Continuing legal education

During the Russo-Gilmore administration, the Merry-Go-Round’s antenna went up whenever a speaker, on or off the dais, asserted that state law “required” or “prohibited” a specific result.

The assertion usually was made as a tactic to put Council members in a box:  If state law dictated the outcome, they no longer had any room to make up their own minds (or any reason to listen to their constituents).  And if they defied the legal mandate, they’d invite a lawsuit, sure to succeed, that would deprive the City of the money needed to fund public safety, parks, libraries, etc.

The problem was that, far too often, the speaker, through ignorance or arrogance, was distorting what state law actually provided.  (Want an example?  The contention that the state Housing Element law “required” the City to put the multi-family overlay on 16 separate “housing opportunity sites,” or that the state Constitution “prohibited” the City from modifying health benefits for public-safety retirees.)  In such cases, the demand for deference to state law was unfounded and the threat of an adverse judgment was an empty one.

Lately, we’ve seen this phenomenon emerge once more – and it is beginning to infect the debate over one of the most important issues facing the City:  the appropriate scope and pace of residential development.

Consider two examples.

Prior to the meeting at which Council was scheduled to consider retaining (or, if you prefer, reinstating) the 435-unit cap on residential development at the North Housing site, the housing advocacy group Renewed Hope sent an email to the elected officials asserting that the cap was illegal under state law.  According to the email, which was signed by Doyle Saylor, president of Renewed Hope, and by Mike Rawson of the Public Interest Law Project, the “down-zoning effectively instituted by the 435-unit cap” violated the so-called “No-Net-Loss Law,” which prohibits reducing the residential density on a parcel below that shown in the Housing Element unless certain findings are made.

At the meeting itself, Renewed Hope’s spokespersons, Mr. Saylor and Laura Thomas, repeated the claim.  But their anti-cap argument based on the “No-Net-Loss” law suffered from one basic flaw:  the statute doesn’t apply to the City of Alameda.

Assistant City Attorney Celena Chen made this clear when, later in the meeting, she addressed housing-law issues.  Ms. Chen’s legal analysis, which she later summarized for us, was straightforward:  Alameda is a charter city.  The “No-Net-Loss Law” is a part of a chapter of the Government Code that, by its terms, does not apply to charter cities.  Accordingly, the “No-Net-Loss Law” does not apply to Alameda.  (The recently enacted
SB 166, Ms. Chen added, did not change this result.)

So Renewed Hope got it wrong.  But our intent is not to call out the housing advocacy group (or its public-interest law firm) for less-than-careful legal work.  The reason we bring up the error is that City staff made exactly the same mistake in the staff report presented to the Planning Board about the North Housing re-zoning.  The report, signed by Assistant Community Development Director Andrew Thomas, contained a paragraph devoted to the No-Net-Loss Law.  “Re-establishing a housing cap as part of the re-zoning of the [North Housing] property,” it stated, “is a form of down-zoning, inconsistent with the new State law which is intended to facilitate housing construction in California.”

The paragraph containing the quoted sentence was removed from the staff report presented to Council, and Ms. Chen left no doubt about the inapplicability of the statute when she spoke.  But Council, the Planning Board, and many members of the public have come to rely on Mr. Thomas to explain the legal standards governing residential development.  Indeed, at a recent Council meeting, Assistant City Attorney Andrico Penick deferred (in Ms. Chen’s absence) to Mr. Thomas when asked a question about the Housing Affordability Act.

Mr. Thomas is always up for the task, but, occasionally, he puts his own expansive gloss on the statutory language.  For example, the HAA permits a city to disapprove a development project if it finds that the project “would have a specific, adverse impact” upon public health or safety that can’t be mitigated or avoided.  The statute itself defines the quoted words, but Mr. Thomas recently offered his own more colorful, but less careful, take on them:  disapproval is justified, he told Council and the public, only if “there is evidence on the record that there is a health or safety problem – this is not a traffic problem, not a tall building problem, but your fire chief or your police chief comes to you and says, people will either get sick or die from this. . . .”  No court has ever said as much – or gone quite as far.

We don’t mean to be too hard on Mr. Thomas, either.  But maybe he ought to have Ms. Chen looking over his shoulder the next time he expounds on legal issues.

Our second example also involves the HAA – and how it is being used by housing advocates, and, regrettably, also by Vice Mayor Malia Vella, to raise up the litigation bogeyman.

The HAA was enacted in 1982, but only a handful of published appellate opinions have construed it.  Moreover, as The New York Times reported in December, the Act has been “rarely invoked” as the basis for a lawsuit.  Lately, however, “the law has become a tool for activists.”

Our City Council was treated to a performance by one of those activists when it was considering whether to approve the development agreement for the Encinal Terminals project.

Victoria Fierce, the co-executive director of the San Francisco-based California Renters Legal Advocacy and Education Fund (which calls itself “CaRLA”), told Council she had come to the meeting to “remind the City of Alameda of their obligation to abide by state housing laws,” particularly the HAA, and to “recommend asking your staff about our recent lawsuit in Berkeley and how that turned out for Berkeley.”  But she had more than “reminding” and “recommending” in mind.  “What you can do now,” she admonished our elected officials, is to “approve this project so you don’t get screwed over later on, ‘cuz I’m a YIMBY, YIMBYs are organized, we vote, we get these bills passed, we are going to have you build your housing.”

And why should Alamedans care about Ms. Fierce’s bluster?

Cue the Vice Mayor.

“Everyone, at least up here, is familiar with the name Judge Kimberly Colwell,” Ms. Vella informed the audience, “or at least we should be.”  Judge Colwell, she went on, was the Alameda Superior Court judge “who ruled against the City of Berkeley” in the case to which Ms. Fierce referred.  According to Ms. Vella, the city had opposed a housing development project “on the grounds of parking and traffic,” but the judge held that the “denial of approval didn’t comport with the findings required by [the HAA].”

The lesson she drew from these events, Ms. Vella declared, was clear:  “I, for one, do not want to be spending a significant amount of money . . . on high-priced attorneys defending us in cases where there’s judges like Judge Colwell who are finding against cities like Alameda.”  “By the way,” she added, Judge Colwell “has found against the City of Alameda, for those not in the know.”  (Ms. Vella didn’t identify the case.)

The Merry-Go-Round undoubtedly falls into the category of those whom the Vice Mayor would consider “not in the know,” but we can read the pleadings and orders issued in the suit to which Ms. Fierce and Ms. Vella referred (which Ms. Fierce’s own organization posted on its website).  And the public record tells a different story than the one spun by the Vice Mayor.

The Berkeley litigation involved a plan to demolish an existing single-family home located at 1310 Haskell Street and replace it with three new two-story homes.  The city’s zoning adjustment board approved the project, but a group of neighbors appealed to the city council.  According to The New York Times, “one focal point” of the appeal was that the three new homes would “obstruct sunlight” and thereby “imperil” a garden that supplied the community with fresh vegetables.

The city council overturned the zoning adjustment board, and CaRLA sued, alleging the city had violated the HAA.

The case settled almost immediately, and Judge Colwell never had to rule, nor did she rule, on the merits of the HAA claim.  Rather, in November 2016 she signed a stipulated order embodying the settlement terms to which the parties had agreed, including an “HAA analysis” of the project by the city.  Later, when CaRLA alleged that the city had failed to conduct the analysis, the judge granted the group’s motion to enforce the settlement.  Thereafter, the city council decided to approve the project, and Judge Colwell signed a stipulated order reflecting the approval.

Now, we’ve been practicing law long enough to understand why CaRLA would count a negotiated settlement as a litigation victory, especially since the city agreed to pay its attorneys’ fees.  But we cannot help but point out that, when Ms. Fierce was directing our Council’s attention to her organization’s courtroom prowess, she failed to mention the suit brought by CaRLA against a Bay Area city alleging a violation of the HAA in which there had been a ruling on the merits:  Trauss v. City of Lafayette.

In that case, the city convinced a developer to replace a proposal for a multi-family apartment project containing 315 units with one for a project consisting of 44 or 45 single-family homes.  A Contra Costa Superior Court judge rejected CaRLA’s claim that the city had violated the HAA.  The opinion is an interesting one, with implications for development in Alameda, because it suggests that a city’s planning staff can negotiate a reduction in density with a developer without running afoul of the HAA if the city council never actually voted to disapprove the original project.  Unfortunately, an appellate court didn’t get the chance to review the ruling.  According to the CaRLA website, the group agreed not to appeal the adverse decision in exchange for the developer’s payment of its attorneys’ fees.

No rule requires full and accurate disclosure by advocacy groups, but our expectations are higher for elected officials.  In particular, we wish that Ms. Vella would be a little more, well, careful (there’s that word again) when she speaks publicly about legal issues involving residential development.  The Vice Mayor does have a law degree from a reputable institution (right, Ms. Ashcraft?), but her law practice consists of representing the Teamsters’ union in contract negotiations.  If she’s reluctant to delve into the statutes and cases dealing with housing herself, she ought to stick to the areas of the law that she knows something about.  And if she’s going to revive the Russo-Gilmore-era tactic of stoking fears of litigation as a way to justify or excuse her vote, she ought at least to get her facts straight when she describes other lawsuits.

Enough about Ms. Vella.  More generally, we’d be delighted to see our Council members give up this tactic altogether.  If they’re truly concerned about the litigation risks of a decision, they ought to tender the issue to the City Attorney.  The question should not be: Will anyone sue?  Rather, the appropriate inquiry is:  If a suit is filed, what are the plaintiffs’ chances of success?  And if the plaintiffs win, how much can they get?  Unless Ms. Kern (or Alan Cohen, the litigator on her staff) is willing to opine that a particular Council decision would be likely to expose the City to liability in a significant amount, the four lawyers on the dais – and you, too, Mr. Matarrese, if you find yourself tempted to join the fray – ought to keep their fingers off the alarm buttons.  The public discourse would benefit from such restraint.

Forbearance by our elected officials, of course, won’t stop the local crew of legal experts without law degrees from posting or tweeting their own dicta.  Like Donald Trump, they have every right to tell their followers what they want to hear.  But the rest of us have every right to ignore them.


No-Net-Loss Law: Cal Gov Code _ 65863

Housing Accountability Act: Cal Gov Code _ 65589.5Trauss v. City of Lafayette – 4-3-17 order

Renewed Hope letter: 2018-01-02 Correspondence

Staff report to Planning Board: 2017-11-13 staff report re rezoning



About Robert Sullwold

Partner, Sullwold & Hughes Specializes in investment litigation
This entry was posted in City Hall, Development, Housing and tagged , , , , , , , , . Bookmark the permalink.

3 Responses to Continuing legal education

  1. …and only a few years ago, we had a similar round of smokey misinformation hurled from City Hall involving another housing issue—that is, whether to build housing or expand the park at the end of McKay Avenue. City leaders sided with housing developer Tim Lewis Communities in its bid to acquire a federal parcel at the end of McKay Avenue next to the Crab Cove Visitor Center. City leaders asserted that the residential zoning for the parcel could not be undone because it would put the city’s Housing Element out of compliance with state law and risk the loss of state funds. It was also asserted that zoning the parcel as Open Space would put the city at risk of being sued by Tim Lewis Communities.

    Ultimately, the parcel was zoned Open Space via a citizen initiative, and the city suffered no consequences from the state, nor was the city sued by Tim Lewis Communities. The “housing advocates” steadfastly clung to this disinformation campaign to the end. The parcel is now owned by the East Bay Regional Park District and is in the early stages of conversion to park use.

  2. barbara thomas says:

    Thank you for pointing out what all of the other news groups failed to make clear: That Judge Colwell was simply enforcing a stipulated judgment agreed to by the parties. Something most judges do without fail and little thought. While there are good reasons with timelines for judgments to be set aside, I cannot think of a single instance where a stipulated judgment was ever set aside, absent fraud. As I listened to Vella’s disguised threat, I immediately thought that as an Alameda resident, there would be a good chance Judge Colwell would recuse herself from Alameda density cases. Especially if she has to drive through the tunnel or over the bridges to get to work. Turns out, it was an empty and ill-founded comment by Vella. Thank goodness for Celena Chen!

  3. Eugenie P Thomson says:

    Thank you for pointing this out .

    You may want to check out Steinberg’s 2008 Bill SB 375 which on Page 12, states the following:

    “Nothing in this section shall be interpreted to authorize the abrogation of any vested right whether created by statute or by common law. Nothing in this section shall require a city’s or county’s land use policies and regulations, including its general plan, to be consistent with the regional transportation plan or an alternative planning strategy. Nothing in this section requires a metropolitan planning organization to approve a sustainable communities strategy that would be inconsistent with Part 450 of Title 23 of, or Part 93 of Title 40 of, the Code of Federal Regulations and any administrative guidance under those regulations. Nothing in this section relieves a public or private entity or any person from compliance with any other local, state, or federal law.”

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