Piedmont High Density Housing Proposed to Replace Single-family Zoning Without Voter Approval
New legal advice upends the rule of law in Piedmont regarding voters’ rights per the Piedmont City Charter and City Ordinances.
The Piedmont City Charter and City Ordinances require the City Council to propose the Housing Element, and Piedmont voters to approve the zoning changes – sizes, use, and classifications.
According to Piedmont City Attorney within the proposed Housing Element, all Piedmont single-family zoning can be changed to high density multi-family zoning without Piedmont voter approval. This current legal advice desecrates the rule of law in Piedmont regarding voters’ rights per the Piedmont City Charter and City Ordinances. Copied below.
Piedmont’s City Charter has protected Piedmont for nearly a century against intrusive commercialism, factories, high density housing, etc. by focusing on single-family residential zoning. The Charter is clear. Placing multi-family dwellings/high density housing into single-family zoning, which is all of Piedmont, without voter approval is against Piedmont’s laws.
The single-family zoning classification in Piedmont is separate and distinct from Piedmont’s multi-family zoning classification. Classification determines the use and density allowed within a zone. Multi-family classification is for multi-family use. Single-family classification is for single-family use. Commingling Piedmont multi-family classification zones and single-family classification breaches the City Charter and Piedmont Ordinances.
Without voter approval, the Housing Element proposes the multi-family zone density will be increased to high density multi-family development and changing the single-family use classification as found in all zones to be changed to multi-family use.
Piedmont zones are classified as: commercial, public, multi-family, and single-family. All zones are specified as permitting single-family dwellings. Unrecognized, Single-family classifications/use found in each zone cannot be interchangeable or described as proposed as multi-family zoning.
The Housing Element proposes to allow high density multi-family classification to replace Single-family classification in zones used for commercial and public zones based on the false premise that single-family zoning allows higher density multi-family use without voter approval.
Currently in Piedmont, all properties are zoned and classified for single-family dwellings. The State of California legislated a transformation of the Single-family classification to allow three (3) dwelling units: a primary residence, an Accessory Dwelling Unit (ADU), and a Junior ADU built within the confines of the primary residence. Essentially, the State outlawed the single family housing unit per parcel limitation. Consequentially, the high density multi-family dwelling units proposed for Piedmont’s Housing Element will need the approval of voters to change the classification of single-family residential to multi-family residential. The proposal jumps the number from 3 dwelling units to a proposed 40-100 units per parcel without voter approval, ignoring Piedmont laws.
The City Council will need to propose a Housing Element that will gain approval of Piedmont voters or be faced with revisions to gain Piedmont voter approval.
Piedmont’s City Attorney Michelle Kenyon has advised and stated that single-family zoning classification allows multi-family zoning including high density multi-family development by ignoring the City Charter language. Further Kenyon stated that voters do not control density in Piedmont. This advice destroys voter rights and rule of law making the Piedmont proposed Housing Element counter to the City Charter.
The intent and language of the City Charter describes single-family zoning and classification as “the only use on such property shall be a single-family dwelling. ” The new legal advice provided to the City Council fails to recognize voter requirements compliant with the Charter.
Voter approval for zoning changes have been placed on a ballot many times in Piedmont per the City Charter .
At the August 1, 2022, City Council meeting City attorney Kenyon asked Planning Director Kevin Jackson about how the city had implemented the City Charter in regard to voters’ rights. Jackson provided two examples, which excluded voters, both of which were based on Kenyon’s or her law firms prior advice allowing multi-family residential use to supplant single-family use without voter approval.
The Council was not informed by Kenyon or the Planning Director regarding a plethora of prior documented legal advice requiring compliance with the City Charter and for ballot measures to be put before Piedmont voters regarding zoning changes. Significant prior legal advice can be found in the City’s archives countering City Attorney Kenyon’s advice, and requiring Piedmont voters right to control and approve zoning per the City Charter.
According to the Charter and City ordinances, the City Council is to propose plans for development of Piedmont, however these plans must comply with voter approval per the Piedmont City Charter regarding changes, such as as going from single-family use to high density multi-family use.
The state has anticipated zoning changes to accommodate Housing Element zoning changes to add the large increases in housing, for Piedmont it is 587 housing units, a 15% housing increase. The state provides a specific amount of time 1-3 years to implement zoning changes outlined in an approved Housing Element. To date, the state has not eliminated city Charters’ voter approval of zoning changes.
See Piedmont’s zoning map be clicking below:
Piedmont City Charter ARTICLE IX. General Provision
SECTION 9.02 ZONING SYSTEM The City of Piedmont is primarily a residential city, and the City Council shall have power to establish a zoning system within the City as may in its judgement be most beneficial. The Council may classify and reclassify the zones established, but no existing zones shall be reduced or enlarged with respect to size or area, and no zones shall be reclassified without submitting the question to a vote at a general or special election. No zone shall be reduced or enlarged and no zones reclassified unless a majority of the voters voting upon the same shall vote in favor thereof; provided that any property which is zoned for uses other than or in addition to a single-family dwelling may be voluntarily rezoned by the owners thereof filing a written document executed by all of the owners thereof under penalty of perjury stating that the only use on such property shall be a single-family dwelling, and such rezoning shall not require a vote of the electors as set forth above.
City of Piedmont Ordinance :
Sections: 17.02.010
Title; City Charter 17.02.010 Title; Intent; City Charter.
A. Title. This chapter 17, Planning and Land Use, is also known as the zoning ordinance.
B. Intent. The City of Piedmont consists primarily of unique single-family residences set among mature trees and other vegetation. The residents wish to:
1. preserve the architectural heritage and beauty of the city’s homes, the mature vegetation, the tranquility and privacy that now exist, and significant views;
2. reduce on-street parking and traffic in the neighborhood streets and facilitate pedestrian and bicycle activity;
3. avoid overcrowding and its detrimental effects on city schools and other services and facilities;
4. preserve the city’s historical heritage;
5. preserve the existing stock of small homes and otherwise allow for a variety of housing types for all income levels, including single-family and multi-family dwellings;
6. ensure excellence of architectural design, and compliance with the Piedmont Design Guidelines;
7. allow retail, office, and service commercial uses that primarily serve city residents; and
8. promote property improvements without sacrificing the goals already mentioned.
These zoning regulations are designed to implement these purposes.
C. City Charter. The city’s zoning ordinance is also subject to the City Charter, particularly Section 9.01, General Plan, Section 9.02, Zoning System, and Section 9.04, General Laws Applicable.
Those sections read as follows:
Section 9.01 General Plan. The City Council shall adopt, and may from time to time, modify a general plan setting forth policies to govern the development of the City. Such plan may cover the entire City and all of its functions and services or may consist of a Planning & Land Use combination of plans governing specific functions and services or specific geographic areas which together cover the entire City and all of its functions and services. The plan shall also serve as a guide to Council action concerning such City planning matters as land use, development regulations and capital improvements.
Section 9.02 Zoning system. The City of Piedmont is primarily a residential city, and the City Council shall have the power to establish a zoning system within the City as may in its judgment be most beneficial. The Council may classify and reclassify the zones established, but no existing zones shall be reduced or enlarged with respect to size or area, and no zones shall be reclassified without submitting the question to a vote at a general or special election. No zone shall be reduced or enlarged and no zones reclassified unless a majority of the voters voting upon the same shall vote in favor thereof; provided that any property which is zoned for uses other than or in addition to a single-family dwelling maybe voluntarily rezoned by the owners thereof filing a written document executed by all of the owners thereof under penalty of perjury stating that the only use on such property shall be a singlefamily dwelling, and such rezoning shall not require a vote of the electors as set forth above.
Section 9.04 General laws applicable. All general laws of the State applicable to municipal corporations, now or hereafter enacted, and which are not in conflict with the provisions of this Charter or with ordinances hereafter enacted, shall be applicable to the City. The City Council may adopt and enforce ordinances that, in relation to municipal affairs, shall control as against the general laws of the State.
In this subsection C, Section 9.02, the prohibition not to reduce, enlarge, or reclassify a zone without a vote is understood to mean the city may not change the zone boundaries, or change (reclassify) a property from one zone to another. [ Classification is the use. Zone names connote the useage, as commercial, public, multi-family, and single-family.]
FIRST: Sign me up as one of the plaintiffs to a suit challenging the City Attorney’s interpretation that Council can change zoning as proposed without voter approval.
SECOND: If the State is going to ram this change down our throats, then demand that the State fund all of the street and sewer enlargements that will be necessary to accommodate the additions.
Just to point out the obvious, a City Attorney’s opinion is not a binding judicial opinion. City Attorneys, especially contract ones, serve at the pleasure of the City Council. I have worked with a dozen of them. I’m not faulting this particular individual, but they do want to keep their job.
Has there been a written legal opinion on this question from the City Attorney? I’ve read that the City Attorney has said there is an “understanding” on City Council that zoning changes do not require a vote as the Charter stipulates. That doesn’t sound like solid legal reasoning to me. If there is a legal opinion from the City Attorney then the City should release it to the public. Perhaps the next City Council will authorize this.
I have heard Ms. Kenyon on a couple occasions say that only a change of the zoning map would require a public vote. But that changing the text and allowed uses within a zone does not require a vote. Clearly some people disagree with this opinion. In fact, by such an interpretation, the entire text of one zone could be voided and replaced with the text of another zone, or totally new language, and no vote would be required. I think most would have a problem with such a position.