Whither Measure A? (Part I: Overview)

It’s “unconstitutional.”

It’s “illegal.”

It’s “racially tinged.”

What are these epithets – made publicly by people who should know better, including members of the State Bar – referring to?

Why, Measure A, of course.  That’s the City Charter provision prohibiting multi-family housing and limiting residential density to 21 dwelling units per acre.

It’s bad enough that balderdash like this emanates from Alamedans.  But then it gets recycled into a column in the San Francisco Chronicle as proof that Alameda has yet to escape its sorry past.

We think it’s high time to restore a little rationality to the long-running debate over Measure A.  Although no one invited us, the Merry-Go-Round accepts the challenge.

We intend to look forward, not backwards.  We don’t know, and frankly don’t care, why Alameda voters passed Measure A in 1973 (with 71% of the vote).  Nor do we know, or particularly care, whether Measure A has done more harm than good during the last 40 years.  We’ll let others argue about those issues.

No, our starting place is today, Memorial Day 2014.  Measure A is still on the books. What we want to know is:  Should we keep it there – or repeal it?  And the answer depends, not on what impacts Measure A has had in the past, but on what impacts it may have in the future.

Our approach will consist of three parts.  First, we will describe the current state of affairs relating to multi-family housing in the City of Alameda, including the exceptions to Measure A created by City Council without going to the voters.  Next, we will attempt to lay out, and analyze, the arguments (as we understand them) why Measure A should be repealed.  Finally, we will do the same for the arguments why the Charter provision should be retained.

Readers of Chip Johnson’s recent column in the Chronicle might have imagined Alameda as an all-white enclave of single-family homeowners protected by a moat ensuring their insularity – Piedmont by the Bay, if you will.  That simply is not the case.

According to the 2010 Census, Alameda is almost a “majority minority” community, with 50.8% of residents identifying themselves as white and 31.2% as Asian.  Hispanic or Latino residents (of any race) comprised 11% of the population.

More importantly for our purposes, the 2010 Census shows that, of a total of 32,351 housing units in Alameda, 14,488 (48.1%) were owner-occupied and 15,635 (51.9%) were renter-occupied.  According to estimates by the California Department of Finance, the total breaks down into the following categories:

  • Single-family:  17,047 (53%)
  • Multi-family (2-4 units):  5,826 (18%)
  • Multi-family (5+ units):  9,351 (29%)

So that’s what the multi-family housing picture looks like today:  About half of the total housing units in Alameda are “renter-occupied” or multi-family.

And more are on the way.

Take a look at the table in the 2007-2014 Housing Element identifying the parcels deemed “available” for residential development.  It shows that 16 separate parcels with a total “realistic capacity” of 2,306 housing units are zoned for multi-family housing.

As we previously reported, the draft 2015-2023 Housing Element presented to the Planning Board eliminates a few of these sites, most notably Neptune Pointe.  Nevertheless, the “land availability” table still contains 12 separate parcels zoned “multi-family” with a total “realistic capacity” of 1,891 housing units.

Not only has the City zoned all these parcels for multi-family housing, the Planning Board actually has approved two residential development projects with a multi-family component:  Alameda Landing, which includes 79 condominiums, 56 townhomes, 22 single-level flats, and a 23-unit apartment building; and Boatworks, which includes 67 townhomes and a 29-unit apartment building.

In addition, Tim Lewis Communities recently submitted to the Planning Board a draft Master Plan for development of the former Del Monte warehouse.  The residential component of the plan calls for 410 housing units, including 27 one-bedroom units, 162 two-bedroom units, and 20 three-bedroom units.  According to the staff report, “the project is envisioned as a mix of rental and for-sale units.”

And then there’s Alameda Point.  Last month, in its recommendation to issue requests for qualifications to potential developers, staff “assigned” 800 of the 1,425 housing units planned for the Point to the Town Center sub-area.  Under the Alameda Point zoning ordinance passed this January, all of these units will be multi-family, since residential development in the Town Center is restricted exclusively to multi-family housing.

So let’s put it all together.  As things stand now,

  • The City of Alameda has 15,177 units of multi-family housing (or, to put it another way, 15,635 renter-occupied units);
  • The zoning ordinance permits – as of right – construction of an additional 2,306 units of multi-family housing outside Alameda Point;
  • Almost 300 units of new multi-family housing already have been approved, and another 400 or so are in the pipeline;
  • Developers are being sought to build 800 units of multi-family housing at Alameda Point.

It is tempting to conclude from these facts that Alameda has done pretty well, thank you, when it comes to multi-family housing, Measure A notwithstanding.  Which leads one to wonder:  How did all this happen while the prohibition on multi-family housing was still on the books?  Especially when, as a City Charter provision, Measure A can only be amended by a two-thirds vote of the electorate.

The answer lies in three ordinances passed by Council in 2009, 2012, and 2014.

The first was the Density Bonus Ordinance.  It provides that, if a developer agrees to reserve a specified percentage of the units in a project for affordable housing, the City “shall” grant a “density bonus” entitling the developer to build additional market-rate units.  A developer who qualifies for a density bonus also may apply for a waiver of “development standards that will have the effect of physically precluding the construction of” the project.  As interpreted by City staff, this waiver may cover both the multi-family prohibition and the 21-dwelling unit per acre limitation imposed by Measure A.

Not surprisingly, the developers at Alameda Landing and the Boatworks asked for, and received, Measure A waivers.  Tim Lewis Communities, the developer of the Del Monte warehouse, has announced it intends to make a similar request and, so, undoubtedly, will the eventual developer of the Alameda Point Town Center.

The second ordinance was the zoning amendment passed by Council when it adopted the 2007-2014 Housing Element in July 2012.  The amendment created a new category called the “Multifamily Residential Combining Zone,” which permitted “by right, without a conditional use permit or other discretionary review other than design review,” seven specific housing types, including multi-family and townhomes.  As discussed above, Council promptly slapped the new zoning designation on 16 separate parcels with a “realistic capacity” of 2,306 units.

The third ordinance was the zoning amendment for Alameda Point passed by Council this January.  As noted earlier, it provides that residential development in the Town Center sub-area is restricted exclusively to multi-family housing, which also is “conditionally” permitted in two other sub-areas.  Single-family homes may be built only in the Main Street neighborhoods, the sub-area north of West Tower Avenue that includes the Big Whites, and “conditionally” in one of the three Enterprise sub-areas.

There were some who wondered, especially when the Housing Element was adopted, how ordinances passed by Council could trump a Charter provision enacted by the voters.  The glib response offered by the politicians and City staff was that “state law required” the City to take the actions it did.

Well, yes and no.  True, the state density bonus law authorizes a developer to apply for, and a city to grant, a waiver of “any development standard that will have the effect of physically precluding the construction” of a project qualifying for a density bonus.  The statutory language is ambiguous, since it conjures up images of George Wallace standing in the schoolhouse door and “physically precluding” students from going inside.  But City staff has interpreted the statute to allow the City to waive the prohibitions and limitations imposed by Measure A, and no one ever has challenged their stance in court.

Similarly, the state housing element law requires that, if a city does not have sufficient sites in its land inventory to meet the quotas set forth in the Regional Housing Needs Assessment (“RHNA”), it must re-zone enough parcels to enable it to hit the RHNA numbers.  As we previously have pointed out, however, state law does not require a city to re-zone additional sites beyond those necessary to satisfy its RHNA obligations.  Yet this is what the City of Alameda did in July 2012.

In any event, this argument doesn’t work for the zoning amendments for Alameda Point.  Zoning the Town Center sub-area exclusively for multi-family housing wasn’t necessary to enable the City to meet its RHNA quotas.  Indeed, Alameda Point wasn’t included at all in the 2007-2014 Housing Element (and it isn’t included in the 2015-2023 Housing Element, either).  Nor did any other state law “require” the City to zone the Town Center to permit only housing that Measure A prohibits.  Yet this is what the City did this January.

(One cannot help but note the irony.  For years, the issue of whether to “exempt” Alameda Point from Measure A was a hot topic.  Indeed, if memory serves, there was even a ballot initiative in which a developer whose name escapes us – Sun King or something like that – sought voter approval for such an exemption.  Apparently, the politicians concluded they could accomplish the result the voters rejected – resoundingly, by the way – by the simple expedient of passing an amendment to the zoning ordinance.  And City staff takes the position that it’s all perfectly legal as long as the developer avails itself of the Density Bonus Ordinance.)

Until someone brings a lawsuit and convinces a judge to overturn the Density Bonus Ordinance or the zoning amendments, those ordinances remain the law of our land.  As such, they, as much as or more than Measure A itself, will govern the future of multi-family housing in Alameda.

We’ve now reached the end of our tour of the current landscape.  As we’ve seen, Measure A has not prevented the development of multi-family housing on the island.  Nor, thanks to the Density Bonus Ordinance and the zoning amendments, will it stand in the way of future multi-family projects.

So we’ll pose this question:  What would be wrong with leaving the status quo alone?  Having weakened Measure A so significantly through Council action, why go to the voters to repeal it altogether?

In our next installment, we’ll try to outline how housing advocates would answer that question.

Sources:

Measure A:  Article XXVI of Alameda City Charter

Inclusionary Housing Ordinance: 30_16_INCLUSIONARY_HOUSING_REQUIREMENTS_FOR_RESIDENTIAL_PROJECTS

Density Bonus Ordinance:  30_17_DENSITY_BONUS_ORDINANCE

Multi-Family Residential Combining Zone Ordinance:  MF Residential Combining Zone ordinance

Alameda Point zoning ordinance amendment:  Zoning ordinance amendment

2007-2014 Housing Element:  2007-14 Housing Element Final

Draft 2015-2023 Housing Element:  2014-03-10 staff report to PB — Ex. 1 – Draft Housing Element

Alameda Landing:  2012-12-10 staff report to PB re Alameda Landing application

Boatworks:  2011-07-11 staff report to PB re Boatworks

Del Monte warehouse:  2014-04-28 staff report re DelMonte master plan

Staff report re RFQs for Alameda Point:  2014-04-15 staff report re RFQ

Bay Area Census:  Bay Area Census — City of Alameda

American Community Survey:  ACS_12_5YR_S0801

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.

5 Responses to Whither Measure A? (Part I: Overview)

  1. Denise Lai says:

    In Alameda County, and in our state, no one cares to enforce violations of municipal law: not a grand jury, not the DA, and not the AG. Been there, tried that, with substantive evidence of not just one wrongdoing, but multiple events, trends if you will, of wrongdoing. So there’s that.

  2. Darcy Morrison says:

    It’s my understanding that the argument against Measure A went well beyond the Density Bonus Ordinance, and that the city had to zone some areas with a minimum of 30 units per acre to get the most recent Housing Element certified. It was the 30 units per acre requirement that led to the “multi-family overlays” (or whatever), and it’s not possible to reach that number with the Density Bonus alone. It’s something like 21 units per acre under Measure A, plus another 7 or so with the Density Bonus, which falls short of the 30 unit minimum.

    When you ask how we got to this point (with regard to multi-family housing) — much of it was built before Measure A went into effect, so I assumed, like all the condo/apt buildings along South Shore.

  3. MI says:

    Robert, you wrote:”As we’ve seen, Measure A has not prevented the development of multi-family housing on the island.” But it did from the time of passage until the density bonus was invoked didn’t it? It also blocked the original Bay Farm plan with towers didn’t it?

    You previously did an excellent critique of all the technical deficiencies in Johnson’s article, but I wince when you as much as beat your chest about Johnson trying to imply we are still an all white enclave etc. Oh the injustice! Johnson seemed to want to put a final nail in the coffin of Alameda’s legacy of housing discrimination, which is historically undeniable, by celebrating density bonus trumping our draconian Measure A. Good for that, but he muddied his attempt by mauling the facts and conveniently omitting broader context. Neither Alameda or America are post racial, but as provincial as Alameda was in 1970’s and continues to be in many ways I can’t buy that race and fear of Oakland was the number 1 abiding motivation for the majority who voted yes on Measure A. It seems futile to linger over a debate on that particular debate. It is worth noting that a good deal of support for the recent license plate scanners comes from folks who deplore the “killing fields” of Oakland being “ten feet away”, but to my eye the discussion of density now seems to go well beyond race.

  4. Doug Biggs says:

    Robert, you appear to be doing a Chip Johnson of your own in the way you use the terms rental and multi-family interchangeably. Not all rental housing is multi family, and not all multi family is rental. In your own statistics, you state that 53% of all rental units are single family. That would mean that less than 25% of all housing in Alameda is multifamily rental, not 52% as you claim further down.

    • Doug,
      I don’t believe the piece either states that “53% of all rental units are single family” or implies that 52% (or 25%) of all housing in Alameda is “multifamily rental.”

      It says that 51.9% of total housing units are renter-occupied. And that’s what the 2010 Census, from which these figures are taken, states.

      It also says that 53% of total housing units are single-family. And that’s what the chart on p. 18 of the Housing Element Background Report, from which these figures were taken, states.

      I didn’t find any source that purported to state what % of total housing units were “multi-family rental,” which is why the piece did not use that phrase or provide that number.

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