Palo Alto residents looking to overturn the city's approval of a housing development on Maybell Avenue remain deeply concerned about the ballot language drafted by the city attorney, but with the clock ticking down toward Election Day, they have chosen not to file a legal challenge.
The grassroots group Palo Altans to Preserve Neighborhood Zoning has been arguing in recent weeks that the impartial analysis drafted by the office of City Attorney Molly Stump for Measure D (which would uphold the City Council's approval of the development) is far from "impartial" because of its failures to include many of the residents' concerns about the project. These include the development's incompatibility with some portions of the Comprehensive Plan (the city's land-use bible); the neighborhoods' concerns about the city's traffic analysis; and the fact that the city had loaned the developer $5.8 million before the project was approved.
Even so, given the high costs of going to court, the tight deadlines and uncertainty of the legal challenge, neighborhood residents have chosen not to proceed with litigation but to instead make their case in the court of public opinion.
"Litigation is expensive. All we have is what the neighbors can scrape up and give us," said Richard Evans, a member of the opposition. "We have to be careful with those funds and use them as we think best. We think we've made strong arguments and we hope we can bring the voters' attention to those arguments."
Other considerations also swayed the opponents against taking the challenge to court, including tight deadlines and the court's tendency to give city attorneys the benefit of the doubt on borderline issues relating to ballot language, Evans said.
"Most of our challenge is not about lies but omissions, words that are misleading," Evans said. "There are judgment calls there."
The development from the Palo Alto Housing Corporation would bring 60 units of senior housing and a 12 single-family homes to a 2.46-acre site on Maybell and Clemo avenues. The City Council approved the project in June despite significant opposition in the Barron Park and Green Acres II neighborhoods. During several heated meetings, residents urged the council not to rezone the orchard site to allow greater density, arguing that the zone change would create dangerous traffic conditions and negatively impact the character of their neighborhood. At the same time, many housing advocates have argued that the project is well suited for the site and that the new development would give the city a rare and sorely needed amenity -- housing for low-income seniors.
Throughout the debate, opponents of the Maybell development have consistently said they do not oppose senior housing in their neighborhood, just the increased density. The city attorney's analysis, they said, should've reflected the fact that even if Measure D is struck down, the site would still be able to accommodate 45 housing units. While the analysis mentions the fact that the site is currently zoned for multi-family and single-family housing, it does not mention the number of housing units allowed under existing zoning.
The city attorney's impartial analysis also states that the "planned community" zone requested by the Housing Corporation and approved by the council "accommodates projects that cannot be built under other zoning, contain substantial public benefits and enhance the policies of Palo Alto's Comprehensive Plan." Residents have maintained that the Comprehensive Plan includes policies that both support and clash with the development and that the analysis should have reflected that.
Opponents have also taken issue with the actual question that residents will face on Nov. 5 in the voting booth. The ballot question states: "Shall the Palo Alto Municipal Code be amended to rezone the property located at 567-595 Maybell Avenue from R-2 low-density residential and RM-15 Multiple Family Residential to Planned Community Overlay Zone to include 12 single family units and 60 units of affordable senior housing?"
The opponents' attorney, Bradley W. Hertz from Sutton Law Firm, argued in a letter to the city that the ballot language has three major flaws: it suggests that the rezoning is necessary for the site to accommodate affordable housing; it suggests that the single-family units will also be affordable housing rather than market rate (the city attorney's analysis makes clear that the 12 housing units would be market rate, though the ballot question does not); and it refers to the the RM-15 zoning that makes up about 75 percent of the site without using the words "low density," which are in the official title of the zoning.
"In short, we believe that the current language of the ballot measure is not a true and impartial statement of the proposed measure, and instead is misleading and likely to improperly create prejudice among City voters in favor of the measure," Hertz wrote.