Wareham Development Seeks $3/4 Million Tax Rebate

Wareham Now Wants Retroactive Tax Credit After Transit Center Approval

Wareham Development Corporation, among developers, Emeryville's largest receiver of government largess, is seeking a retroactive rebate and credit of almost $729,000 from the City's developer impact fee schedule for Horton Street's Transit Center because four bus bays associated with the office tower will assist "public transportation facilities", something the developer claims the City agreed to, an argument that will be presented Tuesday.  A reading of the municipal code however negates Wareham's claim, a fact that will be presented by City Hall staff when the City Council considers whether to grant Wareham the tax relief Tuesday night at their regularly scheduled meeting.

The Transit Center
The 165' tall building will have four bus bays 
(hence 'transit').  The City Council overturned the 
Planning Commission who rejected the 
Transit Center because it has 
"too little public benefit". 

The Transit Center, a beleaguered and controversial project, features a 165' tall office building with 250,000 square feet of floor area and (together with it's parking structure across the street) will have almost 900 parking spaces.  It required special density bonuses to be granted to build the main tower over 100', leaving the developer's rebate in jeopardy the City says.   At issue is language in the municipal code that would preclude the City from giving the rebate to Wareham stating, 'no credit shall be provided against impact fees otherwise owed if an applicant has received a development bonus in accordance with the Planning Regulations for providing the specific facility'.

Wareham CEO Rich Robbins
Emeryville's most connected developer.
Not satisfied with all he's gotten from Emeryville 
up until now, he's been lobbying the City Council 
trying to get them to give him another gift of cash
Tuesday at the taxpayers expense. 

A vote by the City Council in Wareham's favor would rack up one more approbation from City Hall for the Transit Center, adding to the well documented litany of favors already showered upon Rich Robbins, Wareham's politically connected CEO.

The Transit Center project has already received indulgences from City Hall in the form of tax relief and forgiveness from codified internal City Hall adverse constraints; the General Plan was amended to exclude the 55 foot height limit at the future Transit Center site to allow for taller buildings there and the City Council put taxpayers on the hook for financing the project with public money by way of unprecedented tax increment financing, a deal that lets Wareham avoid taxes for 12 years that normally that would be paid to City Hall if the developer were to finance the project with his own money.  Additionally, Mr Robbins announced after approval was given for the project he would not remove all the toxic soil from the project site, regardless of former claims to the contrary; the main reason given for the project by former City Councilwoman Nora Davis and her colleagues.  Unabashedly, concerns over the remaining toxic soil on the site triggered Mr Robbins to get the City Council to agree to a 'no lawsuit clause', making it impossible to make the people of Emeryville whole, should a future problem occur.

Mr Robbins, a perennially favored developer with many friends on the former City Council, for years railed against the Horton Street Bike Boulevard, worried the 1800 car trips per day his project will put onto the boulevard would tend to make the City Council, with the public watching, skittish about approval for the project. However the Council has opted instead to ignore the 3000 vehicle trip per day constraints called out in Emeryville's Bike Plan for the street, letting Mr Robbins put all the extra traffic on the street unimpeded, regardless of its bike boulevard status.  Earlier, Mr Robbins incredulously maintained not one project generated car would use Overland Street (part of the Horton Street Bike Boulevard).  The 'not one car' claim was codified into an environmental document prepared for the project called a Mitigated Negative Declaration and was later found to be fraudulent. The claim drew strong condemnation from Jim Martin, the former Chair of the Planning Commission.
Sensing the irony of the glut of traffic generated by the ostensible bus/train project, former City Councilman Ken Bukowski was moved to publicly proclaim the Transit Center more accurately be called the "Automobile Center".  The Planning Commission rejected the Transit Center and then later again, rejected the Transit Center a second time, calling the project 'too short on public benefit', a cause former City Councilwomen Jennifer West and Jac Asher took up in their dissenting votes against the project on the Council.

'Transit' Center Vote: City Council Overturns Planning Commission Decision

Council Majority: "Toxic Waste Dump" Left Under 'Transit' Center No Problem

In a 3-2 vote, the City Council voted to overturn the Planning Commission and approve the controversial 'Transit' Center development on Horton Street Tuesday night.  The vote culminated a decade long process for favored Emeryville developer Wareham Development to leverage millions of dollars in subsidies from the taxpayers of Emeryville to forward a project the Planning Commission recently said was "too low in public benefit" to accept.  The project will leave significant levels of highly toxic soil under the proposed building, a change from a previous iteration of the project that proposed removing virtually all the toxic soil.

The vote to approve, (Asher & West dissenting) saw the same Council members, that had previously assured the public that the proposed project would clean up a site contaminated with toxins, suddenly reverse themselves and now sheepishly accept an undetermined amount of toxins left under the new 'Transit' Center tower.  The site, previously used by Westinghouse Corporation, has toxins that were left behind in the soil including PCBs, VOCs and other nasties.  City staff referring Tuesday night to the contamination as a "toxic waste dump" recommended approval of the project regardless of the fact that the site will remain a toxic waste dump with "elevated concentrations of PCBs and other toxins that will remain" according to Earl James, a toxic waste researcher retained by the former Emeryville  Redevelopment Agency.  Mr James testified that Wareham will only remove about seven feet of soil on the site, forever leaving "high [toxin] concentrations below the remediation level."

The 'Transit' Center will provide four bus bays to complete its transit promise and will provide some 850 parking spaces for cars using the Horton Street Bike Boulevard, a street that according to the Emeryville General Plan may not carry more than 3000 vehicle trips per day, a number already in gross excess on the street.  The large number of parking spaces proposed drew ire from former City Councilman Ken Bukowski who called the project more rightly an "automotive center" than a transit center.

Wareham secured unprecedented City funded tax increment financing in addition to the approximately  $4 million in City subsidies it will receive.  The tax increment financing means Emeryville will receive no taxes for the project for 12 years, something Mayor Jac Asher said made her "deeply ambilvolent" about the project.  She added, "With the amount of money and time we've invested, we should have a much better project".

Council member Kurt Brinkman excitedly told the audience this project should be approved because it completes Wareham's "vision" for the site.  "Wareham makes things happen" Mr Brinkman said.  Councilwoman Nora Davis expressed displeasure that "there will be residuals [toxins]" but she found solace in the fact that the existing asphalt cap meant to entomb the toxins will be replaced, "the building will be a hefty cap" she said.

  For its part, Wareham indicated through Mr James that (contrary to a past promise) removing all the toxic soil was now too expensive.

Transit Center Gets Nix From Planning Commission

2nd 'No' Vote From Planning Commission

to Transit Center

"Not Enough Public Benefit" 

Thursday night, Emeryville's Planning Commission gave a thumbs down to Wareham Development's contentious 'Transit Center' proposed to be built north of the Amtrak station on Horton Street.   The No votes among the Commissioners (Kuemmerle & Gunkel) said the project doesn't offer enough public benefit especially considering a $4.2 million grant  of public money Wareham is to receive for the project.  Two Commissioners voted Yes (Cardoza & Keeler) and two abstained (Moss & Tann).  A tie vote results in a rejection of the application.  The City Council will be the final arbiters in the project and they could override the Planning Commission as they did in 2010 on an earlier vote on the controversial project.  That earlier Council vote split 3-2 (West & Asher dissenting).

The Transit Center project is comprised of an office tower on a parking podium, a small public plaza and four bus bays in the parking garage.  The bus bays are meant to accommodate the Amtrak station.

Some residents cried foul when City Council earlier in the year voted to grant Wareham $4.2 million in public money to build the project, funds leftover from the remains of the former Redevelopment Agency.   Wareham had promised to clean up the toxins left over from the polluting days when Westinghouse Electric Company manufacturing operated at the site, a fact Council Member Nora Davis said was a deal maker.  Ms Davis it should be noted has been very vocal on using developer and public money to clean up toxins from Emeryville's industrial past. In the intervening years since the agreement was hammered out with Wareham however, the development firm reneged on their promise and they will now only partially clean up the site, leaving toxins entombed in the soil beneath the new building.

Thursday's Planning Commission vote against the Transit Center marks the second time the planning body has rejected the project.  In 2010, they said the project with it's four bus bays in the garage and small plaza was too light on the public amenities to approve because of the traffic the project would generate and the fact that the building was too tall for the neighborhood.  That Planning Commission vote was made before Wareham retracted it's agreement to clean up the toxins it should be noted.  The Transit Center project as proposed today is worse from a public benefit analysis (no complete clean up and a new grant of $4.2 million public money).

Wareham, a favored developer at City Hall, has received more than $4 million in subsidies already from the City Council to help them build their other development projects around town.  In November 2012 a generous Council OK'ed a deal with Wareham to allow the developer to bank increment taxes the project generates for 12 years even as the Transit Center uses city services.
The $4.2 million in left over Redevelopment funds the Council earmarked for Wareham and the Transit Center is money the City could have applied to other proposed public projects in town including the moribund South Bayfront Bike/Pedestrian Bridge now starving for money and dying for lack of it.

The Council is expected to vote soon, one last time, to give the final OK for the Transit Center.

Transit Center: Zombie Redevelopment Rises In Emeryville

Undead Redevelopment Agency Roaming Emeryville

Wareham Continues To Feed At Public Trough Even After The Demise Of The Redevelopment Agency

Opinion

When it comes to Wareham Development in
Emeryville, its funding source, the
Redevelopment Agency, just won't
stay dead.

Call it the government agency that can't be killed.  How else to explain how favored Emeryville developer Rich Robbins, CEO of Wareham Development, recently dealt with his corporate welfare funding problem?  That being; how can he continue to receive taxpayer money for his development proposals after his favorite milk cow, the Emeryville Redevelopment Agency was killed by Sacramento?  Answer:  If Redevelopment is dead, no matter... City Hall can be directly summonsed to fund his projects...use the Emeryville General Fund via tax increment financing, just like the long gone Redevelopment Agency.

Unprecedented
Wareham has been moving forward with its Transit Center project, a contentious office and bio tech tower on Horton Street until the Redevelopment Agency died and so now, Mr Robbins has convinced three council members, a majority, to fund the project with tax increment financing out of Emeryville's General Fund (council members Jennifer West and Jac Asher voted NO).
The way it's going to work is that the General Fund will be tapped for 12 years, for the project's tax increments, to help fund the project.  Wareham puts the money up front but no taxes will be paid by Wareham for the Transit Center for the 12 year term; all those funds that normally would be paid to the city as every other business does will be shuttled back instead to Wareham.  This is an unprecedented move by City Hall that begs the question; why should Wareham receive this public gift?  And why not any other host of businesses in town?

Since Redevelopment Agencies have been shut down by the State, for exactly this sort of abuse, now the city council majority is getting creative in how it gives this favored developer public money.
The council obviously was listening recently when Wareham surrogate and Chamber of Commerce CEO Bob Cantor recently encouraged them, "[Now that the Redevelopment Agency is gone] you have to get a little bold" in giving away public money to Wareham.
Wareham it should be noted, has been on the receiving end of many such agreements with City Hall, having received more than $4 million in taxpayer assistance over the years.  Additionally, Wareham received the entire amount of Federal grant money garnered by Emeryville for toxic waste clean-up, some $1 million, leaving other developers with toxic soils out of the loop.

"Toxic Soup Bubbling Up"

"Toxic Soup Bubbling Up"
Toxins are migrating at the
site according to Wareham...
State officials say BS
to that charge.

The council members were warned by Wareham at the November 6th council meeting that they must move quickly on this project because toxins in the soil under the proposed project are on the move.  "It's a toxic soup, bubbling up" said Geoff Sears, Wareham's point man for squeezing the council over the years. This alarmist claim goes against direct statements from the California Department of Toxic Substance Control (DTSC), the agency who designed the entombment of the toxins leftover from the years when it was a Westinghouse manufacturing site.  Toxins were left but a containment system including 40 foot subterranean slurry walls and an "engineered cap" were built some years ago to permanently entomb the toxins and stop their movement.  DTSC officials have said the site is safe as long as it is not opened up.
Now Wareham says the containment system is no good and Emeryville must move to approve work on the site because toxins are bubbling up.  We'd like to see Wareham defend this fatuous claim and we challenge the council to question Wareham on this.  We think this was meant to cause alarm by rube council members to wring out a better deal from them.

Irony: Wareham Won't Clean-Up The Site
After all the hand wringing from the city council about how we need to clean-up the site, Wareham now informs us they won't even do that as part of the Transit Center project.  Previously when the Redevelopment Agency was alive, Wareham intended to remove all the toxic soil but now, as part of a redesign to save money, only the top 10 feet of soil will be removed leaving the rest to be entombed under the building. A new engineered cap with slurry walls will be installed to leave the problem to another generation.

This iteration of the Transit Center with it's City Hall give-a-way is but the newest version of Emeryville taxpayers paying a well connected developer for a project of dubious public benefit.  We've already given Wareham over $4 million dollars for other projects around town and for this project we've already changed our General Plan especially to accommodate this building by ignoring our building height mandates.  As the Tattler has noted, the 'transit" part of the Transit Center is a joke; it's really just an office building with four bus bays in the lower parking area.

Readers are invited to use the Tattler's search engine by typing in "Wareham" to peruse all the stories highlighting the give-a-ways this developer has been receiving from the City of Emeryville. We say NO to opening up and putting at risk our General Fund to help Wareham once again, regardless of the interpersonal relationships that have blossomed between Wareham's Rich Robbins and City Councilwoman Nora Davis and City Manager Pat O'Keeffe.  It's a terrible precedent and Wareham has already benefited more than enough at our expense.

California has killed the Redevelopment Agency.  Let's not bring it back to life just to continue to help this politically connected developer.  Let's turn the page and move on past this kind of moribund public policy and develop our town in a more bottom up fashion.

Conflict Of Interest Cited In Move To Sell City Owned Property

The City of Emeryville is seeking to sell a piece of fallow land it owns near the Bay Street Mall on Christie Avenue to Madison Marquette, the owner of the mall, but the sale is improper due to a conflict of interest by a member of the State mandated Emeryville Oversight Board, according to the Emeryville Property Owners Association.  

The Property Owners website alleges Oversight Board member and Emeryville resident John Gooding has been or currently is on the payroll of Madison Marquette and the politically connected Wareham Development but Mr Gooding failed to disclose this information as he is required to do. 

Oversight Board member and
Emeryville resident John Gooding

The real estate, called "site B" is part of a previous acquisition by the former Emeryville Redevelopment Agency and the city council had expressed interest in shuttling the parcel to Washington DC based Madison Marquette to develop into an expansion of the Bay Street Mall after clearing the land of condemned businesses and removing toxic soil on the site.  
Residents attempted to block the sale citing a lack of benefit for Emeryville residents and a recalcitrance on the part of the developer to even meet with them.  After the dissolution of the Redevelopment Agency however, Madison Marquette dropped interest in developing the property and it has remained fallow.  To the consternation of residents, the city has kept open the option to develop the property reserved exclusively for Madison Marquette in the interim years, garnering no taxes for the city.  Even though other developers have shown interest in the land, the city has protected Madison Marquette's interests and no other developers have been allowed to make proposals for the property.

Wareham Development's Transit Center is also is being considered for public subsidy by the Oversight Board and if Mr Gooding has been paid by that developer, that too would constitute a conflict of interest and Mr Gooding would be required to disclose that information. 

The Emeryville Property Owners Association story:

City Staff Seeking to Sell Site B to Madison Marquette
Posted on August 25, 2012

CITY STAFF REQUESTS TWO SPECIAL MEETINGS TO SELL SITE B TO MADISON MARQUETTE

The Emeryville Successor Agency (former Redevelopment Agency) has agreed to a Special Meeting on September 19th at 5:30pm in the City Council Chambers to approve the sale of Site B to Madison Marquette. “Madison” If the Agency decides to sell the property, the sale must be approved by Emeryville Oversight Board.

On September 25, at 5:30pm, City Council Chambers, the Emeryville Oversight Board, will vote on whether to ratify the Successor Agency action, should they vote to sell the property to Madison..

Background: The State decision to dissolve redevelopment Agencies has forced the former Redevelopment Agency to liquidate its assets. Site B is one of those assets.

The Emeryville Oversight Board was established by the legislature to oversee the actions of the Successor agency. It has seven representatives.
[1] Emeryville Mayor Jennifer West (Board Chair)
[2] Aisha Brown, Alameda County Board of Supervisor Keith Carson, senior staff
[3] Greg Harper, AC Transit Board Member
[4] Joshua Simon, Emery Unified School Board Director (Board Vice Chair)
[5] Ronald Gerhard, Vice Chancellor for Finance & Administration, Peralta Community College District
[6] John Gooding, Emeryville resident
[7] Helen Bean, City of Emeryville Economic Development & Housing Director.

The person on the Board representing the interests of Emeryville Residents is John Gooding. He was chosen by Alameda County Supervisor Keith Carson. Many people in the community believe Gooding is working for both Madison Marquette and Wareham Development. He has recused himself from some of the decisions affecting Madison Marquette. but he seems to be voting in conflict of interest on matters which benefit Wareham. He may have a conflict voting on the ECCL Project? He has stated he will not vote on the sale of Site B.

Click HERE to read the rest of the story.

Council Grants Final Proceeds From Former Redevelopment Agency

The End Of The Redevelopment Agency:

Center Of Community Life Gets $21 Million, The Rest Of The Town To Share $3 Million

The Emeryville city council has finally brought to a close the torturous and circuitous path of the money left over from the former Emeryville Redevelopment Agency.  Last Tuesday, with the State of California's OK, the council voted to spend the former Redevelopment Agency's final $24.5 million; the lion's share going to the Center of Community Life.  The Center, a schools/community project on San Pablo Avenue will get $21.2 million and the remaining $3.3 million will be shared by the proposed Arts Center at the Civic Center, the bike/pedestrian bridge across the railroad tracks at Bay Street and Wareham Development's Transit Center on Hollis Street.

The council reserved the right to decide later about how to dole out the $3.3 million for the three projects.  That money, apportioned for the Arts Center, the Transit Center and the bike/ped bridge will not be enough to complete any of the projects, no matter how the council decides on how to allot it among them, it should be noted.

The $24.5 million left standing from the Redevelopment Agency is but a whisper of its previous prodigious self when the Agency was still extant and flush with tax increment proceeds.  The take-over of redevelopment agencies across the State netted a lawsuit from the City of Emeryville recently.   After a protracted back and forth with Emeryville and other towns, Sacramento finally passed Assembly Bill 1484 releasing some of the unspent bond proceeds from the former Redevelopment Agency.  In Emeryville's case, that amounted to $24.5 million.  The council then voted on the beneficiaries of the last of the money and entered their intentions with the State, who now has 45 days to approve the plan.  City officials told the Tattler the approval will likely be a formality.

The list of four capital improvements was reduced by the so-called Successor Agency that replaced the Emeryville Redevelopment Agency from a wish list of more than $200 million worth of improvements formerly in the capital improvements program.  The wish list, vetted by the residents in two Saturday pivotal meetings some years back, included the Arts Center, the Bike/Ped Bridge but not the Transit Center.  Many other projects identified by residents and placed in the program, including two other major bike/ped bridges in town and a large central park, didn't make the cut by the Successor Agency and the Oversight Board set up by the State to wind down the Redevelopment Agency.

The former Redevelopment Agency funded its capital improvement programs with proceeds from improved receipts by virtue of the fact that the projects it funded increased their property value and the increase meant higher taxes paid to the Agency.  Those increases are called tax increments.  Sacramento seized redevelopment agencies statewide since provisions in their charters defunded schools and other municipal essentials causing Sacramento to pick up the slack.  The State budget crisis prompted the action.

The Center of Community Life, a school and community center will use the $21 million to build the community part of the project including a new recreation center and possibly a library, located on the San Pablo Avenue site.
The schools portion of the project has been experiencing major funding problems owing to the reduced bond capacity of Emeryville.  Some $48 million has been raised so far to replace the existing high school but School District officials are seeking an extra $20 million to close the existing elementary school and consolidate it in a "co-location" with the high school.  The District is considering using a controversial bond financing scheme that would mean a $107 million payback Emeryville taxpayers would have to make on that last $20 million to close the elementary school.

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".

   

Falsified Traffic Report No Impediment--Office Tower Approval Will Stand

Wareham Benefits From Fake City Document

Despite admitting that officials presented false documents to help win approval of a towering office building and parking garage, officials said they will not reconsider or revisit the decision. "It's already been approved," said Charlie Bryant, Emeryville's planning director.
Bryant cautioned that any new information arrived too late to make a difference for the so-called "Transit Center," an office tower and parking garage that violates the city's zoning and general plan in several respects. The building will rise along Horton Street, Emeryville's only Bike Boulevard. Opponents have claimed that the building will attract so much traffic that Horton Street will no longer be safe for bicyclists. Bike lanes were removed from most of the route since it was declared a Bike Boulevard.

In documents submitted for the proposed building, analysts said that not a single commuter to the new building would use the northern part of the Horton Street Bike Boulevard, a fact later disproved.

The Tattler alerted county officials to the error and city officials were forced to compile new traffic figures. Mr. Bryant on Monday said that the new numbers released in a memorandum would not affect the decision since the increase in traffic for Overland Avenue would be small enough to not constitute a 'negative impact'.

Responding to questions raised by the Tattler, Mr. Bryant told the City's Pedestrian/Bicycle Committee that "in retrospect, it's doubtful 100 percent of the cars from the project would use Powell Street," instead of Overland Avenue.
Oakland-based traffic consultant AECOM recalculated the numbers at Mr. Bryant's request after public pressure grew. The firm stated in a report "we recognize that it is certainly possible, and probably likely, that some level of project traffic may use Overland Avenue". Upon completion of the calculations it was found in fact the original Mitigated Negative Declaration was in error. Mr. Bryant said he was unwilling to comment as to why he didn't investigate the curious no traffic finding on his own after Planning Commissioners expressed disbelief. "I choose not to answer" Mr Bryant exclaimed.

Negative Declarations are documents generally issued to non-controversial projects unlikely to damage the local environment. An Environmental Impact Report (EIR) is required in cases where a project may cause such damage. Activists maintain that an EIR should be completed because of the project's location and size. The Negative Declaration document was used by both the Planning Commission and the Council and it informed them of important environmental impacts and as mandated under the California Environmental Quality Act. The document was ultimately used to approve the nine story project.

It is still not known why Mr Bryant and the Planning Department believed that no cars would use Overland Avenue from the proposed Transit Center even as the Planning Commission asked for clarification.

Planning Commission members had dismissed the traffic analysis. At the January 28th meeting, Commissioner Jim Martin joined two of his colleges and said the analysis was "not credible". Now, three months after the Tattler first raised the issue, it is undeniable that Mr Martin was correct; the main environmental document for the subsequently approved Transit Center project was flawed.

In response Mr. Bryant released the memorandum Monday that acknowledged the Mitigated Negative Declaration, was indeed flawed.

At the January 28th meeting, Commissioner Martin said the document's finding that no project generated traffic would use the contested Overland section of the Horton Street Bike Boulevard was "simply not credible". Mr Martin said "cars use the Overland section right now when Powell Street gets clogged up. Clearly Transit Center traffic will also use Overland". He added the Negative Declaration document might have purposely left the traffic off Overland Avenue to make the project more politically palatable owing to the sensitivity the council has shown to not giving the impression that the bike boulevard is expendable.

West & Brinkman: Bike Boulevard Should Stay

Bicycling takes a hit

What are they willing to do now to save biking on Horton?

Council members interviewed

Emeryville's newest council members said they would do what it takes to keep bicycling safe on Horton Street, even if that means forcing cars from the narrow street.
Both said they would support the installation of traffic barricades or "diverters" if recommended by a traffic engineering firm set to study travel patterns.
Recently elected Councilman Kurt Brinkman praised 'traffic calming' measures taken in the Triangle neighborhood, saying they have made the area a "safe place to walk" and that prior to the installation, Adeline Street, was "nothing less than a drag strip with cars racing through the neighborhood." The comments suggest Mr. Brinkman would support moves to bring a similar level of safety to Horton Street, the city's main crosstown bicycle route.

Both Mr. Brinkman and colleague Jennifer West agreed that the recently approved 'Transit Center' office tower will bring a large number of vehicular commuters to the Horton Street Bike Boulevard, where the nine story office tower and garage will be built. Both support the city's hiring of a traffic engineering firm to address the problems. Both also said that safety is paramount to encourage cycling on Horton.

The two council members back a unanimous decision by the city's Bike/Ped Advisory Committee that Bike Boulevards should have consistent standards for vehicle speed, volume and signage, across municipal boundaries. A consistent East Bay network of such roads improves safety and encourages regional bike commuting.
Both council members told the Tattler that they will give great deference to traffic experts, especially when taxpayer funds are spent to implement their recommendations. Both also said they would support diverting traffic if that is what is recommended.

For decades advocates on the city's Bike/Ped Committee have worked to create a viable, direct and safe bike corridor through Emeryville.

Planned bike paths and routes along a former railroad spur just east of Hollis Street and a second route along Shellmound Street were cast away by city officials believing the codified plans impeded development. The committee floated a 'Horton Street Bike Boulevard' as a third best alternative.

Hoton, once connected to Overland Street is the last such route possible for cyclists traveling north or south through Emeryville. After the committee completed planning the bike boulevard in 2003, it received a series of rebuffs from the council. Horton Street it turns out, is highly contentious. Developers demanded the council scale back bike route plans in favor of maximizing the street for cars.

Safety concerns; cars to flood Horton Street

The Bike Committee unanimously voted that for reasons of safety and to encourage regional bike commuting, city council action needs to protect Horton Street for biking. The problem now is what to do with the many hundreds of cars that will use Horton Street generated by the freshly approved Transit Center at Horton and 59th Streets. Without the application of traffic calming methods, Horton is now on a path to go the way of the other streets; not safe for bike use.

County to Investigate Flawed Emeryville Documents

County Agency "Baffled" By Strange Conclusions

County officials said they will investigate a pivotal document prepared for the recently approved Transit Center, the Tattler has learned.

An official with the Alameda County Congestion Management Agency (CMA), said that her agency's data may have been misused. The data was included in planning documents associated with, and helped push through approval of, the 'Transit Center' a nearly 900 space parking garage and office tower.

Beth Walukas, Manager of Planning at CMA said the data may have been used inappropriately by the City of Emeryville in the traffic study used as a basis for granting a 'Mitigated Negative Declaration,' for the project. A mitigated negative declaration permits the approval of a project without more intense environmental scrutiny.

Specifically, Ms. Walukas said her agency is concerned that their data was used to show less 'project generated' traffic on the Overland section of the Horton/Overland Street Bike Boulevard than would be shown if standard traffic analysis methods were used.

Planning Commissioner Jim Martin, earlier objected to the traffic study calling it, "not credible." Mr. Martin speculated that the study purposefully excluded traffic impacts on Horton and Overland Streets to make the office tower an easier sell politically, by omitting any negative impacts on cyclists and the newly created bicycle boulevard.

Ms. Walukas indicated her investigation would be complete in "a couple of weeks".

Lies, Damn Lies and Traffic Studies

By Brian Donahue

No one is saying Emeryville City Hall necessarily breaks the law in furtherance of its pro-development policies. But it sure does game the legal process assuring certain projects surmount any obstacles. The recent 'transit center' approval on Horton Street is an excellent case in point. The legally mandated environmental and planning documents associated with the project were manipulated to discount, ignore or omit information showing any of the negative impacts the massive project would bring. Consequently, decision-makers were unable to have information necessary for an informed vote. But vote they did...for the project.

The Planning Department went to great lengths to make sure the planning commission and city council could not accurately gauge the deleterious effect on the Horton Street Bicycle Boulevard, even going so far as to issue a gag order on the traffic engineering firm, Berkeley-based LSA Associates, that compiled the traffic study.

In their preliminary report, LSA Associates denied the existence of a Bicycle Boulevard on Horton Street, which passes in front of the proposed "Transit Center" office building and parking garage. But sharp eyed Emeryville citizens reviewing the documents spotted the omission. Horton Street was designated a Bicycle Boulevard by the city council several years ago. The concept was pitched by a Berkeley resident sitting on Emeryville's Bicycle/Pedestrian Advisory Committee, who insisted that a defined and codified non-busy route better serves cyclists than bicycle lanes. The bicycle lanes were largely removed from the street.

After the omission was brought to the attention of Planning Director Charlie Bryant, himself a regular bicycle commuter, he asserted that Bike Boulevards have no value. Because they lack value, he reasoned, the massive traffic generated by the office tower and garage known as the "Transit Center" cannot be considered detrimental.

Using the standard calculation of one employee per 250 square feet of office space, about 800 people will work in the 200,000 square foot building. Assuming that each of those people drives to work alone voluntary alternative transit options notwithstanding, that's 1,600 vehicular trips a day---each thrust onto a street city officials designated for cyclists because traffic volumes on Emeryville's other north-south roads such as San Pablo Avenue, Hollis and Shellmound streets are so high as to make them unsafe. Some employees may commute by other means, but stores in the building, visitors and delivery trucks will likely make up for the reduction.

When asked to elaborate on how such a counter intuitive claim---that the addition of 1,600 motor vehicles a day to Horton Street won't change conditions for cyclists--- Senior City Planner, Miroo Desai refused. Ms. Desai was unmoved when it was pointed out that other Bay Area cities with designated bike boulevards have ascribed them value. The traffic study, which excluded mention of those impacts enabled the council to vote for a proposal that, on paper at least, has no ill effects.

LSA's study stated categorically that NO car traffic would travel north along Horton and Overland Streets to reach the Ashby Avenue freeway entrance in Aquatic Park. This outlandish and unsubstantiated claim was enough for Planning Commissioner Jim Martin to question the study's credibility to such an extent, he voted against the project in its entirety. In his testimony, Mr. Martin showed how the route is a preferred shortcut even now for commuters heading north. Quoting from LSA's own study, Mr. Martin said that 25 percent of the traffic would arrive from and depart to the north. Mr. Martin dismissed as "ridiculous" the study's claim that all of the traffic heading for the project would use already congested Hollis street with its numerous traffic lights. Mr. Martin further stated that the document's claim was not supported by any evidence. He concluded that he had no choice but to assume that LSA and the Planning Department made a spurious claim just to show that the project would have no impact on the Horton Street Bike Boulevard. Again, the document went forward, providing cover for the city council members to prove they were not harming bicycling.

In the midst of these legitimate questions raised by both commissioners and the public, Mr. Bryant took the unprecedented step of forbidding LSA Associates from communicating with any members of the public about the project. Emeryville Senior Planner Miroo Desai was surprised at the level of secrecy surrounding the document, stating "If it were up to me, I would not forbid LSA to speak with anybody on this document".

It is hoped Emeryville can enter a new era where the approval process is more transparent and more democratic. The city council needs to have supportive staff documents that are not biased and politicized as this Transit Center has been. The citizens need to have confidence that the approval process is fair and above board, lest cynicism take hold. We hope for a better process next time.


The council members were willing to sign their names to this highly politicized and fraudulent environmental document are:

Nora Davis
Ken Bukowski
Kurt Brinkman
Ruth Atkin

Towering Office Building Gets OK

Council overturns Planning Commission in a 4-1 vote

By Brian Donahue

A new office tower will join Emeryville's growing skyline after the City Council approved the project over objections from residents and the city's Planning Commission.

Capping many years of wrangling over the "mound site," a sealed toxic EPA Superfund site beneath Emeryville's Amtrak parking lot, the Emeryville City Council approved construction of a 165-foot tall office building Tuesday night on a 4-1 vote. Newly elected council member Jennifer West was the sole dissenter, saying the building was too tall. The vote overrules the city's planning commission, which recently rejected the same project based on concerns that the structure would adversely affect the neighborhood and traffic circulation.

Dubbed the "Emeryville Transit Center," the seven story office building will sit atop a two story parking garage. The structure received about a million dollars in state grants for transit-related infrastructure, despite having only a tangential connection to mass transit. According to earlier plans, part of the garage will be used as a storage facility for out of service Emery-Go-Round shuttle vans.

The project gained traction on the pro-business council despite flaws that likely would have scuppered similar proposals in other Bay Area cities. The structure will be built by Wareham Development, a firm that has delivered the city's Novartis campus, the Bayer Labs facility in Berkeley, the Emeryville Amtrak station and surrounding office buildings. From its conceptual inception until Tuesday night, the "Transit Center" has been showered by official largess and government support.

Beneath the asphalt of the Amtrak parking lot and a layer of clay lies a highly toxic cauldron left behind by Westinghouse which once operated a plant that built transformers and other electrical components on the site. The company escaped liability for the cleanup through a series of mergers, leveraged buy-outs and property divestitures. The chemicals were entombed and designated safe by state and federal officials over a decade ago.

With Tuesday's Council approval, Emeryville taxpayers will subsidize $3 million uncovering and removing thousands of tons of PCB-contaminated soil. The toxic waste will be trucked through local streets to a hazardous waste dump site, likely outside of California.

The structure will be more than double the height allowed under the city's own zoning ordinance. It is also more than four times what was allowed under older rules, which were amended largely to benefit Wareham and other developers. Emeryville's 25-year-old regulations limited buildings to 40 feet high in that neighborhood. The new zoning ordinance, only recently adopted, allows a maximum of 75 feet.

At 165 feet, the Transit Center would seem in obvious violation were it not for special loopholes allowing "transit centers" to rise to "unlimited" heights.

The new general plan, five years in the making, encourages a "central core" of tall buildings to create a 'downtown' district in Emeryville. The further from the central core, the shorter the buildings should become, according to the plan. Sadly for Wareham, the mound site sits outside this designated core. No matter, the company's city council friends added another loophole. Now, tall buildings can rise in the central core AND at Wareham's parcels on Horton Street.

The "transit center's" 825-space garage also violates the new general plan's concepts of actively encouraging alternative transportation, an irony not lost on critics.

According to plans, the office tower will have four bus parking spaces beneath, qualifying it as a "transit center." This linguistic sleight of hand caused consternation among some planning commissioners.

The council's handpicked Bicycle/Pedestrian Advisory Committee also raised red flags. That body unanimously warned that the project will destroy the new Horton Street Bike Boulevard by bringing thousands of cars and trucks onto Horton Street every work day.

After activists pointed out that environmental documents for the project failed to note the existence of the 'bike boulevard,' city officials retorted that the boulevard is meaningless, because the council never officially defined what a bike boulevard is, despite designating Horton Street as one.

When activists attempted to publicize the city's linguistic gymnastics, city officials placed a gag order on the writers of the building's traffic study, Berkeley-based LSA Associates, forbidding company employees from discussing the Transit Center document with the public, even privately.

Developer: I am the Law

Wareham Flexes Political Muscle
By Brian Donahue

In an example of how some in Emeryville are more equal than others, a favored developer will likely gain approval for a bulky office tower without answering criticism from Emeryville’s normally pliant Planning Commission.

Wareham Development Corporation, the builder of most of Emeryville’s bio-tech and office complexes, is so confident that its planned 165-foot tall office tower and parking garage will sail through as-is, that the firm didn’t bother to address any of the reasons the city’s appointed Planning Commission cited when they rejected the building’s plans two weeks ago.

Wareham didn't have to. The Planning Commission's ruling was appealed by Nora Davis and other members of the pro-business council majority.

The so-called "Transit Center," was rejected by the planning commission after it ruled that the accompanying environmental studies required by state law "lacked credibility." The commission also dismissed the resident amenities and benefits touted by the developer, as ‘dubious.’ One commissioner stated that the proposed building was clearly "out of scale" with the neighborhood.

A rejection of this sort, especially by a body seldom finding fault in any project, would normally cause reconsideration by the city bureaucracy or the firm making the proposal. But this is not a normal project, nor a normal city.

No need to go back to the blueprints. Wareham, and its leader, Rich Robbins don't need to listen. After all, this is a firm with the ‘chutzpah’ to name a parking garage and office tower a “Transit Center.” Robbins is also a man with enough juice in Emeryville to get what he wants.

The council majority didn't even wait for Robbins to pony up the cost of filing an appeal. Instead, they appealed it themselves. Now the council gets the chance to overrule its own hand picked commissioners.

Tomorrow, the council will likely ignore the planning commission’s objections and approve the project without alteration. Even the planning department's official report urges full acquiescence to Robbins wishes.

The project has created controversy over the years. Many millions of dollars in taxpayer subsidies were demanded by Robbins and granted by the Council. Before the ink was even dry on the city's new general plan, a special exemption was added for Robbins' garage and tower. Construction will disturb one of the city’s EPA Superfund Sites, a toxic legacy of a Westinghouse plant currently sealed beneath the Amtrak parking lot. Construction will excavate tons of PCBs and truck them through our community. Additionally, the Bike/Pedestrian Committee unanimously objected to what the project will do to the city’s new and only Bicycle Boulevard----bring heavy traffic to a street from which bicycle lanes were removed.

The Council will consider their own appeal of the Planning Commission's decision Tuesday. To anyone who might want to witness an expression of raw political power, attend the meeting, scheduled to get underway at City Hall on Tuesday, February 16 at 7:15 p.m.