Superior Court judge rejects bid by Pleasanton to dismiss housing cap lawsuit

Urban Habitat case now moves to trial later this year to overturn 1996 voter-mandate of no more than 29,000 homes, apartments

An Alameda County Superior Court judge Thursday rejected a bid by the city of Pleasanton to dismiss legal challenges by an affordable housing coalition and the state of California to the city's 1996 voter-mandated housing cap.

The ruling by Judge Frank Roesch means that the three year old suit by Urban Habitat, recently joined by Atty. Gen. Jerry Brown, will move forward to trial later this year. Urban Habitat, represented by attorney Richard Marcantonio of Public Advocates, is asking the court to invalidate the housing cap, which currently limits the number of home and apartment units that can be built in Pleasanton to 29,000.

The coalition and, now, Brown's office claims that the cap unfairly blocks the construction of a sufficient number of affordable and even market rate housing to meet the city's rapidly growing workforce population. The restriction limits the number of affordable and workforce housing units that developers might otherwise build here and, with approximately 27,000 housing units already built or approved, discourages developers from even considering seeking those kinds of additional developments in Pleasanton.

Urban Habitat's attorney Christopher Mooney, an associate in the litigation practice with the San Francisco office of Paul, Hastings, Janofsky & Walker LLP, told Roesch that state laws that prescribe housing growth requirements based on workforce housing and other needs pre-empt Pleasanton's housing cap ordinance, which is part of the city's General Plan. Therefore, state law should prevail over the housing cap.

Pleasanton's outside counsel, Thomas B. Brown, a partner with the law firm of Hanson Bridgett, in San Francisco, argued that the Urban Habitat claims are irrelevant because there's no evidence that any decisions made by city planners or the City Council have violated any state laws. He said the city is in full compliance with all state provisions and that the housing coalition's claims are wrong if not premature.

Pleasanton's plea actually was to dismiss both the Urban Habitat suit on the basis that it lacked merit with regard to the accuracy of the charges, and also the state attorney general's decision to join in the Urban Habitat suit because the statue of limitations had expired for the state's action.

With regard to the state's involvement, Roesch agreed with Atty. Megan Hold Acevedo, Deputy Attorney General, who said in yesterday's court proceedings that because of ongoing court actions since Urban Habitat filed its lawsuit in 2006, the statute of limitations law didn't apply.

Roesch also ruled that since Urban Habitat's lawsuit had never been heard on the merits of its claims that the case should now be allowed to move ahead to be heard on the merits.

Roesch's ruling yesterday was another victory for Urban Habitat and Public Advocates, a group of attorneys who represent the nonprofit housing coalition. They had lost their suit in 2006 when Superior Court Judge Winifred Younge Smith agreed with Pleasanton attorneys that the case should be dismissed because it lacked sufficient evidence of wrongdoing to proceed. Urban Habitat appealed that ruling before the State Court of Appeal last year, which overruled Smith and sent the case back to a different judge in Superior Court for a new hearing.

Although the case is far from settled, it now means both the outside lawyers for the city of Pleasanton and the Public Advocates attorneys will begin a series of court conferences as they prepare for a trial that is expected to take place in late November or early December. The first of the conferences to discuss procedural matters is scheduled for mid-September.

It's possible that Thursday's legal arguments before Roesch will be the last time all of the attorneys and aides meet together. Roesch's small courtroom in the U.S. Postal Service building on 13th Street in Oakland was filled to near capacity with eight representing the state, Urban Habitat and Public Advocates as well as two lawyers from Hansen, Bridgett, including Atty. Thomas B. Brown. Although Pleasanton City Atty. Michael Roush also was in the courtroom, he did not address the court.

After conferences and other legal procedures leading up to the trial, all of the parties involved in the case are likely to file extensive briefs with Judge Roesch, who could then issue a preliminary ruling before holding another court session.

No matter how Roesch rules, the losing side could appeal his decision to the State Court of Appeal and, after that decision, possibly to the California Supreme Court. Although Pleasanton is the only California city to have a housing cap, its law is similar to growth management ordinances in numerous other cities that could be affected by a final decision, which is why the League of California Cities and several individual cities have supported the city of Pleasanton in its effort to keep the housing cap.

Legal fees and other costs are also under review. Up to now, the Pleasanton City Council has agreed in closed-door meetings to support court actions to preserve its 1996 voter-mandated housing cap ordinance. Continuing the case on to the Court of Appeal and then to the Supreme Court could cost both sides several hundred thousand dollars in legal fees and costs. Often, the party on the losing side of the final legal decision also pays the winning party's costs and fees as well as its own.

The lawsuit filed by Urban Habitat and Public Advocates followed a letter sent to City Manager Nelson Fialho and the City Council in June 2006 and signed by signed by Marcantonio and affordable housing advocates.

Marcantonio urged the city to avoid a lawsuit by removing the barriers that he said have discouraged the construction of affordable housing for low- and moderate-income families.

He said city policies make it all but impossible to build affordable housing for families, adding that Pleasanton's zoning and General Plan require 1/8 acre or more for each home built, effectively barring the construction of rental apartments.

"The city promised it would zone 30 to 40 acres for higher-density affordable housing," he added. "Yet, three years later, it has still not fulfilled that promise."

He said that failure prompted the California Department of Housing and Community Development (HCD) to take the unusual step last year of "decertifying" Pleasanton's state-mandated housing plan. According to HCD, Pleasanton's share of the Bay Area region's need for new affordable housing in 2006 stands at over 2,400 homes, of which 729 must be affordable to very-low income households, families earning up to $40,000. Since 1999, however, only 20 homes for very-low income families with children had been built in Pleasanton.

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Posted by SteveP
a resident of Parkside
on Aug 28, 2009 at 9:34 am

SteveP is a registered user.

It sure would be nice to know who is funding these insurgents at Urban Habitat. They certainly don't live in this area and their class envy mentality can only drag out environment down to the level of surrounding blighted urban locales.

Like this comment
Posted by Tennesse Jed
a resident of Jensen Tract
on Aug 28, 2009 at 9:41 am

More social engineering brought to you by...Government!

Like this comment
Posted by Nosy Neighbors
a resident of Pleasanton Heights
on Aug 28, 2009 at 10:07 am

The people speak, the thieves in black robes legislate to negate the peoples wishes. WTF but what

Like this comment
Posted by Nosy Neighbors
a resident of Pleasanton Heights
on Aug 28, 2009 at 10:08 am

...did you think they would do? They know better than us don't they?

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Posted by Neighbor
a resident of Civic Square
on Aug 28, 2009 at 10:31 am

Honestly I believe we should build more affordable housing and apartments. There is a tremendous opportunity and location to build far more apartments over in Hacienda by the BART station. The people living there could utilize rapid transit and their children could attend Pleasanton schools and be involved in our community. I also believe it would significantly increase our level of diversity and also increase the number of minorities in our city.

Like this comment
Posted by Resident
a resident of Another Pleasanton neighborhood
on Aug 28, 2009 at 10:51 am

Wasn't a Pleasanton resident involved in this? I remember reading an article before about it.

Why the lawsuit? It seems like Pleasanton became the target, unfairly, of these habitats for humanity groups. If Brown runs for governor, I hope no one supports him. Imagine what he can do to the state.

This lawsuit is unfair, and I don't understand why a Pleasanton resident would be a part of this. Here is the part of the article that talks about that, and the link to it:

"Brown's motion, filed in Alameda County Superior Court, joins the suit filed in 2006 by Urban Habitat and Pleasanton resident Sandra De Gregorio that challenged the city's Measure GG, the voter-approved housing cap and growth management program that voters approved in 1996."

Web Link

Neighbor: you do not have to undo the housing cap to bring minorities to the city. Plenty of minorities live here, myself included, and that does not require undoing the housing cap. I bought an existing house at a regular price, and so have other minorities, so I am not sure what you are trying to say or accomplish.

Like this comment
Posted by Stacey
a resident of Amberwood/Wood Meadows
on Aug 28, 2009 at 11:12 am

Stacey is a registered user.

I'm not a fan of apartments as a solution to provide "workforce housing" because there's no pride of ownership on the part of the renters.

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Posted by Neighbor
a resident of Civic Square
on Aug 28, 2009 at 1:24 pm


I am saying that building low income state or federally subsidized housing in the Hacienda Business Park would make it easier for minorities to live in our town. It has worked in Hayward as well as Castro Valley, and Oakland.

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Posted by WWW
a resident of another community
on Aug 28, 2009 at 1:48 pm

WEll, this is just great. Just look what affordable housing (read-section 8)and 3 Walmarts on a 15 mile stretch have done to Fremont and its schools in just a few years. We are looking to move to Pleasanton from Fremont to get away from higher crime and "I don't care" attitude. Lokks like we will have to move to Colorado instead...

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Posted by www
a resident of another community
on Aug 28, 2009 at 1:50 pm

Oh yeah, and I am a minority in Fremont now. White non-hispanic. Please take me, Pleasanton!

Like this comment
Posted by Neighbor
a resident of Civic Square
on Aug 28, 2009 at 2:05 pm

Well there little racists I believe Mission San Jose is 90% minority and makes are high schools look like Santa Rita Prison by comparison...........true?

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Posted by MS
a resident of Another Pleasanton neighborhood
on Aug 28, 2009 at 3:23 pm

MS is a registered user.

To the Civic Square resident. If you think that Hayward, Castro Valley and Oakland have been successful with low cost housing, then MOVE there as it looks like you want to live around gang-bangers, graffiti artists and the murder rates and crime rates are off the charts. We moved here for good schools, a safe living environment, low crime. When you bring in the low income housing it brings along baggage that no one wants. I lived in Thousand Oaks and they did this years ago and now that city is rife with crime. No thanks. You go live there if you think that environment is so good.

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Posted by Pleasantonian
a resident of Mission Park
on Aug 28, 2009 at 3:31 pm

Pleasantonian is a registered user.

Mission San Jose High School does not have much, if any, affordable housing in it's boudaries. Small homes sell for $1,000,000+ just so people can get their kids into that district. We learned long ago that kids who are motivated can succeed at just about any school. And Foothill and Amador are comparable to Mission. Comparing those two schools to Santa Rita Prison makes you sound very ignorant.

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Posted by Einstein
a resident of Mohr Elementary School
on Aug 28, 2009 at 3:43 pm

Einstein is a registered user.


I beg to differ regarding Mission San Jose High School. I grew up in the area and my mother still lives there. The area in Mission San Jose (it used to be a township) has a significant amount of low income housing. The area on the west side of Mission Blvd. from Ohlone College to Weibel is all low income as is the area on Fremont Blvd from Palm to Ellis St. or a very large area. Parts of Niles are also zoned as Mission or Washington as the residents have their choice of schools for the kids to go to. Do some fact checking and you will see that your other statement is incorrect also. Amador and Foothill are not even in the same ballpark as Mission San Jose as it is ranked highly in the nation.

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Posted by Einstein
a resident of Mohr Elementary School
on Aug 28, 2009 at 3:48 pm

Einstein is a registered user.

Pleasantonian, more information about Mission San Jose

In July 2009, U.S. News and World Report ranked Mission San Jose High as the 60th best high school in the nation.[2]

Mission San Jose has a strong AP program, as demonstrated by the high percentage of students earning passing scores of 3 or above on AP exams. Among large public high schools, Mission has the highest passing rate for both AP Statistics and AP French.[4]

Mission San Jose students also perform well in other state and national tests. The school holds the highest position in the California public high school rankings (not including magnet schools) with an API (Academic Performance Index) of 931 in 2008. [5] A less cited ranking by Newsweek places the school 140th in the United States.[6]. Recently, Mission was named the 60th best high school in the United States by US News. [7] The school claims many other achievements and honors, among them the high number of students earning National Merit Scholarships.[citation needed] The school was named a National Blue Ribbon School in 1987, 1996, and 2008. In addition, 76% of the students are on the honor roll with a GPA of 3.0 or higher and students' SAT scores are in the top 5% of the nation[5]."

Like this comment
Posted by Jetson
a resident of Downtown
on Sep 3, 2009 at 1:51 pm

Jetson is a registered user.

Who wrote this "I also believe it would significantly increase our level of diversity and also increase the number of minorities in our city." I recently moved here from the southbay to get away from all of that.

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