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Saturday, October 5, 2019

Twice Burned 'Maz' Project Developer Burned by Council: Noise Ordinance Waiver Denied

Historic Vote:
City Council Majority Says 'NO' to Developer's Noise Ordinance Waiver Request

'Maz' Developer Used Past Fires as Excuse to Work Weekends
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Neighbors Told to Give Up Their Quiet Weekends 
Because Developer Wants to Save Money on Security

The Emeryville City Council made history Tuesday night when they voted to deny a noise ordinance waiver request, only the fifth such denial in more than 15 years, after the developer applicant offered an unorthodox argument that his noisy construction project needs to be completed quickly to make for a smaller window of opportunity for arsonists to set fires there.  The peculiar offering failed to convince the Council majority (3-2 Medina, Martinez dissenting) to ask residential neighbors around the apartment project at 3800 San Pablo Avenue, to give up their peace and quiet weekends from now until April 2020, the duration of the request.

Developers commonly ask for waivers to Emeryville’s noise ordinance based on the weather or other ‘unforeseen' complications but the fire vulnerability angle was the first such waiver request made by any applicant.  Since every construction project is vulnerable to fire until suppressive water sprinkler systems can be installed, a waiver granted by the Council on Tuesday would have set a sweeping precedent, potentially nullifying the whole ordinance.

Council Members Dianne Martinez & Ally Medina
Together they feel t
he public has no expectancy of
weekend peace and quiet in Emeryville...
not if a developer says he wants to
save money on security.
The City staff, continuing their near perfect record of recommending waivers, told the Council it is prudent for them to make the residents suffer through seven day per week construction noise until the project’s completion.  Planning Director Charlie Bryant said the Council should grant the waiver to the developer carte blanche, calling it “reasonable” because, “…the site was burned twice” in 2016 and 2017.

At least four City Council members seemed to agree, at least initially.  Council member John Bauters, who ultimately voted NO, indicated he thought the request was tough to turn down, “This is a hard one for me” he said.

Councilman Scott Donahue indicated he thought the fire vulnerability excuse was a good one but the modular construction technique the developer is using means wood framing members will arrive at the site with fire retardant already applied and consequently, neighbors should be able to expect weekend peace and quiet he said.  Councilwoman Dianne Martinez was less circumspect, “I don’t love weekend work but I’m inclined to grant the waiver” she said after she told the developer she felt his pain; the fires at the project were “very bad” she added. 
Mayor Ally Medina, acknowledging that it wasn’t up to the City of Emeryville to ask that the developer provide better security in the future, tried to strike a compromise.  She moved that the construction noise be limited to Saturdays.  Mr Bauters however said that condition was “not specific enough of a request for me to grant approval at this time” as he joined Mr Donahue and Vice Mayor Christian Patz in their historic noise ordinance waiver NO vote.
Council Member John Bauters
He struggled with the decision:
should developers be asked to spend
more money on security to help
neighbors have quiet weekends?
"This is a hard one for me" he said.

The developer’s representatives Tuesday night happily took up their narrative that adding security at their site isn’t a thing for them and Emeryville residents should instead take up the slack and do them a kindness by allowing seven day a week work.
Regardless of their 3-2 vote, notably, no Council members or the staff suggested the developer spend more money on security to protect against possible future arsonists, instead letting the developer’s narrative stand.

Emeryville's noise ordinance, enacted in 2003, has been seen as an irritation for developers who are rarely required to abide by it but usually have been required to provide a reason why they shouldn't have to follow it.  Many developers have shown their displeasure in having to appear before the City Council to go through the sometimes humiliating spectacle of presenting a plausible explanation for why they shouldn't be constrained.
While most developers settle on using rain delays as a reason to ask for a waiver, more brazen reasons have been stated such as "complicated nature of the work" or that the public, expecting quiet weekends will get them sooner if the developer can "finish faster".  Remarkably, that developer, City Center Partners at the Public Market, got caught when they couldn't even abide by their waiver, taunting the Council by starting their granted Saturday work before the agreed to time.  After twice being warned, the Council finally revoked the waiver in an unprecedented sanction in 2017.
In an even more audacious request, the developer of the Transit Center, Wareham Development, successfully trotted out the most unabashed reason we've heard a couple of years ago; "because we really want it".  No other developer has used the 'we really want it' excuse for a waiver request since.
The City Council itself got into the act last April one upping Wareham when they granted a developer's waiver request inexplicably by waiving the waiver request, saving the developer and the citizens the bother of conducting a public hearing at all.

The Maz project, also known as "The Intersection" with its unit mix heavily skewed towards studio and one bedroom apartments together with zero affordability, has been controversial since it was approved by a divided Council in 2013.  In a 2013 opinion piece, the Tattler’s editor Brian Donahue famously called the project a “men’s dorm” owing to its anti-family unit mix attractive to techies, drawing an accusation of felony arson in the two fires by Rob Arias, the editor of Emeryville’s business friendly blog, the E’Ville Eye.