Putting AB 1322 in its Proper Context
Third in a 3 part op-ed that I authored for the Alamada Sun. Printed May 13, 2021.
Previously in this series, we covered how Alameda has to form a Housing Element in the next year, and we dived into the costly and perilous legal position the city faces.
The city is stuck in a Catch- 22. It must choose either to violate the City Charter or violate state law around forming a Housing Element plan. Either way, the city risks years of costly litigation.
Cities are charged with defending and implementing both locally passed voter measures and state law around housing, but there are no easy remedies today when those obligations conflict.
Given statements made by City Council in 1990 around the Guyton v. Alameda settlement, we know that any litigation over Article 26 of the City Charter also brings the risk of a judge finding it in conflict with state law and putting it aside after what may be a long and costly legal battle for the city.
City Council was provided a confidential legal analysis by the City Attorney’s office that likely covers all of the issues raised as was implied at a council meeting in February.
Assembly Bill (AB) 1322, if signed into law, would give Alameda a solution to this problem, one where the city would have an optional process to be able to comply with state law and pass a compliant Housing Element while protecting the city from litigation.
Like Alameda, the cities of Piedmont, Encinitas, San Jose, and Monterey Park are all among the cities facing similar problems and would also be able to use the process provided by this bill.
For Alameda, this bill would allow the city to do something that it has already done before — certify a Housing Element plan with the state that is in conflict with the City Charter — but this time, do so without the same legal risk it faces now.
The city may also run into issues with using the multi-family overlay solution given comments by HCD Director Paul McDougal at a City Council meeting in February referring to new laws passed by the state.
The bill works by providing local governments a way to recognize when there is a conflict and then allows the city to call a special meeting to resolve that conflict.
In that meeting, it could allow planning staff to bring forward comments to show how it’s not possible to pass a substantially compliant Housing Element given the constraints imposed by the past voter measure. The public would also be able to weigh in at this special meeting.
The governing body would then, after hearing all the comments, be able to make a motion to suspend the conflicting parts of a voter measure. That would then allow the city to be able to comply with its duty under state law in a timely fashion and meet strict deadlines imposed on it. The bill also creates an appeal process where a judge can review if a decision was “arbitrary and capricious or substantially unsupported by the evidence considered” at the special meeting.
Because this process is optional — the state is not declaring that certain voter measures are in conflict, instead leaving it to the locally elected leaders to make that determination with public input — the bill ultimately protects local control.
Our City Council has a fiscal responsibility to avoid pushing the city into costly litigation, so the process created by AB 1322 would be the best path forward for the city, assuming the bill is signed into law.
Zac Bowling lives in Alameda.
Originally published at https://alamedasun.com on May 13, 2021.