On April 14, 2020, the Alameda County Public Health Department issued a letter to the Oakland Planning & Building Department criticizing the City’s interpretation of the County’s March 31 “shelter-in-place” order.  Like the orders in the other Bay area counties, the stated intent of Alameda’s shelter-in-place order is to have people shelter in their residences to slow the spread of COVID-19. To that end, the order allows people to leave their residences only for specified Essential Activities, Essential Governmental Functions, Essential Travel, to work for Essential Businesses, or to perform Minimum Basic Operations for non-essential businesses.  The order identifies eight types of construction as “Essential Businesses,” including “affordable housing” that contains at least 10% income-restricted units.

Oakland, in its housing-friendly way, issued a formal statement on April 7 interpreting the County’s order and explaining how the City would implement building inspection services related to “Essential Businesses,” including affordable housing construction.  In particular, the City explained that it would continue building inspection services, and thus allow new housing construction to proceed “that is required to pay the Affordable Housing Impact Fee in lieu of on-site affordable units and/or projects that are otherwise compliant with the City’s affordable housing requirements.”

Highlighting the arbitrary treatment of all types of construction, particularly new housing construction, while most people are required to shelter-in-place, the County health officer explained how the orders evolved and that her Bay area contemporaries “intended that only construction that includes on-site affordable housing may continue” during shelter-in-place.  She emphasized the point again one paragraph later, stating that her order “prioritizes construction of affordable-housing units over other construction.”  The health officer then pulled rank, warning Oakland that because her order “controls,” those following the City’s interpretation “are at risk of arrest and the imposition of fines.”

The County health officer’s favoritism towards affordable housing is surely consistent with her Bay area counterparts, who all endorsed the same shelter-in-place language, but their collective position is ill-conceived and amounts to a usurpation of local land use control.  Indeed, if the orders truly intend to prevent the spread of the coronavirus, as they should, then there is simply no rational basis to allow affordable housing construction to proceed apace while shutting down most other construction, particularly market-rate housing.  The coronavirus is surely no less likely to spread when construction workers build affordable housing than it is when they build market-rate housing or, for that matter, anything else.

The Bay area’s shelter-in-place orders have many other difficult-to-rationalize idiosyncrasies, but when it comes to construction they reflect a bald declaration by the County’s public health officers that affordable housing is more important than any other kind of housing.  But that decision is not within their purview and they demonstrably do not understand the scope or foundations of the state’s housing crisis and the fact that California desperately needs more production of every kind of housing.  If social distancing protocols are maintained, then construction is construction, and there is no valid basis in the shelter-in-place orders to express a policy preference regarding the relative affordability of housing.

Moreover, the Bay area health officers’ crabbed position on housing is out of touch with the California Department of Public Health, which continues to exempt activity “as needed to maintain continuity of operation of the federal critical infrastructure sectors, critical government services, schools, childcare, and construction, including housing construction.”

We agree with the sixteen members of the California Legislature who co-signed an April 16 letter asking the health officers to make sensible changes to the orders “to ensure construction worker safety while allowing desperately needed housing production to continue.”  To put it more bluntly, they should conform their shelter-in-place orders to the state approach to housing, “broadly classifying housing construction as an essential activity and avoiding arbitrary choices that certain housing can be built while others cannot.”  Nothing in the Health and Safety Code or any other law gives the Bay area’s seven unelected health officers the authority to dictate local housing policy.


Questions? Please contact Bryan W. Wenter, AICP of Miller Starr Regalia.

For more than 50 years, Miller Starr Regalia has served as one of California’s leading real estate law firms. Miller Starr Regalia has expertise in all types of real property matters, including full-service litigation and dispute resolution, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, exactions, title insurance, environmental law, and land use. Miller Starr Regalia attorneys also write Miller & Starr, California Real Estate 4th, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. For more information, visit www.msrlegal.com.