Pleasanton Weekly

Opinion - May 21, 2010

Time to tell us the housing cap issue is over

Pleasanton businessman Brad Hirst appeared briefly Tuesday night to thank the City Council for deciding against appealing a court order that declared Pleasanton's 1996 housing cap is illegal. We hope he's right and knows more than we do. After he spoke, City Attorney Jonathan Lowell said only that the city hopes not to appeal the March 12 decision by Judge Frank Roesch of the Alameda County Superior Court. He said that the city is in negotiations with Urban Habitat, the affordable housing coalition that won the lawsuit, to amicably settle all outstanding claims that organization has against Pleasanton. The negotiations, which are being held behind closed doors as far as we know, are complicated because Attorney General Jerry Brown also joined Urban Habitat in its suit and earlier also sued the city over its new General Plan that includes the cap along with plans for major growth in the city's workforce. Brown's suit charges greenhouse gas emission violations along with a disregard for the state's affordable housing requirements.

With the clock running--the city has just 120 days from Roesch's decision to the time it must either comply with his ruling or file an appeal--negotiations are in their crucial stage. Urban Habitat filed its suit against Pleasanton in 2006, claiming that the 29,000-unit cap violated the state's Housing Element Law in that it prevented Pleasanton from accommodating its regional "fair share" housing numbers. Although voters approved the housing cap referendum by an overwhelming majority, there were questions then about the cap's legality, especially in a state that even back in 1996 was struggling to meet housing demands from low-income and workforce housing groups. Former Mayor Tom Pico has acknowledged that the number 29,000 was crafted by leaders who wanted to limit growth to make sure Pleasanton never became another high-density city resembling San Mateo or Sunnyvale.

Many believe the cap has worked, cooling the appetites of major apartment house builders who took their developments elsewhere during the late 1990s and early in the decade that just ended. But even so, Pleasanton, like other cities in California, must now comply with the state's Regional Housing Need Allocation (RHNA) requirements that stipulate that this city must rezone sufficient acreage to allow for another 3,277 housing units, including 2,524 affordable homes, by 2014. Although no one is ordering the city to actually build the housing units, it must make sure no restrictions stand in the way, such as task force reviews or planned unit development (PUD) processes, which city planners favor.

There's another reason we hope Brad Hirst's "intelligence" is right and that the city has decided against an appeal of Roesch's order. According to Jonathan Lowell's analysis, the city's (a.k.a. taxpayers') legal expenses litigating this case since its inception in the fall of 2006 are approximately $500,000. Those are fees paid to outside counsel Thomas B. Brown of Hanson Bridgett and his associates and do not include the extensive "in-house" work of city staff and former City Attorney Michael Roush. The negotiations now under way no doubt also include how much of Urban Habitat's legal expenses Pleasanton will have to pay, a figure that could dwarf our own. Of course, an appeal would cost even more: those familiar with the case believe legal fees could easily top another $250,000, win or lose.

Roesch also imposed a commercial building ban on Pleasanton until the case is settled. With the commercial market slowly regaining strength, the city needs to announce a settlement publicly and move on.

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