Hewson Shepherd

Hewson Shepherd

Pleasanton moves to head off litigation


Two actions were taken by the Pleasanton City Council to stave off a pending lawsuit challenging the city’s housing cap and growth management ordinance.

The council voted to rezone land in the Hacienda Business Park at 30 units per acre. The vote was 3 to 2 with Matt Sullivan and Cindy McGovern opposed. The council also agreed to amend the growth management ordinance to allow the council to go over the growth management’s annual 350 permit allocation in order to approve an “exceptional” affordable housing project. McGovern voted “no.”

Pleasanton voters approved the 29,000 housing units. Urban Habitat and a schoolteacher seeking affordable housing filed the first suit challenging the cap in October 2006. The suit demanded that the city provide opportunities where affordable housing could be built by rezoning land. It claimed the city was being “deceitful” in not providing the zoning identified in its housing element.

State Attorney General Jerry Brown filed a second challenge earlier this year. “Pleasanton’s draconian and illegal limit on new housing forces people to commute long distances, adding to the bumper-to-bumper traffic along (Interstates) 580 and 680 and increasing dangerous air pollution,” Brown said in a statement, after filing the suit in Alameda County Superior Court.

Both suits contend the city is violating state laws that aim for communities to take on their share of regional housing needs.

In addition to the lawsuits, the state invalidated the city’s housing element because the city failed to rezone land to meet the housing numbers it was assigned. Pleasanton has always said it would respond to the concerns when it had completed its general plan update. The new general plan was approved this past summer.

Director of Community Development Brian Dolan told the council, “The city needs to implement its housing element in order to defend against pending litigation by rezoning land at 30 plus units per acre where actual affordable housing could be provided.” He said that 17 acres were needed now. The city would need to rezone an additional 60 acres for the next go-around of state housing numbers.

Dolan noted that the state mandates zoning. However, there is no requirement that the housing be built. The goal of the state is to set up a framework where affordable housing could be built. Dolan said that no development would take place until the subcommittee completed its work in creating a PUD.

Attorney Tom Brown, who is representing the city in the litigation, told the council that the point in time for the city to act in rezoning has already lapsed.

Mayor Jennifer Hosterman asked what impact there would be if the city lost its battle in court.

Brown said there is a concern under pending state planning law that the judge could go further and make extreme changes in the city’s land use. “The judge may take it upon himself to act for the council,” said Brown.

Three sites within a half mile of the BART station were selected for rezoning. The total number of units the properties could accommodate is about 948. McGovern pointed out that only two sites were needed to meet the goals of the city’s current housing element. She objected to adding the third property at this time.

She pointed out that the general plan looked at three options for Hacienda. The preferred option allows 333 units, the dispersed idea 150 units and transit oriented development (TOD) calls for 1271 units. McGovern called 1200 units extreme. “There is a wide range of possibilities offered in the general plan. The subcommittee needs to be told to discuss all of them.”

Sullivan wanted to look at other sites in the city for rezoning at this time. He also wanted to complete the PUD plan process prior to rezoning land in Hacienda. Sullivan did indicate he would support a suggestion by resident Steve Bursley to rezone the land provisionally and establish the subcommittee now. The council would then look at the subcommittee’s recommendation before moving ahead with changing the zoning. “The beauty of the idea is that it satisfies all the legal issues. There is some assurance that a subcommittee would actually be set up and play a meaningful part in developing a PUD plan.”

Cook-Kallio suggested rather than establish the subcommittee at this time, the council should do so prior to the second reading of the rezoning. She wanted staff input on the proposal before making a decision. “If we aren’t happy with the make-up of the subcommittee, we could decide not to vote for the rezoning at that time.”

Sullivan replied that setting up the subcommittee now provides the necessary assurance there would be one.

Sullivan also questioned the “good cause” clause that would allow property owners to come in with a development proposal before the PUD process was completed.

City Attorney Michael Roush said that the council has discretion as to what good cause constitutes. He pointed out later that the rezonings would not violate the 29,000 housing cap. Even if all of the units were built on the three rezoned properties, there would still be units remaining under the cap.

The rezoning approved by the council last week raised the ire of nearby neighbors who said the council had always said it would first provide a planned unit development (PUD) plan before rezoning land in Hacienda Business Park. A subcommittee, which neighbors would be part of, was to have been formed to create the PUD plan.

Neighbors questioned the necessity of moving ahead now with rezoning. Dolan stated, “The litigation is moving forward. It is in the city’s best interest to do it now or it could work against the city in the litigation.”

There were concerns raised by neighbors about impacts on schools, property values, parks, and fees residents pay to the business park.

Dolan said that studies show that there is no negative impact on property values if the project is well designed, maintained and professionally managed. As to assessment fees, he said according to business park representatives, there would be no increase. A 1.2 acre park would be needed to meet the city’s guidelines.

A series of speakers both opposed and supported the rezoning of the property.

Deborah Sanders noted that residents had believed the subcommittee would be formed to enable them to participate in the planning process. She felt rezoning prior to the PUD planning was backward. She urged the council to first establish the PUD. Many others voiced the same opinion.

Steve Bursley said it was premature to move forward with rezoning land without proper information. He said he understood the concerns about the litigation. He suggested two options for the council to consider. One was to look at alternate locations; another was to grant conditional approval and assemble a subcommittee comprised of all stakeholders. The responsibility of the subcommittee would be to approve any and all plans for the properties and to ensure there is no financial impact on residential stakeholders.

Some said the threat of outside intervention into land use planning was using “scare tactics.”

Alex Brennan of East Bay Housing Organization, urged the council to move forward with the rezoning. He also chastised the community for comments regarding low income people made during the Planning Commision hearing. He stated, “Don’t take a discriminating view and blame low income people for crime, falling property values and deteriorating schools.”

Affordable housing advocates urging the council to move forward included Barbara Hemphill, Dolores Bengtson, Pat Belding, Jack Dove and Becky Dennis.

Hemphill pointed out that the majority of employees at the business park are at service level and have to commute. Rezoning the land would offer an opportunity for the city to achieve a better jobs/housing balance and lessen traffic congestion.

David Stark of Bay East Association of Realtors said that neighbors do not need to be concerned about the quality of the development, because of the city’s stringent approval and review process. He described the entitlement process in Pleasanton as being equivalent to the Spanish Inquisition. He added they should be concerned about being taken out of the planning process if the litigation were to move forward. “Outsiders could dictate land use decisions.”

Jon Harvey represented the Greenbelt Alliance in supporting the rezoning. He said it is a way to protect open space by providing smart growth within urban growth boundaries. “The city needs to provide housing affordable to more people. Let’s get serious about smart growth.”

Sullivan pointed out that he has always been a strong advocate of TOD. However, he felt that people were promised a PUD process. “We need to honor that commitment. By starting off on the wrong foot, it will be harder to reach a point where we can get buy into a plan.”

Thorne offered the view that the state was too involved in local land use. Without state law, the city would not be involved in litigation now and trying to rezone land out of the normal order of the approval process. He added, “We do need to do a better job in providing housing for the work force, seniors and our kids.”

Cook-Kallio said her main focus was to retain control over local land use decisions. “The city is caught between a rock and hard place. The brief has to be ready to file in  November in time for a December hearing. The general plan took way longer than anyone expected. We need to show that our intent is to comply with the housing element through actions, not words.” She supported moving forward with rezoning and asking staff to make sure there are future policy options that would protect the city in the event that the housing cap were overturned.

McGovern said of the housing allocations, “The numbers never stop. We will never be able to chase them with no one in the state legislature saying you don’t have to grow any more. At this rate we won’t have the dollars to support the quality of life Pleasanton has always provided.” She too asked for safeguards to prevent future high growth volumes.

Hosterman agreed with McGovern that the number of housing allocations foisted on Pleasanton is unsustainable. “I am so disappointed that state law has been manipulated to the point where we come close to losing control over how we develop our city.”


The current ordinance allowed for 350 permits to be issued each year. There are 50 set aside for affordable housing. The affordable housing can be exceeded using unit allocations from past years or the council could borrow four years into the future. The council was asked to amend the ordinance to allow for more permits if an exceptional affordable housing project came forward.

Roush told the council that the litigation contends that failure to amend the growth management has had a “chilling and adverse impact” on the opportunity for affordable housing projects. Approving the ability to override the numbers could eliminate this claim in the litigation, he stated.

Sullivan commented, “Step-by-step we are dismantling the growth control measures that have been put in place.” He said he wanted to talk about future and potential growth control strategies

Attorney Tom Brown said that it would probably benefit everyone to have a discussion about both the housing cap and growth management. “Even if the cap were invalidated the city has a couple of years before the cap would be exceeded. There would still be time to address issues that protect the pace and overall growth of the city,” Brown stated.


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