If measure K passes, the city cannot guarantee the size of the buildings that will be built

Zoning 2 acres for 50 units can mean very different things.

I have been reading the pro measure K arguments and emails and I see a constant theme:  the belief that the language of measure K that indicates the size of the buildings and the number of units will be legally binding.  I hear the city and the council members stating that because the site is city owned, the city can absolutely control what is built there.  I wish this were a complete and correct statement of the law.

It is not.

Size and unit counts in local zoning have been swept away by overriding State Laws.

Sacramento has pushed a series of laws that strip local control over zoning and design in order to promote the development of affordable housing.  These laws are immensely powerful: due to a legal concept known as preemption, they override local zoning regulations.  These laws continue to pass the legislature, and as a result, they are now buttressed with powerful penalty provisions (such as the much discussed “builder’s remedy”) to force compliance.  Although the city continues to try to claim that measure K would result in a legal barrier to size and unit count, Measure K would zone 2 acres of the park to residential at 29 units an acre.  This is, categorically, a zoning regulation.  It will not stand in the face of contrary state law.

California Government Code section 65915(b)(1)(G) and 65915(f),  just by way of example,  permit a developer to propose up to 80% more units than the Measure K’s “H-29” zoning overlay appears to authorize.  The math is simple.  2 acres of MLK park, zoned for 29 units an acre, equals a basic unit count of 58.  An 80% bonus applied to this base of 58 equals 105 units.  A developer developing for this target number can demand concessions like building zero parking spaces, while simultaneously constructing a building that completely obliterates all of the existing parking at MLK park.

Bonus density laws extend further than just threatening to expand the scope of the project’s units.  They wipe away all design standards that city zoning ordinances require, such as height.  The citizens of the city of San Diego bitterly learned this lesson in the recent case of Bankers Hill 150 v. City of San Diego (2022) 74 Cal.App.5th 755.  Bankers Hill 150 is controlling law here in Sausalito because published Court of Appeal opinions have statewide authority.

Closer to home, based on this authority, our neighbors in Mill Valley were forced to accept a project that was twice as tall as local ordinances allow, with only 7 parking spaces for 30 units, despite tremendous community resistance.