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.