HCD speaks

On the afternoon of November 29, there appeared in the email inbox of City Planner Andrew Thomas, the staffer responsible for drafting the City’s Housing Element for the next eight‑year planning cycle, a letter signed by Paul McDougall of the state’s Department of Housing and Community Development.

The letter, which purported to provide “guidance regarding state law and local provisions restricting multi-family uses and allowable densities” (i.e., Article XXVI of the City Charter, aka Measure A), didn’t make much of a splash.  Indeed, even though City Manager Eric Levitt immediately forwarded it to the entire City Council, neither Mr. Thomas nor any Council member brought it up at the special Council meeting the next day.

But it would be a mistake, we think, to dismiss the letter as a non‑event.  Its timing was curious, to say the least.  And its significance depends on whether it was intended simply as an expression of opinion – in which case one could just add it to the pile of arguments, pro and con, about Measure A – or instead as a message to Mr. Thomas and Council about what actions the City should take to assure certification of its Housing Element – in which case every interested party would be well-advised to pay close attention.

First, the timing.

Back in February, Mr. Thomas asked Council to authorize him to “request updated guidance from the State of California regarding options for how the City Council may adopt a Housing Element consistent with State Housing Law, while still respecting the City Charter and the recent decision of the voters of Alameda to retain a citywide multifamily prohibition.”

Council agreed.  As it happened, Mr. McDougall himself was present (via Zoom) at the Council meeting, and, pressed by Mayor Marilyn Ezzy Ashcraft to estimate when he could give an answer, he promised her that “we will certainly do our best to respect your request to [respond] as soon as possible.”

Months then passed without any word from HCD.  Mr. Thomas told us that he followed up several times with Mr. McDougall only to be told that HCD was “swamped” with the task of reviewing draft housing elements submitted by other cities.

Then came the email on the 29th.  This happened to be one day before Mr. Thomas was scheduled to present Council with the most recent draft of the City’s Housing Element, which contemplated re-zoning a host of residential and commercial parcels across the island to permit multi-family housing with densities exceeding those allowed by
Measure A.

The timing, Mr. Thomas told us, was “absolutely a coincidence.”

We have no reason to disbelieve him – indeed, he’s always been straight with us – but during the pandemic we’ve watched too many British detective shows to count ourselves as believers in coincidences.

About a month ago, Mr. Thomas said, he had taken advantage of HCD’s offer to meet with local planners, and, at that meeting, he outlined the proposal he would be presenting to Council.  We can’t help but suspect that Mr. McDougall and the HCD staff thought that, by delivering the letter they did, they would be supplying Mr. Thomas with ammunition he could use if any Council member objected to the wide‑ranging re-zoning he proposed.

Now to the content.

Much of the analysis in the McDougall letter is familiar to those who have followed the Measure A debate.  Indeed, a lot of it reads as if it had been written by Mr. Thomas himself, who published his own scathing critique of the Charter provision in December 2019.  (Article XXVI, he concluded, “does not support the general welfare of the community, does not support the community’s stated General Plan goals, and is not equitable.”)   But two statements in the letter stood out.

One was this: “The Measure A provisions are in conflict with state law and should be voided.”  (Emphasis supplied.)

If this statement was intended simply as an expression of opinion, it qualified Mr. McDougall for admission to the club of Measure A foes headed by Mayor Ashcraft and Councilman John Knox White, who convinced their colleagues to put Measure Z on the ballot last November.  After all, what was the ballot measure other than an attempt to “void” the Measure A provisions in the Charter?

But the statement would be more perplexing – and more troubling – if it is truly intended as “guidance” to Mr. Thomas and the Council in the preparation of the next Housing Element.

If that is the intent, just how does HCD expect the City to accomplish the recommended result?  City Council can’t “void” Measure A on its own, because Article XXVI is part of the Charter, and only the voters can repeal a Charter provision.  Moreover, the effort just a year ago to get the voters to repeal Article XXVI failed abysmally.  (Measure Z was defeated by a 60‑to‑40 percent margin.)

So what does HCD suggest the City do now?  Put another repeal measure before the voters, but, this time, create a ballot that contains a single box for a voter to check:  one that says “Yes”?  Or maybe hire a professional marketing team that will do a better job than Ms. Ashcraft and Mr. Knox White did of selling the idea of repeal to their constituents?  (Hint:  Don’t tell Alamedans that their neighbors who proposed or are now defending Measure A are a bunch of racists.)

Skeptical as we may be of bureaucrats, we can’t believe that the HCD poohbahs really were advising the City to do something they knew (or should have known) it could not do.  So we searched the letter for more realistic “guidance.”  And this is where we latched onto another perplexing sentence.

It is this:  “HCD understands Alameda has adopted some measures to attempt to address these concerns [about Measure A], including a density bonus ordinance and a Multifamily Residential Combining Zone, but Measure A provisions remain a significant constraint on housing choices, supply, and affordability and conflict with several provisions of State Housing Element Law.” (Emphasis supplied.)

This statement doesn’t seem to jive with the position HCD had taken in the past when it certified the City’s 2007‑14 and 2015‑23 Housing Elements.  On both of those occasions, the City represented that, by enacting the two ordinances, it had satisfied the statutory mandate to “address and, where appropriate and legally possible, remove” the “constraint” imposed by Measure A – and HCD didn’t disagree.

For example, in 2012, the Housing Element submitted by the City stated that, “With the recent adoption of the Density Bonus Ordinance and the proposed MF Overlay Zone, the City of Alameda will have ensured that City Charter and Municipal Code does not create unnecessary constraints on the development of a variety of housing types in Alameda.”

Having reviewed the draft, HCD concluded that it met all of the statutory requirements.  Accordingly, it certified the Housing Element as complying with state law.

Likewise, in 2014, the Housing Element submitted by the City stated that, “The potential constraints imposed by Measure A on housing development, housing diversity, and housing affordability have been mitigated by the adoption of the Multifamily Overlay District, the Density Bonus Ordinance, and the Inclusionary Housing Ordinance.”

Once again, having reviewed the draft, HCD concluded that it met all of the statutory requirements and certified it as complying with state law.

Now, however, HCD seems to be saying that the density bonus ordinance and the multi-family overlay don’t alleviate the “constraint” after all.  If this is simply Mr. McDougall’s opinion, no harm done – unless HCD were to turn around and de‑certify the 2015‑23 Housing Element currently in effect (again, an unrealistic possibility).

But if the statement is intended as “guidance,” the message is murkier.  Suppose that the City submits a 2023‑31 Housing Element showing that it can meet its RHNA quota relying solely on the multi‑family overlay (perhaps raising the maximum allowable density and applying it to more sites) without re‑zoning any residential parcels in a manner inconsistent with Measure A except to the extent necessary to comply with SB 9.  (Can’t happen, you say?  Well, won’t you be surprised when one of those shopping center owners Mr. Thomas is pursuing tells him it wants to build, say, 2,000 new units rather than the 1,000 he was counting on it for?)

How would HCD respond?  If this were 2012 or 2014, we’re pretty sure that it would find that our hypothetical Housing Element “met all statutory requirements” and certify it accordingly.  But in 2022?  As a result of McMcDougall’s letter, we’re not so sure.

“Constraints must be addressed,” he writes at another point in the letter, “regardless of demonstrating adequate sites to accommodate the regional housing need.”  And if Measure A “remains a significant constraint” even though the City has enacted the density bonus ordinance and the multi‑family overlay, the clear implication is that it must do something more in order to get HCD to certify the Housing Element this time around.

What that “something more” might be isn’t clear.  But with his most recent draft Housing Element, Mr. Thomas is headed in the direction Mr. McDougall apparently wants Alameda to go.

As we pointed out in our October 31 column, the set of zoning changes the City Planner is proposing would turn Measure A into a dead letter, since all residential sites, everywhere in the City, would be zoned to permit multi‑family housing at densities exceeding the Measure A limit.  As a judge might put it, last November’s ballot measure failed to repeal Measure A de jure, but next year’s Housing Element, if Mr. Thomas’s proposal is adopted, may accomplish the same result de facto.

Assuming that’s the goal Mr. McDougall is setting out for Alameda, Mr. Thomas’s current version will give him what he wants:  Measure A “should be voided,” the letter admonishes – and, for all practical purposes, it will be.

Now, if Mr. McDougall’s letter indeed has a prescriptive intent, it may strike some as odd that a state administrative agency like HCD could presume to assert such enormous power over a local government.  Who elected Paul McDougall to decide what Alameda’s City Charter should contain or what its zoning ordinances should allow?  True, he’s purporting to interpret state housing law.  But an agency’s statutory interpretation deserves obeisance; it does not demand acquiescence.

Of course, if Council balks at treating Mr. McDougall’s “guidance” as definitive, it can exercise its own independent judgment and adopt a Housing Element that its members believe satisfies the City’s RHNA obligations and otherwise complies with state law.  And if Mr. McDougall, or Rob Bonta, or even Laura Thomas doesn’t like it, they know where the Alameda County courthouse is.  If we heard him correctly at Tuesday’s Council meeting, City Attorney Yibin Shen would be prepared to enter an appearance for the defense.

But our elected officials appear not be as comfortable in court as we are.  So maybe the easiest thing to do with Mr. McDougall’s letter is what Council did Tuesday:  just stamp it “Received” and file it away.


2007-2014 Housing Element: 2007-14 Housing Element Final

2015-2023 Housing Element: 2015-2023 Final Housing Element Background Report

2023-2031 Housing Element (November 2021 draft): 2021-11-16 Ex. 1 to staff report – (November) Draft Housing Element

November 29, 2021 letter from HCD: 2021-11-29 HCD letter to Thomas

About Robert Sullwold

Partner, Sullwold & Hughes Specializes in investment litigation
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26 Responses to HCD speaks

  1. William Smith says:

    The Affirmatively Furthering Fair Housing state legislation passed since the last housing element was certified requires City’s to zone for the construction of affordable housing in all neighborhoods. Affordable housing in these neighborhoods gives lower income residents access to better schools, better shopping, better services and better amenities. As Mr. McDougal stated, ” Measure A provisions remain a significant constraint on housing choices” in these single family neighborhoods with many opportunities currently paid for by everyone through their labor and taxes, but not currently available to low and increasingly middle income residents. The Measure constrains conversion of large single family homes into multiple homes, the least expensive and quickest way to create additional homes in the wealthier neighborhoods. Additional homes as second and units also allow older homeowners to stay in their properties – both by providing more income and services that make it easier for them to stay in their homes. The alternatives to creating more homes on the 70% of Alameda land that is devoted to single family neighborhoods are unacceptable and immoral: 1) continued increase in the number of homeless in the Bay Area, including Alameda, or 2) no new higher paying jobs in the Bay Area to curb the demand for lower paid support and service workers leading to economic and social stagnation.

    • NIMBYs Gonna NIMBY says:

      Thank you for highlighting Affirmatively Further Fair Housing. This was not mentioned anywhere in Sullwold’s diary. None of the NIMBY speakers during the special city council meeting even acknowledged it. It is what makes the next RHNA round so much more different than past ones. It is why multifamily overlays are no longer applicable, as they were in the past. Literally anyone can now file a suit against Alameda, and the complainant simply needs to show the HCD letter to a judge and the judge can then void Article 26 as unenforceable. Alternatively, the city council could blanket the entire city with multifamily overlay, rendering Article 26 dead. I do agree with Mr. Sullwold that the HCD letter should’ve gotten a bigger splash because it sets in motion a few things, none of which will leave Article 26 unscathed. I suppose not all death rattles can be audibly heard.

      • John Socks White says:

        I’m sure you are sorry the HCD letter didn’t cause more of a splash. You were all dressed up and nowhere to go. You need a vacation Zac. Give yourself and all of us a break form the incessant propaganda.https://ibb.co/pw9qyP7

      • zbowling says:

        @john socks white

        Heh. Sorry they comment above was not written by me. I don’t disagree with it. I rarely comment on this blog.

  2. Marilyn Pomeroy says:

    I was present at the recent City Council zoom meeting on the housing element and the proposed changes and was struck by how many people hold mistaken impressions about the proposed re-zoning and what it would and wouldn’t accomplish. It would not create more low income housing. If someone builds an ADU in their Back yard, they would be free to sell or rent it for whatever price they desire, market rate would be a good guess. It seems that many newer residents of our fair city are not aware of the history and reasoning behind measure A in the first place, and don’t understand what was happening to our beautiful stock of Victorian homes, or that many of them have already been turned into rental units, which currently house tenants paying less than market rate rents. Further, I have to say, I was angered and dismayed at the portrayal of long time residents, by these same ill informed speakers, as being simply Nimbys, standing in the way of progress. Spouting propaganda from so-called fair housing groups is not going to get us where we need to go. Re-zoning single family homes would constitute a taking of value by the city government and as such, would warrant collective legal action by the affected residents, not to mention and undemocratic voiding of a recent election which made clear that the majority of residents are not in favor of overturning measure A.

    • Measure Z Volunteer says:

      Marilyn – actually, ADUs can only be rented out. They are not for ownership. The new State Bill 9 would effectively make ADUs sellable – splitting lots and selling the new lot(s).

      Whether or not it would create more “low income housing” – that depends. “Affordability” means different things – you’re only thinking of “below market housing.” There is also “affordable by design” – smaller lots and smaller homes that are still market rate, but hundreds of thousands of dollars more affordable than full-sized 2,000 plus lots, and multifamily units that capitalize on economies of scale in construction to reduce total cost.

      I am very perplexed by your statement, “re-zoning single family homes would constitute a taking of value.” This is completely false. Restricting homeowners from what they can do with their property, such as splitting it and getting extra rental income out of it, is what constitutes taking of value. “Re-zoning” simply means allowing homeowners more choices in what they want to do with their property – the ultimate local control. And no homeowner will make a choice that intentionally reduces the value of their home.

      I am also perplexed by your other statement, “undemocratic voiding of a recent election.” The last time I checked, Alameda is a subdivision of the state of California, and state law usually trumps city law. It would be undemocratic to not recognize how federal trumps state, state trumps local.

      You confidently started your statement with “was struck by how many people hold mistaken impressions…” and then proceeded to have nearly every point of your statement wrong.

      • Marilyn Pomeroy says:

        “The new State Bill 9 would effectively make ADUs sellable – splitting lots and selling the new lot(s).” Sounds like they will be sellable to me.
        “There is also “affordable by design” – smaller lots and smaller homes that are still market rate, but hundreds of thousands of dollars more affordable than full-sized 2,000 plus lot” ? In what world is a 2000 square foot lot full size? Not in Alameda, that is for sure. And you can parse the term affordable all you want, but we all know what it means.
        ““Re-zoning” simply means allowing homeowners more choices in what they want to do with their property – the ultimate local control.” Sounds like the double speak so common in fake news these days. When a person buys a home in an area that is
        zoned for a single residence, and then the zoning is changed to permit multi unit housing, that constitutes a reduction in the value for that home owner, If she had wanted to live in a zone for multi units, or commerce, she would have made that choice and purchased there. I have the impression that you do not own a single family home in Alameda, Is that impression mistaken as well?

      • Measure Z Volunteer says:

        Marilyn – your unfortunate comment just reeks of privilege. You don’t think 2,000 sqft is a large lot? Most Alamedans who are struggling to get by while living in small studios or shared apartments would think that’s heavenly. You have the impression that I don’t own a single family home? That is a very out of touch and classist statement – and you’re basing this on what? I dared to care about my neighbors who are facing housing insecurities? I only sought to highlight several incorrect portions of your statement and you responded with a classist ad hominem. Have a good day.

      • Marilyn says:

        Thank you. Hope yours improves as well.

    • NIMBYs Gonna NIMBY says:

      Hi Marilyn. You said: “It seems that many newer residents of our fair city are not aware of the history and reasoning behind measure A in the first place, and don’t understand what was happening to our beautiful stock of Victorian homes.”

      During the 2020 campaign, a couple of local historians dug through the newspaper archives and found no mentions of the word “victorian” ever used during the 1973 Measure A campaign. Not even once, in a letter or a campaign or a newspaper article. This seems to be historical revisionism (of course, I’d be happy to be proven wrong, if anyone could produce one document from that period).

      The 1973 Measure A campaign was to stop the new development that was happening along South Shore and on Bay Farm Island. In fact, we found this Measure A campaign flyer, “We have enough townhouses, apartments, and condominiums.” See image below. Not a single thing about victorians – lots of unfortunate dogwhistle language about “creating a life style foreign to Alameda,” but as Mr. Sullwold said, we’re not supposed to point out the racist history of Measure A because white voters don’t like hearing that kind of stuff.


      • Marilyn says:

        Just take a drive down Clinton, San Jose or any number of other streets in the main Island and you will see clearly what Measure A was designed to prevent. Imagine if all of those boxy apartment buildings had not replaced so many stately old houses on our main streets . I am thankful that that Type of redevelopment was halted before it was too late.

      • the original dave says:

        Be careful with making firm conclusions about cherry picked snippets from old newspapers. Local papers in particular print BS that is in no way a conclusive or even accurate portrayal of the mindset of a time. Someone perusing the Sun 50 years from now might well conclude that the inimitable crackpot Jeffrey R. Smith represents today’s Alameda.

      • carol says:

        Somehow, I am never impressed when a well-paid white male software engineer under the age of 45, who only knows what he can look up online, rewrites the history I lived through and calls me a racist. It just isn’t compelling or persuasive.

      • zbowling says:

        As one of the 40 or so folks whomever chimes in on anything housing related happens that just even barely fits that description, I’m going to assume that was directed at me. First, I didn’t write the above comment. Second I find it interesting that the folks against repealing measure A would often make such a wild leap.
        It always goes something like:
        Person A: this measure has had the impact of racially excluding certain folks from our community. Here is data. It’s was also passed around the same time similar measures were passed across the country after the fair housing act that we have evidence of being passed because they were exclusionary.
        Person B: but I like the measure because of what it does for me today. Why are you calling me racist?
        Person A: what? I never did. I’m just stating the objective fact that..
        Person B: look everyone! This guy is calling us racist!!
        Classic strawman red herring distraction.

  3. Common Sense says:

    What a dumb and misguided law. No upscale houses will be bulldozed, as the land is too expensive to redevelop. Since there is no restraint on the type of housing built in any rezoned areas, the economic effect of this bill, if any, will be to devastate poor Black and Brown communities of renters, where land is cheaper to acquire, leading to more gentrification. Foreign investors, who own up to 15% of single family homes in California, will lead the charge to acquire cheap land outbidding new home owners with all cash offers.

    Progressive thinkers who support these policies are doing exactly the wrong thing for the constituencies they think they are helping, just as the Prop 47 “no bail” laws have led to an increase in all types of crimes, which hit poor communities the most.


    • Measure Z Volunteer says:

      Nothing quite like a white lady adopting the language of the progressive protestor to push her anti-housing agenda and do harm to the communities of color – a wolf putting on a sheep’s clothing. Don’t you dare speak on behalf of the minority community when no respected minority organization has spoken out against the state’s effort to promote more housing. The national democratic platform, and President Joe Biden’s White House policy – is to push for more housing choices, including multifamily housing, and to do away with exclusionary housing laws.

      • Marilyn Pomeroy says:

        Your responses, are why there is so little public discourse on these issues. People don’t like being attacked for their views, and these attacks create a toxic environment that makes people disinclined to speak up.
        I am in no way anti-housing. And I am not attempting to represent the minority community, just common sense, which is seemingly in such short supply. There are plenty of ways to increase the housing stock in Alameda that don’t involve a blanket rezoning of all of the residential neighborhoods.

      • John Socks White says:

        Wow. Is this about race Jason?
        You are calling out someone because they are white?
        [Ed. Note: The remainder of this comment has been deleted because (in our view) it constitutes a personal attack on the character of another commenter.]

  4. We regret to say that recent comments are drifting in a direction we don’t like: away from reasoned critiques and toward personal attacks.
    Let me restate our policy: We welcome comments that take issue with the piece or subsequently posted comments. We even generally tolerate a bit of invective. But if a commenter simply wants to insult or disparage a person with whom he or she disagrees, there are forums, on social media and elsewhere, that invite and even encourage that approach. This is not one of them.

  5. That Wasn't Me says:

    Ahh…I was in Venice at Harry’s Bar and ordered a Classic Strawman Red Herring Distraction. That was a perfect moment. It was the best one I’ve ever had and it lead to a long afternoon discussing philosophy which ended with a toast to the “Fallacy Fallacy” which occurs when someone assumes that if an argument contains a fallacy, then its conclusion must be false.

    Here’s the thing Zac, Nimby, or whoever you are…. You support a “market solution” for the very problems that were caused by…wait for it..the market. Good luck with that.

    Bartender! I’ll have an “Irrefutable”

    • NIMBYs Gonna NIMBY, Not Zac says:

      Article 26, Measure A, is actually an interference of the free market. It’s restricting supply that could otherwise cater to all segments of the market. Imagine being a manufacturer and being told you can only make and sell large sedans and SUVs, but not tiny coupes that only young buyers can afford. Prop 13 is another free market distortion, incentivizing homeowners to not put their homes on the market but instead either stay as long as they can or rent it out and buy a second home, which cripples supply while demand continues to climb. Other states freely sell and buy homes without these free market interferences.

      • Karen Bey says:

        I think you’ve gone too far to suggest that you have the right to tell someone because they’re old – to get out and sell to a younger person. Who’s acting privileged now?

        However, I think we’re getting to the heart of the problem. Young people are feeling frustrated that they have little or no chance to ever afford a home in Alameda.

        We purchased our first home in Alameda direct from the owner in the 1980’s for $80,000 with $5,000 down, and the owner carried the note for 30 years because he wanted to supplement his retirement. It was a total fixer-upper 1891 Victorian. We were fortunate, (although– it took 8 plus years and a lot of money, time and sacrifice to restore her) – but it was how we got our first home.

        These opportunities rarely present themselves anymore, but I’m not convinced young folks have the stamina and patience it takes to restore a 100-year home.

        That said, I think we need to find ways to understand and support the younger generation and their struggle for home ownership. This is the conversation we should be having.

        But first, what’s missing is some respect for your elders.

      • NIMBYs Gonna NIMBY says:

        Karen Bey: you read far too much into my comment. I made no mention of age, you made that wild leap. Data scientists have noted that housing turnover in California is far lower than in most other states, and the source for this was Prop 13. Moving every several years resets the property tax assessment base, so there is significant tax incentive to stay put longer. This artificially constrains supply – market distortion. Typically, as adult children move out, parents downsize their homes. But in California, homes are more likely to stay in families longer as inheritance, even though there is a tax law that allows seniors to trade down without penalty.
        To get back to my original point: Prop 13 and Article 26 are two examples of interference of the free market. The free market, if left uninhibited, would have allowed for ample supply of homes to meet demand. Limiting the type of homes, and limiting how often these homes turnover on the market, are one-two punches for struggling young Alamedans looking to set roots on the island. To speak on their behalf is empathy, not privilege.

      • permanentevigilante says:

        I don’t know what “data scientists” you’re reading, but the NRIA Partners Portfolio Fund email of yesterday (from NJ) says: “today’s mature/older generation of property owners is largely not moving or selling property, and instead are aging in place”. The whole idea of settling down is about buying a place so you don’t have to move frequently. Plus real estate is usually a person’s greatest investment. Can be used as a reverse mortgage in later years. Disabled folks customize their homes with universal design so they can live comfortably without hired help. People are in general living longer, too. They’re not gonna give up what they’ve built with sweat equity.

  6. Puzzled says:

    I am still trying to figure out how the state can mandate additional housing when they cannot guarantee water and power for the existing homes.

  7. Karen Bey says:

    A 90-year old friend of mine shared with me that she sold her house in the Trestle Glen area in Oakland when she retired at age 65 and moved into a retirement home. She said it was the biggest mistake she ever made. For 20 years, she was surrounded by sickness and death and lived in a constant state of “waiting to die” and depression. In addition, the complex kept increasing her rent and reducing the services she had originally paid for. She eventually moved out and is living with her daughter in a lovely home surrounded by her grandchildren and is much happier.

    She said if she had it to do all over again, she would have kept her home and aged in place – and hired a nurse as needed. Many retirees are now choosing to age place, in the comfort of their home surrounded by their friends, young families, parks, and the amenities they are accustomed to.

    As for helping the younger generation achieve home ownership, I think it’s a worthy cause and can be achieved without pitting one generation against the other.

    I think this falls into the category: Seek first to understand, then to be understood.

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