Measure A — On Its Last Leg?

(Originally posted on The Alamedan February 5, 2013)

Make no mistake about it: the zoning ordinance passed by Council last July ripped another chunk out of the hide of what remains of Measure A, the Charter amendment restricting housing development in Alameda.

On its face, the zoning ordinance allows what Measure A expressly forbids.  Measure A prohibits multi-family housing and caps density at 21 units per acre.  The zoning ordinance, however, re-zones 16 parcels located around town to permit building a total of 2,306 units of multi-family housing “by right.”  On these sites, the maximum density is 30 units per acre.

What is more, this evisceration of Measure A was accomplished not through a vote of the people, which the initiative required, but through a 4-1 vote by Council.  A Charter provision was “amended”– in fact, partially repealed — by a mere ordinance.

It was thus disingenuous, to say the least, for City leaders to proclaim, as they did at the July 17 Council meeting, that passage of the ordinance was necessary to “protect” Measure A, which otherwise was sure to be thrown out as “unconstitutional.”  You can’t inject the patient with a virus and then pretend it’s a vaccine.

But the dwindling band of Measure A adherents should not start circulating their recall petitions just yet.  In fact, the City has a solid legal argument for justifying part – but not all – of the action taken by Council.

Call it, “The devil made me do it” defense.

In this case, the “devil” is state law.  The basic framework is this:

•  A state agency determines how much housing each region in the state “needs” at each of five income levels (the “RHNA”).
• A regional council of governments – for the Bay Area, the Association of Bay Area Governments (“ABAG”) – then allocates the RHNA among the cities within its jurisdiction.
• As part of its General Plan, each city must adopt a Housing Element that, among other things, shows how it has met, or will meet, its allocated share of the RHNA in each income category.
• If a city’s land inventory currently does not contain enough sites to hit the number(s) set by the RHNA, the city must re-zone sufficient sites to fulfill the unmet quota.

If a city council adopts a zoning ordinance that re-zones sites in order to satisfy the city’s RHNA – and no more – the ordinance in all likelihood will be upheld even if it conflicts with an existing charter provision.  This is the effect of the so-called preemption doctrine.

The State Legislature has declared that the “availability of housing is of vital statewide importance.” That being so, if a conflict exists between state housing law and local law (even a charter provision), state law wins.  To the extent that a zoning ordinance adopted by a city truly is necessary to meet an RHNA quota (or otherwise to comply with state housing law), any existing local law inconsistent with the zoning ordinance is swept aside – or, to use the legal lingo, “pre-empted.”

As the staff at City Hall will be quick to tell you, the city of Pleasanton learned these lessons the hard way.  Pleasanton voters passed an initiative prohibiting construction of more than 29,000 units in the city.  ABAG then handed Pleasanton an RHNA allocation that required it to exceed the cap.  Characterizing the issue as “elementary,” the judge ruled that state housing law pre-empted the initiative, “rendering it void.”   Pleasanton had to do what the state told it to do, regardless of what its voters wanted.

Were the City of Alameda called upon to defend the zoning ordinance passed in July in court – and the suit filed by the East Bay Regional Parks District asks it to do just that – one can expect the City to argue that:

• The RNHA set by ABAG for Alameda required the City to permit development of an additional 2,420 housing units, including 1,178 units in the three “lower-income” categories.  (For ABAG cities, “lower income” means $65,350 or less for a family of four).
• A site allowing at least 30 units per acre is deemed to qualify as a “lower-income” site.
• The zoning ordinance created a new “MF District” in which multi-family housing and a density of 30 units per acre are permitted by right.
• The City then applied the new MF District zoning designation to 10 parcels with a total capacity of 1,246 units and counted these sites in the Housing Element toward the RHNA lower-income quota.
• By these actions, the City met its statutory obligation to re-zone sufficient sites to satisfy its RHNA lower-income quota, and, to the extent that Measure A would have stood in the way of achieving this goal, it was pre-empted.

A judge might very well agree with this argument and rule for the City as readily as the judge ruled against the city of Pleasanton – and for the same reason.  How else – other than hubris imbibed at the tables down at Mory’s – to explain City Manager John Russo’s confident denunciation of the East Bay Regional Park District suit as “irresponsible”?

If the City had stopped after re-zoning these 10 parcels, its litigation-averse leaders might be entitled to breathe easy.  But the City did not stop there.  In addition to re-zoning 10 parcels for multi-family housing in order to meet the RHNA lower-income quota, Council slapped the MF District overlay on an additional six parcels with a total capacity of 1,060 units.  All of these six sites were designated in the Housing Element for moderate and above-moderate income households; none was counted toward the lower-income quota.

And here’s where the City may run into a legal problem.   Remember that the key to the “the Devil made me do it” defense is that re-zoning is necessary to meet an RHNA quota or otherwise to comply with state housing law.  It is only in such a case that a charter provision such as Measure A can be overridden.

Even the City does not claim that it had to re-zone six parcels for multi-family housing and 30 units per acre in order to meet its RHNA moderate and above-moderate income allocation.  Indeed, for the two parcels in this category that did not already permit housing, a simple re-zoning to residential use compliant with Measure A would have been enough.

So what state law required the City to re-zone the additional six parcels as it did?  The City might point to the statutory admonition to “facilitate and encourage the development of a variety of types of housing for all income levels, including multi-family rental housing, . . .”   But surely re-zoning 10 parcels for 1,246 units of multi-family use was adequate to do the trick.  Re-zoning six more parcels and an additional 1,060 units seems like overkill.  And if the City went beyond what state housing law required, the premise underlying the “the Devil made me do it” defense evaporates.  Pre-emption does not apply, and the zoning ordinance falls because it conflicts with Measure A.

Or so the defenders of Measure A will argue.  Wouldn’t it be ironic if City staff was proved right all along: adopting the zoning ordinance did indeed protect Measure A, but only because it is the ordinance itself, not Measure A, that is found to be invalid?