Matthew D. Francois
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April 19, 2022
R u ta n & T uck e r, L L P |
Ora n g e C o un ty | P a l o Alto | S a n F ra n c i s c o | 2696/028208-0002
17735274 2 a04/19/22
VIA E-MAIL [city [email protected]]
Honorable John Bauters, Mayor
and Members of the City Council
City of Emeryville
1333 Park Avenue
Emeryville, CA 94608
Re: Study Session-Marketplace Redevelopment Project Parcels A, B and F; April 19, 2022 Special Study Session, Agenda Item No. 6.1 Dear Mayor Bauters and Members of the City Council:
We write on behalf of our client, Wareham Development, in regard to the above-referenced development project. For over 15 years, Wareham has been actively engaged to ensure that the Marketplace project is developed in accordance with the enhanced design aesthetic and mixed-use vision reflected in the Marketplace Preliminary Development Plan (“PDP”). Because the latest Marketplace proposal submitted by Oxford Properties (“Oxford”)—replacing housing units with a 7-story garage and nearly tripling the amount of office/lab square footage (the “Proposal”)—is fundamentally at odds with both of these key principles, Wareham feels compelled to again comment on development plans for the site.
Our April 4, 2022 letter to the City Council outlined Wareham’s key concerns with the Proposal: (1) it places essentially an 830 foot long, unbroken wall along the railroad tracks, (2) it fails to provide critical links connecting east and west Emeryville, and (3) it has the potential to adversely impact the City’s jobs-housing balance. Unfortunately, the Staff Report for your April 19, 2022 study session on the Proposal [the “Staff Report”] did not fully, accurately, or adequately respond to those concerns. As such, we are writing to reiterate and expand on those topics. We respectfully ask the City Council to critically examine the Proposal and consider the policy issues outlined below, which transcend the narrow topics outlined by Staff for your consideration.
1. Background
The Marketplace PDP was approved by the City Council in 2008. The PDP forms the zoning regulations for the Marketplace site and allows construction of numerous residential and commercial structures. This includes over 200 housing units on Parcel A, a 120,000 square foot office structure (5 floors over 5 floors of parking) on Parcel B, and 3,500 square feet of retail space on Parcel F. The Marketplace was to be developed through Final Development Plans (“FDP”) that substantially conformed with the PDP and associated plans prepared by Heller Manus Architects.
Those governing plans show the residential, office, and retail components described above. The plans also show a pedestrian bridge landing between residential and mixed-use buildings on Parcel A, spilling down into a plaza area on Shellmound Street.
Late Correspondence - April 19, 2022 Special Study Session Honorable John Bauters, Mayor
and Members of the City Council
April 19, 2022
2696/028208-0002
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On July 23, 2015, the Planning Commission unanimously approved a FDP for Parcel A.
That FDP contained 167 residential units and 14,000 square feet of ground floor retail space. The centerpiece of the plan was a Bridge Walk, a public way connecting the existing pedestrian bridge to the heart of the Public Market retail district via a pedestrian way and grand staircase. The approved plans show landscaping and pedestrian amenities that are reminiscent of Salesforce Park in San Francisco or the Highline in New York. In addition to the key Bridge Walk feature, the residential buildings were broken down into smaller pieces so as to be consistent with the existing Marketplace scale and to promote a traditional, urban “main street” development.
In 2018, Oxford’s predecessor, City Center Realty Partners (“CCRP”), submitted an application for a 150,000 square foot, 470 foot long, 120 foot tall office building on Parcel B.
Because the proposal conflicted with the PDP, including highly relevant conditions related to aesthetics, Wareham appealed the Planning Commission’s approval of the FDP to the City Council. The City Council itself also called the FDP up for review. After several public hearings, CCRP finally submitted plans that broke up the massing and wall-like nature of the development.1 In January 2020, the City Council approved that plan for Parcel B.
One year later, CCRP sold Parcels A, B, and F to Oxford. Oxford then submitted an application for the Proposal. Claiming that residential was not feasible on Parcel A, Oxford proposed to replace the approved housing development with a 7-story, 883-space parking garage. 2 On Parcel B, Oxford proposes to replace the 120,000 square feet of office space and associated parking with 406,000 square feet of office/lab space. The resulting commercial development would represent a more than three-fold increase in square footage from what was approved as part of the PDP.
2. The Proposal does not substantially conform to the approved PDP.
Any FDP must substantially comply with the PDP. (PDP Condition I.B; Planning Regulations §§ 9-7.1003, 9-7.1004, 9-7.1009, 9-7.1010, 9-7.1011.) The Proposal does not substantially comply with the PDP. The Proposal requires such major revisions to the PDP that it is essentially a proposal for an entirely new PDP for Parcels A, B, and F. In any case, the changes required to the PDP are far greater and more extensive than simply the movement of 10 townhomes from Parcel A to Parcel F as stated in the Staff Report. 1 Contrary to Staff’s characterization, CCRP’s revised plans for Parcel B were not a “slightly different proposal.” (Staff Report, p. 1.) This is evident by comparing CCRP’s original FDP proposal to the final FDP approved plans.
2 We have not seen any documents, studies, or reports that substantiate Oxford’s claim in this regard. Indeed, other sites in the Marketplace are developed with residential uses. Moreover, articles appear almost daily about the red-hot housing market in the Bay Area. (See, e.g., Bay Area Council, April 14, 2022, “Bay Area Council Poll: Voters Say It’s Getting Much Harder to Find Housing” and April 15, 2022, San Francisco Business Times, “Will the new South City plan find a balance between housing and biotech space.”)
Honorable John Bauters, Mayor
and Members of the City Council
April 19, 2022
2696/028208-0002
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First, the Proposal does not comport with key mitigation measures imposed on future development. Mitigation Measure AES-1 (PDP Condition II.E) requires that new buildings avoid the appearance of blank walls or box-like forms; include variations in building planes, colors, and materials; and contain facades that include sufficient articulation and detail. These elements are to be incorporated to “ensure that no visual wall is created along the railroad right-of-way.” (PDP Condition II.E.2.) Contrary to these requirements, the Proposal includes a continuous, massive wall totaling 830 feet in length along the railroad edge of the site, with little break up or articulation. While there are two small “gun slits” for mandatory fire access, the length and volume of the buildings remain massive. Staff dismisses these concerns as “similar to the arguments” raised by Wareham in its prior appeal of the Parcel B FDP. (Staff Report, p. 3.) If anything, Wareham’s legitimate concerns have only been amplified given that the Proposal is nearly twice as long and contains nearly three times more floor area than that previously proposed.
Second, the Proposal does not substantially comply with conditions requiring pedestrian amenities to link east and west Emeryville. PDP Condition III.A.3.a calls for a “usable and attractive walkway” connecting the pedestrian bridge from the Amtrak station “that ends in an enhanced plaza that has a significant presence on Shellmound Street.” Under the Proposal, the pedestrian bridge would instead land in the middle of a 7-story parking garage. Unlike the Bridge Walk feature approved as part of the current Parcel A FDP, the Proposal completely deemphasizes and marginalizes this crucial connection between east and west Emeryville. The PDP calls for a much stronger and more well-defined link between the key activity centers of the Marketplace and the Amtrak Station/EmeryStation campus.
Third, the uses proposed are different than the uses approved as part of the PDP. Multifamily residential was supposed to be the primary use on Parcel A. Specifically, the PDP envisioned 196 units and 10 townhouses on Parcel A. The Proposal contains no multi-family residential units on Parcel A. Instead of housing, the Proposal would place a 7-story, 883-space parking garage on Parking A. A stand-alone parking garage does not appear to be a permitted use for any parcel covered by the PDP. (PDP Condition III.A.1 [only listing “Public Parking Services” as a permitted use and stating “Any uses not explicitly listed are not permitted.”].) Fourth, the densities proposed conflict with those approved by the PDP. Parcel B was approved for 120,000 square feet of office development. The Proposal is for 406,000 square feet of office/lab development. This amounts to a more than a three-fold increase in the commercial square footage allowed by the PDP. And it would come at a significant opportunity cost: 200 fewer residential units would be constructed in the Marketplace than envisioned by the PDP.
Finally, the Proposal appears to be significantly over parked, contrary to PDP conditions and General Plan policies. Parcels A and B are located in a Major Transit Hub where parking requirements are to be reduced. (General Plan, Figure 3-1 and Policy T-P-36.) Notwithstanding this designation and associated requirement, the Proposal includes 883 parking spaces for the 406,000 square foot office/lab building. This amounts to approximately one parking space per 450 square feet of development. Oxford must prepare a parking demand survey and propose a robust Honorable John Bauters, Mayor
and Members of the City Council
April 19, 2022
2696/028208-0002
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TDM plan to reduce parking demand as much as feasible, as required by PDP Conditions II.E.6 and II.K.1. While the sites are not currently contained in the Transit Hub overlay zone, the City Council can and should demand that they be included in such a zone in conjunction with its consideration of amendments to the Development Agreement for the Proposal. As a result, the size of the garage could be reduced significantly.
In short, the policy issues for consideration and discussion transcend the narrow issues presented by Staff as to whether the 10 townhomes should be moved from Parcel A to Parcel F and whether the City should accept a fee in lieu of constructing 18 affordable housing units.
3. The Proposal is inconsistent with the General Plan, especially the Housing Element.
All local land use decisions, including consideration of FDPs, must be shown to be “consistent with” the City’s General Plan. (Citizens for Parks & Recreation v. Superior Court (2016) 2 Cal.5th 141, 152 [invalidating project approval where not shown to be consistent with general plan]; Families Unafraid to Uphold Rural Etc. of Placer County v. Board of Supervisors of Placer County (1998) 62 Cal.App.4th 1332, 1336 [county abused its discretion by approving a development project inconsistent with general plan policies].) The City’s General Plan is effectively the “constitution for all future development” in the community, and any subordinate land use action that is not shown to be consistent with the general plan is “void ab initio.” (Lesher Communications, Inc. v City of Walnut Creek (1990) 52 Cal.3d 531, 540, 544.) In order to be deemed “consistent,” a proposed project must actually be “compatible with the objectives, policies, general land uses, and programs specified in the General Plan.” (Napa Citizens for Honest Government v. Napa County Board of Supervisors (2001) 91 Cal.App.4th 342, 378-79 [county abused its discretion in adopting a specific plan that permitted development without “definite affirmative commitments to mitigate” impacts to traffic and housing contrary to policies and objectives set forth in its general plan].) “Consistency requires more than incantation, and [an agency] cannot articulate a policy in its general plan and then approve a conflicting project.” (Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 789.)
Eliminating all housing on Parcel A conflicts with the City’s Housing Element, designating the site as a housing opportunity site for more than 200 housing units. In the Housing Element’s housing sites inventory, Marketplace is designated for 674 units overall, with Parcel A designated for 225 units. (Housing Element, p. 4-3 [listing Marketplace in its housing sites inventory and noting Marketplace “will . . . includ[e] 674 residential units, retail space, office space, and an enlarged city park.”] and Housing Element, p. 4-4 [“the Shellmound project, will include 225 residences in townhomes and a tower.”].) Figure 4-2 of the Housing Element plainly and unmistakably identifies Parcel A as a “Housing Site.”
Honorable John Bauters, Mayor
and Members of the City Council
April 19, 2022
2696/028208-0002
17735274 2 a04/19/22
Government Code Section 65863 prohibits the City from reducing or permitting the reduction of the residential density for any parcel or “allow[ing] development of any parcel at, a lower residential density” unless the City makes written findings, supported by substantial evidence, that: (1) “[t]he reduction is consistent with the adopted general plan, including the housing element” and (2) “[t]he remaining sites identified in the housing element are adequate to meet the requirements of Section 65583.2 and to accommodate the jurisdiction’s share of the regional housing need pursuant to Section 65584.”
3 The City clearly could not make Finding 1,
and Staff has not supplied any analysis as to whether Finding 2 could be made.
The City’s housing sites inventory designates Site A for 225 units. These units comprise part of the 484 units designated as Site No. 2: Marketplace Redevelopment—Phases II and III. (Housing Element, pp. 4-3, 4-4, 4-5.) If the City were to approve the Proposal, the City would be allowing development of Parcel A with zero units, i.e., a lower residential density than specified in its housing sites inventory. Such an action is inconsistent with the site’s General Plan designation of Mixed Use with Residential and its designation in the Housing Element as a housing opportunity site. Nowhere does the Staff Report respond to this key issue. 4 Further, according to its 2021 General Plan Annual Progress Report, the City has not met its need to provide 522 affordable housing units during the current housing cycle. With the exception of one 17-unit housing project, Parcel A appears to be the only site on the housing sites inventory that is not under construction or completed. (March 15, 2022 Staff Report Regarding 2021 General Plan Annual Progress Report, Attachment 1.) Thus, with approval of the Proposal, it appears that the remaining sites would not be adequate to meet the requirements of Government Code Section 65583.2 and to accommodate the jurisdiction’s share of the regional housing need pursuant to Government Code Section 65584.
In addition to its inconsistency with the Housing Element, the Proposal is inconsistent with the Land Use Element. The General Plan designates Parcels A, B, and F as Mixed Use with Residential. On larger sites, such as Parcels A and B, a mix of residential and non-residential uses is required. (General Plan, p. 2-12.) The only exception is if the applicant “convincingly demonstrate[s] that it is infeasible to develop a project with a mix of use groups on the site.” (Planning Regulations § 9-3.303.) Oxford has not made any such showing here. 3 “Lower residential density” means “fewer units on the site than were projected by the jurisdiction to be accommodated on the site pursuant to subdivision (c) of Section 65583.2.” Government Code Section 65583.2(c) refers to a city’s housing sites inventory. 4 The Staff Report states that there are no concerns with respect to the Proposal’s conformance with the Housing Crisis Act (“HCA”). While we focus herein on the Proposal’s relation to the Housing Element and associated statutes, we still maintain that the Proposal does not meet the intent of the HCA to “maximize the development of housing within the state.” (Gov. Code § 66300(f)(2).)
Honorable John Bauters, Mayor
and Members of the City Council
April 19, 2022
2696/028208-0002
17735274 2 a04/19/22
4. The Proposal was not studied by the EIR and requires further detailed CEQA analysis.
It is well settled that if a later-approved project will generate new or substantially more severe significant environmental impacts than were accounted for in a previous environmental impact report (“EIR”), a supplemental or subsequent EIR must be prepared before the lead agency may act on the later approval. (Public Resources Code section 21166; CEQA Guidelines section 15162.) This requirement is indeed reflected in PDP Condition III.A.1.d: “if any allowed use other than the allowed use designated on the [PDP is proposed] . . . the Applicant shall submit a traffic study and the City shall require appropriate compliance with the California Environmental Quality Act prior to approval.”
The significant increase in office/lab space and the associated impacts to, among others, transportation, greenhouse gas emissions, air quality, wind, and shadow, were not studied in the 15-year old EIR. At minimum, a supplemental or subsequent EIR would be needed to fully examine the impacts of the Proposal as well as a reasonable range of alternatives. The City would likely need to make findings that there are no feasible mitigation measures or alternatives for significant environmental impacts and adopt a statement of overriding considerations detailing the project benefits that outweigh such impacts.
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Thank you for your consideration of Wareham’s views on these important matters.
Wareham looks forward to working with the City and Oxford to achieve the City’s long-term vision and legacy for these last three remaining Marketplace parcels. Representatives of Wareham will be in attendance at tonight’s study session on this matter. In the meantime, please do not hesitate to contact me, Rich Robbins, or Geoff Sears with any questions regarding this correspondence.
Very truly yours,
RUTAN & TUCKER, LLP
Matthew D. Francois
cc: Rich Robbins, via email
Geoff Sears, via email
John Gooding, via email
John Kennedy, via email
Christine Daniel, via email
Charles Bryant, via email
Sheri Hartz, via email