A group of pro-housing agitators is gearing up to take an entire town to court.
It's an urbanist's dream come true: The ability to sue a bedroom community for not building its fair share of housing. And a San Francisco renters group is threatening to make it happen. In an effort that could turn the Bay Area's housing wars on their head, the pro-development San Francisco Bay Area Renters’ Federation (SFBARF) is launching an effort called Sue the Suburbs, setting its sights on the East Bay city of Lafayette, where a newly trimmed down residential community is shaping up to be a novel kind of battleground.
Bay Area suburbs that want to hang onto their sleepy character have gotten a bad rap for their contribution to the region’s housing shortage. San Francisco Planning director John Rahaim has gone on record to chastise towns that refuse housing amid a regional employment and population boom, calling their stance “an irresponsible position.” Between 2007 and 2014, the nine Bay Area counties issued permits for only about half the number of housing units needed to keep pace with population growth, according to an assessment by the Association of Bay Area Governments. “Housing supply is a classic tragedy of the commons or collective action problem,” says Gabriel Metcalf, director of the urban planning think tank SPUR. “Every neighborhood has an incentive to say no to higher-density development because some of the impacts are felt locally. But when you aggregate that at the level of the whole Bay Area, the net effect of each neighborhood saying no is a profound crisis of affordability.” It’s a power dynamic whose logic is inescapable: Existing residents always prevail over future ones, because they get to fight an opponent who is only theoretical.
But now the housing activists at the (unfortunately acronymed) SFBARF are attempting to use the court system to reverse that dynamic. The first case could center on the Homes at Deer Hill, a development that won approval from Lafayette’s city council last month. The project will bring 44 single-family homes, along with sports fields and a playground, to a grassy slope on Deer Hill Road, just north of Highway 24. When it’s built, the development will house far fewer people than the 315-unit moderate-income apartment complex that developer O’Brien Homes initially proposed for the site back in 2011, called the Terraces of Lafayette. With Deer Hill home prices ballparked at around $1.2 million, future residents will also be wealthier than the Terraces’ inhabitants, who would have paid around $2,100 per month in rent, according to the Contra Costa Times.
If Lafayette’s city council members had rejected the Homes at Deer Hill last month, they would have had to resume considering the old Terraces of Lafayette proposal, which the developer dropped around 2012 amid community opposition and delays in certification of its environmental impact report, according to Lafayette mayor Brandt Andersson. In an August 6 letter to the mayor and city council urging them to reject Deer Hill, SFBARF founder Sonja Trauss threatened to sue if the project won approval. “Should the City Council decide to prioritize homeowners’ aesthetic preferences over the needs of its service workforce,” wrote Trauss, “we will not hesitate to take legal action to defend the housing policies of this state.”
The basis for a lawsuit comes from 1982's Housing Accountability Act, a measure that California passed as a counterweight to municipalities’ natural NIMBY tendencies. When a proposed development includes units affordable to low- and moderate-income households (and meets zoning requirements), the law forbids a jurisdiction from denying approval, or reducing a project’s density, unless it threatens health and safety in demonstrable ways. “For the most part, it is impossible for a city to satisfy these requirements for a typical housing project,” explains Junius & Rose partner Andrew J. Junius, a land-use attorney who is advising SFBARF. “Infill housing projects are not harmful to people’s health.”
SFBARF organizers launched a website for Sue the Suburbs last week, and the group has begun seeking plaintiffs and funding for a suit against Lafayette, according to organizer Brian Hanlon. As an organization, SFBARF lacks standing to sue the town. Instead, the group must find would-be Terraces residents who lost the opportunity to live in an affordable apartment when the single-family homes at Deer Hill won approval. “We’re looking for people who would want to live in Lafayette and who meet the income requrements” of the scuttled Terraces proposal, says Hanlon.
Although Sue the Suburbs is affiliated with SFBARF, it is part of a new effort called the California Renters Legal Advocacy and Education Fund (CARLA-EF), which is seeking 501(c)(3) status. Land-use attorney Steven L. Vettel, who is not involved with the potential suit, says SFBARF’s approach is a novel one. “I am not aware of any cases under the Housing Accountability Act brought by citizens groups rather than project sponsors,” Vettel, a partner at Farella Braun + Martel, says. “However, the Government Code is clear that ‘any person that would be eligible to apply for residency in the development . . . may bring an action to enforce this section.’”
By identifying and recruiting a new class of stakeholders, the pro-housing groups are stepping up for a fight that developers are often reluctant to pick themselves. Mike Rawson, director of the Public Interest Law Project, says that developers’ financial dependence on local governments makes them wary of suing over scuttled or downsized projects. “The suits take resources, and often nonprofit developers want to stay on the good side of local government because they almost always will need additional subsidies to make the affordable housing work,” he says.
Trauss and Hanlon hit upon the idea of suing because of how difficult it can be to persuade communities to embrace the levels of housing the Bay Area needs. “It’s difficult to see how a public campaign or mobilization in these suburban communities is going to work,” says Hanlon. “People don’t vote against their financial insterests.” Metcalf, the SPUR director, is enthusiastic about the Sue the Suburbs idea. “We need some new tools in the toolbox, because housing costs have gotten out of control, and by definition whatever we’ve been doing so far has not been enough,” he says. “From civil rights to gun rights, from free speech to gay marriage, all kinds of social movements have used legal strategies for all kinds of purposes, and it often takes years, if not decades, to bear fruit. But I think this is something that somebody needs to do.”
However, Lafayette mayor Brandt Andersson, who voted to approve the Homes at Deer Hill, is dubious of the effort to halt the development, and of the group behind the plan. “It’s a little disturbing to have these folks come in literally in the last week of our four-year process and say they know better than all of us,” he says. An attorney who has experience with land-use law, Andersson likewise disputes the idea that the suit would have merit. He points out that the city council never officially rejected the Terraces of Lafayette, because the developer changed the proposal before it came up for approval. Back in 2011, the Terraces completed an environmental impact report, but O’Brien Homes grew frustrated with waiting for the city to certify the report. According to Andersson, O’Brien Homes contemplated suing over the delay, but instead changed tacks and sat down with planning staff to arrive at the 44-home compromise. “That’s what was before us. There was no option to approve the 300-unit project,” Andersson says. “Apparently, [SFBARF’s] thought was that we should approve what wasn’t in front of us because it had more units.” (Attempts to reach representatives from O'Brien Homes were unsuccessful.)
Whether or not this technicality would throw off a lawsuit is unclear, according to Andrew Junius, the attorney who has advised SFBARF. “There is no case law yet on point,” he says. But, he adds, “it is obvious from the history of this case that significant and sustained public opposition resulted in this project being downsized. That is the kind of thing the [Housing Accountability Act] was intended to prohibit.”
Between 2007 and 2014, Lafayette built 65 percent of the 361-unit goal set by the Regional Housing Needs Allocation, a number that the Association of Bay Area Governments negotiates with municipalities based on projected population growth. Most of Lafayette’s built units were affordable only for the highest-income households, people earning 120 percent of area median income or more. Meanwhile, the town got just 10 percent of the number of low- and moderate-income units it needed. Though its overall production was small, Lafayette actually built a larger percentage (65 percent) of its total goal than San Francisco did (53 percent) during the same period.
As Mayor Andersson sees it, the Terraces of Lafayette would have been out of place. He says that the site, which sits north of Highway 24, is in a part of town that always been composed of single-family homes, whereas Lafayette’s denser downtown and multifamily housing is concentrated south of Highway 24. “There’s been a line there ever since we incorporated, or at least since they built BART and the highway,” he says. Andersson makes a point of highlighting the town’s recent multifamily projects, including Belle Terre, a 45-unit apartment building for seniors, and Merrill Gardens, an 89-unit senior-living complex in downtown Lafayette. Asked specifically about workforce housing, he brings up a project that’s still in the early planning stages, 949 Moraga Road, which developer Matt Branagh says will clock in somewhere between 18 and 22 units.
Earlier this week SFBARF's Hanlon met with a representative of the United Educators Association for Affordable Housing to pitch the suit and discuss the organization's search for plaintiffs. Teacher housing is a huge problem, Hanlon says, with “Bay Area municipalities having a hard time filling teacher slots because teachers can’t afford to live here. One reason teachers can’t afford to live here is cities like Lafayette don’t build affordable rental housing.”
He's hoping that there are a few Lafayette teachers out there who will want to take their affordability complaints to court.