City Staff Fails at Sherwin Williams Project to Provide Required Retail Agreement

City Fails to Get Sherwin Williams Retail Agreement in Writing

City Council Comes Up as Empty as 
All the Storefronts in Town

Senior planning staff at City Hall revealed last week the retail component of the Sherwin Williams project mixed use residential development in Emeryville's Park Avenue neighborhood has no written protections that would keep storefronts from sitting perpetually empty despite the City Council expressly garnering a guarantee against that made in 2016.  The Council also directed the staff to protect against the developer renting to chain stores, another condition of approval from November 1st, 2016 that was ignored by the staff and now impossible to enforce.  Time has run out for Emeryville to ensure its retail plan at Sherwin Williams is brought forward; the developer cannot at this point be held to providing for non-formula retail at the site or providing against letting the stores sit empty as was established by unanimous Council vote.  "There are no such protections for either condition" a staff member told the Tattler, "nothing is in writing".

Councilman Scott Donahue
He told voters in October 2014:
"We should require developers to structure
rental agreements that provide for subsidies
and other support to help smaller,
locally serving businesses to succeed."

 

And so goes the Sherwin Williams project down the same path as virtually every other development with retail over the last 25 years; vague promises made by the developers to providing wonderful neighborhood serving non-formula stores in a timely manner, a paradigm that has spectacularly failed.  City Councilman Scott Donahue  summed it up best at the November 1st 2016 meeting, "It has been difficult for our city he said, The chains have more money, but we have a desire for retail expressed by our community, he added.

The loss of a written retail agreement so adamantly expressed by the Council is especially egregious for the Sherwin Williams project, watched so closely as it has been by community activists including by the Park Avenue Resident Committee (PARC).  Indeed, PARC's entire raison d'être is to make sure this kind of thing doesn't happen, specifically at Sherwin Williams.  Emeryville residents would be excused thinking if we can't get a retail agreement that addresses these issues here, we likely can't get one anywhere.

It's been a problem for years here.  Many residential developers in town build associated retail as required by the City but they aren't interested in the commercial rental business and so because the City has never required them to fulfill their retail assurances in writing, the developers simply let the storefronts go empty.  The retail component is chalked up as a cost of doing business by these developers.  Other developers, seeking more traditional profit maximization, will rent their retail spaces out but at the highest rate the rental market will bear.  That generally prices out the kind of retail the residents want, leaving only chain stores.
Amid the exigency of this closed loop paradigm, Councilman Donahue hit upon a new idea to force the developer of Sherwin Williams to underwrite the retail by written agreement with the City, an expanded cost of doing business that actually would deliver, but he and his colleagues failed to follow through, trusting the staff to do as the Council directed.

Councilwoman Dianne Martinez
"Another thing we're hearing from the community 
is the fear of the retail space going empty. 
The landlord might prefer a write-off 
than lowering the rent"
She directed the staff to get it in writing.

The idea that the developers themselves need to underwrite the cost of providing locally serving, non-formula retail has been kicking around in Emeryville for many years but the previous Council saw adding such constraints as anathema to the pro-developer coda engrained at City Hall.  Responding to citizen complaints in 2003, a previous Council attempted to lure better retail instead with a taxpayer subsidy to businesses at the 'Promenade' development, albeit with mixed results.  A coffee shop that received taxpayer subsidies at the San Pablo Avenue Promenade strip mall development promptly went out of business as did a small restaurant but Arizmendi Bakery, also the recipient of start-up help from City Hall has been a success.
The current City Council has so far tried a different approach, attempting to lure the kind of retail the citizens want with a Byzantine system of 'bonus points', an approach that up until now hasn't met with success.  With the failure of the Council to follow up on the staff's directive at Sherwin Williams, the new idea of forcing the developer to underwrite the locally serving retail is an idea that has still not been put into practice in Emeryville.

A viewing of the short video (below) from the November 2016 meeting shows how stark is the recalcitrance of Emeryville's city staff.  The two Council members whom had promised voters to deliver non-formula locally serving retail when they first sought election, Scott Donahue and Dianne Martinez, were adamant.  Councilman Donahue told the staff the developer represented by Kevin Ma of Lenar Development they could lower the rent for the retail if he (Mr Ma) can't find "non-chain neighborhood serving" retail at the market rate and that the rent should go down until it is rented out to the desired tenant.  "We can come up with something simple that they (Lenar) can agree to tonight that would solve this problem and make this a better community." Mr Donahue told the staff.  "I'm all ears to cutting a deal tonight about this" he added.

Emeryville Planning Director Charlie Bryant
Handpicked by former City Councilwoman
Nora Davis, Charlie did not require Lenar to legally
agree to the Council's requirements.  Lenar is free
to leave the Sherwin Williams retail empty
or to rent to Burger King.

Councilwoman Martinez agreed and expressed concern that the retail storefronts not sit empty as so many others have done over the years in Emeryville, "Another thing we're hearing from the community is the fear of the retail space going empty. The landlord might prefer a write-off than lowering the rent"  Ms Martinez said.
The developer however expressed concern that the development process not be held up for anything, "The biggest problem tonight is from a timing standpoint." Mr Ma told the five Council members  'If we would make any amendments to requiring the regulating of the retail tonight, that really throws us off our timeline...  We've gotten to a razor thin timeline with the current approval schedule".  He assured the Council "We will work with the Planning Commission to bring these commitments..." to which Councilman Donahue responded, "I'm satisfied we can say 'no' to your project if you don't come back to us with something definitive in writing that will deliver just what we're talking about."

And then the Emeryville City Council dropped the ball; they never checked on the staff about putting their directives in writing, leaving the citizens with nothing but the same assurances they've always gotten from developers over the last two decades about all the wonderful retail to be coming.  The staff for their part, refused to comment on why they served the developer rather than the City Council they are paid to, "It is what it is" one staffer tersely told the Tattler last week after affirming that the Sherwin Williams developer could rent to any chain store they want to at their project or to not rent out the future retail spaces at all if that serves their pleasure.  It's all up to the developer's whims now.


The November 2016 smoking gun video that 
reveals the Emeryville staff to be recalcitrant.  

Tree Photo Tells the Story

What Can We Learn From the Photo Below?

With apologies to William Blake or Robert Frost et al, sometimes a single picture can do a better job telling a story than words can...the old 'thousand words' aphorism.  Such is the case with Emeryville's Sherwin Williams street trees controversy.  The Emeryville City Hall staff, seeking to assist the out of town developer Lennar Urban who wants to cut down all our trees abutting their proposed project and seeking to 'unify the streetscape', has gone to absurd, some would say unethical lengths to get the trees cut down.  Consider the testimony the staff provided to the Planning Commission on March 15th.  The Commission might as well vote to kill the trees and plant new lollipop replacements because the trees in question are unhealthy anyway the staff said.
Where the Planning Commission saw the sickly and dying trees the staff wanted them to (culminating in a unanimous vote to cut them all down), the City Council instead agreed with the City's paid arborist that the trees in question are generally healthy.
The ultimate vote is pending following a new argument presented to the Council by a chastened and cloistered staff at some unannounced later date, perhaps in September.

The story can be followed in (verbose) detail HERE & HERE.

Meanwhile, take a gander at the photo below and use your own judgement.  The tree on the left is called "unhealthy" by our City staff and worthy of nothing more than a chainsaw while the tree on the right is "healthy" and is OK to continue to live.  These public policy makers have determined one is desirable and the other is undesirable.  What do you think?

What can we learn from the photo about who's interests matter at Emeryville City Hall?

Looking Down the Middle of Horton Street 
At Emeryville City Hall, the tree on the left is
considered "unhealthy" while the tree on the right is
considered "healthy".
A developer with a chain saw awaits our decision about
these, our street trees.
Who's interests are being listened to at City Hall? 

Emeryville's Feckless Noise Ordinance

Second in a Series:
How's Emeryville Doing?

Residents Not Helped by
Noise Ordinance

Staff Can't Imagine an Ordinance That
Would Constrain the Business Community  

Introducing a new Tattler feature, How's Emeryville Doing?  Beginning with our story on the Urban Forestry Ordinance, we're investigating Emeryville's codes, laws and planning edicts to determine how effective they are.  Should we keep them as they are or amend some of these guiding mandates?  Or should we get rid of them?  Look to How's Emeryville Doing to cut through the artifice built up by those who stand to benefit by inaction and ineffectiveness in our governing documents.

News Analysis
Emeryville's City Hall staff recently recommended to the City Council a developer's Noise Ordinance waiver request be denied, marking the first time in the eight year history of the ordinance the staff has ruled in favor of the citizens interests over the business sector.  May 1st is a red letter date in Emeryville history; the date the Council, accepting a staff request, told a developer NO to a Noise Ordinance waiver request, specifically in this case the developer of the Marketplace project, who requested permission to work every Saturday over the next year.

An interview with staff didn't lead to any more understanding of the extraordinary May 1st denial; they simply referred us to their Report to the Council.  The report says the denial recommendation was based on the developer's insistence the City look after his bottom line by helping to speed up the work schedule.  However that same reason has been offered up before by other developers seeking waivers and that has never been cited as reason enough for staff to recommend denial of a waiver request.  In fact, the developer of an earlier phase of this same project asked for and received a waiver based on the same reason and the Council, by default, ruled that desires of developers to speed up their projects now qualifies as reason enough to grant waivers.

All this leads us to question if reason is even at play at City Hall with regard to the Noise Ordinance or is it just capriciousness instead?  Perhaps the staff finally became embarrassed by all the negative Tattler stories.  It should be noted on the four occasions since 2010 when the City Council has denied waivers, the meetings were attended by a vocal contingent of angry neighbors.

Regardless, the May 1st denial begs the question: how effective is Emeryville's Noise Ordinance?  How's Emeryville doing?  A Tattler Public Records Request reveals a very weak law that defers to the interests of developers over residents.

Of 25 total requests for waivers to the Noise Ordinance since 2010-
2 were withdrawn by the applicant
1 was recommended to be denied by the staff
4 were denied by the Council (includes the May 1st denial)
19 were approved

Rare as an Ivory-Billed Woodpecker 
A denial to a developer for a Noise Ordinance waiver:
The rarest of all City Hall documents