State Legislators Criticize Bay Area Health Officers’ “Arbitrary” Shelter-in-Place Rules Limiting Housing Construction

Sixteen State legislators from the greater Bay Area took issue with the residential construction limitations contained in the March 31 shelter-in-place order issued by six County (and the City of Berkeley) public health officers (“Health Officers’ Order”). Alameda County’s order, which is substantively identical to other counties’ orders, is available here: No. 20-04.

In a letter dated April 16 (“Legislators’ Letter), the legislators urged the health officers to consider changing their limitation on residential construction projects containing at least 10% “income-restricted” units, so as to avoid “arbitrary choices” relative to which project can continue. Signatories of the letter included housing advocates such as Senators Scott Weiner and Nancy Skinner, along with Assembly members Buffy Wicks, Rob Bonta and David Chiu. A copy of the Legislators’ Letter is available here.

The legislators premised their letter on the policy that housing construction is an essential service given the State’s severe housing shortage and proposed that the Health Officers’ Order should “mirror the state and federal approach to housing – broadly classifying housing construction as an essential activity and avoiding arbitrary choices that certain housing can be built while others cannot.”

It is notable that the Health Officers’ Order does not contain any explanation or justification for how the health officials arrived at the 10% income-restricted figure. Virtually all residential projects under construction in the Bay Area will either include some percentage of affordable units, or will have paid an affordable housing fee used to build affordable units off-site. Projects that are under construction (and projects with certain types of entitlements) have a vested right to continue free of additional local regulation, but such vested rights can be interrupted in the case of a public health emergency. The issue here is not the emergency declaration (or the requirement that workers adhere to social distancing and other safety protocols), but the seemingly arbitrary line drawn by the public health officers.

The Legislators’ Letter indicated that their views, while their own, also were “generally consistent” with those expressed by elected officials throughout the region. Citing the society-wide negative impacts from the lack of housing and recent legislative efforts to address the shortage, the Legislators’ Letter cautioned the need to “ensure that we don’t, in the name of public health, create both short term and long term unintended health problems for our community due to over-crowding and long auto commutes.”

The Legislators’ Letter criticized the 10% affordability requirement as placing a “serious and potentially irreversible roadblock to essential housing construction, including projects that help meet our affordable housing needs, projects that serve students and seniors, and projects that have their permits and that may already be under construction and even very close to completion.”

While the legislators urged the health officers to adopt the broader state and federal approach to new residential construction, they offered other recommendations in the event that the health officers were unwilling to go that far. The Legislators’ Letter included the following fallback recommendations:

1. Housing should be allowed if at least 10% of the units are below market rate, whether constructed on-site, off-site or via a fee paid to fund other affordable housing;
2. Housing projects should be allowed if they produce at least 20 units of affordable housing regardless of the percentage;
3. Student housing and senior housing should be allowed to proceed; and
4. Housing that is mostly complete should be allowed to be finished.

As we noted in prior posts, eight Bay Area Building Trades Councils issued their own letter on April 14 to the Alameda County Board of Supervisors, taking issue with the Health Officers’ Order’s limitation on residential construction. (The Trades Councils sent similar letters to other Bay Area county supervisors.) The Trades Councils’ letter pointed out the industry’s conformance to COVID-19 safety protocols and urged the County to “immediately exempt all housing from the [County] Order.” The Trades Councils noted that (1) development of all housing, especially high-density residential housing, was needed to address the area’s acute housing shortage, (2) many jurisdictions address affordable housing needs through the payment of in-lieu fees that rely on construction of market-rate units, and (3) the construction employee and contractor base could be decimated for years, as occurred during the housing crash in the late 2000s, leading to higher costs and greater shortages.

The Building Trades Councils’ letter to the Alameda County Board of Supervisors can be found here.

We are continuing to work with local officials and will be happy to answer specific questions.