Last session, the California Legislature passed, and the Governor signed, SB9, which allows by-right splits of any single-family residential parcel and then construction of a duplex on both parcels (at least four dwelling units where there was one before, and potentially accessory dwelling units, ADUs, in addition). Cities across the State are left with implementing the law, which has a list of exemptions for conditions where the law does not apply. The City of Woodside noted these exemptions and put a hold on SB9 implementation for the entire city (population 5,542) because habitat for protected species is exempted and the whole city was considered to be mountain lion habitat.
I’m not here to defend the City of Woodside. Rather, I’d like to draw awareness to a problem with the response to the City of Woodside from the California Attorney General and indeed, from some in the conservation community.
First, SB9 provides specific exemptions to its implementation, and the one surrounding rare and endangered species is quite broad. Specifically, a property is exempt from SB9 if it is on a site with:
Habitat for protected species identified as candidate, sensitive, or species of special status by state or federal agencies, fully protected species, or species protected by the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.), the California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code), or the Native Plant Protection Act (Chapter 10 (commencing with Section 1900) of Division 2 of the Fish and Game Code).California Government Code Section 65913.4
If a site is habitat for a species in any of those categories, it is legitimately eligible for exclusion from SB9. There does not need to be a determination of any harm to the sensitive species, only that its habitat is present. Just as SB9 is a blunt instrument, changing zoning for all single-family areas in the State in one fell swoop, so too the exemptions are blunt instruments that can be implemented without having to do any analysis other than determining that the conditions exist. Is the parcel habitat for candidate, sensitive, fully protected, endangered, threatened or special status species? If yes, SB9 does not apply to it.
The California Attorney General responded rapidly to the Woodside action, and issued its own memo declaring it illegal. In this memo, Deputy Attorney General Matthew Struhar argues that use of an area by a protected species does not make it habitat for that species. This is wrong on the science (if you find a species using an area, it is, by definition, its habitat) and if accepted by courts and the nonprofit conservation advocacy community this interpretation will do more damage to conservation in this state than any risk of additional sprawl if Woodside didn’t allow lot splits.
Here is what the Attorney General’s office wrote:
“Land that is already developed — with, for example a single-family home — is not, by definition, habitat,” Struhar wrote, using italics for emphasis. “That mountain lions appear in Woodside from time to time does not make any of its individual parcels mountain lion habitat.”https://www.latimes.com/california/story/2022-02-06/bonta-woodside-mountain-lions-housing
Again, this is wrong on the definition of habitat (and dangerously so for conservation efforts everywhere), and it confuses “land use” with “land cover.” A property may be developed as a single-family home (land use), but not all of the property is inaccessible to wildlife and the parcel may include several different areas, some of which may be habitat for sensitive species (that is, its land cover is not uniform even though the parcel has a single land use). This happens all the time where I live in the eastern Santa Monica Mountains, where a home along a canyon or ridgeline has a developed area by the road, and then extends up to a hillside or down into a canyon into open chaparral or woodland in other parts of the property. By the Attorney General’s definition, the rest of that parcel would not be habitat for anything, when it clearly is.
The Attorney General’s memo further claims that areas used by mountain lions are simply within the species’ “range” and not actually “habitat,” when in fact Woodside’s contiguity with large natural open spaces and mountain lion observations within its boundaries do support an argument that it is indeed habitat for the species, just as many developed parcels in the Santa Monica Mountains are habitat for mountain lions as well. In fact, it would be astonishing if Woodside were not mountain lion habitat. In conservation science (as opposed to whatever dictionary the Attorney General consulted to write his letter), habitat is not limited to areas for which a species has both “food and shelter” as the Attorney General asserts, but also includes the areas that it passes through on the way from one place to another.
The Attorney General also apparently doesn’t think that parcels subject to SB9 development can be habitat for sensitive species. Struhar wrote: “If a proposed housing development or a lot split under SB9 is on a parcel that is indeed a habitat for a protected species, however unlikely that may be, a local agency can support that determination with substantial evidence” [emphasis added]. Woodside certainly needed to present more nuanced findings than in its short memo, but the Attorney General’s response, and weak understanding of what constitutes habitat in conservation science, is alarming and is likely to have a chilling effect on jurisdictions legitimately implementing the exclusions to SB9. This concerns me.
The goal here by the Attorney General, and apparently by some other nominally conservation-oriented commentators, appears to be to the send a message that the application of exemptions to the SB9 residential densification bill will not be tolerated. The discourse is wrapped up in pointing out the wealth of Woodside, and indeed the community is wealthy, but conservation laws and provisions like the SB9 exemptions are not means tested. Those who would abandon the sensitive species habitat exemption from SB9 appear to be oblivious to the importance of urban nature, or not to care that it exists. Often, urban wildlife, including species protected by the SB9 exemption, is found on, forages on, or needs to pass through neighborhoods. The exemption is there to make sure those habitats are not destroyed through by-right housing development.
Conservationists and politicians statewide need to realize how damaging it is to make the blanket assumption that “urban” areas have no conservation value and cannot support “habitat for protected species.” If we take this approach, then cities will continue to experience a decline in biodiversity and all the best efforts of cities like Los Angeles and San Francisco to incorporate biodiversity into planning will be substantially undermined. (By the Attorney General’s logic, the pathway by which P-22 got to Griffith Park is not part of his habitat, and, presumably, should be allowed to be densified and further developed.)
I feel that I need to reiterate this point, strongly, because many self-identified environmentalists seem to have forgotten the following in the rush to condemn Woodside:
Urban areas are heterogeneous and do contain habitat for protected species. Habitat may include areas only used periodically and only for certain functions such as movement from one area to another. These habitats, by the plain language of SB9, should not be subject to by-right densification.
For example, California walnut is recognized as a sensitive plant species by the State of California. It is found from the hills of East LA through the Santa Monica Mountains and is in decline because of ongoing development patterns. By the language of SB9, parcels with California walnut should not be subject to lot splits. This protection is the law, and urban conservation, which is at the core of the work that I do, cannot withstand it being defined out of existence by misunderstanding the definition of “habitat” or perpetuating the myth that cities are not places where species conservation is necessary.
If someone has decided that allowing homeowners to extract more economic value from their lots by splitting them and building four units (and possibly more) is so important that the protected species of California should suffer, be honest about it. If you hate nature in cities, just say so. Then we can have that discussion rationally. But for now we have a law that exempts parcels that have habitat for sensitive species and interpreting that exemption requires understanding a little bit about what constitutes the definition of habitat. After that, the exemption must be applied without prejudice and without consideration of the degree of impact on the species. Qualifying for this exemption doesn’t mean that the property cannot be developed or renovated, because those activities go through different processes where the degree of harm to sensitive species would be assessed (e.g., the California Environmental Quality Act) and mitigation measures applied to guide development. It just means that it can’t be split into four or more units built in a process that does not involve environmental review.
This isn’t about Woodside. They have already dropped their finding on the basis of the California Department of Fish and Wildlife telling them that the entire town cannot be considered mountain lion habitat. And indeed, a blanket declaration for the whole town was not tenable. But a large number of the parcels in Woodside, and many other urban-wildland interface towns (even Los Angeles!) are indeed habitat for mountain lions within those populations proposed for listing under the California Endangered Species Act. And they are also habitat for the hundreds of other sensitive species on the California Department of Fish and Wildlife lists of special animals and special plants. Whether they would be harmed by SB9 activities is irrelevant; those parcels are exempt because of the presence of those species. The knee-jerk and ill-informed response to Woodside’s flawed effort will undermine the protection of rare species around the State. Groups that saw only the optics of the Woodside situation and not the broader implications, like the Center for Biological Diversity and the Mountain Lion Foundation, will have helped to undermine species protection, for everything from mountain lions to dusky-footed woodrats, from California walnut to the Engelmann oak, all sensitive species that have habitat on land that would be subject to destruction under SB9 but for their presence.
In fact, we need more protections for native species in cities. We need proactive planning to secure and restore habitat, bird-friendly building practices, nature-friendly lighting policies, and an ethos that recognizes the value of biodiversity in cities to human well-being. The SB9 exemptions are a bare minimum.
Travis Longcore, Ph.D.
February 8, 2022