In 1996, the City of Pleasanton adopted Measure GG, which set a strict housing cap. Under Measure GG, no more than 29,000 units could be built within the city. Although it took awhile, fourteen years later, Pleasanton’s housing cap has finally been ruled to be illegal. Judge Frank Roesch, of Alameda County Superior Court, issued a decision declaring that Measure GG’s housing cap violates California housing law. His decision went even further to require that the City rezone land in order to correct for previous housing shortfalls.
The litigation challenging Pleasanton’s housing cap has been in the works since 2006 and was reinstated in 2008. In 2009, Attorney General Jerry Brown saw this case as an opportunity to augment his ever-growing portfolio on climate change, which includes not just lawsuits, but also comment letters that inform local governments when their efforts at planning and environmental review inadequately document impacts related to greenhouse gas emissions and climate change. Brown initially provided Pleasanton with such a comment letter (PDF), informing the City that its updated General Plan and corresponding EIR were inconsistent, and therefore inadequate, as long as Measure GG’s housing cap was retained. The Pleasanton situation fits especially well into Brown’s climate change portfolio, because Measure GG, if allowed to continue into perpetuity, would ultimately result in a gross housing-jobs imbalance. Although Pleasanton was projected to nearly double its workforce by 2025, its residential capacity would remain frozen in time. That means the vast majority of that workforce would be required to commute long distances from the Bay Area and the Central Valley on Interstate 580 and other heavily congested freeways, thereby increasing greenhouse gas emissions.
Despite Brown’s commentary, the City stuck to its story, claiming that the housing cap was simply an example of a municipality legally bringing to bear its land use powers. Brown then joined Urban Habitat’s litigation in 2009, which increased the publicity of the case while boosting Brown’s climate change credentials. In August 2009, the court refused to dismiss the case, and now, in March 2010, the court has finally invalidated the housing cap.
Judge Roesch’s Decision
Last summer, I wrote a post that went into a fair amount of detail describing the General Plan, state housing requirements, Pleasanton’s growth projections, and the nexus to climate change. I won’t repeat all of that information here, but if you are interested in more detail, or simply would like to refresh on the background, please check out that previous post.
The abridged version is that the state’s Regional Housing Needs Allocation (RHNA) is the result of a process that assigns to regions within California a certain number of housing units at all income levels. The expectation is that regions will plan for the future, in order to accommodate California’s growing population. The Association of Bay Area Governments (ABAG) then translates those projections to the level of local governments within the nine-county Bay Area, so that each jurisdiction absorbs its fair share of the region’s housing need. Measure GG is clearly problematic, because over time, ABAG would continue to assign housing allocations to Pleasanton — but Measure GG’s constraints would preclude the City from planning and approving those future units. From Judge Roesch’s decision (PDF):
It is self-evident that the City cannot comply with the State statue [sic] 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.
Indeed, Pleasanton is unable to accommodate the 3,277 homes it is assigned for the 2007-2014 RHNA planning period, being only about two thousand units short of reaching the cap. The City also failed to account for some housing units that it had been assigned in the previous planning period, which ended in 2007.
As of the time of this writing, the Pleasanton City Council has not yet spoken to this issue, nor is it clear whether the City will seek an appeal. It would be preferable for the City to move on, accept this decision, and carry out the rezoning necessary to comply with the ruling. The City’s basic premise — that a municipality’s land use powers reign supreme — can only go so far. Although local governments in California have traditionally retained essentially complete authority over land use decisions, the State has a clear interest in ensuring that all its citizens are properly housed. The RHNA is a vehicle, albeit a rather weak one, that provides the State with a measure of oversight to ensure that this important interest is fulfilled. Where the State has provided such a framework to guide local action, State mandates necessarily preempt local regulations. Again, from Roesch’s decision, quoting the state Supreme Court:
“The Legislature has specified certain minimum standards for local zoning regulations” … even though it “has carefully expressed its intent to retain the maximum degree of local control …” … “Local legislation in conflict with general law is void.”
The City must know it is caught in a tough spot, and its own actions within the past few months suggest that it anticipated an unfavorable ruling. The City amended Municipal Code § 17.36.060 (limiting building permits for new residential units) so that it allowed an exception to the building permit cap, if necessary to comply with the RHNA. Introducing this exception eliminated a conflict with state law, at least with respect to the annual building permit cap.
The City also passed an ordinance, which approved the rezoning of three parcels in Hacienda Business Park to permit mixed-use development. But Section 5 of that same ordinance refused to approve any mixed-use or residential development plan proposed for those rezoned parcels, until “PUD Major Modification for the entire Hacienda Business Park” had been completed. Judge Roesch did not buy it, observing that “could take up a period of time ranging from one year to forever.”
The Hacienda Business Park rezoning, Roesch noted, “may start a process to cure the City’s failure in this matter, but is wholly inadequate to be considered a cure.”
Roesch then ordered Pleasanton to implement “non-illusory zoning changes” necessary to cure its housing shortfall from the previous RHNA planning period, which ended in 2007. He also ordered the City to strike Measure GG (and related Measures PP and QQ) from all planning documents, and to freeze construction and development permits until the City’s General Plan is fixed.
The Measure GG housing cap placed the City of Pleasanton, as Judge Roesch aptly put it in his decision, “in clear violation” of state law. Indeed, the notion of a strict numerical limit on housing units is fundamentally incompatible with the philosophy underpinning California’s housing law — which both accepts population growth as a reality and at least attempts to hold local governments accountable, by requiring that they plan for future need rather than sticking their collective heads in the sand. It would certainly not be fair for Pleasanton to readily accept job growth within its city limit but then refuse to absorb residential growth. And yet, continued application of Measure GG would have produced precisely that perverse result. Judge Roesch is to be commended for finally overturning Measure GG.