Public Records Request Reveals Lie at Center of Noise Ordinance

Noise Ordinance Investigation Reveals

People's Interest Not Represented at City Hall

Public Records Request Proves Developers Are Preferred,

Residents Interest in Peace & Quiet Rank Second Place

A Public Records Request (PRR) for internal documents at City Hall, filed by the Tattler as part of an investigation into a breakdown of Emeryville's noise ordinance, has revealed a lie at the center of the ordinance perpetrated by the City Hall staff.  Previous publically made assurances of deference to the citizens and their expectations of peace and quiet by the City staff have given way to a public records revealed truth that it's really the developers who the City works for.  The trove of documents, turned over last week following an initial request filed in mid October, is revelatory more for what it didn't contain than for its mundane contents (mostly concerning getting meeting dates coordinated).  After the staff made blanket assertions of their turning away developers seeking noise ordinance waivers administratively en masse, no such evidence was found among the  documents that would bolster those assertions.  The documents turned over to satisfy the PRR means the charge, brought by the Tattler, that the staff at City Hall recommends noise waivers be granted to developers in a global way at the expense of the residents, remains uncontested.

Anybody that’s lived here for a while can see how Emeryville is changing.  Our population has doubled over the last 20 years and the business sector keeps growing as well. Emeryville is slated to grow even more moving forward; now we’re entering a new era of skyscraper construction.  All this growth means there’s always lots of construction going on.  Seventeen years ago we decided we need peace and quiet on weekends and evenings against the constant din.  And so like other cities, the people of Emeryville enacted a noise ordinance.

Unfortunately, that hasn’t been the end of it.  The ordinance has not served as a correction.

Developers, always looking to increase their profits, hate our noise ordinance.  Not known as a group fond of regulatory constraint, they’re free to hate it of course but that doesn’t mean we have to grant them the waivers they keep requesting.  We should only grant noise ordinance waivers for special circumstances when any public benefits clearly outweigh losing our peace and quiet.  And there’s the rub: Emeryville has fallen into a bad habit of routinely granting developers waivers for no good reason.  Sometimes for no stated reason at all.  For 17 years the developers have been getting their way at City Hall at the expense of the residents with their interest in quiet weekends and evenings.

The Tattler has followed this issue closely over the years.  We’ve documented how the City Hall staff, specifically Charlie Bryant, longtime head of the Planning Department, keeps recommending the City Council grant every waiver brought before them.  The Council, who has the final say, generally has used the staff waiver recommendations as political cover to say ‘yes’ to each developer seeking relief.

Before the release of the damning noise ordinance documents last week, anyone paying attention could see how developers have been getting preferential treatment at City Hall.  If residents desires for peace and quiet were genuinely and impartially being listened to, one would expect the staff to recommend noise ordinance constraints be waived maybe half the time; 50% in developers interest and 50% in residents interests.  But that’s not what's been happening.  The staff has gone with the developers, recommending the residents give up their peace and quiet virtually 100% of the time (with only one exception over the last 17 years).
Responding to mounting criticism from residents, the staff some months ago, made claim to an unseen world behind the doors at City Hall where they say residents interests ARE being looked after.  Planning Director Bryant says watching the Council meetings, it only SEEMS like the residents are being ignored.  He told the Tattler that the residents are only seeing the waiver requests that the staff thinks are legitimate and worthy.  A great number of developer requests are denied “administratively”, meaning the staff interdicts and refuses to even forward many to the City Council for their consideration.  Many, if not most waiver requests never even see the light of day says Mr Bryant.

The Tattler, ever vigilant, saw in Mr Bryant’s claims of behind the scenes noise ordinance waiver denials, a facile attempt to put to rest resident claims of the staff's anti-democratic behavior once and for all.  And so we made a Public Records Request for all documents including electronic recordings and interdepartmental memos concerning any administratively denied waivers, just to verify.  After waiting almost three months, the documents provided by City Hall reveal nothing to substantiate the claims made by Mr Bryant.
We now know the claim of a staff diligently working on our behalf with the noise ordinance behind the scenes at City Hall is a ruse.  The Planning Department is merely forwarding each waiver request from each developer, no matter how absurd the stated reasons, over to the City Council, after giving their recommendation to waive the constraints of the ordinance.

At virtually 100% of recommendations falling in the developer’s favor, we can now say with certainty the loud weekends we’re experiencing in Emeryville are not part of any compromise.  The noise ordinance doesn’t function.  It’s just for show.  The fix is in.  Emeryville’s pro-developer reputation is not your imagination.  And it's going to get worse.  Quiet weekends are not anything the residents can expect as we enter Emeryville's next phase of frenzied skyscraper construction.

Legacy of Emeryville's Urban Forestry Ordinance: 79 Trees Cut, 2 Saved

Public Trees Get Cut Down While Private Profits Rise Up 

Emeryville's Sad Urban Forestry Ordinance

Law Meant to Save Our Trees Has Had No Effect

News Analysis

The recent clashes over public street trees abutting the incipient Sherwin Williams apartment project highlights a persistent and existential problem for Emeryville’s Urban Forestry Ordinance; the law, passed in 2003 with unanimous City Council support, isn’t actually saving our publicly owned street trees it was intended to.  A document recently obtained by the Tattler in a Public Records Request shows the ordinance, often referred to as the UFO, has failed to protect trees with only two out of 79 street trees having been saved, public trees falling to developer’s chainsaws as fast as before the UFO.
The original stated goal to the UFO was to impose fees so onerous on those seeking to cut the public trees, the net result would be the trees would usually get saved.  The real world results have been totally ineffective at that goal, developers simply writing off what fees the ordinance does impose as a cost of doing business.  As a consequence, our city has been transforming into a land of lollipop trees.  

City of Emeryville Public Street Tree Removal Permits by
Private Entities: Proposed Versus Approved
Since 2003
Developers/private concerns proposed 79 trees be cut and the 
Urban Forestry Ordinance saved two.
Note: PG&E originally proposed to remove 30 publicly owned trees and 
after Council member John Bauters intervened, the utility company
reduced their proposed number to nine.
Chart doesn't include 65th Street's 'Glashaus' project; 20 trees removed without permission but later forgiven and fines waived by the City.

Staff Batting .000

Since its inception, the UFO has been under constant assault by developers, as one can imagine but remarkably, it’s been the City staff, specifically the Planning Department that’s stood shoulder to shoulder with the developers in requesting public street trees be cut.  Of the 81 requests received by City Hall, the staff has taken up the interests of the developers with every request and recommended to the Council every last tree be cut, not even one time representing the resident’s interests.  

City Council Bats .025 

It could be assumed the staff, who generally don't live in Emeryville, has less interest in saving public trees than do those residents that serve on the City Council; the final arbiters for requests to remove trees.  However perhaps even more remarkable than the staff’s perfect record in facilitating the tree cutters is the fact that the City Council has moved to protect only two of the 81 trees requested for removal.

Developers save money by cutting trees fronting their projects and planting lollipops after the job is done. Regardless, the UFO as it is written would be perfectly capable of saving Emeryville’s street trees, even against developers seeking good returns for their shareholders and a City staff trying to help them but for its prescriptive deference paid to the City Council, a group of five individuals that has heretofore shown only 2% interest in representing the residents.

The Legacy of Emeryville's Urban Forestry Ordinance
The idea was to make it so developers would tend to not
 cut the public street trees.  
Red=cut trees, green=saved trees.
The real world results of this ordinance are
a civic embarrassment.

It can be assumed an effective ordinance that purports to protect the citizen’s assets; assets that in this case the City itself says promote “community pride”, at least 51% of those assets would be protected.  However, the Emeryville Urban Forestry Ordinance was crafted to protect our street trees and it has an efficacy rate of only about 2%.  Clearly, if the people of Emeryville still desire to save their street trees like they did in 2003, the ordinance that is supposed to help in that endeavor needs to be rewritten, the absolute power of the City Council stripped out.  As it now stands, the UFO record reveals a series of elected officials that haven’t been totally honest with the voters when it comes to their urban forest.

Iconic/Ironic Trees

Bay Area Native
Golden-crowned sparrow

Against this backdrop, the City Council is currently weighing whether to allow the developer of the incipient Sherwin Williams project to cut 14 trees on Horton and Sherwin streets fronting that project.  Ironically, these same trees were the impetus for the writing of Emeryville’s Urban Forestry Ordinance after Sherwin Williams Paint company cut trees at this location some 18 years ago.  This location on Horton Street had a total canopy coverage over the street with trees from both sides creating a tunnel effect, the only such place in Emeryville. The paint company was ordered to clean up the site upon selling the property after more than 100 years dumping arsenic and lead in the soil as part of their manufacturing process and the mature existing street trees were cut down, the soil replaced with clean fill.  Sherwin Williams then planted lollipop saplings and called it a day.  Outraged residents, feeling taken, descended on City Hall and demanded a better deal and the UFO was the result.  It will indeed be ironic if the same trees that stirred the neighbors and forced the writing of the UFO were to now again be cut 18 years later and the ordinance waived as the staff is recommending.

Like the Bike Plan’s putative protection of bicycling with its Bike Boulevards, the General Plan’s ‘Areas of Stability’ meant to save our single family homes and the designation ‘Architecturally Significant’  meant to save historic buildings in town, the UFO is not written to be effective. Like the other legislative edicts in our municipal code, the UFO gives the impression of Emeryville as a real city.  However, the reality is these obtuse laws on our books can only be seen as placeholders for a time when livability and democracy are taken more seriously by City Hall.  Perhaps the sound of chainsaws could be replaced by the chirping of birds in our town; a dream of Emeryville residents from 2003 that has been deferred. 

Earns One Smiling Nora Davis
Nora Davis smiles down on the record of
Emeryville's Urban Forestry Ordinance.

The Tattler Presents the Document The City Doesn't Want You To See

To the Emeryville City Council:

Here's the Document Your Staff 

is Withholding From You

In a surprising turn of events, the Emeryville Planning Department has opted to withhold a critical document from the City Council as the Council decides whether to cut down publicly owned street trees on Horton Street, a move that is counter to the Department’s charge to provide pertinent and accurate information to the Council so they can make informed decisions. The document entitled Trees at Old Sherwin Williams Site, was written by SBCA Tree Consulting, the City’s official arborist and commissioned by the Council to determine the health of the street trees bordering the future Sherwin Williams apartment housing development. However the Planning Department feels the Council should not be able to see their own document as they decide the fate of the people’s street trees and so they have left it out of the packet slated for Tuesday’s Council meeting.  

Realizing the importance of transparency and objectivity in City Council decisions, especially those that impact the public’s assets so directly, the Tattler hereby presents to the City Council the document the Planning Department doesn’t want them to see.  

This valuable document will inform the Council the majority of the trees in question are found to be healthy, the opposite of what the staff told the Planning Commission at their March 15th meeting as reported by the Tattler on April 6th.

Even though they didn’t provide the document at the time, the Planning Department staff told the Planning Commission at the March 15th meeting, the health of the trees at the Sherwin site should be considered as that body weighed in on cutting them.  Another consideration brought to the Commission by the staff was whether there is room under the street to underground overhead utility wires or if they should put the wires under the sidewalk making saving the trees more expensive.  Regardless, the staff told the Planning Commissioners the health of the trees is not good and a majority of Commissioners used the poor health as the primary reason for their vote to cut the trees.  The staff never did inform the Planning Commission the arborist had found the trees to be healthy.  

The Planning Department staff has prepared their report for the City Council Tuesday advising them to cut all the trees but they once again have left out the document that proves the trees are healthy.  The newest arborist report the staff did include in the Council’s packet doesn’t report on the health of the trees but rather just gives their monetary value; money the developer normally would have to reimburse to the City as determined by Emeryville's Urban Forestry Ordinance but which the staff incidentally is recommending waiving.

Sherwin Street Trees Also

Informatively,  the Planning staff also recommended to allow the developer to cut down two existing trees on Sherwin Street, trees in no way impacted with under grounding of utility wires. At a December 14th 2017 Planning Commission meeting, the staff said the trees should be cut down regardless but in the case of these Sherwin Street trees, the reasons presented were: A more unified look could be had if all the new trees along the street were lollipops of the same size and species, better soil would be provided and that “significant sidewalk displacement” is presented by both trees (even though new sidewalks will be poured by the developer).  Working within a theme, the staff saw fit to leave out the fact that the official arborist report only noted “sidewalk uplift” with one tree, the other displaying “minor sidewalk uplift”.
Following staff's recommendation, in addition to the waiver of fees recommended for cutting the Horton Street trees, the Planning Commission also voted to cut down the trees on Sherwin Street and waive the fees that would normally be levied there as well.

It is hoped the City Council will make good use of their own arborist’s document meant to gauge the health of the trees the staff is recommending be cut down. 

From City Arborist Report 'Trees at the Old Sherwin Williams Site':
The staff says the decision makers should know about the health of the street trees but they told
them the trees are "unhealthy" regardless that 12 of the 14 in question are fair to good health.

Planning Commission Votes to Kill Trees Without Critical Arborist Report

City Hall Staff Withholds Critical Document from Planning Commission 

Healthy Trees Called "Unhealthy" by Staff

Commission Voted to Cut Trees Without Knowledge of Arborist Report

Ten trees fair to good, Two fair to poor = "Unhealthy"

The Emeryville Planning Commission, siding with City Hall's Planning Department staff, PG&E and the developer of the Sherwin Williams project voted unanimously March 15th to overturn the City's Urban Forestry Ordinance and to kill every street tree on Horton Street fronting the incipient apartment project slated to break ground later this year.  The unanimous Planning Commission vote was based on staff recommendation the trees be removed, putatively to accommodate the under grounding of overhead utility wires based on a dubious claim from PG&E and owing to their unhealthy status, a finding counter to an earlier City sanctioned official arborist’s report.  The staff did not inform the Planning Commission before their vote about the document from the arborist that said the majority of the trees are healthy.
The vote prepared by the staff March 15th was to decide if the Planned Unit Development (PUD) agreement earlier made should be amended in order to facilitate the cutting of the trees.  The Planning Commission vote overturns that earlier (unanimous) 2016 vote by the City Council directing the staff to save the trees on Horton Street when they approved the Sherwin Williams PUD. 

Emeryville's Appointed Planning Commission
A majority found the "unhealthy" state of the trees
on Horton Street to be reason to cut them down. 
The staff never told the Commissioners
about the arborist's report that found
a majority of the trees to be healthy.

The final decision about the trees and the integrity of the Urban Forestry Ordinance (UFO) will be decided by the City Council on April 17th when they consider allegations made by the staff at the March 15th meeting that the trees in question are “unhealthy” as well as dubious and not proven claims that PG&E will "not allow" the overhead wires to be placed under the street, necessitating the cutting of the trees according to the staff. 

The PG&E claim is especially questionable owing to the fact that the staff told the Planning Commission that the utility company “does not allow joint trench boxes [wires] in the roadway and it needs to be routed to the sidewalk”, an eventuality synonymous with cutting the trees they said while at the same meeting they also said that it is “likely” that some of the trees will need to be cut.  

Further, PG&E has already been caught lying to the City of Emeryville about cutting our street trees in the past when Councilman John Bauters found the company making false claims in furtherance of the utility company's zealous efforts to cut 30 trees in our town as part of a program to keep roots away from underground utilities last year.  Mr Bauter’s diligence ended up saving 21 of the trees and net an apology from PG&E for their misrepresentations to the City.

From the Official Arborist's Report on the
Sherwin Williams Trees on Horton Street
7 fair-good to good with 2 fair-poor to poor
and 3  fair equals "unhealthy trees" 
status according to the City of Emeryville.
The Planning Commission never saw 
this report before their vote.

Perhaps most damaging for City Hall in this escapade is their insistence that the Planning Commission see the trees as “unhealthy”, a direct contradiction of the professional arborist retained by City Hall who characterized the trees as being in good health and the fact they kept the tree report from the decision makers. The report prepared for the City Council by SBCA Tree Consulting on December 29th 2014 found of the 14 trees along Horton Street four are ‘good’, two are ‘fair-good’ , four are ‘fair’, one is ‘fair-poor’ and one ‘poor’.  Predictably, the Planning Commission seized on the claim of the trees being unhealthy and a majority of Commissioners cited that as a reason for their vote to cut them down. 

The 2014 tree report was conducted to inform the City Council as they voted on the approval of the Sherwin Williams project's PUD and the healthy state of the existing trees as shown by the report was instrumental in the subsequent unanimous Council vote to save the trees. 

The staff also recommended to the Commission the 
fees normally paid to the City by a developer seeking and receiving permission to cut our street trees be waived based on two non-sequiturs: the fact the replacement trees will get "better soil" and inexplicably because the trees on the other side of the street will not be cut.  The Planning Commission found nothing untoward or unreasonable about those two findings.

Regardless of the staff reporting as a fact there's no room under the street, an Emeryville Tattler Public Records Request revealed the City of Emeryville in fact has no documents that would confirm their claims that PG&E says the underground wires cannot be placed in the Horton Street roadway.  Even if the utility company told the staff this, the company's credibility has been damaged due to their previous false claims.  A map of Horton Street showing pipes obtained by the Tattler Public Records Request suggests there may be plenty of room to place the underground utility wires in the roadway but is ultimately inconclusive. 

A group of residents living near the Sherwin Williams site Park Avenue Residents Committee (PARC) also encouraged the Planning Commission to vote to cut the trees because of their "unhealthy" status. 

The Planning Commission, cited in addition to the "unhealthy" status of the trees, their opinion the trees should be cut because the existing sidewalk isn't safe (also cited by PARC) and that replacing them with 24" box lollipop trees would make for a "more uniform street". 

The City Council takes up the issue on April 17th however Mayor Bauters must recuse himself, his residence being in close proximity to the project.

The arborist sees the tree on the left
but the staff sees the tree on the right.

Emeryville's Bogus Small Business Bonus Point System

Forget the Bonus Points: 

Small Business 'Bonuses' Should be in the Form of Free or Reduced Rent Paid by the Developers

News Analysis/Opinion
Arguably one of the most important pieces in the livability puzzle for a town is the idea that small locally serving businesses should be attracted and retained as an amenity for residents.  It's a subject near and dear to almost everyone in Emeryville as revealed in many public resident surveys.  That virtually everyone seems to want small locally serving business, especially retail, is equally remarkable as the fact that Emeryville always seems to be lacking in this department.  City Hall (or the free market) can't seem to deliver what everyone wants; it's a conundrum and a would be untenable condition in a democratic polity such as ours.  And yet still we wait for our non-formula independent bookstores or corner green grocers and the like.  Meanwhile the stuff we don't want, the formula chain stores and fast food restaurants proliferate in Emeryville.
What's needed is a legal contract that developers can't wriggle out of.  They're the ones who should be responsible for bringing us our locally serving retail.

This is Emeryville:
East Bay Bridge Mall
Low slung suburban style, baking asphalt.
Before the Planning Department came up
with the 'bonus point system', left to their 
own devices, this is what developers 
felt comfortable building
in Emeryville.

So it is probable there are hidden reasons why residents must go on waiting to get the kind of retail they want to see.  More on that later.
For now, let's take it as a given that people should get the town they want (as long as the law is obeyed).  It should be simply a matter of creating municipal policy for us getting what we want.  We'll chalk up this strange Emeryville disconnect to some kind of miscommunication for now.

As the City Council argues for how to attract and retain these small businesses we want by use of the Planning Department's 'bonus point system' as they have been of late,  now would be a good time to consider new more effective ways to go about this.

Historically in Emeryville, City Hall offered essentially nothing by way of intervention in the development of the town in attempt to steer developers to deliver any specific kind of retail.   What we got as a result is what the developers wanted to produce.  That hands off model brought to Emeryville the 1990's suburban style malls, notable at East Bay Bridge Center and the Powell Street Plaza; decidedly not what residents say they want.

This is Emeryville:
Powell Street Plaza 
The heart of Emeryville, regional shopping center.
Lots of parking and lots of formula chain retail.
1990's, this is what developers wanted to build but 
not what Emeryville residents wanted.

Later, as Emeryville land became more valuable, the Council directed the Planning Department to be more interventionist and the current 'bonus system' was invented.  This new system, still hands off in its demeanor, gives developers more rights to build denser and taller (and more profitable) projects that would normally be allowed so long as they include certain things the Council says they want.  In the case of their small business desires, especially in the retail field, the Council designed a fee idea where developers could pay into a small business fund at City Hall if they choose to get their bonus points.  City Hall then dispersed these fund monies to small businesses in the form of the Facade Improvement Program, the Paint Program and such.  The bonus system may have made Emeryville's small businesses look better but it has had little effect in achieving the desired results for attracting locally serving non formula retail as we have seen and as the Tattler has chronicled.

Now, the Council is looking to upgrade the bonus system by giving developers 10 bonus points to developers for every 1% of project construction valuation up to a maximum of 50%.  The idea is to funnel more money into City Hall's small business fund.
We think this idea is fundamentally flawed and it will not deliver the kinds of small business residents say they want.

This is Emeryville:
Bay Street Mall, Anytown USA
Emeryville's 'bonus point system' brings this
kind of development; the Gap and Old Navy.
Denser and more urban but still nothing but
major formula chain stores.
Emeryville residents don't go here.
We're still waiting for our locally serving retail.

The Tattler has long urged the City Council to take up this cause and in their defense, they did try an experimental approach with the Promenade Project on San Pablo Avenue back some years ago.  That shopping center was slated to become just another strip mall with formula fast food except Councilman John Fricke proposed the City directly intervene in the rental process in the newly built mall and offer reduced rent to desirable businesses by subsidy from the taxpayers.  That is how Arizmendi Bakery was able to afford the rent there.  Now, incidentally, Arizmendi is a success and making it on their own, the City subsidies having long since ended.
But the problem with the City subsidies is that City Hall is ill suited to getting into the commercial landlord business.  It's better to let the private sector do that.

Clearly, the way to get the type of retail and other small business we want is to get the developers, the ones with the expertise and the money, to do it.  Up until now, it's all been by verbal agreement.  And that's where the breakdown occurs.  The developers invariably tell the City they also want these locally serving non formula business renting the street front stores associated with their (usually residential) development proposals.  The developers tell us they also want what Emeryville residents want before their project is approved.  They assure the Council they'll work in good faith to secure leases for locally serving retail for their projects.
We all know how that's been working out.
The business that end up signing leases in the new store fronts are formula retail chains and fast food (because of the high rents associated with new construction).  Perhaps even worse, the store fronts sit empty for years because the (residential) developer isn't interested in playing commercial landlord, the store fronts having been provided by them as a condition for approval from the City.

This Could Be Emeryville:
Locally Serving Non Formula Retail
The only way Emeryville can get this is if the City
gets it in writing from the developers
before it approves the project.

The only realistic way to deliver locally serving non formula retail and other small business that Emeryville residents want is simply to require developers to guarantee in writing this will happen.  The resultant low rent receipts can be written off by the developer as a cost of doing business in Emeryville.  Like everything else, it needs to be in the form of a written contract, not a verbal agreement that has no force of law.  Rather than relying on some arcane or byzantine point system that isn't delivering the goods, Emeryville simply has to start demanding developers deliver what they say they will when it comes to small locally serving retail.

Locally Serving Retail Can't Afford the Rent in Emeryville

Fast Food, Mattress Stores 

& Empty Storefronts 

Is There No Other Way?

How Do We Get What We Want?

Opinion/News Analysis
Walk down San Pablo Avenue in Emeryville and take a look around at the built environment.  Aside from specific food purveyors and retail establishments along the sidewalk, you'll note there's not much going on in the way of architectural heritage.  In this hundred and twenty year old town you'd be hard pressed to find a building built much before the George W Bush presidency.  Virtually every building is new.  And it's the same way pretty much everywhere in Emeryville. Twenty five years ago, Emeryville was filled with historic buildings from the nineteenth and early twentieth centuries.  Other than some existing single family residences and the Watergate neighborhood, virtually our whole town has been rebuilt in the span of a generation. So much for Emeryville history.

Not Emeryville
There's none of this in Emeryville...

Welcome to the Emeryville as imagined and built by Councilwoman Nora Davis and her latter day assistants on the Council Kurt Brinkman and Ruth Atkin.

Emeryville used to be a town made from bricks. Actual bricks, not the 'lick 'n stick' kind that have invaded the world of shopping malls of late.  Where before there was a real town with lots of beautiful and historic structures; warehouses, nineteenth century factories, an elegant three story Beaux Arts turn of the century triangle shaped bank building, vernacular storefronts on San Pablo Avenue and a classic Art Deco commercial building with a 1930's aquiline parapet and round windows, now there's....well there's what we have: anonymous new buildings with chain stores and fast food.

but there's plenty of this....

New Empty Retail Space
The tenants that are renting the retail spaces in these new buildings have their corporate headquarters in far flung locals and are mostly selling stuff you don't want...stuff like mattresses and fast food.  But there's something else.  And it's not something that's here, rather it's something not here.  While there's a lot of retail space at the sidewalk level in these new buildings, with more retail space in the pipeline, what you'll notice as you walk Emeryville is the street-scape has a Great Depression feeling about it.  There's lots of empty spaces, opaque paper over the doors and windows.  The multi-story residential building may be ten years old but the retail space at the ground level is empty, and it's been that way since the building was completed.

 of course, extra helpings of this...

 It's the same across town: empty retail spaces in new buildings going unrented.  In a city growing, becoming more affluent with lots of tech boom cash floating around, these retail spaces sit idle.  Back before the building boom, Emeryville was poorer but more alive, the retail spaces didn't sit empty like this.

In the mean time, today's Emeryville residents are clamoring for an authentic town.  Other than the parks and bike/ped paths that are essential to a desirable urban public commons, new residents and old alike want the built environment to serve as an ersatz commons; with retail that suits their needs.
Who can blame them?

Won't Pencil Out
If you can manage to sit through a City Council meeting when a developer is guiding one of these ubiquitous (mostly residential) development projects through the process, going through the motions on the way to approval, you'll hear them lay it on thick and heavy.  They'll tell the Council members what they want to hear: the proposed project, Acme Lofts say, is family friendly(!) and they're sure it'll create a vibrant and activated neighborhood with locally serving retail on the sidewalk front.  It won't be put in writing but the developer will assure everyone how wonderful the retail will be.  Once those boxes are checked, the proper words have been spoken, the project can now be approved.
After, when we don't get what was advertised, if you ask the staff or a Council member, they'll tell you (if they answer you at all)  they tried to get the kind of retail tenants that were promised but it just couldn't pencil out; the rent is too high.  Maybe next time.  Thanks for your concern.  

but mostly it's just loads of this.

And that, for all it's obvious and phony histrionics is how it's done. But smugness aside the "won't pencil out" thing is actually true.  The rent IS too high in these new buildings to support the kind of retail we want.  The only retail tenants that can afford this new construction rent are the national chains.  So if we listen to Nora Davis and her minions on the Council, it's simple economics: we now find ourselves in a new city that by definition can only support fast food or national chain retail.  Trust them, nothing can be done...join with the burger...learn to love it.

Cost Of Doing Business
Developer landlords commonly don't care about the retail component of their projects.  They're interested in building (rental) residential projects.  The retail is put in only because the City requires it.  Many of these developer landlords would rather just let the store fronts sit empty rather than bother with being a retail tenant manager.  The required retail storefronts are chalked up as a cost of doing business.

So we're left with either empty retail space or national chains including fast food.
But aside from us not getting what we want, shuttered retail has a way of negatively downgrading a town, both in terms of bringing down property values and psychologically depressing a neighborhood.  This empty storefront paradigm in Emeryville is actively harming the viability for locally serving neighborhood authentic retail.

Who could have guessed we would wind up with a terrible retail situation like this when we began our Nora Davis lead demolition spree a generation ago?   The answer is any proper city planner....like the ones we hire to staff our Planning Department.  They know the way to accommodate the kind of retail Emeryville residents are looking for is to craft your city with a mixture of new and old buildings.
The old buildings are not to be retained simply because they're nice and directly connect people with their heritage (although they do that well).  No,  the main function of old buildings (from a civics perspective) is they provide cheap rent for locally serving neighborhood retail.  Cheap rent also has the added benefit of helping incubate start-up entrepreneurial business it should be noted.
This concept is not radical or even controversial.  It was spelled out by legendary Canadian city planner Jane Jacobs 50 years ago.  It's taught in universities across the land.  This is a close to as it comes to gospel for contemporary city planners.  Here in Emeryville, the bureaucrats in the Planning Department know this but they also know who runs the ship here.  And they're not rocking the boat.  That's going to have to be the resident's job.

It's your town; learn to love it.

Having said all this, at this point in our 'rape and scrape Emeryville' frenzy it's too late to start saving older buildings in hopes of maintaining a stock of cheaper rental spaces for neighborhood serving local retail.  That horse has left the barn as they say.  Or maybe we should say 'that burger has already been eaten'.  For other than to provide a little scenery relief, there's not enough older buildings left in town to make a difference in this equation.
But it's important to note we're not now paralyzed with nothing to be done.  There's a small glut of development projects moving forward right now at City Hall: the Sherwin Williams project, the Maz project, the Golden Gate Key project, the Avalon Bay project and the Marketplace project.  These projects all contain ground level retail space.

A New Coda: How To Get Locally Serving Retail
To salvage something by way of the idea of locally serving neighborhood retail with these last few large projects now securing approval at City Hall, a monkey wrench needs to be thrown into the works.  We know the same old way of doing business will only result in the same old result: nothing but broken promises for Emeryville residents.
What we need now is retail subsidized by the developers themselves, done by written agreement and the force of law.
The City could set up the contracts so that the developers would be allowed to charge market rates for their new retail spaces (from an approved list of tenants; no fast food for instance) for a certain amount of time, followed by a sliding down rent reduction according to a pre-agreed upon schedule.  The rent would slide down until an approved (locally serving) tenant could afford it.  This new coda would be written off by developers as the new cost of doing business in Emeryville and would comport with our new creed that we should 'sell' ourselves at the price the market will bare.  If developers don't like it in the new Emeryville they can move on to Fresno.  We expect the developers and the Chamber of Commerce to push back vigorously against this.  That's what they do; fight for business interests.  But we're finished listening only to them.  We want our interests looked out after as we develop the last bit of our town.

This idea would also go a long way towards securing worker owned co-operative businesses that residents want and what we need to increase and stabilize wages in the retail sector.

This sliding rent subsidized by the developers policy, if promulgated by our City Council, is what leadership looks like.  This is how we can finally secure something for ourselves in Emeryville that's not part of the abstract and greater public/private, socialist/free market debate that seems to be poisoning public policy elsewhere and has heretofore been a silent partner here.  We need to use the tools at our disposal to create a livable town.  Forcing developers to play by our new rules with the last remnants of fallow land left, is such a tool.  The developers use every tool they have to maximize their profits, so why shouldn't we?  We're only hamstrung insofar as we let ourselves be.  Let's stop acting the rube and deliver what we want; locally serving neighborhood retail.

'Parkside' Trees: City Staff Conspires With Developer To Hide Information

Mr Adrian McGilly, husband of Mayor Jennifer West, levels an explosive accusation; the Planning Department staff at City Hall, deliberately misled the city council in a report about publicly owned street trees a developer wishes to cut down as part of the new 'Parkside' condominium project now being built at Hollis and Powell Streets.  The Secret News covers the story:

Emeryville City Staff Deliberately Misled City Council

October 1, 2012

By Adrian McGilly

When the city failed to post notices on the trees to be cut down, Adrian McGilly took it upon himself to do so. While such notice is required under the city’s Urban Forestry Ordinance, the city is exempt. (Click on photos to enlarge.)

Open letter to City Council says staff instructed “Parkside” developer to delete portions of arborist’s report

City Council Members:
Attached is the Staff Report you all received prior to voting to authorize the removal of 33 mature trees along Stanford [Street].  It includes the arborist report commissioned by Archstone and produced by Hortscience Inc., which recommends the destruction of those [public] trees. As you know, I find it sad and misguided that mature trees will be destroyed on a site that is being turned into a public park. I find this decision so repulsive that I have spent a lot of time trying to understand how it happened. I want to share with you some of my findings...

Click HERE for the rest of the story.

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".