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Judge to decide if dueling San Francisco housing measures should face off in November

Infighting over affordable housing initiatives mounts as San Francisco struggles to build 82,069 homes by 2030.

SAN FRANCISCO (CN) — Competing factions in San Francisco's housing fight faced off in court Thursday over whether two measures that promise to make building affordable housing easier in the city should appear on November’s ballot.

The first is an initiative backed by the nonprofit San Francisco Housing Action Coalition and supported by Mayor London Breed. Known as the “Affordable Homes Now," Proposition D purports to accelerate multifamily housing production by cutting through the red tape and bureaucratic required approvals that can hold up housing projects.

The group gathered over 80,000 signatures to get its measure approved.

But a rival measure stands in their way. Proposition E, which the Board of Supervisors voted onto the ballot in July, will also go before the voters unless Housing Action Coalition can convince San Francisco County Superior Court Judge Richard Ulmer to invalidate it.

Though the city’s measure bears some similarities to Proposition D, Housing Action Coalition has criticized it as financially infeasible with its additional size, construction, and cost requirements for some types of apartments. It also leaves in a condition that the Board of Supervisors approve funding for 100% affordable housing projects.

The group sued the city and Department of Elections director John Arntz in early August to block Proposition E from appearing on the ballot, saying it was "cynically designed" to oppose Housing Action Coalition's proposal.

Matthew Alvarez, a Sutton Law attorney representing the group, said the supervisors skirted the rules in their rush to get Proposition E pushed through in time to contend with Proposition D.

Because Proposition E is a city-sponsored measure, the nonprofit says it must undergo environmental review — a requirement the supervisors avoided by declaring that its housing measure doesn’t qualify as a “project” that would trigger the California Environmental Quality Act.

Ulmer said Thursday he’s less concerned with the contents of each proposition, but rather the logistics of how both ended up on the ballot.

“Why should a petition signed by a minority of voters who may or may not support the proposition receive one treatment while an actual vote by the people's representatives receive another treatment?” he asked. “The people's representatives, the Board of Supervisors, voted 7-4 to put this on the ballot. Why isn't that as good as 5% of signatures of people?”

Ulmer noted that the rigors of CEQA review often kills a measure’s chance of ever going before voters.

But Housing Action Coalition said its initiative differs because it qualified through signature gathering rather than through public agency action.

Alvarez said the city shouldn’t be let off the hook for a “procedural error.”

“We're not asking that the voters never get to vote on this,” he said. “We are asking that the Board of Supervisors follow the rules. They made a mistake. They skipped the procedures and now they want the voters to vote on it and maybe it passes and they'll come back and say ‘we messed up on CEQA but the voters passed it so it's OK.'”

Deputy City Attorney Andrea Ruiz-Esquide urged the judge to follow the California Supreme Court's ruling in Brosnahan v. Eu that unless a ballot initiative is unconstitutional, the courts should not interfere with the peoples’ right to vote on it. She said Ulmer could decide the CEQA issues later.

“Citizens need to vote and choose between these propositions. It's not right for them to intervene in the electoral process,” she said.

But Alvarez said having both measures on the ballot could “cause divisions within the community.”

“Every election causes divisions in a community,” the judge rejoined.

“But it is much better not to cause those particular divisions with a measure that is invalid,” Alvarez said, to which the judge replied, “You act like San Francisco voters are some tender lilies.”

“Sometimes,” Alvarez returned with a chuckle.

“With what they've been through, they’re pretty rough and ready,” Ulmer said.

Ulmer took the matter under submission. He has only a short time to rule before the deadline for ballot books to be printed.

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