They wuz Robbed!

We’ll bet some of the 25,063 Alamedans who voted against Measure Z will be surprised – nay, shocked – to learn that, if State Assemblyman and Attorney-General-designate Rob Bonta gets his way, all of their votes will have gone for naught and City Council will be able unilaterally to refuse to enforce the Charter provision – Article XXVI, aka Measure A – they voted so overwhelmingly last November to uphold.

We may be overdramatizing a bit.  But we are not exaggerating – because that is exactly what could happen if AB 1322, introduced by Mr. Bonta in February and amended on April 5, passes the Legislature and is signed into law.

The Bonta bill creates a procedure – not found in existing law – whereby a city council “may by resolution declare” that a “local measure that has been approved by the electorate,” including a Charter provision, “conflicts with state law pertaining to housing, and that therefore, the city, county, or city and county does not have a duty to defend or enforce the local measure in whole or in part.”

The only prerequisites to a council adopting such a resolution are that it hold a “public hearing” at which “interested persons may present written or oral comments,” and that it arrange for notice to be published in “at least one newspaper of general circulation” at least 10 days prior to the hearing.

The bill does not require the council to make any findings of fact or conclusions of law in support of its “declaration.”  Indeed, it does not even require the council to specify the state law with which the “local measure” conflicts.

As a practical matter, the Bonta bill would enable our current Council to render Article XXVI ineffective quickly and easily.  Suppose the proposed legislation already was in effect:  Council could put a legal notice in the Sun’s Thursday, April 22 edition; calendar the “public hearing” for its regularly scheduled meeting on Tuesday, May 4; limit any public comments at the hearing to two minutes apiece (assuming there are seven or more speakers on the item); and then, by a 3-to-2 vote, adopt a resolution declaring, without further ado, that Article XXVI “conflicts” with state law and the City has no duty to enforce it.

Pretty slick, huh?

And once that step has been taken, the floodgates will be thrown wide open.

For example, City Planner Andrew Thomas has been working for months now on a plan to create a “multi-family overlay” that will enable the City to meet its Regional Housing Needs Assessment quota while leaving Article XXVI intact.  Indeed, he has tentatively selected the specific sites and computed the minimum densities necessary to achieve that goal.

If Council exercises the authority granted by the Bonta bill, the yoke will have been lifted off Mr. Thomas’s shoulders.  Having declared Article XXVI invalid and unenforceable, the Charter provision’s antagonists could proceed to re-zone the entire city for multi-family housing and/or double or triple the maximum allowable density.  Finding sites for 5,406 new housing units no longer should be a problem.

Even if they were not so bold as to overhaul the entire zoning code, the Council majority for whom Article XXVI is anathema still could follow up their resolution by up-zoning specific areas for reasons not related to the RHNA quota.

For example, the most recent version of the proposed new General Plan calls for the City to “permit higher-density, multi-family, and mixed-use development on sites within walking distance of commercial and high-quality transit services to reduce automobile dependence, automobile congestion, greenhouse gas emissions, and energy use; provide for affordable housing; make efficient use of land; and support climate friendly modes of transportation, such as walking, bicycling, and transit use.”  Today, Article XXVI would thwart any effort to implement this policy through targeted re-zoning.  But if Council exercised the authority granted by the Bonta bill, the roadblock would disappear.

And just think of the glee a refusal to enforce Article XXVI would inspire among residential real-estate developers.  All of a sudden, their projects could get larger – and thus more profitable.  Who knows?  Even Tim Lewis Communities might be able to make a development “pencil out” under this scenario.

But, surely, our readers may be thinking, there must be something an ordinary citizen who wants to preserve Article XXVI, or least part of it, could do to push back.  And there is – but the Bonta bill does its best to impede such a challenge.

The bill provides that, within 30 days after a council passes a resolution declaring that it does not have the duty to enforce a local measure, an “interested person” may file an action to “attack, review, set aside, void, or annul” the resolution.  However,

  • The “issues raised” by the plaintiff in such a proceeding “shall be limited to those presented” at the “public hearing.”  So, in Alameda, if no member of the public brings up an “issue” either in writing beforehand, so that it is made part of the public record, or during the two minutes each is allowed for comment, a judge later will be forbidden from considering the point, however sound it might be.
  • Any “factual determinations” made by the council “shall be considered conclusive” unless the judge “specifically finds that the factual determination is arbitrary and capricious or substantially unsupported by the evidence considered” by the council. The Bonta bill thus creates a heads‑I‑win, tails‑you‑lose situation for the Council members who tried, but failed, to get the voters to repeal Article XXVI:  it doesn’t require them to make any factual determinations to support their declaration – but if they do so anyway, those determinations will be subject to the least rigorous and most deferential standard for judicial review.
  • Even if a judge strikes down the resolution, the successful plaintiff will not be entitled to recover her attorneys’ fees from the city, whose own legal costs will be paid with taxpayer funds.  So the financial risk falls solely on the challenger.

The version of the Bonta bill we’ve been describing is its third iteration.  All three versions share a common goal:  to create an avenue outside the ballot box to get rid of a Charter provision that restricts the development of high-density, multi-family housing – a major priority of “progressive” politicians and their publicists.  And all three appear to share a common target:  the City of Alameda and Article XXVI of its Charter.

The original version was an outright ban that didn’t require council action or provide for judicial involvement.  It simply stated that a Charter provision “shall not be enforced if more than 90 percent of residentially zoned land in the city is zoned for single-family housing or if the city is characterized by a high degree of zoning that results in excluding persons based on their rate of poverty, their race, or both.”

Maybe the City of Alameda didn’t meet this test.  Or maybe the standard was deemed to be too vague.  (What’s a “high degree of zoning”?)  For whatever reason, Mr. Bonta took an entirely different tack in Version 2.0.

The second version of the Bonta bill was focused on a specific issue:  adoption of the state-mandated Housing Element.  If a city council found, based on “substantial evidence,” that a Charter provision (or any other “measure adopted by the voters”) constituted a “substantial obstacle” to adoption of a “timely and compliant” Housing Element, it had two remedies.

The council could notify the state Department of Housing and Community Development of its “findings and supporting evidence,” and, if HCD “agree[d] with the city’s assessment,” the council could pass a resolution suspending the Charter provision – for how long the bill didn’t say.  The council also could pass a resolution authorizing a suit for a judicial determination of whether the provision interfered with adoption of the Housing Element.  But if both the council and HCD already had agreed that the Charter provision constituted a “substantial obstacle,” the outcome of the suit was preordained:  the judge “shall deem” that the provision was “preempted” – and, presumably, was therefore null and void – “unless the city’s determination is not supported by substantial evidence in the record.”

And now we have Version 3.0.  Gone is the need for notice to, and concurrence by, HCD.  Gone, too, is the reference to a judicial finding of preemption.  After a perfunctory notice and hearing, the city council can negate a Charter provision all by itself.  (The council also can bring its own validation action, but why would it?)  Likewise, no longer is interference with adoption of a “timely and compliant” Housing Element the only basis for council action; now, any conflict with a state law “pertaining to housing” will do.  And no longer is a council authorized merely to suspend the operation of the Charter provision; now, it can refuse to enforce it altogether.

Why did Mr. Bonta introduce this bill in the first place?  Why did he amend it as he did?

We simply don’t know.  We could find no published news report about the proposed legislation.  Nor did Mr. Bonta announce it on his website.  It was almost as if he was trying to slip the bill through the Legislature under the radar.

But it is, we suspect, no coincidence that all three versions of the bill appear targeted at the City of Alameda and Article XXVI.  Regular watchers of Council meetings may recall that, after Measure Z was defeated, its proponents blamed the loss on the ignorance of Alameda voters (exploited, of course, by the nefarious “disinformation campaign” waged by its opponents).  Stupid and gullible voters!  Maybe Mr. Bonta’s allies on Council convinced him to ride to their rescue by giving them a tool to achieve their goal without having to win over the unwashed masses.  Or maybe he concocted the anti-democratic scheme all on his own.

There remains one question:  The Bonta bill is . . . unusual – but is it lawful?

Forgive us if we don’t respond with the same degree of certitude that our local legal experts without law degrees on Council employ.  Based on our review of California Supreme Court cases, we do know this:  As a charter city, Alameda may enforce local laws – like a Charter provision – that are inconsistent with state law unless (1) there is an “actual conflict” between the Charter provision and state law and (2) the matter is one of “statewide concern.”  If such a conflict exists, the City, including Council, must follow the state law; if no conflict exists, it may enforce the Charter provision.

According to the Supreme Court, these issues pose questions of law, and ruling on such questions is a classic judicial function.  It can be argued that, by giving a city council authority to “declare” a Charter provision invalid and unenforceable, the Bonta bill in its current form transfers to the council a role properly reserved to the courts.  (This contrasts with version 2.0, which left declaratory relief in the hands of a judge.)  If so, it would violate the doctrine of separation of powers, which precludes the Legislature from vesting the judicial power in any body other than the courts.

Moreover, the legal issues call out for analysis by a judge, not “conversation” among a group of politicians, especially since the conclusion is not self-evident.  There is plenty of case law supporting the proposition that the “affordable housing shortage” is a “matter of statewide concern.”  But the Supreme Court also has emphasized that courts must “insur[e] that the purported conflict is in fact a genuine one, unresolvable short of choosing between one enactment and the other,” and the precedents addressing whether an “actual conflict” exists are less definitive and leave room for argument.

The statute most often cited (by Mr. Thomas, among others) as the source of the conflict between Article XXVI and state law is Government Code section 65583(c)(1), which requires a city, if necessary to meet its RHNA quota, to “identify” sites “as needed to facilitate and encourage the development of a variety of types of housing for all income levels, including multifamily rental housing, factory-built housing, mobilehomes, housing for agricultural employees, supportive housing, single-room occupancy units, emergency shelters, and transitional housing.”

A conflict would exist if this statute were interpreted to require the City to do something – i.e., permit multi-family rental housing – that Article XXVI forbids.  But the language is hortatory, not mandatory.  Indeed, it can be argued that, by creating the multi-family overlay in 2012 and expanding it in 2014, the City in fact has complied with its legal obligation to “facilitate and encourage” the development of such housing.  If it pursues Mr. Thomas’s original plan and adopts another overlay this time around, so much the better.

Under this reading, Article XXVI and section 65583.3(c)(1) can peacefully coexist.  (And, BTW, will someone tell us where the sites providing housing for agricultural workers are located in Alameda?)

Finally, even if a judge determined that Article XXVI actually conflicts with section 65583(c)(1), the result isn’t necessarily total nullification of the Charter provision.  Courts traditionally characterize a challenge to a given law as “facial” or “as applied,” and, in the latter case, their decision often will narrow the circumstances to which the law can be applied without invalidating the law in its entirety.  Thus, a court could rule that Article XXVI is invalid if it is being used to prevent the City from re-zoning sites to satisfy its RHNA quota but not if it is being enforced in some other context.  The mansions along Grand Street may remain subject to Article XXVI – breathe a sigh of relief, Ms. Ashcraft – even if the Encinal Terminals parcel is not.

Now, we’ve said that legal issues such as these ordinarily are reserved for the courts.  But there is another possible option:  the state Attorney General can be asked to render an opinion on the issue.  And, of course, we can trust the state’s Chief Law Enforcement Officer to be unbiased and objective, can’t we?  Oh, wait a minute.  What did you say the name of the new A.G. is?

Sources:

Bonta bill: AB 1322 (Bonta 2-19-21); AB 1322 (Bonta 3-22-21); AB 1322 (Bonta 4-5-21)

About Robert Sullwold

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

22 Responses to They wuz Robbed!

  1. Shame on Rob Bonta and his cesspool politics says:

    Bonta and his City Council collaborators are no better than the Republican state legislators in Georgia and Texas that look to undermine the will of voters through undemocratic means. They are no better than elected officials that refuse to accept the decision of the voters by overwhelming numbers. Like them, they’re bad actors with ill intent under the guise of public servants.

    • David says:

      Bonta Been Bought

    • Toby Stevenson says:

      What an idiot reply. The Georgia voters overwhelmingly approve by a 70% margin, of voter ID

      And who voted for this fool. This is the problem in California. The voter electorate is so ignorant, we are left with politicians like Newsom, and his criminal AG

  2. Keith Nealy says:

    Thank you so much for this article. What Bonta has proposed is terrible. How do we defeat this bill? Who is our state representative now?

    • As I understand it, Assemblyman Bonta remains in his current position until his nomination as Attorney General is confirmed by the Legislature (unless he resigns before then, which he has given no indication of intending to do).

    • David says:

      Defeat it by changing the city council members – get rid of Vella, Knox White and Ashcraft

  3. dave says:

    Excerpt: “permit higher-density, multi-family, and mixed-use development on sites within walking distance of commercial and high-quality transit services to reduce automobile dependence, automobile congestion, greenhouse gas emissions, and energy use”
    ====================

    Regarding “high quality transit services,” only a small portion of Alameda is walkable to ferry or BART, and if one adds the caveat “safely walkable at night” then most people would say that BART does not qualify. As for AC Transit, which is walkable from most of Alameda, it is doubtful that more than a handful of Alamedans would ever call that service “high quality.”

    But what does “commercial” mean in that clause? Does it mean taking Uber/Lyft to BART? It’s difficult to see what else that could mean. We’ll solve congestion & care dependence by calling commercial car services….

  4. Really says:

    Dave the definition used by the city and legislature is wherever you can walk or ride to a bus stop or ferry which basically makes most of Alameda accessible.

    Bonta, who sponsored the defeated Measure Z, is no friend to Alameda. Local Progressives are rooting for him to sue Alameda as newly appointed AG to force more housing which is clearly against the will of the 60% majority who rejected Measure Z.

    What’s weird about this is that the world has clearly changed. SF has been drained of people fed up with the endless lockdowns and companies are allowing people to work from home on a semi permanent basis.

    Yet these type of draconian measures by Bonta are designed to quell resistance, similar to his other infamous legislation which imposes state taxes for 10 years on people who dare to leave California.

  5. Karen says:

    I think what’s weird is that we have language in our City Charter that prohibits the construction of multiple dwelling units in Alameda:

    Article XXVI. Multiple Dwelling Units.
    “Sec. 26-1. There shall be no multiple dwelling units built in the City of Alameda.
    “Sec. 26-2. Exception being the Alameda Housing Authority replacement of existing low cost
    housing and the proposed Senior Citizens low cost housing complex, pursuant to Article XXV
    Charter of the City of Alameda.”

    Anyone reading this is left with a big question — WHY? Having something like this in our charter –in 2021, in the midst of a housing shortage opens us up to be challenged. Not only is it unusual, it will be seen as discriminatory.

    • dave says:

      It may be unusual but it was recently upheld by significant majority of voters in a very high turnout election.

      • David says:

        However as voters saw through Measure Z last year…… Measure Z, and Bonta’s bill, are not intended to create the type of housing most needed – affordable housing. Both are intended to open the floodgates for market rate housing, which is what for-profit developers/Bonta’s campaign donors want.

        More market rate housing in Alameda isn’t going to help the people who need help most. Builder’s won’t build enough to drive down market prices, they’ll build only enough to profit from the current high market rates.

        Don’t believe the guff that this is about building desperately needed housing – it’s about lining developers’ pockets. (And securing campaign donations for Bonta Been Bought.)

    • the number don't lie says:

      Yeah, it’s in the Charter, and judging by last November, an overwhelming number of residents want it still in there. The vote count was so overwhelming that, frankly, many of the folks outwardly touting “build, build, build” on other social media outlets like Facebook or Nextdoor had to have voted the other way, when in the privacy of their own figurative voting booth.

      • dave says:

        There is an obvious economic need for more housing, the supply/demand is waaaay out of whack. Had the Z campaign focused more on that instead of stamping the Scarlet Letter R on anyone who likes their neighborhood, the campaign would have succeeded.

        The main, already built out portion of the city is approx 40% multifamily. A new charter stipulating that (or approx that) share of MFH for newly developed areas — while protecting established areas from the pre-1973 wrecking ball —would have been easily accepted by voters. People can obviously see the need for more housing. People will obviously vote to preserve their own existing housing.

        (And people do obviously take offense at the word racism used to describe their community)

    • David says:

      Opponents of the article do indeed spin it as a discriminatory practice, with very little substance behind that.

      Consider,

      o The state density bonus law introduced in 1979 allows developers to do what Measure Z proponents say they wanted – build genuine affordable housing. It’s a little convoluted, but the state law introduced in 1979 does exactly what Measure Z proponents said they wanted. (So, Measure Z proponents really want un-fettered market rate construction.)

      o Renters are 51% of the population in Alameda – many, many, Victorian homes over the decades have been converted to rental units. The notion that existing law precludes the creation of rental units is demonstrably false.

      o The stated rational for the 1973 Measure A that put in the restrictions in Article XXVI was that it was a response to widespread tear-down of single family homes – Victorian, Craftsman and others – only to be replaced with fugly square box apartment blocks – just drive down Central Ave. in mid-Alameda, or along Shoreline Drive to see what it was about.

      The for-profit development community has long played the ‘its discriminatory’ card about Article XXVI while ignoring that their practice of undermining the article in favor of market rate housing is discriminatory against people of color who would benefit from below market rate housing. (Which private developers don’t want to build.)

  6. Karen says:

    But Dave, that’s not the way the Charter reads. It says no multiple dwellings shall be constructed in Alameda with the exceptions noted in #26.2.

    No where else in the region does such language exist in their charter. This draws attention to Alameda — because the question is still why?

    Measure Z in your eyes may have been flawed — but it was an an attempt to remove this very outdated housing prohibition from our charter and work with the community thru the planning and zoning process to make changes.

    Regarding how it will be viewed — unfortunately this is not the first housing prohibition coming from Alameda. I was shocked to read the deed restrictions with my own eyes when I purchased my home on the east end of Alameda — the deed restrictions that prohibit people from selling their home to a person of color. But it’s there, in black and white — though now unconstitutional.

    Those deed restrictions are a well documented reminder of the prevailing views that existed in our community back then — just like Measure A.

    • Keith Nealy says:

      Those deed restrictions are shocking and terrible, and should be removed. However, I voted against Measure Z because I don’t want to ruin the architectural character of Alameda. People move here because of it’s small-town feel and not Manhattan. Measure A came about because beautiful Victorians were being converted into ugly boxes. Developers just want to make as much money as possible and don’t really care much about character, except as they’re forced to do something less ugly.

      It would be nice to be able to rely on our zoning and planning commission to maintain the beauty and character of our city, but history shows us we can’t. That’s why we got Measure A. It took a popular vote to stop the architectural degradation. It’s still a struggle.

      There’s also the issue of transportation. On the West End there is only the tube. We keep building thousands of residences with imaginary solutions for traffic. How much is too much? What do we want Alameda to look like in 20, 30, or 40 years? There must be SOME limit. Suppose it’s completely built out with lots of high rise buildings and people still want to move here? Do we just keep building and building? Won’t we have to tear down single family houses to make room for multi-story ones? When do we say enough? The vote against Measure Z was a overwhelming statement of ENOUGH.

    • David says:

      I’m pretty sure those deed restrictions date back to a far earlier time than 1973 when Measure A was approved…

      In any event, none of that changes the reality – for-profit developers want to get rid of Measure A NOT because they are altruistic and want to build affordable housing for BIPOC people – they can do that already. And they can build multifamily housing now, as anyone who drives out to Alameda Point can see.

      They want to get rid of Measure A solely so they can profit from a lot more market-rate housing, which will do nothing to help low-income people of color.

      • Axe 26 says:

        David! You’re contradicting yourself. Developers have no problem building market-rate housing right now, with or without Article 26. As you explicitly said. Z does not allow for more homes to be built, believe it or not. It only allows the city to 1) decide where to build those homes, and 2) build smaller by design homes that are still market-rate but cost less due to being smaller-sized. Thanks to California and the RHNA, we’re gonna have to build these 6,000 homes whether we like it or not. We could just either stack them all in one area like Miami Beach or go for softer density such as above business districts where there’s already good public transportation.

        If what you said was correct, developers would not have already been “profiting from a lot more market-rate housing” these last 20-30 years.

        I would ask that you read the “repercussions” section of this website from the City of Novato, what happens if we were to continue down this road with Article 26 still in place:

        https://www.novato.org/government/community-development/housing-element-update/what-is-a-housing-element

    • thank you says:

      My understanding of a major argument made by NO was and is that keeping that provision disincentivizes tearing down homes on large lots to build apartments, which happened back then. I think there’s new state law that encourages this kind of tearing down, so maybe keeping that in the charter isn’t that bad after all?

  7. Axe 26 says:

    You cannot claim the city is upholding Article 26, and in the same breath, think multifamily overlays are fine. By allowing multifamily overlays, you’re de facto intentionally violating Article 26, as we’ve already been doing for years while giving it a nice veneer of authority. Many of the new homes on the base and the new Littlejohn senior housing are in direct violation of Article 26. No precedence is being set with the Bonta legislation.

    Measure Z was an imperfect measure, literally a half measure. When you remove something, people will want to know what will take its place, because a void can be a scary thing. Unfortunately, a ballot measure typically tends to be a single issue rather than bundling multiple issues. It would be very difficult to write a ballot language that says: “1) Repeal A26, and in its absence, 2) guarantee funding for subsidizing affordable housing only.” I don’t think the failure of Measure Z is an indication of anything because it is a snapshot of a larger trajectory – 5 years ago, you could not even talk about removing Article 26 in this town. Now, we were only 5,000 votes from going the other way for full repeal. The demise of Article 26 is inevitable, especially in the midst of a major housing crisis and a democratic president who’s explicitly targeting local exclusionary housing laws. And remember that Alameda is still a subdivision of the state of California, and respecting the will of the voters also means respecting the voters of California, who are demanding solutions for our housing crisis.

    • David says:

      The exemption to Measure A has been there since 1979, when the density bonus law was introduced.

      Since then, developers have been able to side-step Measure A and build multi-family units anywhere in Alameda, so long as they build the requisite number of affordable units.

      That’s still true today.

      But it’s not profitable for them to build affordable units, so they want to get rid of Measure A entirely.

      It’s that simple.

      The multi-family zones were intended to create an intersection between Measure A, the density bonus, and Zoning, for areas like Alameda Point that are ripe for redevelopment.

      For better or worse, those multi-family zones are permitting the sort of multifamily construction that Measure Z proponents falsely claim is impossible.

    • Really says:

      Axe: reality check.

      The Z vote was not close. Biden will do nothing except raise taxes and regulations on builders and the Governor will not make any waves during his recall and probably not after that if he survives and then faces reelection. And who’s going to get high interest loans to build in the coming inflationary/hyper-inflationary cycle? Finally, do you think it might hurt Mia Bonta’s chances of getting elected if new AG Rob Bonta sues Alameda to get rid of Measure A?

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