How dense do they think we are?

Head’s up, ye dwindling band of diehard defenders of Measure A:  The “Town Center” at Alameda Point is going to be chock full of the type of high-density, multi-family housing expressly banned by the City Charter – and no one at City Hall apparently intends to ask the voters to change the Charter to allow it to happen.

City Manager John Russo hasn’t gotten around yet to issuing a press release disclosing these plans.  But the handwriting is on the wall for all to see – if they read carefully between the lines.

The Town Center consists of 125 acres located around the seaplane lagoon.  As described by City staff, the Town Center is the future “heart” of Alameda Point with the “greatest potential of catalyzing and shaping this new, transit-oriented, mixed use community.”  And the planning documents prepared over the last year make clear that high-density, multi-family housing is a key part of staff’s “vision” for the proposed Town Center.

Take the proposed zoning ordinance.  First presented to the Planning Board in May 2012, the proposal divides the Point into six sub-districts, one of which is the Town Center.  According to the current draft amendment, “Medium to high density residential uses are appropriate in Town Center to support a transit and pedestrian-friendly mixed-use neighborhood.”  Indeed, only multi-family housing would be permitted in the Town Center; single-family homes would not.

And then there’s the “precise plan” for the Town Center.  In applying for a grant from the Metropolitan Transit Commission to fund preparation of the plan, staff stated it should include

A multi-family housing component, which has a diversity of residential buildings, including apartments, duplex, courtyard and townhome types as well as residential over ground-floor retail (commercial block buildings), along Atlantic Avenue, the main transit corridor, and along the waterfront. The higher density uses will be concentrated around a future transit station planned at the heart of this Area. Detached single family homes are not envisioned in this Area, but are planned to be located in the adjacent residential area to the north. A variety of 400-500 housing units are planned to be centered in a 20-25-acre area within the Waterfront Town Center, including significant affordable housing, with an approximate density range of 25-60 du/acre, meeting MTC’s required density goals.

The City retained the global architectural firm of Skidmore, Owings & Merrill to prepare the precise plan.  Curiously, the “draft conceptual” version of plan recently presented to the Planning Board uses the phrase “multi-family” only once.  But take a look at the “Residential Building Types” page and you’ll see that’s what they have in mind:

Residential Building Types (excerpt from Precise Plan)

Neither the zoning amendments nor the precise plan yet has been presented to Council.  (Staff did, however, present a “planning guide” setting forth its “vision” that the Town Center would be “supported and enlivened” by, among other things, multi-family housing).  But to the pro-housing contingent on the Planning Board, the issue is not whether high-density, multi-family housing belongs in the Town Center but only how many of the 1,425 housing units contemplated by the City’s conveyance agreement with the Navy can be squeezed into it.  And at least one of them, Planning Board John Knox White, apparently believes that the public at large is clamoring for high-density, multi-family housing at the heart of the Point.  As Mr. Knox White told his fellow Board members on April 8:

I don’t think this community, as I’ve said before, is ready to prioritize single-family homes that have the largest traffic impact of any type of building we can do in this town. I don’t think that’s where our community is.  At the Going Forward meeting that I went to, even the people who said, Let’s have fewer houses said, whatever houses you build, build them dense and near the seaplane lagoon.  I mean, Over and over.  You had people who liked density saying, Build it near the seaplane lagoon.  You had people who want as few housing units as possible saying, Build it all at the seaplane lagoon.  It’s never any, Let’s do yet another single-family district.

Now there are arguments to be made why high-density, multi-family housing is a good idea for the Town Center.  If you buy into the concept of creating a “transit center” – i.e., a hub for public transportation facilities – at the center of the Point, you might want to build apartment buildings to house the throngs of people whom you hope will walk or ride their bikes to the new ferry and bus terminals that you hope WETA and AC Transit will build for us.  It’s even possible that those arguments might convince voters to pass a measure exempting the Point from the Charter provisions prohibiting multi-family housing and requiring a minimum 2,000-square lot size.

But it appears that the powers-that-be don’t want to take their chances with the electorate.  Instead, City planners have come up with a stratagem that they think will make it unnecessary to give Alamedans any vote at all.  You’ll see what we mean if you listen closely to the dissertation by City Planner Andrew Thomas in response to a question about Measure A from Planning Board member Dania Alvarez-Morroni at the Board’s April 8 meeting.  The ploy, Mr. Thomas admitted, wasn’t described in any detail in the staff report.  But here’s how it will work:

The key pieces are a resolution adopted by the Community Improvement Commission in 2004 and an ordinance passed by Council in 2009.

CIC Resolution 04-128 was adopted in the wake of the settlement of a lawsuit brought by housing advocates and environmentalists.  It requires that, for any residential development at Alameda Point, “six percent of the total units must be restricted to occupancy by Very-Low Income Households; seven percent of the total units must be restricted to occupancy by Low-Income Households; and twelve percent may be restricted to occupancy by Moderate-Income Households.”

Municipal Code section 30.17 (the “Density Bonus Ordinance”) was enacted in response to a state law designed to promote “affordable” housing.  It provides that the City “shall” grant a “density bonus,” which permits a developer to build more market-rate housing units than the zoning ordinance otherwise allows, to any residential development that reserves either 5 per cent or more of its units for “Very Low Income Households” or 10 per cent or more of its units for “Low Income Households.”   As required by state law, the ordinance also offers other “incentives” and “concessions” for a qualifying project.

In addition, the state density bonus law permits the developer to apply for a waiver of “development standards that will have the effect of physically precluding the construction of” the project.  The drafters of  the ordinance adopted in Alameda took pains to ensure that this included a waiver of the Charter provisions prohibiting multi-family housing and requiring a minimum 2,000-square-foot lot size “if shown to be necessary to make construction of the project physically feasible.”  The City must grant the request for waiver unless it makes written findings that one of three specific conditions exists.

The scheme devised by staff takes these two pieces and puts them together this way:

  • By virtue of CIC resolution 04-128, any residential development at Alameda Point must devote 6 per cent of its units to very-low income housing and 7 per cent to low-income housing;
  • But by virtue of the Density Bonus Ordinance, any residential development that devotes more than 5 per cent of its units to very-low income housing is eligible for the density bonus and associated incentives, concessions, and waivers;
  • Accordingly, any residential development that may be built at Alameda Point necessarily will be eligible for the benefits provided by the Density Bonus Ordinance, since you can’t meet the very-low income requirement of the resolution without also satisfying the very-low income threshold in the ordinance.
  • Under the ordinance, any residential development eligible for a density bonus is also eligible for a waiver of the multi-family housing prohibition and the minimum lot size requirement set forth in the Charter.
  • The waiver must be granted absent extraordinary circumstances, and, ordinarily, the decision will be made by the non-elected members of the Planning Board (with the right of appeal to Council).  Nothing ever goes to the voters.

Pretty clever, huh?

(Technical note:  A similar argument can be made if you use the terms of the settlement agreement — which requires 10% of the housing units at Alameda Point to be for what state law defines as “low income” households — rather than the CIC resolution.  A residential development that sets aside 10% of its total units for “low income” housing both satisfies the settlement agreement and qualifies for the density bonus and associated benefits under the ordinance).

Employing this strategy to permit high-density, multi-family housing at Alameda Point wouldn’t be the first time the City has used the Density Bonus Ordinance to get around the Charter prohibitions and requirements.  Both the Boatworks project and the Alameda Landing project took this route.

For the Boatworks, the developer earmarked 9% of the planned housing units for very-low income housing.  This enabled it to qualify for a 42-unit density bonus – and for a waiver of the multi-family housing prohibition and minimum lot size requirement that allows it to build a 29-unit apartment building and 67 town homes.  Likewise, for Alameda Landing, the developer earmarked 6% of the planned housing units for very-low income housing.  This enabled it to qualify for a 51-unit density bonus – and for a waiver of the multi-family housing prohibition and minimum lot size requirement that allows it to build a 23-unit apartment building, 26 flats, and 56 townhomes.

Alameda Point is just the Boatworks and Alameda Landing writ large.  According to Mr. Thomas, residential development at the Point qualifies for a waiver of the Charter provisions “by definition.”  The idea, Mr. Thomas told the Planning Board, is to file a “project-wide” application under the density bonus ordinance.  This will enable the Planning Board to grant a waiver for the entire site that will permit high-density multi-family housing to be built wherever the planners and politicians decide it should go, including the Town Center.

As far as we know, no one ever has challenged the waiver provisions of the Density Bonus Ordinance as an unlawful attempt to amend the Charter without voter approval.  The approach outlined by Mr. Thomas thus appears to be perfectly legal.  And we can even imagine the spin we’ll hear from the politicians when it gets used.  Remember how Mayor Gilmore passionately insisted that adoption of the new Housing Element, with its 16 parcels re-zoned for multi-family housing, was necessary to “maintain Measure A for the rest of the island”?  Don’t bet against her reprising that line to defend this latest end run around the Charter.  After all, Chapter XXVI will remain on the books.  It’s just that the “rest of the island” no longer includes Alameda Point.

But we must admit that there is something, well, unseemly about what appears to be going on here.  Measure A was passed in 1973.  It surely would be fair to debate whether the reasons that led to the Charter provisions prohibiting multi-family housing and requiring minimum lot sizes remain valid today.  Likewise, it surely would be legitimate to debate whether an exception to those prohibitions and requirements should be made for Alameda Point.  But let’s have the debate out in the open! Public policy should be established by the citizens at the ballot box – not concocted by the planners and politicians in back rooms behind closed doors.

Sources:

Alameda City Charter, Article XXVI: Article XXVI of Alameda Ciry Charter

Community Improvement Commission Resolution 04-128: CIC Resolution 4-128

Settlement agreement between City of Alameda and Renewed Hope, et al.: Settlement Agreement – Renewed Hope and Arc Ecology

State density bonus law: CA Codes (gov_65915-65918)

City of Alameda density bonus ordinance: 30_17_DENSITY_BONUS_ORDINANCE

Staff report recommending adoption of density bonus ordinance: 2009-10-20 staff report re density bonus

Application for grant for precise plan for Town Center: 2012 PDA Application for Town Center grant

July 8, 2013 draft zoning ordinance amendment: 2013-07-08 draft zoning amendments

Staff report recommending density bonus for Boatworks: 2011-07-11 staff report to PB re Boatworks

Staff report recommending density bonus for Alameda Landing: 2012-12-10 staff report to PB re Alameda Landing application

About Robert Sullwold

Partner, Sullwold & Hughes Specializes in investment litigation
This entry was posted in Alameda Point, City Council, Development, Housing and tagged , , , , , , , , , , . Bookmark the permalink.

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