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)