99% of the time, you’re hard work

Super huge agenda tonight for the City Council, I’m feeling super behind because I haven’t even written everything that I wanted to write about last week’s City Council meeting and now we’re already having another City Council meeting, I guess it could be worse and I would have nothing to write about but still…City Council, stop being so amusing and entertaining, I need to catch up!

So tonight’s City Council meeting has two meaty items in “workshop” format.  The last time we had anything close to a workshop was the Special Meeting about how to run meetings and it was chaos.  This time around, hopefully, after being reprimanded by John Russo to get control of the meeting, Trish Spencer will have a firmer grip over the meeting.  Or she’ll continue to let people speak way over the allotted public comment time and then complain about how there is an “agenda writing” problem and place the blame all on staff.  Well tonight there’s only two real agenda items, so we’ll see how long this meeting goes on for and whether we have another “agenda writing” problem tonight.

The first (well the second agenda item) is the whole uber Transportation plan thing that was before the Transportation Commission and Planning Board the other night.  Tonight the City Council will vote to put their money where their rhetoric is regarding transportation issues and they can choose to issue a RFP for creation of this uber Transportation plan (approximate costs are $250 – 400K for this strategy alone and could take up to a whole year to actually produce given the levels of community input that are expected).  There is no funding identified for this yet so best case the city staff can go out for grants.  Some of the City Staff has been very successful at securing grants in the past.  But worse case it will come out of the general fund.

The second (but really first) agenda item is around the super hot topic of density bonus.  Recall that during the Del Monte discussion some of the people who opposed the project did so on the basis that some how the density bonus was improperly applied and asked that there be a moratorium on any future density bonus approvals until such time that the density bonus application process was all sorted out.  Frank Matarrese took up this mantle and here we are.

Here’s what staff is saying about the idea of a moratorium (sorry in advance for the length quotations, anyone who is at all interested in this topic really should give it a read, particularly folks who are on the side of “yeah, we need a moratorium!”):

Staff does not believe that a moratorium on housing is necessary or feasible for the following reasons:
·      The City’s ability to fundamentally change density bonus requirements is limited by State law.
·      There is no need to study the problem described above relative to AMC Section 30-17.  Clarifying amendments are identified in the discussion, and those amendments would not substantively change how density bonus projects are processed in Alameda.

It will be difficult for the City Council to make the required health and safety findings to a moratorium.  Commute hour traffic delay is not considered a “health and safety impact”.  The State Legislature recently passed SB 743 (2014) that states that automobile delay shall not even be considered a significant impact on the environment, for the purpose of the California Environmental Quality Act., Making findings concerning public health or safety standards, rather than public welfare establishes a high bar that will be difficult to meet.  Generally speaking, the vast majority of land use regulations are based upon the City’s police power that allows cities to regulate in the interest of the general welfare, for instance, zoning laws establishing lot coverage, minimum setbacks, etc., are rooted in the City’s ability to regulate in the interest of the general welfare.  In contrast, public health and safety standards address a different set of issues and traffic congestion is unlikely to rise to the level of public health or safety.

For these reasons, staff believes it would be exceedingly difficult to make the findings for a moratorium on density bonus projects specifically or housing projects generally. Staff does not recommend that the City Council pursue such a moratorium at this time.

Regarding the relationship to traffic, staff says:

However, contrary to the popular opinion Alameda’s population has not increased significantly in the last 20 years, and the total number of cars using the Webster and Posey Tubes on a daily basis has also not changed significantly. Furthermore, since the departure of the Navy, the average number of cars leaving the City through the Posey Tubes during the morning commute period has not changed significantly.

…

When I-880 is experiencing “stop and go” conditions, it takes longer to get onto the freeway and regional roadway network from Alameda even if the actual number of cars leaving Alameda does not increase. When the Bay Area experiences periods of economic growth, conditions on the regional system worsen, resulting in longer delays in Alameda during the commute periods.  When the regional and local economy weakens, traffic conditions improve for Alameda residents.

And, while not a legal analysis, the City Attorney’s office put together this helpful guide on the Density Bonus and how it’s reconciled with the existence of Measure A.  From that document:

Every city in California, including every charter city, is required to implement the State’s density bonus laws. It is well established that local implementing ordinances cannot conflict with state law, and to the extent that they do, the local laws are preempted. This was reiterated recently in a case called Latinos Unidos Del Valle De Napa Y Solano et al., v. County of Napa, 217 Cal.App.4th 1160, 1169 (2013).

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From time to time, the City Attorney’s Office is asked how it is possible to waive a Charter provision and why it is that the City put a provision in its density bonus ordinance allowing for a waiver of the ban on multifamily housing.

The answer has consistently been that to the extent Measure A, and more specifically its prohibition on multifamily housing, conflicts with state density bonus laws, the application of Measure A will likely be preempted. Knowing this, in 2009, in a very transparent fashion, the City Council decided to include a provision that allowed developers to ask for a waiver of Measure A’s multifamily prohibitions in certain circumstances. The thinking was that even if the City does not include this specific provision, a developer is not prevented from requesting it under state law, and unless the findings mentioned above can be made, the City would have to grant the waiver. However, to be transparent with the community and the various stakeholders, in 2009, the City Council decided to address the issue head on and state very clearly in the staff report and the accompanying ordinance that Measure A may need to be waived as a result of a density bonus application.

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It is worth noting that the City of Alameda has some experience with preemption issues when it comes to a voter initiated measure having to do with housing and more specifically affordable housing. In 1982, the voters of Alameda passed a measure (Measure I) to require voter approval of any development of government-subsidized rental housing units for a period of five years. The City was subsequently challenged on Measure I, and the Court of Appeals concluded that Measure I was preempted by Government Code Section 65008, which prohibits a city from discriminating against low and moderate-income housing development notwithstanding that Alameda is a charter city.

Although Bruce v. City of Alameda was concerned with Measure I, and not Measure A, the case demonstrates the broader issue of how a charter provision may be found to be preempted by state law given that the state has found there to be a scarcity of adequate low income housing throughout California and has declared housing to be a matter of statewide concern, rather than a municipal affair. Density bonus laws relate to housing, and specifically affordable housing, and will have a preemptive effect if the City’s local laws are found to be in conflict with them.

What this all boils down to is, at least for the density bonus item, does this City Council feel so strongly about the need to put the kibosh on any new density bonus application, in spite of the lengthy explanation by staff, that they want to risk any of the possible repercussions for not offering density bonus to developers?  Including lawsuits.   Just imagine people though, if this is the thorough explanation that we get as members of the public just reading through a staff report, just think of the hand holding that must exist for the City Council through verbal explanations and one-on-one time with staff to answer their every little question that may come up on this topic.   Maybe that’s why I get so frustrated by some City Council getting to an agenda item and acting super clueless when they’ve had all this time prior to the meeting to ask any clarifying questions to their heart’s content.  Perhaps it’s all just a show for the audience to prove that they are asking the “tough questions” but it just comes off as super disingenuous.