Pleasanton may follow suit with other cities throughout the Tri-Valley and state in switching to district-based elections starting next year, after a Southern California law firm recently threatened to file suit over the city's current at-large electoral system.
The Pleasanton City Council is expected to adopt a resolution declaring its intention to transition to district-based elections, and review related details and options at its regular meeting on Tuesday, starting at 7 p.m.
In a Aug. 2 letter to the city on behalf of Southwest Voter Registration Education Project, Malibu-based attorney Kevin Shenkman from the law firm Shenkman & Hughes said Pleasanton's at-large voting system -- where voters from an entire jurisdiction elect candidates to each open seat -- violates the California Voting Rights Act (CVRA) by diluting minority votes.
Signed into law almost 20 years ago, the CVRA prohibits at-large election systems in some cases. According to a staff report, the law's passage "made it easier for plaintiffs to prevail in lawsuits against public entities that elected their members to its governing body through at-large elections" by requiring a plaintiff "only prove the existence of racially polarized voting to establish liability under the CVRA."
Staff said "other factors are also relevant in determining liability" but that "proof of intent on the part of voters or elected officials to discriminate against a protected class is not required."
Shenkman alleged the city's at-large elections are "racially polarized" -- meaning the choice of candidates preferred by voters of a protected class are different than those preferred by the rest of the electorate. Shenkman also said the outcome of past local elections is "illustrative" of votes for Latinos and Asian candidates being diluted.
"It appears that in the past at least 15 years, the city's elections have been devoid of Latino candidates, and while opponents of voting rights may claim that indicates an apathy among the Latino community, the courts have held that is an indicator of vote dilution," Shenkman said.
Failed campaigns for two Asian candidates in the November 2020 City Council election -- housing commissioner Zarina Kiziloglu and former city economic commissioner Chiman Lee -- "despite significant support from Asian voters" was also argued by the attorney.
Shenkman added that Olivia Sanwong, who currently serves on the Zone 7 Water Agency Board of Directors, ran for City Council "with significant support from the city's Asian community in the 2013 and 2014 elections" but lost both times as well.
The letter also detailed a lawsuit in 2012, where Shenkman's firm "prevailed" against the city of Palmdale for violating the CVRA. Should Pleasanton continue with at-large elections, Shenkman said "we will be forced to seek judicial relief" on behalf of residents in the district, and asked officials to advise by Sept. 22 "whether you would like to discuss a voluntary change to your current at-large system."
After receiving the letter from Shenkman, the council met in closed session on Sept. 7 and directed staff to move forward with drafting the resolution of intention. Staff said that by law, the terms of sitting council members cannot be cut short or extended through the transition process.
Assembly Bill 350, which was signed into law five years ago, provides a "safe harbor" from CVRA litigation for cities that voluntarily transition to district-based elections. If a demand letter is received, a city has 45 days of protection from litigation to assess its situation, according to staff. Should a resolution declaring a city's intent to transition from at-large to district-based elections be adopted during that time, no CVRA action may be filed by a potential plaintiff for another 90 days.
Both parties may also enter a written agreement to extend the 90-day time period for up to an additional 90 days "in order to provide additional time to conduct public outreach, encourage public participation, and receive public input," staff said. "Thus, the legislation provides time for a city to assess and implement a transition to a district-based system before a lawsuit may be filed.
The law also requires jurisdictions to hold at least four public hearings during the 90-day safe harbor period, but staff said Shenkman "has expressed his willingness to extend the safe harbor period by another 90 days if the city adopts a resolution of intent to transition to district-based elections."
Residents will have the opportunity to weigh in on draft district maps and proposed sequence of elections at the public hearings, as well as an ordinance establishing Pleasanton's district-based elections. The hearings are expected to take place in January and February 2022, while a website with information about the election transition process will be launched in the near future, according to staff.
The overall cost for the city to transition from an at-large to district-based electoral system within the safe harbor time period includes approximately $50,000 for outside legal counsel and a demographer, as well as up to $30,000 in potential attorneys fees to Shankman if the city meets the CVRA time limits. Staff said those expenses are not included in the fiscal year 2021-22 city budget and will be included in the mid-year budget.
In other business
* A refined version of the final sites selection criteria for Pleasanton's sixth housing cycle -- including some proposed updates and additions -- will be brought to the council for review and action on Tuesday.
Pleasanton is one of many Bay Area jurisdictions currently updating their Housing Element process, as required every seven years by the state. As part of the process, "a final list of criteria to be used to help objectively evaluate and rank potential sites" has been developed, according to a staff report, "with the goal of creating a refined list of sites that will be analyzed as part of the environmental review phase of the project."
The seven criteria recommended by staff include: site size and infill, environmental impacts and hazards, impacts to sensitive resources, height and mass compatibility, interest in site, and proximity to modes of transportation, as well as proximity to services and amenities.
In the past, Pleasanton was "focused on identifying sites for higher density housing to meet lower-income housing needs," but staff said that during this housing cycle, "it will be necessary to identify sites, beyond those already zoned, to accommodate moderate and above-moderate units as well."
With "a potentially long list of sites that may be under consideration for inclusion in the Housing Element," staff recommends using a scoring system and "similar framework as was used in the 4th cycle Housing Element," though "certain elements of the 4th cycle criteria warranted update" this time.
Some updates to existing criteria include incorporating "new parameters assigned in state law for the suitability of sites for higher-density housing," and adding clarification that comparing the floor area ratio (FAR) of a future housing project "with surrounding development would be based on the average height and allowable FAR of surrounding residential properties," the reason being that "multiple zones or buildings may adjoin a site."
Additional criterion was also included to reference high schools, as well as another addressing "concerns raised by city officials and community members, to evaluate whether the site would contribute new demand to schools with existing or projected capacity issues."
Staff also highlighted "a change proposed in the criteria for this first round of scoring, to delete the previously included criterion: 'Potential Inconsistency with General Plan Themes'."
"This criterion referenced and cited a number of specific General Plan policies around sustainability and community character; avoiding impingement of new development on open space and agricultural lands; and avoidance of hazards," staff said, adding that "analysis for conformance with the General Plan...will be an extremely important consideration for the overall sites evaluation."
Following a council discussion and vote on Tuesday, staff will draft a "list of prospective sites to which the scoring criteria will be applied," and return later this year with the results of the initial evaluation, along with other information, analysis and options on the sites that move to the next stage of review. The council will select the sites to be included in the city's assigned RHNA inventory.
* Proposed revisions to the active ground floor use overlay policy in the city's Downtown Specific Plan (DSP), as well as the Pleasanton Municipal Code (PMC), are headed for a final council vote on Tuesday after being shelved for several weeks.
Greenlighted by the Planning Commission in late July, the draft amendments include requiring that "the entirety of a tenant space subject to the active ground floor use occupancy be occupied with an active use."
Clarifying policies on vacancy "such that the language specifically indicates the vacancy as commencing at the end of a lease" were also suggested, as well as showing "proactive marketing of the tenant space" by taking steps to post a leasing sign at the site and an active listing.