Blogging Bayport Alameda

July 2, 2021

“Preempted and unenforceable”

Filed under: Alameda — Tags: — Lauren Do @ 6:02 am

Tuesday’s City Council meeting is shaping up to be a doozy of a meeting but, on the plus side, it is starting at 5:00 PM so hopefully they will get through items which were continued at the last City Council meeting. Specifically (1) the issue of adopting a mental health response to issues which have previous fallen under the police department and (2) Trish Spencer and Tony Daysog’s Call for Review of the HAB decision which would pave the way for the Wellness Center project to proceed.

But the big thing for Tuesday night will be the issue of the Housing Element because, as I pointed out in a previous post, the deadline for appealing the RHNA allocation is quickly approaching and this is the last public meeting to take the vote on whether to appeal Alameda’s RHNA allocation. Staff placed a very helpful bullet point list as to the likelihood that Alameda would be successful in getting a reduction in its RHNA allocation. Essentially they say it’s probably not going to happen but it seems like staff all over the Bay Area have said the exact same thing to its councils and yet there is a fair number of people willing to expend the money and staff time to just try.

Here are the highlights as to why Alameda is probably not special enough to get a reduction:

The City would have to substantively demonstrate why Alameda’s transportation and infrastructure constraints are worse than the transportation and infrastructure constraints in Oakland, San Francisco, Berkeley, San Leandro, and other neighboring cities.  The ABAG methodology is based on the findings that almost every city in the Bay Area is struggling with transportation and infrastructure constraints.

The City would be required to demonstrate why Alameda’s seismic hazards are worse than those in the neighboring cities. The Hayward Fault runs through the cities of Oakland, Berkeley, El Cerrito, and San Leandro. 

The staff report does note that even though new development must mitigate for sea level rise, it is the one area that Alameda may be able to base our appeal.

I think I’ve written about this before but it may be the first time that staff has put this information out plainly in a staff report for the “put it all at Alameda Point people”:

Development of housing at Alameda Point is limited by a cap established by the U.S. Navy (the “Navy Cap”).  The Navy Cap on housing was a precondition of the transfer of the land to the City. The Navy Cap limits the number of market rate homes to 1,506.  Every market rate unit constructed after the 1,506th unit must pay a financial penalty to the 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]

Also, staff has left in the proposed resolution this language even though the Planning Board voted to recommend a much more neutered version of this resolution:

NOW, THEREFORE, BE IT RESOLVED, that the City of Alameda City Council finds City Charter Article 26 is in direct conflict with State housing law and is preempted and unenforceable in these circumstances. More specifically, Article 26 of the City Charter is preempted by Government Code Sections 65583.2(c), (h), and (i) and Section 65583(c)(1) which require the City to allow multi-family housing, and Government Code Section 65583.2(c)(3) which requires the City to allow at least 30 du/acre to meet its RHNA; and

So anticipate Trish Spencer and Tony Daysog to start up a discussion around “partial preemption” echoing the talking points of AAPS and ACT.

Should be a eventful meeting all around, I would not recommend missing this.


  1. Do you know why the Navy’s penalty for building market rate housing over the 1,506 cap has went up? I’ve seen it listed as $50k, $75k, and $100k.

    Comment by Andrew Phillips — July 2, 2021 @ 9:14 am

    • I think the cost of the per unit penalty rises based on CPI.

      Comment by Lauren Do — July 2, 2021 @ 9:19 am

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