As Elk Grove muddles through the Oak Rose lawsuit & SB 35, a look back at the legal analysis that landed them in hot water

Elk Grove city attorney Jonathan Hobbs and city manager Jason Berhmann. Hobbs has changed his position and recommends the approval of the Oak Rose affordable housing project in Old Town Elk Grove. | 


People following the city of Elk Grove's ham-handed handling of the Oak Rose supportive housing project, the subsequent lawsuits, and community acrimony may not be aware of a critical component that has landed them in hot water. 


Simply put, Elk Grove Mayor Bobbie Singh-Allen and her four council members followed the legal counsel of Elk Grove city attorney Jonathan Hobbs, who told them during the July 17, 2022 city council meeting, We Got This!


As you can see in the video below, Mr. Hobbs provided an eight-minute-plus explanation telling the mayor and her four council members that the Old Town special planning area is part of broad land use powers granted to municipalities in the state constitution. Hobbs noted that the state can legislatively preempt that authority, as was done through Senate Bill 35


"When they do that, they need to speak with clarity and precision to what is being preempted," he told the mayor and city council. "When I read the definition of development standards here, I don't see them preempt land use authority." 


Hobbs opined, "The only way you get to an approval is if you grant the waiver, and for the reasons I said, it just isn't egible under state law [SB 35], so staff's recommendation remains to deny the project because it simply doesn't comply with objective standards and the waiver is not available for this project."


Since his July 2022 legal opinion, Hobbs changed his stance, as highlighted in the staff report for the September 27 meeting. City staff, including Hobbs, rescinded their position and recommended the approval of the Oak Rose project.  


The key recommendation, which countered Hobbs' July 202 recommendation, was to find "the Oak Rose Apartments Project eligible for the Senate Bill 35 (SB 35) ministerial review process and approving the Project with concessions/incentives."


Following Hobbs' initial opinion, much has changed. Most notable is the lawsuit advanced by Gov. Gavin Newsom and Attorney General Rob Bonta, accusing Singh-Allen and the city council of violating fair housing laws.    


Barring some 11th-hour development, it appears the city is on the ropes, and the plaintiffs and the state are about to win by TKO. But many questions remain.


Why did Hobbs change his legal opinion?


Has he decided, even if he stands by his opinion offered in July 2022, will it be too costly for taxpayers to defend? Also, what will the political costs be to his five bosses on the city council if they advance the litigation as far as possible and still lose? 


Could one of his bosses be voted out of office? Although District 2 Councilmember Rob Brewer and Singh-Allen are the most vulnerable, the several dozen opposing this are a small group citywide and even the District 2 pool of voters.  


Another question worth considering is, did Hobbs mold his initial opinion to meet the needs of his five bosses? And only after the state called them out did Hobbs retreat and tacitly acknowledge he offered a flawed analysis? 


Even though Hobbs has repeatedly rendered flawed counsel to the city council and added to the city legal staff while still farming out legal work to his former employer, Kronick Moskovitz, Mayor Singh-Allen will keep him as city attorney. As long as Hobbs gives them the legal opinions they want to hear, not what they need to hear, he's as good as gold.  


Still, if things go down the crapper politically for the mayor and one or two council members, they could designate Hobbs as the fall guy they blame for getting the city into this embarrassing and costly mess.  


 


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