Spurred by a lawsuit from a coalition of civil rights organizations and residents, Palo Alto is preparing to permanently abolish a long-standing policy of limiting Foothills Park access to residents and their guests.
The City Council plans to consider on Nov. 2 a new recommendation from City Manager Ed Shikada and City Attorney Molly Stump to settle the lawsuit by abolishing the policy and making the nature preserve accessible to all. The new policy would also limit daily entrance to Foothills Park to 1,000 people, according to a report that the city released Thursday afternoon.
The recommendation differs significantly from the council's proposed approach to the highly contentious issue of Foothills Park access. In August, the council voted to approve a pilot program that would sell up to 50 permits per day to nonresidents looking to enter the 1,400-acre preserve off Page Mill Road. The council also voted to send the question of whether nonresidents should be allowed to enter Foothills Park to the voters in 2022.
The new proposal would abolish the policy permanently, with no specific limit for nonresidents. The daily limit of 1,000 would apply to all visitors, residents and nonresidents.
The dramatic change in policy was sparked by the lawsuit, which was filed by multiple parties, including the American Civil Liberties Union and NAACP, according to the report from Shikada and Stump. Under a settlement that they are now proposing, the city would agree not to reinstitute restrictions on nonresident access in the future, including through the election process. Both parties would also acknowledge that the city has the discretion to manage Foothills Park, which would be renamed Foothills Nature Preserve, possibly by imposing an entrance fee. While the city could give residents discounts, these discounts cannot be greater than 25% of the nonresident fee.
In turn, the plaintiffs would no longer seek a court order requiring the city to pay their attorney fees and costs, according to the report.
In issuing their recommendation, Shikada and Stump emphasized the assertion in the lawsuit that the city's policy against nonresidents violates their First Amendment rights to assemble and speak. They called the lawsuit, which was filed in September, a "significant development that Council must assess and take account of in order to determine the best course for Palo Alto."
Responding to the lawsuit's claims, the report from Shikada and Stump cites the federal case of Berger v. City of Seattle in which the court found that First Amendment rights protecting expressive activity are "nowhere stronger than in streets and parks." While cities have some discretion in regulating such speech (by requiring, for example, permits for parades or by limiting loud noises at night), any regulation must be "content-neutral, tailored to serve a significant governmental interest, and leave open ample alternative channels for communication," the report states.
The lawsuit, which the council discussed in a closed session on Oct. 19, claims that the city's long-standing restriction on Foothills Park access perpetuates the city's history of housing discrimination, which had prevented African Americans and other persons of color from owning homes in the city.
The 1969 ordinance limiting access to Foothills Park "perpetuates this historic exclusion and violates the constitutional rights of individuals who are not Palo Alto residents."
"It bars non-residents from entering a public park that occupies nearly 10% of the land in Palo Alto," the suit states. "And it transforms this vast space into a preserve for the fortunate few: for people who were not systematically denied the right to reside in the City during the era of outright racial exclusion, and people who are wealthy enough to afford to move into the City today, as it has become one of the five most expensive places to live in the United States."
If the council approves the recommendation, it would permanently abolish a policy that has long polarized the community. Many believe the restriction is necessary to protect the environmentally sensitive habitats of Foothills Park. Others say that the restriction is fair because other communities had declined Palo Alto's requests to help pay for the park shortly after the city purchased it at a discount from the family of Russel V. Lee in 1958.
Councilwoman Lydia Kou is among those who argued in August against expanding access to nonresidents. Though she agreed to support the pilot program, she did so under the conditions that the expansion be "revenue neutral" and that her colleagues agree to conduct an election to let residents weigh in.
Others have argued that it's well past time to widen access to Foothills Park. The city's Human Relations Commission and Parks and Recreation Commission both endorsed extending who can enter the park earlier this year. Several council members, most notably Mayor Adrian Fine and Alison Cormack, shared this view and argued in August that it's time to allow nonresidents to visit the park. Both had voted against the proposal to make the park "revenue neutral" and to hold an election on the subject.
"You don't put civil rights to a vote," Fine said at the meeting.
If the council endorses Shikada's and Stump's new recommendation, the city would strip a potential ballot measure off the council's 2022 agenda. The settlement would provide that "if the Council adopts the attached ordinance and electors qualify a referendum on the ordinance for the ballot, the settlement would be void and litigation would resume."