Since the start of the campaign there have been questions about the extent to which the Nishi Affordable Housing component is locked into the Nishi Baseline Project Features, or whether a 3-2 vote of council could change it.
The opinion expressed by some opponents of the project has been that the Affordable Housing plan is not locked into the Baseline Project Features and therefore the 3-2 vote of council can change the percentage of units and effectively make the affordable project go away.
Tim Ruff, one of the partners on the Nishi project, believes otherwise. He told the Vanguard, “The DA [Development Agreement] and affordable plan is specifically referenced in the Baseline, so those requirements can not be changed.”
The language in the actual Baseline Project Features leaves some room for question. On page 8, it states, “The Developer shall comply with the affordable housing requirements as set forth in the Development Agreement, which is focused on providing housing for extremely low and very low income students.”
It is the Development Agreement that lays out the structure of the program: “Developer intends to lease individual beds within the Nishi Multifamily Units, with the project marketed primarily to students. The 700 multifamily units are anticipated to include approximately 2,200 total beds. A minimum of 330 total beds (the ‘Affordable Beds’) within the Nishi Multifamily Units shall be designated as affordable beds pursuant to this Affordable Housing Plan, with 220 beds rented to very low income students and members of their household (‘Very-Low Income Beds’), and 110 beds rented 
to extremely low income students (‘Extremely Low Income Beds’).”
Later it states: “The Affordable Beds will be made available to full-time students.”
The question then is to what extent the council can change this without a vote.
City Manager Mike Webb, in consultation with the City Attorney, issued the following statement to the Vanguard: “I would read the baseline feature literally and say that any substantive change from the DA as approved by the City in February would require a new election. Going to the DA pg. 14, sec. 201 section 5 requires compliance with Exhibit L, the Affordable Housing Plan.”
He adds, “This Affordable Housing Plan which has a minimum number of beds, standards for affordable eligibility, but not dollar amounts – rather a formula as the dollar amounts will change over time – definitions of full time student, etc.”
He continues: “I would note that the Plan expressly provides for modifications that the City determines are reasonable necessary to comply with Fair Housing Laws (these laws include but are not limited to Federal Fair Housing Act, CA Fair Employment and Housing Act and the CA Unruh Act). ( see DA p. 57-58) Therefore any change of that sort would not require voter approval.”
He concludes: “I would opine that any substantive change from the program laid out in Exhibit L would require voter approval (except as stated above).”
Councilmember Will Arnold told the Vanguard, “It has always been my understanding and intention that the Nishi affordable housing plan, which I strongly support, is so fundamental to the project 
that any future substantive change to it would need to go before the voters.”
The developer, the city, and a councilmember who will be on the council beyond June all appear to agree that the affordable housing provisions cannot be changed without a vote.
While that will likely not satisfy the hardcore critics and opponents of the project, from both a political standpoint as well as a legal one, that boxes in the city, the council and the developer.
If the developer proposed such a change, they would have to explain why it should not go to a vote of the people when they already weighed in that it should. The city would have to explain how they changed their view, as would the council.
Even if it were legally possible, it would not appear to be politically possible to do so. And frankly, from a legal standpoint, the city, having come out with the opinion, is basically telling the voters that the affordable housing program in Nishi is locked in and cannot be changed with a vote. From a legal standpoint, if they tried to claim a mistake in a court proceeding, they would have difficulty getting that by a judge who would reason that the voters were left with the impression that it would take a vote to undo when they cast their votes.
Bottom line: this issue is reasonably addressed and should be put to rest at this point.
—David M. Greenwald reporting
“The developer, the city, and a councilmember that will be on the council beyond June , all appear to agree that the affordable housing provisions cannot be changed without a vote.”
First, I want to point out that I am in favor of Nishi.
Having said that, I see this as a very weak argument. We have to look no further than the Cannery to remind ourselves that developers views on what is feasible are highly subject to change with changing economic conditions. The city staff has typically weighed in on the side of developers/investors when they make their pleas for changes. Finally, because an going council member says so now does not mean that future circumstances will not change his mind and also does not change the fact that two other council members who may or may not share this view will soon be elected.
The difference is that if the city believes that changing the Affordable Housing would require a vote of the people, it’s probably going to stay that way. There is no comparable with Cannery.