corner of the report and in the URL, if anyone reads URLs. Moreover, the lawsuit is still theoretical — the Chronicle notes that “By Wednesday, YIMBY Law plans to announce a lawsuit against Sausalito,” which doesn’t even necessarily mean they’re going to file it this week. The article gets comment from the pro-development group YIMBY Law and an interested real estate developer Home3 Inc. Sausalito’s city manager is given the opportunity to comment, but only from the difficult position of not even having seen any of the legal claims of a lawsuit that has not even been filed yet.
In other words, this lawsuit story seems to be fed to the Chronicle as an exclusive, with knowledge its claims would generate supportive, uncritical coverage for the plaintiffs. The article’s author has been retweeting YIMBY tweets all day since the piece was published.
There may be some credible claims in this still-unfiled lawsuit. It quotes one resident as saying their property was included as a potential development site “without any contact with me, and without any notice period or hearing.” But the claim that some sites are “mostly underwater” deserves a little scrutiny.
One site that Home3 claims “has a significant portion in the water” is seen above, 100 Spinnaker Drive. Yes, there’s water there, but otherwise it's a restaurant parking lot where a structure could theoretically be built. That restaurant remains open, so there may be real issues with the landowner’s willingness to build housing there. Other potential houseboat sites Sausalito identifies in their Housing Element may also have their own feasability issues. But to characterize these sites as a Spongebob cartoon environment would be inaccurate.
Sausalito is certainly a pricey area that, and like much of Marin County, is not keen to see tiers of more affordable housing built there. But it’s hard to imagine that developers want to see housing stock there become more affordable, either. And since Sausalito’s housing element is not approved by the state, they could end up on the hook for legal fees when groups like YIMBY Law or developers sue them. That creates an incentive for more of these lawsuits, as the plaintiffs can figure that in many cases, local governments will have to pay their attorney fees, and they won’t worry about ending up financially underwater.
Image: Squirrel 22 via Wikimedia Commons