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Pleasanton could pursue district-based council elections after attorney threatens to sue city alleging 'racially polarized' voting

Criteria for Housing Element opportunity sites, policy on active ground-floor businesses downtown also on tap at Tuesday meeting

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."

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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."

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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.

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Pleasanton could pursue district-based council elections after attorney threatens to sue city alleging 'racially polarized' voting

Criteria for Housing Element opportunity sites, policy on active ground-floor businesses downtown also on tap at Tuesday meeting

by / Pleasanton Weekly

Uploaded: Mon, Sep 20, 2021, 10:24 pm

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.

Comments

Longtime Resident
Registered user
Harvest Park Middle School
on Sep 21, 2021 at 9:25 am
Longtime Resident, Harvest Park Middle School
Registered user
on Sep 21, 2021 at 9:25 am

District-based voting is still geographical in nature and doesn't necessarily produce the expected outcome because the single vote per seat would remain non-proportional. It's extremely sensitive to how the districts are defined, which voters will have no control over.

Better proportional representation, which appears to be the actual goal, can be achieved on an election like this through ranked choice voting.


Bay Area Native
Registered user
Pleasanton Valley
on Sep 21, 2021 at 10:52 am
Bay Area Native, Pleasanton Valley
Registered user
on Sep 21, 2021 at 10:52 am

Threatened with litigation about inequality from a law firm based in Malibu. Malibu is 88% white, less than 4% Asian and 1.5% Black. Household income in Malibu is $161,276 - 50.1% greater than the median annual income of $80,440 for California.

The Zarina Kiziloglu example is ludicrous. Pleasanton is 34% Asian yet Ms. Kiziloglu received only 8.65% of the total vote despite "significant support from the Asian community."

The CVRA and the threatened lawsuit against Pleasanton epitomize how broken CA government has become. $80K to the lawyers and demographers if the City simply rolls over. Much more if we don't. Spurious examples of inequality in Pleasanton. Factual inequality in Malibu.

Web Link
Web Link
Web Link
Web Link


Guillermo M.
Registered user
Downtown
on Sep 21, 2021 at 1:21 pm
Guillermo M., Downtown
Registered user
on Sep 21, 2021 at 1:21 pm

“Bay Area Native” could not have stated it any better. Why on Earth wound a radical, racist front group masquerading as a “law firm” from lily white Malibu Beach be concerned with certain municipalities that are not adhering to an obscure 20+ year old zoning ordinance if they themselves were not actively attempting to redraw electoral districts and gerrymander to their liking. As a member of an “oppressed minority” neither I nor any of our family has ever based our voting preferences solely on a candidate that is “Latino/Hispanic” or of any other racial group. It saddens me when there are those who choose to speak for others & misrepresent us as being oppressed, or incapable of making decisions without their help.


Michael Austin
Registered user
Pleasanton Meadows
on Sep 21, 2021 at 2:34 pm
Michael Austin , Pleasanton Meadows
Registered user
on Sep 21, 2021 at 2:34 pm

I agree with with Bay Area Native and Guillermo M.

It has never occurred to me that I am or have been oppressed.

I consider myself to be as much of everything as everyone else on this earth.

My Mothers side of our family are direct descendent of Chief War Eagle.

My first Cousin Tony Rivers (Hoksila Isnala) was Chief (chairman) of the Great Sioux Nation, Cheyenne River Sioux Tribe 1958-1962.


Joe V
Registered user
Birdland
on Sep 21, 2021 at 3:41 pm
Joe V, Birdland
Registered user
on Sep 21, 2021 at 3:41 pm

The Council must of been aware of this law, that is nearly impossible to argue against, and failed to act on it, before this threat of a lawsuit. The article even mentions other tri-valley cities were already compliant.


keeknlinda
Registered user
Vintage Hills
on Sep 21, 2021 at 3:46 pm
keeknlinda, Vintage Hills
Registered user
on Sep 21, 2021 at 3:46 pm

I don't believe the law says a city is required to have district elections rather than at large. Our demographics don't appear to warrant the actions of a greedy attorney who has found a way to make lots of bucks. Nobody stopped these candidates from running, they were invited to all the events just as the rest were. If people didn't vote for them, it may have been because the majority of voters didn't feel they were ready for the job. Experience still is of some value to some of us, you know.


PLSN Resident
Registered user
Another Pleasanton neighborhood
on Sep 22, 2021 at 3:30 pm
PLSN Resident, Another Pleasanton neighborhood
Registered user
on Sep 22, 2021 at 3:30 pm

This approach also assumes that people have moved into racially-segregated communities. And is that the desired outcome here?!?! Is there a “Chinese,” “Indian,” or “Hispanic” part of Pleasanton where they would be gerrymandering to a specific vote based on the assumption (as debunked above) that people only vote by the race of the candidate? And what if said candidates still don’t win? Maybe it’s just the merits of the candidates like it should be. This is fundamentally asinine.


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