Blogging Bayport Alameda

February 6, 2019

Waterfront fight

Filed under: Alameda — Lauren Do @ 6:06 am

I’m not quite sure what the BCDC commissioners are playing at but it appears that they might be setting up the agency for a legal challenge and really for nothing.  Apparently enough angry Bay Farmers have convinced someone at BCDC to attempt to tank this project via this route.  But in case you thought that an entity that has already spent a ton of money getting the project to this state was just going to go quietly, you’d be wrong.  In the packet of public comment letters, there was this:


For a full take down from the project applicants attorneys, see this document: Letter Re 2900 Harbor Bay Parkway

But you don’t even need to review that letter to see how perilous BCDC’s position is, even their staff recommended that they allow the project to move forward and lays out the contradictions in BCDC’s previous actions to what may be attempted tomorrow night.  The most compelling part, from the BCDC staff report:

As noted above, under generally accepted principles of contract interpretation, one of the principal methods generally employed to resolve such an ambiguity or inconsistency is to examine the performance or conduct of the parties to the contract thereunder, “subsequent to its execution and before any controversy has arisen as to its effect.” Such an examination reveals a consistent and unwavering pattern of interpretation of the TSA. BCDC, in collaboration with HBIA, has applied the TSA to HBIA’s successor owners in the following instances:

a. Stacey-Witbeck Building. This structure is otherwise identified in BCDC’s records as “Building A.” In 2011, BCDC Chief of Regulatory Affairs Brad McCrea wrote to Mr. Ernst as follows: “We have finished our review of the site plans…that were submitted for Building A. After careful review, we have determined that the siting of Building A is consistent with the agreements described in the Second Amendment to the TSA for the Harbor Bay Isle Shoreline Park.” There is no suggestion in this communication that the BCDC’s permit jurisdiction does or even might apply to Building A.

b. McGuire & Hester Office Building. In a letter dated April 22, 2016, from Bay Design Analyst Ellen Miramontes to Derek Cunha, Ms. Miramontes states that “plans have been reviewed pursuant to the “Third Amendment to TSA, Harbor Bay Isle Shoreline Park…between HBIA and BCDC, and entered into on March 15, 2013.” There is no suggestion in this letter that the BCDC might have the ability to exercise its permit jurisdiction over the McGuire & Hester Office Building.

c. Westmont Living Senior Residential Facility. In a letter dated June 17, 2016, written after consultation with both Mr. Reidy as well as former BCDC Executive Director Mike Wilmar, whose term of office coincided with the initial drafting of the TSA, Principal Permit Analyst Ethan Lavine wrote that “we have determined that the plan, in concept, is generally consistent with the development standards contained in…the TSA….” However, Mr. Lavine went on to say that “it remains a matter of concern to the BCDC that Pacific Union Land Co. is not a party to the TSA. [Nevertheless,] we are allowing PU to avail itself of the benefit of the TSA (in the form of an exemption from the otherwise applicable permit requirements of the MPA)….”

d. Proposed Marriott Hotel. In a letter dated September 25, 2018, to HBH, LLC, Bay Design Analyst Andrea Gaffney essentially reiterated the points in Mr. Lavine’s letter to Pacific Union, finding the proposed hotel to be consistent with the standards of the TSA and, as a result, allowing HBH to avail itself of the exemption from the BCDC’s permit authority contained in the TSA.

On the basis of these past instances of applying the TSA to projects proposed in the area governed by the TSA, it is clear that both BCDC and HBIA have consistently interpreted the TSA as granting to property owners who derived their title directly or indirectly from HBIA the ability to avail themselves of the TSA’s permit exemption provisions provided their project is consistent with the standards of the TSA.

AND, even if the BCDC commissioners decide to go against the recommendation of their legal staff, well, they wanted to remind the commissioners that their scope for review is very limited, from the staff report:

If the Commission were to decide, contrary to staff’s determination, that HBH is required to apply for a BCDC permit, it is important to note that the sole issue before the Commission would be whether the project provides maximum feasible public access consistent with the project. See MPA § 66632.4 (the Commission may deny a permit for a proposed project in the shoreline band only on the grounds that the project fails to provide maximum feasible public access, consistent with the project). The Commission does not have the authority to determine whether or not a hotel is an appropriate land use at this location or to reject any findings by the City of Alameda as to the project’s compliance with local zoning requirements, including provisions governing the project’s height or overall size. With respect to the issues surrounding public access, based on its review of the project plans, BCDC staff believes that the project as proposed would provide considerable public access at the site and that the permitting process is unlikely to result in significantly greater public access than currently proposed. [emphasis added]

So essentially the result would be the same but with a lot more unnecessary drama.



  1. Regardless of the legalities of this project regarding BCDC jurisdiction or whether the hotel is an allowable use under a variety of Alameda ordinances and regulations, the current hotel project is qualitatively not as good as it should be. (This is not to minimize the importance or the intricacies of the multiple analyses and decisions made over many decades or their bearing on the hotel.)

    The biggest issues are that the hotel is too tall, too massive, and too close to the shoreline: the current 35-foot setback does not match other recent developments in the business park. The developer made no significant change to the 5-story mass despite bountiful feedback from the community. Why not?

    I suspect that the pre-Spencer (pre-2015) Planning Board would have insisted on a much greater setback and a lower profile for the building mass, which might have taken the edge off of the neighbors’ opposition to this out-of-scale and out-of-place building.

    The developer could have improved this project considerably long before this point but chose to not do so. Why?

    The Planning Board and the City Council, IMHO, failed to insist (formally or informally) that the developer make changes to the basic design
    to mitigate it the project’s visual and environmental impact. It is hightly distressing that they did not do their jobs.

    Even now, the developer could make this hotel far more acceptable with a voluntary redesign of the project footprint and the building: it might be a lot cheaper than the protracted litigation that is looming, regardless of BCDC’s decision on Thursday.

    Comment by Jon Spangler — February 6, 2019 @ 8:03 am

    • The legalities of the project is the crux of the issue. The hotel, by right, is not too tall. The hotel, by right, is not too close to the shoreline (the setbacks are identical to that approved for the McGuire & Hester building and the Stacy & Witbeck building). The hotel, by right, is an allowable use of the space.

      This has been a project a year in the planning process. It has already gone through iterations with the City Staff and BCDC staff.

      Remember, the neighbors had a two-story project slated for the site which they got Trish Spencer to tank for them. If the massing is what is problematic for the neighbors they should have elected to go with the bird in the hand. Now they have the one in the bush which is three stories higher, by right.

      Comment by Lauren Do — February 6, 2019 @ 8:22 am

    • The original Esplanade plan, when it was finalized over 10 years ago, called for 10 office buildings in that area. Instead, there will be only 2 office buildings and 1 hotel. So it could have been a lot worse, honestly.

      The original EIR back in 1974 envisioned a much bigger and more developed Harbor Bay Isle with more traffic, but instead we have far fewer homes and offices than originally planned. It can easily support a hotel of this size.

      Comment by Jason B — February 6, 2019 @ 8:59 am

  2. Jon, I wholeheartedly disagree with everything you mention here. It’s time we build bigger.

    Comment by Angela — February 6, 2019 @ 8:52 am

    • Jon its a business park, also it could have been a much smaller senior care facility. sorry but I think these folks just don’t want anything there.

      Comment by JohnP.TrumpisnotmyPresident. — February 6, 2019 @ 3:57 pm

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