This Week in Bay Area Land Use

Planning Commission to Consider BMR Grandfathering Ordinance this Thursday

As we last reported, Supervisors Peskin and Kim have introduced “grandfathering” legislation at the Board of Supervisors that would reduce the 25%/33% BMR requirement set in June’s Charter amendment for projects that are not yet approved but have had an application on file since at least before January 1, 2016.  The Planning Commission will be considering the legislation this Thursday at noon in room 400 of City Hall.

As the details of the grandfathering legislation have been absorbed over the past few weeks, two things have become clear.  First, the legislation would modestly increase the on-site BMR rate from 12% to a range of 13%-14.5% for projects with environmental evaluation applications filed prior to January 1, 2016.  Second, there are sizeable “carve-outs” from this grandfathering for projects in the following categories:

– Located in the UMU zoning district and demolishing any existing PDR use;

– Located in the Mission Street NCT district;

– Located in the Youth and Family Zone Special Use District;

– Are 120 feet in height or taller (these projects would be grandfathered if providing BMR units on-site; the off-site and in-lieu fee options would not be grandfathered and rather subject to the 33% rate)

Planning Department staff has prepared a thorough analysis of the legislation, which can be found here:  Staff also proposes a number of modifications to the legislation, including the removal of the carve-outs listed above.  These carve-outs would subject numerous projects to the increased BMR rates despite having an application on file for years just like other projects eligible for grandfathering.

We recommend members of the development community send letters or attend the Planning Commission hearing to support the elimination of these broad carve-outs.  The Planning Commission will vote on Thursday on what revisions to the ordinance to recommend to the Board of Supervisors.

Oakland Impact Fees Move Forward to Full City Council

Last week, the Community and Economic Development Committee of the Oakland City Council considered draft legislation to establish development impact fees in the City.  After a 2+ hour public hearing, the committee voted to send the proposal to the full City Council for consideration.  The following is an overview of the current proposal.

Residential Impact Fee 

The residential fee will differ in three different geographic zones of the city:  (1) Downtown/North Oakland and Hills, (2) West Oakland, and (3) East Oakland, as follows:

Proposed Impact Fees

Somewhat different fees would apply to townhome and single-family home developments. An on-site affordable housing option is available to exempt projects from the bulk of these residential impact fees.  The exemption applies to projects that provide 10% of their units affordable to moderate income households (120% AMI), 10% of their units affordable to low-income households (80% AMI), or 5% of their units affordable to very-low income households (50% AMI).  Providing affordable housing at these rates will also qualify a project for the City’s density bonus program.

Non-Residential Impact Fee 

Non-residential impact fees would be phased in over the next five years.  The office fee will be phased in as follows:

Permit filed prior to July 1, 2016:  No fee

Permit filed July 1, 2016 – June 30, 2017:  $0.85/sf

Permit filed July 1, 2017 – June 30, 2018:  $0.85/sf

Permit filed July 1, 2018 – June 30, 2019:  $2.00/sf

Permit filed July 1, 2019 – June 30, 2020:  $2.00/sf

Permit filed July 1, 2020 or later:  $4.00/sf

The date a building permit application is filed after all planning approvals have been granted is the date used for applying the new impact fees.

The City Council is expected to take up the impact fee legislation in April.  We will continue to monitor the Oakland impact fee process as it moves forward to final approval.

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.