S.F. affordable housing fight: Judge rules dueling ballot measure can stay on the ballot

Both of the competing measures — one championed by Mayor London Breed and the other by a majority of the Board of Supervisors — would waive most of a complicated city approvals process that can slow down or kill affordable projects the city desperately needs. But the two measures differ in the income threshold for affordable units and how many affordable units need to be included in mixed-income projects, among other differences.

Judge Richard B. Ulmer Jr. wrote in his ruling that "setting policy by picking political winners and losers is not a court’s role." Based on case law, it’s more appropriate for a court to review a ballot measure’s validity after an election, he wrote, and if the measure passes, "it could then be judicially reviewed."

Voters will be choosing between the streamlining measures as San Francisco grapples with its housing shortage and the difficulty of meeting a state mandate to build tens of thousands units in the next decade.

Breed tried three times in three years to get supervisors to approve a similar measure for the ballot, but after the latest rejection, she and her supporters gathered 80,000 signatures from voters to qualify the measure. Supervisor Connie Chan and a majority of her colleagues then voted to put a similar measure on the same ballot.

The two measures both ostensibly aim to speed up housing production for 100% affordable housing projects, teacher housing and mixed-income projects with a certain amount of affordable units. Chan argues the Breed-backed measure won’t create truly affordable housing because it allows for streamlining for projects that target higher-income residents. Breed’s allies argue Chan’s proposal won’t lead to more housing because projects requiring a greater number of affordable units won’t pencil out financially and therefore won’t get built.

Breed’s allies sued the city in early August to get Chan’s measure off the ballot, leaving the office of David Chiu, the city attorney who Breed appointed, to defend keeping a measure that challenges the one she championed.

In a statement Tuesday, Chan said the lawsuit was "always without merit and was clearly just a desperate attempt to keep us off the ballot." She said her opponents’ measure "deceptively claims to create housing for low- and middle-income San Franciscans while actually changing the definition of "affordable housing" to be out of reach for many families."

"It speaks volumes that the billionaires behind Proposition D went to these lengths to try to take away voters’ ability to choose the only measure that will truly create affordable housing," Chan said in the statement.

City Attorney’s Office spokeswoman Jen Kwart said in a statement that "we are pleased the Court agreed that Proposition E can remain on the November ballot and that it’s appropriate for the voters to decide between the competing housing measures."

Todd David, plaintiff and senior adviser to the nonprofit San Francisco Housing Action Coalition, vowed to keep fighting.

"We are certainly disappointed with the judge’s ruling and now for the next two months we are going to be focused on communicating with the voters as to why Prop. D is superior to Prop. E," he said Tuesday.

"Citizens came together and put a lot of time, energy and resources behind this signature initiative and the Board of Supervisors put a competing measure that’s completely done in bad faith," he previously said. "The sole purpose of the Board of Supervisors measure is to confuse voters so they won’t vote for the citizens’ measure."

In the lawsuit, Breed’s allies argued Chan’s measure was illegal because it wasn’t reviewed under the California Environmental Quality Act (CEQA). That’s rich in irony because the Housing Action Coalition regularly slams its opponents for using CEQA lawsuits to block housing.

The city’s opposition brief argues that the court must "guard" a voter’s right to cast a ballot on an issue.

"Petitioners seek extraordinary relief in this pre-election challenge and ask the Court to quash a legitimate policy debate over how to best address the City’s severe housing crisis, leaving their preferred solution as the only option before the voters," the city argued.

The city defended the determination of the Planning Department that Chan’s measure didn’t qualify as a "project" that needed CEQA review because the measure would change only how projects are reviewed and wouldn’t cause either a direct or indirect "physical change in the environment." Even if it were a project, the department said it would already be covered by previous broader reviews, the city said.

David said the determination the measure wasn’t a "project" was "absurd at face value," with his lawsuit arguing the measure would result in environmental impacts related to traffic, noise, air quality and more. His attorneys argued that the city only said the measure was covered by past reviews after a challenge from his camp, but that wasn’t an official finding.

Ulmer wrote in his ruling that the CEQA challenges were "dense factual and legal issues" that "merit reasoned consideration, not a hip shot shortly before ballots go to the printer." He questioned why one measure put on the ballot through voter signatures doesn’t require CEQA review, while another by the people’s representatives, did.

During the hearing last week, Ulmer said CEQA review is "basically a death sentence" for anything coming out of the Board of Supervisors. David’s lawyers said that it could take six months to one year for that review, and then the city could come back to the voters again.

"We are not asking that they never vote on this, we are simply asking that they follow the rules," attorney Matthew Alvarez said.

Alvarez also argued that the city’s ballot measure had a procedural error and therefore should be removed from the ballot. But Deputy City Attorney Andrea Ruiz-Esquide said San Francisco voters would be "robbed of your possibility to vote if you intervene now."

"I’m making no opinion whatsoever that one measure is better," she said, but residents should be able to exercise their right to vote, she reiterated.

Ulmer saw both sides — he agreed that if the measure was found illegal, that would make votes "meaningless," but also cited precedent cases that protects voters’ rights by saying that judicial review should occur after an election.

"I don’t pick political winners and losers, that’s not my job," Ulmer said.

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