In November, more than 50 residents attended the Planning Commission hearing “to oppose locations identified by the city for affordable housing, group homes and homeless shelters,” according to coverage of the meeting by Valley Sun reporter Tiffany Kelly.
The immediate neighbors had the greatest concern. With one bang of a gavel, their real property value could decrease. If they were just outside of the changed zone, there would be no need for a developer to purchase their parcel.
The debate evolved into two ad horrendum arguments. On one side, it was halfway houses next to elementary schools. On the other, it was “Sacramento makes us do this!”
Mayor Laura Olhasso’s Dec. 12 guest column argued that the city is required by state law to zone for “our state-required allocation of low- and moderate-income regional housing” but since “private developers typically look to make a profit” and since “land costs are very high in LCF...developers would have an extremely difficult time making a profit on low- and moderate-income housing...”
I believe there are two new issues. Does California law really require La Cañada to approve this exact measure? More importantly, do Olhasso’s public comments, specifically that the zoning plan is unlikely to motivate developers, expose the city to liability?
These questions may be decided by the California Supreme Court in the case of Building Industry Association v. City of San Jose, a lawsuit that resulted from San Jose’s bungled implementation of the state affordable housing mandate.
The lawsuit was filed after the San Jose City Council passed an ordinance, which required developments of 20 or more units to either set aside 15% for purchase at below market rate for lower income buyers, or in the alternative to pay an “in lieu of” fee.
The builders association argued that San Jose “had failed to demonstrate a nexus between the challenged ordinance and the ‘deleterious public impacts of new residential development.’” In other words, unless new residential developments at market rate worsened the lack of affordable housing, there was no basis for the new ordinance. The ordinance would not affect the housing crisis. The city of San Jose responded that no nexus is required to support an ordinance.
The case should be decided by the California Supreme Court next year.
Obviously, La Cañada’s proposed ordinance is different than the San Jose law. Under the state mandate, each city has the power to decide the best way to achieve the goal of affordable housing. Under state law, our city is “charged with the responsibility of facilitating the provision of housing for all economic segments of the community.”
The mayor’s comments may actually expose the city to litigation. If the new zoning plan has no effect on affordable housing, because developers will not be motivated, then the ordinance does not satisfy the state requirement. We are required to facilitate. On the other hand, if the plan (plus tax incentives) will motivate developers, then the affected homeowners may file inverse condemnation lawsuits against the city.
Here’s a solution that avoids litigation. Let’s take a look at what other affluent cities are doing. One can define affordable housing in many ways. Senior citizens also need affordable housing. Can we satisfy the mandate by expanding the granny flats and guest houses?
Perhaps the City Council should postpone January’s vote, appoint a joint city-citizen study group to consider other, more appropriate ways to implement the state mandate while we await the decision of the California Supreme Court.
ANITA SUSAN BRENNER is a longtime La Cañada Flintridge resident and an attorney with Law Offices of Torres and Brenner in Pasadena. Email her at email@example.com and follow her on Twitter @anitabrenner.