Title
Public Hearing to Consider Entitlements and a Development Agreement for the Development of the 9.4 Acre Property Located at 2229 - 2235 Clement Avenue with 182 Residential Units and Publicly Accessible Waterfront Open Space;
Adoption of Resolution Approving Tentative Map Tract 8060 PLN 20-0118, Density Bonus Application PLN 20-0119, Development Plan PLN 20-0120 and Open Space Design Review PLN 20-0121 for Development of the 9.48 Acre Property Located at 2229 - 2235 Clement Avenue; and
Introduction of Ordinance Approving a Development Agreement By and Between the City of Alameda and Boatworks, LLC Governing the Boatworks Project for Real Property Located at 2229 - 2235 Clement Avenue. (Planning, Building and Transportation)
Body
To: Honorable Mayor and Members of the City Council
EXECUTIVE SUMMARY
The project applicant, Boatworks LLC (Boatworks), is requesting that the City of Alameda (City) approve a Tentative Map, a Density Bonus, incentive/concession and waivers, a Development Plan, a waterfront open space Design Review application and a development agreement to govern the development of 182 housing units and publicly accessible waterfront open space on the 9.4 acre vacant property located at the corner of Clement Avenue and Oak Street. The City approved a similar Tentative Map and Density Bonus application for a 182 unit project in 2011 and a similar Development Plan and Open Space design review application in 2016.
The property has been the subject of numerous litigation over the years. On March 3, 2020, the City Council approved a Settlement Agreement with Boatworks to resolve three existing lawsuits filed by Boatworks against the City and allow for consideration of future development of the site for much needed new housing and waterfront access. Consistent with applicable laws, the settlement agreement does not bind or limit the Council’s discretion to approve, deny or modify the proposed project.
The project qualifies for a density bonus, one incentive/concession, and waivers under State Density Bonus Law, Government Code section 65915, and is a residential project that is governed by the Housing Accountability Act, Government Code section 65589.5 (the “HAA”). Staff is recommending approval of the requested entitlements described in this report.
BACKGROUND
The development of the property located at the intersection of Clement Avenue and Oak Street has been the subject of eight lawsuits between the property owner and the City over the last 15 years. In 2010, the City Council approved a Settlement Agreement, General Plan amendment, zoning map amendment and certified an Environmental Impact Report (Previous EIR) for 242 residential units on the property. As a result, the majority of the property is currently zoned R-2 with a Planned Development overlay. The waterfront edge of the property is zoned Open Space. In 2011, the City Council approved a Tentative Map and Density Bonus application for a 182-unit residential project (including 21 affordable housing units) and an approximately 1.8-acre waterfront open space. In 2016, the Planning Board approved a Development Plan and Open Space Design Review application for the project.
Due to a variety of factors, the applicant chose not to initiate development of the property consistent with the 2011 and 2016 approvals.
On March 3, 2020, the City Council approved a new Settlement Agreement with Boatworks intended to resolve the three current lawsuits between the parties. The proposed settlement requires new entitlements for the development of the property.
DISCUSSION
On March 23, 2020, the Planning Board held a public hearing to consider the proposed entitlements. Pursuant to Alameda Municipal Code (AMC) requirements, the Planning Board must make a recommendation to the City Council on a Tentative Map, a Density Bonus application, and a Development Agreement. Since the Development Plan relies on the density bonus, the City Council must also make the final decision on the Development Plan, which includes the Open Space Design Review application.
Because this project proposes to develop residential housing, the HAA applies to this project. Under the HAA, the City may not deny or reduce the density of a project, such as the proposed project, that complies with objective general plan, zoning, and subdivision standards unless the project presents a “specific, adverse impact” to public health and safety that can’t be mitigated in any other way. (See Government Code § 65589.5(j); Honchariw v. County of Stanislaus (2011) 200 Cal.App.4th 1066.) While most of the entitlements requested here are governed by the HAA, notably the HAA does not affect the City’s discretion to approve, modify or deny the proposed development agreement, as the City’s decision there would not constitute denial or reduction in density.
Upon review of the documents, public testimony, and the staff recommendation, the Planning Board voted unanimously to recommend that the City Council approve the recommended entitlements. The recommendation included a number of clarifications to the conditions of approval, which have been added to the draft City Council resolution. The Planning Board also raised two major planning issues that they wished to highlight for the City Council:
1. Affordable Housing. As described in more detail below, the 21 affordable units are not distributed throughout the project site. They are all located in one 30-unit multifamily building on the site, and they are not evenly distributed within that multi-family building. The Planning Board expressed serious reservations about the segregation of the 21 affordable units from the market rate units. As discussed below, State Density Bonus law limits the City’s discretion to deny Boatworks’ requested distribution pursuant to its request for a Density Bonus concession.
2. Livability. The applicant’s decision to design a project with numerous three story structures in very close proximity to each other results in little privacy or light for many of the units within the interior of the project. The Planning Board expressed serious concerns about the quality of the residential experience for the future residents of these units. Similarly, State Density Bonus Law and the HAA limit the City’s discretion to modify the design in a way that would constitute a denial or a reduction in density.
Tentative Map. The Tentative Map (Exhibit 1) proposes to subdivide the property into 153 residential lots to allow for 182 residential units, including 21 affordable units, internal roads, and a publicly accessible 1.5 acre waterfront open space. The 2011 Tentative Map also allowed for 182 residential units, including 21 affordable units, and a publicly accessible waterfront open space. The proposed Tentative Map provides public access easements on the waterfront open space, the central paseo provided through the project from Clement Avenue to the waterfront open space, and on the internal streets.
Unlike the 2011 Tentative Map, Boatworks’ 2020 Tentative Map does not propose any construction of new decks over the Oakland Alameda Estuary to serve as additional open space. Construction of the proposed project will not require any work in or over the water or any change to the existing seawalls and rip rap which define the northern edge of the property.
Affordable Housing Density Bonus. Similar to the 2011 Tentative Map, the 2020 Tentative Map relies on a 30% Density Bonus and certain waivers and incentives/concessions permitted under State Density Bonus Law and the Alameda Municipal Code (AMC) to construct a 182-unit residential project, including a mix of single family detached homes, attached multifamily townhomes, and a 30 unit, five story apartment building at the corner of Clement Avenue and Oak Street.
It is important to note that State Density Bonus law requires the City to grant requests for lawful concessions and incentives proposed by the developer unless the City finds that the request does not result in identifiable and actual cost reductions, would cause a specific and adverse impact to public health or safety, would cause a specific and adverse impact to the environment, would harm historical property, or would be contrary to state or federal law. See Government Code section 65915(d)(1). Simiilarly, State Density Bonus law prohibits the City Council from applying any development standards that have the effect of physically precluding the development at the permitted density. See Government Code section 65915(e)(1). The developer has the right to attorney’s fees and costs if a court rejects the City’s reason for any denial. Id. In the case of concessions or incentives, the City bears the burden of proof for any denial. Id.
As described in the Density Bonus application (Exhibit 2), the applicant proposes to deed restrict 9% (13 units) of the units for very low income households and 6% (8 units) for moderate income households, which qualifies the site for a 30% density bonus for a total of 182 units. (Under the R-2 zoning regulations (AMC Section 30-4.2), the property can accommodate 140 residential units.)
Under state law, a unit restricted to very low income households is also by definition a unit that qualifies as a low income unit and/or a moderate income unit. Therefore, by providing 13 very low income units and 8 moderate income units, the applicant has met the City’s inclusionary housing requirement (AMC Section 30-16.4) for 4% very low, 4% low income, and 7% moderate income units.
Under State Density Bonus Law, the applicant qualifies for one incentive/concession (i.e., a reduction in site development standards or modifications of zoning requirements that result in identifiable and actual cost reductions to provide for affordable housing costs). See Government Code Section 65915. The applicant is requesting a concession from the City of Alameda’s requirement that affordable housing be of comparable size to the market rate units and distributed throughout the project (AMC Section 30-17.8). As shown in the Development Plan affordable housing proposal, all 21 affordable housing units are located in a single, 30 unit building at the corner of Oak and Clement. The affordable units are also not comparable in size to the market rate units. As shown on page DP-3 of the Development Plan, 150 market rate townhomes and single family homes range in size from 2,800 to about 1,672 square feet, and two of the 152 market rate townhomes are 1,098 feet in size. In contrast, only four of the 21 affordable units are over 1,000 square feet, and the other 17 affordable units are between 800 and 420 feet in size. The applicant’s density bonus application claims that the concession is necessary to provide for the cost of providing the affordable units.
State Density Bonus Law and Alameda’s density bonus ordinance (AMC Section 30-17) also provide that the City shall not apply any development standard that will have the effect of physically precluding the construction of a development at the densities or with the required concessions or incentives. See Government Code Section 65915. The applicant is requesting waivers from the AMC prohibition on multifamily housing (AMC Sections 30-50, 30-53) and the AMC prohibition on lot sizes less than 2,000 square feet in size (AMC Section 30-4.2.d). Both waivers are necessary to physically accommodate the 182 units on the property, therefore staff recommends that these development standards be waived.
The applicant has requested additional waivers from the Universal Design, Parking, Open Space, and Height and Setback requirements in the R-2 Zoning Ordinance that staff is not recommending for approval at this time, for the following reasons:
Universal Residential Design Waivers. The applicant is requesting a waiver from the Universal Design ordinance requirement for 100% visit-able units (AMC Section 30-18). Staff is not recommending the waiver at this time because the applicant has not provided evidence that demonstrates that the Universal Design requirements physically preclude construction of the project at the densities permitted. The applicant has not provided floor plans or any other evidence that enables staff to determine whether the Universal Design ordinance makes it infeasible to physically fit 182 units on the property. Because the City does not have enough information at this time to determine whether the Universal Design requirements physically preclude the development, staff’s opinion is that Boatworks’ waiver request is premature. In addition, a State Density Bonus waiver may not be needed from the Universal Design Ordinance, even if the project is unable to achieve 100% visitability. Section 30-18.5 of the Universal Design ordinance authorizes waivers or reductions of the visitability requirements by the Disability Commission and Planning Board when approving Design Review for the buildings. Staff is recommending that the applicant submit project floor plans at a later date, at which point they can request a waiver under Density Bonus law or under the City’s local ordinance for review by the Disability Commission and Planning Board. Staff notes that the neighboring Alameda Marina project followed the procedure authorized in AMC Section 30-18.5 and achieved 92% visitability.
Height, Setback, Open Space, and Parking Waivers. Staff does not recommend waivers under State Density Bonus Law for building height, setback, coverage, and parking because they are not needed what is being requested is allowed under the AMC. The Planned Development zoning allows the Planning Board and City Council to approve the applicant’s requested building heights, setbacks, and parking plans as shown in the Development Plan, without the need for State Density Bonus waivers. In addition, Staff is not recommending the requested waiver from the open space requirements because the Development Plan demonstrates that the development will meet the Zoning Requirements for 600 square feet of open space per unit. (See discussion below under Open Space.)
Development Plan. The R-2/PD site zoning requires approval of a Development Plan and Design Review. Since the applicant may sell the entitlements to a home builder, the applicant has not submitted Design Review plans for the architectural design of the buildings. Those plans will be submitted at a later date by either Boatworks, LLC or a future owner of the property.
However, to establish an agreed upon plan for the location, height, and setback of buildings on the property, Boatworks has submitted a Development Plan for the property (Exhibit 3) that is consistent with the Tentative Map. In addition, Boatworks has submitted a Design Review application for the waterfront open space (included in Exhibit 3). Pursuant to AMC Section 30-4.13.e, the Planning Board may approve a Development Plan with setbacks, building heights, and parking standards that vary from the underlying R-2 zoning district.
Similar to the 2011 Tentative Map and conditions of approval, the 2020 Development Plan ensures that:
• All new homes and buildings adjacent to Oak Street and Clement Avenue will face Oak Street and Clement Avenue and be set back 10 feet from the back of the public sidewalk.
• Automobile driveways and curb cuts on Oak and Clement will be limited to two locations: an extension of Elm Street off Clement and an extension of Blanding Avenue at Oak Street into the project.
• New sidewalks will be constructed on the west side of Oak Street (currently no sidewalk exists) and on the north side of Clement, which will support the plan for the Cross Alameda Trail and protected 2-way bicycle facility, which will pass in front of the project on Clement.
• The single family homes and townhomes will be three to four stories with a maximum height of 45 feet, and the multifamily building at the corner of Oak and Clement will be four stories over a ground floor garage for a total height of 65 feet.
• Internal setbacks from the face of buildings to the internal sidewalks will vary from four feet to 10 feet.
• Two car garages will be provided for 104 of the single family units and townhomes. One car garages will be provided for 48 of the townhomes and the 30 units in the multifamily building.
The 2020 Development Plan differs from the 2011 Tentative Map in that:
• The number of single family homes decreased from 46 to 30.
• The number of homes fronting onto the waterfront open space decreased from 18 to 14.
• The number of duplex units increased from 40 to 68.
• The number of attached townhomes in groups of three to eight decreased from 67 to 54.
• The multifamily building located at the corner of Oak Street and Clement Avenue increased in size from 29 units to 30 units.
Open Space Design Review. The publicly accessible waterfront open space will be approximately 1.5 acres in size and will be accessed from a central public paseo running up through the project from Clement Avenue to the waterfront. The waterfront open space will also be accessible from the intersection of Oak and Blanding (by the Little House Café) via a new public path along the eastern edge of the project to the waterfront, from a Blanding Avenue extension into the project where Blanding intersects with the public open space, and from the Elm Street extension into the project.
Similar to the 2016 Design Review approval, the central “Boatworks Green” will be designed as a bio retention lawn that will serve as useable open space during dry seasons and as a storm water retention area during wet weather. A similar design was constructed at open space in the Alameda Landing residential development between 5th Street and Bette Street.
Despite the reduction in the size of the open space, the project is designed to meet the AMC requirement for 600 square feet of open space per unit in the R-2 zoning district or a total of approximately 2.5 acres of common and/or private open space. The project will meet this requirement with approximately 1.5 acres of useable “common” open space and small private front yards and private roof top decks for each of the 152 townhome and single family units. As shown on Development Plan page DP-08 most of roof top decks will range in size from 155 square feet to 514 square feet in size.
Development Agreement. To establish certainty for both parties, the 2020 Settlement Agreement proposes a 15 year Development Agreement, as authorized by and in compliance with the requirements in state law (Gov. Code § 65864 et seq.) and the City’s development agreement regulations (AMC §§ 30-91 - 30-95). The Development Agreement, which is consistent with the General Plan, establishes the following commitments:
• Boatworks, or a future buyer of the property, will develop the property consistent with the approved plans, including 182 residential units, 21 of which will be deed-restricted affordable units, and a publicly accessible waterfront open space.
• The project will not be subject to any new land use laws or fees adopted after execution of the Development Agreement.
ALTERNATIVES
Alternatives available to the City Council include:
• Approve the entitlements as recommended by the Planning Board and staff,
• Modify and approve the entitlements as recommended by the Planning Board and staff,
• Continue the deliberations until a future date and request additional information necessary for those future deliberations, or
• Deny the requested entitlements.
FINANCIAL IMPACT
Approving the requested land use entitlements will not have a negative financial impact on the General Fund. Redevelopment of the property will increase the property taxes received by the City. The housing and waterfront open space public benefits associated with the project will be constructed, operated, and maintained by the property owners without any financial subsidies from the General Fund.
MUNICIPAL CODE/POLICY DOCUMENT CROSS REFERENCE
The recommended entitlements, including the Tentative Map and Development Agreement, are consistent with state law, the General Plan, Housing Element, Open Space Element, and Alameda Municipal Code policies and requirements for the property. The density bonus application, including the requested waivers and concessions (as discussed in more detail above) is consistent with the requirements of state law and the City’s Density Bonus ordinance.
ENVIRONMENTAL REVIEW
In September 2010, the City Council certified an Environmental Impact Report (Previous EIR) evaluating the impacts of a 242-unit project on the site. The Previous EIR also included a reduced density alternative of approximately 182 units. None of the circumstances necessitating further environmental review are present. The Tentative Map and Development Plan are conditioned to implement all of the mitigation measures required for the reduced density alternative.
CLIMATE IMPACTS
Development of the site for residential purposes is consistent with Plan Bay Area priority development area policies to reduce regional greenhouse gas emissions.
RECOMMENDATION
Hold a Public Hearing and approve the following:
• Resolution approving Density Bonus, Tentative Map, Development Plan and Open Space Design Review, and
• First Reading of Ordinance approving the Development Agreement.
CITY MANAGER RECOMMENDATION
The City Manager concurs with the Planning, Building and Transportation Director recommendation.
Respectfully Submitted By:
Andrew Thomas, Planning, Building, and Transportation Director
Exhibits:
1. Tentative Map
2. Density Bonus Application
3. Development Plan and Open Space Design Review
4. Development Agreement