A Santa Clara County Superior Court judge could decide next Wednesday whether a controversial measure to drastically reduce the amount of affordable housing units in the city should be removed from the November ballot.
The initiative would lower the amount of affordable housing likely to be built in the city from 30 to 20 percent and would restrict the Morgan Hill City Council's ability to change the growth control system that lays out affordable housing incentives. The actual amount of affordable housing built under the current system hovers in the low 20s, according to city officials.
In a petition filed July 18, the city asked the court to throw out the measure on the grounds that it conflicts with state law, and therefore Morgan Hill voters don't have the power to pass it anyway.
During a hearing on the case early Thursday morning, Santa Clara County Superior Court Judge James Kleinberg was impatient with the measure proponents' attorney Bart Hechtman, cutting him off at times to ask pointed questions about who's behind the initiative, who will benefit from it and what exactly it purported to do.
"The United States Supreme Court only grants half an hour (per briefing)," Kleinberg said, cutting into Hechtman's lengthy briefing. "I'm losing you ... Tell me why I should not grant this (injunction request)."
Hechtman said the initiative does not prohibit developers from building affordable housing or requiring them to build affordable housing either. The city's growth control system will not change, Hechtman said.
The judge asked Hechtman that if the initiative wouldn't change anything, then what its purpose was. "What change will happen in Morgan Hill?" he queried.
Hechtman said the changes will "shift the provisions to some extent to other means, from one tool (the control system's) to other tools, like converting apartments to condominiums to sell."
Kleinberg hypothesized that if he were to grant the injunction, the initiative's proponents could go back to the council and work with them on changes, and possibly appeal to the state.
The city's attorney, Robert Perlmutter of the San Francisco-based law firm Shute, Mihaly and Weinberger, said no case has ever allowed an initiative to go to the ballot when the judge is convinced it's invalid.
"Unless you're not convinced, then you would be compelled to (stop the initiative)," he said. "What's really going on is that three developers are unhappy."
Chris Borello, realtor and the initiative's spokesman, and builder Rocke Garcia were present at the hearing. For the first time since the initiative was filed in May, Borello declined to comment. Garcia also declined to comment.
The hearing lasted about two hours.
Natalie Everett Natalie Everett covers education and city issues for The Times. Reach her at (408) 779-4106, ext. 201, or neverett@morganhilltimes.com.
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