SANDAG’s housing plan backlog triggers ‘builder’s remedy’ concerns

REGION — At least nine San Diego County cities without state-certified housing elements will remain in a state of development limbo thanks to a rarely-used state law allowing builders to advance projects without municipal interference.

A nearly three-decade old section of state law, known as the “builder’s remedy,” states that if a city violates its requirement to produce a housing plan every eight years, “developers can essentially propose building whatever they want, provided some of the housing is set aside for low- or middle-income families,” the Los Angeles Times reports.

The issue came to light during the San Diego Association of Governments’ Oct. 28 board of directors meeting after the board voted to approve $1.5 million from its contingency fund to pay for updates to the 2021 Regional Transportation Plan without a road user charge.

But since SANDAG employees are currently working on removing the controversial fee, staff is reportedly stretched too thin to both revise the transportation plan and review housing elements, leaving many cities at the mercy of developers for at least the next seven months.

Terry Gaasterland of Del Mar said she doesn’t understand how the agency can’t do both, since it’s a regional planning agency for transportation and housing.

“What I realized, Del Mar is the first place in the area that has this builder remedy project submitted,” Gaasterland said. “Without any certified Housing Element, any jurisdiction is at peril of a builder coming along and successfully arguing … and willing to build high density with affordable (housing). When a builder brings that to the table, it is very difficult to do anything other than shape where that project is going to go.”

For example, a developer recently submitted plans for 4,500 apartments in Santa Monica, including a 15-story high-rise with 2,000 units, and there may be little city officials can do to stop it, according to the LA Times.

In Del Mar, Gaasterland said a developer has proposed 259 units, known as Seaside Ridge. As long as they meet the specifics of the city’s general plan and state law, officials have little recourse to prevent the project from being constructed.

Gaasterland’s took issue with the board’s immediate attempts to “retrofit” the transportation plan instead of dedicating staff and resources to reviewing housing elements. Since the charge would not be implemented until 2030, Gaasterland proposed staff postpone the removal of the charge for the 2024 or 2025 update.

The cities of Del Mar, Solana Beach, Coronado, Escondido, La Mesa, Lemon Grove, Oceanside, Poway and Santee do not have state-certified housing plans. Two North County cities — Carlsbad and San Marcos  —have certified housing elements.

In Carlsbad, Mayor Matt Hall said the city hired a consultant to bypass a SANDAG review. The city’s plan has since been approved, making the additional cost worth the expense, Hall said.

Ed Musgrove, of San Marcos, said another issue concerning him was SANDAG’s allocation of $1.5 million out the contingency reserve fund. The transfer leaves just $4.1 million remaining in the account, but Musgrove questioned how the money would be spent.

Musgrove said it appears at least $500,000 would be allocated to pay staff already on the payroll.

“Now we need to pay $1.5 million to extract the (road user charge) and come up with an alternate plan,” Musgrove said. “In my opinion, there always should have been an alternate plan because you can’t pin the entire plan on something you can’t control, which is a tax increase. There was a million (dollars) for outside consultants, which begs the question, do we have to use consultants to put this together? Why are we programming half-a-million dollars to pay employees that we already hired? The answer I got was a little garbled.”

The plan calls for three half-cent tax increases — three for San Diego residents and two for all other residents — in addition to the road user charge and managed lanes (toll roads).

Supervisor Jim Desmond and multiple SANDAG board members, including Hall, mayors Rebecca Jones of San Marcos and Richard Bailey of Coronado and Oceanside Councilman Chris Rodriguez, have called for the removal of the road charge for at least two years.

In December 2021, SANDAG chairwoman Catherine Blakespear, vice chairman Todd Gloria and National City Mayor Alejandra Sotel-Solis walked back their initial support of the road charge. The board then voted to have SANDAG staff return with an updated transportation plan without the road charge within six months.

This summer, SANDAG staff said it would need more time, at least until spring 2023 to eliminate the charge from the plan completely.