Monterey County is considering a change to its "in-lieu” fee structure, to charge developers more money for affordable housing. This proposal will be coming to the Board of Supervisors in the near future.

"In-lieu” fees are fees imposed upon a developer, as a condition of granting approval for a proposed housing development, and as a substitute for requiring the developer actually to build affordable housing itself. Raising "in-lieu” fees will generate more money, which the County can then use to help to build more affordable units. While raising "in-lieu” fees does mean more affordable housing, from one perspective, there's another way of looking at "in-lieu” fees that KUSP listeners should understand.

"In-lieu” means, literally, "in place of.” In other words, the basic concept is that "in-lieu” fees are paid "in place of” actually constructing housing. When the County accepts "in-lieu” fees that means that the developer is released from any direct obligation to build housing that an average or below average income person can afford. If you don't require the actual construction of affordable housing, then collecting "in-lieu” fees is better than not collecting them. Raising the fees means more money for affordable housing, and that's positive. But the best way to make sure that affordable housing is produced is to require developers actually to build that housing themselves, and to build it at the same time they build market rate housing. "In-lieu” fees, at whatever level, let developers off the hook.

For KUSP, this is Gary Patton.

More Information

In general, Monterey County makes it easier for developers to get "off the hook,” and pay in-lieu fees instead of actually building affordable housing, than Santa Cruz County does. You can compare the approaches by a close reading of the two different inclusionary housing ordinances:

Monterey County Affordable Housing Ordinance (see Section 18.40.090)
http://municipalcodes.lexisnexis.com/
codes/montereyco/

Santa Cruz County Affordable Housing Ordinance (see Chapter 17.10)
http://municipalcodes.lexisnexis.com/
codes/santacruzco/

Monterey County has been involved in a large amount of land use related litigation. Because the state's open meeting law allows governmental agencies to have the equivalent of a "lawyer-client” privilege, with respect to pending and threatened litigation, that means that many important land use policy items have been discussed by the Board behind closed doors. You can get an idea of just what's going on by checking out the Board's agenda each week. The Board does have to list the items that it will be considering in secret. Last week, the Board discussed four different cases, all of them dealing with land use related issues.

There are some problems with the secret discussion of important land use policy matters. For one thing, since members of the public don't know what the Board is thinking (because its deliberations are totally secret) they can't provide any "up front” guidance on what they think the Board should do. Having been an elected official myself, I know that being able to hear directly from the County's lawyer, in private, is an important prerogative. On the other hand, I also know that ideas that might seem just "peachy” when discussed in private are really offensive to the public, and I've found it's always good to find out what the public thinks before, and not after, you take some sort of irrevocable governmental action.

Holding deliberations in secret cuts elected officials off from vitally important critical comment. More on this tomorrow!

For KUSP, this is Gary Patton.

More Information

Board of Supervisors Agenda
http://www.co.monterey.ca.us/cttb/agenda.htm

The proposed Rancho San Juan development has turned into a legal mess. Arguably, the County could have avoided many of the problems by doing more to include the public in the decision making process. Instead, the Board made critically important land use policy decisions behind closed doors. The Board acted in secret on the theory that since Rancho San Juan involved "litigation,” or "threatened litigation,” the secret decisions were appropriate. It's a good time to rethink this issue, since a new round of decisions on Rancho San Juan will be forthcoming shortly, and already the Board is back in secret session, presumably determining what it will do.

The Brown Act, the state's open meeting law, requires that all local government meetings be in public, with very few exceptions. One exception is that the Brown Act permits an elected body, like the Board of Supervisors, to consult with its attorney in a "closed session,” when a matter involving either actual litigation or "threatened litigation” is at issue. The Brown Act does not say that discussions of litigation matters must be held in closed session. The right to go into a closed session is a "privilege,” not a mandate. The intention is to give government officials the equivalent of the "lawyer-client” privilege that each one of us is entitled to as an individual person.

Tomorrow, I'll describe how Rancho San Juan went from being a normal land use matter to a development proposal where all the most important decisions were made in secret.

For KUSP, this is Gary Patton.

Problems with the proposed Rancho San Juan development began when Monterey County arbitrarily suspended processing of the developer's application for a Specific Plan that would have allowed this mammoth development project to proceed. In the middle of the EIR process, the County told the developer that it just wasn't going to consider his application, since the County was planning a General Plan Update that might affect the area.

This seemed unfair to the developer, who had already spent hundreds of thousands of dollars on the process that the County arbitrarily terminated. In about 1999, the developer sued, and a Superior Court Judge told the County that the developer was right, and that the County had been unfair, and that the County had to process and consider the developer's Specific Plan application. The Judge did not say that the Board of Supervisors had to "approve” the developer's Specific Plan proposal; just consider it.

Since that legal decision, the Board of Supervisors has met scores of times in closed meetings, and has tried to work out and implement a "settlement agreement” with the developer, to avoid a threat from the developer that he would sue the County again, and this time for money, if the County didn't "approve” something that the developer found acceptable. This "threatened” litigation has justified all the secret meetings ever since, but the decisions that came out of those secret meetings have not, actually, "settled” anything.

Tomorrow, I'll explain why that is.

For KUSP, this is Gary Patton.

The Monterey County Board of Supervisors has been trying for years to find a way to "settle” threatened litigation by the owners of Rancho San Juan, and have treated this as a "litigation” matter, not appreciating, apparently, that the public has interests that go beyond settling a possible lawsuit. The public has a great interest in the land use impacts of the proposed Rancho San Juan development, and the public also has the ultimate right to exercise its own judgment. The Board's failure to involve the public in the decision making about how the County should "recover” from its mistake in treating the developer unfairly has been an even bigger mistake.

The California Constitution is quite clear (and a court recently affirmed) that the public has the absolute right to act directly, through the initiative and referendum process, when it doesn't like what its elected officials are doing. Twice now, Monterey County voters have rejected development approvals that have come from "settlement discussions” with the owners of Rancho San Juan. Those "settlement proposals” have all come out of secret sessions, and the public hasn't had any other choice but a referendum.

Since the Brown Act permits, but does not "mandate” that litigation discussions be secret, it could well be advantageous to all concerned for the Board now to involve the public in a wide-ranging consideration of how best to extricate the County from the legal complexities that the Board's past secret decisions have created.

For KUSP, this is Gary Patton.