Cassius Marcellus Coolidge
If you’re playing cards and you don’t know who the patsy is at the table, you’re the patsy. ~ Warren Buffett
As reported by the Marin IJ, as “breaking news,” Marin County cities are suddenly aflutter about their state-mandated RHNA (Regional Housing Needs Assessment) allocation quotas. Mill Valley Mayor John McCauley’s characterization of his city’s “requirement” to build 865 new housing units in the next 8 years as being “ridiculous” is certainly accurate and the unanimous support for that position by the City Council was appropriate. But, it's all too little, too late. Perhaps, Marin electeds might want to start thinking about what game the dealer is really dealing.
It's becoming obvious now that Marin cities needed to start pushing back on Sacramento’s housing agenda in the fall of 2008 when a law called Senate Bill 375 was signed into law. That's when the handwriting was on the wall.
Lone voices in the community, at the time, began to warn about what was to come. But their comments were repeatedly ignored and called overly dramatic. The public was assured that the state would never try to usurp the constitutionally endowed powers of locally elected officials to control local zoning and planning. Plan Bay Area was just a plan, not an ultimatum. Uh, huh.
Starting in the early 2000s, Mill Valley attempted to craft a plan to turn a one-mile stretch of Miller Avenue to turn it into a retail/commercial district that looked like Walnut Creek in their consultant’s renderings. It was proposing an absurdly dense, mid-rise, mixed-use street mall.
This plan resulted from a fear that insanely rising housing costs at that time (prices that seem quaint, today) required that the city incentivize more high-density housing. The plan was met with vociferous community opposition. But it was only defeated by a Herculean effort by a relatively small group of individuals who were paying attention and who managed to mount a political campaign that ousted three of the five sitting council members.
What ended up being built was a street improvement project that generally had broad support, sans the high-density housing proposals. But that same small group of individuals realized then that this was not going to be an isolated incident but portended a trend that needed to be watched, carefully.
In the early 2000s, the State was already floating questionable theories about how to make cities do their “fair share” of housing development. However, once the 2008 financial crisis hit everyone’s attention turned to more immediate financial concerns and rising housing costs seemed less important.
But as Neal Young famously said, “Rust never sleeps” and the wheels kept churning in Sacramento.
SB 375 (Senator Darryl Steinberg) was passed in the fall of 2008. It was a seminal act that set in motion the farcical, top-down, one-size-fits-all, off-the-wall, trickle-down nonsense that has consumed the California Legislature faster than the Delta Variant took down India, ever since.
SB 375 established the concept that cities needed to create a “Sustainable Community Strategy” and report directly to unelected political agencies (the Association of Bay Area Governments (ABAG), the Metropolitan Transportation Commission (MTC), and the Department of Housing and Community Development (HCD) in Sacramento, just to name a few) to get their blessings in managing their local planning and zoning and crafting their General Plan’s Housing Element or suffer dire consequences (fines, penalties, and litigation even though no city in Marin has ever built or ever will build any housing). It also established the scientifically unsupported proposition that urbanism and high-density, uncontrolled growth were de facto good for the environment, regardless of whether or not the building methods were sustainable/green, the housing was affordable, or any other discernible public benefit.
This is somewhat analogous to the “Greed is good” argument by Gordon Gecko in the movie “Wall Street,” and we all know how that's turned out.
Since that time, the tenets of SB 375 have grown into a massive political movement and formed the basis of over 35 new state housing laws--and dozens more working their way through the legislature--that are based on some of the most absurd and mean-spirited beliefs that we’ve seen in half a century: political beliefs like having a yard should be a criminal offense (Senator Scott Wiener) or that single-family home ownership is structural racism regardless of the race of the inhabitants (Senators Atkins and Chu), and a long list of other specious concepts, all of which ignore the need to create truly affordable housing for those most in need. That means poor and disenfranchised people, mostly of color, many of whom, it might surprise uber-progressives to know, live in neighborhoods they love and don't want gentrified by predominantly white, entitled, highly-educated YIMBY Millennials.
The truth is that RHNA quotas today are simply punitive, politically motivated tools that are not based on any mathematical formula or other financial rationales. They are part of an unvarnished “hate the suburbs”- “hate the middle-class” (hate their parents?) campaign designed to offload the costly consequences of growth onto the backs of everyday taxpayers, while the jobs-generating mega-corporations that are driving the growth and their investment banking and big government union backers walk away with all the benefits.
The state's unfunded housing and growth mandates  are allowed under the “legal” theory that local government has the power to tax residents and borrow money, indefinitely, to pay for the required schools, infrastructure, public services, and mitigation of environmental impacts that will result from all this growth.
As bad as all this is for locally elected council members to deal with, the tragedy is that they don’t seem to get what’s going on: who the patsy is at the table. They seem to think they are holding a decent hand and that their protests and explanations about why it is impossible for their small cities to ever hope to meet their quotas will somehow help their cause. The truth is they may have just played right into the hands of their opponents.
Our city councils have been asleep for more than a decade, while their adversaries have been creating a legislative framework that is now a labyrinth that is too big to find a way out of. The truth is that the present protests by Marin cities needed to be filed a decade ago and repeated and followed up with joint, collaborative, ongoing legal challenges on questions of the state's constitutional powers of cities.
But they didn’t do that. Instead, they withdrew into their little silos and argued about the crumbs falling from a global banquet to which they were never invited, and now the consequences of their inaction and conscious lack of participation in state and regional politics have finally manifested itself as a gigantic wolf at our doorstep. They now find themselves at a gunfight holding a latte in their hand and, as always, one step behind. Simply filing an appeal with HCD is not going to change what's fundamentally wrong.
Cities across the state need to band together and push back against the State Legislature, as a group, filing legal challenges, if necessary. They need to support state senators who are calling for a constitutional amendment to affirm local control of zoning and planning. And they need to support the efforts of other cities through organizations like the California Alliance of Local Electeds (CALE) and California Cities for Local Control.
And they need to do it before it's too late, because things may be even worse than they realize.
The battle going down right now in Sacramento is the relentless resurrection of legislative proposals dealing with deconstructing single-family property rights: something I’ve called the “last subsidy.” The current version, known as SB-9, [watch the video] seeks to allow private, for-profit developers the right to split single-family zoned lots into two separately deeded building parcels, upon which that developer can then build one home and two accessory dwelling units (ADUs), essentially turning a single-family home into a six-plex by right… no public hearings, no CEQA review, no local code restrictions, nada.
And then there's SB-10, which allows city councils to approve developments of 14-unit, luxury apartment buildings in single-family neighborhoods, without any public hearings or CEQA review.
So, ask yourself this. Do we really think that the proponents of SB-9, SB-10, and other high-density development proposals to turn all single-family zoning into multi-family zoning do not know that the RHNA quotas are astronomical and unattainable? Do we really think the protests and appeals from cities like Mill Valley were not foreseen, far in advance, or even intentionally set in motion by pumping up the RHNA quotas beyond all reality and adding more threats of litigation and financial penalties for failure to meet those quotas?
Ask yourself this. What better ammunition would powerful legislators such as Senators Wiener and Atkins (and Marin’s own ambitious Mike McGuire) need to push through SB-9 than a tall stack of statistics and facts from local governments, proving that under our present laws, California cannot possibly fulfill the housing “needs” that these state agencies have stipulated? What better argument is there to pass laws like SB-9 and SB-10 and get rid of single-family zoning... the American Dream shared by all people of all colors and nationalities... than to be able to demonstrate that cities have “run out of land?”
As Mr. Buffett said, “If you don’t know who the patsy is at the table…"
 The ability of the state to mandate programs for local government
without monetary compensation to cover costs all relies on actions taken
in the 1990s, when the legislature adopted a new twist on an 1869
court ruling called Dillon’s Rule.
Simply put, Dillon’s Rule said that cities derive their powers from the
state (Dillon's Rule had nothing to do with unfunded mandates). The
California State Legislature decided that this meant unfunded mandates
were okay so long as the State said it was okay every time they did it. In
other words, in its own “post facts” world, the legislature decided if
they say something has no financial impact, then it doesn’t, regardless of any
reality or evidence to the contrary.
Bob Silvestri is a 28-year Marin County resident, and the founder and president of Community Venture Partners, a 501(c)(3) nonprofit community organization funded by individuals and nonprofit donors. Please consider DONATING TO CVP to enable us to continue to work on behalf of California residents.