We tell it to the judge

The Court:  “Madam Clerk, call the next case.”

The Clerk:  “Yes, Your Honor.  Next on the docket is City of Alameda v. California Department of Housing and Community Development.”

The Court:  “What is this case all about?”

The Clerk:  “The plaintiff is seeking a declaratory judgment that state Housing Element Law does not require the City to re‑zone entire residential districts to permit multi‑family housing with a density of at least 30 units per acre.  It is also seeking a writ of mandamus directing the Department to certify a Housing Element substantially identical to the one submitted by the City in August 2022, but omitting Program 4 and related text.”

The Court:  “Counsel, state your appearances.”

MGR:  “The Alameda Merry‑Go‑Round for plaintiff.”

Mr. Knox White:  “John Knox White, Esquire, for defendant.”

The Court:  “Counsel, you may proceed.”

The foregoing, of course, is a fantasy.

It will never happen – and not only because Mr. Knox White is not a lawyer or a member of the State Bar of California and thus would not be given the opportunity to enlighten the judge with his legal wisdom.

No, the scenario we imagine is fantastical because City Council would never authorize the filing of such an action.  Even were a majority of its members convinced that the suit had legal merit, they’ve demonstrated a strong aversion to invoking the judicial process to press the City’s case.  (“You mean we’d have to pay lawyers?  And we might lose?  We’d rather spend the cash hiring another firefighter – it’ll only cost $225,000 per year!”)

More importantly, a majority of Council already has made it clear that, since an HCD staff member told City Planner Andrew Thomas that the Department won’t certify a Housing Element unless it requires citywide residential re‑zoning, there’s no point in seeing whether someone whose job is to interpret the law – a Superior Court judge – reads the statute the same way the HCD staffer does.

So this is just another lost cause, isn’t it, Senator Payne?

But whether or not it’s a cause worth fighting for, we think it’s one worth at least talking about before the inevitable 3‑to‑2 vote by Council next Tuesday to approve the final version of the Housing Element prepared by Mr. Thomas and to direct him to submit it to HCD.

Herewith, the brief that might be submitted on behalf of the plaintiff (citations omitted, and legalese – we hope – kept to a minimum):

STATEMENT OF FACTS

Until March 2022, residential zoning in Alameda was straightforward.  There were six residential districts.  No multi‑family housing was permitted in any of them except for the R-2 district, where duplexes were allowed.  And the maximum density was one unit per 2,000 square feet (i.e., 21.78 units per acre).

The first change occurred when Council enacted an ordinance implementing SB 9, which the Legislature had passed in August 2021.  The statute and ordinance applied just to the R‑1 zoning district, where only single‑family homes were permitted.  It allowed a homeowner to convert an existing single‑family home into a duplex or to build a new stand‑alone unit on an existing lot.  In addition, it allowed the homeowner to split the lot into two and build two units on the new lot.  If all of the new units authorized by SB 9 got built on a 5,000‑square‑foot lot zoned R‑1, the residential density for that parcel would rise to 34.92 units per acre.

But the real change was yet to come.  In drafting the 2023‑31 Housing Element, Mr. Thomas included a “program” – Program 4 – for a complete rewrite of the zoning ordinance.  Under his scheme, the multi‑family prohibition would be eliminated.  So would the 21.78‑unit‑per‑acre density limitation.  Instead, multi‑family housing would be permitted in every residential district, and the maximum density would go from 30 units per acre in R‑3 to 60 units per acre in R‑6.  (The basic maximum density for R‑1 and R‑2 would remain at 21.78 units per acre, but it could go higher in R-1 if additional units were built pursuant to SB 9).

Moreover, even these more generous density standards would be “waived” – i.e., no density limits would apply – in two circumstances:  where a proposed housing development in the R‑1 through R‑6 districts was located within a quarter mile of a “high‑quality transit corridor” and the new units were no more than 1,200 square feet in size, or where one or more units were added within an existing building.  (In the latter case, proposals to add more than four new units to a structure in the R-1 through R-6 districts would require a conditional use permit.)

On its face, Mr. Thomas’s proposed program violated Article XXVI of the City Charter, which Alameda voters had reaffirmed overwhelmingly in November 2020.  But the City Planner was no scofflaw.  Article XXVI, he contended, was “pre‑empted” by the state Housing Element law, which, he asserted, required the City to make the zoning changes he included.  It is that assertion we now ask the Court to reject.

ARGUMENT

  1. The State Housing Element Law Does Not Require the City to Re‑Zone Entire Residential Districts to Permit Multi‑Family Housing With a Density of At Least 30 Units Per Acre

We begin, as we must, with the text of the law itself.

Nowhere in the text of the Housing Element chapter (Government Code § 65580, et seq.) can there be found any requirement that a city must zone (or, if necessary, re‑zone) entire residential districts to permit multi‑family housing.

In fact, of the 16 times the Housing Element chapter uses the term “multi‑family” (or “multifamily”), only two are found in sentences that set forth generally applicable directives (sections 65583(c)(1) and 65583.2(c)).  But, on their face, these sections simply impose a duty on a city to “facilitate and encourage” residential development, including but not limited to “multi‑family rental housing”; they do not require the city to zone or (re‑zone) areas for any particular type of housing.  (We’ll discuss the implications of the separate duty to “affirmatively further fair housing” in Part 3.)

When the Legislature did intend to require re‑zoning, it said as much in so many words.  For example, section 65583(c)(1)(A) provides that, if a city does not identify sites “adequate” to meet its RHNA obligations, it must re‑zone those sites, “including adoption of minimum density and development standards,” within three years.  No similar language requires a city to re‑zone property if it fails to provide “adequate” multi‑family housing.

Moreover, multi‑family rental housing is only one of a “variety of types of housing” that a city must “facilitate and encourage.”  If the statute is to be read to require a city to zone (or re‑zone) for one housing type on the list, the requirement must apply to all of them.  Thus, every city, even a metropolitan one, must zone areas to permit, for example, “housing for agricultural employees.”  But that would be absurd:  there are (as far as we know) no commercial farms in Alameda.  And it is a cardinal rule of statutory interpretation that a law should be construed to avoid nonsensical results.

Even less compelling is the proposition that the Housing Element Law requires that every residential parcel must have a density of at least 30 units per acre.

The statute mentions a 30‑unit‑per‑acre density only once, and the context is crucial.  Every city is assigned a RHNA quota in four income categories, and the city must designate sites sufficient to make available the number of units specified for each one.  To aid in that task, section 65583.2(c)(3)(B)(iv) states that sites allowing at least 30 units per acre “shall be deemed appropriate” to “accommodate” housing for lower‑income households.

This section can be read chiefly to establish a presumption:  if a site is zoned for at least 30 units per acre, the city can count it toward the RHNA low‑income quota.  At most, it might be read to require a city to ensure that enough parcels will be zoned at 30 units per acre to generate the RNHA‑mandated number of low‑income units.  But even under this reading, the supposed requirement would end once the target was reached.  At that point, no more parcels would need to be zoned at 30 units per acre, and there would be no obligation to permit that density on any other residential lot.

  1. The City of Alameda Has Met Its Obligations Under the State Housing Element Law by Zoning Specific Sites for Multi‑Family Housing With a Density of 30 Units Per Acre

The claim that state law requires re‑zoning entire residential districts to permit multi‑family housing with a density of at least 30 units per acre represents an expansive – indeed, extreme – reading of the duties imposed by the Housing Element Law.  But a more moderate interpretation of the statute is possible – and more defensible.

Under this interpretation, the Housing Element Law could be read to require the City to permit some multi‑family housing in some of its residential and mixed‑use districts (where residential as well as other uses are allowed).  If it did so, it would fulfill its statutory obligation to “facilitate and encourage” multi‑family housing.  By the same token, the Housing Element Law could be read to require the City to zone some parcels at 30 per units per acre.  If it did so, it could, by taking advantage of the statutory presumption, fulfill its statutory obligation to make sites available for lower‑income households.  In either case, it’s not a matter of all‑or‑nothing; the duty is principally to do something to accomplish the stated goal.

But if this interpretation is correct, the City will be able to satisfy its statutory duties without having to resort to citywide residential re‑zoning.  The site inventory in the Housing Element includes the following projects:

Through these five projects, the City is making available a total of 1,834 new units of multi‑family housing, all of which are zoned at 30 units per acre, within the R‑4 and MX districts.  All of these units could be considered “low‑income” units under the statutory presumption, but even without it, the projects provide a total of 748 new units of low‑income housing.  (This is less than the RHNA quota for the VL and L categories, but the difference is made up through re‑zoning commercial sites for residential use.)  Under these circumstances, the citywide residential re‑zoning proposed by Program 4 is unnecessary to “facilitate and encourage” multi‑family housing or to make sites available for low‑income households.

The Housing Element can, and should, be certified without it.

  1. Re‑zoning Entire Residential Districts to Permit Multi‑Family Housing With a Density of At Least 30 Units Per Acre Is Not Necessary to “Affirmatively Further Fair Housing”

The state’s fair‑housing laws do not furnish an independent basis for requiring Alameda to re‑zone entire residential districts to permit multi‑family housing with a density of at least 30 units per acre.

Six sections of the Housing Element Law explicitly impose a duty related to “affirmatively further[ing] fair housing.”  Both sections 65583(c)(1) and 65583.2(c), cited above, refer to this duty.  Even more directly, section 65583(c)(5) requires a city to adopt a “program” designed to “[p]romote and affirmatively further fair housing opportunities and promote housing throughout the community or communities for all persons regardless of race, religion, sex, marital status, ancestry, national origin, color, familial status, or disability, and other [protected] characteristics. . . .”

The statute itself does not spell out exactly what such a program must comprise.  Nor has HCD promulgated regulations setting forth any standards.  Instead, in April 2020 and again in April 2021, it published “guidelines” advising a city about how to draft a Housing Element that would be consistent with the duty to affirmatively further fair housing.  Guidelines, of course, do not have the force of law, but they are relevant to statutory interpretation.

The initial set of guidelines was 11 pages long and offered concrete advice.  It recommended two “courses of action” for preparing the site inventory in a way that would affirmatively further fair housing.  A city should “[e]nsure that sites zoned to accommodate housing for lower‑income households are not concentrated in lower‑resource areas and segregated concentrated areas of poverty, but rather dispersed throughout the community, including in areas with access to greater resources, amenities, and opportunity.”  Moreover, where sites for low‑income housing were located in such areas, the city should adopt policies and programs designed to “remediate those conditions. . . .”

For the City of Alameda, these guidelines did not require any zoning changes other than the ones already proposed for the individual sites identified in the site inventory.  The only “lower‑resource” area in the city is a portion of the West End; there are no “Racially and Ethnically Concentrated Areas of Poverty” in Alameda.  As it happens, the sites for low‑income housing included in the site inventory are not concentrated in the West End.  Instead, they are scattered throughout the city.  Accordingly, the guidance originally given by HCD would not suggest any need for citywide residential re‑zoning.

(The map below depicts the “resource” areas in Alameda, with “housing opportunity sites” shown as red dots.)

The second set of guidelines is far longer (94 pages) than the first.   It also is more prolix and less concrete than its predecessor.

Toward the very end, the guidelines list, in a series of bullet points, a handful of recommended “actions” and “action areas” for a city to take to affirmatively further fair housing.  Re‑zoning entire residential districts for multi‑family housing with densities of at least 30 units per acre is not one of them.  To be sure, the guidelines recognize that re‑zoning is a tool a city can use to advance the statutory goal.  But it is a tool that a city should employ selectively, not indiscriminately.  (“In some cases,” the guidelines note, “a locality might find circumstances warranting rezoning above and beyond the regional housing need to promote more housing choices and affordability.”)  In any event, its use is not mandatory.

Moreover, the case for requiring citywide residential re‑zoning would be far stronger if the City had failed to take any other “meaningful actions” to affirmatively further fair housing.  In fact, however, according to the City’s own analysis, the individual sites identified in the site inventory, collectively, will lead to just the sort of results the guidelines are looking for – e.g., ameliorating “patterns of segregation,” improving “access to opportunity,” and reducing “displacement risk.”  There is no need for the City to make any wholesale zoning changes as well.

During public meetings, Mr. Thomas has relied not so much on the guidelines published by HCD, a governmental agency, as on a November 2021 letter written, at Mr. Thomas’s request, by an HCD staff member, Paul McDougall.  That letter, of course, carries no weight in court.  To use the familiar phrase, it’s just one man’s opinion.

Moreover, even if the Court were to consider Mr. McDougall’s views on the law, his letter does not suggest that citywide residential re-zoning is required.  The letter roundly condemns Article XXVI of the City Charter as “fundamentally contrary” to the state fair‑housing law.  But it does not declare that the remedy is to re‑zone entire residential districts.  Instead, it endorses re‑zoning on a site‑by‑site basis.  This targeted re‑zoning, which the City did for the prior planning cycle and which it also proposes to do for this one, would be entirely consistent with the statutory interpretation set forth in Part 2 herein.

Thus far the brief for the plaintiff.  Now back to the fantasy:

The Court:  “Thank you, counsel.  Mr. Knox White, do you have a brief to submit?”

Mr. Knox White:  “You mean a tweet?  I’ll have my publicist post a screenshot on her blog.”

Sources:

Housing element: 2022-11-15 – Resolution (draft H.E. attached) (clean copy)

Zoning ordinance: 2022-11-15 – Ordinance (zoning amendments attached) (clean copy)

HCD guidelines: HCD Memo on AFFH (4-23-20); HCD, Affirmatively_Furthering_Fair_Housing (April 2021) (clean copy)

About Robert Sullwold

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

17 Responses to We tell it to the judge

  1. Paul Foreman says:

    Very accurate beautifully written article. I have raised all of these issues except the 94 page HCD guideline, but if anyone were to sue the city or HCD, your “brief” would be a great source. I will send it to City Council and have it placed on the record when the housing element is brought before Council for a vote on Nov.15.

  2. Bill Pai says:

    Excellent analysis, thank you.

  3. Joyce Boyd says:

    The Housing Element is a complicated issue. Thank you for the research, humor, and clear explanation.

  4. Publius says:

    Mr. Knox White is no mere “esquire” and you disrespect him by not printing his complete title, which is “His Excellency, the Grand Exalted Vice Mayor.”

  5. dodikellehercomcastnet says:

    Thank you for a clear and engaging articulation of the issues.

  6. Suzanne says:

    Your essay should be required reading for everyone.

  7. richard94501 says:

    Let’s address the boogie man: If the draft housing element WITHOUT the citywide up-zoning is approved, “unpredictable things will happen.” But “unpredictable things will happen” if it is approved WITH the citywide up-zoning. The only difference is the scale.

    According to Planning Director Andrew Thomas, if the up-zoning is removed, and the Housing Element submitted by the city is NOT approved, a clause in the state housing law kicks in that suspends local zoning laws until a city has a certified Housing Element. This means any size housing complex can be built anywhere a developer chooses. The little-known “or else” clause in the housing law is called the Builders Choice.

    If this draft Housing Element with up-zoning IS approved, the only difference is one of degree. Instead of being able to plop down a 20-story apartment building in any neighborhood, a developer would be limited to a seven-story building anywhere it can be crammed in, as will soon be approved in the middle of the Admiral’s Cove two-story apartment complex after demolishing one four-plex. The draft Housing Element is Builders Choice Lite.

    • I think you mean “Builder’s Remedy”. As described in Exhibit 2, Item 7-C, of the Nov.3, 2022 Historical Advisory Board meeting; ABAG Technical Assistance for Local Planning bulletin: The HAA requires that cities make only one of five findings to deny a project. The first finding: “city has met or exceeded its RHNA for the proposed income categories in the development”, sounds like it may have been met by Alameda without the excessive upzoning Andrew Thomas proposes.

      • Paul Foreman says:

        Richard, The city does not need to have approval of its housing element to avoid the builders remedy, regardless of a lack of HCD approval, so long as the housing element is substantially compliant with State law..
        See https://abag.ca.gov/sites/default/files/documents/2022-11/Builders-Remedy-and-Housing-Elements-Nov-2022.pdf

        “HCD approval is not required for a housing element to be found substantially compliant with state law. State law provides that a city or county may adopt its own findings explaining why its housing element is substantially compliant with state law despite HCD’s findings. (Section 65585(f).) However, HCD is authorized to refer agencies to the Attorney
        General if it finds a housing element out of compliance with state law. (Section 65585(j).)”

        I am not suggesting that we should place ourselves at risk by failing to get HCD approval by Jan. 31, but there is a defense available if we don’t get certified.

        I am also suggesting that since HCD is required to act on our housing element submittal with 60 days, the deadline for submission is not Nov. 15, but Dec. 1 so that there is still time for the city to defer adoption and schedule a special meeting the 28th or 29th, with inquiries being made of HCD in the interim to attempt to determine in writing their requirements for certification.

  8. Paul Foreman says:

    The last paragraph of your fine brief needs a little clarification.. You appear to say that the draft housing element contains a site by site targeting for upzoning. That statement is true for every site except the proposed upzonings of the R-1 to R-6 zoning districts, which are clearly not site by site. This is especially troubling because, since the parcels in these districts are not vacant but occupied the Housing Element Law mandates a site by site analysis.

  9. Hmm. The following document was included in the Nov 3, 2022 HAB Exhibits, but is missing from the 11.15.2022 City Council Meeting Exhibits. https://abag.ca.gov/sites/default/files/documents/2022-11/Builders-Remedy-and-Housing-Elements-Nov-2022.pdf
    It is short and easy to read, and I find it very helpful to my understanding.

  10. Jmac says:

    Mr Sullwold you are clearly one of the smarter people in Alameda. How can the state mandate more housing when they cannot guarantee water and electricity to the existing residents. I cannot imagine how this could pass legal muster.

    • NYC/Alameda says:

      Indeed. And why is California mandating more housing when it is losing population? And while, concurrently, its existing population is relocating (without being told to by legislators, imagine that) to lower-cost areas of the State?

  11. Measure Z Volunteer says:

    This blog and especially Paul Foreman’s change.org do very little, if at all, addressing Affirmatively Further Fair Housing. Please take a look at AB 686, which was the impetus for launching the Measure Z campaign 2 years ago. It defines “affirmatively furthering fair housing” to mean taking meaningful actions that “overcome patterns of segregation and foster inclusive communities free from barriers that restrict access to opportunity” for communities of color, persons with disabilities, and others protected by California law. I believe it is effective January 2022, which is why Paul Foreman’s “research” of the 14 SoCal cities turned up nothing because their Housing Elements were due prior to this year. Very, very few builds are going into the high resource areas. Many are going into the low to moderate resource areas. That’s a problem. Removal of Article 26 is the only way to meet AFFH, which is necessary to get the Housing Element certified, which is necessary to stave off what’s called Builder’s Remedy. Wouldn’t it be ironic that the leaders of “No on Z” inadvertently triggers the very construction boom they tried to scare the voters with.

    • Publius says:

      There is a fundamental conundrum in that interpretation of AFFH.

      Most high resource areas are built out already. The shopping centers are largest source of available land there.

      But the reason the low resources areas are that, is because they are not built out yet. Build them out and voila, they become high resource areas. That goes a long way to forwarding fair housing. It makes a helluva lot more fair housing than pretending a thousand ADU’s will bloom in R1 areas will ever make.

      As for “overcoming patterns of segregation,” the map above shows no areas of segregation in Alameda.

      • Paul Foreman says:

        A good example is Site A at Alameda Point which is identified in the opportunity area map as low opportunity. The website that produces the map admits that conclusions are made from data from 2019 or before. The hundreds of folks who paid top dollar to live in the now built out portions of Site A would be shocked to learn they are living in a low opportunity area.

        The fact is the implementation of the Alameda Inclusionary Ordinance basically insures that lower income people will not be segregated into low opportunity zones because it generally results in the lower income housing being built close to the high income housing. See DelMonte, Site A at Alameda Point, Alameda Marina.

    • Paul Foreman says:

      Measure Z Volunteer,

      Y our conclusion is in conflict with the facts. Please see the HCD Site Inventory Guidebook, published in June of 2020, at page 8 where HCD states:

      “*NEW* Pursuant to AB 686, for housing elements due on or after January 1, 2021, sites must be identified throughout the community in a manner that affirmatively furthers fair housing opportunities (Government Code Section 65583(c)(10)). ”

      Click to access sites_inventory_memo_final06102020.pdf

      Every Southern California 6th Cycle housing element was due Oct. 15, 2021 and was required to follow the above. All 14 of the housing elements I reviewed covered fair housing extensively. None of them upzoned anywhere near all of their residential sites. Some of them retained existing densities below our 21.78 du/acre. All 14 housing elements were approved under the signature of Paul McDougall, the same HCD senior officer who Andrew Thomas now claims is requiring our proposed massive upzoning.

      I can disagree with, but still respect your view about the need for city wide upzoning, but lets give up the ghost. If City Council approves this it will be a discretionary policy decision, not a legal requirement of the Housing Element Law. Any Council Member who votes for this should “fess up” to this instead of insulting our intelligence by relying on the Flip Wilson defense, “the devil made me do it”.

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