A lawsuit challenging the City of Pleasanton's housing policies has been reinstated by the First District Court of Appeal after a trial court judge had ruled the lawsuit was filed too late. The unanimous three-judge appellate panel determined the statute of limitations for the lawsuit had not expired. The court concluded housing advocates had at least three years to sue the city.

While the ruling pleased affordable housing advocates, it concerned officials in Pleasanton and elsewhere who said the court appeared to establish an open-ended statute of limitations.

"We have some concern about the Court of Appeal's decision that a validly enacted growth management regulation can be subject to attack just because of the passage of time," Pleasanton City Attorney Michael Roush said. The city has asked the state Supreme Court to take the case because the Court of Appeal's decision, Roush contended, lets plaintiffs decide the deadline for filing lawsuits.

Housing advocates contend they have legitimate complaints about Pleasanton's growth management ordinance, a voter-approved housing cap, and the way those laws restrict the provision of mandated affordable housing. They say litigation was a last resort after city officials stalled on implementing measures in the city's own housing element.  

"The housing cap makes it literally, mathematically impossible" for the city to meet its fair-share housing obligations, said Richard Marcantonio, who filed the suit for the group Urban Habitat Program.

Pleasanton is a relatively wealthy, job-rich city of about 69,000 people along the 580 and 680 freeways in eastern Alameda County. The city's politics have tended toward slow-growth, as evidenced by the passage of city ordinances and ballot measures to restrict development (see CP&DR, December 2002, April 2000, July 1999). Specifically at issue here are a growth management ordinance and a voter-approved housing cap. First adopted in 1986 and amended in 1998, the growth management ordinance limits building permits to 750 per year. The Measure GG housing cap approved by voters in 1996 establishes 29,000 as the maximum number of housing units permitted in town.

For the 1999-2006 regional housing needs allocation (RHNA) period, the Association of Bay Area Governments told Pleasanton it must plan for 729 units of very low-income housing, 455 low-income units, 1,239 moderate-income units and 2,636 above-moderate units. In 2003, about a year after the deadline, the city adopted a housing element that was supposed to reflect the RHNA figures. A key part of the element was a promise to rezone 30 to 40 acres of commercial and industrial land by June 2004 to permit high-density residential development. Without the rezoning, the city acknowledged it would lack land for 871 needed lower-income units. The state Department of Housing and Community Development (HCD) granted "conditional approval" of the housing element but revoked that approval in early 2005 because the city still had not rezoned land.

With Pleasanton lacking a certified housing element, advocates began pressing the city about the provision of affordable housing. They noted that over the first five years of the 7 1/2-year planning period, only about one-third of the moderate and low income-units were built, and only a handful of very low-income units, all for senior citizens, were provided. City officials told the state and housing advocates that the rezoning had slipped because of an ongoing general plan update. To date, the city still has not designated the acreage promised for high-density housing.

In October 2006, the group Urban Habitat Program sued the city, arguing that the housing element did not comply with the state housing element law, and that the growth management ordinance and housing cap were inconsistent with the city's general plan, state zoning and planning law, the housing element law, the least cost zoning law and the density bonus statute. Alameda County Superior Court Judge Winifred Smith agreed with Pleasanton that the statute of limitations had expired and that some of the claims were not ready for judicial review. On appeal, the First District, Division Two, overturned most of the lower court ruling, clearing the way for the litigation to resume in Superior Court.

The First District focused on the statute of limitations. Both Urban Habitat and the city assumed that the deadline in Government Code § 65009, subdivision (d), applied, but they differed on what triggered the start of what is a 150-day timeline for notification and the filing of a lawsuit. However, the court ruled that statute did not apply because "the limitations periods set out in the statute are  triggered by specific acts of local land use planning authorities." Urban Habitat's contentions regarding the growth management ordinance and the housing cap did not concern "a specific action taken by the city," the court determined.

Because Urban Habitat is not suing over a specific action, the three-year statute of limitations in Code of Civil Procedure § 338 applies, the court held. In making this ruling, the court cited the state Supreme Court decision in Travis v. County of Santa Cruz, (2004) 33 Cal.4th 757 (see CP&DR Legal Digest, September 2004). In Travis, the court ruled that § 338 gave landowner three years to sue over a county ordinance that was allegedly in violation of a newer state law. The general conclusion in Travis, First District Justice Paul Haerle wrote, was this: "A challenge to a local government's decision based on events that occurred after that decision took place and, therefore could not have been brought during the statutory time limits, is not governed by § 65009."

A staff report to the City Council in April 2006 conceded that city could not meet its RHNA numbers. From that date, Urban Habitat had three years to file suit, the court ruled.

City Attorney Roush disagreed with the ruling. He said housing advocates were challenging the validity of an ordinance, and such a challenge must be filed shortly after the local law was approved. Otherwise, he said, cities lack certainty regarding their ordinances. Berkeley Deputy City Attorney Zack Cowan, who filed an amicus brief in the case for the League of California Cities, agreed with Roush.

"The court's logic and the ruling could extend to anything. They aren't limiting it to housing elements," Cowan said. "Do we ever get to know what our rules are? People should get to raise questions about whether our rules are working. But that's what the political process is for."

The court did toss out two claims regarding Pleasanton's housing element. But it reinstated claims regarding housing discrimination as being timely filed within two years after the occurrence of an allegedly discriminatory practice.

The court rejected the city's argument that a portion of the lawsuit was not ready — or "ripe" — for judicial review because the city has never turned down a specific affordable housing project. Urban Habitat attorney Marcantonio said the city's argument incorrectly assumes only a housing developer may sue over the city's housing laws.

Marcantonio contended that a court must address the conflict between Pleasanton's annual building permit limit and ultimate housing cap — which the city appears to be nearing — and the city's obligations under state law. He noted that in the current, 2007-2014 RHNA process, Pleasanton was directed to plan for 3,277 units, about three-fourths of which must be affordable.

The Case:
Urban Habitat Program v. City of Pleasanton, No. A118327, 08 C.D.O.S. 118327, 2008 DJDAR 11171. Filed June 20. Ordered published July 21, 2008.
The Lawyers:
For Urban Habitat: Richard Marcantonio, Public Advocates, Inc., (415) 431-7430.
For the city: Michael Roush, city attorney, (925) 931-5015.