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The Independent

Pleasanton Council Considers Response To Judge’s Ruling

Pleasanton is looking at three different responses to a judge’s ruling that overturned its housing cap.

The city council took input from the public at last week’s meeting on potential actions. The options are to appeal the decision, comply with the court’s ruling as narrowly as permitted by law, or negotiate a resolution.

No decision was made. A second hearing will be held on April 20, at which time the council will decide its response to the court’s ruling.

City Attorney Jonathan Lowell called the decision, “difficult to swallow. It is important to talk publicly as much as we can about the options.”

Alameda Superior Court Judge Frank Roesch issued the ruling on March 12 He ordered the city to complete re-zoning to accommodate its share of the region’s housing as required by state law. The ruling prevents the city from using the cap in any planning documents or decisions.

The city has 120 days to reach a decision, once the final writ is issued.

Public opinion appeared to favor negotiations. The business community was particularly concerned about its inability to build, renovate, or expand. The court suspended the city’s nonresidential permitting power until it is in compliance with state law.

The city has spent about $500,000 in legal expenses on the case. It does not include the work performed by the city attorney’s office. An appeal could cost about $250,000. The city could also face claims for legal expenses for Urban Habitat, which instituted the lawsuit.

There is still an outstanding issue to be resolved in the courts. It involves a charge of discrimination against Pleasanton. Urban Habitat, which filed the lawsuit, argued that Pleasanton favored senior housing over multi-family housing, which violates antidiscrimination laws.

Tom Brown, the special defense counsel hired by the city, discussed the implications of the decision and Pleasanton’s potential responses.

Brown noted that state law requires a city to identify land that could be used for affordable housing. ABAG issues “fair share” regional numbers. The court, in making its ruling, determined that the city’s cap and growth management policies prevent the city from accommodating its fair share numbers.

Pleasanton had argued that it should be given a chance to demonstrate that it could meet its fair share with an updated housing element. Urban Habitat said that it should not have to wait for the new housing element. The court agreed, said Brown.

He continued, Pleasanton can fight the decision. He added that the antidiscrimination charge cannot be resolved until there is a final decision on the litigation regarding land use policies in Pleasanton.

The city can comply by zoning for unmet numbers. One issue that is not clear, according to Brown, involves development “by right.” Urban Habitat has said that it believes development following the rezonings would be “by right,” meaning without discretionary review by the city other than design review. The city disagrees, and believes that the required rezonings were never intended to eliminate any need for future discretion by the City.

The third option would be for the city to try to negotiate a different solution. There are areas of overlapping interests on the part of the city and affordable housing advocates that could be addressed through negotiations, said Brown. “Those talks are underway now. They have been cordial,” he added.

No information was provided on what the city’s strategy would be regarding litigation or negotiations.

Brown did note that there are systems available to the city to control growth. He explained, “Many cities have adopted growth management based on their ability to provide public services and infrastructure. They have been upheld in court. Pleasanton is the only city with a hard cap of 29,000 that provided no exceptions.”

Mayor Jennifer Hosterman said there is some confusion over the implications of the decision when it comes to how much the city has to grow. She said, “It is not the city’s job to build houses. The state forces zoning where housing can be built.”

Brown agreed. “There is no obligation to use public resources to build housing, at least for now. A city is only required to plan for it.”

Councilmember Cindy McGovern wondered if the city would have to go to voters over the decision, since the cap was approved by voters.

Brown said, “No, a vote would have only been required before the court ruled against the city.”

There were questions raised about Measure PP and its provisions. The measure is part of the general plan’s land use element. It includes policies aimed at protecting ridgelines from future development.

Brown said he didn’t think the ruling was intended to sweep away ridgeline protections. “The issue is not clear. It may be subject to future dispute or litigation.”

The public offered the following comments:

Michael O’Callaghan urged the city not to move forward with litigation. “Let’s get this resolved. We don’t need more lawsuits.”

Becky Dennis stated, “I hope the council will pursue the path of a negotiated settlement.” She asked that affordable housing advocates would be given a role in the negotiations.

Karen Martens declared that no one wants businesses to suffer. She was concerned that the 120 days given Pleasanton to comply, litigate or negotiate was not long enough. She said it would take more time to amend the city’s documents.

Mark Triska, a commercial realtor, was concerned about the loss of business. “A Fortune 500 company wants to move its headquarters to Pleasanton. The inability to make tenant improvements or expand is troublesome. The company may move on to another city such as Dublin or Livermore,” he stated, adding, “Don’t continue to litigate; comply or negotiate. Whatever the direction, express what is going to happen as quickly as possible.”

Several union representatives urged compliance or negotiations. The jobs are needed, they said. The city needs to allow for reasonable, responsible growth.

Jon Harvey, representing the Greenbelt Alliance, urged the city to comply with state law. “The housing cap is not serving a useful purpose. It is time for Pleasanton to move forward in improving jobs and business in general. There is an opportunity to plan sustainable family neighborhoods that meet all economic levels.”

Kay Ayala didn’t urge a particular direction. She offered comments on state policy. “The numbers from ABAG are a joke. They are unfunded. People want a planned community that is economically sustainable. The state does not have the same goal.”

One speaker urged the city to prepare an economic analysis of each of the options. “The council needs to understand all of the issues, before deciding whether to fight or negotiate.”

Chamber of Commerce CEO Scott Raty said it is ironic that the 29,000 cap designed to give Pleasanton local control has resulted in having its local control taken away. “The city’s priorities need to change. Overtime, we will recognize that the objectives of the state and the community are divergent.” He urged either compliance or negotiation.

City Manager Nelson Fialho said that negotiations would not preclude compliance or litigation in the future. The city is moving forward on parallel tracks.

He said that the April 20 staff report would spell out the history of the cap, the reasoning behind the housing numbers assigned to Pleasanton and the consequences of each path for the city. “We hope at that time to understand better what compliance means.” He said the report would also provide optional growth management proposals for the city council to consider.

Hosterman commented, “Just as we vigorously defended the cap, we will pursue vigorously a solution that will allow Pleasanton to retain local control while complying with state law.”


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