Pleasanton Weekly

News - March 19, 2010

Pleasanton's housing cap ruled illegal

Commercial building permits halted until city complies with court order

by Jeb Bing

The Pleasanton City Council delayed any action Tuesday in response to an Alameda County court ruling that invalidated the city's 14-year-old housing cap.

The ruling immediately halted all commercial building in Pleasanton after Superior Court Judge Frank Roesch determined that the cap, which had limited the total number of homes and apartments allowed to be built in the city to no more than 29,000 units, violates state law and is invalid.

The ruling, deemed punitive for a city that thrives on corporate and business development, affects only permits related to those activities, not to residential development. Housing developers, in fact, are now able to plan their projects without many of the Planning Unit Development and other restrictions long associated with building residential units in Pleasanton, officials said.

"They'll still have to abide by design guidelines and those sorts of regulations," City Manager Nelson Fialho said.

Jonathan Lowell, Pleasanton's city attorney, said the city received a copy of the ruling Monday and is reviewing it. He met in a closed-door session with the City Council Tuesday night, but said the council had no decisions to report publicly at this time.

Councilman Jerry Thorne was at a meeting in Washington, D.C. Tuesday night. The council is expected to hold another closed session when he returns and all five council members, including Mayor Jennifer Hosterman, can meet with Lowell to discuss options with regard to the court ruling. These range from filing an appeal to the ruling to accepting the judgment and rewriting provisions of the recently-adopted 2009 General Plan to remove all references to the housing cap.

The housing cap was approved by voters in 1996 to curb the housing development surge at the time and to serve as a benchmark for future planning by the Pleasanton school district and streets, water and sewer departments.

But with roughly 27,000 housing units already built or approved, the number required to meet state requirements for affordable and so-called workforce high density housing was far exceeding what could be built under the cap.

In the first ruling of its kind, the court ordered the city to rezone sufficient land to meet its share of the region's affordable housing that is required by state law and in compliance with numbers set by the Association of Bay Area Government (ABAG).

The case, Urban Habitat v. City of Pleasanton, was brought by nonprofit law firm and advocacy group Public Advocates Inc. on behalf of Pleasanton resident Sandra De Gregorio and regional environmental justice organization Urban Habitat.

The case was being closely watched by cities throughout California that have policies similar to Pleasanton's, aimed at curbing rampant growth although not housing cap mandates. Many cities moderate growth by limiting the number of residential permits developers can obtain each year. Pleasanton does this, too, with a permit limit of 350 units, although in the last few years, the number of permits issued has not approached that many.

Judge Roesch ruled the 29,000-unit housing cap unconstitutional because it blocks the city from meeting its share of the Regional Housing Need Allocation (RHNA) under California law. That law calls for Pleasanton to provide 3,277 housing units, including 2,524 affordable homes, for the period ending 2014.

The housing cap, Roesch ruled, has prevented hundreds of these "much-needed homes" from being built in the city, not just up to now, but through 2014 and even the indefinite future after that. Based on these facts, the court concluded that "it is self-evident that the city cannot comply with the state statute" requiring the city to accommodate its fair share of the region's projected housing needs.

"Pleasanton imports workers to fill thousands of jobs, but excludes those workers and their families from a chance to live in the community," said Richard A. Marcantonio, managing attorney with Public Advocates Inc.

"Today's ruling dismantles the exclusionary housing and zoning policies that have harmed not only these families, but Pleasanton and the whole surrounding region," he added.

Also representing the plaintiffs were attorneys from Paul, Hastings, Janofsky & Walker LLP and The Public Interest Law Project.

California Attorney General Jerry Brown joined the case last summer.

"By lifting the city's de facto moratorium on housing construction, this ruling will create jobs and affordable housing, and reduce greenhouse gas emissions," Public Advocates said in a statement applauding the court decision.

Juliet Ellis, Urban Habitat's executive director, noted that 40,000 workers commute to Pleasanton because of the lack of housing near their jobs.

"Pleasanton has the opportunity to allow hundreds of affordable homes within walking distance of a major transit hub," she said. "We call on the city to show leadership in reducing greenhouse gas emissions while promoting social equity."

Since the suit was filed in 2006, Pleasanton has identified a number of potential housing sites in Hacienda Business Park, adjacent to the Dublin-Pleasanton BART station. Landowners at these sites have been actively trying to advance plans for mixed-use (residential and commercial), transit-oriented development for more than six years.

Last November, the city selected three of these sites for further study, and recently appointed a citizens' task force to determine the types of housing and related commercial development that should be built there. The task force was given 12 months to complete its report, but some members indicated they may need longer.

Roesch ruled, however, that this was inadequate, stating that while it "may start a process to cure the city's failure in this matter ... it is wholly inadequate to be considered a cure."

Roesch determined that Pleasanton officials had retained discretion to determine whether there was "good cause" to allow development anywhere in the city, stating that this "discretionary determination ... will inhibit any developer from proposing any residential development."

Rezoning is necessary to satisfy Pleasanton's unmet obligations to accommodate affordable housing, the court ruled.

In order to comply with California law, Pleasanton had committed to rezone enough land for some 800 units of lower-income housing, and around 40 acres were to have been rezoned to meet this need by June 2004.

Since 1999, however, only 20 homes for very-low income families with children -- such as a family of four earning $40,000 -- have been built in Pleasanton.

Noting that "the city still has not accommodated [the fair share of housing] allocated to it in 2001," Roesch ordered the Pleasanton City Council to complete that rezoning within 120 days.

"For too long, the housing cap has chased would-be residential developers away from Pleasanton, and forced neighboring jurisdictions to shoulder the burden of housing an expanding regional population," said Paul Hastings attorney Christopher Mooney. "The court today said 'no more.' Pleasanton must do its part to make affordable housing economically feasible within its borders."

The Court's ruling does not affect the city's urban growth boundary, which protects open space from development.

However, it not only invalidates the city's housing cap ordinance, it also orders that provisions specifying housing limits in recent voter-approved Measure PP and Measure QQ that affect housing development on hillsides also be removed.


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