Alameda County Health Officer Rebukes Oakland Over Interpretation of Alameda County’s Shelter-in-Place Order Regarding Residential

On April 7, the City of Oakland Planning and Building Department released findings and determinations implementing the construction-related section 13(f)(v) of the County of Alameda’s March 31 shelter-in-place order No. 20-04 (“County Order”). The County Order allows residential construction projects to continue only if a project’s units include at least 10% that will become “income-restricted.” Oakland’s April 7 Implementation Statement interpreted this requirement broadly and stated that the City would allow construction, and perform building inspection services, for residential construction that is “compliant with the City’s affordable housing requirements,” including, but not limited to, projects required to pay the Affordable Housing Impact Fee in lieu of constructing on-site affordable units.

On April 14, the Alameda County Health Officer objected to the City’s decision to allow construction to continue on residential projects that satisfied affordable housing obligations through the payment of in-lieu fees. In a letter to the City, the Health Officer found the City’s interpretation to be “inconsistent with both the spirit and the letter of the Order, which prioritizes construction of affordable-housing units over other construction.” The Health Officer warned that “because the [County] Order controls over any other authorization, those following [the City’s] interpretation are at risk of arrest and the imposition of fines.” (Note that the City of Berkeley has its own Department of Public Health and issued its own shelter-in-place order that conforms to those issued by other Bay Area counties.)

The City removed its April 7 Implementation Statement from its website and modified its response to the County Order to reflect that exempted construction pertaining to affordable housing must have 10% affordable units on-site. The City’s updated response to the County’s Order can be found at https://www.oaklandca.gov/news/2020/planning-building-department-response-to-shelter-in-place.

While not in direct response to the Health Officer letter to Oakland, eight Bay Area Building Trades Councils issued their own letter on April 14 to the Alameda County Board of Supervisors, taking issue with the County Order’s limitation on residential construction to those projects including 10% income-restricted units. The Trades Council 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,” not just those with 10% or more income-restricted units. The Trades Council 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 Health Officer letter did not take issue with other aspects of the City of Oakland’s Implementation Statement. The City will also allow construction and will continue building inspection services for construction necessary to stabilize the soil, structure, or water management for non-exempt projects in the process of shutting down in compliance with County Order No. 20-04. However, this construction is only permitted to continue for a maximum of one week without additional plan approval by the City. The City will also allow and will proceed with building inspection services for three other types of construction: construction that had already initiated a temporary certificate of occupancy process as of March 31 (such construction may complete the process to obtain a Certificate of Occupancy); construction and repair of buildings containing “Essential Businesses” as defined in County Order No. 20-04; and construction and repair necessary to ensure the ongoing habitability and safety of residences or living spaces.

The City’s Implementation Statement findings reiterated that any ongoing construction work, however, must comply with all aspects of County Order No. 20-04, including the immediate preparation and posting of a “Social Distancing Protocol” for each facility frequented by the public or employees. Finally, the City’s findings encourage all construction sites to implement the social distancing guidance from the State Building & Construction Trades Council found here.

The County Health Officer’s letter to the City can be found here.

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

The City’s original, and now superseded, April 7 Implementation Statement can be found here.

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