Author Archives: arbeam

Frozen Land isn’t navigable water (despite what the Clean Water Act says)

Richard Schok owns a pipe fabricating company in North Pole, Alaska. After decades of building a successful business, Richard decided to purchase property to relocate and expand his company. The new property was next to a junk car dealer, a scrap metal dealer, and a concrete product supply company. Not exactly the pristine wetlands one thinks of when hearing about the Clean Water Act.

Unfortunately for Richard, the Army Corps of Engineers decided that his property was a wetland under the Clean Water Act. The agency decided that the property (despite being bordered by other businesses) was adjacent to a navigable water body because the town of North Pole is located between two rivers. Even worse, the only “wetland” the Army Corps found on Richard’s property was permafrost—land that’s frozen all year long.

PLF represented Richard and his company and challenged the Army Corps’ determination that frozen land is navigable water under the Clean Water Act. Unfortunately, the courts ruled against him, and it looked like he couldn’t follow through with his business plans.

But earlier this year, the Trump administration adopted a new rule about what land is regulated under the Clean Water Act. The new rule is far from perfect, but it does make several improvements. Richard is one example of how the new rule can help small business owners.

The new rule changes how the Army Corps and the EPA determine whether a wetland is “adjacent” to a body of water and, therefore, can be regulated by the agencies. Specifically, the new rule says that, when a road or other barrier separates a wetland from a river or stream, that wetland will not be covered by the Clean Water Act. That means Richard’s property, which is surrounded by other industrial businesses, is outside the Army Corps’ jurisdiction.

Based on the new rule, Richard asked the Army Corps to reconsider its determination that his property is covered under the Clean Water Act. Earlier this month, the Army Corps agreed that it could not regulate the property. While the Army Corps still views permafrost as a “wetland,” it can no longer regulate the permafrost on Richard’s property.

Pacific Legal Foundation Article dated Dec 1 2020

Zoning Use Code Update

At our Sept 1 Board of Directors meeting, Kitsap County Department of Community Development (DCD )Staff provided a brief on the proposed Zoning Code Update that is scheduled to be submitted to a Panning Commission Public Hearing at the end of September. The Material that they presented provides a summary of the propose changes. The county Zoning code update page can be found here: .

One of the problems with the county zoning use update page is that it is difficult to the content of the change. The Zoning content change is here:
Use Table Resource Guide,
Definitions Resource Guide,
Special Use Provisions Resource Guide

Please read this material carefully and provide the KAPO Board with feedback and consider testifying at the Planning Commission Hearing. The Planning Commission Schedule can be found here:

The Board Is interested in your thoughts so testimony can be readied for the public hearing.

The county is adding a whole new 43 page section to the Zoning Code. Basically moving the Zoning code footnotes to a new section.

Section 17.415 General Requirements
17.415.005 Purpose.
This chapter establishes special provisions for allowed uses identified in Sections 17.410.042 through 17.410.048. In addition to other standards and requirements imposed by this title and other requirements in the Kitsap County Code, all uses shall comply with the provisions stated herein. Should a conflict arise between the requirements of this Chapter and other requirements of the Kitsap County Code, the most restrictive shall apply.

This Section contains rules for everything from Accessory Dwelling Units to Zoo, Aquarium. It includes items such as:

17.415.— Garage sales

Periodic, noncommercial sales of personal and household goods, and professional estate sales, at residential dwellings shall be allowed as an accessory use, provided such sale events conform to the following conditions:

  1. A maximum of four events per residential address per calendar year.
  2. A maximum of four consecutive days per event.
  3. Limited to the hours of 8:00 a.m. to 6:00 p.m.
  4. Goods shall not be placed in the public right-of-way.
  5. It shall be the responsibility of the resident and/or operator of the sale to ensure traffic is not obstructed.
  6. All goods, tables, canopies, tarps, and associated paraphernalia shall be removed from public view between sale events.
  7. Goods shall be limited to the personal or household property of the estate, the residents of the sale location, and/or the participants in the sale. There shall be no sale of goods or products purchased or produced for resale or otherwise sold by the sale participants in a commercial enterprise.
  1. Pets and Exotic Animals. Pets, nontraditional pets and exotic animals are subject to the following conditions:
  2. Pets which are kept inside of a primary structure as household pets in aquariums, terrariums, cages or similar containers shall not be limited in number by this section. Other pets, excluding cats, which are kept indoors shall be limited to five;
    b. Pets which are kept outside of the primary structure shall be limited to three per household on lots less than twenty thousand square feet in area, only one of which may be a nontraditional pet; five per household on lots of twenty thousand to thirty- five thousand square feet, only two of which may be nontraditional pets; with an additional two pets per acre of site area over thirty-five thousand square feet up to a limit of twenty; and
  3. No feeding area or structure used to house, confine or feed pets shall be located closer than the minimum yard setbacks for the zone in which they are located. No feeding area or structure used to house, confine or feed nontraditional pets or exotic animals shall be located closer than fifty feet from any residence on adjacent property.

17.415.— Accessory use or structure.

  1. One piece of heavy equipment may be stored in any single-family zone; provided, that it is either enclosed within a permitted structure, or screened to the satisfaction of the director.
  2. A residential accessory use or structure in the Rural Historic Town Waterfront (RHTW) zone, notification to the Port Gamble/S’Klallam and Suquamish Tribes is required by the applicant prior to determination of complete application. Written proof of notification is required.
  3. Storage of shipping containers is prohibited unless allowed as part of a land use permit and/or approval. Placement of storage containers allowed only with an approved temporary permit subject to the provisions of Section 17.105.090(I).

17.415.— Campground.

  1. Campgrounds shall be recreational and transient and shall not allow:
    1. Camping for more than thirty days within a forty-day time period. Campers must vacate the overnight park facilities for ten consecutive nights between allowed stays. The time period shall begin on the date for which the first night’s fee is paid. The campground operator shall keep a log of all members of the camping party and ensure that the allowed number of days stay is not exceeded.
  2. The designation of the campground as a permanent or temporary address on official documents or applications submitted to public or private agencies or institutions.
  3. In the Rural Residential (RR) zone, Rural Protection (RP), and Rural Wooded (RW) zones, a campground is allowed only as an accessory use to a park or recreational facility greater than twenty acres in size except when included within the boundaries of a town master plan approved pursuant to Section 17.360C.030. If included within a town master plan boundary, the use shall not include more than sixty spaces per five acres. All use of recreational vehicles must be transient in nature.

17.415.— Manufactured/mobile/RV/park-model/tiny home parks.

Manufactured home/mobile/RV park/park-model/tiny home park must meet the following requirements:

  1. In the Rural Residential (RR) or Rural Wooded (RW) zones and only within the boundary of a town master plan approved pursuant to Section 17.360C.030 on parcels of five acres or larger with all uses set back one hundred feet from all parcels not included within the boundary, manufactured/mobile/RV/park- model/tiny home parks shall be allowed and require a Conditional Use Permit (C).
  2. Manufactured home parks shall be completely and adequately served by public utilities.
  3. Building lot coverage. The maximum building lot coverage is sixty percent, including accessory buildings.
  4. Accessory buildings. Buildings and structures accessory to individual manufactured homes shall be allowed. An accessory roof or awning may be attached to a manufactured home and shall be considered a part thereof. Automobile parking spaces may be covered with a carport.
  5. All drives within the park shall be hard surfaced. Sidewalks and paths shall be provided consistent with county standards.
  6. There shall be at least a ten foot setback between homes, any building within the park.
  7. There shall be sight-obscuring fencing, landscaping, or natural vegetated buffers at least eight feet wide on all sides of the park. Such screening shall contain openings that provide direct pedestrian access to adjoining streets and trails.
  8. Recreational Areas/Open Space. At least five hundred square feet for each manufactured home space shall be made available in a centralized location or locations for recreational uses.
  9. Binding site plan. A complete and detailed binding site plan shall be submitted in support of the permit. The binding site plan shall show the locations and dimensions of all contemplated buildings, structures, spaces, driveways and roads and recreational areas. The Director may require additional information as necessary to determine whether the proposed manufactured park meets all the above conditions and other applicable provisions of this code.

Kitsap Housing Supply is in Crisis

“Housing Affordability” vs. “Affordable Housing”

It’s not about “affordable housing,’·
It’s about housing people can afford to buy.
There’s a big difference.
What brought on the French ‘revolution?

Today in Kitsap County, 1 in 15 families are struggling with poverty due to extreme property regulation.

Kitsap County Commissioners have advised us of our critical housing shortage (Click here)

  • There is a current shortfall of 9500 units to house 4524 families.
  • The housing shortage grows to 34,650 units in 16 years.
  • 515 housing units are currently being built in Kitsap County.
  • 1,480 new housing units per year are needed to satisfy current growth.
  • Without correction, the problem grows worse each year into the future.

Discretionary income allows freedom of choice and liberty. Home ownership is the bedrock of personal dignity. High taxes and excessive regulation destroy and undermine both freedom of choice and personal dignity. Housing is typically a family’s largest discretionary income cost. As we learned in “Economics 101”, supply and demand determine prices. Reducing the cost of housing allows discretionary income to be spent elsewhere, creating jobs and tax revenue.

Kitsap County’s median home price is now $408,590, 77% above HUD’s affordability standard of $236,710 for a median income family. We see State and Local regulations now adding well over 50% to home prices.

Home construction has been impeded by Washington State’s Growth Management Act‘s restrictive regulations over the past twenty five years, resulting in our current housing shortage. For every 100 family units formed. only 42 homes are being constructed. Considering 1/3 of our residents are renters, 11,000 new rental units must be constructed by 2036. This lack of housing supply is the cause of our home and rental prices being out of sight.

County and State leadership have failed to create solutions. There is no apparent plan to increase the rate of housing construction. There appear to be no numerical goals and no measures of progress.

City of Bremerton & Kitsap County Affordable Housing Recommendations report, ECONorthwest, Final Report, March, 2020 (the “ECONorthwest paper”) rightly states adverse impacts of housing regulation can be alleviated by eliminating housing options through zoning. In Kitsap County, zoning has for years prohibited affordable “Missing Middle Housing”:  duplexes, triplexes, townhouses, courtyard apartments cottage clustersand accessory dwelling units.

Kitsap County’s rate of housing construction must be increased by at least a factor of five or housing will become even more unaffordable. For construction to accelerate, the marketplace must be allowed to function. Local government must become an incentivized partner in construction of market-rate affordable housing, not an adversary.

The Rucklehouse Report showed the lack of affordable housing is a common complaint in all 39 Washington State counties. Only by rapidly expanding the quantity of buildable lots and unburdening developers from restrictive and expensive regulation will housing prices be reduced to affordable levels.

Washington State home prices are currently 86% above Housing and Urban Development’s definition of affordability.

Kitsap Alliance is well aware of the impacts of Washington State’s Growth Management Act (GMA) and environmental activism on housing availability. We are also aware of County and city long-term foot-dragging in creation of new and affordable building sites and zealously imposing zoning impediments and limitations. The usual bureaucratic response is “The State made us do it.”

Read the Full Housing Affordability vs Affordable Housing report.

Opinion – New York Daily News: Canceling rent won’t solve housing woes

As Americans stagger through a bewildering pandemic summer, buffeted by shutdowns and job losses, millions face each coming month with an additional dread: making their rent payments.

In response to the crisis, numerous states and localities have enacted eviction bans and rent deferral schemes. Unfortunately, such extreme measures are unjust, unlawful and counterproductive.

Governments have taken varied approaches to the threat of people being ousted from their homes en masse. California’s courts closed their doors to all eviction proceedings, even if the reason for eviction had no relationship to the pandemic. Seattle banned evictions related to non-payment so long as a tenant can “self-certify” they aren’t paying rent due to economic hardship brought on by the pandemic, and landlords must allow tenants 18 months from the end of the city’s state of emergency to repay that money. And Ithaca, N.Y., became the first — but likely not the last — city to attempt to forgive rent altogether.

While it may seem intuitive to absolve renters of their obligations during an emergency, such laws force one group to bear the burden of the crisis: landlords. They don’t get much sympathy, but landlords are often ordinary people facing the same challenges we all face. Continue reading

Strengthening property rights will improve affordable housing in America’s cities


Our nation is in the midst of a severe and ever-worsening housing crisis. For decades, we have seen far too few homes being built. And those homes that are built are often too expensive—particularly in major urban centers, where poor and middle-class families increasingly find themselves priced out of homes and apartments located near the best jobs, schools, and other opportunities. Indeed, a recent article from The Washington Post reports that “in recent years prices for the lowest-priced houses have grown consistently twice as fast as prices for the highest-priced houses and now exceed what many families of modest means can pay.”

This crisis largely finds its roots in unnecessarily restrictive zoning laws, such as exclusive large lot zoning, which creates an artificial shortage in buildable land by limiting what type of homes can be built and where they can be located. These zoning rules are often the most restrictive in the very communities that have the most pronounced need for new housing, like Los Angeles, where an “affordable” apartment can fetch up to $1 million.

Making matters worse, local governments often look at new development as an opportunity to raise funds for public projects like public housing, new parks, or infrastructure improvements. Thus, in areas like Seattle, the regulatory fees needed to secure a building permit are estimated to make up over half the purchase price of each new home. Although these fees are often justified as providing public benefits at no cost to the general public, they actually exacerbate the affordable housing crisis. In West Hollywood, for example, the city demanded that the owner of a proposed small 10-unit affordable apartment project pay over a half-million dollars in “affordable housing” fees, which drove up the cost of each unit. In order to make a profit in this circumstance, the owner, like many other developers, was compelled to abandon his focus on affordable units in favor of high-end residences that could cover the additional costs.

The solution to this problem is clear: we must free property owners and developers to build more homes—especially in those communities that have been marginalized by past zoning policies. When combined with rolling back unnecessary fees, such action will encourage the type of entrepreneurship that will result in new housing being developed at all price points. It’s a simple solution that is proven to work. Continue reading

Homeowners told permits for their home renovation will cost an extra $11,000, thanks to upzoning in Seattle

The city of Seattle has demanded that Erika Cherry and her husband, Andre, pay $11,000 to the city’s affordable housing fund because their home-renovation project was extensive enough to qualify as new construction.

The house was always going to need a little work.

An unpermitted second bedroom extending into the back alleyway “bounced” when entered, said Erika Cherry, who bought the 650-square-foot Seattle home with her husband, Andre, in late 2018. When the Cherrys demolished a wall, they found newspapers from 1916 — the year the house was built — in place of insulation. Six-foot-tall Andre could touch the low ceilings when he reached up.

But the Cherrys loved the Highland Park neighborhood, where they’d been renting since 2014. And at $325,000, the house was a steal. They filed what Erika Cherry thought were relatively modest plans to renovate the home with the city’s Department of Construction and Inspections in early 2019. They’d bring the addition up to code, enclose the front porch and raise the roof to make the attic livable, on a budget of less than $60,000.

“We were turning a two-bedroom, one-bathroom house into a two-bedroom, two-bathroom house,” said architect Greg Krueger.

The city didn’t see it that way. A reviewer said the renovation was substantial enough to qualify as new construction. According to rules passed in 2019, the Cherrys would need to pay $11,000 to the city’s low-income housing fund if they wanted their permit, in addition to the regular permitting fees. That’s more than the Cherrys — already spending $4,200 per month on rent and mortgage while permitting drags on — were willing to pay. Continue reading

Will the voters freeze new housing development in November?

If a poison causes a disease, the obvious cure has to be even more poison, right? To most of us, that prescription sounds insane—but it’s a fair description of California’s approach to addressing the disease that is the state’s affordable housing shortage. Because much of the existing shortage is caused by government interference with the housing market, the solution, some people reason, must be even more government meddling.

That certainly seems to be the theory behind the misleadingly titled “Rental Affordability Act” appearing on California’s November ballot. This latest misguided scheme, which would allow cities to enact rent control caps on most homes at least 15 years old, will only worsen the affordable housing crisis.

Why is affordable housing such a problem in California? There are a variety of reasons, including restrictive zoning laws, environmental restrictions and other regulatory burdens, punishing impact fees, and NIMBY opposition from other landowners.

But when it comes to building new apartments, one disincentive looms above all others: rent control. Rent control first arose in California in the 1970s in response to changing residential demographics. With a scarcity of affordable single-family homes, more Californians moved into apartments. That, in turn, led to a shortage of apartments. With the supply low and demand high, rents correspondingly rose. In response, liberal enclaves like Santa Monica and San Francisco imposed rent control schemes.

The impact on housing supplies was predictable: Builders feared losing money in rent-controlled jurisdictions, so they took their business and investment elsewhere.

In 1995, the legislature stepped in to limit the damage by passing the bi-partisan Costa-Hawkins Rental Housing Act. That law prohibited cities from imposing rent control on single-family homes and condominiums. Most importantly, newly built apartment buildings would be free from rent control. Moreover, once an existing tenant vacated a rent-controlled apartment, the rent could be reset to match market conditions. While too many other restrictions remained in place to fully address the housing shortage, it did help. More new apartments were built once developers knew they’d be free from rent control.

Until now, that is. In 2018, a group of activists tried to use a ballot measure to toss Costa-Hawkins and allow rent control to be imposed throughout the state. Fortunately, that proposal lost overwhelmingly, with 62% of California voters rejecting the new rent control scheme.

Now the same activists are back with a slightly scaled-back version. Once again, they want to toss Costa-Hawkins and make rent control safe for ambitious politicians. If they get away with it this time, it will make California’s housing crisis much worse than it already is.

Economists are in near-universal agreement on rent control: In a 2012 survey of professional economists, 98% agreed that rent control doesn’t work. By making housing shortages worse, rent control forces prices higher. Any benefit to those living in rent-controlled apartments is more than offset by higher housing costs for everyone else. Even left-leaning economist Paul Krugman warns of the perils of rent control, calling it “predictable” that in a rent-controlled environment there will be “sky-high rents on uncontrolled apartments, because desperate renters have nowhere to go—and the absence of new apartment construction, despite those high rents, because landlords fear that controls will be extended.”

A recent study of San Francisco, where  older apartments are largely free from the effects of Costa-Hawkins, found that rent control failed to keep costs low, and instead resulted in a net loss of affordable housing units. Again, this was predictable: When prices of any good are forced below the market price, the demand for the price-controlled good increases, while the incentive to supply that good decreases. A shortage develops.

And the Rental Affordability Act, if passed in November, will have precisely the same effect. We’re all familiar with the old saying that “the definition of insanity is doing the same thing over and over again and expecting a different result.” There’s no better illustration of that principle than this latest effort to dress up failed rent control schemes as a solution to the affordable housing crisis. Here’s hoping voters get the message and reject this poisonous ballot initiative, so we can focus on solutions that will actually improve the situation, like changes to zoning laws and regulatory reform that will allow for more new construction.

Pacific Legal Foundation article July 09, 2020 By JAMES BURLING



Jul 30: KAPO Dinner at Family Pancake House

KAPO Candidate Forum Canceled

Come out and meet the Candidates for 23rd, 26th, 35th Legis. Dists.
1st and 2nd Commissioner Districts.

Family Pancake House, Kitsap Way
July 30. Room available at 5pm for no-host dinner
Speakers 6 pm to 8pm.

Questions? Pat Ryan 350-692-4750

WSJ: Seattle and the State Supreme Court Wage War on Property Rights

Landlords are forced to rent to the first person who walks in—even if he has a criminal record.

Affordable-housing shortages are an abiding challenge for cities around the nation. But often policies meant to alleviate the problem aggravate it instead. That’s certainly the case in Seattle, where the City Council imposed a pair of ordinances aimed at restricting property owners’ right to choose their tenants.

These misguided laws, recently upheld by the Washington Supreme Court, attempt to solve problems caused by the housing shortage by destroying property rights. Property owners in other cities should take note: Such reforms have a tendency to spread once they take root.

The two ordinances in question strip landlords of the right to decide who will occupy their property. Seattle’s “first in time” rule requires landlords to set rental criteria in advance and then rent to the first person who walks in the door with an adequate application. There are plenty of good reasons a landlord might prefer a different tenant, including socially beneficial ones such as a desire to help a struggling family.

The second law prohibits a landlord from inquiring about or considering an applicant’s criminal history—deemed an “unfair practice” that can subject the landlord to severe civil penalties. The federal government requires background checks for federally assisted housing, and for good reason: Criminal history bears directly on factors like reliability, creditworthiness and safety.

Both Seattle laws purport to reduce discrimination in housing and help beleaguered minorities, even though there’s no evidence that Seattle landlords engage in widespread discrimination. Taken together, these laws thrust landlords blindly into long-term lease relationships with renters they didn’t choose.

A small band of mom-and-pop landlords, represented by the Pacific Legal Foundation, sued the city over both ordinances. Marilyn Yim owns a triplex in Seattle. She lives with her husband and children in one of the units and rents out the other two. She shares the yard and her home with her tenants, so she has understandable concerns about compatibility and safety. Plus, she’s occasionally had to help her tenants find roommates. She has always considered a criminal-background check an essential service she provides a tenant looking for a roommate, for obvious reasons that apparently elude the Seattle City Council.

Another plaintiff, Kelly Lyles, is a single woman and local artist whose income derives mostly from a small single-family home she inherited from a relative. She’s also a survivor of multiple sexual assaults and domestic violence. The City Council barreled onward with its first-in-time rule and the ban on criminal-background checks despite Ms. Lyles’s tearful plea.

These plaintiffs challenged both laws as violations of their property rights under well-established Washington state case law. Washington courts have recognized that if government regulation destroys a “fundamental attribute” of property ownership, the regulation amounts to an unconstitutional taking unless the government compensates the owner. And if a regulation of property is “unduly oppressive,” Washington courts have traditionally struck it down as a violation of due process. But in a remarkable pair of decisions issued Nov. 14, the state high court mowed down longstanding protections for property owners by overturning 61 of its own prior decisions. By clear-cutting decades of decisions protecting property owners from overregulation, the court forged a path for two of the most radical housing regulations in the nation.

Courts are usually cautious about overturning precedent. A court that goes out of its way to overturn 61 cases in a single go seems intent on making the point that no constitutional right is secure if it conflicts with the orthodoxy of the day. Now Washington property owners will have to turn to the notoriously labyrinthine and hostile world of federal takings law for relief, and the city government is free to oppress property owners so long as the oppression has a “rational basis.”

Landlords aren’t the only victims. Renters will suffer too. As owners like Ms. Yim and Ms. Lyles flee the housing market because they can’t bear the regulatory burden, the contraction in supply will further inflate rents. Remaining landlords will raise prices even more to underwrite the risks they face because they can’t adequately vet rental applicants.

Meanwhile, Seattle officials, emboldened by this win, will continue churning out false solutions that pander to their collectivist constituency, comfortable in the knowledge that longstanding constitutional protections aren’t the obstacles they once seemed.

But the fight isn’t over. Pacific Legal Foundation will ask the U.S. Supreme Court to review the first-in-time case and affirm that Seattle landowners do, in fact, have property rights protected by the Constitution. And the criminal background check case will now go to a federal district court, which may yet state the obvious: Property owners should have some say over who occupies their land. Until then, the state court’s decision means the housing crisis in Seattle will only grow more severe.

Pacific Legal Foundation article January 31, 2020 I By ETHAN BLEVINS

This op-ed was originally published by The Wall Street Journal on January 31, 2020.


Yim v. City of Seattle
May 01, 2018

The Hill: Local governments are undermining state laws that encourage ‘granny flats’

It’s well known that California is in the midst of a housing crisis that grows more severe all the time. For decades, we have seen too few homes built, and those that are built are too expensive. The poor and middle class suffer the most from the housing shortage, increasingly finding themselves priced out of homes and apartments located near good jobs and schools.

This problem has been well documented, so there is no excuse when our cities refuse to allow individuals to take steps to alleviate the housing shortage. Yet communities across California continue to oppose the simplest of housing reforms: allowing property owners to build accessory dwelling units, or ADUs, commonly known as “granny flats” or “in-law apartments.”

As far back as 1981, the state legislature recognized that the lack of developable land is one of the key obstacles to increasing housing supply. There is land available to build on in California cities, but zoning codes strictly limit the use of undeveloped land. To open up more capacity, California adopted a statewide law that legalized the production of ADUs.

It was a win-win solution. By legalizing ADUs, the state unlocked previously unusable land, resulting in a massive increase of potential housing. Owners could build a rental unit to help with their mortgage payments, or build a cottage where their parents could age in place. Better yet, the cost of an ADU is typically a fraction of a stand-alone house or apartment unit, resulting in the potential for new affordable housing.

Many cities, however, continued to resist this modest reform, even as the housing shortage reached critical mass. So the state pushed back again in 2016 and 2019, amending the law to require — rather than request — that cities allow ADU development as a right of ownership. The state law directs California cities to approve ADU permits that satisfy certain conditions, such as unit and lot size, without the lengthy and costly process typical of building permits.

Communities that implemented this law, such as Los Angeles and San Diego, have seen a surge in the production of new affordable housing. But still, the state’s ADU mandate wasn’t enough to convince many cities to take the plunge into granny flats.

In San Marino, for example, Cordelia Donnelly applied for a permit to build an ADU above her detached garage. Although her proposal met all of the state requirements, city officials still rejected it because, under the city’s strict standards, Donnelly’s lot was too small, her proposed ADU was too big (the same footprint as the garage), and her garage was too close to the house.

Donnelly has petitioned San Marino’s decision to the California Supreme Court, arguing that the city cannot adopt standards that ban exactly what the state allows by right. The court’s decision about whether to take her case will have significant implications for meaningful housing reform.

San Marino’s situation highlights one of the root causes of the housing crisis: needlessly restrictive zoning laws result in fewer homes being built, with those that are built carrying higher price tags. The word “needlessly” is intentional. The only justification for the city’s strict ADU rules is to protect established neighborhoods from change that could result from building more affordable homes. It is a policy of exclusion.

The exclusionary character of single-family zoning can be seen clearly in Village of Euclid v. Ambler Realty Co. (1926), in which the U.S. Supreme Court upheld a zoning law that barred multi-family residences. The court concluded that apartments are a “parasite” because they “take advantage of the open spaces and attractive surroundings created by the residential character of the district.” Simply put, zoning excludes new people and opportunities from coming into the community. Such a policy has no place in modern society.

Donnelly’s case shows that reform often occurs at the fringes. While the ADU option will provide a limited number of homes for a limited number of people, their legalization has the potential to open the door to much broader reform that can spur housing production.

The state’s decision to streamline the permit approval process by recognizing a right to build ADUs on residential-zoned property has removed much of the cost, time and uncertainty that continues to drive up housing costs and rent. If California were to extend the same type of recognition to other types of homes, the state could potentially turn a modest reform into a housing revolution.

Pacific Legal Foundation article June 22, 2020 By BRIAN HODGES. This op-ed was originally published by The Hill on June 22, 2020.


Donnelly v. City of San Marino
May 19, 2020

The Orange County Register: COVID-19 has exposed the extent of the affordable housing crisis. Here’s how to start fixing it.

Restrictive housing policies put low-income city residents at risk during COVID-19
April 30, 2020 I By JAMES BURLING

The Government-Created Housing Shortage
April 07, 2020 I By LARRY SALZMAN