Blogging Bayport Alameda

February 7, 2019

Show your work

Filed under: Alameda — Lauren Do @ 6:07 am

I’m not sure which part of Tuesday night’s City Council meeting I should write about.  There were two major issues the first was the West Midway project and the second is the appeal of the Marriott project on Harbor Bay.

Because the Marriott project will be under review by BCDC today it makes sense to review what happened on that issue first.  Even if you knew nothing you could probably guess the vote outcome.  If you said 4 – 1, you’d be right.  Tony Daysog has apparently taken it on himself not to be concerned about exposing the City government and therefore, taxpaying citizens, your dollars to legal liability rather it appears that he has decided that he is going to do whatever he can to appeal to whoever he thinks are his supporters aka people who voted for him.  In case you missed it, Bay Farm itself was Tony Daysog territory, one of the few areas where he came out as the top vote getter whereas Vice Mayor John Knox White was the number one vote getter for the majority of the main island.   So the fact that Tony Daysog was bending over backward, to the point of setting the City up for potential legal liability, for Bay Farm was really no surprise.

So what happened last night is fairly predictable from the standpoint of some people speaking for the project and some being against the project, a few highlights from the night included:

  • the lawyer for HBIA pointing out that BCDC staff has already made a legal determination (referenced in yesterday’s post) about requiring a permit and if the commissioners do anything differently it will not be on the merits but a political determination.
  • one of the appellants alluded to the fact that the neighbor opponents may have an inside track on the political front since he indicated that he felt strongly confident about their chances at BCDC today.
  • former City Councilmember Doug deHaan attempted to circumvent the 90 second time limit but was summarily shut down by Mayor Marilyn Ezzy Ashcraft.
  • the lawyer for the neighborhood opponents, Dana Sack, attempted to malign the professionalism of City Staff and was righteously reprimanded by Vice Mayor John Knox White at the end of public comment.
  • that same lawyer thought he was allowed on the dais and was summarily shushed by the Mayor when he was talking during public comment.
  • Councilmember Jim Oddie helpfully pointed out that the property is not Walden’s Pond and was meant to be developed from the very moment dirt was dumped to create it from bay fill.
  • Councilmember Malia Vella did not have a lot of patience for the union appellant, noting that the law firm representing the union had filed a number of CEQA challenges throughout the state because they were unable to make headway at the bargaining table.
  • Councilmember Tony Daysog attempted to suggest that the City did not follow correct legal process for combining the parcels that will make up that particular site. (this is what we call attempting to “gotcha” staff, I have a feeling that Tony Daysog had tried several different methods to find a loop hole or gotcha but this was the only one that was so confusing to him that it might prove confusing to another two City Councilmembers). Both the planning and legal staff indicated that this was entirely legal, but then he still wanted to deny the applicant the ability to combine all the owned parcels into one because he determined it was “too small” for development.  Of course according to the Alameda County Assessor’s office as long as certain criteria are met there appears to be no legal reason why the owner of multiple adjacent parcels could not combine them if they wish.   It’s not apparent as to what legal standard Tony Daysog is using to deny the ability to combine the parcels.   I had to listen to this multiple times because I didn’t know if I was mishearing Tony Daysog but he seemed to suggest that he found something on the internet somewhere that said that parcels of less than 5000 sq ft could not be combined.  Which seems wrong.  I’ve done a number of Google searches and can’t seem to replicate that information.  He’ll need to show his work at this point.

So, I guess we’ll find out today if the BCDC commissioners are going to allow politics to rule or if they’re going to listen to their staff who says there’s no benefit to not allowing the permit as they have for other Harbor Bay projects.

34 Comments »

  1. I don’t especially care either way about this proposed project but the wailing/gnashing about the “natural beauty” of the site is preposterous. It’s not “natural” at all, it’s dredged up landfill, the equivalent of Mother Nature getting a boob job.

    Comment by dave — February 7, 2019 @ 6:20 am

    • it’s dredged up landfill, the equivalent of Mother Nature getting a boob job.

      This is a superior soundbyte than the Walden Pond reference.

      Comment by Lauren Do — February 7, 2019 @ 8:23 am

      • Fact Check: True

        Comment by BMac — February 7, 2019 @ 10:09 am

  2. For those of us not part of the inner circle, can you explain what BCDC is and its role is in all this.

    Comment by Allan Mann — February 7, 2019 @ 7:16 am

    • BCDC is the San Francisco Bay Conservation and Development Commission. They oversee anything that deals with the shoreline. So if there is a development going in with 100 feet of the shoreline, typically, the developer would need a permit from BCDC.

      BCDC staff has already set out a written opinion that the Marriott project did not need a permit from BCDC for the project because it fell under the settlement agreement between Harbor Bay Island Associates (HBIA) and BCDC. They also set out a written legal opinion (see yesterday’s post) essentially saying the same and that if the Commission were to decide to force a permit on the project they wouldn’t really get a whole lot more than was currently being offered.

      It sounds like, based on the comments on Tuesday night from the appellants, that the appellants have found someone or multiple someone on the commission willing to overlook the legal liability and force the permit process. So we’ll see what the majority does today.

      By the way this isn’t inner circle stuff, this is just paying attention to development in Alameda stuff.

      Comment by Lauren Do — February 7, 2019 @ 8:03 am

      • Thanks, Lauren. It SOUNDS like inner circle stuff when you toss around acronyms that you assume your readers will understand.

        Comment by Allan Mann — February 8, 2019 @ 8:19 am

  3. The Bay Conservation and Development Commission (BCDC) has been around since 1965 and is a well-established part of the Bay Area’s political, environmental, and economic infrastructure: anyone who is a voting-age adut and awake should know what it is and what it does.
    Here you go:

    http://www.bcdc.ca.gov

    “The San Francisco Bay Conservation and Development Commission (BCDC) is a California state planning and regulatory agency with regional authority over the San Francisco Bay, the Bay’s shoreline band, and the Suisun Marsh. BCDC was created in 1965 and is the nation’s oldest coastal zone agency.

    Its mission is to protect and enhance San Francisco Bay and to encourage the Bay’s responsible and productive use for this and future generations. State law requires sponsors of projects that propose to fill or extract materials from the Bay to apply for a BCDC permit. In addition to minimizing any fill required for an appropriate project and ensuring that the project is compatible with the conservation of Bay resources, BCDC is tasked with requiring maximum feasible public access within the Bay’s 100-foot shoreline band. Throughout its existence, BCDC has approved projects worth billions of dollars, and the Commission continues to work closely with all applicants – private and public – from a project’s initial stages to ensure that they comply with state law. In addition, the Commission leads the Bay Area’s ongoing multi-agency regional effort to address the impacts of rising sea level on shoreline communities and assets. Its authority is found in the McAteer-Petris Act, the San Francisco Bay Plan, and other special area plans and laws and policies.”

    Castigating Tony Daysog for “not (being) concerned about exposing the City government and therefore, taxpaying citizens, your dollars to legal liability” is a bit extreme: people on all sides of this issue seem ready to file a lawsuit if they don’t get their way. Marriott, of course, has deeper pockets and is being a bigger bully: they have sent their “threat letter” already to protect “rights” they did nothing 30 years ago to earn for themselves.

    There ARE significant legal and policy questions about the applicability decades later of the original HBI-BCDC agreement and the original EIR to a project never envisioned at the time: since the City of Alameda has failed to face or resolve these issues and has (IMHO) also not pushed the developer to hard enough to create a truly visionary and appropriate project for this site. I expected better from our talented city staff, our appointed Planning Board members, and our City Council.

    Comment by Jon Spangler — February 7, 2019 @ 7:58 am

    • No, there aren’t any legal or policy questions about the applicability. Even BCDC staff acknowledges that. Because they have allowed the settlement to run with the land for many recent projects, they are really in no legal position to change their mind now. They could, but it would be hard to justify legally.

      You can not like the project, that’s cool, but legally this project has done everything above board and Tony Daysog trying to reduce the size and scope of the project by saying that he doesn’t want to allow them to combine all the parcels is exposing the City to liability because he has NO legal grounds to do so.

      Comment by Lauren Do — February 7, 2019 @ 8:12 am

  4. You can link to the County’s page on **how** one can go about combining parcels. That’s well and good . . . but bear in mind: that’s the **County’s** page. **How** one can go about combining parcels is **not** the issue here.

    The relevant **issue** is whether the Alameda Planning Board and the Alameda City Council should concur with the request by the project applicant to combine the three different parcels, because they are making the request it would appear in an effort to get as building square footage for there project (simple math: three parcels consisting of roughly more building square footage than, say, two parcels). It **is** the Planning Board’s and the Council’s prerogative to determine whether the combining of the parcels is appropriate in view of all the fact and concerns before the. The Planning Board said, “Well, it’s ok with us.” Tony Daysog said, based on his Council prerogative per the “de novo” hearing structure , “No, it’s not okay with me — because people are saying the 5-story structure is too big.”

    I understood the need to combine two parcels — just not the third. Had there only been two parcels combined, I believe my calculations are that the allowable building square footage would have been 108,500 square feet, versus the current ~120,200 sq. ft. Under my approach, you’d **still** have the hotel project, but at a lesser building square footage, and, more importantly, with an chance for further dialogue to achieve what I really hoped to achieve: instead of having a **thin** and **tall** 5-story building of 120,200 sq. ft (because it’s height and massing is too much for the surrounding), have a **squat** and **short** building of 108,500 square feet of much less than 5-stories, maybe even 3.

    So, let’s **kill** Ms. Do’s contentions right now with this **one simple** question: does the Planning Board or the City Council have to automatically acceed to the project applicant’s request to combine the parcels. In a word, “No.”

    Comment by tony daysog — February 7, 2019 @ 9:27 am

    • Re-write:

      You can link to the County’s page on **how** one can go about combining parcels. That’s well and good . . . but bear in mind: that’s the **County’s** page. **How** one can go about combining parcels is **not** the issue here.

      The relevant **issue** is whether the Alameda Planning Board and the Alameda City Council should concur with the request by the project applicant to combine the three different parcels, because they are making the request it would appear in an effort to get as much building square footage for their project (simple math: three parcels consisting of roughly more building square footage than, say, two parcels). It **is** the Planning Board’s and the Council’s prerogative to determine whether the combining of the parcels is appropriate in view of all the fact and concerns before the. The Planning Board said, “Well, it’s ok with us.” Tony Daysog said, based on his Council prerogative per the “de novo” hearing structure , “No, it’s not okay with me — because people are saying the 5-story structure is too big.”

      I understood the need to combine two parcels — just not the third. Had there only been two parcels combined, I believe my calculations are that the allowable building square footage would have been 108,500 square feet, versus the current ~120,200 sq. ft. Under my approach, you’d **still** have the hotel project, but at a lesser building square footage, and, more importantly, with a chance for further dialogue to achieve what I really hoped to achieve: instead of having a **thin** and **tall** 5-story building of 120,200 sq. ft (because it’s height and massing is too much for the surrounding), have a **squat** and **short** building of 108,500 square feet of much less than 5-stories, maybe even 3.

      So, let’s **kill** Ms. Do’s contentions right now with this **one simple** question: does the Planning Board or the City Council have to automatically acceed to the project applicant’s request to combine the parcels. In a word, “No.”

      Comment by tony daysog — February 7, 2019 @ 9:30 am

      • Some of us paid attention to staff’s response. I would hope the person asking the question would have done the same. The project approvals are contingent on the parcels being combined. That was at City Staff direction. Not the request of the applicant.

        Is there any legal reason or does the City even have a legal standing to forbid an owner from combining parcels that they legally own? You seem to be attempting to do so and you still haven’t cited any legal way the City could make that call.

        Comment by Lauren Do — February 7, 2019 @ 10:13 am

        • Sheesh . . . I’ve got work (something about, you know, billable hours etc.) . .. but, again, you’re wrong: whether its at the request of the project applicant or at the staff (if at the staff’s, that makes the matter even worse, btw): the Planning Board and the Council could have easily said, ‘you know what, the building square footage requested by the applicant is not supported by the large(~4.5 acre) parcel alone. We (the Planning Board) can **exercise* our legal role in doing one of three things: (1) end the project now by saying the facts don’t support it; (2) continue with the project on the parcel it is situated but scale it down to be consistent with FAR standards on the site; or, (3) combine this project on parcel ‘A’ with other contiguous parcels (‘B’ and ‘C’), so that there are now enough facts that **on paper** to support the initial project proponent building square footage.”

          The record clearly indicates in **no uncertain terms**, the PB in effect **chose** the option “3” above. I, as your Councilmember, contested that decision, providing the public with new facts showing that one of the parcels should never have been included. In addition, I provided an alternative — combne two parcels, but not three, that allows the project to move forward but gives the community a chance. In **contesting** that PB decision, I am acting wholly legally and within the ways I think members of the public (whether they live in 94502 or 94501) would want me to. No?

          So, come on, I think you should back-off on this allegation that the mere act of contesting the PB’s decision and analysis toward that decision exposes Alameda.

          Now . . . I must really get back to work! Kitty kat needs some brand new shoes!!!

          : )

          Comment by tony daysog — February 7, 2019 @ 10:37 am

        • And yet, you still have not provided a legally defensible reason as to why the property owners are not allowed to combine three contiguous parcels that they own into one larger parcel.

          I would imagine that voters in both the 94501 and 94502 would like to know that their City Council members are not attempting to limit their property rights through arbitrary and capricious means.

          Comment by Lauren Do — February 7, 2019 @ 1:40 pm

        • Knee deep at work so I have to quickly write this: again, how you, Ms. Do, are framing (“. . .legally defensible reason as to why the property owners are not allowed to combine three contiguous parcels. . .”) the matter is not the **issue** or relevant. Nice try, though!

          The issue, as I see it, is this: given that the initial proposed project as submitted to planning staff and before the Planning Board (and subsequently before Council) did not meet development standards. Period. To be sure, once the project applicant had combined the parcels (at least two of the parcels, in my mind), then the project **might** meet development standards.

          That is why one of the Planning Board members **opined** the following, word-for-word: “The three parcels joining as one is absolutely required,otherwise this doesn’t meet the F.A.R. and we would have to deny it outright.”

          That Planning Board member got it half-right. He was right to say, in effect, “there’s a problem with this project as it is divided into three parcels as it relates to allowable amount of building square footage (i.e. hence the reference to F.A.R.).” The part he got wrong was . . . . parking. The issue about combining parcels was not **simply** about trying to bolster the amount of acreage, but it was also about . . . parking.

          The municipal code says something to the effect planning projects under consideration (among other things) must show . . . “all parking **on the same parcel** as the use which is generating the parking demand.” That’s the municipal code. Yet, before the Planning Board (and Council) was a project where the project proponent **did not** fit all 275 required parking onto the one large (4.6 acre) parcel on which the proposed hotel will be built. No?

          This, my friend, was the time for the Planning Board (and Council) to seek to work things out with project proponent with regard to concerns raised by residents. Someone could have said, “Hey, look dude, your project that is **in front of us right now** does not comply with our development standards\code with respect to parking — come on, can you work with us — because we have residents concerned about a five story structure.”

          They could also have tightened their grip even more by saying, “look, there’s this one parcel that shouldn’t even be include at all for purposes of the project in front of us right now.

          What is interesting is this: had the project proponent spent, what, all of $200 to combine the parcels way **before** the Planning Board and Council hearings, then, yeah, maybe we’d have no leverage point. But, he **did not** combine the parcels before hand — and that gave the PB and Council an opening — leverage — to negotiate for concerned residents. Alas, they didn’t grab at it.

          I tried my best, what can you say. All the best! ~ tony

          Comment by tony daysog — February 7, 2019 @ 2:49 pm

        • Seeing if Tony Daysog has provided a legally defensible reason to not allow an owner, who owns three contiguous parcels, the ability to combine all of the parcels into one parcel exercising his/her rights over his/her own property.

          I see the answer is no.

          Of course now this discussion is largely academic to see how far Tony Daysog is willing to continue to dig this hole given the BCDC unanimously upheld their staff’s decision to not require a permit for the site.

          Comment by Lauren Do — February 8, 2019 @ 4:51 am

      • Tony, I’m not sure if you were paying close attention to the project each time it was before planning board. At least as big of a concern of the community as how tall the building was, was the preservation of view corridors to the bay. Add in the desire to maximize additional parking spaces for the community, and I’m not sure your vision of a ********squat************ hotel of ********threee******* stories would have been the political winner with residents of Bayfarmistan that you think it would have.

        Comment by BMac — February 7, 2019 @ 10:30 am

  5. But, I am curious: in what way did I potentially expose the City, as you claim? I mean, come on, shouldn’t you, maybe, be a wee bit more clearer in making such an explosive allegation?

    Comment by tony daysog — February 7, 2019 @ 9:36 am

  6. BTW: Harbor Bay? Tony Daysog’s “territory”? Don’t get me wrong: I appreciate the votes — but I am most **definitely** a West End guy!

    : )

    Comment by tony daysog — February 7, 2019 @ 9:40 am

    • We can all read statements of votes. I’m sure you have and you know I have. You may live on the West End but the people who vote for you and how you vote reveal where your loyalties lie.

      Comment by Lauren Do — February 7, 2019 @ 10:15 am

      • Actually, I haven’t yet: I’ve been meaning, too. So, it was a bit of a surprise to hear what you wrote about votes there.

        Comment by tony daysog — February 7, 2019 @ 10:22 am

        • To free up some your work time here is a recap of vote for the City Council race:

          Comment by Mike McMahon — February 8, 2019 @ 7:45 am

    • You’re more of a whatever side of bread is buttered guy!

      Comment by Rod — February 7, 2019 @ 3:48 pm

  7. If you’re so interested, here’s the “3rd” parcel that in my humble opinion should never have been combined with the other two — as you can see, 30% to 40% of it is in the water, and the remainder is green area that could never be built on. So, since there is no useful utility of this parcel toward the project — other than including its acreage toward the building square footage of the hotel — local officials from staff to all others should have ruled and told the project applicant, “Hey, we can’t go with this ‘third’ parcel — we can see grounds for combining the other two — just not the third.” Thanks!

    Comment by tony daysog — February 7, 2019 @ 10:10 am

  8. Ok . . . back to work!

    Comment by tony daysog — February 7, 2019 @ 10:11 am

    • Tony, I’m 75 years in the West End, and you are most definitely not a West End guy. as stated you might live here but you sold us out a long time ago, yes your base is Harbor Bay now. get back to work.

      Comment by JohnP.TrumpisnotmyPresident. — February 7, 2019 @ 2:26 pm

  9. I’m still really don’t care either way about this project but I must say it is amusing to see a staunch proponent of rent control rhapsodize about property rights.

    Comment by dave — February 8, 2019 @ 6:17 am

    • If you are referring to me, my position on rent control/stabilization is pretty nuanced. Pretty sure that my full views on that have never been stated on this blog. Unless you’re making assumptions and we all know how problematic that can be.

      Comment by Lauren Do — February 8, 2019 @ 6:24 am

      • Please do inform, then.

        Comment by dave — February 8, 2019 @ 6:48 am

    • There we go again, confusing property rights and business regulations for the millionth time!

      Comment by Rod — February 8, 2019 @ 6:28 am

    • And maybe someday you’ll have something of value to add to the conversation on this blog!

      Comment by Rod — February 8, 2019 @ 10:36 am


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