Regional planning has just won a round in its age-old battle against local prerogative.
Earlier this month, an Alameda County Superior Court judge struck down voter-approved housing caps in the City of Pleasanton and ordered the city to zone more land to accommodate the city's fair share of housing. Judge Frank Roesch sided with affordable housing advocates, who have pressed Pleasanton for years over what they consider exclusionary housing policies.
The ruling strikes me as very important -- but not quite as important as some people might think. It's not such a big deal because this was a Superior Court ruling that applies only to one city. Unless the case is appealed and a Court of Appeal publishes a similar decision, no legal precedent for any other city has been established.
Still, the ruling is a big deal for two reasons: It emboldens affordable housing advocates, and it may portend future skirmishes as regional planning imperatives continue to take hold in California.
First, a little background on Pleasanton, a city of nearly 70,000 people in Alameda County. In 1986, city voters approved a growth management ordinance and housing cap. In 1998, they modified the earlier restrictions by approving Measure GG, which limited annual housing permits to 750 units per year and – most importantly – established 29,000 units as the maximum number of units in town. In 2008, voters approved Measure PP, which reaffirmed Measure GG and tightened the definition of a housing unit. Over the years, the city has grown into a substantial job center thanks to development of business parks. By one estimate, at least 40,000 people commute to Pleasanton on a daily basis.
Meanwhile, in 2001, the Association of Bay Area Governments (ABAG) determined that Pleasanton's share of the Regional Housing Needs Allocation (RHNA) for the 1999-2006 period was 5,059 units, including 2,423 units for very low, low- or moderate-income households. As you might imagine, this was not a popular mandate in Pleasanton. Despite studies and promises, city officials never zoned adequate land to accommodate the RHNA housing numbers. The Department of Housing and Community Development refused to certify the city's 2003 housing element update.
The San Francisco-based group Urban Habitat Program sued to enforce the housing element law in 2006. The group first had to win a procedural battle even to get its claims heard by a judge (see CP&R Legal Digest, September 2008).
Judge Roesch's ruling on those claims is straightforward. "It is self-evident that the city cannot comply with the state statute requiring the city to accommodate its RHNA when the city is not permitted by its local law, Measure GG, to allow the number of housing units to be built that would satisfy the RHNA," he wrote. "The question of which law prevails is elementary. State law preempts whenever local laws contradict state law."
Roesch ordered the city to strike Measures GG, PP and QQ (another 2008 initiative) from all planning documents and to zone land for housing pursuant to the 1999-2006 RHNA. He also ordered the city to halt issuing non-residential building permits until its general plan complies with state law.
The ruling was a home run for the housing advocates.
"This is the first time that a court has ordered a jurisdiction to rezone sites to meet the need identified in the previous RHNA," said Richard Marcantonio, attorney for Urban Habitat Program. Other cities also failed to zone adequate land during the last RHNA round, and even more cities in the ABAG region missed last year's deadline for updating housing elements. I can guarantee that Marcantonio knows which cities.
I strongly suspect that many of the cities dodging the housing law are hoping Pleasanton does not appeal Roesch's decision because a similar ruling by an appellate court could establish a precedent that those cities don't want to see. At this point, Pleasanton has not announced a course of action. It's too early to appeal because Urban Habitat Program claims of housing discrimination are still pending. A City of Pleasanton spokeswoman said officials have no comment.
However, former Pleasanton Mayor and Councilman Tom Pico, speaking on KQED radio's "Forum," defended the city's growth policies and called the RHNA process "seriously flawed" because it penalizes the city for having a BART station and employment centers. There's nothing wrong, he said, with putting the housing for Pleasanton's workers in the neighboring cities of Dublin and Livermore. He further contended the city is nearly at buildout. Pico was not speaking for the city, but it is exactly that sort of attitude that has gotten Pleasanton in its current pickle.
In approving SB 375, the Legislature made regional planning an even greater priority than it has been under the housing element law. The idea behind SB 375 is to force cities with transit and jobs – cities like Pleasanton – to accept lots of new housing as a way to reduce greenhouse gas emissions from cars. In other words, the conflict that continues to play out in Pleasanton could become commonplace around California.
– Paul Shigley