Seeking to settle a lawsuit from the NAACP and ACLU and resolve a decadesold community debate, the Palo Alto City Council agreed on Monday to abolish a contentious policy that excludes nonresidents from visiting Foothills Park.

By a 5-2 vote, with council members Lydia Kou and Greg Tanaka dissenting, the council abolished a 1965 policy that bans nonresidents from visiting the 1,400-acre nature preserve off Page Mill Road unless they are accompanied by a resident. In a report recommending the change, City Attorney Molly Stump and City Manager Ed Shikada noted that such a regulation is "extremely rare" and that city staff is not aware of any other California municipality that limits access to parkland to residents and their guests.

The council vote will have two near-term effects. It means that anyone will be able to enter Foothills Park as soon as mid-December. It also means that the city will probably be able to settle the lawsuit from a coalition that includes the NAACP, the American Civil Liberties Union and a group of residents that includes former Council member LaDoris Cordell, former Parks and Recreation Commissioner Don McDougall and former East Palo Alto Mayor Laura Martinez.

But as several council members observed Monday, the decision will also settle a contentious issue that has split residents for decades and that has forced Palo Alto to defend itself against accusations of racism and elitism.

"This is history in the making," Council member Liz Kniss said shortly before the vote.

Kniss predicted that the council will end up being "delighted that we have a park that we'll be able to share with our neighbors, wherever our neighbors come from."

The council voted after hearing from about 20 residents, with most saying that they favor expanding access to Foothills Park. Many of the proponents of the new policy pointed to the city's history of racial exclusion, as described in the Sept. 15 lawsuit, which calls Foothills Park a "gated paradise that unconstitutionally excludes non-residents."

"The ban on non-residents traces its roots to an era when racial discrimination in and around the City was open and notorious," the suit states. "It is long past time to relegate this unlawful exclusion to the dustbin of history."

The suit lists a number of policies that illustrate the city's history of housing discrimination in the middle of the 20th century, including the creation of racially restrictive covenant in deeds, restrictions on mortgage insurance for residents in non-white neighborhoods ("redlining") and efforts by realtors to incite "white flight" from East Palo Alto and to encourage African Americans to settle there (a campaign known as "blockbusting").

Most of the speakers at Monday's hearing supported the lawsuit's contentions and argued that opening Foothills Park to the general public would be the right thing to do. Others argued that the city's prohibition on nonresidents visiting the park has nothing to do with racism and that limiting visitors is necessary to protect the park's sensitive habitat.

"I don't think the lawsuit should be settled in a way that implies that the plaintiffs against Palo Alto are correct," said resident Joe Hirsch. "Palo Alto is not in my opinion a racist town or community."

He called the specific examples of racist policies "ancient history" and argued that the city — unlike the market — does not restrict who gets to live here.

The suit, however, contends that the effects of the discrimination are still felt to this day. Palo Alto has a far lower proportion of Black residents than neighboring communities such as East Palo Alto and Menlo Park, the suit states. According to U.S. Census data, African Americans made up 1.6% of the city's population in 1959, when the city purchased the land. As of 2019, it remained at 1.6%.

"The Ordinance 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. 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."

Some residents welcomed the abolition of the policy as an important milestone. Aram James, a longtime police watchdog, said the best job he'd ever had was serving on a city crew that cut the park's original trails in 1968.

"For me personally, this is like bringing down Palo Alto's Confederate flag," James said. "It's like bringing down Palo Alto's Robert E. Lee statue. … Let's go for it, let's pass it. Let's open the park up."

Council member Eric Filseth suggested that the lawsuit's account of Palo Alto's history of racism in housing policies is valuable and advised people to read it. He also said, however, he does not believe that opening up the park to nonresidents is a direction that most Palo Altans enthusiastically support.

"I also don't believe that the majority of Palo Altans would agree that this is a racist, segregationist or human rights issue," Filseth said.

"I think most Palo Altans believe we passed the hat, no one was interested and that's how we got there," he added, alluding to the fact that neighboring cities declined to chip in for the purchase of Foothills Park in the 1950s.

Filseth ultimately joined the council majority in supporting the settlement, which includes as a key condition a permanent court injunction banning the city from reinstituting restrictions on nonresident access in the future.

Some council members balked at this condition. Vice Mayor Tom DuBois said he'd rather expand access to Foothills Park without the injunction and proposed stripping it out of the settlement. While Stump cautioned that excluding the injunction from the council's approval would add "substantial uncertainty" to the potential settlement, DuBois called the proposed remedy "a black mark on our city."

"It suggests that we opened up because of this legal agreement, because of the NAACP and ACLU, versus us as a council deciding to open the park," DuBois said. "So, I'd prefer for it to be our choice and that we manage it that way."

His proposal to reject the injunction failed by a 4-3 vote, with only Kou and Tanaka joining him. Mayor Adrian Fine, who strongly supported opening up Foothills Park, noted that the council had an opportunity to open the park before the lawsuit was filed but had opted not to do so.

"We had that chance and we chose not to take the gracious path," Fine said.

Fine also suggested the lawsuit's main argument — that the ban on nonresidents at the park violates their constitutionally protected rights to freedom of speech and freedom of assembly — resonate with him. His family moved to Palo Alto from South Africa in the late 1970s in protest of apartheid, he said. His parents visited Foothills Park once, saw the "residents only" sign, and have not been back since, he said.

"This is deeply personal," Fine said. "I think the obviously right thing for us to do is open it up and be a good neighbor."

In making a motion to change the policy, Fine included provisions that would limit the number of visitors who can be at Foothills Park at one time to 750 in the first 90 days after it goes into effect. After that, the park would go back to its current limit of 1,000 visitors.

The new policy would also give residents preference on reservations of recreational facilities at the park.

The council's Monday vote accelerates a process that some members were hoping to roll out slowly and gradually over the coming months. On Aug. 3, the council took up after months of delays a proposal from its Parks and Recreation Commission for a pilot program that would allow up to 50 nonresidents to purchase permits and enter Foothills Park daily.

Council members also specified as part of their August approval of the program that the expansion of access needs to be revenue-neutral. And they decided to send the issue of permanently abolishing the restriction to the voters in 2022 — a decision that the Monday settlement renders moot.

Kou and Tanaka, who are each seeking reelection to fresh four-year terms on Tuesday, both argued against settling. Each suggested getting an additional legal opinion and alluded to surveys that they had conducted showing strong resident support for keeping the restriction on nonresidents in place.

Kou called the lawsuit "a bully maneuver" and that the NAACP, by joining the suit, is "discrediting themselves and jeopardizing their reputation."

"This whole lawsuit circumvents the democratic process," Kou said.

Tanaka also urged his colleagues to slow down and suggested that members of the public aren't as engaged in this issue as they would normally be because of the national election.

"I think we should tread carefully here," Tanaka said. "I think there's quite a few members in the community who are concerned about this."

Others felt the action is long overdue. Council member Alison Cormack said that over the past two years, many people she knows have changed their minds about Foothills Park and now support expanding access.

"I say to my colleagues: We can too. We can change our minds also and come to a new conclusion. Some of us may make that decision for different reasons and that's fine," Cormack said.

One person who did not waver from his position was former Mayor Leland Levy, who over the years has repeatedly urged the council to open Foothills Park to nonresidents and who did so again on Monday. Levy said he disagreed with the lawsuit's allegations that the city is acting illegally in banning nonresidents from the park.

"I believe over the years we have acted legally," Levy said. "But I also believe that it's not sufficient to do only what's legal. We should do what's right. And what's right is opening Foothills to all."