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City Housing Activists File First ‘Sue the Suburbs’ Lawsuit

A pro-development group launches what could be a very long war against suburban municipalities.

The Lafayette parcel at the center of the suburban housing wars.

 

Yesterday the pro-development San Francisco Bay Area Renters’ Federation (SFBARF) filed suit against the East Bay suburb of Lafayette, an opening salvo in what the group’s founder, Sonja Trauss, describes as a multiyear campaign to pressure bedroom communities to build more housing. Trauss and SFBARF want the Bay Area's small cities to shoulder more of the demand brought on by the region’s jobs and population boom. It's an idea that has angered Lafayette's city leaders, but one about which many housing-pinched San Franciscans are unapologetically enthusiastic. The complaint, filed in the Superior Court of Contra Costa County, centers on an embattled parcel of land on Deer Hill Road, a mile and a half from Lafayette’s BART station. The organizers want to see an old proposal for a 315-unit moderate-income apartment complex revived, and they’re seeking to block a less-dense development of 44 single-family homes, which the city council approved in its stead.

The suit is a test case for a new strategy in the Bay Area’s housing wars: If you can’t beat ’em, sue ’em. Using the Housing Accountability Act—a little-litigated 1982 state law that favors density when health and safety aren’t at risk—SFBARF is working to tip the balance of power away from locals and toward what the group sees as the greater good: more housing, stat. In September, SFBARF launched its Sue the Suburbs campaign and formed a 501(c)(3) to fund-raise for legal battles. Trauss says the group has raised only $55,000 of the $500,000 she estimates it'll need to bring on a staff attorney, and she hopes the suit will spur donations. “I want cities to be very nervous about approving lower-density projects,” she says. “I’m asking for the court to make a really strong statement, which is that when somebody comes to you with a project and it’s zoning compliant and it’s not dangerous to your citizens, you have a duty to say yes.”

As a rallying cry, “Sue the Suburbs” has a kind of irresistible appeal for a certain set of long-grumbling urbanists, and it’s the kind of radical strategy that could turn the housing wars on their head. But the irony of SFBARF’s chosen test case is that virtually no one in Lafayette wants to see the 315-unit project built. You’d expect the the usual crew of no-growth and slow-growth dissenters to disapprove, sure, but the city council is against it too, and even the project sponsors have long since moved on. Which puts Trauss in the awkward position of pushing for an unpopular project purely on principal. (Trauss told me that Allan Moore, the attorney for developer O’Brien Homes, asked her not to pursue the case because it would tie up the 44-home project that did get approved. Moore didn’t return several messages seeking comment.)

Meanwhile, another group has formed to fight the Homes at Deer Hill for the exact opposite reason: It's too much development. In September, a group called Save Lafayette filed a suit under the California Environmental Quality Act, alleging that the development would unavoidably worsen traffic and air quality. Save Lafayette is also pursuing a ballot measure that would block the zoning change that Lafayette’s city council approved in order to pave the way for the Homes at Deer Hill. The measure garnered about 2,600 signatures, enough qualify for the ballot, says Laurel Stanley, an attorney representing Save Lafayette. 

Layering irony upon irony, Save Lafayette’s efforts to block the Homes at Deer Hill could actually end up helping SFBARF. If the 44 homes are scuttled, the city must pick up where it left off with the old proposal for 315 apartments, known as the Terraces of Lafayette. On its FAQ page, Save Lafayette acknowledges this outcome but dismisses it, writing, “we feel the City has every right to deny that project and to withstand whatever legal challenges ensue.” (Trauss says that she sent the group a Facebook message offering to help in their effort to block the Homes at Deer Hill. “I was like, ‘I’m very interested in helping you,’ and they were just like, ‘Fuck off,’” she says, paraphrasing.)

But the Terraces proposal wouldn’t get very far without a developer intent on building it. Asked whether he would pursue the apartment project if the Homes at Deer Hill gets blocked, O’Brien Homes project manager Dave Baker declines to dwell on that hypothetical too much. “We were very serious about that application, and we’d build it,” he says, “but it’s not the application that’s before the city.” 

Steven Falk, Lafayette’s city manager, says the city is caught between two equally unhappy groups. “We’re getting sued because the development is too big, and we’re getting sued because the development is too small,” he says. Falk likes to point out that SFBARF is suing the wrong suburb, and he defends the city’s record of producing housing. According to Falk, 163 units of multifamily housing have been completed in the past three years, and the city has received applications for 249 more. All of these, he says, are closer to BART than the Terraces project would have been, and concentrated on the south side of Highway 24, where the city has traditionally preferred to concentrate multifamily development.

On the merits of SFBARF’s case, Falk is dismissive. He believes SFBARF can’t win because the Housing Accountability Act applies to situations where cities outright deny a denser project. Instead, the city and O'Brien Homes arrived at the 44-home proposal together, and the developers themselves chose not to pursue the denser project. “The city never denied a project, so there’s no project denial to sue over,” says Falk.

Trauss doesn’t buy it, and she doesn’t think a judge will either, because the result is the same: density getting lowered through political pressure. “I still think it’s illegal,” she says. And she has a point—the potential legal arguments are rich enough that a land-use professor at the NYU School of Law has turned the dispute into an exam question. Running 13 pages in length, the question asks students to play an attorney for O’Brien and, later, an attorney advising Trauss.

Trauss may want to take all the advice she can get, too. She filed the complaint without a lawyer, after parting with the litigator she initially brought on. With the deadline to challenge the Homes at Deer Hill’s entitlements looming next week, Trauss was determined to not let her first Sue the Suburbs case pass untested. “The danger,” she says, “is that I fuck it up or my lawyer fucks it up and we get a bad precedent.”

 

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Rendering of the Homes at Deer Hill. Photo: Courtesy of O'Brien Homes