Mr. Thomas makes the opposition’s case

We don’t know whether City Planner Andrew Thomas was a member of the Philomathean Society at Andover, but he recently showed that he has mastered one of the skills required of a top-flight high-school debater:  being able to argue – convincingly – both sides of an issue.

For the Planning Board’s June 14 meeting, Mr. Thomas submitted a staff report in which, citing multiple reasons, he recommended that the City of Alameda decline to appeal the RHNA allocation of 5,353 new housing units assigned to the City by the Association of Bay Area Governments.

The Planning Board accepted the recommendation with no debate – and scant comment.

Mr. Thomas then prepared a staff report for Council’s July 6 meeting citing the same reasons and making the same recommendation.  This time, however, there was debate, and by a 3‑to‑2 vote, Council not only directed Mr. Thomas to file an appeal but specified the grounds on which it should be based.  Since the appeal deadline was July 9, he had all of three days in which to accomplish this task.

The City Planner did as Council directed.  But he didn’t pull any punches.  Drawing on the emails sent, and research done, by public commenters, he put together a cogent case for reducing the City’s RHNA quota.  Even Paul Foreman of the Alameda Citizens Task Force, who has been fighting for a lower RHNA allocation since last October, found the appeal “very well‑written and comprehensive.”

We’ll discuss the substance of the appeal in a moment, but first it’s worth looking at how it came to be authorized in the first place.

Before the July 6 meeting, one might very well have predicted that Council members Trish Spencer and Tony Daysog would vote to authorize an appeal, and, indeed, Ms. Spencer showed up at the meeting with a resolution to that effect, which Mr. Daysog seconded.  At the same time, however, one would have expected that the other three Council members, all of whom routinely espouse pro‑housing sentiments, would object, and the motion would fail.

Two of them – Mayor Marilyn Ezzy Ashcraft and Vice Mayor Malia Vella – did in fact object.  (“I will chime in and say, most emphatically, that I do not support an appeal,” the Mayor said.)  But Councilman John Knox White did not.  Instead, he announced that he would cast the third vote needed to approve an appeal.

This may have caused a few jaws to drop.  Had Mr. Knox White suddenly decided that ACT and its supporters were right all along and ABAG had shackled the City of Alameda with an unrealistic number of new housing units?  Not really.  In fact, he made clear that his vote came with conditions:  He’d support an appeal as long as it alleged certain specific grounds, which he then proceeded to dictate.

Mr. Knox White, of course, invariably wants to be the one who makes the rules.  But this time it appeared he had something else up his sleeve.

The appeal should begin, he decreed, by stating that the City wanted the RHNA quota reduced on the grounds that “meeting our RHNA allocation means thwarting the will of the voters.”

Say what?

Well, Mr. Knox White still has not gotten over the resounding defeat of Measure Z, the ballot measure he conceived and promoted in an attempt to overturn Measure A, the prohibition of multi-family housing and limitation on residential density set forth in Article XXVI of the City Charter.  Ever since, he has persisted in misinterpreting the failure of Measure Z as an expression of the “will of the voters” that the City should defy state housing law, including the obligation to satisfy the RHNA quota set by the regional authorities.

But whether to comply with – or defy – state law was not the issue on the ballot last November.  And it is not the issue involved in the appeal.  By appealing, the City would not be challenging ABAG’s authority to establish a RHNA quota or the City’s duty to meet it.  Instead, the City simply would be contending that the number the regional planners came up with is too high.  By inserting the defeat of Measure Z as a basis for appeal, Mr. Knox White was petulantly pushing the City into pursuing a perverse position.

Even worse, it is a position that Mr. Knox White knows, or should know, is a loser.

As the staff reports to the Planning Board and Council (which, presumably, Mr. Knox White read) show, the Government Code precludes a city from obtaining a reduction in its RHNA quota in reliance on voter‑approved measures that “limit housing or that have the effect of limiting housing.”  Accordingly, the reports conclude, Measure A, even as “confirmed” by the defeat of Measure Z, “is not an argument for a reduction.”

Why would Mr. Knox White, who holds himself out as an expert on the law, insist that the City make a legally invalid argument?  We’d prefer not to believe that he was trying to set up the appeal to fail.  Yet by directing Mr. Thomas to include right off the bat an argument that ABAG would know was frivolous, Mr. Knox White would be undermining the City’s credibility and perhaps causing the regional planners to doubt the validity of the entire appeal.  Or maybe the ABAG staff would become so exasperated by such a meritless claim that they’d deliver a broadside Mr. Knox White could turn around and use to “prove” that, like him, ABAG considers Measure A to be “illegal.”

Showing no suspicion about any ulterior motive, Ms. Spencer readily accepted Mr. Knox White’s “friendly amendment” laying out his prescribed grounds for appeal.  She likewise accepted an amendment proposed by Mr. Daysog stating the specific number of new housing units – 2,650 – that a revised RHNA quota should require.  As thus amended, the motion authorizing the appeal passed by a 3‑to‑2 vote.

The burden then shifted to Mr. Thomas.

Although the City Planner began the appeal by referring to the vote upholding Measure A, he couldn’t really bring himself to regurgitate Mr. Knox White’s balderdash about reducing the RHNA allocation because it “thwart[ed] the will of the voters.”  (Not “making the City look stupid,” Mr. Thomas told Council at one point, would be his “first job” in drafting the appeal.)

Likewise, Mr. Thomas included a paragraph raising the contention, widely mocked by the pro-housing crowd, including Mayor Ashcraft, that Alameda is “unique” because it is an island.  (“The uniqueness club is not an exclusive one,” said the Mayor.)  But he dutifully recited the facts upon which that claim is based:  From Alameda, “access to the larger region [is] limited to four vehicular bridges and one tunnel all connecting to the already congested 1‑880 in Oakland.”

Having touched these bases, Mr. Thomas devoted most of the appeal to making a case that he himself had conceded in the staff reports might have some substantive merit.

The heart of the argument is this map:

The areas on the main island and Bay Farm shown in blue are those that will be inundated if, due to sea‑level rise and storm surge, the “total water level” in Alameda increases six feet above today’s mean high‑water level.  (Alternative assumptions about sea‑level rise and storm surges will produce more or less blue space, but flooding occurs in virtually every scenario.)

Yet it is precisely those areas – i.e., Alameda Point, the northern waterfront, South Shore, and Harbor Bay Isle — that provide the likeliest locations for building new housing units during the next planning cycle.  Indeed, as the appeal states, “all of Alameda’s potential housing sites to accommodate 5,535 additional units are located within future inundation zones.  None of Alameda vacant or underutilized lands are located outside of these hazard areas.”  (Emphasis supplied.)

The conclusion is clear:  if left unchanged, the RHNA target assigned to Alameda would require the City to permit housing on land at risk of going under water in the not‑so‑distant future.

Who possibly could want that result?  Not ABAG.  Indeed, according to the appeal, the RHNA methodology adopted by the regional planners recommends against putting new housing in so-called “Natural Hazard” areas that are especially vulnerable to sea-level rise (or earthquakes.)  Yet an analysis done by ABAG and the Metropolitan Transportation Commission shows that less than 50 percent of Alameda’s “urbanized area” is located outside of a Natural Hazard zone.  As a result, it simply is “not possible to construct Alameda’s 5,353-unit RHNA in areas” not exposed to those dangers.

In his staff reports, Mr. Thomas responded to a similar argument by noting that “all new developments in Alameda, both residential and non‑residential, are required to mitigate these risks by site and building design. . . .”  In the appeal, however, he suggests the rebuttal:  The future cost of “mitigating” the impact of sea-level rise – e.g., by building higher and higher sea walls – “will be enormous.”  Who’s going to bear that cost:  The City?  ABAG?  MTC?  Real-estate developers?  If the City were to place the burden on the private sector, the cost of “mitigation” eventually would become so prohibitive that no developer would be willing or able to afford it.  In that case, there won’t be any new housing units built.

In addition, the appeal points out, sea‑level rise is not the only environmental “constraint” on the City’s ability to meet a 5,353‑unit RHNA quota.  Last November, Council received a report from an outfit called Silvestrum Climate Associates noting that, as sea levels rise, ground water rises, too – and sea walls do nothing to stop it.  During wet winters, the report stated, ground water will begin to emerge above the land surface in Alameda, and, at a sea‑level rise of 5½ feet, more than half the island will be submerged.  “The rising groundwater hazards in Alameda will occur ahead of the rising sea level hazards,” the appeal states, and they “will be even more expensive and problematic to mitigate.”

Having checked all of the boxes on the list dictated by Mr. Knox White, Mr. Thomas added an argument of his own devising.

If all one did was to look at a map, one might see a vast area – some 1,560 acres – of undeveloped land on the western side of the island.  But that land is known as Alameda Point, and, as a result of the no-cost conveyance agreement between the Navy and the City, new residential development is capped at 1,506 market‑rate units, with each market‑rate unit above the cap costing the developer an additional $100,000 or more.  “This constraint by the United States government significantly limits Alameda’s ability meet the currently imposed 5,353‑unit obligation,” the appeal states.  “Under State Housing Law, the City of Alameda cannot accommodate its RHNA allocation on sites that are not economically feasible to develop.”

These arguments about sea‑level rise and the Navy cap reflect Mr. Thomas’s major achievement in the appeal:  showing that Alameda faces hurdles to meeting its RHNA quota that other cities within ABAG’s jurisdiction do not.  A portion of Berkeley may be affected by sea‑level rise – but there’s still plenty of lower‑risk sites on the flats and up in the hills that can be made available for new housing.  Not so in Alameda.  And no federal agency is imposing any limit on the number of new housing units that can be built on the site of the Concord Naval Weapons Station (or other former military bases in the Bay Area).  Not so in Alameda.

Ms. Ashcraft’s uniqueness club may have many members, but only a few, if any, of them confront the same obstacles Alameda does when it comes to finding sites to meet their RHNA targets.

According to the schedule published by ABAG, comments on RHNA appeals can be submitted through August 31, and a public hearing to consider them will be held in September or October.  The agency will issue a “written final determination” of the appeals in October or November, and the ABAG executive board will hold a public hearing to adopt the final RHNA numbers in November or December.

Thus far, no one – including Mr. Thomas – has placed any bets that Alameda’s appeal will succeed.  And we’re sure that the pro‑housing ideologues will be rooting for it to fail.  But even if ABAG rejects the appeal, those who would like to see the City’s RHNA quota reduced can take comfort in knowing that, thanks to Mr. Thomas, Alameda is taking its best shot.  In the meantime, if anyone has any brilliant ideas about where to put 5,353 new housing units, we’re sure he’d be happy to hear from you.

Sources:

Appeal: 2021-07-09 City of Alameda RHNA_Appeal_ Submittal

About Robert Sullwold

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

13 Responses to Mr. Thomas makes the opposition’s case

  1. nyborn2013 says:

    Alameda and New Orleans and Venice, Italy could become “sister cities” and enjoy how Alameda used to be along Shoreline. Nats, bugs, etc. Oh happy days!!

  2. save keystrokes says:

    “Mr. Knox White, who holds himself out as an expert on”

    ———————————–

    I recommend setting your computer’s F1 key to type out this fragment, as a great many sentences will begin with it.

  3. Another constraint besides rising sea level and the Navy cap on housing at Alameda Point is the declining availability of fresh water. How, exactly, is EBMUD supposed to guarantee a reliable supply of water for new homes when the Sierra snowpack is going to get smaller and smaller with each passing year? Denying climate change may allow for unlimited housing construction to continue for awhile, but it’s not a sustainable trajectory to be placing more demand on a dwindling supply of water.

    • Reality says:

      The water scarcity issue is one that backfires on Alameda NIMBYs, because it’s not an argument that’s unique to Alameda – you have to build these same number of units somewhere, whether in Alameda or elsewhere. Building elsewhere could actually exacerbate the overall demand on water, because you’re more likely to build single-family homes that force more suburban sprawl, which means more water for landscapes, parks, roadways, etc. And it’s been proven that single-family homes use more water than multifamily homes – so you’re inadvertently arguing for overturning Article 26 to build more homes here.

      • As you point out, water scarcity is not an issue unique to Alameda. Agreed. So, I’ll rephrase the question: Shouldn’t water districts, wherever they might be in California, have to provide assurances to new homeowners and local planners that the water district will be able to supply adequate water for, let’s say, multifamily housing residents for the foreseeable future? To address you concerns about single-family sprawl, adopt a statewide provision that the amount of water supplied to a dwelling unit will be based on multifamily housing unit usage – make it a per-bedroom limit – you can build a three-bedroom single-family house, but you get exactly the same amount as a three-bedroom condo or apartment – no surcharge for overage, which would allow wealthier families to continue using more than their fair share – you hit the limit, and your meter shuts off.

        Right now, even promises to supply water under my restriction scenario above would seem dubious, given recent reports about the state’s second largest water reservoir, Lake Oroville, being almost completely dried up https://www.kqed.org/news/11882312/lake-oroville-shows-the-shocking-face-of-californias-drought

  4. Really says:

    Thank you for writing about this issue.

    I have heard and read about numerous YIMBY’s like JKW call for AG Rob Bonta to sue Alameda for its audacity in rejecting Measure Z, warning that our defiance of state housing laws will result in a State takeover of our little city and a loss of state funds. This strange move by JKW “could” be his attempt at a poison pill, or it could be an attempt to position himself for a mayoral run next year. I mean the vote was 60-40 against Measure Z.

    And there is the dilemma in a nutshell…. housing advocates who gladly accept donations from building and trade unions and developers (Bonta, Vella, Oddie, Newsom) have blissfully ignored that global warming is leading to sea level rise and liquefaction charts show that an earthquake would devastate landfills in Alameda.

    The facts are that more appeals from the housing allocations have been filed by more California cities than ever before and 34 Southern California cities recently filed a lawsuit claiming the formula used by the State is inaccurate because the numbers are based on National not local housing needs.

    Given the political reality of the upcoming Newsom recall and local Assembly runoff, don’t look for Bonta to do anything to hurt his wife’s election or his own statewide chances of getting elected to his appointed position. Like JKW, self preservation is a time tested tactic.

    • Reality says:

      This argument about self-preservation and positioning himself for a mayoral run is pretty silly, no offense. I would caution against reading too much into the tea leaves – Malia Vella also campaigned heavily for Measure Z and in the same election she won with the most votes ever for a city councilmember. The previous record-holder was JKW himself, who did not surprise anyone with his pro-housing agenda.

      The liquefication argument also does not make a whole lot of sense to me – that means older housing stocks are at higher risk, and so there should be an increase in demand for newer homes that are built to better standards. It would also be more cost-effective to build multifamily units with deeper foundations that go into the bedrock than single family homes that are more prone to liquefication without proper anchoring.

      And the global warming argument also does not make sense… The national Green Party platform says multifamily homes are better for the environment because their carbon footprint and water use per unit is significantly lower than that of single family homes. This is echoed by the Democratic Party, the Green New Deal, and the Alameda Climate Action Resiliency Plan.

      And it’s pretty hilarious if you think there’s any chance of a successful Newsom recall. The recall petitions were done when schools were closed, businesses were shuttered, mask mandates were in place, and COVID cases were surging. By the time the election rolls around, we’ll be in the exact opposite place – schools are mostly open, businesses are booming again, masks are mostly coming off, vaccination is surging while COVID cases are dropping. Most people will be surprised that there’s even a recall election happening, the timing is just so bad and so puzzling.

  5. Reality?? says:

    It would also be more cost-effective to build multifamily units with deeper foundations that go into the bedrock than single family homes that are more prone to liquefication without proper anchoring.

    ——————————————————————–

    There is not a single square inch of Alameda where foundations are linked to bedrock.

    • Reality says:

      I was referring to San Francisco, where they have a hundred thousand people living in liquefaction zones in multifamily units without issues.

      • Really says:

        “Without issue”.

        Actually, SF just identified 2700 concrete buildings (like that Florida condo) that may be in danger of falling down in an earthquake due to potentially faulty cement work. But they have refused to notify occupants. It’s safe to say most people would want to know.

        On the recall, recent polling has Newsom in trouble. In September we will still have an unbelievable rise in crime, expanding numbers of homeless, wildfires, power blackouts, masked kids in school, Critical Race Theory in classrooms, possible state mandated shots for 12 year olds, and recalcitrant teacher’s unions. Each one of these issues drive Newsom opponents to the polls. Look for a low to medium turnout and a very close race.

  6. MP says:

    Water wings (for the floods) and regular wings (for the traffic) for all, and more units in Atherton where you don’t need either to get to Facebook.

  7. Edit: It looks like my comment got deleted. Reposting it.

    > Thus far, no one – including Mr. Thomas – has placed any bets that Alameda’s appeal will succeed. And we’re sure that the pro‑housing ideologues will be rooting for it to fail.

    Having watched all 45 appeals for SCAG (the council of government for Souther California) and watched all the excuses get defined in these appeals, this appeal will absolutely fail. You don’t even have to take bets and you don’t even have to root for it. I’ve already called it (even in public comment, twitter, etc). None of these issues rise to issues you can even legally appeal on. You can even raise issue with the methodology itself.

    Only one appeal of the 28 appeals in the Bay Area has merit and it’s the County of Sonoma’s second appeal (the county still has units assigned from an annexed unincorporated city still and the city that annexed it didn’t get a bigger allocation).

    What this appeal does is it puts it in writing why the excuses we have been touting ad nauseam why we are special don’t matter as much as we think they do when weighed against the issues other communities are facing and why we still have to do our part with combating the housing crisis.

  8. David says:

    Lost in all of this is the compelling argument that the RHNA formulas are double-counting, and overstating the number of ‘required’ units.

    Not to mention that RHNA law doesn’t actually enforce the construction of below market rate units. It’s a highly flawed law that is built on a pretense – one that is self-serving to corporate for-profit developers – that holds that for-profit companies will put themselves out of business by building so many market rate homes as to drive the price of them to zero.

    https://www.planningreport.com/2020/10/01/embarcadero-institute-responds-housing-formula-report-critiques

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