Putting AB 1322 in its Proper Context

Second in a 3 part op-ed that I authored for the Alamada Sun. Printed May 5, 2021

In January 2023, Alameda must submit a plan that shows how it intends to comply with the state-mandated allocation.

If there is litigation (over the city’s not complying with state law) a judge could find Article 26 in conflict with state law and declare it unenforceable.

Last week, as part of this series of putting Assembly Bill (AB) 1322 into context, I laid out how the state Housing Element process ensures that much-needed housing is built in the state, how there can be conflicts between local voter initiatives and state law around forming a Housing Element, and how Article 26 of Alameda’s City Charter (added in 1973 via Measure A) creates one of those conflicts. This week I’ll dive more into that conflict.

In January 2023, Alameda must submit a Housing Element plan to the state that shows how it intends to comply with the state-mandated Regional Housing Needs Allocation (RHNA).

For the 2023–2031 cycle, the proposed number from the state is 5,406 new units of housing. This number must be planned and allowed for in Alameda before 2031. Some of those units will have to be high-density, multi-family housing under the rules.

Just like several other cities in the state, however, Alameda has a locally passed voter initiative, Article 26, in the City Charter. Article 26 gets in the way of complying with state law. Simply put, state law requires some areas to be zoned for new multi-family housing, while Article 26 explicitly requires that only single-family homes be built. State law also requires that some land be zoned for 30 units per acre, but the Charter explicitly only allows up to 21 units per acre.

This conflict isn’t new. In 2012 the City Council finally certified a Housing Element for the first time since 1990. They used something called a multi-family (MF) district overlay, which allows for multi-family housing and the densities required by law in specific parts of Alameda.

This overlay violates the charter. The city chose this route weighing the legal risks of violating state law versus upholding the charter and risking the city not having a certified Housing Element. This kept the city out of the cross-hairs of the state’s Department of Housing and Community Development (HCD) and from a lawsuit threatened against the city.

This RHNA cycle, the state has passed new laws and created a budget to strengthen HCD’s ability to enforce compliance by cracking down on cities that fail to do their part in solving the state’s housing crisis.

This direct conflict with state law was one of the primary rea sons why Measure Z, which would have repealed Article 26 entirely, was put on the ballot last November.

With the failure of Measure Z, the city has essentially two options: comply with state law and violate the City Charter by trying to use the MF district over lay again in more places or com ply with the City Charter and violate state law by not filing a Housing Element.

In either case, the city risks a lawsuit either for violating state law or violating the City Charter. The city is left in a potentially costly quagmire of litigation. The city could also owe legal fees if it loses to any party.

If there is litigation, a judge could find Article 26 in conflict with state law and declare it unenforceable. In 1990, to avoid this potential challenge and protect Article 26, the City Council voted to settle a case (Guyton v. Alameda) before the judge could render a verdict.

This was also the last year Alameda filed a Housing Element until 2012 when the city was threatened with another lawsuit.

As I noted in last week’s piece, if the city fails to certify a Housing Element, it risks losing funding and local planning control. A developer could bring a project to a judge, who could grant approval to build it, bypassing much of our city’s zoning and planning rules.

This is the situation Alameda faces today, and it’s not alone. A number of cities have exclusionary zoning laws, untenable height caps and floor area restrictions, passed by the initiative process, which would prevent those cities from forming a Housing Element without legal risk today.

In part 3, I’ll dive more into how AB 1322 comes into play, and how, if signed into law in its current form, it will give Alameda a third option to certify a Housing Element while protecting us from costly litigation and legal fees.

Zac Bowling lives in Alameda.

Originally published at https://alamedasun.com on May 5, 2021.