THIS SECTION TO BE SAMP OF RECEIPT CITY CLERK'S OFFICE
RECEIVED
CITY CLERKS OFFICE
CITY C RICHMOND
Richmo
2026 MAR 12 AMII: 37
FEE PAID: $50000 SL (CASH)
DATE: 3/12/2024
TO THE RICHMOND CITY COUNCIL:
The undersigned hereby appeals decision: By the Historic Preservation Commission _ By the Planning Commission
Denial of: Approval of:
Variance (V) _Tent Subd. Or Parcel Map (TM)
• Conditional Use Permit (CUP) Rezoning (RZ)
Design Review Permit (DRP) EIR Decision (EIR)
Other
DESCRIBE ITEM AS PRINTED ON THE PLANNING COMMISSION or
HISTORIC PRESERVATION AGENDA:
A resolution of the Planning Commission of the City of Richmond considering the Design Review, Vesting Tentative Map, and Shoreline Overlay Conditional Use Permit (PLN23-117) for the Marina Point Residential Project,an approved development of 70 three-story single-family homes and 30 market rate junior accessory dwelling units (JADUs) located at the terminus of Marina Way South (APN 560-181-121)
STATE REASONS FOR APPEAL:
Please see attached letter explaining the basis for the appeal.
T
DELIVER OR MAIL TO: NAME Glen L. Powles
City Clerk ADDRESS 5780 Fleet Street Suite 225 Carlsbad, CA 92008 450 Civic Center Plaza, 3'd Floor 5780 Fleet Street Suite 225 Carlsbad, CA 92008 Richmond, CA 94804 TELEPHONE (HOME) (760) 929-1200
(WORK) (760) 780-7167
HSW
Bryan Wenter
925.708.9055
[email protected]
March 13, 2026
VIA EMAIL
Pamela Christian, City Clerk
City of Richmond
450 Civic Center Plaza
Richmond, CA 94804
Email: [email protected]
Re: Appeal to City Council
Marina Point Housing Development Project
APN 560-181-121 (PLN 23-117)
Dear Ms. Christian:
On behalf of my client, Guardian Capital, we write to appeal certain Conditions of Approval of the Planning Commission's March 5, 2026, approval of the Marina Point Residential Project.
This appeal includes the City's appeal form, an appeal fee in the amount of $500, and a November 26, 2025 letter and exhibit explaining and showing the location of the affordable homes.
As you may know, Guardian applied via Preliminary Application filed on February 14, 2023 and Formal Application filed on April 27, 2023, to develop 70 new single-family homes (10% of which will be affordable) and 30 Junior Accessory Dwelling units with related roadway and infrastructure improvements ("Project" or "Marina Point") on approximately 4.92 gross (4.36 net) acres (APN 560-181-121) at the terminus of Marina Way in Richmond ("Project Site"). As you also know, the Project Application was deemed complete as a matter of law under the Permit Streamlining Act on July 12, 2023 (Gov. Code § 65943(a)) and subsequently deemed consistent with the City's land use regulations as a matter of law under the Housing Accountability Act (Gov. Code § 65589.5(i)(2)) on August 11, 2023.
The Planning Commission's 3-1 approval of the Project includes several conditions of approval that amount to an abuse of discretion and/or that are not supported by substantial evidence in the record and/or that run afoul of various provisions of state and/or federal law.
Among other things, we note the following:
Assessor Parcel Numbers
Planning Commission Resolution No. 24-06 approving the Project includes two APNs: 560-181- 121 and 560-181-102. The Project has only one applicable APN—560-181-121—as APN 560- 181-102 is removed from the Preliminary Title Report and a prior Development Agreement has expired and is not relevant. All references to APN 560-181-102 should be removed.
Shoreline Overlay District
Planning Commission Resolution No. 24-06 approving the Project includes ten open-ended Conditions of Approval (Nos. 49-58) regarding shoreline issue. First, as City staff know, the Project has been removed entirely from the Bay Conservation and Development Commission's 100-foot shoreline band jurisdiction, at the direction of BCDC and its staff. It is unclear if the Project is in the City's own Shoreline Overlay District, which also includes a vague provision 3800 Mt. Diablo Boulevard, Suite 200, Lafayette, CA 94549 | Phone: 925.708.9055 |www.hsw-legal.com March 13, 2026 - Page 2
Re: Appeal to City Council
attempting to capture an area in a "public access zone" that extends from the ordinary high- water mark on the shoreline to the nearest public highway or arterial street.
With respect to these conditions, No. 49 should be removed as it requires a Shoreline Overlay use permit the Planning Commission already granted via Resolution No. 24-06. No. 50 should be removed as no part of the Project will be built in the shoreline band and the Shoreline Overlay use permit already confirms the Project meets these design and sensitive habitat provisions. No. 51 should be removed as it requires the preparation of a Shoreline Public Access Plan that is both not a requirement of the Shoreline Overlay District, the Shoreline Overlay use permit already confirms the Project meets these access and connectivity requirements, and the Project proposes no other development beyond what the Planning Commission already approved.
Please note that Guardian is willing to make commercially reasonably efforts to work with the City and BCDC to provide for reasonably landscaping and other improvements in the 100' shoreline area, subject to fee credits against the City's parks and open space impact fees.
Junior Accessory Dwelling Units
Planning Commission Resolution No. 24-06 approving the Project included the Design Review, Tentative Map, and Shoreline Overlay Conditional Use Permit for the Project. Planning Condition of Approval No. 3 includes the vague condition that 10% of the units in the Project will be sold to moderate-income households. The Project is meeting this requirement, but the condition must be clarified to reflect the reality of the fact that as the Project was originally proposed and as deemed consistent with the City's land use regulations the Project consists only of the following:
• 70 single-family homes and 30 accessory dwelling units, of which 63-single-family homes will be market-rate, 7 single family homes will be affordable, and all 30 ADU's will be market-rate.
The Project was always proposed to meet the City's inclusionary ordinance based on the foregoing and it was deemed consistent on that basis. The Project has never been designed to make any of the ADUs affordable, and therefore Planning Condition No. 3 should be modified accordingly.
Similarly, Recital No. 8 should be revised to state that the affordable units shall be limited to 7 single-family homes that are all subject to moderate-income deed restrictions as shown in the attached letter and exhibit and shall not include any of the units with ADUs.
Signalization of Hall Avenue and Marina Way South
Planning Commission Resolution No. 24-06 approving the Project includes an Engineering Condition No. 19 that Guardian must fund its "fair share" towards the signalization of Hall Avenue and Marina Way South as well as Richmond Wellness Trail Phase 2. The City has not demonstrated the need for this signal in general and given that the Project is the subject of a Class 32 infill exemption from CEQA the Project will not have any significant effects on traffic and this condition is thus plainly unwarranted and should be removed.
No Net Loss Study
Planning Commission Resolution No. 24-06 approving the Project includes a condition that Guardian "fund" a study to ensure the City complies with California's "Not Net Loss Law") (Gov.
Code § 65863)1, incorrectly assuming that the Project would "create a deficiency" under that 1 https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV§ionNum=65863. 3800 Mt. Diablo Boulevard, Suite 200, Lafayette, CA 94549 | Phone: 925.708.9055 |www.hsw-legal.com March 13, 2026 - Page 3
Re: Appeal to City Council
law. There are several independent reasons why the Project does not create a Not Net Loss Law deficiency and the City may not lawfully impose such a condition on Guardian.
1. The Not Net Loss Law does not trump other state laws such as the Housing Accountability Act (Gov. Code § 65589.5: HAA"), and the City cannot lawfully disapprove the Project on the basis that it may cause the need for the City to identify other sites to accommodate the City's remaining Regional Housing Needs Allocation ("RHNA") for moderate-income housing.
2. The Project has vested rights from the date of its Preliminary Application, which vested rights pre-date the California Department of Housing and Community Development's October 2023 certification of the City's 6t Cycle Housing Element, and the City improperly and unrealistically assumed 197 units of moderate-income housing on a site with vested rights during the entitlement process.
3. The City can easily address any shortfall in moderate-income units it improperly and unrealistically assumed for the Project Site.
The purpose of the No Net Loss law is to ensure development opportunities remain available throughout the planning period to accommodate a jurisdiction's RHNA. The No Net Loss law is focused on three main objectives, only the third of which is relevant here:
1. maintaining adequate sites;
2. jurisdiction actions to reduce a site's development capacity; and
3. approval of specific projects at a lower density than contemplated in the relevant housing element.
There is nothing in the No Net Loss Law that states or implies that it trumps other state laws such as the Housing Accountability Act or that a jurisdiction may disapprove a given housing project if that project would cause the jurisdiction to have inadequate sites for a given income category. In fact, the No Net Loss Law makes clear that it is a jurisdiction's sole burden to comply with the law (See Gov. Code § 65863(e); see also "HCD No Net Loss Law Memorandum," dated October 2, 20192). A jurisdiction may only require an applicant to comply with the No Net Loss Law if the applicant requests in its initial application a density that would result in the remaining sites in the housing element not being adequate to accommodate the jurisdiction's share of the RHNA.
Here, the Preliminary Application was submitted in February of 2023, before the California Department of Housing and Community Development ("HCD") certified the City's 6th Cycle Housing Element in October of 2023 and made the Project Site an "identified site," thus it remains the City's sole obligation to comply with the No Net Loss Law and the City could not lawfully disapprove the Project even if it does not comply with the new housing element. The Project could not have "created a deficiency" under the No Net Loss Law before the 6th Cycle Housing Element was certified, improperly assuming 197 units of moderate-income housing when the City was already in receipt of a Preliminary Application for a project with vested rights containing 70 new market-rate single-family homes and 30 market-rate accessory dwelling units. 3
2 chrome-extension://efaidnbmnnnibpcajpcg|clefindmkaj/https://www.hcd.ca.gov/community- development/housing-element/housing-element-memos/docs/SB-166-final.pdf. 3 We note that the 6th Cycle Housing Element probably should not have been certified given the status of the Project during the pendency of its consideration and eventual certification by HCD as it was neither accurate nor realistic to assume the Project Site would contain 197 units of moderate-income housing. 3800 Mt. Diablo Boulevard, Suite 200, Lafayette, CA 94549 | Phone: 925.708.9055 |www.hsw-legal.com March 13, 2026 - Page 4
Re: Appeal to City Council
Moreover, we note that the Formal Application for the Project was deemed consistent with the City's regulations as a matter of law under the Housing Accountability Act on August 11, 2023, a date that is also before HCD certified the City's 6 Cycle Housing Element. The City did not raise this issue orally until September 3, 2025, and in writing on September 7, more than two years after this critical date. Furthermore, we note that the HAA establishes the only lawful way in which a city may disapprove a housing development project—by making the rarely occurring health and safety findings in the HAA, which findings cannot be made here.
The Planning Commission's No Net Loss Law study requirement establishes an undefined and open-ended funding obligation. This obligation is an impediment to the production of new housing that runs afoul of the HAA's statewide new housing production policy (Gov. Code § 65589.5(a)(2)(L)), is a condition that works directly against the production of new housing (Gov. Code § 65589.5(f)(1)), and even if lawful would be subject to an incentive or concession under the Density Bonus Law as a condition whose avoidance would produce identifiable and actual cost reductions (Gov. Code §§ 65915(d)(1) and (k)(3)).
Finally, although it is the City's sole burden to comply with the No Net Loss Law and the Project could not be disapproved even if it creates a loss in capacity—which it does not-we already indicated our willingness to provide the City some informal assistance in productively resolving this issue. By way of example, we note that the 6 Cycle Housing Element indicates the potential for 1,892 above moderate-income units. The City could place 10% (i.e., 189) of those units in the moderate-income category, which would retain a "buffer" of 89 moderate-income units and 52-unit above moderate-income units. The City's No Net Loss Law issue is its own to solve but it is easily solvable.
The No Net Loss Law requirement that Guardian fund a study should be removed. Please note, however, that while this open-ended and undefined requirement is not lawful Guardian is willing to spend up to $10,000 on this study. Accordingly, Guardian would be willing to accept such a condition with a clear $10,000 cap.
Conclusion
We appreciate the Planning Commission's approval of this long-pending Project but we must respectfully appeal that approval to address the foregoing critical issues. Please note that we have requested a copy of the adopted Conditions of Approval but have yet to receive it duing the 10 day appeal window. Accordingly, we hereby reserve our rights to identify other issues that will be included in this appeal.
Please do not hesitate to contact any member of the Project team if you have any questions or require our assistance. We look forward to the City's anticipated cooperation in the final stages of this lengthy process.
Sincerely,
BRYAN WENTER
ENCLOSURES
CC: LINA VELASCO, CoMMuNITY DevELOPMENT DIRECTO
AVERY STARK, PLANNING MANAGER
JAMES J. ATENCIO, SENIOR ASSISTANT CITY ATTORNEY
3800 Mt. Diablo Boulevard, Suite 200, Lafayette, CA 94549 | Phone: 925.708.9055 |www.hsw-legal.com March 13, 2026 - Page 5
Re: Appeal to City Council
PAM LEE, OUTSIDE COUNSEL
GLEN L. POWLES, SENIOR VICE PRESIDENT OF PLANNING AND ACQUISITIONS 3800 Mt. Diablo Boulevard, Suite 200, Lafayette, CA 94549 | Phone: 925.708.9055 |www.hsw-legal.com
SUMMARY OF LOT COVERAGE
LANDS OF FORD POINT, LLC LOT AREA BUILDING LOT UNIT
PLAN NO. _FOOTPRINT
APN 300 180-115 (SF) COVERAGE TOTAL (SF)
(SF)
2,338
SO1 08 16V
13 17 21 29 33 36
1,851 SF .937 SF
P3X
22 30 #***.3...33
18 PARCEL B 26 34
194 5F PA - 1843 8F 1,580 SF D P4/ 1,581 SF R
(OPEN SPACE).
57.0 ALLEY D ALLEY H
15 23 27 35
ALLEY A 250155 0 1,653 SF = P4 1,419 SF
6 1,581 SF 1 R55 SF 1.661S
SAN FRANCISCO BAY 24
20 28 32 .ANS OH
1.581 SF MARINA BAY валь.
54.5 PARTNERS II, LLC.
:APN 660-180-170
PARCELA 1409€
B STREET
LANDS OF RICHMOND APN 560-181-102 57.031 Sr 1
REDEVELOPMENT AGENC) ........CC
65 52 48
60 56 45 42
C STREET 2 1.421 SF ALLEY G
105084 57.5 ALLEY E 49
166 1.653 55 0 14
61 57 A STREET 46
1.653 SF 90 ALLEY C 21.868 SF 3 PA
PARCEL C P3x 54
57.0 P4 - 1.667 SF 1.653 SF • P4 50
1,653 SF 58 47
29.0 P2-
1,668 SP 1.568 SF
• 205 55
1580 SE
168 F 1,840 SF : 1218% px
63 59
PA E 1.053 SF-
10 69 -PARCELE
64 11 PIX 1.824 SF 3 -E=)
6 1,581 SF 70
1.421 2.016
PARCEL D 1.421 ............. 2.027
2,016
1,620 2.328
1,653 2,338
1,65. 6,030
1,824 2,328
MARINA WAY SOUTH 1,632 2,328
LANDS OF AEP CHARTER
6,646
1450 AMETHOD, LLC 2,338
NO1 08 16 E 667
APN -US 2,328
SUMMARY OF REMANT COVERAGE 2,328
1,668
LO NAME PLAN AREA (SF)
N FAVOR OF LOT
ARCEL A (PRIVATE STREETS) 57.031
IN FAVOR OF LOT PARCEL B 5,989 1.653
LANDS OF RICHMOND PARCEL C (BCDC)
1,653 2,242
REDEVELOPMENT AGENCY PARCEL D 5,968 2,338
1,053
APN 300-181-1071 PARCEL E
2,328
1,724 2,328
TOTAL AREA 1,651 2,338
1,653 2,328
LEGEND: LOT COVERAGE 115,334 SF (2.65 AC)
1,653 1,023 2.328
PROJECI BOUNDARY PROPOSED PAVEMENT REMNANT COVERAGE 98,652 SF (2.26 AC) 1,653 1.023 :2% 2,242 PRIVATE STREETS DEVELOPABLE LAND P3X
190,054 Sr (4.30 AU)
ADJOINER EXISTING PAVEMENT (LEo BUbU)
PROPOSED EASEMENT TOTAL SITE 213,986 SF (4.92 AC)
Graphic Scale (in feet) EXISTING EASEMENT Affordable Units Exhibit
PROPOSED SIDEWALK
CENTERLINE
MONUMENT LINE *7 TYPICAL LOTTING
LOT LINE PROPOSED CONCRETE NOT TO SCALE
1 inch = 30 ft. Affordable units highlighted in yelllow CSW ST2 HSW VESTING TENTATIVE MAP
MARINA POINT VESTING TENTATIVE MAP G ! 15 30 %0 C3.0
GUARDIAN Kittsy RICHMOND, CA #2023-0104
AA Land Advisors