The end of Measure A?

Ever since July 2012, when Council adopted what it called the “multi-family overlay” and slapped it on 12 separate parcels designated for residential development around town, the Merry-Go-Round has been sounding the death knell for Measure A, the provision in the City Charter prohibiting multi-family housing and limiting residential density in Alameda.

In fact, approvals for multi-family residential projects have burgeoned since then, as, with the concurrence (and apparent approbation) of Council and the Planning Board, developers have maneuvered their way around the Charter by relying on the multi-family overlay or by taking advantage of the waivers offered by the density bonus ordinance.  By our count, nine projects containing 3,467 units of new multi-family housing have used these techniques since July 2012:

Project	M-F         Units	M-F Overlay	Measure A         Waiver
Alameda Landing residential	193		X
Marina Shores	37	X
Del Monte warehouse	380	X
Alameda Point Site A	800		X
2100 Clement Avenue	52		X
Encinal Terminals	589	X
Alameda Marina	760	X
Shipways	329	X
Alameda Landing waterfront	327		X
Total	3467

Yet all the while, Measure A – codified as Article XXVI of the Charter – has remained on the books.

It may not be there for much longer.

We learned this week that the Charter revision committee appointed by Mayor Marilyn Ezzy Ashcraft and consisting of Vice Mayor John Knox White and Councilman Tony Daysog is considering – and has been considering for some time – whether to recommend a Council-sponsored ballot measure to remove Article XXVI from the Charter.

The two Council members did not include repeal of Measure A in the list of “potential Charter issues for community discussion” they presented to Council on April 2 (although Mr. Knox White suggested that this was what he meant by the reference in the list to “Remove housing restrictions, move language to municipal code.”)  Moreover, until very recently, there has been no “community discussion” about getting rid of Measure A:  Public Information Officer Sarah Henry told us that she did not recall any dialogue about Measure A at either of the two City-sponsored “workshops” held by the League of Women Voters to discuss potential Charter revisions, nor was it among the six issues about which the City solicited feedback from residents on the website.

It fell to Andrew Thomas, AICP, head of the City’s Planning, Building and Transportation Department, to lift the veil at the October 14 Planning Board meeting.  In presenting the schedule for the rest of the year, Mr. Thomas announced that on December 9, the Planning Board will hold a “public forum” on Measure A.  The Board will not be asked for its “political advice,” he added, just for its evaluation of the Charter provision “as a land-use regulation.”  Presumably, any citizen will get the usual three minutes during the public-comment period to speak to the issue.

As it happened, the very next day, the Alameda Citizens Task Force held a meeting at which Messrs. Knox White and Daysog were invited to present a progress report on their work – and they disclosed that changes to Measure A was one of the top two items on their current list of potential recommendations.  (The other was a revision to the Charter ban on interference by Council members in the hiring process.)

Now, one might be tempted to ask:  What’s the big deal?  If so much multi-family residential development is occurring anyway despite Measure A, why not take it out of the Charter altogether?

Well, repeal would be a big deal – and let us cite some of the reasons why.

First and foremost, if Article XXVI were removed from the Charter, Council would get the power to change the City’s residential-development standards in whatever ways a three-person majority wanted to (as long as they didn’t violate state law).

Allow multi-family housing to be built on any residential parcel anywhere in the City?
Done.

Allow 50, 75, 100 – or more – housing units to be crammed onto a single acre?
Done.

A Charter provision, of course, overrides an ordinance, so if a three-person majority tried to enact either of those laws today, the courts would slap it down, since the former violates section 26.1 of the Charter (the “multiple dwelling” prohibition) and the latter violates section 26.3 (the density limitation).  But with Article XXVI gone, these barriers would fall, and the Council majority would gain a free hand.

In that event, the Alameda City Council would be able to accomplish locally what State Senator Scott Weiner has been trying unsuccessfully to achieve on the state level – and more.

During the last two legislative sessions, Senator Weiner has introduced bills designed to facilitate the construction of dense, multi-family housing statewide by invalidating municipal laws, like Measure A, that stand in the way of attaining that goal.

The most recent bill, SB 50, would prohibit cities from restricting small and medium-size apartment buildings within a half-mile of rail stations and ferry terminals and within a quarter-mile of stops on bus lines with frequent service.  It also would bar cities from imposing density limitations in so-called “jobs-rich areas” – i.e., higher-income census tracts close to employment opportunities and good schools – regardless of whether they were near transit stations.  Finally, SB 50 would create an expedited process to transform vacant lots and single-family homes into apartment buildings of up to four units.  (At the end of this piece is a link to a neat chart prepared for Curbed SF by Berkeley illustrator Alfred Twu that summarizes SB 50 as of May 1.)

SB 50 passed the Senate Governance and Finance Committee, but it stalled in the Appropriations Committee, which made it a “two-year bill” that can’t be voted on until January 2020.

If Measure A were repealed, land-use restrictions like those targeted by Senator Weiner would go away in Alameda.  By majority vote, Council could then adopt a local ordinance permitting fourplexes on every residential lot as well as apartment buildings in “jobs-rich” areas or neighborhoods near bus stops.  Or it could go even further than SB 50 and cut a broader swath for dense multi-family housing throughout the city.

Naturally, changes like these would make life easier in Alameda for anyone who wants to develop a multi-family residential project.  But there is at least one unintended consequence to note.

At present, if a site is not covered by the multi-family overlay, a developer who wants to build a multi-family project must get a waiver of Measure A by using the density bonus ordinance.  The developers of Site A at Alameda Point, the Alameda Landing residential and waterfront areas, and 2100 Clement Avenue all took this route.

But the waiver comes with a price tag.  Under the density bonus ordinance, a developer may obtain a waiver of the multi-family prohibition only if its project contains a higher percentage of very-low-, low-, or medium-income housing than the City’s inclusionary housing ordinance requires.  The right to build a multi-family project thus is conditioned on an obligation to increase the number of affordable units.

Developers soon discovered an easy way to satisfy this condition:  The project doesn’t  have to beat the inclusionary housing percentages in every income category; one is enough.  And the way the categories work, increasing the percentage of very-low-income units just from 4% to 5% not only entitles the developer to a waiver of the multi-family prohibition but also results in a 20% density bonus, which enables it to build significantly more market-rate units on the site.  Tim Lewis Communities used this trick for both the Del Monte warehouse and Encinal Terminals; the developers of the Alameda Marina, the Alameda Landing waterfront, and 2100 Clement Avenue all did the same.

What this means is that the price for obtaining a waiver of Measure A may not have been as high as it could have been (or, to put it another way, the affordable-housing benefits weren’t as great).  But if Measure A is repealed, there won’t be any price paid (or benefits realized) at all.

While we’re on the subject of the density bonus ordinance, we’ll point out another way in which repeal of Measure A, followed by enactment of a zoning ordinance favorable to multi-family housing, would affect the nature and extent of residential development in Alameda.

Under the ordinance, the number of “bonus” units is calculated based on the number of units permitted under the existing zoning.  For post-July 2012 developments (or portions thereof) not covered by the multi-family overlay, the “base project” is determined by multiplying the acreage by 21.78 units per acre, the maximum density permitted by Measure A.  Thus, for example, 27 units were permitted on the 1.25 acres of the Encinal Terminals site zoned “MX.”  Applying the 20% density bonus to this base gave Tim Lewis (or whomever it flips the site to) five more units for a total of 32 units on this portion of the site.

But if Measure A were repealed and replaced with a new zoning ordinance, the “base project” will be determined using a presumably more generous density figure.  Suppose Council stuck with the 30 units per acre allowed by the multi-family overlay.  Under this scenario, 38 units will be permitted on the 1.25 acres, and applying a 20% density bonus will give the developer eight more units for a total of 46 units.

In short, the density bonus ordinance magnifies the impact of repealing and replacing Measure A.  The result is even more new multi-family housing units in the city.

Thus far, we’ve been focusing on sites that are already designated for residential development.  Council, of course, can add parcels to this inventory by re-zoning property not currently zoned for residential use.  But Measure A makes this an unattractive option if the goal is to increase multi-family housing:  Why re-zone a commercial lot to residential if all a developer can build there is single-family homes or duplexes?

If Measure A were repealed, the calculus changes:  Now, the re-zoned property would not be confined to single-family homes or duplexes or restricted to a density of 21.78 units per acre.  Instead, Council could decide to allow as many units of multi-family housing on the re-zoned site as it deems economically feasible (or politically advantageous).

And this is not just a fantasy.  As we have previously reported, the next cycle of the Regional Housing Needs Assessment is fast approaching, and there is every reason to expect that the number of new housing units assigned to the City of Alameda will exceed the 1,723 units allotted for 2015-2023.  Indeed, at the A.C.T. meeting, Mr. Knox White predicted that the number might be three times that amount.

The problem is where to find the sites on which this new housing can be built.  The
2015-23 Housing Element adopted by Council in July 2012 contains a list of 18 sites “available” for residential development.  But development plans already have been submitted and approved for most of those parcels, so they can’t be regarded as “available” in the next round.  The remaining sites hardly provide the capacity for building another 1,723 new housing units – to say nothing of 5,169 new units – between 2023 and 2031.

Alameda Point wasn’t included in the prior inventory, and residential development at
Site A and the Main Street Neighborhood may make up some of the deficit.  Indeed, the Point offers an opportunity for even more housing than the amount already planned –  but for that to happen, the Navy would have to be willing to renegotiate its no-cost conveyance agreement with the City.

So what’s left other than re-zoning property from commercial (or industrial) to residential?  The idea isn’t unprecedented:  the plan submitted by Jamestown Properties to build 1,215 new housing units at South Shore may require just such an action.  And if Council goes along with that plan, why stop there?  The Park Street and Webster Street business districts might be next.  Without Measure A to worry about, the re-zoning would produce a lot more new multi-family housing units than it would otherwise.

It should be apparent by now that repeal of Measure A might lead to an explosion of multi-family residential development in Alameda.  For that reason, we would expect the “build, baby, build” crowd to line up enthusiastically behind removing Article XXVI from the Charter.  And, based on his track record at the Planning Board, we would expect Mr. Knox White to be jockeying for a position at the head of the line.

Instead, he’s playing it coy.

At the A.C.T. meeting, the Vice Mayor acknowledged that repealing Measure A was one of the items on the list of potential Charter revisions, but he didn’t endorse – or oppose – such a move.  The closest he came to stating a position was to say, “The question for me is, how do we build the housing we need and maintain the character of our city?”

Who could object to such pablum?  We’ll give you one guess.  So after the meeting, we sent an email to both Mr. Knox White and Mr. Daysog asking them directly whether they supported repealing or amending Article XXVI, and, if so, why.  Mr. Knox White promptly replied:  “I pretty much answered these questions earlier this evening at the event” – he didn’t – and “I’m comfortable with what I said tonight.”

Elizabeth Warren couldn’t have done a better job of evasion.

Mr. Daysog was more forthcoming.  He gave us the following response:

Measure A is serving us well, particularly in providing us more than a modicum of relief from Sacramento Democratic legislators intent on usurping local control over our built environment.  While this is true especially of General Law cities, even Charter cities without provisions like Measure A are experiencing loss of local control over neighborhood planning.

Of course, through the Charter review process, I am committed to listening to what everyone has to say about Measure A – good, bad or indifferent.  But my perspective on this discussion is that the burden of proof is on those who want to change Measure A – they need to prove how Alameda residents will be better off by fully subjecting ourselves to Sacramento officials intent on imposing their ideas of what is good for neighborhoods, cities and regions.

Some of us might recall past involvement in college and high school debate, also known as forensics, and from that we all know that the “burden of proof” is on the team that wants to change “status quo”.  The “status quo” is such that there is not only Measure A, which technically prohibits new multi-family construction, but there are also current regulatory regimes such as the density bonus rule and the Multi-Family Housing Overlay through which City Hall has figured-out how to construct apartments anyway, even with Measure A.  So, if the “status quo” is such that, even with Measure A, we’re figuring out how to build apartments, the “burden of proof” is on those wanting to do away with Measure A completely as to why such action is needed to build multi-family units.  We’re doing so anyway even with Measure A.  Is it not possible that the presence of Measure A prevents a scale of multi-family building tantamount to building-multi-family-housing-on-steroids?

We hope that Mr. Daysog won’t mind if, at least on this topic, we give him the Bernie Sanders award for candor.  (Mr. Knox White wasn’t in the running.)

We’ll be very interested to see what sort of recommendation eventually emerges from the Knox White/Daysog committee.  It wouldn’t surprise us at all to see a split decision.  And then what?  Well, it takes three votes to authorize putting a Charter revision on the ballot.  Council members Jim Oddie and Malia Vella have two of those votes, and, at some point, Mr. Knox White is going to have to show his cards, too.

The last time we looked, three-of-a-kind beats a pair.  If the Council majority endorses a Charter revision killing off Measure A, it will be up to the voters to decide whether they’re “comfortable” – to use Mr. Knox White’s word – giving him, Mr. Oddie, and Ms. Vella (or some later Council majority) carte blanche to re-write the City’s residential development laws.

Sources:

Charter revision committee: 2019-04-02 agenda item re Charter amendments

SB 50: SB 50; SF Chronicle, Scott Weiner’s SB 50 (analysis); SF Chronicle, Scott Weiner’s SB 50. . .(5-6-19)

SB 50 chart: SB50-zones-2019-05-08

Alameda Landing: 2012-12-10 staff report to PB re development plan & density bonus; 2014-07-28 staff report re affordable housing; 2019-10-14 staff report to P.B. – development plan

Alameda Marina: 2018-05-29 staff report to PB

Alameda Point Site A: 2015-06-16 staff report re Site A

Del Monte warehouse: 2014-12-02 staff report re Del Monte DA

Encinal Terminals: 2017-07-17 staff report to PB re master plan etc.; 2017-12-19 staff report; 2018-09-04 staff report

Marina Shores: 2014-05-27 staff report to PB re Marina Cove II; 2014-07-28 staff report to PB re Marina Cove II design review

Shipways: 2019-01-14 staff report to PB re development plan

2100 Clement: 2015-06-22 staff report to PB re 2100 Clement; 2015-07-13 staff report to PB re 2100 Clement