Oct 2 2022

HOUSING: Piedmont City Administrator Letter Arrives on the Eve of City Council Election

Why does the City not want a new City Council to consider the Housing Element?

The City is planning to have the proposed Housing Element approved prior to the November 8, 2022 Election and has agendized consideration of the Housing Element for the October 17, 2022 Council meeting.

The City is moving ahead of the City Council election to approve the Housing Element.  The regular October 3, 2022, City Council meeting was cancelled without explanation* during the contested City Council campaign when candidates and the public could have recorded their opinions at the meeting on the Housing Element or other issues.  The City Council during their regularly scheduled, but cancelled, meeting on October 3 could have amplified Housing information and made factual corrections to City positions.

Residents of Piedmont received the unprecedented City Administrator’s letter dated September 30, 2022 approximately a week before voters may begin voting in the election.  The letter disparages the positions of certain candidates and supports the positions of other City Council candidates, while claiming to provide factual information about the Housing Element. 

The City Administrator, Sara Lillevand and Mayor Teddy Kind are responsible for setting the Council meeting agendas. Lillevand has announced her retirement by April 2022 and King, is a “lame duck” and will no long be on the Council following the certification of the November 8 election.

Correction and amplification of information sent to voters by the City Administrator on September 29, 2022:

  • The Charter states the Council shall proposes a zoning plan, but where zoning is proposed to be changed as within the proposed Housing Element voters must approve the zoning changes.
  • An approved Housing Element is not just a plan to sit on a shelf, for the State requires implementation and developers and property owners gain legal rights.
  • The Housing Element once approved by voters and the Council becomes law in Piedmont with all incumbent factors, such as lawsuits, site locations, property rights, and the rule of law.
  • The City Council members and the City staff do not have the authority under the City Charter to change the zoning as proposed.  The Piedmont City Charter states clearly, “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;”
  • Only the voters per the City Charter have a right to approve the proposed Housing Element zoning changes.
  • The City owns much of the property proposed to receive a zoning change, but changes will need voter approval, if the City Council adheres to the City Charter.
  • Referring voters to the City website leads to false and incomplete information.
  • No written legal opinions on Piedmont voters rights, density, single-family housing, classifications, reclassifications, or Piedmont liability have been provided publicly, indicating legal problems, and avoidance of providing points and authorities for public consideration.
  • Despite threats to Piedmonters, the Piedmont City Council and City staff have known of the need for voter approval of proposed zoning changes and failed to date to schedule voter consideration to meet the State deadline of May 23, 2023.
  • The loss of local control by the City’s rejection of legally required voting over zoning is happening now in Piedmont, not because of Sacramento, but because the Piedmont City Council is not following  the City Charter and scheduling the required timely local election for continued voters control of zoning in Piedmont.
  • The City continues to spend well over a million dollars on banners, consultants, puzzles, incorrect flyers, staff time, and a letter thwarting Piedmont’s City Charter and voters rights, while complaining about potential election costs.
  • Sending a City letter to Piedmonters shortly before an election regarding  a contested campaign issue is legally questionable particularly by using false and incomplete factual information.
  • The City Administrator’s letter mentions nothing about the duty of the City Administrator to uphold the City Charter as requiring voter approval of the proposed zoning changes.

 For decades, a core principle of PCA is following the rule of law and upholding voters rights. 

  • UPDATE: The City Clerk announced on 10.3.2022, “The City Council meeting scheduled for Monday, October 3rd has been cancelled due to a medical emergency in the City Administrator’s family.” 

9 Responses to “HOUSING: Piedmont City Administrator Letter Arrives on the Eve of City Council Election”

  1. These are excellent questions. Where and how will they be answered?? Seems like this whole housing “issue” is being railroaded through with no regard for the city charter and laws and in particular no regard for the rights of the residents, who presumably get to vote!!

  2. It is shameful that the City Council is usurping our voting rights. I never thought in a million years this would happen in Piedmont!

  3. This article asserts that under Piedmont’s charter, voters must approve the zoning changes contemplated under the draft Housing Element, rather than simply requiring a City Council vote. The writer makes an impassioned case for such a vote to be held because “a core principle of PCA is following the rule of law and upholding voters rights [sic].” Let’s look more closely at these two core principles separately.

    The first principle is the rule of law. However, there are two laws at play here. One is the City’s charter, and the other is State housing law. Regarding the charter, the writer’s legal interpretation differs from that of the City Attorney, the City Council, and the City Administrator. There are many attorneys in town, and I am not one of them, so I will not weigh in as to which interpretation is correct, but let’s acknowledge that there can be differences in legal interpretation. However, if the writer’s position were correct, then our City’s charter would be in conflict with State law, which requires that the City remove barriers to housing development, as there’s no doubt that a vote on any zoning change would present such a barrier. There are very few charter cities like Piedmont, so there is not extensive case law guiding how such conflicts between a local charter and state housing law are resolved. But we can look at a very recent and telling parallel in the City of Alameda, where the State declared a part of Alameda’s City Charter unenforceable because it violated the State’s requirement to affirmatively further fair housing. So if we have two laws in conflict, one established in an era of explicit racial segregation, and the other established to remove barriers to fair housing and to address the housing crisis, which of those two laws do you choose to follow?

    The second principle is upholding voters’ rights. The issue of voters’ rights is a thorny one when it comes to wealthy, disproportionately white communities and housing issues. Such calls for votes have historically been used as a thin veil for exclusion and NIMBYism. A vote on proposed zoning changes presumes to empower voters to choose growth or no growth, but no growth is not a real option. Piedmont still has to follow State law.

    So, to all those calling for a citywide vote, I ask you to step back and think, to what end? What is your goal? Is a vote really the best way to plan for the growth and evolution of our City?

    ————– Editors’ Response: ——————

    The rule of law and voters rights are at issue here.

    Yes, there is strong disagreement with the current City Attorney’s and the City Administrator’s, and presumably the City Council’s, opinion that a vote on the proposed zoning changes within the HE does not require voter approval. City Charter language requires voter approval of the proposed zoning changes. It is not a conflict with State laws, as you suggest, for voters in Piedmont to have the final authority on the zoning changes.

    The City Council is responsible for developing a plan that will be supported by voters and HCD. The State does not take the responsibility away from the City or the voters. The State requires HCD approval of the HE, but does not specify how cities achieve the requirements.

    In Piedmont, zoning changes according to the City Charter must be approved by the voters. Once the HE is approved, the City is required to comply with the HE and implement the voter approved zoning changes.

    An assumption that voters will not approve an HE proposed by the City Council, is without proof. To return to segregation, as imposed in the past being a reason voters would not support the HE, is not at issue in Piedmont, for inclusion is a City priority.

    Promoters of housing in Piedmont can display more confidence in Piedmont voters for supporting viable, community-involved, implementable plans, rather than dismissing the right to vote in Piedmont and the rule of law.

    Thank you for your input.

  4. This is useful information about Alameda, but are the two cases really that parallel? What part of the Alameda charter was found unconstitutional? Does that city charter require a vote of the people for zoning changes and did the Court speak to that? There could be legitimate state/local issues regarding charter cities and state housing law. Let’s hope the City releases a legal opinion on that well in advance of the October 17 vote. It should have months ago.

    AFFH requires that low income housing projects have equal access to all city services which as I understand it means low income housing can’t be concentrated away from such services. Piedmont’s HE rejected any low income housing in the Civic Center and calls for the bulk of it to be placed in Moraga Canyon. I know a lot of non-canyon residents who would vote against the HE because of that.

    PCA is correct – there is no conflict between state and local law, certainly at this stage, but rather a conflict about voter rights. The HE is a policy document and all its recommendations and guidance need further action by staff and Council to implement.

    Buried in the HE is the recommendation to study the effects of the charter and single-family zoning on housing development and to identify remedies for that. So this question of whether or not the charter is constitutional will be formally addressed by Council within the next two years. It’s unfortunate that discussion of voter rights under the charter did not happen sooner.

  5. State law has changed since the City Charter was last modified. State housing law trumps local control, whether we like it or not. If Piedmont voters derail the proposed Housing Element, the State will intervene. A court will not care what Piedmonters intended in 1978. The court will not care what Piedmonters say today, if the upshot is to deny the possibility of affordable housing in Piedmont. Today, state housing laws impose serious consequences on cities who won’t comply with state law. Resisting the Housing Element could cost the City a lot of money and we will ultimately lose, just as the opponents of second units did in the 1980s. State law matters. Support candidates who support the proposed Housing Element. (I was the Deputy City Attorney who led the effort to include ADUs in Piedmont in the 1980s. I was also City Attorney in Orinda for 9 years.)

  6. There could be legitimate state/local issues regarding charter cities and state housing law. Let’s hope the City releases a legal opinion on that well in advance of the October 17 vote, not the Friday before. It should have months ago. I estimate that 9 out of 10 residents don’t know that Piedmont is a charter city, let alone that they have a right to vote on zoning changes. So some of the consternation about the Housing Element stems from this miscommunication.

    Some of the voices calling for a vote on the Housing Element do want to deny the possibility of affordable housing in Piedmont, but most do not. Some want equitable distribution of the housing burden around town, but see densities increasing in the canyon and on Grand Avenue while central Piedmont accepts none of the burden. Others are disappointed with the shoddy feasibility assessments and poor planning that have gone into the HE. Others want affordable housing and smart growth. So implying that opposition to the Housing Element is from deniers or nimbys is inappropriate.

    So if City Council won’t hold a vote on the Housing Element then maybe it should hold off voting on the draft until after the election. With the number of open seats and candidates, theoretically a new majority opposed to the HE could be seated. I give that zero probability of happening, but it would show respect for the community by allowing voters to express their opinion of the HE by selecting council members who will implement the plan over the next 4 years. Having a new Council dealing with a draft already submitted to HCD just muddies the waters. The deadline for submission is May 30 2023, but one of the consultants did say that HCD would allow up to a year to finalize the HE.

  7. I agree with the City Attorney, the City Administrator, the City Council, and the former City Attorney that a vote would not be required to implement the policies identified in the Housing Element, if there are no zoning reclassifications, that is, the boundaries of the zones are not changed, and specific parcels are not moved from one zone to another. Amending the uses within the zones to allow for more housing density in a gradual, incremental way, is not a reclassification, under any reasonable interpretation of the plain language of the Charter.

    More immediately, however, it strikes me that one issue that has been sidestepped in this conversation about whether or not a vote is required is that the Housing Element is NOT a zoning amendment. It is a broad policy document required by state law to show that the City has capacity to accommodate the Regional Housing Needs Allocation, and to identify sites and policy changes that would create that capacity. But within that broad policy framework, many different zoning proposals could be created. Once the Housing Element is approved, the City will have three years to go back to the drawing board and draft proposed zoning amendments, consistent with the Housing Element, and subject to public review and comment. At that point is when the question of whether a vote is required or not under the Charter would be timely, not now.

    This discussion is putting the cart before the proverbial horse, and distracting from the main issue, which is that the City needs to comply with state law, and do its part to address the housing crisis.

  8. Garrett, in response to your Oct 4 8:03pm comment, I do not mean to imply that all opposition to the Housing Element is from NIMBYs or people who want to deny affordable housing opportunities in Piedmont. I am saying, just as you say, that a call for a vote CAN be used in that way and to that effect. You go on to list three additional and distinct reasons people would vote against the Housing Element. This illustrates exactly why voting on something as complex as housing issues is inherently flawed and biased against voter approval – the issue is so multifaceted that it can attract opposition based on any single aspect of the plan. I have great faith in my fellow Piedmonters, but unfortunately a vote on housing issues is almost always stacked against a yes vote, and history is not on the side of affordable housing.

  9. To Andrea’s comment, yes the HE is a broad policy document but it sets staff and council to work on significant actions, some within 2 years of adoption – the purchase by the city of property within the single-family zone for supportive housing, the adoption of an ADU tax, evaluation of changes to single-family zoning. For example, it calls for an evaluation of impediments the city charter and single-family zoning create to affordable housing development and directs staff to develop proposed solutions within the first 2 years of HE adoption. This could lead to the vote three years from now you suggest but on what? The city’s position now is no vote is required to add multi-family to the single-family zone. And won’t the city rely on this interpretation of the charter to proceed expeditiously on starting a low-income housing project in the canyon by December 2024? As I understand it, the City must commit to an affordable housing project on public land by December 2024 or else lose $2M in county funds. Is that right? If true, this makes the question of whether this project requires a zoning change and hence a community vote timely now, as this election seats three council members who will decide on that project.

    If the City Council won’t allow for community votes on these proposed zoning changes, then the proposed changes need to be synched up better with council elections so voters know where candidates stand on these issues.

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