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Friday, February 17, 2012

Emeryville's New Planning Commissioner

New Professionalism On The Planning Commission?

Opinion/ News Analysis
Emeryville's Planning Commission is well known in the Bay Area as being a friend to developers.  The record is one of business getting more than a fair shake, often at the expense of residents.  This has not been an accident; the city council majority has shown it prefers commissioners to be overtly pro-developer and would-be commissioners who thus find themselves in the good graces of the council majority are the ones that have gotten the appointment.

The February 7th city council selection of Emeryville resident Sean Moss to the Planning Commission seems to be a deviation from the norm.  Mr Moss, a city planning expert, has said that it is imperative for commissioners that there be objective and transparent processes that rely on findings of fact.  A stickler for detail, Mr Moss will likely be a commissioner that insists that the t's are crossed and the i's are dotted. 

Some council members have made public their appreciation for Mr Moss' likely high level of professionalism on the Planning Commission.  But if residents believe their interests will be placed above developer's interests by Planning Commissioner Moss, they may be in for a disappointment.

An E-Mail Record
The Internet, it has been said, never forgets.  And Planning Commissioner Sean Moss has left a written record on his ideas about the role of city planning in a series of public e-mails written in 2009.  In these e-mails, Mr Moss offered musings on the proper role of the Planning Commission with regards to two contentious development proposals at the time: a convenience 'mini-mart' store proposed for the Triangle neighborhood and Wareham Development's Transit Center on Horton Street.  These are musings that the council majority may wish that Mr Moss had not made public in light of their selection of him as Emeryville's newest Planning Commissioner but they're matters of public record.  When viewed discreetly against Mr Moss' normally trenchant planning knowledge, the analysis in these e-mails adds a new dimension to Emeryville's newest Planning Commissioner.   

The Triangle Mini-Mart Controversy 
In 2009 the Planning Commission approved an application to locate a 'mini-mart' convenience store in the Triangle neighborhood.  The decision was reversed by the city council in a highly charged appeal by Triangle neighbors who packed the council chambers to the rafters.
The store was advertised to sell vegetables and convenience items but the residents instead saw a clandestine ghetto liquor store of the type proliferating in West Oakland.  Residents didn't believe the City Hall staff report that claimed liquor sales would not be permitted at the proposed Emeryville store.  And well they shouldn't have for the staff report was simply wrong.  

Your friendly neighborhood corner store:
wilted lettuce, malt liquor, car fresheners
The Triangle appellants had done some sleuthing and found the owner of the proposed mini-mart was the same person that owned several liquor store mini-marts in Oakland; a man guilty of countless infractions perpetrated by his mini-marts that the police had to frequently be summoned to.  West Oakland neighbors were being victimized by patrons of his stores.  The owner had been hauled up before the Oakland city council and at least one of his mini-marts had been shut down.

Who's Misinformed?  
In response to the roiling controversy, Mr Moss noted that past applicant behavior is no basis to inform government planning bodies including the Planning Commission.  Further, he looked to the staff report that clearly stated "no alcohol would be sold."  Mr Moss also noted in a June 24th e-mail that, "This is exactly the kind of mixed-use development we need around here" adding, "I'm surprised it even needs a use permit".  Regarding alcohol sales at the mini-mart, Mr Moss was adamant, "The conditions that were approved contained a prohibition on alcohol sales" he maintained. 
So according to now Commissioner Moss, the rabble that descended on City Hall in 2009 was misinformed but in fact, it was Mr Moss himself that was misinformed.

Honey, can you pick up a forty 
from Emeryville's new mini-mart 
on your way home?

No Alcohol?  Really?
Any Planning Commissioner should not look to a staff report to make final a decision since a staff report does not carry legal weight.  It is the Conditions of Approval that dictates the parameters of a development and Mr Moss was mistaken about alcohol sales in that document.  The Conditions of Approval for the Triangle neighborhood mini-mart said nothing about alcohol sales and the applicant could have started selling MD 20-20 and "forties" by simply applying for a liquor licence after opening the store.  
Emeryville senior planner Miroo Desai said that the store was not prohibited from selling liquor, contrary to the staff report.  Ms Desai was unequivocal in this, "The conditions of Approval for the Triangle mini-mart do not state that alcohol sales are prohibited" she definitively told the Tattler recently.
At the Tattler, we're left wondering; why is it that the Triangle residents, certainly not planning experts themselves, uncovered the fact that the staff report on liquor sales was bunk but Mr Moss couldn't?  Was it a question of a lack of diligence or something else?
In his own defence, Mr Moss now states that in addition to the staff report, the minutes of the Planning Commission meeting show that the commissioners believed alcohol sales would not be permitted,  "I believe what the official adapted Planning Commission minutes state and there is a discrepancy between the two [the minutes and the Conditions of Approval] and with only these two accurate primary sources I can't say which is correct."

Intransigence On The Transit Center
Mr Moss weighed in on Wareham Development's Transit Center proposal in the 2009 e-mails.  He concluded that the Planning Commission may not consider Wareham's bad record on building low quality development at a condo development on Horton Street called The Terraces, built two years before.  There, leaking windows lead to a toxic black mold problem and brought a massive lawsuit from the home owners association.   Mr  Moss said the people of Emeryville's hands were tied however, we have to consider every project on its merits solely, said he.  Planning Commissioners may not let any applicant's past bad behavior inform any new proposal before them. The law is clear on this he maintained.  
Black Mold in new construction:
  Can City Hall protect us?
Or are our hands tied?

Yet in the real world, government officials both elected and appointed, routinely make judgement calls about the impacts development would have on the community.  It's a critical tool to stop marginally acceptable but nevertheless bad projects from moving forward.  Mr Moss effectively says Planning Commissioners (and council members) are automatons; narrowly deciding about projects from a State mandated checklist.  This simplistic and naive view makes disagreement between government officials impossible and negates the obvious conflict between the two decision making bodies.  The Triangle mini-mart itself, approved by the Planning Commission and rejected by the council, is proof that the merits of a project are not decided by a check list only.

And the check list that Mr Moss said is sacrosanct in the 2009 e-mails is not even complete: the section on visual aesthetics alone contains large holes and is not correlated to any aesthetic cannon.  Nor does the check list concern itself with any intangibles such as the psychology of space a proposed development delivers.  This condition has shown itself to be extremely valuable to creating friendly urban spaces even though it's hard to precisely quantify.  It would take the judgement of a sensitive human being, not operating off a check list to make the proper call in that case.

In a turn around from 2009, now Planning Commissioner Moss states it's not so black and white; he told the Tattler, "There are things the Planning Commission can legally consider and things they can't but that doesn't mean they can only consider facts.  There's room and an important place in the process for discretion and that's why all decisions aren't unanimous.  Planning commissioners aren't technocrats.  As a planning commissioner your own opinion is only a part of the consideration of decision making.  Opinions of the community also have weight and all points of view need to be taken into account when making a decision." 

New Culture At City Hall: Professionalism
The selection of Mr Moss, a city planner by trade, to be Emeryville's newest Planning Commissioner is part of a continuing and conscious effort to raise the level of professionalism at City Hall.  Gone it would seem, are the days when abject pro-developer ideologues were routinely appointed to the Planning Commission.  Over the last couple of years there's been a higher bar raised netting a higher level of professionalism on the Planning Commission and on other politically appointed bodies in Emeryville.  The simple ideologues may be out but the need for being politically connected seems to be still in place
and unfortunately a higher level of professionalism doesn't necessarily mean the routing out of dogmatic pro-developer culture there; at the Planning Commission and elsewhere at City Hall, it's bound to go more covert.  We're wondering if the idea of presenting a public face of seeming professionals, City Hall is merely attempting to increase it's street credibility.

We'll watch the decisions made by Planning Commissioner Moss and his colleagues over coming the years; will the new higher level of professionalism net a more resident friendly city as one would expect it to?  We like to think Mr Moss' 2009 ramblings are nothing so much as intellectual musings without clear policy nexus.
However recent statements from Mr Moss are worrysome.  Asked about the need for more family friendly housing he recently told members of Residents United for a Livable Emeryville (RULE) that there's more family friendly housing then there are families in Emeryville, noting there are single people living in two-bedroom units in his building.
In addition he equivocated when asked if he would place residents interests above developers, "yes and no" he told the Tattler.

Mr Moss has shown himself to be articulate, with a firm grasp on city planning precepts and we hope he'll be less rigid and more supportive of resident's interests in his role of Planning Commissioners than the 2009 e-mails (and some recent comments)  would suggest.  We hope Planning Commissioner Moss will be a force for real improvement for the residents of Emeryville, not as the new breed of Emeryville "professionals".

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