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Stephen Greenberg: Nevada City voters — is Measure W a risk worth taking?

Stephen Greenberg | Other Voices

There are plenty of good reasons to vote No on Measure W (the “Historic Neighborhoods District (HND) Initiative”). Like these:

Vote No — to Choose Historical Reality.

Example: Our 48-year-old house is just outside W’s new “Historic” District, while a 2011 house around the corner would be inside it.

Vote No — to Preserve Homeowners’ New Rights.

California’s SB 9 law makes it easier for some homeowners to take certain actions like lot splits, under conditions such as minimum size and owner-occupancy. W would snatch that away.

Vote No — to Work With, Not Against, an Affordability Effort.

SB 9 could pave the way for a limited number of smaller homes where that’s even feasible; and smaller is cheaper.

Vote No — to Respect the City’s Eclectic Character.

Nine months into the SB 9 era, it’s had no effect here; why do we need a new law to protect the City’s “character”?

Vote No — to Reject Unnecessary Complexity.

W would create a new, extremely complex ordinance. Nobody should vote Yes without first reading, understanding, and approving the whole 23-page package.

But There’s a Bigger Problem

As an attorney and longtime Nevada City resident, I have a much deeper concern about W.

California takes SB 9 seriously enough that the Attorney General monitors local compliance. For instance, Pasadena has already voided one ordinance in favor of another, after collaborating with the state.

Why does that matter to us? Because the AG has signaled — in writing — that Measure W is out of compliance with SB 9. Our City Attorney specifically asked for the AG’s position on the initiative. And in response, the AG’s office forwarded the “Notice of Violations” letter they’d sent to Pasadena.

Not surprisingly, then, the City Attorney has raised doubts that Measure W is valid — saying it’s “unclear” if the measure would be compliant with SB9.

Our Future, Foretold?

If voters green-light Measure W, it’s very likely the AG will take us to task. And to court.

True, Pasadena wasn’t sued — but that’s because the city worked with the state and adopted a new ordinance after correcting the problems in the old one. Here’s the problem, though: Nevada City won’t have that option. Measure W makes sure there’s no room for compromise. If it passes, it can be “amended or repealed only by a vote of the people” — which means the City’s hands are fully tied. (According to W, the City Council’s only power would be to expand the already absurd HND.)

So when the state challenges us, like they’ve already done to Pasadena and Woodside, our options will be either to try to defend Measure W in court or to fix it through yet another ballot measure. Either option will be expensive, with Nevada City — us — footing the bill. (Note that some of W’s supporters aren’t even registered voters in Nevada City, so it will cost them nothing.)

The City has just published a lengthy independent analysis of Measure W’s “Legal Impacts” if passed; you can read it in the agenda packet for the September 28 Council meeting. And it confirms the City Attorney’s caution: “Given the objections of the California Attorney General to the more rigorously documented historic districts in Pasadena, it is not clear that the exemption from SB9 will apply to the proposed Historic Neighborhoods District” in Measure W.

The report continues: Measure W “would impose additional barriers to accommodating a diversity of housing types[,]” “effectively reinstat[ing] barriers to overcoming patterns of segregation and fostering inclusive communities.” Accordingly, Nevada City risks violating its legal “duty to affirmatively further fair housing” and is subject to action by the AG “if the violation is not corrected.”

Decision Time

At the September 19 Chamber of Commerce forum on Measure W, spokeswoman Karla Arens insisted there was “no risk” of a legal challenge, because a “very prestigious” law firm said so. But Nevada City’s own City Attorney has questioned the measure’s validity; so has the City-commissioned Legal Impacts report, in great detail… and so has the California Attorney General. With the entire state legal apparatus behind him, the AG is a lot more than “prestigious.”

Measure W’s proponents are free to keep their heads in the sand, of course. But if we really want to protect our town, I urge the rest of us to accept and deal with reality. Please choose wisely, fellow voters… Vote No on W!

Stephen Greenberg lives in Nevada City.


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