UPDATE ON LEGAL MATTERS

The City adopted two resolutions at the September 20, 2021 meeting.  First, the City authorized staff to negotiate development of the Hamilton site with EAH Housing, an affordable housing developer that manages the Shelter Hill apartments.  Second, the City declared part of the Hamilton site “exempt surplus land.”  This declaration is contentious and is the subject of several communications to the City from our attorney.  You can read the letters from our attorney here.  [9/17/2021, 9/20/2021]. Many of the points raised by our attorney are highly technical in nature and are designed to create a record;  and are strategic assertions to preserve our rights going forward. 

We have summarized the main legal points below.  

  1. Our Response to the City’s Resolutions 

The Law. California law requires cities to follow certain notice and negotiation procedures before disposing of land that is purportedly surplus.  The law is designed to connect affordable housing developers to surplus public land.  However, a city can qualify for an exemption if it makes a determination that the land can be used to provide housing, and a determination supported by facts that the land is “exempt surplus land.” Exempt surplus land includes land that is used to develop housing that has a specified percentage of units reserved for low-income and very low-income households.

The City’s Position. The City maintains that it is appropriate to declare the Hamilton site “exempt surplus land” because the project will satisfy the necessary low income requirements, and further that the City must make the declaration before it can begin negotiating with EAH.  In addition, the City maintains that because the resolutions do not commit them to developing affordable housing at the site, there is currently no “project” subject to environmental review under the California Environmental Quality Act (CEQA).

Our Position. Our attorney maintains that the Hamilton site is not surplus because it is currently used for parking, electric vehicle charging and restrooms for users of Hauke Park.  (This seems obvious to all except the members of the City Council.)  He further argues that by limiting the declaration of “exempt surplus land” to the Hamilton site and excluding all other City-owned sites, the City is indeed committing to the Hamilton site, and thereby triggering CEQA review.  

In addition, our attorney contends that the City does not need to make the declaration prior to negotiating with EAH, and may be doing so for improper reasons.  Specifically, the City may be motivated by politics and may be manufacturing a justification to avoid considering any alternative sites that would be required by CEQA.  In other words, by declaring only the Hamilton site “exempt surplus land,” the City is constructing the basis for an argument it may try to use later that it can limit CEQA review to Hamilton because there are no other exempt surplus sites.  


Last, our attorney maintains that unless and until the Hamilton site is rezoned for residential use, the City has no basis to make the requisite finding that the Hamilton site can be used to provide housing. 

2. Our Request for Records

Our attorney has also submitted a request under the California Public Records Act for access to documents relating to the Hamilton project.  You can read the request here.  We expect to submit additional requests as we learn more about how the Hamilton site was selected and how other sites were eliminated.


Our ability to pursue these and other legal avenues depends upon our resources.  Click here to donate