Putting AB 1322 in its Proper Context

First in a 3 part op-ed that I authored for the Alamada Sun. Printed April 28, 2021.

Last week, the Sun ran a story describing Assembly Bill (AB) 1322 (“Bill Could Circumvent City Charter,” April 22), explaining how the bill works. Space restraints did not allow description of the bill’s history and purpose: to assist cities with issues during the Housing Element process.

Having seen some confusion and speculation in Alameda and given that I’ve provided input on amendments to this bill in the past, I felt it was important to explain the issues. Given the complexity, this will be a three-part series as the bill progresses through the legislature.

AB 1322, as written today, helps a number of cities, including Alameda, avoid a potentially costly legal situation when conflicts arise between locally passed voter initiatives and state laws about forming a Housing Element. The bill gives Alameda a tool to allow the city to do something close to what it’s done twice before, but without incurring the legal risk it has in the past.

First some background. Right now the state is dealing with an unprecedented housing crisis: we’re not building enough housing for our population. Skyrocketing housing costs, displacement and homelessness are all a result.

The state must solve this problem. One of the systems at the state’s disposal to drive the development of new housing is the Housing Element process.

Since 1969, the state has required municipalities to write a new Housing Element and get it accepted by the state every eight years. A Housing Element is a plan where the city shows where they will allow for the Regional Housing Needs Allocation (RHNA), the amount of new low income, median income, and market-rate housing required by the state. For the 2022–2030 housing element cycle, Alameda’s currently proposed RHNA is 5406 new units of housing.

There are a lot of rules with forming a Housing Element, including showing that housing is zoned appropriately, that some of it is multi-family, that the plan is feasible, that there is reasonable or expected interest to build new housing where it’s specified, and that the plan doesn’t just stick all the new housing in one spot but spreads it out to improve equity.

Local planning staff is tasked with putting these plans together, with community input, and they often have to change zoning codes, height limits and other local rules to be able to comply.

The penalties for not complying are severe. Previously the state didn’t have the resources to enforce compliance, but this has changed this cycle with new laws and funding to finally crack down on cities.

With the laws in place today, a city can essentially lose all local control on housing if they fail to certify. Developers would have the freedom to bypass local zoning and restrictions and to build new housing if they can show a judge it would help meet the RHNA and provide some affordable housing. The city would also lose access to needed funding for infrastructure and other projects, like parks if they fail to certify.

This would be an absolutely terrible situation. You want the city to have a compliant Housing Element. For Alameda, this could even jeopardize the city’s ability to receive funding for the completion of Jean Sweeney Park.

Now let’s say your city is trying to put together a Housing Element and in doing so it realizes that it can’t comply with state law because of a past voter initiative that places restrictions on new housing. When passed, these initiatives may have not forced the city out of compliance but now, as state law has evolved, they prevent the city from being able to achieve a compliant Housing Element.

For Alameda, this situation is a reality. Article 26 of the City Charter (inserted in the charter in 1973 via Measure A) has both density restrictions and single-family home restrictions, which put us in direct conflict with the state requirement to pass a compliant Housing Element. This conflict isn’t new, however.

In the next part of this series, I’ll dive more into this conflict in detail, how Alameda has dealt with it before, current options given new laws this cycle, and the potential costly legal situation it faces now.

Zac Bowling lives in Alameda.

Originally published at https://alamedasun.com on April 28, 2021.