Ever since the City ended its relationship with SunCal and staff took over development planning for Alameda Point, we’ve known that the planners were working to ensure that multi-family housing would dominate residential development at the former naval air station.
But even as the various plans sailed through the former Council, one question kept recurring, at least to those not on the dais: How did the planners intend to deal with Measure A, the Charter provision prohibiting multi-family housing and restricting density to one unit per 2,000-square feet (i.e., 21 units per acre)?
Now we know the answer.
Staff has not chosen to ask Council to go to the voters for approval to amend Measure A or exempt Alameda Point from its strictures. Nor has staff proposed to apply the “multi-family overlay” created by the former Council to the Point. Instead, it has found a more circuitous route around the Charter.
Alameda Point Partners, the outfit selected to develop Site A, will submit an application under the City’s density bonus ordinance. But, unlike every other developer who has made such an application, Alameda Point Partners will not request any “bonus units” for its project. All it will seek is a waiver – of the ordinance implementing Measure A’s prohibition of multi-family housing.
And you know what? This strategy might very well work.
Let’s start with a bit of history:
Cognizant of Measure A, neither the Community Reuse Plan of 1996 nor the Preliminary Design Concept of 2006 contemplated multi-family housing at the Point. SunCal, of course, had other ideas: the specific plan it ultimately came up with provided for a total of 4,845 housing units, of which 1,100 would be multi-family units.
SunCal chose to take the Measure A obstacle head on, submitting an initiative to the voters that, among other things, would exempt its project from Measure A. At the time, even some of those in the Inner Ring agreed this was an issue the electorate ought to resolve.
“Measure A is, indeed, the law for all development until such time as the voters decide it shouldn’t be,” the then-chair of the Transportation Commission, one John Knox White, wrote in Alameda Magazine in 2009. “So in the end, it is the community (or at least the voters) of Alameda who decide where we should go with housing development. . . .”
But the voters overwhelmingly rejected the SunCal initiative. And this defeat, we suspect, disabused the advocates of multi-family housing of any notion of putting their plans for the Point in the voters’ hands.
Staff got a chance to lay the groundwork for multi-family housing at the Point when it prepared the 2007-14 Housing Element. As part of that effort, staff proposed – and the former Council approved – creating a new zoning designation called the “multi-family overlay” that permitted multi-family housing with a density of 30 units per acre. The Housing Element then slapped the new designation on 16 parcels throughout the City.
But Alameda Point wasn’t among them.
At the time, staff claimed that the explanation for omitting Alameda Point was that the City didn’t yet own the land; the Navy did. But zoning doesn’t depend on ownership, and, indeed, the Housing Element applied the “multi-family overlay” to the North Housing parcels, which likewise were still owned by the Navy.
Instead, we suspect the real reason for the omission had something to do with Measure A. Staff was able to defend the creation of the multi-family overlay and the accompanying re-zoning as being essential to enable the City to meet its obligations under the state housing element law, which arguably preempted Measure A. But that justification wouldn’t wash for parcels for which re-zoning wasn’t necessary to facilitate compliance with state law. And there was no need to re-zone Alameda Point for that purpose, since the 16 other re-zoned parcels already satisfied the City’s regional housing needs assessment quota.
(With the benefit of hindsight, we now suspect there might have been another reason as well: The “multi-family overlay” limited density to 30 units per acre, and staff may have been concerned that wouldn’t be high enough for what the planners had in mind for Alameda Point).
In the meantime, the planning efforts for multi-family housing at the Point proceeded apace.
With active assistance from the visionaries on the Planning Board, staff prepared – and the former Council endorsed – a “Conceptual Planning Guide” that called for multi-family housing both at the Waterfront Town Center at the heart of the Point and in the Main Street Neighborhood at its northeast corner.
Thereafter, these “concepts” were embodied in a zoning ordinance that permitted only multi-family housing in the Waterfront Town Center and left open the possibility of multi-family housing in the Main Street Neighborhood as well. In addition, unlike the zoning regulations for other areas in the City, the Alameda Point zoning ordinance did not specify a maximum density for residential development. (Again with the benefit of hindsight, this omission does not appear to have been inadvertent).
Next, staff commissioned – and the former Council approved – a “precise plan” for the Waterfront Town Center that provided for “lower-density multi-family residential use” – two-to-three story townhouses and “walk-up flats” – along Ralph Appezzato Memorial Parkway and “increased residential density” – three-to-five story apartment buildings – nearer the Seaplane Lagoon.
Finally, with the former Council’s approval, staff sent out requests for qualifications for developers for Site A, a 68-acre parcel located in the Waterfront Town Center. The request stated that a minimum of 800 housing units – staff never explained why it had selected 800 as the magic number – would be built on the site. It described the City’s “affordable housing” requirements for the Point and noted that the developer would be required to submit a density bonus application “to facilitate multi-family housing development consistent with the Town Center Plan.”
The winner of the competition was the newly formed Alameda Point Partners, a consortium led by Alameda commercial developer Joe Ernst. In addition to agreeing to build an 800-unit project, Alameda Point Partners proposed to reserve 25% of the units as “income-restricted affordable homes.”
Since its selection, Alameda Point Partners has submitted various site plans to the Planning Board and Council. The latest, which will be presented to the Planning Board on Monday, shows that residential development is planned on seven “blocks” totaling 18.49 acres:
- Three of the blocks contain a total of 164 townhomes; another two contain a total of 288 “residential podium” units (which we think means apartments), and one contains 220 unspecified residential units.
- The final block contains 128 units of “affordable housing.” According to the staff report, the remaining 72 “affordable” units will be “dispersed throughout the market rate buildings on the other residential blocks.”
All told, the site plan provides for 800 units on the 18.49 acres – i.e., an overall density of 43.27 units per acre.
With this latest submission came the answer to the Measure A question in the form of a letter to City staff. The letter never mentions Measure A by name. Nevertheless, it states that, “[a]s part of our efforts to develop Site A in line with the City’s vision,” Alameda Point Partners is “requesting a waiver” of the Municipal Code section that implements Measure A’s prohibition of multi-family housing.
The request is made, the letter continues, “pursuant to” the section of the density bonus ordinance authorizing waiver of “development standards” that “would have the effect of physically precluding the construction” of a project qualifying for the density bonus “at the densities or with the concessions or incentives permitted.” Without a waiver, the letter avers, the prohibition of multi-family housing “physically precludes us from accommodating all 800 units on the site.”
So what’s going on here? It’s a two-step process.
First, by agreeing to comply with the City’s “affordable housing” requirements for the Point, Alameda Point Partners also qualifies for the benefits made available by the density bonus ordinance.
Neither the developer’s compliance with those requirements nor its eligibility for those benefits can be questioned. In its letter to City staff, Alameda Point Partners states that, “[t]wenty five percent (25%) of our housing units will be restricted to be affordable for very-low-, low-, and moderate income households, including 6% very-low-, 10% low-, and 9% moderate income households.”
As it happens, those are exactly the percentages in each income category required by the resolution implementing the settlement agreement between the City, Renewed Hope, and Arc Energy and establishing the “affordable housing” requirements for the Point. Likewise, the percentages for both very-low and low-income housing meet the criteria set by the density bonus ordinance (5% for very-low income and 10% for low income).
As a result, Alameda Point Partners is entitled under the ordinance to a “density bonus,” “incentive and concessions,” and “waivers.” Now onto the second step, and here’s where it gets a little tricky.
Ordinarily, a developer submits an application under the density bonus ordinance because it wants a density “bonus” – i.e., additional market-rate units – for its project. As one court explained, the state density bonus law “reward[s] a developer who agrees to build a certain percentage of low-income housing with the opportunity to build more residences than would otherwise be permitted by the applicable local regulations.”
This is, in fact, the purpose for which residential developers previously have used the density bonus ordinance in Alameda:
- For the Boatworks development, as originally proposed, the “base project” – i.e., a project whose density complied with the existing zoning ordinance – consisted of 140 units. By agreeing to reserve nine per cent of this total for “very low” income households, the developer qualified for a 30 per cent density bonus of 42 market-rate units.
- At Alameda Landing, the “hypothetical Measure A-compliant project” consisted of 227 units. By agreeing to reserve six per cent of this total for “very low” income households, the developer qualified for a 22.5 per cent density bonus of 51 market-rate units.
- Most recently, for the Del Monte warehouse development, the existing zoning ordinance allowed for building up to 342 units on the site. By agreeing to reserve five per cent of this total for “very low” income households, the developer qualified for a 20 per cent density bonus of 68 market-rate units.
But that’s not how Alameda Point Partners intends to use the density bonus ordinance. Indeed, its letter to City staff expressly disclaims any such intent: “we are not requesting any additional bonus units, or any financial incentive or financial concession.”
Why not? The letter doesn’t say, but we suspect the reason is that, if Alameda Point Partners sought a density “bonus,” it would end up with fewer units than it needs for an 800-unit project.
As the examples of previous projects show, the starting point in computing the density bonus is to determine the number of units in the “base project” – i.e., one consistent with the “otherwise allowable residential density” standards. The statute contains tables showing varying percentage bonuses depending on the type, and amount, of low-income housing included in the project. The appropriate percentage is applied to the number of units in the base project to get the number of bonus units.
In this case, as we pointed out, the Alameda Point zoning ordinance does not set forth any density standards for residential development. With nothing (other than the Charter) to guide it, Alameda Point Partners attached to its letter to staff a drawing showing a Measure A-compliant project of 265 single-family homes. But if this is considered the “base project,” the maximum 35% density bonus would yield only 93 bonus units. This would be nowhere near enough to enable the developer to reach the 800-unit goal.
We suspect this also would be true even if the “base project” consisted of a development with the density allowed by the “multi-family overlay.” If one assumes that a multi-family project would contain half again as many units as a single-family project (30 units per acre compared to 21 units per acre), the “base project” would grow to 398 units. The maximum 35% density bonus would then yield 139 bonus units. That’s still not enough to get to 800.
Even with the bonus units, Alameda Point Partners thus could not build the project it wants to build (and the City planners want it to build) in compliance with the existing zoning laws. To build that project, the developer needs no cap on residential density and a waiver of the prohibition of multi-family housing.
The Alameda Point zoning ordinance took care of the former. The density bonus ordinance offers the opportunity for the latter.
Under the ordinance, when a developer proposes a project qualifying for a density bonus, it “may submit a proposal for waiver of development standards that would have the effect of physically precluding” construction of the project “at the densities or with the concessions or incentives permitted.” The governing body has no discretion to deny the request for a waiver. Rather, the City “shall” grant the requested waiver unless it makes one of four specific findings listed in the ordinance (none of which appears possible in this case).
Two of the three previously approved density bonus applications contained requests for Measure A waivers. Both were granted. It was surely reasonable for staff to expect, when it issued the request for qualifications, that the Council then in office would grant a Measure A waiver to the developer staff ultimately selected for Site A. And we don’t doubt that staff and Alameda Point Partners are counting on the current Council to go along, too.
This result will please the multi-family housing advocates, who will see their “vision” for Alameda Point come one step closer to realization. It will also please the “affordable housing” advocates, who will see more “affordable” units in the project than the 25% requirement would have produced if either the Measure A density limit or the multi-family overlay density standard was applied.
The result won’t please the dwindling band of Measure A supporters. But we’re afraid there may not be much of anything they can do about it.
Yes, the Municipal Court section Alameda Point Partners wants the City to waive is derived from Measure A. Yes, Measure A is part of the City Charter. Yes, only the voters can approve a Charter amendment; Council can’t do it on its own. And, yes, if Council can’t amend a Charter provision, it shouldn’t be able to “waive” it, either.
All of these propositions are true – but they’re not enough to overcome the rule that, where the state Legislature has spoken, a city, even a charter city, can’t stand in its way.
As one court has stated, the density bonus law is one of several statutes reflecting an “important state policy to promote the construction of low-income housing and to remove impediments to the same.” In such a case, any municipal law that interferes with achieving the “important state policy” falls by the wayside.
Under the preemption doctrine, a court probably would hold that the state density bonus law trumped Measure A even if the statute did not contain an express waiver provision. By including such a provision, the law simply enables Council to do what a court would order it to do anyway: not enforce – i.e., “waive” – the ordinance prohibiting multi-family housing if it blocks a project that qualifies for a density bonus. Council doesn’t have to wait for an order from a judge; it’s already gotten authorization from the Legislature.
From a legal perspective, the strategy being used by Alameda Point Partners to get around Measure A seems well-founded. Nevertheless, we confess we will be somewhat troubled if that strategy succeeds.
Part of the reason for our discomfort is that we tend to agree with the position taken by Mr. Knox White years ago: The voters should decide – or, at least, get a say in deciding – whether to jettison a law that they put into the Charter in the first place; a simple majority of Council shouldn’t be able to turn that law into a dead letter. This is especially so since the voters very recently refused to amend Measure A to allow multi-family housing at the Point. (Yes, we realize there were plenty of grounds to vote against the SunCal initiative, but opposition to the charter amendment surely was one of them). Call us a democrat with a small “d.”
But there’s another reason for our unease: the avoidance strategy strikes us as, well, just a little bit too clever.
Thinking about it, we were reminded of the Jack Nicholson character in “Five Easy Pieces” who wanted only an order of wheat toast. When the waitress said that wasn’t on the menu, Nicholson ordered a chicken salad sandwich on toast, then told the waitress to hold the lettuce, hold the mayonnaise, hold the chicken salad, and just bring him the toast. Here, the density bonus application is like the order for the chicken-salad sandwich. Hold the incentives and concessions, Alameda Point Partners is saying to the City. Hold the density bonus itself. Just give us the waiver.
The difference may be this: Unlike Nicholson, Alameda Point Partners may end up getting exactly what it wants. We wouldn’t bet otherwise. If so, the “A” in Measure A truly will have come to stand for “Abandoned.”
Alameda Point “Conceptual Planning Guide”: 2013-07-23 Ex. 1 to staff report – Conceptual Planning Guide
Waterfront Town Center “Precise Plan”: town_center_and_waterfront_precise_plan
Alameda Point zoning ordinance: 2014-02-04 – Alameda Point Zoning Ordinance
Request for qualifications for Site A: 2014-09-16 Ex. 2 to staff report (RFQ – Site A)
Alameda Point Partners draft development plan: 2015-02-23 Ex. 1 to staff report to PB – Draft Development Plan
Alameda Point Partners February 11, 2015 letter to staff: 2015-02-23 Ex.3 to staff report to PB re Site A – Letter from APP Providing Evidence for Waiver of AMC 30-53
Prior density bonus applications: 2011-07-11 staff report to PB re Boatworks tentative map & density bonus (Boatworks); PB-12-20 PLN12-0265 Alameda Landing Residential PD Resolution – Final PB approved (Alameda Landing); Ordinance – Del Monte Master Plan (Del Monte)
Measure A: Article XXVI of Alameda Ciry Charter
Alameda Municipal Code section 30-53: Alameda Municipal Code section 30-53
Density bonus ordinance: 30_17_DENSITY_BONUS_ORDINANCE
Resolution establishing “affordable housing” requirements for Alameda Point: CIC Resolution 4-128