Council of repeal

As one of her first official acts, Mayor Trish Spencer has placed on the January 6 Council agenda an item seeking repeal of the ordinances approving the Del Monte development project that were passed by the former Council as they headed for the exits.

Del Monte from Fortmann corner 3

The Merry-Go-Round suspects that those who backed the losers in the last election will characterize this move as a spiteful effort to undo the good works of the defeated and termed-out incumbents.  As such, it confirms the Inner Ringers’ caricature of Ms. Spencer as the candidate of “No.”

But our mission is not to incite ad hominem attacks on the new Mayor.  (There’s already a daily blog dedicated to that purpose).  Instead, we want to explore what kind of case Ms. Spencer and her supporters can make – on the merits – for reversing the prior Council’s action.

We see three possible arguments, which we’ll phrase as questions:

  • Did the former Council obtain sufficient information about what the Del Monte project as a whole consists of?
  • Did the former Council do an adequate analysis of whether the proposed traffic demand management plan was likely to work?
  • Did the former Council follow the law in authorizing the project?

If the answer to any of these questions is “No,” it can be argued that the new Council should not allow the ordinances passed by its predecessor to stand.  Rather, those ordinances should be repealed and further information should be gathered and analysis performed.  Council then will be in a position to decide whether the proposed project truly is right for Alameda.

This course of action wouldn’t reflect petty vindictiveness; it would show a commitment to painstaking decision-making.  And it would set a precedent for the next four years:  no longer can Council be counted on simply to rubber-stamp development proposals endorsed by staff and blessed by the Planning Board; this Council intends to exercise its own independent judgment.

We’ll start with the most basic item:  what the development as a whole consists of.  To date, the focus has been on the renovation of the Del Monte warehouse, but the project also includes two other pieces of land located west of the warehouse:  the “Sherman Sub-Area”(“B” below) comprising 0.81 acres, of which 0.45 acres is owned by the City, and the “Eagle Sub-Area”(“C” below) comprising 0.83 acres .

Del Monte site plan

What does the developer, Tim Lewis Communities, intend to build on those two parcels to complement the warehouse renovation?  The short answer is:  We don’t really know.

According to the Master Plan, “Residential units and commercial space would be housed in new structures to be built on those pads.”  Okay, but what?  You won’t get the answer by looking at the 54-page Development Plan, which provides plenty of design drawings – but only for the warehouse.  In fact, nowhere in the public record can you find any plans for the Sherman or Eagle Sub-Areas.

This omission is not insignificant.  Ever since the project was announced in April 2014, Tim Lewis has described the development as containing 414 housing units.  But only 308 units are planned for the 7.26-acre warehouse site, leaving 106 – a quarter of the total – to fit onto the two smaller parcels totaling 1.64 acres.  Stuffing 106 units into 1.64 acres would require some very dense (64.6 acres per unit) construction.

The frantic maneuvers to rush the deal through the approval process eliminated the requirement that the City transfer the 0.45-acre parcel to Tim Lewis and resulted in reducing the number of units slated for the two smaller parcels from 106 to 72.  But packing even 72 units into 1.19 acres still will require high-density (60.5 units per acre) construction.  And if Tim Lewis eventually gets the additional 0.45 acres from the City, it can bump the maximum number of units back up to 408 and the density jumps accordingly.

Del Monte - city corner 2

City-owned parcel at corner of Buena Vista and Sherman

The Planning Board and the former Council chose to remain in the dark about the layout and design of the buildings being considered for the smaller parcels, but the new Council – and the public – might like to know what Tim Lewis has in mind.  The warehouse renovation may look great, but what if the rest of the project resembles Co-op City?  To prevent any unwelcome surprises down the road, it can be argued that the ordinances need to be repealed and reconsidered after additional information is made available.

(There is also a legal issue here.  Tim Lewis applied for, and the former Council approved, a density-bonus application for the Del Monte project.  But the density bonus ordinance requires that an application must include, among other things, a “set of preliminary project plans that include a site plan showing all building and structure footprints or locations, drive aisles and parking layout; floor plans of all structures and buildings; and architectural elevations of all buildings and structures, all drawn to scale.”  (emphasis supplied)  If Tim Lewis submitted “preliminary project plans” for the two parcels next to the warehouse, they didn’t make it into the public record.)

A related issue about the contours of the project arose during the discussion of former Councilwoman Lena Tam’s post-midnight amendment to reduce the maximum total number of housing units from 414 to 380.

To get the density bonus, Tim Lewis committed that the development will provide 55 units of “affordable” housing.  The Master Plan stated that, “It is anticipated that the 24 Moderate income units would be housed in the Del Monte Warehouse building and the 31 Low and Very Low income units will all be built in a new building on Subarea B [i.e., the Sherman Sub-Area].”

The plan, apparently, was to put the 31 units onto the portion of “Subarea B”/”Sherman Sub-Area” owned by the City, which would be transferred to Tim Lewis or a low-income housing developer.  But during the post-midnight proceedings on December 3, Ms. Tam suggested – she was serious, wasn’t she? – that the City might want to retain the 0.45 acre parcel for “open space or what we have out at Independence Plaza.”

But that would require a change in the location of the very-low and low-income housing.  Would Tim Lewis build the 31 units on its portion of the Sherman Sub-Area and cram all of the remaining authorized market-rate units onto the adjoining Eagle Sub-Area?  Or instead would Tim Lewis move all of the very-low and low-income units to the Eagle Sub-Area and keep the rest of the Sherman Sub-Area for market-rate units?  Or would it split the “affordable”units between the two parcels?  Whatever choice the developer made inevitably would affect the market-rate, as well as the very-low and low-income, component of the residential development.

One might have expected that, before approving the deal, the elected officials would want to know exactly how Tim Lewis proposed to fulfill its “affordable” housing obligations if the City held onto the 0.45 acres.  But not the former Council.  All that mattered to former Mayor Marie Gilmore and her allies was Tim Lewis’s promise that the development still would provide 55 “affordable” units.  Where they would go, and how they would affect the rest of the project, was somebody else’s problem.

Maybe the new Council members will choose to treat it as their problem.  If so, again it can be argued that the ordinances need to be repealed and reconsidered after the plan for “affordable” housing gets fleshed out.

(We should note that Renewed Hope, the housing advocacy group, isn’t worried.  Asked for reaction to the Tam amendment, Renewed Hope vice president Bill Smith told us, “we support the amended and scaled-down project as we have been reassured by both the City of Alameda and the developer, Tim Lewis Communities, that all 55 affordable housing units in the original master plan will be included in the slightly smaller development.”)

The second point worthy of reconsideration by the new Council involves the familiar issue of the development’s impact on traffic.

One of the documents approved by the former Council was the “Supplemental Mitigated Negative Declaration” for the Del Monte project, which addressed whether the development posed any significant environmental impacts beyond those reviewed when a full-blown environmental impact report for the northern waterfront was prepared in 2006.  In fact, the SMND concluded,

although the proposed project would include changes to the [Northern Waterfront] EIR assumptions for development, the impacts of the proposed project to automobile, transit, bicycle, and pedestrian modes of travel from the proposed project can be mitigated to ensure that there are no new significant impacts from the proposed project that were not previously disclosed or that those previously disclosed impacts are not more sever [sic].

Good enough, right?  Sure, until you look at the hard data the environmental studies present.

We’ll cut right to the bottom line:

  • If not only the Del Monte project but all of the other development projects currently approved for the northern waterfront and at Alameda Point get built, and nothing is done to “mitigate” the traffic impact, by 2017 the “level of service” at two intersections along the northern waterfront (Buena Vista Avenue-Entrance Road and Sherman Street-Eagle Avenue) will be rated “F” (“Represents conditions at capacity, with extremely long delays.  Queues may block upstream intersections.”)
  • By 2035, when presumably all of the development activity will have ended, three East End intersections (Park Street-Clement Avenue, Park Street-Blanding Avenue, and Blanding Avenue-Tilden Way) will join the two northern waterfront intersections in receiving failing grades.

And the tubes?  According to the Environmental Assessment for the Veterans Administration project at Alameda Point issued in November 2013 (and cited in the Del Monte traffic study), by 2017 the tubes already will operate at 82 per cent of capacity during the morning rush hour and 84 per cent during the evening rush hour.  By 2035, the figures jump to 91 per cent and 93 per cent.  The Del Monte traffic study forecasts that the project will add 70 trips to the a.m. peak commute and 80 trips to the p.m. peak commute.

On the former Council, only Councilman Tony Daysog was interested in details like these.  His four colleagues were content to receive assurances from City Planner Andrew Thomas that, obviously, the Del Monte project (like every other development) will create traffic impacts, but the developer and City staff had found a way to mitigate them.  In fact, Mr. Thomas proclaimed, an “independent” expert hired by the City had concluded that the planned mitigation steps would enable the project not just to meet, but to exceed, the traffic “reduction” goals set forth in the City’s Transportation Element.

(By the way, pay close attention whenever Mr. Thomas or any Planning Board member talks about the traffic “reduction” goals.  They don’t mean that the project actually will reduce traffic in the affected area.  They mean it will generate fewer additional vehicle trips than it would have absent the mitigation measures.)

The magic solution, of course, is the traffic demand management program.  But here’s the rub:  The TDM plan that the City’s hired expert extolled is not the same as the one the Planning Board ended up approving.  And, since Council was not being asked to okay a specific TDM plan, the former Council never received or considered any comprehensive analysis of the consequences of the changes.

Again, this neglect is not insignificant.  The TDM plan originally presented to the Planning Board provided for “unbundled” parking, which means that Del Monte residents would be required to buy, or lease, a parking space if they wanted to keep a car on-site.  Not only is “unbundled” parking a feature preferred by the cognoscenti, our own local experts decreed it was all but essential to the success of the Del Monte TDM plan.

For example, in response to the suggestion that parking should come with the units, self-proclaimed transportation guru and Planning Board member John Knox White told his colleagues:

What you’re going do, by bundling the parking together, is you’re going to increase the number of cars coming into the neighborhood, you’re going to increase the traffic, you’re going to increase every single person’s housing costs instead of giving them the option to decide whether that’s a cost they want to bring into their decision-making.

And then, in typical fashion, Mr. Knox White lectured the Board: “Our job is to address the concerns we hear about traffic and what not.  And the #1 thing we can do to address the concerns about traffic is unbundling spaces.”

Unfortunately, the residents in the Del Monte neighborhood are not as enlightened as Mr. Knox White, and they convinced a majority of the Planning Board to reject “unbundled” parking in favor of a plan that “assigned” a parking space to each resident and allowed her to lease an additional space if she wished.  And it was this revised version that became part of the development scheme presented to the former Council.

The accompanying staff report disclosed that three Planning Board members had “expressed their preference” for “unbundled” parking.  But it did not explain how the revised TDM plan could still mitigate the traffic impacts caused by the project even though it no longer contained a feature that had been deemed so crucial to its success.

Instead, staff passed the baton to the hired expert who had praised the original TDM plan.  The consultant previously had supported his conclusions with a written report bristling with calculations made using “URBEMIS, an industry standard air emissions calculator for CEQA documents that is also used in calculating trip generation rates.”  No similar report evaluating the revised TDM plan was prepared – or at least none was made public – during the three weeks after the Planning Board eliminated “unbundled” parking.

Nevertheless, the consultant told Council, while “unbundled” parking was a “key component” of a TDM plan and has “a lot of impact” on trip generation, it was just “one part of the package.”  Even without “unbundling,” he averred, “we still believe” that the TDM plan for the Del Monte project will allow City to meet its traffic “reduction” goal.

These assurances, delivered off the cuff during the public comment period on December 2, were good enough for everyone on the former Council except Mr. Daysog, who voted against final passage of the ordinances and now has submitted his own Council referral calling for creation of a “Comprehensive Transit/Traffic Strategic Plan and Implementation Tool.”  Maybe his colleagues on the new Council would like to apply this approach, or some version thereof, to the Del Monte TDM plan.  If so, again it can be argued that the ordinances need to be repealed and reconsidered after the effect of eliminating “unbundled” parking is taken into account.  (Should Council entertain “expert” testimony on this issue, we’ll volunteer to cross-examine Mr. Knox White).

Out of deference to the non-lawyers among our readers, we’ve left the legal issue for last.  But it may be the one that turns out to be decisive.

The California Government Code establishes the legal requirements for enactment of a municipal ordinance.  To become law, an ordinance, unlike a resolution, requires votes at two Council meetings, one for “introduction” of the ordinance, the other for its “final passage.”  Section 36934 provides, in pertinent part:  “Ordinances shall not be passed within five days of their introduction, nor at other than a regular meeting or at an adjourned regular meeting.  However, an urgency ordinance may be passed immediately upon introduction and either at a regular or special meeting.” (emphasis supplied)

At its December 2 regular meeting, the former Council voted to “introduce” the ordinances approving the Del Monte project.  The same group then voted for “final passage” on December 16.  This was more than five days after introduction – but the second vote was taken at a special meeting, not a regular one.  The ordinances were not designated as “urgent,” nor could they have been, since there was no deadline that had to be met.

Under these facts the statutory requirement that final passage occur at a regular meeting appears to have been violated.  If so, the ordinances are, to use the legal term, void ab initio; it isn’t even necessary formally to repeal them – they never became effective in the first place.

Detective Chief Inspector Gill Murray of the Manchester Metropolitan Police would call it a major “cock-up” if City staff, in its effort to accommodate the defeated and termed-out incumbents, failed to follow the law when they devised the procedure for getting the Del Monte deal done before the new Council took over.  Previously, City Attorney Janet Kern had assured us that this procedure is “typical for Alameda.”  We’ll have to see what she says if Ms. Spencer or one of the new Council members raises the legal issue Tuesday.

In the end, we think a legitimate case can be made for repealing and reconsidering the ordinances approving the Del Monte project.  And it is a case that does not rest upon antipathy toward development in general or this project in particular.  Ex-Mayor Gilmore was fond of saying that we shouldn’t let the perfect become the enemy of the good.  Maybe Mayor Spencer can contribute a corollary:  let’s not make haste and carelessness our standard operating procedure, especially for matters that will affect the City and its residents for years to come.

If so, she’ll be off to a good start.

Sources:

Del Monte master plan: 2014-12-02 Ex. 2 to Del Monte staff report – Master Plan

Del Monte development plan: 2014-09-22 Ex. 6b to staff report to PB – Del Monte development plan

Del Monte TDM plan: 2014-11-20 Ex. 1 to staff report to PB – Draft Transportation Demand Management Plan (November 20, 2014 version); Final TDM Program

Draft Subsequent Mitigation Negative Declaration: 2014-09-22 Ex. 1b to staff report to PB – Del Monte initial study

Nelson/Nygaard memo: 2014-09-22 Ex. 5 to staff report to PB – memo re Del Monte traffic impacts

Veterans Administration Draft Environmental Assessment (Transportation & Cumulative Changes): Draft 3.3 – TransportationDraft 4.0 – Cumulative Impacts

About Robert Sullwold

Partner, Sullwold & Hughes Specializes in investment litigation
This entry was posted in Alameda Point, City Council, Development, Housing and tagged , , , , , , , . Bookmark the permalink.

12 Responses to Council of repeal

  1. Denise Lai says:

    Thank you for this.

  2. Leland Traiman says:

    This is the most comprehensive and well documented article on development in Alameda I have ever read. Mr. Sullwold has done his due diligence like no other I have seen. Thank you.

  3. Your article states that despite uncertainty about the future of Sub-Area B at the Sherman and Buena Vista intersection (where part of the affordable housing – 31 units – was supposed to go), Tim Lewis has made a “promise” that the development would still provide a total of 55 affordable units. That leaves unanswered the question of what “provide” means in the present circumstance. “Provide” can also mean, unless stated otherwise in a signed document, contribute fees to the city’s Housing Authority in lieu of building the 31 Low and Very Low Affordable units, which the Housing Authority can then apply to one of its projects elsewhere in the city. One such Housing Authority project that in all likelihood does not yet have all of its funding lined up is the 90-unit North Housing project to be run jointly between the Housing Authority and the Alameda Point Collaborative. This project will be next to Estuary Park and Alameda Landing.

    Not that it would be such a bad idea for the Del Monte project to contribute to the North Housing project, but it is clearly being less than forthright about the intent or expected outcome of the late-night downsizing of the Del Monte project if this is what eventually happens. It would certainly be in the developer’s interest to eliminate the 31-unit low income housing structure from its plans and have the city landscape the corner of Sherman and Buena Vista. It would add to the value of the Del Monte project as a whole. If this is the net outcome of all the maneuvering, maybe we can coin a new phrase: Three Card Del Monte.

  4. Paul S Foreman says:

    Thank you for another brilliant analysis of the DelMonte issue. I addressed the old Council on Dec. 16 with regard to the failure of the Planning Staff to require the developer to provide basic design detail for the low income housing as required by the Municipal Code. I have followed up with emails to the new Council and City Staff and hope to meet with some of them between now at Tuesday.

    The Master Plan and Development Agreement do provide for design review and an Affordable Housing Agreement containing these details that must be approved by Council prior to issuing a building permit for the warehouse, but to adopt these Ordinances with no design detail whatsoever provided in the initial Plan taints the entire approval process both with regard to a meaningful public hearing and the exercise of due diligence by the Planning Board and Council as to the overall acceptability of the entire Plan, of which affordable housing is an integral part. Delaying these details until after the Plan and Agreement have been adopted also raises a risk of disagreement with the developer that could lead to litigation.

    Your discussion of density issue is excellent. I will boil it down a little more. The warehouse contains 7.26 acres. .7 acres of which will be commercial. The residential space will have a density of about 47 units per acre. The Master Plan indicates that “it is anticipated” that the 31 unit Low Income Affordable Housing Element will be constructed on Parcel B. Before the Plan was amended on Dec. 16, that .81 acre parcel would have had a density of 38 units per acre, if, in fact, it would be a low income only building, which I have reason to believe is the case. However cutting out the .45 acre city plot leaves only .36 acre for the building, which raises the density to a whopping 86 units per acre!!! Talk about a tall urban ghetto!!! In contrast, if all of the remaining units outside the warehouse (41), go into the building on Parcel C the density will only be 49 units per acre, comparable to the warehouse. Talk about discriminating against the poor!

    Finally, I must inform you that, through no fault of your own, your argument concerning the illegality of adopting the Ordinances at a special meeting is inaccurate. On Dec. 24 I received copies of an unopposed ballot measure approved by the Alameda voters in 1987 amending the City Charter permitting ordinances to be approved at a special meeting. Although this conflicts with the California Government Code it is allowable for a charter city to elect a different procedure. Unfortunately the City Charter posted online was only edited to remove the regular meeting requirement so that it appeared that the Charter was silent on the subject, in which case the California Government Code requiring a regular meeting would have applied. I intended to inform you of this on Dec. 24, but inadvertently failed to do this. I apologize to you and your readers.

  5. Denise Lai says:

    The bit about segregated low-income housing, The Poor Door as it were, is a deal breaker. Segregated low-income housing has all kinds of negative impacts for everyone (low income or not) but also remember that those living in segregated housing do not have access to the same services. And it’s not the case that it’s easier/better for social services if the poor live in segregated housing; that’s old-school nonsense. We need to make design decisions about our city that cause a better future, not more of the same same (e.g., the new mall Alameda Landing is the same as all the Dead Malls that serve the mid-market across our country … yet we are just building this? Very poor city design decision).

  6. Tom says:

    Bob, your reviews bring focus to debate. Let’s hope the council can effectively decide to repeal and then review with eyes note clouded by Russo and Cily Attorney pressures.

    Keep up the great work.
    Thanks

    Tom

  7. Denise Lai says:

    Reblogged this on Raising Hell For Good and commented:
    It’s on.

  8. Wendy says:

    Awesome!!!!! Simply awesome.

    And I especially liked the closing:

    ” Ex-Mayor Gilmore was fond of saying that we shouldn’t let the perfect become the enemy of the good. Maybe Mayor Spencer can contribute a corollary: let’s not make haste and carelessness our standard operating procedure, especially for matters that will affect the City and its residents for years to come.”

  9. Mac says:

    Still think she is off to a good start? I beg to differ. In over her head.

    • Rob Moore says:

      Some one needs to try to fix the mismanagement of the last city leaders.

    • Paul S Foreman says:

      Mac, if you counted noses for and against repeal, you are right. However, it is evident that you did not take note of the equanimity and grace in which she presided which was commended by councilmembers Ashcraft and Oddie, who were adamantly opposed to repeal, or the approval of her placing it on the agenda by Councilmembers Matarrese and Daysog, nor the final vote to require city staff to completely review their procedure in processing development applications in order to avoid future problems.

      She is off to a great start, giving us exactly what she promised, courageous, independent thinking, political expediency be damned!

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