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Letter Regarding Overlay Exceptions to the City Charter

Action Alameda News received this letter addressed to the Mayor of Alameda and City Council. The author is known to Action Alameda News, but asked not to be identified…

MAYOR AND CITY COUNCIL:

Re: Proposed Ordinance Creating Overlay Exceptions to the Charter Sec. XXVI

INTRODUCTION

The City of Alameda is an island predominantly at sea level. Except for the return of the former Naval Base at Alameda to the City, it is essentially built out. It has no direct access to any freeway. All ground egress and ingress is dependent upon neighboring Oakland, which is a necessary thoroughfare for all Alameda traffic. Oakland has its own housing, traffic and parking problems.

CHARTER CITY

Alameda is governed by its Charter which states:

Sec. 1-2. The City shall have and exercise the following rights and powers, subject to the express limitations herein expressed:
(A) To have perpetual succession.
(B) To adopt and use a corporate seal.
(C) To sue and be sued.
(D) To make and enforce all laws and regulations in respect to municipal affairs, subject only to the restrictions and limitations provided in this charter.
(E) To exercise all rights, powers and privileges heretofore or hereafter granted by the Constitution and general laws of the State of California.
(F) To act pursuant to procedure established by general law unless a different procedure is established by ordinance.

After the Charter was adopted on April 29, 1937, population growth and poor planning resulted in the destruction of many of the city’s original historic buildings. Box-like apartment complexes replaced the city’s Victorians, Queen Annes, and other heritage architecture. The City’s light rail Key System was torn apart creating total dependence on cars and buses. Inadequate planning resulted in parking and traffic congestion throughout the City. Egress/ingress in the west end is through two tunnels; and in the east end there are 4 two lane bridges. No road links directly to a freeway.

As congestion grew, the City Council, dependent upon developers and their influence on the press, took no steps to cure the increasing congestion and resultant destruction of the quality of life in Alameda. In the late 1960’s, concerned citizens realized that they would have to take action themselves. Inez Kappellas, a low income mother of six, and another moderate income mother took to the streets circulating an initiative petition that would become known as Measure A. Although it would make housing less available for similarly situated persons, these two women saw beyond their own needs, and altruistically tried to preserve the irreplaceable quality of life in Alameda.

They were vilified by the press, told to stay home, raise their children and leave planning to the professionals. [See Kapellas v. Kofman (1969) 1 Cal. 3d 20]. When the Initiative was certified for placement on the ballot, developers outspent the citizens ten to one. Blindly motivated by their developer perspective, the Council was recalled, and Measure A passed overwhelming.

In March 1973, Measure A became the law of the City:
Charter Article XXVI Sec. 26-1:
There shall be no multiple dwelling units built in the City of Alameda.

One exception was set forth in Sec. 26-2:
Exception being the Alameda Housing Authority replacement of existing low cost housing units and the proposed Senior Citizens low cost housing complex, pursuant to Article XXV Charter of the City of Alameda.

In 1973, as now, the citizens realized that such a strong stance could cause the City to lose funds. Article XXV which is referred to above, though repealed states:
Sec. 25-1: Urban Renewal, area development pursuant to Federal or State aid, shall not be adopted in the City of Alameda without a vote of the people.

In the mid 1980’s, the developer of Marina Village sought an exemption from Measure A to construct multiple units in a creative reuse of the 5 story immense Red Brick and historic building. Then City Attorney, Carter Stroud, opined that the only means to create an exception to Measure A was by a vote of the people. The developer succeeded on placing Measure C, commonly referred to as Save the Red Brick Building, on the ballot in 1985. Again the citizens were outspent by the developer ten to one. Again, the citizens won and no exemption was granted. The building was demolished.

In 1991, Mayor Chuck Corica sought to tighten Measure A against future attacks from developers. A new measure adding Sec. 26-3 to the charter was drafted and placed before the citizens by ballot. It set forth a density requirement of 2,000 square feet per unit:

Sec. 26-3. The maximum density for any residential development within the City of Alameda shall be one housing unit per 2,000 square feet of land. This limitation shall not apply to the repair or replacement of existing residential units, whether single-family or multiple-unit, which are damaged or destroyed by fire or other disaster; provided that the total number of residential units on any lot may not be increased. This limitation also shall not apply to replacement units under Section 26-2.

Due to the limitations of Article 26, the City of Alameda has been at odds with the State of California and the Department of Housing And Community Development for years. The City and State governments are aware of the financial risks presented. In spite of the risk of funding, the citizens have repeatedly acknowledged that preservation of the quality of life in Alameda is foremost in their interests.

OUTDATED GROWTH PROJECTIONS

In order to have a valid Housing Element, each City is required to come up with a proposal for meeting its “share” of the region’s new housing needs. Most cities can simply add unincorporated adjacent lands as they grow, or build on large undeveloped tracts of land. For many years Alameda could do neither. The State’s population projections and estimates for needed housing to accommodate those estimates are no longer accurate, due to slowing rates of increase. Not surprisingly, due to parcel and income taxes, large numbers of persons have chosen to leave the State in the last few years. Many baby boomers continue that trend as the cost of living in California soars compared to other states. The April 25, 2012, the Los Angeles Times cited a recent USC study indicating growth will occur at a mere 1% rate over the next decades.

“This is more manageable growth and that’s good news for California,” said Dowell Myers, a USC demography and urban planning professor who co-wrote the report with colleague John Pitkin. “We’re returning to a more normal rate of growth.” The cooling pace means the state, city and county governments and other entities will have more time to prepare for a bigger population than they did in years past, allowing for more effective planning, Myers and other experts said. That could ensure that new roads and parks, for example, are put in areas where they are most needed and where growth is likely to be sustained, they said.

Alas, Alameda has no physical space for new roads, and no funds to create already designated new parks such as the voter rezoned Open Space known as the Beltline/Sweeney Park.

FLOOD CONTAMINANTS VERSUS MERE LEACHING

Additional constraints on development which were not considered by the State in imposing its outdated housing creation demands include first and foremost the effects of global warming on coastal cities, including Alameda. The rise in sea level as estimated by the National Research Council (the scientific entity that advises the United States Government) in its report released June 22, 2012, predicts that rises in the sea level will be more dramatic along the California coast than the global average, with a rise of up to a foot in 20 years and possibly more than 5 feet by the end of the century. [http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=13389]

That’s even worse than the scenario described the same week in a U.S. Geological Survey report that found sea levels already are rising more quickly along the East Coast from Massachusetts to North Carolina than they are globally.

The rising sea level appears at first glance to be something easily anticipated and accommodated with good planning. However, the former Naval Air Station contains more than 25 toxic former chemical, radiation, fuel, use and nuclear storage sites. While operating, it was the first federal entity to pay a pollution fine to the State of California for serious violations including releasing hazardous waste into the environment. It’s fuel storage system has seeped or lost more oil into the ground than the spill of the Exxon Valdez. [See Clearwater Revival Company http://www.toxicspot.com/military/alameda/nasebs/.]

The former rail repair yard at Gateway also is a potential hazardous contributor that should be considered under the global warming scenario.

Alameda, an isthmus, until severed by the Army Corp of Engineers from Oakland, essentially shifts with the tide. Storage stacking equipment at the Naval Air Station when operating – much like the large scale book retrieval systems at the Library of Congress – was programmed to adjust up to an inch and more to provide for shifts caused by the tides. There has been no study that addresses spread of contamination of hazardous materials through tidal or alluvial action. Some of the projected “overlay sites” are a mere 1 – 2 meters above current sea level and subject to flooding even without a rise caused by global warming. Sites such as Willie Stargell road, are simply unbuildable due to anticipated flooding.

In addition to the tides, Alameda has underground rivers that flow at sea level. While the structures in mid Alameda may sit at 12-15 feet above sea level, these underground rivers flow beneath them. Alameda has long been subject to various federal judicial enforcement proceedings to ensure compliance with the EPA Clean Water Act caused by natural runoff. Yet Alameda’s water continues to escape into the SF Bay. As water levels rise, hidden contaminants will be shifted and displaced in unknown directions and in as yet unknown quantities. The well water used by many will need to be monitored in order that it not become a source of serious Bay pollution.

SB375 TO COUNCIL ORDINANCE PROVIDING FOR OVERLAYS

In 2009, SB 375 became law. It’s purpose is to reduce Green House emissions. Simplistically, the means for doing this is to reduce driving by locating more dense housing in urban centers. It does this by requiring California’s Air Resources Board to develop regional reduction targets for greenhouse gas emissions, and prompts the creation of regional plans to reduce emissions from vehicle use throughout the state. California’s 18 Metropolitan Planning Organizations have been tasked with creating “Sustainable Community Strategies.” The MPOs are required to develop the SCS through integrated land use and transportation planning and demonstrate an ability to attain the proposed reduction targets by 2020 and 2035. There is no authority or requirement in SB 375, to overturn Measure A.

In order for Alameda to comply with the proposed housing that the regional plan determined was needed based on the outdated population statistics, and the lack of available land, city staff suggests Alameda must build the of share of housing allocated by the Metropolitan Planning Organization.

To do this the City Council proposed an ordinance that creates “overlays” that will allow increased densities far and above that provided in Measure A. On July 5, 2012, The City Council Agenda item background states, “. . . . , the [Housing] element must include programs to address and remove or modify the constraint, including making zoning available to allow multifamily uses.” Staff proposes zoning “overlays” that violate Measure A’s density limitations and Charter requirements in an effort to create a Housing Element that is in compliance with the State’s requirements. As authority for doing this, staff cites the State’s Division of Housing Policy Development’s letter dated June 15, 2009.

The letter from the State sets forth the following requirement:
“4. The housing element shall contain programs which “address, and where appropriate and legally possible, remove governmental constraints to the maintenance, improvement, and development of housing” [Gov. Code Sec. Section,65583(c)(3).]

A staff recommendation to adopt a zoning overlay in order to comply with a Green House Gas Emissions regulatory law, is not sufficient authority to overturn three votes of the people and two Charter amendments. The State specifically acknowledges that where legally possible, constraints may be removed. And it is possible to do so in Alameda, just not by staff or Council action. Yet the Council has held little discussion on the matter and had failed to seek the voters’ approval for this ordinance.

In the application of law to the current situation, the Charter, by its own terms, prevails. Acknowledgment of the financial risks has been duly noted by the voters. The only legally means possible to remove the constraints set forth in Measure A is to place it on the ballot and let the people decide. The issue is not whether or not to build low or moderate income housing, it is where and how dense that building may be. Government Code Sec. 65589.5 does not prohibit the operation of Measure A, it merely shifts the burden of proof, in case of suit.

RECOMMENDATIONS

If the City Council believes adoption of these overlays is required in order to obtain needed funds or avoid litigation, then each and every overlay exception to the density requirements should be placed on the next available ballot.

The criteria for selection for an “overlay” should be made public and open to the voters. Otherwise the “overlays” are simply manifestations of staff’s “spot zoning” particular areas without any objectively quantifiable or published criteria for the selection of said areas. There may be areas where land owners would seek to take advantage of an overlay, only to be denied equal treatment without recourse. Without public approval and agreement as to if and, if so, how, overlays are to be created, Measure A is simply subject to elimination by the whimsy of staff. Absent voter approved exceptions to Measure A, the City will be opening itself up to that which it has claimed steadfastly to avoid: attorneys’ fees and litigation.

Alternatively, the City can take the initiative and seek exemption from the State due to Alameda’s unique physical position and constraints. Absent the construction of an additional bridge or tunnel to Oakland from Alameda, traffic will reach unacceptable levels that will add to, not reduce greenhouse gases. Alameda has been awaiting the contemplated State construction of a freeway providing direct access to Alameda since the 1955 recording of the Utah Construction Fill Agreement which allowed infill of the SF Bay to create Harbor Bay.

It is anticipated that no such freeway will be forthcoming from the State or Regional entities. With the advent of global warming, Alameda will be losing, not gaining, land. And with that loss, residents will be opened up to displacement of unknown hazards, traffic congestion and green house gas emissions will increase. The exact opposite result sought by SB 375.

CONCLUSION

Measure A has never been about exclusion of any particular class of income, person, or lifestyle. It is a revolt by the people against the hordes of traffic caused by rampant development and re-development made profitable, and therefore prolific, by allowing increased density.

Old historic land intense structures are demolished and replaced with structures which are inconsistent with Alameda’s heritage. With the value of Bay Area real estate at a premium, preservation of Alameda’s structural heritage will be the first sacrifice. If it were a matter of exclusionary forces at work, Alameda could simply reject the funds, and defend any lawsuits as a cost of that exclusion, such as wealthy communities like Belvedere and Hillsborough.

Alameda is not wealthy. It is unique in its modest charm and history. If the density overlays are enacted, and built upon, the very life blood of Alameda will be destroyed. If it has to be done, it needs to be accompanied by public hearings as to the standards and locations of overlay zones. Anything less will be fought by the voters.

10 comments to Letter Regarding Overlay Exceptions to the City Charter

  • cg

    Wow. Outstanding historical summary & description of the problem! Couldn’t have said it better myself. Should be required reading for Lauren Do & others who seek to influence public opinion while unclear on the concept!

  • The author of the letter regarding exceptions to the City Charter omitted one important section of State Law that explains why the City staff set the density in the multi-family overlay areas at 30 units per acre by right:

    From the State Housing Law (See staff report for 16 July for code section):
    (3) For the number of units calculated to accommodate its share of the regional housing need for lower income residents pursuant to paragraph (2), a city or county shall do either of the following,

    (A) Provide an analysis demonstrating how the adopted densities accommodate this need. The analysis shall include, but is not limited to, factors such as market demand, financial feasibility, or information based on development project experience within zone or zones that provide housing for lower income households, or
    (B) The following densities shall be deemed appropriate to accommodate
    housing for lower income households: ….
    (iv) For jurisdictions in metropolitan counties sites allowing at least 30 units per
    acre (The City of Alameda is in this category).

    The housing law specifically states that it overrides City regulations, including those contained in City charters.

    From David and Barabara’s comments, there are many areas of development policy that we agree on – I concur with David that long term leases are an excellent idea and with Barbara that we have to be sure to preserve the ambience of Alameda’s traditional neighborhoods. Let’s focus on achieving consensus on development within the City rather than on whether or not to preserve a ban on housing that is now nearly 40 years old and clearly at odds with State law.

  • Bill – you keep ignoring some of the key points…

    There was a vote in 1991 that reinforced and strengthened the original measure passed in 1973. And voters rejected SunCal’s plan in 2010, which also would have undone Measure A for Alameda Point.

    And you ignore the question of whether any of this, including the state law you cite, makes sense for Alameda, most of which is an island, with no BART, no freeway access, etc.

    We need someone in the State Assembly who will recognize our unique circumstance in Alameda, and adjust State law accordingly.

  • Barbara

    Bill,
    “…whether or not to preserve a ban on housing that is now nearly 40 years old and clearly at odds with State law…”
    We have many, many Victorians over 100 years old, which do not comply with current building codes. This does not mean that we have to get rid of them, we protect them.
    The same approach shall be with State law, as David mentioned, and make exception to our unique existence and survivor in case of major disaster. By bringing more population to our Island, we will place people the greater risk of harm. We will also destroy an architectural character of Alameda, which we are so proud to have.

  • John Thomson

    Bill:
    What is the exact reference in State Law that overrides the City Charter? Is it an arguable point?

    The recap is great! We all know that there is no way that a freeway will be built across Alameda (and we definitely don’t want that!)

    The freeways proposed at the time of the Harbor Bay Fill were basically the extension of 238 from San Leandro across Bay Farm to Hunter’s Point in the City (the Southern Crossing) and also the extension of 24/980 to intersect 238 in the Bay off of Alameda; I know the entire Bay Area is glad that never happened!!!!!

    A future second rail tunnel across the Bay will probably happen by 2100, with a likely route being through Alameda (see MTC’s repeated Bay Crossing studies); with that in place Alameda could handle some significant growth; however we should not allow that growth until that link is a reality. If the State and the region want Alameda to have growth they should help fund such a link up front. Ferries will only work to connect to the City, not Alameda’s logical workplaces in the East Bay.

  • If you go to the planning dept and ask to see the plat map book, you might still see, as I have done, the “planned” 66th Avenue extension from Oakland across San Leandro bay to Doolittle Drive, that was once promised to alleviate traffic on Bay Farm Island…

  • Barb

    The only people who have the jurisdiction to make decisions about which law preempts, state or municipal, & thus the only ones worth listening to, wear black robes. Didn’t the City Council take an oath to uphold Alameda’s laws?

    Absent a finding by an appropriate court of law, Staff cannot render Measure A moot under the guise of SB375 or Gov. Code 65000 et. seq.
    Zoning densities apply to vacant land.
    CGC Sec. 65913.1 (b) Nothing in this section shall be construed to require a city,county, or city and county in which less than 5 percent of the total land area is undeveloped to zone a site within an urbanized area of
    that city, county, or city and county for residential uses at densities that exceed those on adjoining residential parcels by 100 percent.

    Developed “has a precise meaning as well, subject again to the interpretaions of those who wear the robe. No one else. Since agriculatural preserves are also exempt, maybe we should jut rezone the Point by initiative and be done with it.

  • John,

    As you requested the language from the state code Section 65589.4.(g) delcaring that the housing code applies to charter cities.

    (g) This section is applicable to all cities and counties,including charter cities, because the Legislature finds that the lack of affordable housing is of vital statewide importance, and thus a matter of statewide concern.

    Bill

  • Gregg de Haan

    Does it matter if the city gets sued for lack of affordable housing because we are going to get sued by the residents of Oakland China town anways if we plan on building out the base without a viable plan for egress and ingress to the island. One cannot compare Alameda to Pleasanton, Dublin etc because we aare an island city. Gilmore and Russo need to stop trying to run scare tactic campaigns. Lawsuit is a threat no matter what road we travel. Furthermore, we are in litigation with Suncal and Suncal will claim that the city modified buiding density to wrongfully terminate their development agreement. Either way housing is developed on the base it will result in some type of litigation.

  • Barb

    The Government Code has always applied to Charter cities. It even provides for their creation. Taking one section out of context is not helpful. The Statute claimed to overturn referred to is as follows:

    65589.4. (a) An attached housing development shall be a permitted use not subject to a conditional use permit on any parcel zoned for an attached housing development IF LOCAL LAW SO PROVIDES or if it satisfies the requirements of subdivision (b) and either of the following:
    (1) The attached housing development satisfies the criteria of Section 21159.22, 21159.23, or 21159.24 of the Public Resources Code.
    (2) The attached housing development meets all of the following criteria:
    (A) The attached housing development is subject to a discretionary decision other than a conditional use permit and a negative declaration or mitigated negative declaration has been adopted for the attached housing development under the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the
    Public Resources Code). If no public hearing is held with respect to the discretionary decision, then the negative declaration or mitigated negative declaration for the attached housing development may be adopted only after a public hearing to receive comments on the negative declaration or mitigated negative declaration. (B) The attached housing development is consistent with both the
    jurisdiction’s zoning ordinance and general plan as it existed on the date the application was deemed complete, except that an attached housing development shall not be deemed to be inconsistent with the zoning designation for the site if that zoning designation is inconsistent with the general plan only because the attached housing development site has not been rezoned to conform with the most recent adopted general plan.
    ……
    b) At least 10 percent of the units of the attached housing development shall be available at affordable housing cost to very low income households,. . . . . .

    (g) This section is applicable to all cities and counties,
    including charter cities, because the Legislature finds that the lack of affordable housing is of vital statewide importance, and thus a matter of statewide concern.

    Wht does “IF LOCAL LAW SO PROVIDES” actually mean? What discretionary decision under existing Alameda law allows anything greater than one unit per 2000 square foot of footprint? Same goes for multiple units.

    I do not see this as overturning Measure A by any means.

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