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Court to rule early next year on validity of Pleasanton housing cap

Judge questions legality of housing cap although suit is about building affordable homes

In a three-hour hearing in Alameda County Superior Court Friday, Judge Frank Roesch sparred repeatedly with Pleasanton's legal representative Tom Brown over the city's 29,000-unit housing cap before taking a suit under advisement that claims the cap is illegal.

Roesch, in hearing arguments by representatives of Urban Habitat, an affordable housing advocacy group, and a representative of State Attorney General Jerry Brown, whose office joined in the suit, indicated that he believes the cap violates state law

Brown insisted that Urban Habitat's suit is not about the validity of the housing cap, but whether Pleasanton has used the cap to bar development of workforce and affordable housing that the state insists it should allow.

"We've met every requirement placed on us by the state under the Regional Housing Needs Assessment (RHNA)," Brown said. "At no time has the city ever rejected a development plan because of the housing cap."

Still, Roesch argued, Pleasanton, which has more than 2,700 apartment and housing units already built or approved, could not meet RENA's requirement that it add another 3,277 units as Urban Habitat claims the state is requiring by 2014.

"That's a hypothetic argument," Brown answered. "No one's asking to build those units in Pleasanton."

But Roesch persisted, asking Brown how the city would respond if a developer asked today to build that many units. He said the City Council would have to turn down the request based on the fact that the housing cap was imposed in 1996 in a referendum approved by a majority of Pleasanton voters. Legally, it can be removed only by another vote or by a court decision declaring the cap illegal.

Brown said Roesch and Urban Habitat can't use speculation as the basis of deciding the validity of the housing cap. The city is not in violation of the housing numbers so far imposed by the state and there's plenty of time before 2014 for the council to ask voters to change the limit.

City officials already have discussed asking voters to revise the housing cap ordinance to put it more in line with RENA's requirements. Such a measure could allow that the cap be adjusted every seven years to satisfy state housing numbers.

Curiously, neither Richard Marcantonio, the lead attorney for Urban Habitat or his assistant Atty. Christopher Mooney, cited Pleasanton's urban growth management policy that limits building permits to 350 a year. Although that number of permits hasn't been used for most of the decade, even if a developer was to seek to build 3,277 units, it would take years to receive building permits--housing cap or not.

Roesch said he will rule on Urban Habitat's suit within the next 90 days.

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