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Pleasanton Council may settle affordable housing litigation issues Tuesday

Submitted by News Desk on Tue, 07/20/2010 - 3:57pm

The Pleasanton City Council is expected to agree to a court order Tuesday that scuttles a 29,000-unit housing cap law approved by voters in 1996 and to provide more affordable and workforce housing to meet future state housing requirements here.

The agreement, according to staff reports prepared for the council meeting, also calls for paying $1.9 million in legal fees to lawyers from Urban Habitat and Public Advocates, the two housing coalitions that filed the successful suit in 2006 to invalidate the housing cap. Tom Brown, an attorney who represented Pleasanton as outside counsel in the litigation, already has been paid about $500,000 for his work.

As costly as the settlement agreement will be, if the council accepts it, it could have been worse. The affordable housing coalitions claimed their legal fees topped $4 million. Attorney General Jerry Brown, whose office joined in the suit against Pleasanton, also had legal fees but has agreed to waive those now that a settlement has been reached.

Tom Brown, who handled the city's legal battle, advised against appealing the decision by Alameda County Superior Court Judge Frank Roesch. He said an appeal would escalate the costs for all the parties involved and would likely be unsuccessful.

Following his ruling March 12, Roesch gave Pleasanton until August to appeal his decision or accept it and remove the housing cap. In the meantime, he barred the city from issuing any non-residential building permits, a move that has exacerbated commercial interests that have held back on plans to expand their facilities here or to build new ones.

With the final settlement agreement expected to be formally approved at a council meeting Aug. 17, according to staff reports, it's expected that Roesch will lift the permit ban.

Although the housing cap will be stricken from the city's General Plan, no one expects the floodgates to open for more home construction. A growth management law restricts new residential building permits in Pleasanton to no more than 350 a year, a number that hasn't been seen in years. Given the current market doldrums, it's unlikely more than a few permits will be requested this year or next, with those most likely for room additions, not new homes or apartments. Even the housing cap, which Roesch found in violation of state law, hasn't been a factor in limiting housing growth in Pleasanton. As of today, with 27,000 homes and apartments built, the city is at least 2,000 units short of reaching the cap.

After the Roesch decision, the City Council appointed Mayor Jennifer Hosterman and Councilwoman Cindy McGovern to be a negotiating team to meet with representatives the attorney general's office, Urban Habitat and Public Advocates. City Manager Nelson Fialho, City Attorney Jonathan Lowell and outside counsel Tom Brown also attended those meetings, which took place weekly at various locations.

According to staff reports, the negotiating team had five goals. They included retaining local control over rezoning efforts already under way for new affordable and market rate apartments in Hacienda Business Park, restoring the city's non-residential permitting authority as quickly as possible, ending all outstanding litigation that hasn't yet been adjudicated related to the housing cap, and affordable housing and General Plan issues, including two outstanding unfair discriminatory housing claims filed in 2006.

In reaching a settlement agreement, the staff report states that the City Council will agree to:

* Repeal the housing cap from the General Plan and wherever it is referenced in other city documents, including the city's housing element. Although the housing cap was approved in 1996 by an overwhelming margin of voters, the court order requires the council to scuttle it.

* Expedite a task force study on the Hacienda Business Park housing plan, with its recommendations to be completed within six months of the final settlement date.

* Prepare a housing element within the next 12 months that will basically spell out how Pleasanton plans to develop over time, where housing units for all income levels will be built, and that the numbers will comply with state requirements for meeting anticipated housing needs in the community.

* Adopt a resolution reiterating the city's commitment to non-discrimination in all type of housing, specifically including affordable housing for families with children -- an action Urban Habitat and Public Advocate representatives demanded.

* Prepare within 18 months a "Climate Action Plan," as requested by the attorney general's office, that will address the effects of vehicle miles traveled here given a large workforce with a smaller number of residents in that workforce. This plan will meet the requirements of greenhouse emission controls sought by the state.

* Pay all legal costs associated with the various lawsuits and threatened litigation in an amount of $1.9 million.

The proposed settlement agreement, as stated in the staff report, is on the council's Tuesday night agenda. Representatives of the attorney general's office and the affordable housing coalitions are expected to participate in the meeting, which starts at 7 p.m. in the City Council chamber, 200 Old Bernal Ave.