“The very ink with which history is written is merely fluid prejudice.”
-Mark Twain
In the world of politics, problems and solutions are subject to those who create descriptions and definitions. The public is frequently told what is intended by use of a word or group of words. An often-cited example is “market rate” and “affordable” housing. Categories within the context of each further define their meaning, but fail to uncover micro-regional differences that may tell a completely different story and their impact on affected populations.
When housing developments are approved, a specific plan and cost analysis accompanies preparation. Contingencies are an acceptable provision since the unexpected can, and does, happen with regularity. In some cases, such changes are easily absorbed while in others, they can radically transform initial assumptions. Results typically depend on those defining the circumstance, offering either solutions or impediments to resolution.
A case in point of such a dilemma is the current impasse between the City of Fremont and BMCH California, LLC (dba Century). A portion of the “Parc 55 Project” in the Warm Springs district – approved for up to 81 detached homes and 151 condominium units – is in dispute. The initial Development Agreement between the city and East Warren Park, LLC defined the development as “senior housing.” Century purchased the rights for development of up to 81 detached homes and 151 condominium units. In theory, housing for age 55+ “seniors” could accommodate retired, older people with no school-age children, thereby relieving the surrounding area of additional commuters and increased school impacts. Downsizing from other highly appreciated homes would allow these seniors to purchase “market-rate” units, resulting in significant sales.
As often happens, the Law of Unintended Consequences intervened as the developer found the intended market severely limited, but another group of buyers ready and willing. The project, marketed under a new moniker, “Enclave Senior Housing,” appealed to a different group of buyers since many elderly “seniors” were actually part of multi-generational units, not separated from younger members of the family. As a consequence, the Development Agreement was scrutinized and found, in the developer’s opinion, to allow a change of CC&R (covenants, conditions, and restrictions), permitting younger residents occupancy if a senior – age 55 or older – is “included.”
The City of Fremont had a different opinion, asserting that the Development Agreement forbade any permanent resident except seniors and those over the age of 45. With some units already in the purchase process, retaliation in the form of permit and inspection holds was used as a weapon to delay and halt sale and occupancy.
On to court…
Although heavily debated in Alameda County Superior Court, a preliminary injunction was filed February 3, 2021, allowing occupancy for those who had completed or were in the process of purchasing homes at Enclave Senior Housing. The remainder of the project is currently in limbo as it proceeds though legal determination. A question remains of why a project, submitted to city council for approval, was presented and approved as a market-rate, seniors-only development when the market could not sustain it and language in the Development Agreement was debatable when applied to senior occupancy.
According to court documents, the developer has been successful in their arguments and, in the judge’s opinion, will ultimately prevail. Is this an instance of poor document construction, lack of adequate council oversight or simply happenstance?
Another factor to consider is the definition of “senior citizen.” In 1935, when Social Security began, average life expectancy was 61 years. Now, it is approximately 79 years of age. It’s a moving target; retirement, health and benefits can vary widely. So too can the definition of a family living unit. The median age in the U.S. is approximately 38 years old. Are you considered a senior (older) citizen at 39? So called “Senior Discounts” are available in some instances for those who are 50 years old. Are they “seniors”? Social Security retirement age that began at age 65 has now increased to age 67 for those born in 1960 or later. Maybe it is an appropriate time to investigate lifestyle trends and multi-generational living units when considering zoning and housing requests.
“Numbers never lie, after all: they simply tell different stories depending on the math of the tellers.”
-Luis Alberto Urrea