Late Correspondence - Holland & Knight — Emeryville City Council, April 5, 2022

We write on behalf of our clients, AG-CCRP Public Market, L.P. and Oxford Properties, in regard to the EmeryStation Overland Project (“Overland” or “Project”) proposed by Wareham Development (“Wareham” or “Applicant”) located at 1580 62nd Street in Emeryville, California (“City”). We are concerned that the City has been pressured by the Applicant to rush the approval of the Project to the detriment of the character of the neighborhood and the City as a whole. To that end, we request that the City provide the meticulous level of review and attention to the Overland Project that it has given the many other developments throughout the City and ensure both its design and benefits are in keeping with the City’s policies and ideals.

A. The City Has Expedited Review Process to the Detriment of Public Participation.

The Project has benefited from three public study sessions, one before the Planning Commission on April 24, 2021 and one before the City Council on July 20, 2021, which was continued to November 16, 2021, and a second Planning Commission study session held less than two weeks ago in which Commissioners identified substantial reservations regarding the Project.

During these sessions, the Project’s design has continued evolve. However, the opportunity for public participation and review of these changes has been hampered by the acceleration of the Mayor John Bauters and Members of the City Council
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review process. The first, continued City Council study session was initially intended only to evaluate whether the Council would entertain a flexible community benefits proposal, but progressed into a bifurcated session focusing on a full discussion of the design of the Project with only a single member of the public commenting during the November 16, 2021 session. At the March 24, 2022, City staff indicated that the Project would again be evaluated by the City Council three weeks later on April 14, 2022. This three week period would have allowed the Applicant and the public to adequately digest and respond to the significant reservations raised by Commissioners. Instead, the public process for the Wareham development has again been accelerated. We respectfully request the City give Wareham’s proposal the considered review necessary to ensure the project is consistent with the City’s aesthetic, policies, and ideals.

To that end, we have only been able to address high-level concerns to the Council with the below letter regarding the overall design, adequacy of bonus point contributions, and parking. We hope to offer the City more nuanced and detailed considerations as the City proceeds with its review, particularly with regard to aesthetics, traffic, greenhouse gas, air quality, noise, shadow, and wind impacts.

B. The Project’s Design Is Inconsistent with the City’s Policies and Ideals.

The design as proposed is inconsistent with the Emeryville Design Guidelines, which provide that “bulky buildings” that can cast large shadows and obstruct sunlight and views are to be avoided.1 The City’s building massing is intended to support pleasant, safe and sunlit streets and sidewalks. Instead, the Project creates narrow canyons for public access. Further, there are no variations or articulation through changes in height and massing.2 The project is instead monolithic, with no distinguishable base, middle or top for the building, as is required for all buildings of five stories or more.3 Indeed, City Guidelines specifically provide that office and technology developments such as the Project shall “[a]rticulate the building base with a change in materials, color and finishes, fenestration pattern and size.”4 Nor does the building incorporate
the neighborhood or district identity.5
The building design is not reflective of the industrial historic past or the character of surrounding buildings. The mirror glazing does not “draw on adjacent or nearby building features” to achieve compatibility and is not in keeping with Emeryville’s character. Instead it creates a “blank flat wall at the ground level creat[ing] an unwelcoming streetscape for pedestrians.”6
Further, at least one Planning Commissioner noted that the renderings created by the Applicant do not adequately reflect the reality of the finished building. Indeed, the renderings include several inaccuracies including mature trees around the loading dock in order to create a more

1 Emeryville Design Guidelines at p. 17. 2 Id. (D-2). 3 Id. at p. 18 (D-6). 4 Id. at p. 63 (J-20). 5 Id. at p. 20 (E-2). 6 Id. at p. 27 (F-1), p. 29 (F-15) (glazing should not be reflective).

Mayor John Bauters and Members of the City Council
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appealing design on paper. The City, however, should be concerned with creating a true livable built environment.

While the Project provides open space in excess of the required square footage to achieve its required density (discussed further infra), the open space provided as part of the Project’s baseline fails to meet City standards. While the Applicant has appropriately removed the utilitarian stormwater treatment areas from the calculation of its provided open space, the removal clearly demonstrates the inadequacy of what is effectively a landscaping strip described as the “West Overland” open space. The City requires that a six foot by six foot square, “laid flat, must fit within every part of the open space.”7 The West Overland area cannot meet this requirement when the stormwater treatment areas are properly removed.

Further, the area designated as a privately owned public open space (“POPOS”) is not designed for use by the public. It consists of “collaboration zones,” “work benches,” and facilities designed to serve the buildings’ tenants, not the public. Its separation from the public right of way by the stormwater treatment area creates a visible barrier or separation from the public way, decreasing the likelihood of use, in direct conflict with the City’s POPOS standard to ensure the landscaping “extends the design of the adjoining public right-of-way” and is visually accessible from the street.8 The Project’s overall design, including reflective glass in violation of City design standards, calls into question the utility of the courtyard as a whole. As the City has noted, sun exposure is from the southwest, creating a great deal of glare on the site and hampering the usability of the courtyard.

At the same time, the Applicant has created a narrow canyon that they themselves describe as an “alleyway” to account for over 40% of its common open space. The purported “art walk” does not “encourage interaction among occupants,”9 does not “have direct sunlight,”10 and--as Wareham has repeatedly noted--the east-west orientation creates the potential for a wind tunnel effect.

C. The Benefits Provided in Exchange for Monolithic Height Are Inadequate and Inconsistent with City Policy.

Wareham proposes building well in excess of the massing of the surrounding neighborhood by utilizing the City’s bonus point system. In addition to the mandated contribution to the affordable housing fund, Wareham proposes to meet its points obligation by (1) providing additional open space and (2) providing a flexible community benefit by restricting already existing housing to affordable levels.

7 Emeryville Municipal Code (“EMC”) Figure 9-4.303(b). 8 Emeryville Design Guidelines at p. 33 (G-19). 9 Id. at p. 32 (G-11). 10 Id.

Mayor John Bauters and Members of the City Council
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1. The Project’s Open Space Is Inconsistent with City Standards and Insufficient to Justify the Maximum Height and Density.

The design of any bonus open space “must comply with applicable provisions of the Emeryville Design Guidelines.”11 City’s open space requirements “are intended to provide high quality open spaces for active and passive recreation. They establish minimum standards . . . .”12 “‘Common open spaces’ are courtyards, sport courts, play areas, and gardens for communal use within a development.”13 The Applicant has appropriately removed stormwater treatment areas from its calculation of the Project’s open space and staff has correctly disallowed the use of offsite improvements, unless the corresponding parcel area is also included for purposes of calculating the requirement. Yet a significant portion of Wareham’s proposed contribution still consists only of landscaping strips or unimproved pavement. “Required open spaces may not be located in driveways, loading, and service areas.”14 But that is exactly what Wareham proposes by repurposing a required midblock path15 to be utilized by fire and emergency services for open space. This is particularly problematic for the northern half of the mid-block path which includes no landscaping, benches, or other facilities for public use. Unimproved pavement, particularly when already required pursuant to the City’s Design Guidelines, is insufficient to justify the dramatic density of the Project.

2. The Flexible Community Benefit Does Not Meaningfully Improve Housing in the City.

Rather than create meaningful housing opportunities, whether through additional contributions to the City’s affordable housing fund or through the construction of new units, Wareham relies on live/work units that have been present on the site since 1980.16 Despite Wareham’s statements to the Commissioners, the live/work units on site are an allowable use in the OT zone and many of the rents currently charged are already below the moderate income level.17 The income restriction of units already offered at a level equivalent to a moderate-income restriction hardly offers the kind of benefit necessary to justify the dramatic increase in density proposed by Wareham. We urge the City to conduct a rigorous independent review of the purported economic benefits of this proposal.

11 EMC Table 9-4.204(e). 12 EMC § 9-4.303(a)(1) (emphasis added). 13 EMC § 9-4.303(3)(a). 14 EMC § 9-4.303(2)(b). 15 Emeryville Design Guidelines at p. 17 (D-3). 16 Emeryville General Plan Update, Emeryville Housing Element 2009-2014, at 63, available at https://www.ci.emeryville.ca.us/DocumentCenter/View/601/Complete-Housing-Element-6-16-10?bidId=. 17 https://www.acgov.org/cda/hcd/documents/2021IncomeandRentLimits.pdf.

Mayor John Bauters and Members of the City Council
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D. The Project Is Overparked and the Transportation Improvements Proposed by Wareham Are Insufficient to Justify the Project’s Manifest Auto-Dependence.

Wareham proposes 496 spaces in its parking garage. The “maximum number of parking spaces allowed shall be based on the estimated parking demand by use type as listed in Table 9-

4.404.”18 City staff has estimated the parking demand at 580 spaces, reduced by half due to the Project’s location in the Transit Hub Overlay zone to 290 spaces. City staff has also estimated the uses associated with the remaining Hollis building to remain at 84 spaces. Wareham has stated that 68 of the spaces in its new 496-space garage will be dedicated to the Hollis building, leaving 428 spaces for its new life sciences building.

The Emeryville Municipal Code provides that the maximum number of spaces allows “shall be ten percent (10%) more than the estimated parking demand.”19 Applying this to the life sciences building results in a maximum demand of 319 spaces. Wareham would overpark the life sciences building by over 109 spaces, or more than 33%. The City can only permit this dramatic increase if the applicant has convincingly demonstrated (1) that additional parking is required to meet anticipated demand and (2) that the additional parking will not result in an overdependence on automobiles. Wareham has not and cannot do so.

First, Wareham has not demonstrated that additional parking is necessary. As noted by Planning Commissioners, sites developed by the Applicant team remain overparked. Further, Wareham noted in its presentation to the Planning Commission that a third of its campus employees already use alternative methods to reach their worksites calling into question the necessity of this enormous surplus for the life sciences building. The parking study submitted by Wareham relies on the uses associated with the existing buildings in order to justify its dramatic parking surplus, but City staff report that only 68 spaces will in fact be dedicated to these existing uses. The remainder are slated for the life sciences building. The Applicant has not and cannot “convincingly” demonstrate that a 33% surplus is necessary, especially when its own consultant estimates the Project would require only 365 spaces for parking without applying the Transit Hub Overlay reduction.20
Second, Wareham has not adequately demonstrated that the additional parking will not result in an overdependence on automobiles. The City proposed off-site transit improvements including protected bike lanes but, as noted by the Planning Commissioners, the provision of a curb for existing bike lanes does not meaningfully improve bicycle circulation or reduce vehicles in the area. Moreover, Wareham’s proposal preserves its own circulation around the site in order to allow for vehicular traffic. Finally, the proposal for a two-way protected bike lane on 62nd creates significant connectivity challenges for cyclists moving across Hollis.

18 EMC § 9-4.404. 19 EMC § 9-4.404(f). 20 Technical Memorandum from M. Barber et al. (CHS Consulting) to G. Sears et al. (Wareham Development) (Oct. 26, 2021) at p. 14 (estimating only 365 spaces needed for the Lab (50/50 Office & R&D) use).

Emeryville City CouncilApril 5, 2022

Emeryville City Council
April 5, 2022