Downtown Oakland Specific Plan Approved

| Justin A. Zucker
Oakland

Last month, the Downtown Oakland Specific Plan (“DOSP”) was adopted by the Oakland City Council, with the DOSP environmental impact report being certified July 16 and the implementing Planning Code, Zoning Map, and Municipal Code amendments passing on second read July 30.  The DOSP is intended to guide development over the next twenty years, to meet the projected housing and employment needs in Oakland’s downtown.  The plan encompasses approximately 850 acres, and is generally bounded by 27th Street to the north, I-980, Brush and Market Streets to the west, Embarcadero and Jack London estuary waterfront to the south, and Lake Merritt and Channel to the east.

Approval of the DOSP is the culmination of a near decade-long process.  As previously reported, the preliminary draft DOSP was released in 2019 with the draft zoning amendments released in April 2022 and the Zoning Incentive Program released in July 2022.  The delay in adoption of the DOSP was to allow for enhanced community engagement, adapting to the evolving social and economic conditions stemming from the COVID-19 pandemic.  The DOSP has been designed to help prevent displacement of both people and culture, while encouraging development of downtown.

The DOSP projects the addition of approximately 18.3 million square feet of new commercial space, 1.3 million square feet of new institutional space, and 500,000 square feet of new industrial space, resulting in approximately 57,000 jobs and $41 million in impact fees to fund affordable housing and transportation improvements.  In addition, 29,000 new housing units are planned for by the DOSP, including approximately 4,000-7,000 income-restricted affordable units, that would generate approximately $480-544 million in one-time impact fees to fund affordable housing.

Some changes to the DOSP since publication of the draft include:

  • Preservation of industrial land uses closest to the West Oakland industrial area, removing the “Green Loop” and other non-industrial improvements from Howard Terminal now that the Howard Ballpark is no longer going forward.
  • Development intensity changes clustered in five small areas, including portions of the West of San Pablo Planning sub-area, specifically from Grand Avenue to 20th Street and east to Martin Luther King Jr. Way (height increases from 85 feet to 175 feet in the Final Draft Plan, 7.5 FAR to 12.0, and from 200 square feet of lot area per unit for residential density to 110 square feet of lot area per unit), as well as between 14th and 15th Street between Martin Luther King Jr. Way and Jefferson Street (height increases from 175 feet to 275 feet in the Final Draft Plan, 12.0 FAR to 12.0/17.0, and from 110 square feet of lot area per unit for residential density to 90 square feet of lot area per unit).
  • Prohibiting demolition of the principal building at the sending site leveraged for the transfer of development rights program.
  • Requiring ten percent of the affordable housing Zoning Incentive Program benefit to be provided as an in-lieu fee rather than allowing entirely on-site benefits where projects propose at least 125 units above the base.
  • Creation of a new alcohol use special permit, relaxing controls in the non-residential districts within the plan area, removing the need for a major conditional use permit for alcohol permits.

There are too many specifics of the DOSP to include in an email update. Please contact us if you have any questions.

 

Authored by Reuben, Junius & Rose, LLP Attorney, Justin A. Zucker.

The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient. Readers should consult with legal counsel before relying on any of the information contained herein. Reuben, Junius & Rose, LLP is a full service real estate law firm. We specialize in land use, development and entitlement law. We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.

Oakland: Housing Approved & Zoning Updates

| Justin A. Zucker
Zoning

Golden West Project CEQA Appeal Denied

Yesterday, the Oakland City Council unanimously denied the appeal of a 222-unit State Density Bonus project, including 16 units for very low income households, on a vacant lot next to the West Oakland BART Station, aka the Golden West project (the “Project”). The City Council upheld the Planning Commission’s March 3, 2021, unanimous approval of the Project.

Appellant appealed the Planning Commission’s decision approving the Project and the environmental review performed for the Project. Appellant argued the Project’s environmental review did not comply with the California Environmental Quality Act (“CEQA”), demanding that a focused or infill EIR be prepared alleging hazardous materials impacts.

An EIR was prepared, however, which the Project tiered off of. The Project site is within the West Oakland Specific Plan area and was evaluated by the West Oakland Specific Plan Environmental Impact Report (“EIR”). The City’s independent environmental consultant analyzed and determined there was nothing peculiar about the Project than what was programmatically analyzed in the West Oakland Specific Plan EIR. Upon review, City staff determined that “all hazardous materials concerns were previously addressed in the [West Oakland Specific Plan] EIR” and “conclude[d] that the requirement for any supplemental and/or infill EIR would be inappropriate and not justified.” No further CEQA review was required. Tiering off the West Oakland Specific Plan EIR was found to be proper.

Reuben, Junius & Rose, LLP, led by Justin A. Zucker, is happy to have successfully assisted Project sponsor in navigating this Project from concept and entitlement through appeal.

Downtown Oakland Specific Plan Zoning Incentive Program Released

As previously reported, the Downtown Oakland Specific Plan is working its way to the City Council for adoption. One of the main purposes of the new specific plan is to address issues with existing zoning controls. A key element of the Downtown Oakland Specific Plan is establishment of a Zoning Incentive Program (“ZIP”).

On July 7, 2022, Oakland released the details of the Downtown Oakland Specific Plan ZIP. The ZIP allows developers to elect to provide one or more community benefits or pay an in-lieu fee to the City to fund such benefits, in exchange of increases in allowable building height and/or density. Projects may only participate in the ZIP if they are within one of the three ZIP areas designated in the Zoning Map. The three areas are generally located in:

  • Jack London Square – area along the Embarcadero, including the Victory Court area;
  • Central Downtown Oakland – area extending one to three blocks out from Broadway between 10th and 20th Streets and from 14th Street between Castro Street to Lake Merritt Boulevard; and
  • Koreatown/Northgate – area surrounding Telegraph Avenue along 23rd, 24th, 25th, 26th, 27th and 28th

Under the ZIP, a project providing one of the following will result in allowance for additional density or non-residential floor area:

  • On-site, below market rate ground-floor commercial space – ground floor space provided at fifty percent (50%) of market rate rent for qualified retail, commercial, arts, and non-profit tenants;
  • On-site affordable dwelling units – providing on-site affordable dwelling units allows for increases over base density but not non-residential floor area;
  • Public restroom facility(ies) – provision of ground-floor, gender-neutral restroom facilities open to the public during work hours;
  • Streetscape, open space, and flood control improvements – provision of public streetscape and/or open space improvements includes landscaping, tree planting, and public art installation with flood control improvements including raising public lands, construction of drainage facilities, retaining walls, and other similar improvements;
  • In-Lieu Fees – provision of an in-lieu fee to be used by the City for the above-listed community benefits or for job training programs. The in-lieu fee per square foot of commercial development (non-residential floor area) ranges from $10 to $20 with the residential development in-lieu fee ranging from $12,000 to $22,000.

On July 13, 2022, the Zoning Update Committee held a hearing on the proposed ZIP. At that hearing, no action was taken by the Zoning Update Committee. An economic analysis of the ZIP is being prepared and will be reviewed and analyzed at the next scheduled Zoning Update Committee hearing on August 24, 2022.

Reuben, Junius, & Rose LLP has experience with entitlement projects and land use diligence throughout Oakland, and we are pleased to have worked on some of the largest housing projects approved in the city over the last several years. We will continue to track this significant rezoning and community planning effort as it moves forward.

 

Authored by Reuben, Junius & Rose, LLP Attorney Justin A. Zucker.

The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient.  Readers should consult with legal counsel before relying on any of the information contained herein.  Reuben, Junius & Rose, LLP is a full service real estate law firm.  We specialize in land use, development and entitlement law.  We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.

Oakland ADU Updates: Legalization Amnesty Program

| Justin A. Zucker
Amnesty

As I previously reported, Oakland is in the process of updating its Planning Code regulations pertaining to accessory dwelling units (“ADUs”). On December 21, 2021, the Oakland City Council heard and passed on first reading legislation amending Oakland’s ADU controls (the, “Legislation”). The proposed amendments encourage ADU production by reducing barriers through the adoption of streamlined approval processes consistent with State law. One of the proposed programs by the Legislation is an amnesty program to legalize unpermitted ADUs established and occupied in Oakland prior to January 1, 2021.

The amnesty program consists of two elements that encourage the legalization of existing eligible unpermitted ADUs. First, a property owner may request a waiver from provisions of zoning or development standards, e.g., setbacks, that would preclude the preservation of an eligible unpermitted ADU.

Second, a property owner may request a five year delay in enforcement of Building Code requirements if the unpermitted ADU was built prior to the effective date of the Legislation. The ability to request a five year enforcement delay is available until January 1, 2030. Property owners would be allowed to bring their existing, eligible, unpermitted ADU into compliance with current Building Code standards without incurring any enforcement penalties or fines. This amnesty would last up to five years from the date the enforcement delay is granted, meaning the latest the five-year enforcement delay can be in effect for a specific ADU is December 31, 2034. Amnesty  does not apply to structures that pose an immediate risk to public health and safety.

In addition to creating an amnesty program for legalizing existing unpermitted ADUs, the Legislation makes several changes to the existing ADU development controls, including:

  • Category Three ADU. The Legislation establishes a new attached ADU category that may combine both converted space within an existing envelope of a multifamily building and a newly built addition to a building footprint.
  • Height Increase. Exceeding State law, the Legislation allows two-story ADUs up to a maximum height of 20 feet, as compared to 16 feet, if an ADU complies with the minimum four-foot side and rear setbacks required for detached ADUs.
  • Envelope Expansion. The Legislation permits additional envelope expansion as part of the conversion or replacement of an existing accessory structure on a small lot to allow construction of one internal conversion ADU. The ADU must have a total structural footprint no greater than 800 square feet, with the height of the addition no more than 16 feet. A “small lot” is defined as those no greater than 3,000 square feet or no greater than 35 feet in lot width mean.
  • Trees. The Legislation calls for project sponsors to plant one new tree on the subject lot or within the public right of way fronting the subject lot per every 500 square feet of detached ADU floor area.
  • ADUs in Front Setback. Consistent with State law, the Legislation permits one ADU of a minimum size of 800 square feet, up to 16 feet in height, in the front setback if the lot’s configuration precludes creation of the ADU anywhere else on the lot.
  • Multifamily Internal Conversion ADUs. The Legislation clarifies that multifamily properties are permitted one internal conversion ADU or up to a number equal to 25% of the existing units per multifamily building (not per lot). This clarification addresses situations where more than one multifamily building is located on a single lot. In which case, each multifamily building on the lot would be allowed to add internal conversion ADUs up to a number equal to 25% of existing units.

The Legislation is scheduled to return to the Oakland City Council for the second and final hearing for passage. Having been unanimously passed at the December 2021 Council meeting, it is anticipated that the Legislation will be finally passed by the Council next week. We will continue to monitor the Legislation and keep readers updated.

 

Authored by Reuben, Junius & Rose, LLP Attorney Justin A. Zucker.

The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient.  Readers should consult with legal counsel before relying on any of the information contained herein.  Reuben, Junius & Rose, LLP is a full service real estate law firm.  We specialize in land use, development and entitlement law.  We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.

Accessory Dwelling Units – Oakland Update

| Justin A. Zucker
ADUs

As previously reported, a slate of new California State laws became effective on January 1, 2020, that encourage the construction of Accessory Dwelling Units (“ADUs”). State law holds that until a city adopts an ordinance that complies with State law, a city’s existing ADU regulations are null and void and only State standards may be applied. Currently, the City of Oakland’s ADU regulations are not in line with State law. In response to this inconsistency, Planning Department staff is proposing amendments to its ADU regulations to bring them in line with State law.

Below are some of the key changes to Oakland’s ADU regulations:

  • ADU permit approval within 60 days of application submittal.
  • Ministerial approval for one interior, attached, or detached ADU and one Junior ADU (“JADU”), which are a type of ADU no more than 500 sf with an efficiency kitchen, but do not require a private bathroom, per single-family lot.
  • Ministerial approval of a detached ADU, provided it is up to 800 sf, 16 feet in height, and maintains 4-feet rear and side setbacks.
  • Ministerial approval of at least one interior ADU on multifamily lots, up to a number equal to 25% of the existing units, that involves conversion of non-habitable space, and no more than two detached ADUs.
  • Conversion of existing accessory structures, such as carports and garages, into ADUs without requiring off-street parking replacement if the parcel is within half a mile walking distance of public transit.
  • Continued prohibition on all new ADUs and JADUs within the S-9 Fire Safety Protection Combining Zone Overlay (basically, the Oakland Hills) and now on streets with a width less than 20 feet or cul-de-sacs greater than 600 feet in length, due to the limited space for cars to escape in an emergency, such as a fire, natural disaster, or a health crisis.
  • Consultation with Historic Preservation Staff is required for ADUs proposed on a Local or California Register property visible from the public right-of-way. Placement of an ADU in front of a main building on a Local or California Register property is only allowed if the lot conditions or requirements preclude an ADU of minimum allowed size anywhere else on the lot.

In addition, the proposed Planning Code amendments introduce objective development standards consistent with State law:

  • Same roof pitch, visually similar exterior wall material, and predominant door and window trim, sill, recess and style as the primary dwelling structure for ADUs located in front of a primary structure, attached to it, or visible from the public right-of-way. Applicants may pursue approval of different finishes or styles through the Small Project Design Review process.
  • Regulation of balconies, decks, or rooftop terraces per established standards of the underlying zone.
  • Requiring at least one tree per every 500 sf of new ADU floor area, with tree(s) allowed anywhere on the lot or within the public right-of-way in front of the site.
  • ADUs that do not comply with the objective standards may go through the Small Project Design Review process.

These proposed Planning Code amendments are anticipated to be reviewed and considered by the Planning Commission later this spring with adoption by the City Council this summer. We will continue to monitor this proposed legislation and keep you updated.

 

Authored by Reuben, Junius & Rose, LLP Attorney Justin A. Zucker.

The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient.  Readers should consult with legal counsel before relying on any of the information contained herein.  Reuben, Junius & Rose, LLP is a full service real estate law firm.  We specialize in land use, development and entitlement law.  We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.

Plan Updates in Oakland and SF

| Mark Loper
Downtown Plan

This week, we discuss Oakland’s most recent status report on its proposed Downtown Specific Plan and San Francisco’s kickoff of its own General Plan update.

Oakland’s Downtown Plan Progresses, with Changes

Oakland’s sixth area plan—and the first to focus exclusively on the downtown area—is moving forward again, but with modifications based on feedback provided on the draft Environmental Impact Report (“Draft EIR”) and in response to Covid’s impacts on urban life, including efforts to address the City’s acute housing shortage and homelessness and affordability crisis. The City now anticipates City Council review of the Plan by the end of the calendar year.

The Downtown Oakland Specific Plan (“DSOP” or “Plan”) has been in the works since the mid-2010s. The Plan and accompanying Draft EIR were published in August 2019; they envisioned and evaluated 29,100 new residential units, approximately 17 million square feet of office, nearly 2.5 million square feet of retail, and over 1 million square feet of “flex” commercial and industrial space. It covers many different neighborhoods and districts in downtown, including Kono, Uptown, San Pablo, the “central core” of Downtown, Lakeside, Old Oakland, Jack London and the surrounding area south of I-880, and Laney College.

The City’s brief summary update a few weeks ago explains that changes to the Plan’s proposed zoning controls will “address the changing nature of retail” presumably brought on (or exacerbated, depending on your perspective) by the pandemic, identify and regulate priority areas for arts and institutional cultural uses, and encourage increased development in exchange for enhanced community benefits. This voluntary “Zoning Incentive Program” as proposed will set clear metrics for public benefits necessary to achieve enhanced density, such as affordable housing, reduced rent for non-profits and arts organizations, and homelessness services.

Oakland is also undertaking a study on options to fund more housing. These include potential new or increased impact fees, an inclusionary housing requirement that could be more robust than the City’s current policies, and infrastructure financing.

The City anticipates three more phases of planning before the Project and accompanying environmental review are considered by Council: first, revising the DSOP, responding to comments on the Draft EIR, drafting new zoning regulations, and analyzing housing funding options in the Winter and Spring of 2021; next, completing the revised DSOP, responding to EIR comments, completing the housing funding analysis and updated zoning regulations in the Spring and Summer of 2021; and finally, holding adoption hearings on the final DSOP, EIR, zoning amendments, and housing funding program in the Fall and Winter of 2021.

Reuben, Junius, & Rose LLP has experience with entitlement projects and land use diligence throughout Oakland, and we are pleased to have worked on some of the largest housing projects approved in the city over the last several years. We will continue to track this significant rezoning and community planning effort as it moves forward.

San Francisco Kicks Off General Plan Update

Later this month, the San Francisco Planning Department will hold a series of virtual public meetings kicking off an update to San Francisco’s General Plan. 12 meetings are scheduled to run from March 15-26. City staff will discuss topics such as housing, transportation, climate resilience, environmental justice, and racial and social equity. The introductory session is set for Monday, March 15, and one or two events per day focusing on a specific aspect of the General Plan will follow. We are monitoring the update closely and will keep you up to speed as the City releases more information.

 

Authored by Reuben, Junius & Rose, LLP Attorney Mark Loper.

The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient.  Readers should consult with legal counsel before relying on any of the information contained herein.  Reuben, Junius & Rose, LLP is a full service real estate law firm.  We specialize in land use, development and entitlement law.  We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.

Impact Fee Update

| Jody Knight
Affordable Housing

San Francisco School Fees Expanded

On January 11, 2021, San Francisco issued the 2021 Impact Fee Schedule. One change of note is the calculation of the San Francisco Unified School District Fee (“School Fee”) as applied to multi-unit residential developments. The change would increase the fee on such developments by increasing the space in the building subject to the fee.

The School Fee applies to new residential developments and additions to existing residential properties of greater than 500 square feet. Although the School Fee is collected upon issuance of the first construction document along with the fees paid to the City and County of San Francisco, the School Fee is subject to its own calculation rules under California Government Code Section 65995(b)(1).

Currently, San Francisco applies the School Fee to “total habitable space,” defined as space in a structure used for living, sleeping, eating or cooking. The calculation excludes bathrooms, toilet compartments, closets, halls, storage or utility space, and similar areas.

Effective February 1, 2021, the assessable space for calculation of the School Fee for any new residential development will include all of the square footage within the perimeter of the structure. Space still excluded from the Fee calculation includes any carport, covered or uncovered walkway, garage, overhang, patio, enclosed patio, detached accessory structure, or similar area.

The change is based on a 2018 appeals court decision that settled the long-contested question of whether school district fees should be assessed on interior common areas. 901 First Street Owner, LLC v. Tustin Unified School District held that interior space outside of individual units, such as interior hallways, storage rooms, mechanical rooms, fitness centers, lounges, and other interior common areas should be included in the fee calculation under the language of Government Code Section 65995(b)(1). Based on this, the School Fee was expanded, which could lead to a significant increase in fees for projects anticipating paying the fee on the square-footage of the units only.

Oakland Eyes Increased Affordable Housing Fees

Oakland is currently undertaking a mandatory five-year review of its impact fee program. The focus of the review for many is impact fees for affordable housing. Currently, affordable housing fees are tiered depending on the type of housing proposed and the location of the property in one of three regions of the city based on the level of demand for development in that region. There is debate about whether the tiered system should be eliminated, as well as whether fees should be increased over the tiers.

Affordable housing advocates believe that fees should already have been increased to fund construction of affordable housing during the last several years of strong development. Developers have expressed concern that higher impact fees could stifle further development.

Officials and advocates are also looking at other aspects of the implementation of affordable housing requirements. Discussion is underway about how affordable housing is best produced, whether through construction of on-site affordable units or through funding construction of affordable units with impact fees. Also under review is the policy of collecting 50% of the affordable housing fee at permit issuance and 50% only after a certificate of occupancy is issued.

We will continue to watch the Oakland impact fee review process as it unfolds in 2021. We will also watch for earlier changes to fees spurred by the current debate.

 

Authored by Reuben, Junius & Rose, LLP Attorney Jody Knight.

The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient.  Readers should consult with legal counsel before relying on any of the information contained herein.  Reuben, Junius & Rose, LLP is a full service real estate law firm.  We specialize in land use, development and entitlement law.  We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.