In bypassing Measure A, council seeks compliance with state law

In bypassing Measure A, council seeks compliance with state law

Michele Ellson

When city leaders voted last week to allow new apartment buildings to be built on 10 sites in Alameda – in apparent contravention Measure A, which bars such development – they were facing the very real possibility of a court challenge that could have nullified the four-decade-old voter initiative Island-wide.

“I strongly believe we would have been sued,” Planning Services Manager Andrew Thomas said.

Measure A conflicts with the state’s housing element law, Thomas and other city staffers said. And if there were a legal battle between the two, they said state law would prevail.

“If we found out Measure A didn’t allow for passing of the housing element, I think Measure A would be overturned as unconstitutional. We have to comply with state law,” City Attorney Janet Kern said, though she said she couldn’t speak for what a court would do.

On July 17 the council approved a new “multifamily overlay” zone that allows the development of apartments and other multifamily housing on 116 acres spread across 10 separate sites. Critics said they fear the approval could spell the end for Measure A and may open the door to rampant development across the Island. But city staffers said the council’s decision may have saved Measure A by making sure it doesn’t conflict with state law, which supersedes local laws on a number of issues, including this one.

Renewed Hope, a nonprofit that has long championed the cause of affordable housing development here, told city officials that the group would sue if the city didn’t comply with a state law requiring cities and counties to show they have enough properly zoned land to accommodate the housing the state thinks they need, Thomas said. A successful lawsuit over the city’s lack of a state-approved housing element in its general plan – and there have been several in neighboring cities – could spell the end for Measure A, and possibly, a loss of local control over development decisions, he and Kern said.

California’s constitution allows cities like Alameda that are governed by a city charter to exercise a great deal of say over local affairs. But the state’s courts have consistently held that if a matter is determined to be of “statewide concern,” the state’s rules are enforced over local ones.

State lawmakers have declared the production of affordable housing to be a matter of statewide concern, and as such they have required cities and counties to show they can accommodate the housing needs of residents at all income levels by drafting a housing element to their general plan that demonstrates they have enough land zoned to allow it to be built. (Cities and counties aren’t required to actually ensure the housing is built.)

Thomas said that state law requiring cities and counties to demonstrate they can meet their housing needs has become more rigid over the last decade or so. At the same time, affordable housing advocates have sued a number of cities to make sure the law is followed.

Public Advocates Inc., a nonprofit public interest law firm with offices in San Francisco and Sacramento, has sued a trio of Bay Area cities in an effort to force compliance with the state’s housing element law, including one – Pleasanton – where voters had enacted development restrictions a decade earlier. An Alameda County judge overturned those restrictions in 2010 and forced the city to pay nearly $2 million in legal fees as part of a settlement of the case.

“This major victory for affordable housing in California has reverberated around the State,” the firm said of what they called a first-of-its-kind court ruling requiring the city to rezone three pending development sites to allow more housing.

Besides Pleasanton, just one other city in Alameda County – Albany – lacks a state-approved housing element, a list issued by the state Housing and Community Development Department on July 18 showed. And the city’s senior planner said that officials there are concerned that they, too, could face litigation if one isn’t approved.

“I think every jurisdiction certainly has that concern,” said Anne Hersch, Albany’s senior planner. She said she hopes the city will have an approved housing element in place by the fall of 2013.

A state law that ties millions of dollars in transportation funding to housing plans in an effort to reduce greenhouse gases has also played a role in the effort to get them approved, documentation provided to city leaders across the Bay Area showed.

City leaders have made a number of efforts to ensure affordable housing is built in Alameda, but none – including a 2009 ordinance that allows developers to request a pass on Measure A in exchange for affordable housing – was enough to pass muster with housing advocates or the state. Those efforts include a 2003 inclusionary housing ordinance that requires 15 percent of the homes a developer builds to be affordable to families whose incomes fall below area medians.

In 2009, the council okayed a density bonus ordinance that allows developers to seek waivers to some local zoning and design rules in order to incentivize the inclusion of affordable housing in their projects – a list that included Measure A. The Boatworks development plans approved by the city include an apartment building that wouldn’t have been allowed under Measure A.

With those changes in hand, city leaders sent a council-approved housing element to the state for approval in 2009. A state housing official sent back an eight-page critique of the plan that specifically called out Measure A as an impediment the city needed to address in order to gain state approval.

“Prohibiting multifamily or limiting density is a fundamental constraint with significant impacts on the cost and supply of housing and particularly a variety of housing types,” Cathy E. Creswell, then deputy director of the state’s Housing and Community Development department, wrote the city in a June 15, 2009 letter. “The City is required to make zoning available to encourage and facilitate multifamily development and address and remove constraints. As a result, the element must include programs to address and remove or modify the constraint, including making zoning available to allow multifamily uses.”

Renewed Hope President Laura Thomas sent a letter to City Manager John Russo in November 2011 demanding the city adopt a legally compliant housing element by January 31, 2012. The nonprofit, which had successfully sued the city more than a decade earlier in an effort to ensure affordable housing was available at Alameda Point, said Measure A “has stood as an edifice against multifamily housing development with only limited exceptions forced by litigation.”

State law specifically calls on cities and counties to provide sites that “facilitate and encourage” multifamily housing, Thomas said, and it says that sites in metro areas like the Bay Area that are zoned to allow 30 homes per acre can be considered places where homes affordable to low-income residents can be built. (Measure A allows less than 22 homes per acre.) He said discussions with state housing officials prompted the city to work out how many sites they needed to allow that much housing on to meet the state’s requirements.

Last December, the Planning Board held a public workshop on the issues to be addressed by the revised housing element, and in June, they signed off on a new one, after a 60-day public comment period followed by a letter from a state official that promised to sign off on the plan.

“The revised draft element addresses the statutory requirements described in the Department' s June 15, 2009 review,” HCD’s acting director, Glen A. Campora, wrote in the May 18 letter.

Advocates with Renewed Hope and other affordable housing organizations cheered the council’s decision to move forward with the housing element at the July 3 and July 17 meetings where council members considered it.

“I want to commend you for addressing this element, finally,” Renewed Hope’s Thomas told the council on July 3. “As much as we love Victorians, we need to have some well designed, efficient homes and condos that people can afford.”

Related: Council okays plan allowing multifamily housing

City preparing new housing plan

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