February 19, 2007

RE: Proposed Subsidized Senior Housing Project at High & MacArthur

Dear Merchants & Neighbors,

I am an Oakland land use attorney who was retained by merchants and residents in the Laurel District regarding a proposal to construct a five story, 112 unit subsidized senior housing project at the corner of High St. and MacArthur.

This letter is in response to a newsletter item from Council member Jean Quan in which she alleges that at a recent community meeting, “Some people remained opposed to senior housing at the site. On the whole, most people who attended supported the project.” I attended the meeting and disagree with Council member Quan’s characterization. My clients fortunately taped the meeting and are preparing a transcription which will be available to the public shortly at the following website: citizens4oakland.com (1).

A. The Community has legitimate concerns about this project given its deficiencies.

It is important to understand the issues with this project and why so many people both at the meeting and in the community have raised serious concerns about it including the following highlights:

• The Laurel is zoned commercial and yet the proposed project just has a tiny bit of “token” retail with only five parking spaces leading many merchants to be concerned about the future viability of the Laurel. When the next developers come along, will they want to do the same thing - - use a token amount of commercial space to squeeze in a huge residential project going up five stories or more? Many merchants don’t want ground level token retail after investing their life savings in creating an ever-improving retail corridor and district.

• The Laurel business district is zoned for 40 feet height allowing up to three or even four floors which is more than enough height to construct genuine ground floor retail with generous residential above and still stay within zoning and stay consistent with the type of structures along the Laurel business district. If the City grants the variance for the extra floor, it will set legal precedence allowing other developers to build up to the same height or to ask that they also receive a variance and build at an even higher level. People who bought their homes and businesses near the project are legally entitled to require the city to live up to its zoning contract and not markedly change the height of buildings in the neighborhood.

• The project is insensitive to the elderly in that it exposes them to a very high level of particulate matter since the housing is adjacent to the 580 freeway placing elderly people at high risk for aggravating or causing lung diseases and premature mortality. The developer’s plan for windows that don’t open and a ventilation system don’t solve the problem. The units are each a measely 540 square feet, with windows on one side facing an internal courtyard and windows on the other which don’t open looking into a hallway.

• This project probably will require City tax dollars according to one meeting attendee who works with affordable housing projects. He figured out that the project was short $3.5 million based on costs, tax credits and income. Without city tax money there was no way to pencil out the project despite the Council member and the developer’s claims that there would be no tax dollars involved. Another attendee pointed out that tax credits are not “free; it just means tax money being used for this project and the citizens having to pay more taxes for other things.” Whether the project will eventually cost city tax money or not, it needs to deliver something more than poorly designed and located senior housing inconsistent with the neighborhood in so many regards.

• Traffic near the project site precludes any rational, safe traffic plan. As one attendee pointed out, how do the elderly get anywhere? Given that there are four lanes of traffic for the elderly to cross High St. and that there are no specifics for a shuttle service, are they forced to remain inside 24/7? Also, the developer thinks that a little sign telling people (including nursing and janitorial staff) to turn right only will prevent people from turning left onto MacArthur. Many people think that nobody is going to turn right leading onto the freeway or Mills College and then do a u-turn. They are going to turn left, further causing problems with already backed up traffic conditions during peak times.

• There is reason to be concerned about whether the developer has sufficient experience to build attractive senior housing. During the meeting, one of the attendees requested from the developer a project that they had completed similar to what is proposed here and for the address. After some hesitation, the developer came up with an address for a comparable project with the one proposed here. (The developer has never worked in Oakland and their completed projects are in Southern California.) After some research, here is a photo of the sample, comparable project (2):

B. There are legal reasons why the project should not go forward.

Council member Quan is not an attorney or a land use planner and therefore must be excused for misunderstanding some of the legal and planning aspects of zoning and general plans. It is not correct that some people at the meeting preferred “two story buildings based on the old zoning versus those who see mixed use buildings with housing above retail on major high traffic boulevards according to the city’s general plan.” Council member Quan has confused a number of concepts in this statement and misunderstood the attendees. Nobody suggested that the Laurel should not have ground level retail with residential above. The issue was with the developer’s tokenism of retail as the main use for the project.

More importantly, in my opinion the problem with the project has nothing to do with “old zoning.” Both our City’s zoning code and our general plan make it clear that variances should only be granted under very special circumstances and the test for obtaining them is extremely rigid. As mentioned above, this is because once a city allows one developer to build over the height restrictions, others legally can demand the same privilege - - and it is a privilege to violate a neighborhood’s height limit after you have invested your financial “all” in your property or business. Height changes easily cause major changes in a neighborhood. Imagine if someone bought three houses next to you, tore them down and Council member Quan wanted the City Council to vote to approve a five-story structure next to you?

Furthermore, there is no language in Oakland’s General Plan either refuting the extremely strict language regarding the granting of variances (not to be confused with conditional use permits) or overriding the zoning height requirement. As is typical with most city general plans, ours is very – well, general and does not contain height restrictions. That is why the City planning department required a variance to begin with.

C. Potential conflict of interest by the Oakland City Council.

I’ve received several phone calls since the meeting from people who either attended that meeting or one other with Council member Quan. They have pointed out that the Council member appears to be “selling” the project and in one case was quoted as stating something to the effect that there was no point in anyone opposing the project because it was a done deal, suggesting that the permits have already been granted in reality, just not in form.

Knowing Council member Quan I seriously doubt that she intended to say anything or even suggest that she and/or the City Council had predetermined the outcome of the permitting process on this project. To do so would be a major violation of the Brown Act that guarantees us a right to be heard and have our politicians consider our views in a public hearing setting BEFORE granting permits. To the extent that a council member goes further and gives directions of any type to city staff, under our city charter would be a felony. That is why I doubt Council member Quan would step over the line in any way that dissuaded public participation at hearings.

However, I do concede that Council member Quan has been much more involved in negotiating and working closely with the developer than I normally see with other city council members. Her newsletter and statements at the meeting suggest that she has, to some degree, become a proponent of the project rather than an objective judge of the issues involved with the project. To a great extent, that explains much of the community’s dissatisfaction with the process. Holding a community meeting two weeks before the Planning Commission hearing, for example, was not a good substitute for early collaborative discussions with the merchants, residents and developer. Once plans were drawn up, it was very late to start working collaboratively on issues such as whether the area needed to be rezoned for higher density and what the local merchants and residents wanted at the site.

When for any reason a city council member becomes highly involved with a land use project it is difficult for them to see the issues in a critical light, working to everyone’s detriment. While I can’t say that this has happened with Council member Quan, I do believe that any permits granted for the project should go before our Alameda County Superior Court for review. In that forum, an objective judge who better can understand the legal ramifications of granting variances will review the matter.

I especially feel that the health and safety issues need to be examined carefully and that this has not yet occurred. Given that the City has failed or refused to examine the particulate matter issue, that the traffic report is insufficient in my view and that there are other potential environmental issues, it’s my intention to raise these issues as well. I have notified the developer of my intentions and that my clients have authorized me to go forward with my recommendations.

Hopefully, this letter combined with making the meeting tape transcription public will help inform you about this project and its shortfalls. Is should also assure you that your participation does count regardless of anybody’s claims to the contrary.

Please note that this letter, Council member Quan’s public newsletter, a copy of the meeting tape and transcription will all go into the record for later court review. Further note that I have copied, among others, the developer and property owner who are involved parties, Mayor Dellums, my clients and of course, Council member Quan.

Very truly yours.

Leila H. Moncharsh
Leila H. Moncharsh, J.D., M.U.P.
Veneruso & Moncharsh

cc: Mr. Alex Hahn (owner)
AMG (development company)
Mayor Ron Dellums
Planner Robert Merkamp
Planning Commission
City Council
Richard Cowan – aide to Council member Quan
Council member Quan (by fax)

(1) This website is up and running and will contain material including this letter shortly.

(2) The project is located at 12100 Sheldon St., Sun Valley in Los Angeles.. I contacted Cameron Johnson of AMG (developer) and faxed him a copy of the above photo. He verified that the main large tan and yellow building is AMG’s project, but not the parking and other structures shown in the photo that are not part of it.