Bay area nonprofits go to bat to promote affordable housing for low-income residents

As California's affordable housing crisis persisted and intensified, a coalition of Bay Area nonprofit law firms successfully turned back a major challenge to a state law designed to promote efforts to put more roofs over low-income residents' heads.

San Jose, one of the most expensive housing markets in the U.S., in 2016 declared itself exempt from the California Surplus Land Act, a statute that requires local governments to prioritize low- and moderate-income housing whenever they sell or lease unneeded property.

After a setback in the trial court followed by reversal on appeal, the coalition attained a stipulated judgment that establishes the applicability of the Surplus Land Act to charter cities across the state, an outcome likely to result in thousands of new affordable homes. The appellate opinion also buttressed the constitutionality of other state housing laws. The litigation was essential to the future of millions of low-income Californians who even before the pandemic were struggling to find housing. The endemic housing shortage contributes to homelessness, undermines the stability of communities and disrupts education, employment, health care and access to social services for disadvantaged families.

Michael Rawson and Richard Marcantonio

Tepperman-Gelfant said, "San Jose started their own public land policy, and we'd heard of affordable housing advocates' concerns down there. We tried to give the city a heads-up that they'd be in violation of state law."

Added Feldman, "The city was puffing its chest, saying it would determine what would be best for San Jose and calling it an act of independence."

San Jose ignored the lawyers' warning, so Public Interest Law Project, Bay Area Legal Aid, Public Advocates Inc. and Weil, Gotshal & Manges LLP sued on behalf of low-income residents Sarah Anderson and Joana Cruz and two nonprofits, Urban Habitat Program and Housing California. The suit challenged the city's go-it-alone surplus lands policy and sought a judicial declaration that it must follow state law. Anderson v. City of San Jose, 16CV297950 (S. Clara Co. Super. Ct., filed July 21, 2016).

On the complaint were Evenson, Rawson, Feldman and Tepperman-Gelfant. Marcantonio and Vazquez joined later. Also key to the litigation were Lisa M. Newstrom and Lisa Kye-Young Kim of Bay Area Legal Aid, David B. Zisser of Public Advocates and Weil, Gotshal partner Adrian C. Percer. Zisser now works for Housing California. Evenson has been appointed to the Alameda County Superior Court bench. Vazquez is now at the California Division of Labor Standards Enforcement.

Sam Tepperman Gelfant and Valerie Feldman

The plaintiffs lost on the defense's demurrer when the judge held that because San Jose was a charter city, it did not have to adhere to state law. "We've all been doing this too long to think anything was going to be a slam dunk," Tepperman-Gelfant said. "But it was disheartening to lose on a question of law at the demurrer stage," Feldman added.

The team's appeal, however, led to a strong 3-0 reversal of the trial judge. Following San Jose's unsuccessful petition for review to the state Supreme Court, the plaintiffs obtained a Sept. 2, 2020, stipulated judgment resolving the case in their favor.

Evenson was the director of litigation and advocacy for Bay Area Legal Aid while the case was in progress. She helmed the successful appeal. "There's always a headwind when you're appealing from a decision that goes directly contrary to your clients' interests," she said, "but we were confident of the legal merits of our position."

She said her emphasis at Bay Legal was on impact litigation for low income clients. "This case was an effort to look upstream for creative solutions toward expanding the pie for all, seeking an expanded universe of affordable housing possibilities in cities' unneeded land." She added that the outcome will lead to "a comprehensive statewide approach to the patchwork of affordable housing laws around California."

-- John Roemer