Be it not resolved

If City Planner Andrew Thomas was merely asking Council next Tuesday to bless his intent to employ a “multi‑family overlay” to meet the City’s RNHA quota during the next eight-year planning period, the agenda item almost could have gone on the consent calendar.

After all, Mr. Thomas has made his intent clear, both to the Planning Board and Council itself, since at least last December.

And even the staunchest defenders of Measure A (aka Article XXVI of the City Charter), including the leaders of the “No on Z” campaign, have acknowledged the legitimacy of Mr. Thomas’s approach.

But the resolution proposed by Mr. Thomas asks Council to do more than merely bestow its blessing.  Instead, on its face the draft seeks to get Council to make legal findings and draw legal conclusions.  Here’s what it says, in relevant part:

NOW, THEREFORE, BE IT RESOLVED, that the City of Alameda City Council finds City Charter Article 26 is in direct conflict with State housing law and is preempted and unenforceable in these circumstances. More specifically, Article 26 of the City Charter is preempted by Government Code Sections 65583.2(c), (h), and (i) and Section 65583(c)(1) which require the City to allow multi-family housing, and Government Code Section 65583.2(c)(3) which requires the City to allow at least 30 du/acre to meet its RHNA.

The proposed findings, however, are debatable.  And the proposed legal conclusion is overbroad.  What’s more, neither is necessary to sanction the work Mr. Thomas has been doing to prepare a housing element that satisfies the City’s RHNA obligations.

When Mr. Thomas asked the Planning Board to recommend that Council adopt his draft resolution, the Board balked at the language quoted above.  It wasn’t their role, the Board members agreed, to make legal findings or draw legal conclusions.  If Council wanted to do so, well, they could have at it.  (As chair Alan Teague put it, “if the city council wants to come forward and say we want to say section 26 is whatever, they’re legislators, that’s what their job is.  I just don’t feel that, as a planning board member, I have that goal.”)

We confess that, since so much has been spoken and written about the interplay between Measure A and state law, we are reluctant to go there again.  But a few points need to be made.

We’ll start with the findings.

According to the resolution, four sections of the Government Code “require” the City to allow multi-family housing.  None of them, however, says that in so many words.  Indeed, the closest one gets are two sentences, one in section 65583(c)(1), which instructs a city to identify the actions it will take to meet its RHNA quota, and the other in section 65583.2(c), which tells a city how to determine the number of units it can “accomodate” on each site.

The former sentence states:

Sites shall be identified 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.

The latter sentence states:

The analysis [of available sites] shall determine whether the inventory can provide for a variety of types of housing, including multifamily rental housing, factory-built housing, mobilehomes, housing for agricultural employees, supportive housing, single-room occupancy units, emergency shelters, and transitional housing.

Now, we suppose it’s possible that the words the Legislature actually used – “facilitate and encourage” and “can provide” – mean the same thing as the word the resolution uses, “require.”  But we don’t think every judge who heard the matter would reach that result.  Moreover, if the statutory language is to be read as mandatory, multi-family housing isn’t the only requirement it imposes.  A city must also allow “factory-built housing, mobilehomes, housing for agricultural employees, supportive housing, single-room occupancy units, emergency shelters, and transitional housing.”  Really?  Is the Legislature telling the City of Alameda that it must zone land for farmworker housing and SROs?  If so, Mr. Thomas is going to have a lot more work to do.

There’s another reason to question the accuracy of the finding the draft resolution is asking Council to make.

Since he was elected to the State Legislature, San Francisco Assemblyman Scott Wiener has embarked upon a crusade to pass laws permitting multi-family housing as a matter of right throughout California.  His first bill, SB 50, would have required cities near employment centers to allow four- and five-story apartment buildings where only single-family homes were currently permitted.  After SB 50 failed, the Senator introduced SB 902, which would have compelled cities to allow duplexes, triplexes and fourplexes in single-family neighborhoods.  SB 902, too, failed.  But Senator Wiener came back this year with SB 10, which would authorize – but not require – cities to up‑zone parcels in “job‑rich” or “transit‑rich” areas for up to 10-unit apartment buildings.  The bill passed the Senate and is headed for the floor of the Assembly.

And Senator Wiener is not alone in proposing legislation promoting multi-family housing.  Other state legislators, including Senate president pro tem Toni Atkins, have introduced bills with a similar objective.

All of which raises the question:  If the Government Code already “require[s]” a city to allow multi-family housing (as the draft resolution states it does), why are Senator Wiener and his colleagues trying so hard to pass new laws calling for cities to permit it?  Are the state legislators just gilding the lily?  Or are they instead attempting to put a mandate into state law that isn’t there now?  We think the latter is far likelier.

The proposed finding in the draft resolution about a density requirement is also suspect.

One of the same sections cited as the source of the purported multi‑family requirement also “requires” the city to allow at least 30 units/acre “to meet its RHNA,” the draft states.  Well, not exactly.  Section 65583.2(c) directs a city to specify the number of units that can be “realistically accommodated” on each site in its inventory, and to identify the RHNA category to which the units belong.  For the lower-income categories, the city may “[p]rovide an analysis demonstrating how the adopted densities accommodate this need” – or it may rely on the presumption that if a site is zoned for a density of at least 30 units per acre, it “shall be deemed appropriate to accommodate housing for lower income households.”

Now, we suppose it’s possible to construct an argument that this section “requires” a city to allow at least 30 units/acre “to meet its RHNA.”  The Government Code surely does obligate a city to zone sites in such a way that it can provide the number of lower-income units assigned to it by the regional authorities.  Maybe creating a presumption that a site zoned for at least 30 units/acre can be counted toward the lower-income quota is the same as requiring that every lower-income site be zoned that way.  Again, however, we don’t think every judge who heard the matter would reach that result.

We’ve spent this much space discussing the findings proposed by the draft resolution because they affect the legal conclusion to be drawn from them.  If a state law truly requires something that a local law prohibits (or vice versa), a conflict between the two exists and, in such a case, state law prevails over local law.  (In other words, it “preempts” local law.)  But if there is no conflict between state and local law, no preemption occurs, and both laws can co-exist.  The key to the analysis is to define where the conflict arises.

Consider the following example:

Suppose Alameda has an ordinance prohibiting anyone from driving faster than 25 mph on all city streets.  Suppose also that a state statute establishes 30 mph as the speed limit on any street designated as a state road.

How fast may you drive on Encinal Avenue (SR 61)?  30 mph.  Why?  Because in this case the local ordinance conflicts with a state statute, and state law prevails.

How fast may you drive on Southwood Drive (which is not, to the best of our knowledge, a state road)?  25 mph.  Why?  Because this is not an case in which the ordinance conflicts with the statute, and both can co-exist.

A similar analysis can be done of the housing issues.  Like our hypothetical speed-limit ordinance, Measure A sets a standard applicable throughout the City of Alameda.  But like our hypothetical state statute, state housing law establishes an arguably different rule in a specific context – where the City is zoning (or rezoning) sites in order to meet its RHNA quota.  (As Planning Board chair Teague pointed out at the June 14 meeting, all of the statutes cited in the draft resolution are found in the portion of the Housing Element law dealing with RHNA.)

This is where any conflict arises, and this is where any preemption occurs.  Under the preemption doctrine, a driver in our hypothetical can go 30 mph despite the otherwise applicable speed-limit ordinance – if she’s traveling on a state road.  And under the preemption doctrine, Council can zone parcels for multi-family, high-density housing despite the otherwise controlling Charter provision – if such zoning is necessary in order to satisfy the City’s RHNA obligations under state law.

Our interpretation is consistent with the actual practice followed by City planners in the last 10 years.

At the June 14 Planning Board meeting, Mr. Thomas disclosed that, after Council adopted the 2015‑23 Housing Element with its “multi‑family overlay,” developers “occasionally” had approached the Planning Department to request that the City apply the overlay to their property as well and thereby green‑light a proposed multi‑family development.

Planning staff turned down those requests.  The City had adopted the multi‑family overlay to enable it to meet its RHNA quota and get its housing element certified, Mr. Thomas said.  But, having done so, it had no reason to apply the overlay to additional parcels.  Accordingly, staff told the developers:  “We don’t need to rezone your land to MF overlay to get into compliance with state law; we’ve already done other land, and we’re in compliance.”  Indeed, Mr. Thomas added, Article XXVI prevented the City from doing so:  “We could do it for these other property owners when we did it as part of our housing element update, but we can’t just randomly choose to up-zone land to MF overlay . . . in direct conflict with our charter.”

This is why the legal conclusion stated in the draft resolution is overbroad:  It suggests that the cited Government Code sections preempt Measure A at all times and in all places.  But the preemption doctrine, properly applied, doesn’t justify, or even support, such a determination.  Instead, the most defensible view is that the Government Code preempts Measure A only to the extent necessary to enable the City to satisfy its RHNA obligations.  Apart from that, the Charter provision remains in full force and effect.  The Government Code and Measure A thus co‑exist, and, except in the one area in which there is a conflict between them, the former does not overrule the latter.

When we first saw the draft resolution, we thought Mr. Thomas might be trying to pull a fast one.  It didn’t seem – it still doesn’t – that the legal findings and conclusions were appropriate in a declaration of intent.  Moreover, they were written in such a way that they appeared designed to trigger the provisions of a bill introduced by then state Assemblyman Rob Bonta, which empowered a city council to “declare” that a “local measure” conflicts with state housing law, “and that therefore, the city . . . does not have a duty to defend or enforce” the local measure.

But our suspicions were allayed when we learned that, after Mr. Bonta was appointed Attorney General, his bill was converted into a “two-year bill” – which means it wouldn’t be enacted during the 2021 legislative session – and then totally rewritten to delete all of its prior language and replace it with new provisions dealing with the State Air Resources Board and greenhouse gas controls.  Legislators often gut and amend their own bills, we were told, especially when the original proposal runs into problems and the author has a new priority.  Presumably, the Assemblyman who picked up the bill after Mr. Bonta left was following this practice.  If so, Mr. Thomas couldn’t have been setting up the Bonta end‑around after all.

In any event, the City Planner offered a far more benign rationale at the June 14 Planning Board meeting.  The purpose of the draft resolution, Mr. Thomas said, was for Council to endorse his plan to prepare a housing element acceptable to the state by creating another “multi-family overlay” similar to the one employed in 2012, and then applying it to enough sites to meet the RHNA targets.  By including the legal findings and conclusions, he was only “trying to explain why we are doing this, even though our charter says we shouldn’t do it,” he said.  And he wanted to offer that explanation sooner rather than later so that so that “if we’re gonna have a big argument about this, let’s do it now, not next November,” when Council would be voting on whether to approve the 2023-31 housing element.

Moreover, Mr. Thomas said, he wanted to make sure that no one thought that the defeat of Measure Z undercut his approach.  “This is also just trying to explain to the community:   I know you just voted to not approve Measure Z [and] you thought we wouldn’t be doing this, and now here we are rolling in and doing it anyway.  So we’ve just tried to explain why.”

Unfortunately, we fear that including the preemption paragraph in the draft resolution may have made matters worse.  At best, Council may get bogged down, as the Planning Board was, in distinguishing between “total” and “partial” preemption.  At worst, the anti‑Measure A crowd may try to claim a victory that they believe is long overdue:  We may not have been able to get the voters to repeal Measure A, we can hear them crowing, but now Council has done the next best thing by declaring it to be “unenforceable.”

We, of course, do not hold a degree from the John Knox White School of Law.  But we did attend an accredited law school, and we’re convinced that legal findings and conclusions ought to be made by judges, not by politicians or even city planners.  If we had our druthers, we’d strike the quoted paragraph from the resolution and move on.


Staff reports: 2021-06-14 staff report to PB (Planning Board); 2021-07-06 staff report (Council)

Draft resolutions: 2021-06-14 Ex. 1 to staff report – Draft Resolution (Planning Board); 2021-07-06 Resolution (Council)

About Robert Sullwold

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

20 Responses to Be it not resolved

  1. Ron Curtis says:

    To be clear, this article makes no mention of the revised language proposed by the Planning Board which substantially softens the first paragraph of the resolution consistent with Planning Board Chair Teague’s concerns.

  2. Really says:

    Is anyone else tired of bureaucrats like Thomas coming up with ways to undermine the will of Alameda citizens, while hiding behind a dubious state law? The fact is that currently 95% of California cities are NOT in compliance with state housing laws, and 30+ Southern California cities just filed a lawsuit against the State challenging its allocation formula, which they contend drastically overestimates the number of needed housing units. Doesn’t our city attorney have a duty to inform our Council members of these facts?

    Council members who are intending to run for office again in Alameda should note that Measure Z lost by a 60-40 margin, making it abundantly clear what voters think. In the recent election for assembly, Vella, a progressive candidate in favor of more and more housing, finished 4th among the voters in Harbor Bay, and garnered only 16% of the vote overall- a shocking slam dunk repudiation of her ideas.

    Really tired of past and present local politicians like Bonta, Vella, Oddie and White greedily seeking more and more donations from construction unions and developers instead of actually representing the best interests of all Alameda citizens.

    • Get Your Facts Right says:

      Councilmember Vella won reelection with the most votes ever in Alameda history – a mere 8 months ago – and became Vice Mayor again. Mia Bonta is also a pro-housing progressive who campaigned for Measure Z, and came 1st by a very large margin. So your attempt to squeeze a narrative out of this election using very selective context is questionable.

      I’m not sure if “finished 4th among the voters in Harbor Bay” is the flex you think it is, given that also had the highest concentration of Trump voters in the region.

    • Get Your Facts Right says:

      dave hart – how did your candidate, Steve Slauson, do in the assembly contest? Five great progressives running, all splitting the votes with surprising results? Shocker.

      • David says:

        “How did Vella do in the assembly contest?”

        Pretty sure I wrote that. Absolutely sure I’m not Dave Hart.

  3. Facts says:

    Said the failed campaign manager….

    This has nothing to do with Trump. With only 16% of the vote overall, Vella got stomped, as did her ideas. Bonta won with huge contributions from unions, developers and Indian Gaming casinos, and she used the money to hide her inexperience and lack of accomplishments with glitzy commercials. Look for a much closer assembly race.

  4. MP says:

    This is an interesting timeline from the staff report. The HCD (Cal. Dept. Housing and Community Development), which is involved in the enforcement of the Housing Element Law, is mentioned often on this issue. HCD appears to have believed that there was a conflict between Art 26 and the Housing Element Law when it wrote a letter to Alameda in 2009. But then the city adopted the MF Overlay in order to avoid conflicts between Art 26 and the Housing Element law.

    I think in the meantime (after adoption of the MF Overlay) Alameda adopted a Housing Element for the years 2015-2022. Maybe HCD also objected to Alameda’s post-MF Overlay 2015-2022 Housing Element because of the continued existence of Art 26, and despite the existence of the MF Overlay. This week’s staff report doesn’t say that. Don’t know; but if I had to bet without looking it up, I’d bet that Housing Element 2015-2022 survived HCD scrutiny notwithstanding the existence of Art 26.

    Nearly five months ago (a few months after voters rejected a full repeal of Art 26), city staff apparently sought to revisit the issue with HCD 12 years later, soliciting an opinion on whether Art 26 conflicts with the state Housing Element Law. Given HCD’s specific role in the enforcement of the Housing Element Law, maybe it’s worth waiting a bit longer for a “formal response” from HCD on the question before taking up resolutions of questionable effect and purpose:

    “This is also just trying to explain to the community: I know you just voted to not approve Measure Z [and] you thought we wouldn’t be doing this, and now here we are rolling in and doing it anyway. So we’ve just tried to explain why.”

    Rolling in and doing what, exactly? That might be helpful to know if one is trying to evaluate the draft Resolution’s basic claim that Art 26 – with the MF Overlay – stands in the way of complying with the Housing Element Law.

    • RHNA ABAG HCD oh my! says:

      The director of HCD actually attended a city meeting recently – can’t remember it was the planning board or a council meeting – and he stated that it’s very likely that the MF overlays would NOT pass muster this time. I believe a letter attesting to this is forthcoming.

      That said, last night’s city council action essentially put Tony Daysog and Trish Spencer – leaders of No on Z – squarely in the driver’s seat. They’ll either reap what they sow or muster up enough leadership to lead us out of this mess.

      • MP says:

        Did the director of HCD say what had changed since last time?

        I’ve read stories about Joe Manchin being an important and perhaps decisive swing vote in a nearly evenly divided US Senate. Is that the same situation with Tony D and Trish S on the five seat City Council? Is there a supermajority requirement in play here?

      • Just so the record is clear:
        The HCD staff member who spoke to Council (on 2/2/21), Paul McDougall, is not the “director” of the Department. Rather, he is a housing policy manager.
        Mr. McDougall did not state that “it’s very likely that the MF overlays would NOT pass muster this time.” Rather, he described Measure A as a “constraint” and stated that, when HCD staff reviewed Alameda’s next housing element, it “would probably be looking for programs to address, and remove, where possible, that requirement.” But he was not asked to predict, nor did he volunteer a prediction about, whether HCD staff would regard another multi-family overlay as a satisfactory ”program.”

      • RHNA ABAG HCD oh my! says:

        What’s changed since last time? Well, the housing crisis has gotten a lot worse. Enforcement has gone way up. The state has more tools in their arsenal for enforcement, and state leadership that is centering housing issues.

        MP: JKW sided with Tony D and Trish S last night, voting to appeal the RHNA numbers. They itemized all the reasons they objected their allocation (supporting A26, limited ingress/egress, island, etc), and proposed something like 2300 instead. It’ll be interesting to see how the state responds, but the mayor was right to caution that this could be a slippery slope. Other cities could appeal as well and they might actually shift MORE, not less, units to Alameda since we have not done our part with promoting multifamily housing. So it’s the Trish & Tony Show now.

      • MP says:

        Para. 1: Did the housing policy manager, not director, offer any opinions about the impacts of the rise in remote work?

        Para. 2: Bridge players might recognize that maneuver as an Alcatraz Coup or, perhaps, a Backward Finesse. Clever.

      • My notes don’t reflect any comments or questions about the impact of the rise in remote work, but I haven’t gone back and listened to the video again to be sure.
        I still won’t make an opening bid without 13 high-card points, so I’ll leave the subject of finesses, backward or otherwise, to more sophisticated players.

      • anonymous says:

        Tony & Trish are anti-growth, no housing.

        The majority consisting of John, Malia, and Marlyn want a lot of housing. Since they are the majority, they will vote for the housing element, while Trish and Tony will vote no.

        It probably only takes a simple majority to adopt a housing element, so on a 3 to 2 vote, Alameda will have a new housing element soon.

      • RHNA ABAG HCD oh my! says:

        anonymous: the burden appears to be on Tony and Trish now. Mr. Knox White has stated his desire to align with Tony and Trish on these matters, so we are on a trajectory to not get our housing element certified. This could mean forfeiting the city’s ability to enforce our zoning and general plan, which could mean a developer could come in and build a high-rise with 20% BMR units with approval from the state or a judge, no say from the city. The question is how long will it take for either Tony or Trish to figure out what’s going on and start acting like one of the adults in the room.

      • MP says:

        I don’t know, Mr. Sullwold; it’s starting to sound more like a Grosvenor Gambit. Or maybe something new.

      • anonymous says:

        RHNA: I don’t know if that’s so. It looks to me that Trish & Tony promised to be no growthers. Were voted in that way. They seem to own that platform. The vote last November confirmed that platform. It seems that’s their leadership. Their angle on things at least. It’d be odd for them to vote for the housing element before them. It just seems to me Marilyn, John and Malia would vote for the housing element. But maybe you’re right that politics is funny. Who knows?

  5. David says:

    The idea that economic growth can continue forever on a finite planet is the unifying faith of industrial civilization. That it is nonsensical in the extreme, a deluded fantasy, doesn’t appear to bother us. We hear the holy truth in the decrees of elected officials, in the laments of economists about flagging GDP, in the authoritative pages of opinion, in the whirligig of advertising, at the World Bank and on Wall Street, in the prospectuses of globe-spanning corporations and in the halls of the smallest small-town chambers of commerce. Growth is sacrosanct. Growth will bring jobs and income, which allow us entry into the state of grace known as affluence, which permits us to consume more, providing more jobs for more people producing more goods and services so that the all-mighty economy can continue to grow. “Growth is our idol, our golden calf,” Herman Daly, an economist known for his anti-growth heresies, told me recently.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s