Blogging Bayport Alameda

June 10, 2021

I love this song, part two

Filed under: Alameda — Tags: — Lauren Do @ 6:00 am

My favorite staff reports always center around: “hey this is what happens if we don’t comply with state law” probably because all of the keyboard warriors sending out breathless emails about how long they’ve lived in Alameda, how many generations back they go, and how much they love Alameda more than the next person never seem to be bothered by, you know, facts and stuff.

So what happens if Alameda decides to go the route of throwing up two middle fingers to the State of California and deciding we’re not going to do anything to meet our RHNA and abide by state housing laws. Well, a lot will happen, some which I’ve mentioned here previously but am always happy to go over again and again.

From the staff report they’ve identified a few key areas with more detail under each header:

  • Financial consequences (regional funding, grants, housing allocations, CDBG money, tax credits to build affordable housing)
  • Shorter Housing Element update cycles. Right now it’s every eight years, without an on-time Housing Element, these need to be done every four years
  • Fines. Lawsuits can be filed to fine Alameda for every state housing law it’s in violation of and this is a monthly fine until the Housing Element is brought into compliance.
  • Cost of litigation, paying for it and possibly having to pay the legal costs of the other side.
  • Loss of Local Land Use Control. Exactly what it sounds like, the city wouldn’t be able to make decisions on land use (commercial and housing and possibly your own small home improvement project as well) instead it would go to a judge who be the decider and is typically not swayed by NIMBY talking points.

Here’s some highlights for those who say, “let’s risk it” around the success rate of chancing litigation:

  •  In 2006, local advocates filed a lawsuit against the City of Pleasanton, because the Pleasanton City Council refused to adopt a Housing Element in compliance with State law.  The California Attorney General joined the suit in 2009.  In its unsuccessful effort to defend itself, the Pleasanton City Council paid $1.9 million just to cover the plaintiff’s legal fees.
  •  The City of Folsom lost its defense and was ordered to comply with State Law.
  • The City of Mission Viejo lost in its defense and was required to pay attorney’s fees of more than $800,000.
  • The City of Huntington Beach lost in its defense.  In addition to its legal fees, the City of Huntington Beach estimated that it missed out on the opportunity to receive as much as $625,000 in SB2 planning grant funds.

Staff is not aware of a single California city that has failed to adopt a compliant Housing Element and has successfully defended its decision in court. [emphasis added]

For those who are willing to pay the fines rather than see one more housing unit get built:

Should the Attorney General or a housing advocate file a lawsuit and should a Court find that Alameda is in violation of State Housing Law, the City Council should be prepared to be fined between $10,000 and $600,000 per month, until the Council adopts a compliant Housing Element.  

The City can also face fines for each housing unit which is improperly denied.  This includes fines of a minimum of $10,000 for each housing unit, which can be multiplied by a factor of five if a court finds that the city acted in bad faith. 

For those who want the put it all at Alameda Point and let the developer and future residents pay for the overage costs:

The Navy Cap limits the number of market rate homes to 1,506.  Every market rate unit constructed after 1,506 must pay a financial penalty to the US Navy of over $100,000 per unit, which serves a financial limit on the number of units that can be constructed.  It is not financially feasible for the private sector to pay the Navy a $100,000 penalty fee for every unit.    Under State Housing Law, the Housing Element cannot promise to provide housing on sites that are not economically feasible to develop.  [emphasis added]

Staff has mentioned that it’s ready to file an appeal to the RHNA allocation but there’s no real hope that anything will further reduce the number allocated to Alameda. Highlights:

City Charter Article 26 (“Measure A”) passed by the voters of Alameda and confirmed by the recent failure of Measure Z is not an argument for a reduction.     Local measures passed by the voters to limit housing or that have the effect of limiting housing are not a valid reason to reduce a jurisdiction’s regional responsibilities.

Alameda is uniquely vulnerable to sea level rise, but new residential developments along the shoreline in Alameda are constructing sea level rise protection for their development projects, which also benefit the properties inland from their sites.   To date, the only sea level rise improvements constructed in Alameda have been those constructed by new residential and commercial development. 

I particularly liked this bit of realness thrown into the mix:

Alameda’s Housing Element constraints are political, not physical or environmental. 

Because, in the end, this is so true. We can meet the RHNA but it will be political will and the need for Alameda NIMBYs to assert their rights to never have any new housing built in the neighborhood that will be the roadblock. Not our island specialness, natural hazards, infrastructure, or any thing else folks want to throw into the mix.


  1. “The Navy Cap limits the number of market rate homes to 1,506.  Every market rate unit constructed after 1,506 must pay a financial penalty to the US Navy of over $100,000 per unit”.

    Which is why I have been advocating that we increase the density at Site A. Here I explain more:

    1. Backbone infrastructure at Site A is 95% complete, and therefore shovel ready for new projects – and can be included in the RHNA number count.
    2. Current constructed backbone infrastructure at Site A has capacity for more units than the original 800 units that were originally allocated. This means the backbone infrastructure that has been constructed is underutilized.
    3. Increasing the density at Site A means increasing the number of units. The higher the number of units, the cost per unit (or Unit Costs) goes down making new projects more feasible. To explain further, infrastructure parcel costs are fixed based on contracted costs. The variable costs or (changeable costs) are the number of units. The lower the number of units – the higher the Unit Cost; likewise, the higher the number of units – the lower the Unit Cost.
    4. The question is – what is the Unit capacity for Site A? That in my opinion, is the question we should be asking.

    Plan Bay Area designated Alameda Point as one of the Priority Development Area Districts (PDA), which resulted in millions of tax payer dollars already spent in land planning and transportation planning. It also resulted in WETA approving the Seaplane Lagoon Ferry Terminal at Alameda Point. The Site A developers contributed $10M towards the new ferry terminal and it is constructed and planning for a summer opening.

    In addition, with the remaining commercial land to be developed at Alameda Point, hundreds of new jobs are planned for Alameda Point.

    Based on all the above, in my opinion it would be irresponsible if we did not maximize the land at Alameda Point Site A.

    Comment by Karen Bey — June 10, 2021 @ 7:52 am

    • In my opinion, it would be irresponsible if we did not maximize density across all of Alameda in general (with the exception of those places already designated for open space). More housing on site A would be great, but it’s a little late to be calling for that now that most of phase 1 is completed. The infrastructure for phases 2 and 3 is not. There is already existing backbone infrastructure throughout all of the city and we could spread a large number of new housing units across a huge area by allowing quadruplex and small apartment building development in every neighborhood, especially closer to shopping centers and near Webster and Park streets.

      Comment by Josh Hawn — June 10, 2021 @ 11:17 am

      • The backbone infrastructure for Site A is around 95% complete — Phase 2 and 3 parcels will connect into existing waterlines, storm drainage systems, electrical, and fiber that were installed at Site A.

        My point is that we should maximize the land at Alameda Point first, like we did at Alameda Landing (Alameda Landing is on their final phase of development) as a common sense strategy to meet our RHNA numbers and then move on to other areas.

        Regarding developing multi-family in other areas of Alameda, the 6/10/2021 planning board agenda includes increasing density in R2-R3-R4-R5-& R6 districts where there is already multi-family development. I think there are some planning board members who have supported this idea in the past.

        Comment by Karen Bey — June 10, 2021 @ 3:10 pm

  2. Thank you for the sweet refrain this. May you play this soothing tune again and again until Alameda builds the homes to meet its allocated need.

    Comment by William Smith — June 10, 2021 @ 10:04 am

  3. Can I share a shortened version of this to NextDoor? A rebuttal to Paul Foreman, who made a post that basically framed the state issue as “comply vs don’t comply” (and not, you know, “comply vs face all these penalties”).

    Comment by JRB — June 10, 2021 @ 10:45 am

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