Pleasanton Weekly

News - April 23, 2010

Council considers options in response to housing cap ruling

Holding closed-door discussions with public announcement in 1-2 weeks

by Jeb Bing

The Pleasanton City Council on Tuesday night took under advisement options for responding to a Superior Court's ruling that it must cancel a 29,000-unit housing cap ordinance approved by voters in 1996 and rezone enough land to accommodate more housing units now being required by the state.

In the meantime, the court order by Judge Frank Roesch barring the city from issuing any non-residential permits stands, a ruling that Brad Hirst of Pleasanton-based Equity Enterprises told the council is already sending a message to commercial developers that the city is "closed for business" when it comes to new business development.

The council has only a few weeks left to appeal Roesch's decision that ruled in favor of a lawsuit filed by Urban Habitat, an Oakland-based affordable housing advocacy organization. That lawsuit, which was also joined by State Attorney General Jerry Brown, the Democratic gubernatorial candidate in the Nov. 2 General Election, successfully claimed that the housing cap violated state law.

Following a detailed review of the lawsuit and a historical perspective on the housing cap by the city's outside counsel Tom Brown and its Community Development Director Brian Dolan, the council heard from a number of speakers, including Hirst. Several, including former City Councilwoman Kay Ayala, urged the city to stay the course and appeal Roesch's decision. Former Councilman Steve Brozosky also recommended an appeal in a letter he sent to the council.

Others asked the city to negotiate a settlement with Urban Habitat that would allow Pleasanton to have a "floating cap" that would retain restrictions on market rate housing development while still allowing all of the higher-density and mostly affordable housing now being required by the state. The negotiations, which are already under way, would also settle at least two other pending lawsuits affecting the city's housing laws and its recently approved General Plan.

Another option would be for the council to do nothing, allowing Roesch's ruling to stand. That could open the door to more development of affordable housing without much local control, allowing outside organizations, developers and the state to dictate what kinds of high-density apartment complexes could be built here.

In his extensive and often complex review of the Urban Habitat lawsuit, first filed in 2006, Brown said California's housing laws have changed significantly since the 1996 housing cap became law, with the state gradually grabbing more controls over city and county governments over how much new housing - particularly affordable or so-called workforce housing - communities such as Pleasanton must build.

The attorney general's complaint against Pleasanton focuses on that aspect of the city's housing cap, arguing that the city's General Plan encourages more jobs-generating business development while imposing a hard fix on how many homes and apartments can be built here to serve that workforce.

Because of pending lawsuits yet to be argued or settled, Brown limited his remarks to existing conditions, although he said an appeal of Roesch's ruling would likely not be accepted by the State Court of Appeal until those other lawsuits were settled.

He also said an appeal would add to the city's legal costs, which have already reached $500,000 for his law firm, not counting the hundreds of hours of staff time by the Pleasanton City Attorney and others on the Urban Habitat lawsuit.

An appeal could cost another $250,000 with the possibility that an unfavorable ruling could also require the city to pay all of the costs incurred by Urban Habitat, which could be substantially more than the city's own legal bill.

Mayor Jennifer Hosterman said the council will review Tuesday night's comments in closed session over the coming week and will hold another public meeting "in one or two weeks" to report on those discussions and the council's recommended action.

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