Santee council can’t end-run voters on Fanita Ranch

Environmentalists have won the latest round one of California’s longest-running development battles, the attempt by HomeFed to build a 3,000-home Fanita Ranch development in an apparently high-wildfire-risk area of Santee east of San Diego. San Diego County Superior Court Judge Katherine Bacal ruled in August that the Santee City Council erred in 2022 when rescinded all of the 2020 Fanita Ranch approvals, thus allowing the council to remove the referendum from the ballot, and then approved the same project anew under an urgenc ordinance not subject to referendum. The approval took place after the city recirculated some sections of the project’s environmental impact report in response to Judge Bacal’s ruling in March of 2022. An appeal is expected. Although Santee’s general plan and the project’s environmental review are also issues in the case, the critical factor was Judge Bacal’s interpretation of Election Code Section 9241, which states that if a legislative body repeals an ordinance in response to a proposed referendum, it cannot enact the ordinance again for a year. Santee and Home Fed attempted to argue that Ssection 9241 didn’t apply to this situation because Judge Bacal herself had previously ordered the environmental impact report struck down. But in this case Bacal said: “Section 9241 makes no exception for when a judicial body directs a city to rescind an approval pursuant to a writ.” Santee and HomeFed also argued – as they did elsewhere in the case – that Section 9241 did not apply because of expedited review required by SB 330. However, Bacal did not buy that argument. The plaintiffs in the case, led by the Center for Biological Diversity, also argued that the EIR recirculated in 2022 because of Judge Bacal’s order was defective because it conflicted with Santee’s general plan. Santee and HomeFed argued that the state Density Bonus Law permitted the approval of “essential housing” under the emergency ordinance even if it conflicts with the general plan. Bacal ruled with the plaintiffs. “The Housing Accountability Act restricts local governments from denying certain housing applications; it does not mandate local government approvals of projects,” she wrote. She also noted that in its statement of overriding considerations on the EIR, the city never mentioned either the Density Bonus Law or the Housing Accountaiblity Act. The battle over Fanita Ranch goes back more than 40 years, when a 1980s developer proposed 14,000 houses on the ranch. In 1999, Santee voters rejected a 3,000-home project. In 2012, an appellate court shot down the EIR for a 1,380-home development proposal. In 2020, the City approved a new proposal for 3,000 homes, designed by DPZ, by a 4-1 vote. Project opponents again sued, challenging the EIR on a number of grounds, and won a Superior Court ruling in March. Meanwhile, the opponents also qualified a referendum on the project approval for the November 2022 ballot. In response to the judge’s ruling in early 2022, the City Council rescinded all of the 2020 Fanita Ranch approvals, thus allowing the council to remove the referendum from the ballot. Then, on September 14, 2022, the council approved the same project anew, with a partially recirculated EIR – but this time the project was approved under an urgency ordinance, meaning it is not subject to referendum. Fanita Ranch Location (Courtesy of City of Santee) In August of 2021, while the lawsuit was pending, the city adopted a new “Essential Housing” program as an urgency ordinance, meaning the ordinance is not subject to the referendum process if it passes the City Council with a 4-5 vote. Under the “Essential Housing” ordinance, a project must meet certain criteria under a point system in order to qualify. The ordinance was adopted while Santee was going back and forth with the state Department of Housing and Community Development on its housing element, which was eventually approved last April. Fanita Ranch’s developer, HomeFed Fanita Rancho, applied for the Essential Housing designation in October and in December the staff certified that the project met the criteria. The Essential Housing ordinance contains a checklist of almost 40 items across eight categories: land use, housing mobility, open space and conservation, sustainability, safety, trails and sidewalks, and parks and recreation. To be eligible at all, a project must meet a variety of criteria, such as not being in a floodway and being listed in the housing element’s site inventory. A developer can receive up to a certain number of points for each item. A total of 183 points is available, but only 50 of the available points (27%) are for housing. To qualify as for the Essential Housing designation must obtain 50 points across all eight categories, including 10 points of the 50 available in the housing category. For example, designating 10% of homes for moderate-income residents is worth 10 points, as is a trail facilities contribution. In the case of Fanita Ranch, the staff awarded the project 124 out of 183 points, including 35 out of the 50 housing points. The developer promised to set aside 10% of the project’s housing units for low-income residents, which was worth 20 points. The project also got 25 points for sustainability and 19 points for trails. The Case:Preserve Wild Santee v. City of Santee, San Diego County Superior Court Case No. 37-2022-00041478-CU-MC-CTL (filed August 9, 2024). The Lawyers For Preserve Wild Santee and other environmental groups: Peter Broderick, center for Biological Diversity, pbroderick@biologicaldiversity.org  For City of Santee: Amy Hoyt, Best Best & Krieger, amy.hoyt@bbklaw.com 

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