Title
Public Hearing to Consider: 1) Adoption of Resolution Denying Application to Extend Boatworks Tentative Map #8060 (Originally Approved in 2011) for an Additional Two Years, and 2) Adoption of Resolution Upholding Approval of Development Plan and Density Bonus Application PLN12-0582 and Open Space Design Review Application for 2229, 2235 and 2241 Clement Street (APN 071 029000100 AND 071 028900500), Known As the “Boatworks” Property, to Construct 182 Residential Units, Internal Roadways and Alleys and a Waterfront Park on a 9.48-Acre Property. An Environmental Impact Report (EIR) has been completed for the project in compliance with the California Environmental Quality Act (CEQA). (Community Development 481005)
Body
To: Honorable Mayor and Members of the City Council
From: Jill Keimach, City Manager
Re: Public Hearing to: 1) Consider a Planning Board Recommendation to Deny an Application for a 2-year Extension for Tentative Map #8060, and 2) Consider Upholding Planning Board Approval of a Development Plan, Density Bonus, and Open Space Design Review Application to construct 182 residential units, internal roadways and alleys and a waterfront park on a 9.48-acre property located at 2229 through 2241 Clement Street at the corner of Clement Street and Oak Street commonly referred to as the “Boatworks Project”
BACKGROUND
The subject property is a vacant 9.48-acre site located on the northern waterfront at 2229 Clement Avenue, at the intersection of Clement Avenue and Oak Street, one block from the Park Street Bridge.
In August 2010, the City Council certified a Final Environmental Impact Report (EIR) for the redevelopment of the property, approved a General Plan amendment, and approved a residential and open space rezoning for the property. Approximately 7.5 acres of the property was zoned R-2/PD for residential use, and approximately two acres along the water was zoned for open space.
At the same meeting in 2010, the City Council approved a Settlement Agreement to resolve a lawsuit brought by the applicant over the denial of a project with 242 housing units on the site. The Settlement Agreement included a number of terms related to the City’s then-existing redevelopment agency (Community Improvement Commission), the redevelopment of the site, a number of subsequent actions and agreements that would need to be implemented, and a conceptual site plan with 182 units including 21 affordable housing units.
In July 2011, the City Council approved a Tentative Map for a 182-unit residential project with 21 affordable housing units and a 1.8-acre waterfront open space. As is typical for a subdivision map for a project with 182 proposed units, the 2011 Tentative Map included approximately 32 conditions of approval that must be satisfied before a Final Map can be approved for the site. Since the applicant’s proposed map included filling of submerged lands for the development, one of the 32 conditions required approval of the Bay fill by Bay Conservation and Development Commission (BCDC) before approval of a Final Map for the project. Soon after the 2011 approval, staff was notified that BCDC would not support the proposed Bay fill.
In late 2014, the applicant submitted applications for a Tentative Map Amendment, a Development Plan, and Design Review approvals for the property. The proposed Development Plan and Design Review applications reduced the size of the open space and moved around proposed lots to avoid the required Bay fill, moved all the property lines for the other lots, moved the affordable housing to the portion of the site that was not yet remediated for residential purposes, and changed the street and building designs. The Tentative Map amendment was required due to differences between the 2011 Tentative Map and the revised plans for the property, which eliminated the need for bay fill.
On June 22, 2015, the Planning Board held a public hearing to review the applications described above and found that the revised plans did not meet the open space zoning requirements, nor did they meet the City’s affordable housing requirements. Therefore, the Planning Board recommended denial of the applications. Shortly thereafter, the applicant withdrew its applications.
Soon after the June 2015 Planning Board hearing, the applicant submitted an application for a two-year extension for Tentative Map #8060. The Planning Board recommended a one-year extension based upon the applicant’s statement that he intended to proceed with the original plan as reflected in Tentative Map #8060. In September 2015, the City Council approved the one-year extension.
On December 3, 2015, instead of submitting Improvement Plans or a Final Map for Tentative Map #8060, the applicant submitted a second new Development Plan application for the property. (Exhibit 1) As shown on page 8.1 of the applicant’s Development Plan, the new Development Plan differs significantly from Tentative Map #8060 in at least 12 major ways listed by the applicant, including moving the open space and homes further back from the waterfront; moving almost every property line on the map; and changing the width of every internal lane and street on Tentative Map #8060.
On December 14, 2015, the City notified the applicant that the new project plans were not in conformance with Tentative Map #8060 and that certain items were missing from the application to enable staff to complete its evaluation for Planning Board consideration. On January 27, 2016, the applicant submitted the additional items. On February 22, 2016, staff identified a single remaining item that was missing from the application. On February 29, 2016, the applicant submitted the remaining item.
On March 7, 2016, staff informed the applicant that the Development Plan application was complete for Planning Board review, but that the application was not in conformance with Tentative Map #8060, and that the Tentative Map would still need to be amended or replaced to implement the proposed Development Plan.
On May 9, 2016, the Planning Board held a study session to review and comment on the proposed Development Plan application. The staff report discussed the inconsistencies between the Development Plan and the Tentative Map. The Board made a number of suggestions to improve the Plan, including requests to: increase the diversity of housing types on the site, increase the diversity of housing sizes, ensure adequate setbacks between buildings and public open spaces and paseos to preserve views through the site, distribute the affordable housing throughout the development, and provide access to the water for kayak launching and water shuttle landings. Two days later, the applicant informed staff that he would not be making any of the Planning Board’s recommended changes to the plan.
On May 10, 2016, the applicant submitted an application requesting another two-year extension for the 2011 Tentative Map.
On May 20, 2016, the applicant submitted a Design Review application for the new waterfront open space design that further details the open space plan that is in the new Development Plan and deviates from the 2011 map.
In late May, the applicant submitted two agreements for City signature: an Owner Participation Agreement (OPA) requiring the City of Alameda Successor Agency to obligate Redevelopment funds to the project to the applicant and an Affordable Housing Agreement that commits the project to 21 affordable housing units. The City of Alameda was unable to execute the two agreements for the following reasons: 1) with State’s 2011 decision to eliminate Redevelopment in California, the City of Alameda Successor Agency is not able to enter into new OPAs for redevelopment funds, 2) Alameda’s Inclusionary Housing Ordinance requires 29 affordable units, not 21 units for a project of this size, and 3) the City of Alameda has concluded that neither party has any further obligations pursuant to the 2010 Settlement Agreement.
On July 14, 2016, the applicant filed a lawsuit against the City, the City Council (as Successor Agency to the (CIC), and Andrew Thomas (the City’s Assistant Community Development Director), alleging, among other things, that the City had violated the terms of the 2010 Settlement Agreement.
On July 21, 2016, the applicant submitted a letter to the City Attorney requesting that the City Council extend the 2011 Tentative Map for the duration of the litigation. (Exhibit 2) On August 16, 2016, the City Attorney’s office informed the applicant that the request did not comply with the provisions of the Subdivision Map Act.
On July 7, 2016, the applicant submitted a preliminary final map to the City Engineer. On July 25, 2016, the City Engineer sent a preliminary response indicating that he could not find substantial conformance between the proposed final map and the approved Tentative Map because of the significant differences between the two maps and because numerous Tentative Map conditions had not yet been satisfied.
On July 25, 2016, the Planning Board held a noticed public hearing and approved two resolutions: a resolution recommending that the City Council deny the request for a two-year extension of the Map, and a resolution conditionally approving the applicant’s new development plan, density bonus, and waterfront open space design review application for the site.
On August 1, 2016, the applicant submitted a series of letters to the City stating a desire to appeal the Planning Board’s actions (1) recommending denial of the Tentative Map Extension and (2) approving the Development Plan and Open Space Plan. The Applicant also submitted a letter to the City stating a desire to appeal the City Engineer’s preliminary finding of non-conformance. On August 2, 2016, outside counsel for the City informed the applicant that: (1) the Planning Board’s recommendation regarding the Tentative Map extension was not appealable, but would be on the agenda for this City Council meeting; (2) the City Engineer’s preliminary findings were not appealable, but the City Engineer was preparing a response to questions raised by the applicant following the Engineer’s review of the preliminary final map; and (3) the Development Plan approval was appealable, but the applicant had not paid the required appeal fee. On August 3, 2016, the applicant filed the proper paperwork and paid the applicable fees to appeal of the Development Plan approval. (Exhibit 3)
DISCUSSION
2011 Tentative Map #8060 Extension Request
On May 10, 2016, the applicant requested a new two-year extension for Tentative Map #8060. On July 25, 2016, the Planning Board recommended that the City Council deny this request for the reasons stated below. Staff is recommending that the City Council deny the extension consistent with the Planning Board recommendation.
Tentative Map #8060 does not reflect nor support development of the site consistent with the applicant’s current plans for the site. As noted above, the applicant’s Development Plan differs from Tentative Map #8060 in at least 12 major ways. To make the Map consistent with the Development Plan requires moving the open space and homes further back from the waterfront; moving almost every property line on the map; and changing the width of every internal lane and street on Tentative Map #8060.
Over the last five years, the applicant has submitted a Tentative Map Amendment and two different Development Plans for the property, all three of which propose changing all of the lot lines on Tentative Map #8060. The applicant’s actions demonstrate that the applicant does not wish to construct the project as shown on the 2011 Map, but instead wishes to construct the project with a different arrangement of lots. Lot design and arrangement is critical to the overall design of the project. The primary purpose of a Tentative Map is to establish the arrangement and size of the lots.
The applicant has asked the City Engineer to determine that a preliminary final map, which reflects the new Development Plan, is in substantial conformance with Tentative Map #8060. Although the submission from the applicant was only a “preliminary” final map, the City Engineer has reviewed it and concluded that it is not in substantial conformance, due to the significant and material differences between the two plans. Furthermore, staff does not believe that a two-year time extension will enable the applicant to final the Tentative Map, due to the inherent conflicts between Tentative Map #8060 and BCDC Bay Plan policies.
The applicant has not satisfied the conditions of approval on Tentative Map #8060. Of the approximately 32 conditions that must be fulfilled prior to approval of a Final Map, the applicant has partially completed three conditions, and those three submittals were for a project that is not in conformance with Tentative Map #8060. In five years (July 2011 to June 2016), the applicant has failed to:
§ Prepare and submit a complete Final Map in substantial conformance with Tentative Map #8060 for City Council consideration. (Condition #3)
§ Prepare and submit Improvement Plans in substantial conformance with Tentative Map 8060 for City consideration. (Condition #30)
§ Execute a subdivision improvement agreement. (Condition #35)
§ Acquire BCDC approval of the open space plan proposed in Tentative Map 8060. (Condition #8)
§ Acquire Army Corps of Engineers approval for the improvements along the waterfront proposed on Tentative Map 8060. (Condition #8)
§ Acquire East Bay Municipal Utility District approval of the yet-to-be designed storm water and waste water systems to support the subdivision (Condition #36)
§ Create the necessary easements for the park and infrastructure. (Condition #37)
§ Prepare and submitted a Storm Water Treatment Operations and Maintenance Plan. (#66)
§ Execute a Storm Water Maintenance Agreement. (#67)
§ Establish a maintenance finance mechanism for the park. (Condition #9)
§ Establish a maintenance finance mechanism for the streets and public areas. (#60)
§ Execute an Affordable Housing Agreement. (Condition #10) Within the last month, the applicant has submitted a request for an agreement, but the request includes the incorrect number of affordable housing units in violation of the City’s inclusionary housing requirements.
Some of the most significant conditions on the 2011 Tentative Map require preparation of the infrastructure improvement plans and an associated subdivision improvement agreement and securing adequate surety necessary to support the proposed development. A property owner/applicant typically prepares the infrastructure improvement plans within six months of the approval of the Tentative Map. Once the improvement plans are completed and the necessary improvement agreements secured (i.e. proper bonds are in place), the property owner/applicant typically prepares the Final Map for City Council approval. This entire process is typically completed in less than one year.
In sum, the applicant has not prepared detailed infrastructure improvement plans for the site, posted the necessary bonds, nor signed the necessary agreements to final Tentative Map #8060, apparently in recognition that he cannot build the project as shown on that map, due to the BCDC Bay fill issues. Given this history, extending Tentative Map #8060 for another two years would almost certainly not result in the applicant submitting a Final Map that is in substantial conformance with the Tentative Map.
Tentative Map #8060 is not consistent with Alameda Municipal Code (AMC) 30-16 Inclusionary Housing Requirements. As described in more detail below, a base project of 140 units and a 30% density bonus must provide 29 affordable units. Tentative Map #8060 provides only 21 units and is inconsistent with AMC 30-16. The Inclusionary Housing Ordinance requirements implement Housing Element policies and standards to provide affordable housing for each segment of the population including low-, very low-, and moderate-income households. Despite the City’s decision to extend the map for an additional year in 2015, the applicant has refused to make the changes to comply with the Code.
The requested extension is not permitted by the City of Alameda Subdivision Ordinance. AMC Section 30-81.1 states that the City may grant a one-year extension for a Tentative Map, but that “extensions shall not exceed one (1) year in aggregate.” The applicant has already been granted one one-year extension.
For the reasons stated above, the Planning Board and staff recommend denial of the requested extension.
Finally, the applicant has also requested that the City consider extending the life of the Tentative Map for the duration of the lawsuit it filed on July 14, 2016, pursuant to Government Code section 66463.5(e). However, that Government Code section only applies when a lawsuit has been filed challenging the approval (or conditional approval) of a tentative map, which the applicant’s lawsuit does not. Moreover, granting such a stay is discretionary, and staff does not believe that the applicant’s lawsuit against the City is a reasonable basis for the City to grant the applicant a further extension of the Tentative Map.
Development Plan Application
On July 25, 2016, the Planning Board approved the applicant’s new Development Plan with staff’s recommended conditions over the applicant’s objections.
On August 3, 2016, the applicant filed an appeal of the Planning Board’s approval. The applicant argued that the only conditions that should govern the project are those conditions that were applied in 2011 to Tentative Map #8060.
Staff is recommending that the City Council uphold the Planning Board’s conditional approval of the applicant’s 2016 Development Plan. The Development Plan and associated resolution and conditions of approval include development standards and requirements that reflect the Planning Board’s prior direction and ensure that the project is consistent with the City of Alameda General Plan and the AMC. The Development Plan conditions of approval establish the necessary standards and requirements for a new Tentative Map and future residential design review applications for the property that reflect the current Development Plan.
The Development Plan and recommended conditions of approval provide for:
Open Space: As shown on the applicant’s submittal on page OS-4, the Development Plan includes approximately 2.16 acres of publically accessible open space, which exceeds the 2011 proposal for 1.8 acres. Public access to the proposed park is provided by a pedestrian connection from the intersection of Oak Street and Blanding Street, across the street from the Little House Café; a pedestrian connection from Clement Avenue through the center of the project; and automobile and bicycle access from the extensions of Oak Street and Elm Street. Pursuant to the conditions of approval, the open space will include water access for kayak launching and water taxi landing. In addition, in compliance with the AMC 30-5.4.2 d.9 Usable Open Space Requirements, each single-family home and town home with direct access to the ground will include a minimum of 120 square feet of private open space. Multifamily units, apartments and condominiums on upper floors will have a minimum of 60 square feet of private open space.
Housing: The Development Plan and conditions of approval provide for 182 units, including 29 units affordable to very low-, low-, and moderate-income households, which exceeds the 2011 proposal, which had 21 affordable units. Consistent with AMC 30-17 Density Bonus Ordinance, 182 units are permitted due to a 30% density bonus of 42 units. A base project of 140 units represents the maximum number of units that is permissible on the property under the site’s R-2/PD zoning. Pursuant to State Density Bonus Law and AMC 30-17 Density Bonus Ordinance, the Development Plan qualifies for a 30% density bonus because the applicant has offered to include 13 very low-income units. The Inclusionary Housing Ordinance requires only six (6) very low-income units for a project of 140 units. Pursuant to the Inclusionary Housing Ordinance, a base project of 140 units must also provide six (6) low-income units and 10 moderate-income units. Therefore, to qualify for a 30% density bonus and meet the requirements of AMC 30-16, the project must include a total of 29 affordable units (13 very low-, six low-, and 10 moderate-income units). The conditions of approval also require that the affordable units be distributed throughout the project and that they be comparable in size, (i.e. number of bedrooms), construction quality, and exterior design to the market-rate units as required by AMC Affordable Housing Density Bonus Section 30-17.8.
The requirements described above are consistent with the Municipal Code and are consistent with every other development plan incorporating a density bonus approved by the City of Alameda, since the 2011 decision on the original Boatworks project, which was one of the City’s first experiences with a density bonus project. The Del Monte project, the project at 2100 Clement Street, the TriPointe project, and every other density bonus project approved by the City has been required to meet the Inclusionary Housing requirements in each of the three affordable housing categories. If a density bonus is requested, then the applicant must add additional affordable units above the Inclusionary Housing Ordinance requirements in one of the three income categories to qualify for a density bonus.
Diversity of Building Types and Unit Sizes: As requested by the Planning Board in May, the Development Plan and conditions of approval ensure that the project will include a variety of housing types and unit sizes to accommodate a variety of household needs, including accessibility needs, sizes, and incomes. The conditions permit a variety of building types including multifamily stacked flats (apartments and condominiums), attached single-family homes (townhomes) and detached single family homes. The conditions also permit senior assisted living and live-work units. The conditions include the following requirements:
• The applicant has requested a waiver from the multifamily prohibition to accommodate the additional 42 housing units on the site. To ensure adequate space between the buildings and the public open spaces, at least 30% of the units shall be in multifamily stacked flat buildings.
• To provide for a variety of housing needs and types and accommodate the additional bonus units on the site, at least 40% of the units shall be 1,100 square feet or less in size and at least 70% of the units shall be 2,000 square feet in size or less.
• To provide for people with disabilities and people with age-related or other impairments and mobility issues and seniors aging in place, at least 15% of the single family homes and 8% of the townhome units shall provide the kitchen, the main common area, and at least one bedroom and one full bathroom on the ground floor or the floor with the main entry to the unit. The 8% of the townhome units with ground floor living may provide a single parking space and may be one of the smaller units on the site. This will reduce the functional and mobility difficulties often faced by disabled individuals or those aging in place or those with mobility issues.
Building Height, Setback, and Architectural Design: The conditions of approval require a future Design Review application for the architectural design of the buildings for review and approval of the Planning Board. As requested by the Planning Board, the conditions of approval establish height and setback standards for the development to ensure adequate space between buildings and a visually appealing development that is compatible with adjacent properties and provides a pleasant living environment for project occupants. The conditions establish:
• Setback standards for buildings facing public streets and common open space.
• A four-story height limit for multifamily stacked flat buildings.
• A three-story height limit for townhomes and single-family homes.
• Provisions for a “penthouse” or reduced size additional floor on certain buildings provided the “penthouse” floor is setback to be hidden from public view from the adjacent right-of-way and to ensure that the additional floor does not shade adjacent homes or public paseos or open spaces.
• A two-story height limit for units facing onto public paseos of 35 feet or less. Penthouses may be added on the third floor.
• A requirement that 25% of the single family homes and townhomes be two stories or less in height.
Transportation and Parking: Consistent with the requirements of the EIR mitigation measures for the Boatworks project, the conditions of approval require that the future homeowners association join a Transportation Management Association to ensure that the project is serviced by 20-minute headway transit services. To support those services, the project residents shall be assessed an annual fee consistent with other projects in the Northern Waterfront and all project occupants shall be provided with AC Transit Easy Passes.
The conditions of approval require a minimum of 1.5 parking spaces per unit for a total of 273 parking spaces for the 182 units. Parking in the multifamily buildings is required to be leased separately from the cost of the housing unit. In addition, the conditions of approval require at least 30 guest parking spaces on the property for visitors and park users.
In summary, the Development Plan and associated resolution and conditions of approval include development standards and requirements that reflect the Planning Board’s prior direction and ensure that the project is consistent with the City of Alameda General Plan and the AMC. The Development Plan conditions of approval also establish a “roadmap” for the preparation of a new Tentative Map and future residential design review applications for the property. To further assist the applicant or future developer in the next steps in the process, the Planning Board provided an illustrative development plan for the property and an example of how the project may be designed to meet the conditions of approval included in the recommendation of approval for the Development Plan. Based upon the experience of other developers in Alameda over the last 10 years, once the Development Plan is approved, most development companies have been able to return for Tentative Map and Design Review approval within one to three months of Development Plan approval.
Response to Applicant’s Appeal
The applicant has submitted an appeal of the Planning Board’s action approving the Development Plan with conditions. The appeal makes two basic arguments for why the City Council should overturn the Planning Board’s action. Both arguments are summarized below, with a staff response as to whether the argument is a basis for overturning the Planning Board’s action.
1. It is illegal for the City to impose conditions on the Development Plan that differ from the conditions imposed on Tentative Map #8060.
This statement is incorrect. Obtaining approval of a tentative map, or even a final map, does not exempt an applicant from obtaining other necessary permits and approvals. Thus, regardless of the conditions imposed on Tentative Map #8060, the City may impose new conditions on the Development Plan.
Nor has Boatworks acquired “vested rights” to develop a project with no conditions other than those imposed on the Tentative Map. A developer only acquires a vested right if it has secured a development agreement or a vesting tentative map, or has otherwise obtained proper building permits and has commenced substantial construction pursuant to those permits. Boatworks has not acquired vested rights as it has not obtained any of these entitlements. Tentative Map #8060 is not a Vesting Tentative Map. The applicant and the City have not entered into a Development Agreement, nor have building permits been issued for the project. As mentioned previously, neither party has any remaining obligations under the 2010 Settlement Agreement, and upon expiration of Tentative Map #8060 on September 19, 2016, neither party will have any obligations pursuant to the City Council’s 2011 approval of Tentative Map #8060.
Moreover, as discussed above, the applicant’s Development Plan depicts a different project than that shown on Tentative Map #8060. The applicant has not “finaled” that tentative map, despite having five years to do so, and it appears the applicant cannot fulfill all of the conditions of the Tentative Map. As a result, if the City Council declines to extend Tentative Map #8060, it will expire on September 19, 2016.
2. The conditions approved by the Planning Board will “cost Boatworks a minimum of $45 Million in square footage and market rate housing units”.
The conditions approved by the Planning Board are typical conditions of approval designed to improve the design of the Development Plan. The conditions of approval were also carefully crafted to ensure and preserve a viable project for the property. In fact, the applicant has not submitted any information or documentation showing that the Planning Board’s approved conditions of approval would make the project infeasible. Furthermore, other projects on the Northern Waterfront of Alameda have proposed and/or been approved with similar conditions of approval.
It is well established that a city has broad authority, under its general police power, to regulate the development and use of real property within its jurisdiction to promote the public welfare. The variety and range of permissible land use regulations are extensive, including, for example, limits on the types of activities for which such property may be used, limitations on the density and size of permissible residential development (permissible lot size, number of units per lot, minimum or maximum square footage of units, number of bedrooms), required set-backs, aesthetic restrictions and requirements, and price controls. Finally, the condition requiring provision of affordable housing is required to comply with the City’s inclusionary housing ordinance pursuant to AMC 30-16.
FINANCIAL IMPACT
Denial of the proposed Tentative Map Extension, and upholding the Planning Board’s conditional approval of the 2016 Development Plan will not result in a negative financial impact on the City’s General Fund.
MUNICIPAL CODE/POLICY DOCUMENT CROSS REFERENCE
As described in this staff report, the proposed Tentative Map extension is not consistent with the Alameda Municipal Code. The Development Plan is consistent with the General Plan and Municipal Code.
ENVIRONMENTAL REVIEW
In September 2010, the City Council completed and certified an EIR evaluating the impacts of a 242-unit project on the site. The EIR also included a reduced density alternative of approximately 182 units. The Development Plan is conditioned to implement all of the mitigations required for the reduced density alternative.
Actions to deny the Tentative Map extension are not subject to CEQA review under California Public Pub. Res. Code § 21080(b)(5) and CEQA Guideline § 15270.
RECOMMENDATION
Hold a public hearing and 1) adopt the draft resolution denying extension of Tentative Map 8060 and 2) uphold Planning Board approval and conditions of approval for Development Plan and Design Review applications for the redevelopment of the property located at 2229 through 2241 Clement Street, commonly referred to as the Boatworks Project.
Respectfully submitted,
Debbie Potter, Community Development Director
By,
Andrew Thomas, Assistant Community Development Director
Financial Impact section reviewed,
Elena Adair, Finance Director
Exhibits:
1. Development Plan
2. Applicant’s Request for Litigation Stay
3. Applicant’s Appeal of Planning Board July 25, 2016 Actions