Palo Alto's recent decision to expand access to Foothills Park by welcoming nonresidents to the exclusive nature preserve is facing a challenge from a group of residents who are hoping to reverse it through a referendum.

If the referendum effort succeeds, the City Council would have to cancel its plan to open Foothills Park to nonresidents on Dec. 17. It would also likely revive the lawsuit against the city by a coalition that includes the American Civil Liberties Union, the NAACP and residents from Palo Alto and neighboring cities over the exclusive nature of the 1,400-acre preserve where admission is currently limited to Palo Alto residents and their guests.

In challenging the 1965 law that restricts Foothills Park access, the plaintiff coalition has argued that it violates several fundamental rights of nonresidents, including the right to travel, the right to free speech and their right to free assembly. The Sept. 15 lawsuit also argues that the law "traces its roots to an era when racial discrimination in and around the City was open and notorious," citing the prevalence of blockbusting, redlining and racially restrictive covenants in home deeds.

Because these policies have kept many Black residents from purchasing homes in Palo Alto, the law on Foothills Park access "traces its roots to an era when racial discrimination in and around the City was open and notorious."

"The Ordinance perpetuates this historic exclusion and violates the constitutional rights of individuals who are not Palo Alto residents," the lawsuit states. "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."

The council was preparing to gradually expand access to the preserve even before the lawsuit, though council members were planning to do it on a more limited and gradual basis. In August, the council approved a pilot program that would allow nonresidents to buy up to 50 permits per day to visit Foothills Park. The council also specified at that time that it intended to send the issue of nonresident access to the voters in November 2022.

But faced with the lawsuit, the council voted 5-2 on Nov. 2 to follow the advice of City Manager Ed Shikada and City Attorney Molly Stump and strike the ban on nonresidents from the municipal code. The council also agreed to limit park access to 750 visitors at any one time for the first 90 days (after that, the limit would revert to the current level of 1,000 visitors). Council members Lydia Kou and Greg Tanaka both dissented, with Kou arguing that the lawsuit "circumvents the democratic process."

Now, Kou is supporting a citizen effort to overturn the action of the council majority. On Nov. 26, she sent out a mass email informing her supporters of the referendum drive and urging them to get involved.

Much like Kou had argued at the Nov. 2 meeting, supporters of the referendum are alleging that because the council made its decision to settle in a closed session, the council should suspend the policy change until a public vote.

Irina Beylin, who is gathering signatures for the referendum, told this news organization that she does not oppose Foothills Park to nonresidents. She said she supported the council's initial proposal for a one-year pilot program with limited nonresident permits and careful evaluation of impacts on the nature preserve.

She strongly objected, however, to the council's Nov. 2 decision to scrap the provision based on a lawsuit. This, she said, creates a "slippery slope" in which other outside groups can pressure the city with lawsuits to overturn policies favored by the public.

She noted that even if the signature-gathering effort succeeds, it doesn't mean that the city will have to wait until November 2022 to welcome nonresidents. The council, she said, can simply revert to the pilot program that the council had initially approved through a public process.

"We have to do it openly and transparently. Nothing behind closed doors," Beylin told this publication.

The referendum petition similarly frames the issue as one transparency.

"The democratic process should be followed," the referendum petition states. "The current changes to Foothills Park Ordinance were approved by City Council behind closed doors without input from the public. The measure to open Foothills Park to General Public should be put on the ballot and details should be openly discussed with constituents."

As of Monday afternoon, proponents of the referendum have already gathered a "few hundred" signatures, Beylin said. They need to get more than 2,500 by the Dec. 16 deadline to force a referendum. With the pandemic raging across the nation and Santa Clara County recently adding new restrictions to contain the recent increase in COVID-19 cases, she knows the signature-gathering effort remains an uphill climb, particularly since local law requires all signatures to be gathered by hand. But she believes that if the council rescinds its Nov. 2 policy and instead moves ahead with a more gradual pilot program, it will have the added benefit of securing buy-in from more residents.

"When people see that the pilot program works, I'm positive that it would be overwhelmingly supported by Palo Alto residents to open the park, with certain conditions," Beylin said.