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Judge rules San Francisco voters should decide between dueling housing measures

San Francisco Housing Action Coalition fought to keep the city Board of Supervisors' rival housing initiative off the ballot. But a judge ruled Tuesday that the voters should decide between the two.

SAN FRANCISCO (CN) — San Francisco voters will decide between two competing housing initiatives in November as a trial judge on Tuesday declined to strike down one that was challenged in court after being voted onto the ballot by the city’s board of supervisors.

In a brief order San Francisco County Superior Court Judge Richard Ulmer said the voters should be allowed to pick between Proposition D, a measure backed by the nonprofit San Francisco Housing Action Coalition and supported by Mayor London Breed, and Proposition E, which was placed on the ballot by a vote of the city's Board of Supervisors in July.

Both propositions purport to speed up the process for building affordable housing in an increasingly unaffordable city. The Housing Action Coalition says its measure streamlines affordable housing projects by allowing developers to bypass discretionary review and bureaucratic red tape. It also eliminates the Board of Supervisor's authority to approve funding for 100% affordable housing projects on public land.

The board-passed Proposition E is sponsored by Supervisor Connie Chan and similarly promises to accelerate affordable housing construction while leaving in the board’s authority to oversee some 100% affordable housing projects. It also demands more from developers in terms of size, construction and cost requirements for some types of apartments — requirements its critics deride as financially impractical.

“The main difference between Prop D and Prop E is that Prop D will actually result in housing getting built,” Todd David with Housing Action Coalition said in an interview Tuesday. "Prop E is a sham measure that was put on the ballot in bad faith to keep the status quo and make sure housing doesn’t get streamlined and gives the Board of Supervisors authority to reject 100% affordable housing.”

David said Prop. D will allow a mixed income project to get approved in six months, as opposed to the seven-to-nine years it currently takes.

“The Board of Supervisors sets their affordable housing requirement significantly higher than what's currently required, which will make the project economically unfeasible,” David said of Chan's measure. “It sets the bar so high that no mixed income housing will be built. It’s a bad faith effort to muddy the waters and confuse the voters. The last thing the Board of Supervisors wants is to get affordable housing built.”

Proposition D also has its detractors. Former city Supervisor John Avalos, now head of the Council of Community Housing Organization, said the measure is full of “sophistry and deception” that will enrich developers while failing to ensure that projects are truly affordable.

“They redefine what affordable is. Their measure changes dramatically what is going to be considered affordable housing to enable projects that were not affordable to get streamlined," Avalos said.

He added that the measure opens the building process up to more corruption by cutting out board oversight. “If you take away Board of Supervisors' ability to approve contracts and use of city land, we know there will be abuses,” said Avalos.

But Judge Ulmer said it was not the court's job to decide the merits of either, writing, “setting policy by picking political winners and losers is not a court's role.” Instead, the judge had to decide whether voters should be able to decide between them.

Housing Action Coalition had sued to strike Proposition E from the ballot as invalid, arguing that it did not go through the proper environmental review required of projects undertaken by public agencies. Review under the California Environmental Quality Act is not required of its own proposition, the group says, because Prop D made it on the ballot through signature-gathering.

In his ruling, Ulmer reiterated a question he asked the group’s attorneys at a hearing last week.

"Why petition signatures by a minority of voters (who may or may not support a proposition) should receive one treatment, while an actual majority vote by the people’s representatives receives another is not clear,” he wrote, even as he acknowledged that the coalition's argument has some case law support.

"In any event, whether Proposition E is a ‘project,' and if so, CEQA has been complied with, are dense factual and legal issues that would require more development than they have received. These issues merit reasoned consideration, not a hip shot shortly before ballots go to the printer," Ulmer wrote.

Avalos pointed out the irony of the coalition trying to invalidate Proposition E via an environmental law it derides for its frequent use by opponents to obstruct and delay housing projects.

“It’s totally ironic that they’re using CEQA as their method to take down the Board of Supervisors’ measure when that’s what they‘ve been fighting against all these years," he said. “I don't think they have a sense that they have a strong case in court, but by going to court they get to keep hammering at the Board of Supervisors. They’re ok not winning in court as long as they can keep the story in the news media.”

David said his group opposes any abuse of CEQA. “Myself and the HAC, we find it equally offensive when people use CEQA to block housing and when they ignore CEQA to block housing. The Board of Supervisors has never found a CEQA environmental appeal they did not love — except for their measure,” he said. “We’re a pro-housing organization. We're going to fight when people abuse CEQA to block housing or when they ignore CEQA to block housing.”

Ulmer said he would review the merits of the group’s CEQA claim if Proposition E passes. If both initiatives receive more than 50% of the vote, the one with the most votes will be enacted.

David said his group hasn’t decided yet whether it will continue to challenge Prop E on CEQA grounds. “We just got the ruling. Our focus is 100% on Prop. D passing and getting more votes. We’ll revisit the consideration of a legal challenge at a later date.”

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