HomeMy WebLinkAboutStaff Report 4329 (2) 1
Planning and Transportation Commission 1
Verbatim Minutes 2
January 9, 2013 3
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EXCERPT 5
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Draft Density Bonus Ordinance Review: Request by Planning Division staff for PTC review 7
and recommendation to City Council for the adoption of the Density Bonus Ordinance with 8
Menu of Concessions 9
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Chair Martinez: [Note—beginning of what Chair Martinez said cut off on the tape] provide the 11
Commission of the Density, the proposed Density Bonus Ordinance with a recommendation to 12
the Council. We will begin with a staff report. 13
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Tim Wong, Senior Planner: Good evening, my name is Tim Wong and I’m a Senior Planner with 15
the City and this evening before you is the City’s Draft Density Bonus Ordinance. Density 16
Bonus is a state law that allows developers to build additional, a density above the maximum 17
allowable in exchange for providing affordable units in the development. And in 2004 through 18
SB 1818 the State significantly revised the Density Bonus Law. Many things were revised in the 19
law, but more significantly it increased the density bonus percentage for a lower amount of 20
affordable units or a lower percentage of affordable units in the development and it allowed for a 21
greater number of concessions to be allowed on one project. In addition it required jurisdictions 22
to adopt the state law into local ordinances. And that’s why we are here this evening. 23
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In October of 2011 the Planning and Transportation Commission (PTC) held a study session to 25
review some of these revisions, but primarily to focus on allowable concessions and how to 26
evaluate granting these concessions. There were many items discussed, however there were 27
three items that were more commonly discussed if you will regarding concessions and they were 28
concerns about how using concessions can circumvent the City’s height limits. In addition 29
because of the City’s 15 percent Below Market Rate (BMR) requirement if a developer met the 30
BMR requirement would they be eligible for a credit? A Density Bonus Credit of one 31
concession. And lastly there was discussion about requesting financial documentation from the 32
developers to document the need of the requested concession. 33
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At this session PTC was provided with two ordinances that had different approaches towards 35
density or towards concessions, San Mateo and the City of Santa Monica. The City of Santa 36
Monica ordinance was a little more structured with quantifiable concessions and a little more 37
detailed in how to grant the concession while the City of San Mateo was a little more flexible 38
and had more flexible language in their ordinance. And at the end of the session PTC directed 39
staff to prepare the draft ordinance more in the style of the City of Santa Monica and their menu 40
of concessions. 41
42
So what you have before you is a Draft City Density Bonus Ordinance. And some parts of the 43
ordinance include provision for a menu of concessions. So if you choose from these menus of 44
concessions no additional review is necessary per the ordinance. And these concessions that 45
have been listed in the menu were concessions drawn from past requests from approved projects: 46
increased Floor Area Ratio (FAR), encroachment in setbacks, and also requests for additional 47
height. And if the developer chooses not to choose from the menu of concessions additional 48
review is required from the approval authority and as part of the underlying discretionary permit. 49
2
And the ordinance does also include the financial information will need to be submitted as part 1
of this, part of that request. And lastly, staff anticipates that the Density Bonus Ordinance will 2
be a key tool for the City in achieving its Regional Housing Needs Allocation (RHNA) 3
requirements. And Cara will talk about some of the legal issues encountered in drafting the 4
ordinance. 5
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Cara Silver, Senior Assistant City Attorney: Thank you Tim. Cara Silver, Senior Assistant City 7
Attorney. So the State Density Law is similar to the Housing Element Law in that it is a State 8
requirement that is essentially forced on cities. We don’t as a charter city see this very often in 9
the planning arena because we have the ability in most areas to adopt our own laws, but this is 10
one area where the State has required cities to comply with uniform requirements. 11
12
The current State Density Bonus Law in state law requires cities to adopt implementing 13
ordinances. So the substance of the law is essentially incorporated into the draft ordinance that 14
you have in front of you and there’s little discretion really to vary on the substance, but certainly 15
there is some flexibility on the procedures for implementing the ordinance. One of the highlights 16
for this evening that I wanted to bring up is the statutory findings that need to be made before if 17
the Commission is to deny an incentive or a concession. And so state law requires that certain 18
findings be made, that those findings be made in writing, and that of course substantial evidence 19
supports those findings. So we have incorporated those findings into the ordinance in section 20
18.15.090 and it’s important that some of the other requirements in the ordinance are driven by 21
those findings. And so that’s really the crucial part of your decision making here is that we want 22
to make sure that any additions or changes to the state law of course incorporate those findings. 23
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One of the issues that is in, that we’ve discussed in the past with the Planning Commission is 25
financial information that is required from applicants. And so since one of the findings that for 26
denial relates to the financial aspect of the project and the economic viability of the project we 27
have included in the proposed ordinance in section 18.15.080 (A)(8) a requirement that the 28
applicant submit a pro forma in the event that they are requesting an exception or an incentive 29
that is not listed in our menu of options that Tim referred to. 30
31
Two final legal issues, one relates to the height limit. Again in the menu of concessions that 32
we’ve incorporated into our existing, into our proposed ordinance we have specified that 33
developments can exceed the height limits in existing residential zones, but we have specified in 34
the concessions that the height limit though can only go up to 50 feet in compliance with of 35
course the Comprehensive Plan. Now this is something that is an open issue. It could be that 36
applicants could request a height variance in excess of 50 feet and it’s still an open issue as to 37
whether the City has the ability to grant incentives that nevertheless are inconsistent with 38
existing zoning codes or even Comprehensive Plan limits. So that’s just an issue that we’re 39
footnoting at this point. 40
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The final legal issue that we’re raising at this point is the relationship of the Density Bonus Law 42
with the BMR program. Of course in the current state of the law is that inclusionary housing 43
requirements are not applicable to rental housing given a recent court decision. So for rental 44
housing projects they typically pay housing fees and they do not provide restricted BMR units in 45
a rental housing project. However for sale condo projects inclusionary housing is still legally 46
applicable and one of the questions that was raised at the last study session by one of the 47
Commissioners was if we impose our existing inclusionary housing requirement on a for sale 48
project that automatically triggers Density Bonus. And so I think that we did some further 49
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research on what other cities do and the existing state law and it does appear that the state law 1
does not really specifically address this issue. So it’s a policy issue of whether you want to have 2
the inclusionary housing requirement automatically trigger Density Bonus or do you want to 3
require that the inclusionary housing requirement be met first and then an applicant can apply for 4
additional Density Bonus units or incentives by derestricting an additional increment of housing. 5
So the proposed ordinance is written right now to first require that the inclusionary housing, the 6
BMR existing program be satisfied and then additional incentives would take place on top of that 7
by requiring additional derestricted units. So that highlights I think the legal issues and think 8
there’s any further wrap up? 9
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Curtis Williams, Director: Thank you Cara, I just wanted to also add that and emphasize as Tim 11
did I think the last slide there, that this is an important component of our Housing Element 12
implementation program and that the Commission did include a number of mentions in the 13
Housing Element about certain incentives and concessions being allowed in consistency with this 14
ordinance to be developed. So this is a key part of that and will be a key part of being able to 15
show the State that we’ve complied. 16
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Tim recounted for you some of the process here. The Commission has seen this over multiple 18
meetings, but it is a situation where we’re trying to implement the State’s overall objectives but 19
we’re trying to tailor something that fits the Palo Alto situation and trying to be a bit more 20
specific about relating the nature of the concession and the extent of the concession to the extent 21
and type of the Below Market Rate housing that’s being provided. So I know those of you who 22
have sat through some of the discussions on anything from 195 Page Mill Road to the 101 Lytton 23
and some other projects know how open ended that those discussions were because of some of 24
these state laws. So we do think this is important. We want to hear your thoughts and 25
recommendation on whether this is ready to move forward to the Council at this point. But 26
again, we think it’s a very important policy document for the City to try to set parameters around 27
the appropriate level of extensions or exceptions to allow. Thanks. 28
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Chair Martinez: Thank you. Questions from the Commission? Commissioner Keller, questions. 30
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Commissioner Keller: Yes, so you stated Madame City Attorney that the BMR inclusionary 32
requirements must be satisfied first for sale projects so for example, a BMR requirement 15 33
percent would not trigger a concession, but a BMR provision of 25 percent would trigger one 34
concession. Is that, am I understanding correct? 35
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Ms. Silver: That’s the way the proposed ordinance in front of you is drafted. We believe though 37
that it’s a policy call. You can go either way on that issue. 38
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Commissioner Keller: Well firstly I do agree with that policy, but I was, I read the ordinance and 40
I couldn’t figure out where in the ordinance it says that and I found some things that may not be 41
consistent with that so that’s what confuses me. 42
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Chair Martinez: Further questions? 44
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Commissioner Keller: No, but maybe you can give her a moment to respond. 46
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Chair Martinez: Can we move on and then we’ll come back? 48
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Commissioner Keller: You want to come back to that? But let me mention one thing just in 1
particular that will, for example, if you look on page 11 of the ordinance it talks about for 2
number four percentage increase in the height limit and then it’s based on a maximum increase 3
of one foot per affordable unit. That would actually be one foot for excess affordable unit over 4
the required for the BMR. So there’s little things like that that I don’t think are necessarily and I 5
couldn’t find anywhere, maybe I misread it, but that’s an issue. So that’s, also, for five that the 6
extra restricted affordable units we’re talking about. So that’s the kind of thing that I was 7
confused about, but I wasn’t sure where it was. So maybe you can tell me. Thank you. 8
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Ms. Silver: It’s on page 7, letter G. “Any restricted affordable unit provided pursuant to the 10
City’s Below Market Rate housing program shall not be included when determining the number 11
of restricted affordable units required to qualify for a Density Bonus or other entitlement under 12
this chapter.” 13
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Commissioner Keller: Thank you. That’s helpful, but I think that there other places in the 15
ordinance where, when you’re actually computing it based on a number that you also have to 16
exclude that number. Am I being clear? 17
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Ms. Silver: I think what we need to do is change the term to restricted affordable units in those 19
places that you referenced. 20
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Commissioner Keller: Yes. Ok, thank you. 22
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Chair Martinez: Yes, Commissioner Tanaka. 24
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Commissioner Tanaka: So my basic question is for this ordinance, and it’s kind of a general 26
question so maybe you can help me understand this, for the SB 1818, how much above or below 27
or I guess what I’m trying to get at is the qualitative feel of how much above the SB 1818 are we 28
doing? If at all or is it below? I’m just trying to just gage whether are we doing the minimum to 29
meet it or are you going above it? Or are we, I guess you can’t go below it. So maybe someone 30
could respond to that. I’m just trying to get a, because I didn’t actually read the SB 1818 myself, 31
so I don’t understand where we are compared to the state mandates. 32
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Mr. Wong: Commissioner Tanaka we are meeting SB 1818. Nothing above and certainly not 34
below. So and I’ll be happy to provide you a copy if you really have some free time of SB 1818. 35
36
Commissioner Tanaka: Ok, and then the other clarifying question is I think the City Attorney 37
mentioned that it only applies for ownership units, not rental units. Is that right? 38
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Ms. Silver: No. The Density Bonus Law applies both to rental and for sale. They City’s 40
inclusionary housing BMR program now no longer applies to rental housing. We cannot require 41
the construction of affordable deed restricted houses under a now not so recent court case. 42
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Commissioner Tanaka: I see. Thank you. 44
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Chair Martinez: Commissioner Alcheck. 46
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Commissioner Alcheck: I’d like to ask the Planning Department whether they feel this ordinance 48
which could be described as setting the bar higher than the current ordinance will result in the 49
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actual development of fewer Below Market Rate units. As I understand it very few applicants 1
apply for this bonus under the current ordinance. And I wonder if we will be inadvertently 2
discouraging that sort of development further. 3
4
Mr. Williams: Thank you Commissioner Alcheck. I think the, there’s a couple of parts to that. 5
One is very few in fact I’m not aware of anyone who has applied for the Density Bonus part of 6
this in Palo Alto who has ever asked for increased number of units, which you’re allowed to do 7
under this ordinance and under state law based on number of Below Market Rate units. So the 8
density part no one has done that currently. I don’t think this makes a lot of difference as far as 9
the potential for doing that because I still think things like parking and other considerations limit 10
it in a way that probably wouldn’t happen. 11
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What does, what has happened on a handful of occasions now we’ve had where an applicant has 13
requested the concessions part. So I think that’s what we’re focused on is the incentives or 14
concessions part of it. And that has certainly been beneficial in terms of those applicants being 15
able to do their projects. I don’t know whether they would have done them without it or with a 16
lesser amount but I think what we’re doing here clearly is restricting to a level in terms of those 17
concessions less than what they could do without us having this implementing ordinance or if 18
our implementing ordinance just more or less mimicked SB 1818, which is what San Mateo’s 19
kind of did. Is that correct? Yeah, so that was basically was just reiterating the same language. 20
So I think we are restricting it. Whether it’s enough, whether it’s so much that it will drive 21
someone away from doing a project, I don’t know, but it’s certainly not encouraging more 22
housing than leaving it alone or adopting the state language. But it’s pretty hard to gage how 23
significant that is. 24
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I do think one thing it does by this what Cara was just talking about the difference between for 26
sale and rental is this will be more beneficial for rental projects than it will be for sale because 27
you’re going to have to really get up there in terms of percentage of BMR to get the benefit out 28
of this for a for sale project. 29
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Chair Martinez: Vice-Chair, questions? 31
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Vice-Chair Michael: So I think to the extent that what you’ve told us is that this proposed 33
ordinance would be consistent with what’s required by the state law. It actually seems pretty 34
straightforward. To the extent that the City hasn’t recently received many if any applications for 35
Density Bonus I think Commissioner Alcheck’s question about whether we might in pursuit of 36
the goals set forth in the Housing Element or the with the housing allocation targets have a 37
policy of encouraging qualified developers to take advantage of this would be of interest. 38
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I think I had one question that I was interested in. The submission of the pro forma financials as 40
set forth in 18.15.080 (A)(8), which seems to me to be a fairly straightforward and helpful 41
process. And I just know a similar issue comes up sometimes when you have a Planned 42
Community (PC) application and the question of public benefit and the nature of the public 43
benefit and the sort of quantity of public benefit. And I should find it useful here that there is a 44
process for some review of pro forma financials to sort of quantify certain decisions consistent 45
with the standards set forth in the ordinance. And I find that helpful. So I think that those are 46
my only comments, not really questions. 47
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Chair Martinez: Good lead in. It seems that I wanted to get back to grilling the City Attorney. 1
I’m kidding. It seems to me that there are very few times where the pro formas would be offered 2
by the developer and mostly it would be sort of self-inflicted. The developer claimed that the 3
only way they could afford to do this project is if they get these concessions and then rightly so 4
somebody should ask well show us the paperwork. But in other situations where developer says 5
in order to make good use of this site I need to decrease the setbacks or I need a better FAR. It’s 6
not so much a question of the pro formas or the profitability of it, it’s more about the quality of 7
the land use. And so wouldn’t we be limited, somewhat constrained in asking for pro formas 8
Ms. City Attorney? Or Madame City Attorney as Commissioner Keller referred to you. 9
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Ms. Silver: Thank you Chair Martinez. The way the ordinance is currently drafted the pro 11
formas are only requested in a situation where additional incentives that are not on the menu of 12
options are requested. So if somebody wants just a standard concession of waiving a setback 13
that falls in the menu and so a pro forma would not be requested. But in a limited situation 14
where an additional incentive is being requested one of the findings that the approving authority 15
needs to make is whether that particular concession is financially needed to make the project 16
viable. And so you know it seems appropriate in that situation then to request a pro forma 17
because that’s really the only substantial evidence that you would have to evaluate that issue. 18
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Chair Martinez: Ok, but what if the applicant said “I will give the City a million dollars if I can 20
increase my density, a million dollars to build affordable housing elsewhere.” That’s not on the 21
menu I don’t think. So would the pro formas be required there? 22
23
Ms. Silver: Yeah, I think that that’s a development agreement essentially. It’s not really an 24
incentive or concession that is anticipated under Density Bonus Law. 25
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Chair Martinez: Ok. On page four of the staff report near the top it talks about, let’s see, the 27
required units are to be built on site and then the third bullet says, “Includes the option for off-28
site development.” To me that sounds kind of contradictory. So could you clarify what that 29
means? 30
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Mr. Wong: Chair Martinez actually it already has been done where there were two projects, 2650 32
Birch was required through Density Bonus to provide one affordable unit, but what happened 33
was 195 Page Mill, which also received two concessions in providing 17 affordable units the unit 34
at 2650 Birch was effectively transferred if you will to 195 Page Mill. There are distance 35
requirements. I think it cannot be more than a half a mile from the project site. Does that ring a 36
bell? But so the Density Bonus was fulfilled that way, but it was transferred to another 37
development which was nearby, kind of the off-site fulfillment of that for 2650. 38
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Chair Martinez: Ok. My next question on the concessions we haven’t talked much about it and I 40
hope we can give some input tonight on that because I think this is a big deal. Why aren’t we 41
quantifying it? Why aren’t we saying yes, building height can go up one story? Why is it left 42
open ended? 43
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Mr. Wong: It was left open ended to provide a little additional flexibility in providing those 45
concessions by not providing those quantified objectives if you will it will help show HCD that 46
we are serious about using Density Bonus as a tool to achieve our RHNA numbers and also to 47
provide that additional flexibility for the developer. 48
49
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Chair Martinez: But we realize building height is a big deal in this town. So shouldn’t we be a 1
little bit more careful on how we offer it? 2
3
Mr. Wong: Well I do believe for that one particular concession for height we have capped it at 4
50 feet. And also there’s a proportionality in the number of affordable units offered so therefore 5
if in the height concession you can’t just provide one affordable unit in five and get unlimited 6
height. So it was an attempt to limit for height limit or quantify the restriction for height. 7
8
Mr. Williams: I mean we have quantified, is that what you’re talking about? The height 9
limitation relative to, it’s not floors, but it’s foot per affordable unit not to exceed 50 feet. So 10
there is, I mean there is a formula. 11
12
Chair Martinez: But isn’t that our limit anyway, 50 feet? Or is there something different? 13
14
Mr. Williams: Pardon? 15
16
Chair Martinez: Isn’t that our height limit anyway? 17
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Mr. Williams: All our residential zones are less are 40 feet, 35 feet, etcetera. 19
20
Chair Martinez: Oh, ok. I get that. Since I have your attention (interrupted) 21
22
Mr. Williams: And then we have something I think a little different for mixed use somewhere. 23
Or no, ok we just left it at 50. What I think our thought was that if it was going to go over 50 24
feet though that need to then come to the Commission and go through that discretionary process. 25
26
Chair Martinez: Ok. Since I have your attention Mr. Williams isn’t, can you explain the what the 27
expectations for RHNA goals would be through implementation of this? Is it more perception or 28
is there a real number that we can identify in this? 29
30
Mr. Williams: It’s more perception. I mean I don’t think we can identify that this is going to 31
mean that 100 more units are going to be able to be accommodated in a future area. I mean what 32
the State’s looking for in terms of Housing Element compliance is that we are taking actions that 33
do provide some flexibility in this regard and do provide some incentives and concessions but 34
they don’t ask us to try to quantify how many more units that would specifically result in. And 35
we haven’t, we’ve estimated on our site analysis based on generally what can be done within 36
existing zoning parameters, but we did assume a little bit more for what the CN zone and that 37
we’ll have to amend the code to allow that. But this helps with that. It sort of helps support 38
some of the other arguments about when they question us about well these sites look kind of 39
tight and can you really get the kind of yield out of them that I think this is a section that will 40
help us tell them that we do have the flexibility to modify some of these standards to work. 41
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Chair Martinez: And then the setbacks concession. I remember in the debate about 801 Alma the 43
proposed setbacks on all sides and the response from the City. I don’t think I was on the 44
Commission then; I was just here paying attention to what was going on. The City said well 45
that’s more than one concession and I don’t know how it ended up, but what’s being built are 46
units that everybody has said are too close to the streets as their first impression of this thing 47
going up. Seems to me that setbacks are too precious to be a concession. That it comes to us as 48
good land use practice and it comes to us as having to do with life safety as well. And light and 49
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air and separation from neighbors and I really question whether that one should be on the table as 1
a concession. Were there other items that you considered that as potential candidates for 2
concessions that we could hear about? 3
4
Mr. Williams: I don’t think there, I don’t know if there were. Tim can answer that, but I just say 5
on the setbacks I understand what you’re saying. I think if it’s that critical in that situation that 6
we have authority under our zoning and design review powers to say that there is that kind of 7
especially if there’s a life safety type of issue, but it seems to me that from what I’ve seen on a 8
number of projects that there are several that it’s been almost a no brainer that having a reduced 9
setback was not impacting anyone and could be done. So I would hate to take that away and just 10
sort of blanket say you can’t get a concession for that. Maybe there’s a way to qualify it in here 11
or something so that there’s a point at which it’s not allowed. Maybe it’s too open ended the 12
way it is right now, but there are many times when setback isn’t affecting anyone that’s an easy 13
way to go to gain more flexibility on the site or yield on the site or something like that. 14
15
Chair Martinez: Seemingly so but anybody who I’ve talked to about 801 Alma complains about 16
the front setback. So that one wasn’t so easy to go and we gave it up. Granted it’s not, the 17
building’s not going to fall over onto somebody on the sidewalk, but (interrupted) 18
19
Mr. Williams: Yeah and it’s not done and it’s not any closer than several other buildings right in 20
the next blocks either direction. 21
22
Chair Martinez: Lower, much lower buildings that are closer (interrupted) 23
24
Mr. Williams: Some of them are pretty, ok. 25
26
Chair Martinez: But anyway I really think that one should be really considered a land use 27
decision more for Planning staff then for Architectural Review Board (ARB) or us to deal with 28
and once you offer it as a concession I don’t think it’s going to be that easy to take back. So I 29
would really give thought to doing that and I don’t know the concession of offering in lieu fees 30
for Density Bonus it seems to me, I don’t know maybe I’m mixing apples and oranges here, but 31
it just seems that would be important for us to do in terms of building our housing fund. 32
33
So and I guess in the ordinance I kind of read it over quickly this evening we are trying to get at 34
defining more clearly what these, the extent of what these concessions to go. So is it clear that 35
setback means all setbacks? Or is that negotiable or it’s not a concession if they don’t get them 36
all? 37
38
Mr. Wong: In regard, Chairman Martinez, each setback is considered one concession the way 39
this ordinance is prepared. So for 801 I understand they got three setbacks as one concession, 40
but this, the ordinance as written one setback is one concession. Although I will say the Council 41
has greater discretion to offer more flexibility in these concessions for developments that are 100 42
percent affordable. So. 43
44
Chair Martinez: Yes, Commissioner Alcheck. Comments? 45
46
Commissioner Alcheck: So I want to weigh in on the issue of requiring financial documentation 47
as evidence of the necessity of concessions. This report suggests that the Commission discussed 48
this idea and supports it and I want to highlight for the Council that since that discussion by the 49
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Commission the makeup of this Commission has significantly changed. Only three of the 1
Commissioners from that Commission are currently Commissioners and I’m not sure there is 2
consensus anymore on whether or not we feel the financial information is helpful. And I won’t 3
speak for anyone else, but I myself do not believe the City should require developers to share 4
their financials for a number of reasons which I’m happy to share. I won’t at this time, but I am 5
happy to share them. And I strongly, strongly encourage the Council to approve this ordinance 6
without section 18.15.080 (A)(8). 7
8
And I want to highlight one other thing. I don’t believe the Planning Department believes that 9
this financial documentation is necessary. I think or at least it’s my impression, you can correct 10
me if I’m wrong that it was included here because a previous very different Commission 11
recommended it and you’re working off that recommendation. It’s not my impression that the 12
Planning Department feels that this information will help them significantly. So I want to 13
reiterate for the Council’s benefit that I am strongly opposed to this and I am that way for a 14
number of reasons and one of them is that it’s a slippery slope that I don’t believe this is 15
information that will help us. And that’s really my comment. 16
17
Chair Martinez: I’d like to open this for further discussion, but first I forgot we have one member 18
of the public that wishes to speak. So let’s open the public hearing. 19
20
Vice-Chair Michael: The speaker is Herb Borock. 21
22
Herb Borock: Thank you. I don’t think this proposed ordinance is ready to be voted to the 23
Council. Eight years ago was the first CMR about the amendments from SB 1818 and four years 24
ago this government code section was completely restated and amended. And for everyone to be 25
continuing discussing it as SB 1818 I have to say they don’t know what they’re talking about. 26
And to have one Commissioner say he hasn’t read the government code section when the version 27
that was adopted four years ago was attached to the staff report in October for you to read is a bit 28
confusing for me. 29
30
Some of the things the staff is offering I don’t think are legal such as being able to first require 31
the BMR units and then on top of it ask for concessions, such as asking for financial pro formas. 32
Those kinds of things look good to get approval but then they’re taken away by the courts. We 33
already have an ordinance the Pedestrian Transit Overlay District that says that is the way to 34
implement the Density Bonus in state law in the California Avenue area and there’s nothing in 35
here to reconcile those two. 36
37
In October you weren’t told about the condominium conversion, which is a separate section of 38
the code and that requires an action, a decision when a request is made within 90 days, but 39
there’s nothing here about what that process should be. I believe that should be before the 40
Commission and the Council. A lot of the proposed ordinance is rewriting things that are in the 41
code in Government Code Section 65915. But what happens when people rewrite things they try 42
and edit them and in some cases made them worse. For example, low income and lower income 43
can be rental units only. For sale units can only be moderate. Yet the definition in here reads as 44
if you can have for sale units that are low and lower income. You cannot do that in Density 45
Bonus law. 46
47
The issue of 2650 Birch and 195 Page Mill, I was at all the meetings and received a copy of the 48
Director’s decision. I don’t recall there being a transfer of a unit. Yet this is here sort of saying 49
10
you can do that. In fact you can’t because the definition of housing development in 65915 says it 1
has to be on contiguous sites. So you can’t put units someplace else. So that violates the law. 2
3
Similarly the Eden Housing project on Alma Street, at the time there was nothing in our law that 4
permitted a higher density that it put in. But if you calculated based on floor area and the size of 5
the units in South of Forest Avenue that project exceeded what the law allowed. This ordinance 6
gives that power, but you can only increase the density. You do not have the power to give more 7
incentives and so that is wrong as well. Thank you. 8
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Chair Martinez: Thank you very much. Any further? Commissioner Keller. 10
11
Commissioner Keller: Yeah I was holding off further comments until we had the member or 12
members of the public speak. But I have a few comments. First I’d like to respond to the 13
comment from Commissioner Alcheck and that is that the way that government section, 14
government code, federal, state Government Section Code 65915 is that the purpose of 15
concessions is to make the housing more affordable. And therefore I would strongly recommend 16
keeping this section eight precisely because if somebody asks for a concession that’s not part of 17
what’s there then they have to explain why. Now if you want to eliminate section eight then 18
simply eliminate the ability to have concessions that are beyond what is in the menu. But if you 19
allow concessions that are not in the menu then they have to justify them and the purpose of the 20
ordinance from the state law is to make it affordable and therefore pro forma provides the ability 21
to do that. So that’s my understanding of why that is. 22
23
And I know that, couple things. First of all a number of the Commissioners have been invited to, 24
were, attended meetings put on by some organization that I know that Commissioner Tanaka 25
went to a meeting that I went to a few months ago where Commissioners and Council Members 26
and whatever are invited to attend, staff, on a countywide basis. And we were actually shown 27
how to read pro formas of housing and how to interpret them and such. So other cities may in 28
fact use them. So I’m going to put that aside as that. So if you have a catch all allowing other 29
concessions they have to justify them and explain why. 30
31
Ok. The first thing is in terms of let’s suppose you have a project in which they add five housing 32
units which are all affordable on a 100,000 square foot office building. How much concession 33
should they be entitled to get? So I think that if it’s legal, and I ask this of the City Attorney, is it 34
legal to only allow concessions on a project that is predominantly housing? And if the project is 35
not predominantly housing you don’t get a concession. So for example require that the portion 36
of development devoted to housing be at least 50 percent of the FAR of the floor area of the 37
entire project. Is that a requirement that we could have? 38
39
Ms. Silver: Commissioner Keller we’d have to research that a little bit further. The ordinance 40
that the state law really does not give much guidance on mixed use projects and unfortunately 41
there’s only like two published decisions on the statute. So we’ve struggled with how to deal 42
with mixed use projects and we’d have to think about that one a little bit more. 43
44
Commissioner Keller: So because for example what was also being discussed for the Lytton 45
Gateway project was a project in which there was a small amount of housing, one floor of 46
housing and a tremendous amount of concessions were being achieved for that. And so that was 47
a situation in which, yes? 48
49
11
Mr. Williams: So if I could just add what we’ve tried to, first of all I mean I think SB 1818 1
2
Commissioner Keller: Government Section Code 65915. 3
4
Mr. Williams: Yes. Does I think I read the intent of that as intending to apply to mixed use 5
projects. And so I, and also the fact that our Housing Element is highly reliant on mixed use 6
development in order to demonstrate that we’re compliant. So I think it would be kind of 7
counterproductive to somehow not apply it to mixed use projects. But the other thing is that 8
we’ve put the provision in here as far as the allowance for FAR is specifically limited on this 9
with that thought in mind on page 11 at the item V there. Up to 50 percent increase in the Floor 10
Area Ratio or up to the square footage of the restricted affordable units, whichever is less. So 11
what we’re saying is you don’t just get to do all kinds of extra commercial square footage just 12
because you gave us one more restricted affordable unit if that affordable unit is 1,300 square 13
feet then you get 1,300 square feet more of commercial. So we were very cognizant of that and 14
that’s why that provision is in there, to try to create some parity in those. 15
16
Commissioner Keller: Ok. 17
18
Chair Martinez: Commissioner, can I ask you what were you trying to achieve with your 19
suggestion? 20
21
Commissioner Keller: Well my suggestion is, first of all I’m not suggesting that we exclude 22
mixed use development. I’m just suggesting that we only allow mixed use developments in 23
which housing is a major component. So therefore if housing is let’s say 50 percent, 40 percent, 24
but some large percentage of the overall floor area then you get bonuses, but if housing is an 25
afterthought added onto a major office building then that’s not really a situation in which the 26
housing makes the project, more affordable housing makes the project that much more 27
unaffordable to the developer. 28
29
Chair Martinez: Commissioner the Gateway project was a PC though so the public benefits were 30
larger than just the housing being provided. It just it seems to me that you’re asking to put 31
additional constraints when we’re trying to build housing and we’re trying to make our effort to 32
the State seem more as if we’re serious behind it. I don’t really see the benefit in trying to 33
manipulate the development so it makes it less interesting for the applicant, the developer to 34
build his project because he has to provide more housing or is penalized for it. Why don’t we 35
just leave it alone? And we have the limits that the Planning Director has stated. 36
37
Commissioner Keller: Ok. May I continue? 38
39
Chair Martinez: Definitely. 40
41
Commissioner Keller: Thank you. Ok. In the cover material it basically says that, in the staff 42
report it limits the require, the limit on when a project can, when the restricted affordable units 43
no longer have to be restricted is 59 years. However on page 8 of the Draft Ordinance it says 59 44
years for some units and 30 years for other units. And I’m wondering why there’s a 30 year 45
there as opposed to 59? And secondly I’m wondering why it isn’t merely for the life of the 46
project. Why should we have to worry about it some years down the road? Why can’t it just be 47
as long as the project is there the units have to be affordable? Any thoughts? 48
49
12
Mr. Wong: Commissioner Keller I know the 30 year is straight from the Government Code 1
Section 65915 in that ownership units I believe are a minimum of 30 years. So (interrupted) 2
3
Commissioner Keller: So we can’t have a more severe requirement than the government code? 4
5
Mr. Wong: And I believe, no, we’ve made them for 59 years to be consistent with the City’s 6
BMR program. 7
8
Commissioner Keller: Ok, but it does say 30 years in the third line from the bottom of paragraph 9
B of 18.15.040. There’s one mention of 59 years and one mention of 30. Yeah I’m just 10
wondering if that has to be 30, but maybe you can think about that. 11
12
The next issue is on page nine. There’s a whole bunch of parking incentives which are by right. 13
Do those parking incentives apply only to the affordable units and our regular ordinance applies 14
to the regular units? The market rate units? Is that correct, my interpretation of that? 15
16
Ms. Silver: The by right would apply to the entire project. 17
18
Commissioner Keller: So in other words, if somebody has 20 percent affordable then let’s say 19
then they suddenly all of the development of the project, the remaining 80 percent is limited in 20
terms in of how much parking we can require? 21
22
Ms. Silver: Yes, that’s the state law. 23
24
Commissioner Keller: I see. Well I won’t mention any words I think about that, but anyway. 25
Because they’re not printable. But in any event at the bottom of that paragraph it says, “Provide 26
for tandem parking.” I would delete tandem parking. I don’t really see a reason for, if this 27
severely restricted to allow tandem parking in addition. 28
29
Chair Martinez: Do you have additional comments you want to (interrupted) 30
31
Commissioner Keller: Yeah, but I can do one; I can hold it and do another round if we have 32
another round. 33
34
Chair Martinez: Well how much more do you have? 35
36
Commissioner Keller: I have gone about a halfway through. 37
38
Chair Martinez: So you have another three minutes? 39
40
Commissioner Keller: I can go another three minutes, but I think it’s a little longer than that so 41
it’s your choice. 42
43
Chair Martinez: Ok. We’ll come back to you then. Commissioner Alcheck had some comments. 44
45
Commissioner Alcheck: I want to make a rebuttal on the financial issue. I don’t believe that the 46
ability to analyze a pro forma is relevant here. I have an MBA as well and I’ve spent many 47
nights with pro formas. I want to say that developments can take years. And the business of 48
development is risky for that very reason. And the success of a project and a development in this 49
13
City is as much a factor of fiscal components of that development as it is the time it comes 1
online. If it’s a good market, huge success. If it’s a bad market, it’s a bankruptcy. And if we 2
evaluate concessions based on how much profit a developer may make at the conclusion of a 3
specific project, we are allowing local government to reduce the upside potential and increase the 4
downside potential at the same time. It has, there is no benefit to a developer. 5
6
And I want to note that asking for a concession doesn’t guarantee receipt of that concession. 7
Each applicant that asks for a concession that’s not on the menu will have to make their case. If 8
they choose to voluntarily make that case with a pro forma, so be it. And if their case isn’t 9
strong enough without pro formas they’re denied. It’s not; you don’t ask for a concession and 10
get it. You have to make the case. And I think that we are capable of evaluating these 11
concessions without knowing how much money a developer anticipates making in a future that 12
nobody can guarantee. And that is, I mean that is the crux of the, my opposition to the analysis 13
of pro formas as a way of evaluating land use decisions. I think we need to evaluate whether we 14
want to allow these concessions because they make sense for us. They achieve a goal that we 15
have like increasing Below Market unit availability or the like. So I’m not going to make more 16
points on this outside of this comment. 17
18
Chair Martinez: Well stated Commissioner and I support your position. However I know from 19
recent events with the Speaker of the House you don’t call for a vote when you know you’re 20
going to lose. So I think the comments of Commissioner Alcheck will be heard by the Council 21
and we are going to allow it to sit as it is and with the recommendations that you’ve heard from 22
the various Commissioners today. Further comments? Commissioner Tanaka. 23
24
Commissioner Tanaka: Well one quick thing for staff is one of the members of the public made 25
some comments. I was wondering if maybe staff could quickly address those comments that we 26
heard? 27
28
Mr. Wong: I am not ready to address the Pedestrian Transit Oriented Development (PTOD) and 29
the condo conversion. I wasn’t… 30
31
Mr. Williams: The PTOD one I know we have in our Pedestrian Transit Oriented Development 32
zoning Mr. Borock is correct that we had included in there language because we developed that 33
zone very shortly after the state government code Density Bonus law was enacted and we tried to 34
envelop within that provisions that depending on how many BMR units you were providing that 35
you would get certain increases in height up to certain max. somewhat similar to what’s being 36
done here, however, then you’d be without this kind of an ordinance it became apparent that we 37
really couldn’t do that because that wasn’t in and of itself considered an implementing ordinance 38
for that code. It was just this one zoning district we had. So I think we had determined that we 39
really couldn’t apply that. 40
41
And so what I think we’re going to have to do is if this, if we pass this we’ll have to clean up that 42
ordinance and take that out and this will govern or modify it to be consistent with this or 43
something like that. So there is some inconsistency right now, but we’ll rectify that. This is a 44
broader based approach that we need to do citywide. So this is the way we should go at this 45
point and we’ll deal with the PTOD zoning at a later date. 46
47
14
Chair Martinez: And with other questions regarding state law. For example, for sale units only 1
applying to BMR applying to moderate income units if those are inconsistencies how do we 2
begin to correct that? 3
4
Mr. Williams: So you understand the question? We’re referring to ownership units that refer to 5
low and very low income. We don’t require that, but that somebody could do that and get 6
concession. 7
8
Mr. Wong: Oh absolutely. Right now the state law addresses ownership for moderate income. 9
That’s what the Government Section 65915 states, but yeah. If the developer chooses to do 10
lower affordability therefore he would be eligible for additional concessions or a higher 11
percentage of Density Bonus if that’s what the developer choses to do. 12
13
Chair Martinez: So there’s no inconsistency with the state law you’re saying? Yes? 14
15
Mr. Wong: If the developer chooses to do a deeper affordability I don’t think that that would be 16
an inconsistency with state law. 17
18
Chair Martinez: Ok, thank you. Commissioner Tanaka, I’m sorry I interrupted you. 19
20
Commissioner Tanaka: No problem. So I also saw that there was a concession for mobile home 21
parks. And I was wondering is that really part of the state law to actually have, you have to give 22
a concession for mobile home parks? 23
24
Mr. Wong: I’m sorry. Could you repeat the question again? 25
26
Commissioner Tanaka: Oh sorry. Ok. I noticed that there was a mobile home park concessions 27
and I was wondering is that really part of the state law to have the mobile home park concession? 28
29
Ms. Silver: Yes, it is. And that’s for the development of a new mobile home park and the state 30
law specifically provides incentives for the development of mobile home park and also for the 31
development of childcare facilities. And that’s part of state Density Bonus law and so it’s 32
incorporated into our local (interrupted) 33
34
Commissioner Tanaka: So there’s no choice basically. Ok. And I guess the other thing is what 35
has to be on the menu of concessions? I mean do we just, can we just put one thing or do we 36
have to have all the things that we have listed? What’s the requirement? 37
38
Mr. Wong: Commissioner Tanaka there is no requirement about what can or cannot be on the 39
menu of concessions. These concessions that were chosen by staff have just, were concessions 40
that were approved in the past or have been requested in the past. But it’s up to the Planning and 41
Transportation Commission to evaluate which are worthy if you will to stay on the menu or not. 42
43
Commissioner Tanaka: Because I’m actually with the Chair on this a bit in terms of quantifying 44
the concessions. And I think things like setback and other restrictions are kind of important and I 45
would almost want to see if this is state mandated that we have to have all of these kind of things 46
like mobile home park concessions. I would almost, or requirements. I would almost feel, sorry, 47
Density Bonus. I would almost feel like we should have just one item as a concession, an easy 48
15
one, and then everything else we should go through the PTC or ARB or the respective 1
(interrupted) 2
3
Mr. Williams: I just have to indicate that I think we have some discretion to implement this law, 4
but this is a state law that is intended to provide incentives to create housing. And I think that if 5
we come and we create one incentive and particularly if this one incentive that isn’t even 6
meaningful or something like that. I mean I’ll leave it to the City Attorney to judge whether that 7
will kind of jeopardy that puts us in, but it certainly doesn’t look good and I can tell you that 8
HCD when they’re reviewing our Housing Element is going to thumb their nose and say you’re 9
not, we’ve asked you to provide incentives and concessions for encouraging housing and they 10
are not going to be impressed by that kind of, if we’re that limited. 11
12
So I think what we’ve done is we’ve said there’s a fairly broad range of concessions here, but for 13
the most part in the areas where it really we’re talking about extensive development, FAR and 14
height, they are pretty limited and if you want to exceed those you’re going through the Council 15
and Planning Commission to do so. And that otherwise there are limits on most of these other 16
ones as to how much you can get. So it’s much, much more restrictive than what we’ve been 17
operating under the last six or seven years. But I understand it and using it to be so restrictive 18
that it doesn’t do what state law intended it to do as a Planner I don’t think that’s an appropriate 19
way to go unless the one concession that you’re granting is a really significant concession. If 20
you’re going to tell everyone they can have 25 percent more FAR kind of by right that might be 21
different. 22
23
Commissioner Tanaka: Well I guess I was just trying to think about what’s right for Palo Alto 24
and if those concessions are right for that development the various bodies would approve those 25
concessions, but I guess to have them automatic and not have any oversight to me is the 26
concerning part especially if they’re not a quantifiable concessions. So that’s more of a point, 27
that’s why I kind of was keying off of what the Chair was saying about that because actually I 28
agree. I think it makes sense. So that’s my main concern about that. I don’t know if it’s 29
possible for maybe for there to be some oversight about these concessions if they are not as 30
quantifiable. 31
32
Chair Martinez: Can I follow that up? It seems like from what we’ve seen there’s been a sense 33
of entitlement to these concessions. I know that it’s subject to ARB and to Planning staff’s 34
recommendations, but it just seems that developers from what I’ve seen feel that they can go 35
higher, they can go wider, they can go more FAR. It’s, that’s hard to sort of overcome when it’s 36
not good land use. And I think Commissioner Tanaka is really echoing my sentiments that you 37
know how do we sort of do this? And I respect what the Planning Director said, that this is 38
really an important perception that we want to give out that we’re looking for ways to increase 39
affordable housing and it may come to a few units that with insignificant impact because it is 40
hard to build things like that here. But on the one hand I don’t want to see us pushing the 41
requirement for pro formas and more documentation and like that, but on the other hand I want 42
the planning process to be on good land use not on what somebody feels they have a right to do. 43
So I don’t know how we strike a balance on that. 44
45
Ms. Silver: Chair Martinez? 46
47
Chair Martinez: Yes, City Attorney. 48
49
16
Ms. Silver: So the concessions, the menu of concessions start on page 10 of course and I’m sort 1
of struggling with this issue of the Commission thinking that they are sort of open ended and not 2
quantifiable. And we did have a fair amount of discussion on this and other jurisdictions do have 3
a little more quantification and in fact Santa Monica’s requirements were more quantifiable, but 4
we thought that it would be better to have some discretion. So the limitation that we put for 5
instance on the first three, the setback requirements is that they should comply, that the setback 6
variation should comply with design guidelines. Now it certainly is just as appropriate to modify 7
that with some other type of limitation and maybe even have a quantifiable measure, but it’s not 8
certainly open ended by any means. 9
10
And then going to the next set, the height limit we’ve talked about that is quantified very 11
expressly and as is I think the FAR. So the last three are certainly more open ended; they don’t 12
have any qualifiers. So it, maybe you can give us some guidance on how to better limit those, 13
but I think it would be helpful to review what we do have and perhaps suggest areas that you 14
think need improvement because there certainly was some effort put into trying to limit the 15
concessions in a way that did fit Palo Alto. 16
17
Mr. Williams: And we could do that in terms of saying like a percentage of no more than 25 18
percent reduction in setback or 50 percent reduction or same thing in daylight plane or open 19
space areas or things like that if that was preferred. 20
21
Commissioner Tanaka: So I (interrupted) 22
23
Chair Martinez: Commissioner Tanaka, go on. 24
25
Commissioner Tanaka: Sorry. I think that would certainly be better. I guess, I mean like I take 26
number four in the height limit issue. I mean and this is probably not possible, but for instance I 27
know the limit is 50 feet, but could you directly build something next to an R1 or in a R1 that 28
would be 50 feet? If you put a lot of BMR units in. Right? I guess I worry about that because I 29
think the Chair is right that we need to make sure that Palo Alto has the right land use. And I 30
especially don’t want the ones below which have no restrictions whatsoever. I think those, that 31
doesn’t feel right to not have those very quantifiable for some sort of like, doesn’t mean you like 32
with reduction of daylight plane requires some you could cast a huge shadow over your 33
neighbor’s property. I don’t know. I mean it doesn’t seem right. 34
35
And also I was maybe saying that either we have a lot of oversight over this to make sure that 36
something bad doesn’t happen, or we really reduce it so it, reduce it to the ones that are truly 37
quantifiable or something like that or maybe a mix of that. And so that we don’t end up with 38
something that we have no control over. 39
40
Mr. Williams: So that’s, I would just say if that is the sense of the Commission I would suggest 41
that if you want to do that and we, you would send it back to us and we would try to come back 42
to you with more quantifiable information. 43
44
Chair Martinez: Let me just follow up and then I’ll get to you Commissioner. I would suggest 45
kind of the opposite, that we adopt it just as it is as a pilot program for a year and just see what 46
comes. If we get no takers then it’s not doing what we’re trying to achieve and that’s to get more 47
BMR units. If it really becomes more problematic then we need to go back to the drawing board. 48
My only concern is that you say you can have up to 50 feet somebody will come in with a 50 49
17
foot project and we’re not finessing it. We’re sort of at the maximum at the get go. And maybe 1
that’s an unwarranted assumption given the lands that are available for housing development. So 2
maybe it’s a possibility that we just see if it works. There are certainly good ideas there and they 3
all make sense. It’s not like we’re thinking that this is some crazy thing that Planning wants to 4
do. I think it all is reasonable. It’s targeted towards our RHNA goals. You know we’re not 5
getting enough affordable housing. All the reasons for doing this and to comply to state law, 6
which is important. I think it’s worthwhile but we don’t know the outcome. And perhaps it’s as 7
easy as just giving it a try and coming back in a year and saying we have nothing to report. 8
Nobody is doing it or we’ll see another Lytton Gateway project where it’s not exactly how we 9
thought it would take shape. I don’t know. Is that a possibility for us, or is that not a good 10
planning strategy? 11
12
Mr. Williams: I mean it’s always good to review new ordinances and such when they go into 13
effect so I think that’s perfectly reasonable to specify that we review it in a year and see where 14
you are. 15
16
Chair Martinez: Vice-Chair Michael. 17
18
Vice-Chair Michael: So as always I’m impressed by the conscientious attention to detail of my 19
colleagues on the Commission pouring over this in great detail. And I’ve been thinking pretty 20
intently on each and every comment that everybody has made and I’m not persuaded that we 21
have any collective wisdom beyond there is a state law, this would implement on a local level 22
what’s required, it’s consistent with what were objectives in adopting the Housing Element. It’s 23
not been an area of heavy activity in the past nor is it really expected to be an area of heavy 24
activity going forward although it’s definitely the intention of the City to encourage the 25
development of Below Market Rate housing as part of achieving our overall objectives. 26
27
I would support the idea from Chair Martinez to move the approval of the ordinance as drafted. 28
Not on a trial basis but just as any ordinance and any ordinance that’s adopted is subject to 29
further review and amendment. I would say that the interest that sometimes comes up, I know I 30
have an interest in relationship to the new incentives and the PC project at Lytton Gateway came 31
up without having any financial information presented to the Commission I found it completely 32
nonsensical to have that discussion about what were the benefits and what was the value and why 33
and was it reasonable. Here I think the answer and advice from Deputy Assistant City Attorney 34
Silver about the very narrow application of the pro forma information only to the extent that 35
concession is sought beyond that which is an already sort of generous and comprehensive menu 36
of possibilities something is a very rational and reasonable way to provide an additional 37
incentive. If it’s not sought then there’s no reason for anybody to submit or disclose pro forma 38
information that they otherwise don’t want to disclose. So I think that very narrow and 39
reasonable part of the ordinance should definitely not be struck nor should it be taken as an 40
expression of our philosophy as a Commission regarding our appetite for digesting financial 41
information which varies very much by each Commissioner. But I think we’re ready to entertain 42
a Motion. 43
44
Chair Martinez: Not quite yet. First Commissioner Alcheck and then… 45
46
Commissioner Alcheck: I was going to ask the exact same question. I was going to suggest a 47
trial. 48
49
18
Chair Martinez: Ok. Yes, Commissioner Keller. You have three minutes. 1
2
Commissioner Keller: Sure. I have trouble reading the childcare facility. I don’t understand 3
what it means. It says, “Additional Density Bonus that is an amount of square feet of residential 4
space that is equal to or greater than the square footage of the childcare facility.” Looks like one 5
of these questions on a SAT test that I can’t figure out what they mean. Can you tell me what 6
that means? Could you give me an example of what that means? Sorry, page 12 of the 7
ordinance. 8
9
Mr. Wong: Yeah, Commissioner Keller if you provide 10,000 square feet of childcare in a 10
residential development you get an additional 10,000 square feet. 11
12
Commissioner Keller: Ok I’m not sure that’s what it reads because it says, “An additional 13
Density Bonus that is the amount of the square foot of the residential space that is equal to or 14
greater than the square footage of the childcare facility.” So you’re saying something about 15
residential space and you’re comparing that to the childcare facility and the way I read that is 16
that’s the part that’s the excess of the childcare facility? I think it’s, I think you need to clarify 17
what you mean. If you really mean that you’re adding to the amount that you add the square 18
footage that is the amount of the square footage of childcare facility then say that. If that’s what 19
you mean it’s too many words to say that and it’s pretty ambiguous from my point of view. 20
21
Chair Martinez: Ok. Point well taken so they’ll work on it. 22
23
Commissioner Keller: I have a few suggestions on how to, with respect to what the Chair said 24
about quantifying the kind of concessions. I have some suggestions along those lines. So for 25
concession one, which is reduce side yard setback, I would suggest that that be reduce side yard 26
setback on one side and I would exclude not only design, consistent with design guidelines but 27
also exclude special setbacks. Because sometimes you’re on a corner and there’s a special 28
setback on that side. For example, Alma Street or Charleston there are special setbacks and I 29
would not want to go inside that. Similarly for two and three I would exclude special setbacks 30
for all three of those. So you can’t achieve a concession that gets you closer to the street than 31
when they have, when we have one of those special setbacks for that street. Because those are 32
standard, I’m not sure whether those are considered design guidelines, but they’re standard. And 33
I think they’re called, aren’t they called special setbacks? Am I correct in that? 34
35
Mr. Williams: Yes they are called special setbacks. 36
37
Commissioner Keller: And I would not want people exceeding that. You know, limiting on that. 38
With respect to number four, concession four I believe you talked about restricted affordable 39
units as opposed to affordable unit. So that’s an additional word that you talked about adding. 40
With respect to five I don’t have any comment on that per se. With respect to six, reduction of 41
daylight plane requirement on one side as opposed to in all directions, but on one side. So each 42
daylight plane you do is its own concession. With respect to seven I’d leave that alone. With 43
respect to eight I’d separate private and public space. So a reduction of private space is one 44
concession with reduction in public open space is a separate concession. So if you split those out 45
those are two separate concessions. I would delete nine because it’s already by right. So there’s 46
no reason to have it as a concession here. 47
48
19
I would put two other concessions however. So one more concession is the public open space is 1
now nine and ten is exceeding the 35 foot height limit adjacent to residential. So that is a 2
separate concession because we have a citywide rule that says if you’re adjacent to residential, 3
neighborhood residential zone you can’t exceed the 35 height limit and that should be its own 4
separate concession. 5
6
Mr. Williams: You mean separate from the height concession? 7
8
Commissioner Keller: Yes. 9
10
Mr. Williams: So it’s a concession to exceed 35 feet but then it’s a concession to exceed it under 11
the height provision is a separate concession? 12
13
Commissioner Keller: That’s right because you’re exceeding two different rules. So the issue is 14
that that’s actually a separate provision on the code so you have to use up two concessions when 15
you’re adjacent to residential if you’re going to exceed the height limit there. Ok? So think 16
about that. 17
18
In addition this, these are by right concessions as I understand them with the exception of the 19
discretionary one where they, where there’s a dispute on whether they should have a pro forma. 20
However, if they’re going to use a discretionary process then they should use the discretionary 21
process not the by right process. Combining the two is problematic. So I would say that if you 22
used these, if you used this ordinance that this ordinance does not apply when use a PC, a PTOD, 23
or a variance or a Design Enhancement Exception (DEE). If you do any of those, which are 24
extra things you get then use those and not this. You don’t get to double dip. 25
26
Finally, what was mentioned by one member of the public is the issue of rental conversion to 27
condo. The problem is that we need to make sure that our rental conversion to condo ordinance 28
is consistent with this. And part of the consistency that needs to happen is that the BMR units 29
that are required in the conversion to condo have to take into account the ones that they achieve 30
for the, that they got from the concessions for the rental units. So in addition to the 15 percent 31
units that you have to have BMR for the conversion to condo you have to add to that all the units 32
they got, all the units that they offered for getting the concessions for the rental housing. So that 33
needs to be added to it. Ok? 34
35
I, the ordinance is I assume clear, but I’m not sure of this whether the ordinance is clear on 36
whether there are concessions for fewer than five units. It talks about the ordinance being 37
effective for more than five units. But it could probably say that it doesn’t, that no concessions 38
are allowed for under five units and it’s, I think that being explicit makes sense. 39
40
And I would remove tandem parking from 18.15.050 (A). I don’t see why we should provide by 41
right tandem parking. Essentially what that would do is it would provide tandem parking an 42
entire complex and tandem parking is problematic. And I would actually rather than passing the 43
ordinance as is I would actually prefer passing the ordinance on with these changes if people 44
would like to discuss them. 45
46
Chair Martinez: Let me as staff. Would you prefer that you come back with some revisions? 47
This is a lot of items. Or do you want us to try to hammer out a Motion with a lot of ugly 48
amendments to it? 49
20
1
Mr. Williams: No, I would say that if a majority of you feel like you want us to address those 2
amendments that we should just take in what’s been suggested and come back to you with 3
something that’s cleaner. 4
5
Chair Martinez: I don’t want to suggest though that everything that we said has to be revised. 6
7
Mr. Williams: Right. 8
9
Chair Martinez: For example there may be a good reason for including tandem parking. I don’t 10
know. Maybe tandem parking isn’t part of the parking cap it’s just tandem parking as it 11
normally is. So I would like to see you come back but on those items on this laundry list that 12
you don’t choose to incorporate just provide a reason why that you choose a different strategy on 13
that. 14
15
Commissioner Keller: Chair? 16
17
Chair Martinez: Yeah, Commissioner Keller. 18
19
Commissioner Keller: Thank you. There’s one other thing that I left off which was brought up 20
by several of the other Commissioners and I think useful in this. And that is that concessions 21
one, two, three, and five would not be eligible. Sorry, one, two, three, and four. Actually I’m 22
not sure exactly which ones of them would not be eligible, but would not be eligible to be 23
applied adjacent to R1, R2 or RMD. So in a situation where you have R1, R2 or RMD then you 24
can’t apply the daylight plane, you can’t apply the setback on the side that’s adjacent to that. 25
You can apply on the side that’s not adjacent to that, but to avoid adjacency issues on the side 26
that’s adjacent to R1, R2 or RMD you can’t do the setback or daylight plane or that kind of stuff. 27
So I’m not sure exactly which ones apply, but certainly we need to think about restricting it in 28
that way. Thank you. 29
30
Chair Martinez: Staff are we under a time constraint here? Does this have to get done by 31
February the 6th or some number? 32
33
Mr. Williams: No. 34
35
Chair Martinez: So, I know. I read 2005 and so we’re on schedule. Ok. Just so that we can 36
continue this. Commissioner Alcheck. 37
38
Commissioner Alcheck: I would like to, if it comes back and includes this pro forma piece, 39
which I’m encouraging it doesn’t I would like to know what the staff feels is the purpose and 40
whether or not the staff feels like that’s necessary for them to be, for this evaluation. Because I 41
don’t think that the report actually provides that explanation. So that’s my last comment. 42
43
Chair Martinez: Commissioner Tanaka. 44
45
Commissioner Tanaka: So I just want to comment on the concessions because I think it actually 46
makes sense for it to come back to us because it’s not urgent, it’s not frequently used, and in 47
while I in general I like the idea of trials if we have a big mistake I think it could also be a 48
problem. But can staff as they go through this try to quantify like reduced side yard setback? Is 49
21
that reduced mean get rid of it completely? Does it mean reduce it by one foot? I mean I guess 1
that’s the kind of thing that I would like to know. What does reduce mean? Reduce by how 2
much? Because if it’s just a foot it’s probably not a big deal, but if it’s the whole thing is gone 3
that could be a big deal. So maybe if that could be, anywhere you can if you have some sort of 4
quantification of that I think that would be a good idea. 5
6
And then one thing about height, I just feel that’s kind of a hot topic for the community and 7
maybe that’s kind of the height exception you really should hit the Planning Commission or City 8
Council. I don’t know if it should be by right. So that’s another thing. That’s my two cents. 9
I’m not sure other Commissioners agree with that, but I think height’s a really hot topic and the 10
other ones maybe are ok to have sort of quantification of, but height and automatic 50 foot seems 11
a bit much. That’s it. Thank you. 12
13
Chair Martinez: Seeing no other hands let’s end this item for tonight. Thank you very much. 14
Thank you (interrupted) 15
16
Mr. Williams: Did you close the public hearing? 17
18
Chair Martinez: Oh. I will. 19
20
Mr. Williams: I just want to make sure because we will have to notice it again as a public 21
hearing. 22
23
Chair Martinez: I’m sorry do (interrupted) 24
25
Mr. Williams: Should we close it or not? Does it matter? 26
27
Chair Martinez: Yes? 28
29
Ms. Silver: No, we should keep it open. 30
31
Mr. Williams: But if we don’t know what date it’s coming back then we have to notice it. 32
33
Chair Martinez: That’s a good idea. We’re going to do that. Commissioner Keller. 34
35
MOTION 36
37
Commissioner Keller: May I make a Motion to continue this item to a date uncertain giving staff 38
an opportunity to respond to our comments. 39
40
SECOND AND VOTE 41
42
Chair Martinez: Ok there’s a Motion and we have a second? Seconded by Commissioner 43
Tanaka. Those in favor, do you want to comment on that? No. Those in favor of the Motion 44
say aye (Aye). Motion passes unanimously with Commissioner Panelli absent and one empty 45
chair. I want to close the public hearing and thank you all for this. I think it will be better. 46
47
MOTION PASSED (5-0-1-1, Commissioner Panelli absent and one empty chair) 48
49