“Fine, let them sue us”

As we get closer to the date when the Housing Element draft will need to be submitted to the Housing and Community Development (HCD) Department and as rumors start grinding through the community about this or the other thing the bad information that gets passed around about what Alameda has to do or what it doesn’t have to do is reaching a fevered pitch. At the Planning Board meeting on Monday there was a clear lack of understanding about what this whole process is and is not. Add to that the absolute kookiness that lives in the comments on the City’s Facebook page and it’s super clear that a lot of people have a lot of bad information about this process but yet speak with the absolute certainty and confidence of someone who thinks they do know a lot about what the City should be doing in this Housing Element.

I went back and pulled video out from a February 2021 meeting about the Housing Element which featured someone from HCD. It’s really important to listen closely to what the HCD representative says because these are the folks who will be determining if Alameda Housing Element is compliant or not. Because at the last City Council meeting this is what Tony Daysog, one of our elected officials said about the process and about compliance:

I think we can meet our Housing Element HCD obligations working within Article 26 of our city charter. I think there’s a lot of other things that are of concern to me with what we’re talking about in the Housing Element but, to me, the most vital thing is is how we are undermining something that the voters of Alameda just recently reaffirmed and that is reaffirming Article 26 and the limitations that we have on density. We figured out how to work around those limitations you know I mean our side we didn’t we didn’t embrace those workarounds but if it was enough to to get us through the first housing element process several years ago I think it’s it’s good enough to get us through this one.

If the State of California, if the HCD wants to sue us on whatever grounds fine let them sue us.

But I’ll point out that it’s not just that the City exposes itself to liability from the State and/or HCD if the Housing Element is not certified. ANYONE can sue. And there are six cities in California that are already on the receiving end of a lawsuit from an organization associated with the California Association of Realtors because their Housing Elements are not certified:

Enforcing these laws has been a major focus for the organization over the last year, and it has approached around 50 cities in Southern California to discuss their compliance with the law.  Later in 2022, the focus will shift to the Bay Area and other parts of the state, as those regions complete their housing elements. The nonprofit typically offers to forgo litigation against cities that are willing to acknowledge the state law penalties for failing to adopt a housing element. 

The organization’s lawsuits against Bradbury, La Habra Heights, Laguna Hills, South Pasadena and Vernon fault those cities for failing to adopt updated housing elements by the state mandated deadline. These cities were chosen for being far behind their peers in the housing element process, having demonstrated a hostility toward adequate housing planning or both.

In prior housing element cycles, without litigation, some cities have allowed the process of developing their housing elements to drag on for years after the state law deadlines. For example, the City of La Habra Heights did not develop its 2013 housing element until 2020.  Many Southern California cities have prioritized other non-urgent matters, including implementing policies to limit housing production, while putting off the housing element process. [emphasis added]

And this is not the only housing advocacy group out there with a legal arm so as long as folks like Tony Daysog sit on the dais and is unwilling to recognize that 2022 is different when it comes to certifying Housing Elements, he puts the City of Alameda in danger of a lawsuit. Fortunately we have adults on the Council who are willing to do what is in the best interest of the City but my fear is that we get more Tony Daysog, because he’s running again, and we get another person like Tony Daysog — all talk, no action.

Anyway, I’ve snipped out two video clips which should be watched by anyone with a Zoom login and keyboard and the desire to provide an opinion to any Board, Commission, or the internet at large about what Alameda should and should not do with regard to the Housing Element. This is the guy who will be reviewing our Housing Element and he is not swayed by arguments like (1) we’re an island, (2) A/26 is the will of the people, (3) we can’t get off the island in an emergency, (4) insert your favorite NIMBY excuse here. He knows about A/26 and he’s not impressed by it.

Here’s the first video, this is an answer to a question by the Mayor about Affirmatively Furthering Fair Housing and what that means to cities and their Housing Elements. I’ve pulled out and transcribed a few choice quotes:

Affirmatively furthering fair housing isn’t just about discrimination it’s about proactively promoting more inclusive communities.

…

We will also be looking for a comparison of you, Alameda, to your surroundings and whether you reflect the composition of your broader region and if you don’t then what has led to that and specific goals and actions to overcome those patterns.

And, as I’ve posted before Alameda — compared to its closest neighbors — doesn’t really reflect what’s going on in the broader region despite people parading the fact that we’re “diverse” because they know some Asian folks who have moved into the East End or something. Essentially Alameda has way lower percentages of Latino and Black folks than Alameda Co, San Leandro, and Oakland and that, according to the HCD needs addressing.

This next video is the HCD representation specifically addressing the issues with A/26 and then discusses the consequences of not having a Housing Element.

A few notes is that HCD says they are not going to waver from the requirement have a diverse set of housing types. Because of A/26 we are not necessarily allowed to have more than a single family home or a duplex. That’s not enough under housing law. So immediately that part of A/26 will have to be disregarded in order to have any chance of a certified Housing Element. Some quotes:

So immediately we’re gonna see the measure [A/26], by itself, as a constraint on the supply of housing; on the cost of housing and we would probably be looking for programs to address and remove where possible.

…

Anything that results in lesser intensification of sites there might be other things that come into play here but, you know, to the extent that you’re carrying out the measure [A/26] in a way that impacts sites now or multi-family overlay sites but that certainly would be an area of pause.