“Waive” goodbye to Measure A at Alameda Point

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.”

Page 6 - Illustrative Site Plan

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.Page 10 - Land Use Diagram
  • 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

About Robert Sullwold

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

10 Responses to “Waive” goodbye to Measure A at Alameda Point

  1. 2wheelsmith says:

    Outstanding analysis of the waiver proposed by City staff for Alameda Point Site A. I appreciate staff’s creative waiver as I have spent two decades advocating for more economical and environmentally sustainable housing at Alameda Point. With the waiver, the City can permit the sustainable development of Alameda Point today rather than wait another 20 years for the sentiment of the majority of Alamedans to change to favor multi-family housing.

    I agree with the Merry-Go-Round that there remain many legitimate concerns with the project, including how the new residents, employees, and customers will travel to and from Site A. As I support the construction of more housing and commercial space like Site A in Alameda, I have every reason to push the City and Alameda Point Partners to address citizens concerns rather than simply pay lip service to those concerns. By actually addressing traffic concerns, we can insure that travel times in Alameda remain acceptable and that new for-profit and non-profit developers will propose more projects to provide the tax and sales base we need to fund, on an ongoing basis, civic amenities like the Jean Sweeney Open Space, the sports complex, and perhaps one day a civic cultural center such as the Dean Lesher Center in Walnut Creek.

    With the waiver to the City’s ban on multi-family housing in place, we can focus on planning transportation alternatives to the single passenger automobile such as shuttle, bus, bicycle, roller boarding and walking. More usage of these alternative transportation services will be essential to maintaining acceptable trip times on and off the Island.

  2. Marilyn Pomeroy says:

    Sounds like you are saying, lets not wait until the current crop of voters are dead to ignore their wishes. Why not just round them up and arrest them all. That is what happens to dissenters in non-democratic societies, Egypt for example. Your approach does not sustain our way of life, neither as Alamedans or as Americans. Once these projects are built, and the lip service paid to traffic mitigation is identified as exactly that, it will be too late. There is nothing in the current plan that gives us hope that we aren’t on the way to becoming another Walnut Creek, (Dean Lesher Center, indeed). Have you checked out it’s public transportation system? How many people on bikes do you see downtown? How’s the traffic?

    • 2wheelsmith says:


      I share your concern that traffic will increase – and am committed to mitigating such increases. I am willing to tolerate a modest increase in trip times if absolutely necessary to keep friends in town. They tell me that they will gladly wait ten extra minutes to get on and off the Island in exchange for the opportunity to continue living here in new and modern apartments.

      I doubt that they would be willing to wait and extra hour to get on and off the Island, though. So I’ll be watching closely to see if the new transportation plans work as expected by the authors. If the plans don’t work as expected, I’ll be recruiting you to push for a development moratorium until we can assure ourselves we can manage traffic to maintain reasonable (defining reasonable is where I suggest we start a discussion) trip times.


      • Marilyn Pomeroy says:

        I am afraid that waiting to see what will happen with the traffic will make it too late to put a moratorium on development. I think the suggestion (Daysog) that we take a break now until we have completed a city wide study which includes all projects currently in the pipeline is the only reasonable way to go. The people of Marin played the wait and see game, and look at the mess they are in now. It is convenient to couch the discussion in “equality” terms, by which I mean equal housing opportunity for all, but when you take a trip to Alameda Landing, you get an idea of what we are in for with people transiting TO the island to shop. That center will be huge when it is built out, and it is clearly not for people who already live here.
        Regarding the legality of Measure A, I am not an attorney, but if the law stands on president, show me an island city such as ours that was legally bared from making policy regarding development. Indeed, we should have more public policy in place, not less.
        Another old saw, that development creates jobs is designed to attract supporters, but how many of those jobs go to folks that already reside in our fair city? A creative public policy would be one that encourages local companies to hire local people, discourages people from getting in their cars, and pays workers a rebate for using public transportation. If our future is inevitable, at least we should not wait to be hit over the head before we take steps to shape it in the best possible way.

  3. Paul Foreman says:

    Is Measure A constitutional? I have some memory of reading case law several years ago that indicated that a city cannot totally zone out a reasonable land use. They
    can only reasonably limit it to certain zoned neighborhoods. Do you have an opinion on this?

    • Paul,
      I’ve never read about any challenge to the constitutionality of Measure A, which was passed more than 40 years ago, but I haven’t done any research on the issue, so I can’t express an opinion.

      • 2wheelsmith says:

        There was one challenge to Measure A that went to the California Supreme Court 20 to 20 years ago. The City offered the plaintiff, Alamedan Ed Murphy, a large sum of money (more than $1 million dollars is the rumor I’ve heard) to settle before the court heard it, and he did settle. I’ve always wished he had not settled.

  4. Paul S Foreman says:

    I practiced law in Pennsylvania until 1990. I have located the case on line. It is Appeal of Girsh, a 1970 decision of the Supreme Court of Pennsylvania. The full text is at http://aalto.arch.ksu.edu/jwkplan/cases/girsh.pdf
    I do not have the library facilities to determine if it continues to be the law of Pennsylvania but it is cited on other web sites. It clearly holds that the exclusion of multi-family housing, even in a city of only 13,000 residents is unconstitutional exclusionary zoning.
    Of course, it is not binding on California, but given California’s housing element and density bonus laws, I would be very surprised if our courts would not come to the same conclusion.
    I believe that Measure A has never been challenged, but its legality is questionable.
    I opposed Del Monte and am very concerned about the proposed density of Site A at the Point, but I do not think that the battleground should be Measure A. The battlefield terrain is much more favorable on environmental and traffic issues.

  5. Eugenie Thomson P.E. says:

    Measure A was a traffic issue even though 40 years. And George Beckman one of the three leading the Measure A initiative was a traffic engineer and he lived on Fernside Boulevard.

    If Council wants to change Measure A they should go to the voters to do so. ( as per The State Elections Code)

    With respect to Alameda Point and Transportation Demand Strategies like riding bikes to work could reduce all the congestion, I agree with Marilyn, we need to know about traffic now and not afterwards.

    For example, why didn’t the Council nor Planning Board nor Transportation Commission require a condition in the Del Monte Development Contract to build more parking spaces, if later the car registrations of its occupants proved to be significantly higher than their supply? ??? .
    What is wrong with requiring the developer, at a later date, to rebuild for more parking if the transportation strategy to reduce the parking fails??

    The same is true for traffic, we are an island and there is no money to build another estuary crossing other than a 100 year dream to build BART at Ala PT. If that is a City dream why not land bank Alameda Point and give the land to BART.??

    There should be a moratorium on all development applications now.
    And we need a reality based Traffic Study
    not the ridiculous
    conclusions in the Del Monte study and the Alameda Point Project EIR. Both these studies concluded only one more car outbound in the morning at all the estuary crossing from the new 1425 homes and 9000 jobs at Ala Point. That coupled with no congestion approaching the Posey Tube in the morning after all development including Alameda Point is built.

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