Updated: Mon, Sep 9, 2013, 9:14 am
Uploaded: Sat, Sep 7, 2013, 10:03 am
Maybell foes won't sue over ballot language
Critics of housing development maintain attorney's analysis, ballot language not 'impartial'
Palo Alto residents looking to overturn the city's approval of a housing development on Maybell Avenue remain deeply concerned about the ballot language drafted by the city attorney, but with the clock ticking down toward Election Day, they have chosen not to file a legal challenge.
The grassroots group Palo Altans to Preserve Neighborhood Zoning has been arguing in recent weeks that the impartial analysis drafted by the office of City Attorney Molly Stump for Measure D (which would uphold the City Council's approval of the development) is far from "impartial" because of its failures to include many of the residents' concerns about the project. These include the development's incompatibility with some portions of the Comprehensive Plan (the city's land-use bible); the neighborhoods' concerns about the city's traffic analysis; and the fact that the city had loaned the developer $5.8 million before the project was approved.
Even so, given the high costs of going to court, the tight deadlines and uncertainty of the legal challenge, neighborhood residents have chosen not to proceed with litigation but to instead make their case in the court of public opinion.
"Litigation is expensive. All we have is what the neighbors can scrape up and give us," said Richard Evans, a member of the opposition. "We have to be careful with those funds and use them as we think best. We think we've made strong arguments and we hope we can bring the voters' attention to those arguments."
Other considerations also swayed the opponents against taking the challenge to court, including tight deadlines and the court's tendency to give city attorneys the benefit of the doubt on borderline issues relating to ballot language, Evans said.
"Most of our challenge is not about lies but omissions, words that are misleading," Evans said. "There are judgment calls there."
The development from the Palo Alto Housing Corporation would bring 60 units of senior housing and a 12 single-family homes to a 2.46-acre site on Maybell and Clemo avenues. The City Council approved the project in June despite significant opposition in the Barron Park and Green Acres II neighborhoods. During several heated meetings, residents urged the council not to rezone the orchard site to allow greater density, arguing that the zone change would create dangerous traffic conditions and negatively impact the character of their neighborhood. At the same time, many housing advocates have argued that the project is well suited for the site and that the new development would give the city a rare and sorely needed amenity -- housing for low-income seniors.
Throughout the debate, opponents of the Maybell development have consistently said they do not oppose senior housing in their neighborhood, just the increased density. The city attorney's analysis, they said, should've reflected the fact that even if Measure D is struck down, the site would still be able to accommodate 45 housing units. While the analysis mentions the fact that the site is currently zoned for multi-family and single-family housing, it does not mention the number of housing units allowed under existing zoning.
The city attorney's impartial analysis also states that the "planned community" zone requested by the Housing Corporation and approved by the council "accommodates projects that cannot be built under other zoning, contain substantial public benefits and enhance the policies of Palo Alto's Comprehensive Plan." Residents have maintained that the Comprehensive Plan includes policies that both support and clash with the development and that the analysis should have reflected that.
Opponents have also taken issue with the actual question that residents will face on Nov. 5 in the voting booth. The ballot question states: "Shall the Palo Alto Municipal Code be amended to rezone the property located at 567-595 Maybell Avenue from R-2 low-density residential and RM-15 Multiple Family Residential to Planned Community Overlay Zone to include 12 single family units and 60 units of affordable senior housing?"
The opponents' attorney, Bradley W. Hertz from Sutton Law Firm, argued in a letter to the city that the ballot language has three major flaws: it suggests that the rezoning is necessary for the site to accommodate affordable housing; it suggests that the single-family units will also be affordable housing rather than market rate (the city attorney's analysis makes clear that the 12 housing units would be market rate, though the ballot question does not); and it refers to the the RM-15 zoning that makes up about 75 percent of the site without using the words "low density," which are in the official title of the zoning.
"In short, we believe that the current language of the ballot measure is not a true and impartial statement of the proposed measure, and instead is misleading and likely to improperly create prejudice among City voters in favor of the measure," Hertz wrote.
Posted by Palo Altans to Preserve Neighborhood Zoning member,
a resident of Green Acres
on Sep 7, 2013 at 11:13 am
Thanks, Wayne, you really hit the nail on the head. I think ballot language had everything to do with why the High Street referendum was narrowly lost. Given the new awakening of "residentialists" in Palo Alto, who may use initiatives to limit PC zoning in residential neighborhoods, for example, it's important that this problem be solved so Palo Alto citizens can exercise their democratic power and rights.
We appreciate Sheyner's ongoing coverage of the rezoning battle at Maybell - Unfortunately, the article still misses the main issues for the neighborhood, and sort of jumbles the ballot concerns together.
There are 4 parts to the ballot, which goes out to every voter in Palo Alto:
1) The "impartial" analysis
2) The ballot question itself
3) The arguments for and against by both sides
4) The rebuttals to the arguments for and against by both sides
In Palo Alto, as in many places, the "impartial" analysis and the ballot question (#1 and #2) are written by the City Attorney. Unfortunately, the whole reason neighbors felt they had to hold a referendum was because the City Council had made up its mind well in advance of public hearings and City staff have acted as advocates for the rezoning. The very biased analysis and ballot question continues that advocacy by the City Attorney's office. It's one thing in the rezoning hearings, it's another in a ballot, where such advocacy is illegal, but the only remedy neighbors had was to file in court on a very tight time schedule.
Here's the ballot QUESTION the City Attorney wrote and the concern from the letter:
"Shall the Palo Alto Municipal Code be amended to rezone the property located at 567-595 Maybell Avenue from R-2 Low Density Residential and RM-15 Multiple Family Residential to Planned Community Overlay Zone to include 12 single family units and 60 units of affordable senior housing?"
My own concern from the above question is that is basically states what will go there in the most positive light if people say yes, not balanced by the positives if people say no. It's essentially saying, Shall we rezone from X to Y for affordable senior housing, i.e., the question is basically worded to get people to answer the question of whether they are for senior affordable housing, which most people are, even the vast majority of the opponents to the REZONING at Maybell.
Here's what the letter said about it:
"There are three fundamental problems with this language. First, it incorrectly suggests that the re-zoning is NECESSARY to build affordable senior housing on that site, when in fact it is NOT (i.e., this ordinance is about zoning, not about allowing the building of affordable senior housing). Because affordable senior housing could be built on the property as currently zoned, we believe that this last phrase should be struck from the ballot language. Second, the wording of the language suggests that the single family units will also be affordable housing, when they in fact will be market rate. Third, the reference to "RM-15 Multiple Family Residential" improperly omits the words "low density" from the official title of the zoning as it is described in the City Code, which further misleads the public regarding the current zoning. In short, we believe that the current language of the ballot measure is not a true and impartial statement of the proposed measure, and instead is misleading and likely to improperly create prejudice among City voters in favor of the measure.
"There are also NUMEROUS problems we have identified with the current language of your 'impartial' analysis. Most notably, the analysis misrepresents the purported public benefit of the ordinance by stating that such benefit is sixty (60) units of affordable housing for seniors. In fact, forty-five (45) units of such housing could already be built under current zoning standards, meaning that the net benefit from the ordinance is at most fifteen (15) units.
"More fundamentally in this regard, however, the analysis misstates what the ordinance is about. The ordinance is NOT about the ABILITY [emphasis added] to build affordable housing for seniors. Instead, the ordinance is designed to accommodate a financing scheme that reduces the cost of the proposed development through 'upzoning,' but which also essentially shifts the cost burden onto the adjacent neighborhood. The mischaracterization of a fundamental aspect of Measure D constitutes an impermissible attempt to oppose the referendum and bias the voters in favor of a 'Yes' vote."
The letter goes on to enumerate the biases in the City Attorney's analysis, including that it "Fails to mention that over half of the land will be used for for-profit, market rate housing."
In San Francisco, because it is so difficult for the City Attorney to be impartial -- and with referenda, it's not like at the state level with propositions, where well-funded parties on both sides can litigate if the ballot materials are biased or misleading so that both sides have their input -- they have an impartial "Ballot Simplification Committee" that holds public hearings where all sides are represented and they hash out as impartial a ballot as possible. They've been doing this for 30 or 40 years. It makes it so that citizens, who usually aren't well-funded, are not just effectively denied their right to referend at the end by the City writing their own election. After all, most referenda and initiatives are for the purpose of setting aside some action of the City, so the City has an inherent conflict of interest in having sole control of producing the "impartial" ballot materials and question.
Posted by Palo Altans to Preserve Neighborhood Zoning member,
a resident of Green Acres
on Sep 7, 2013 at 12:23 pm
@"Ghost of Howard Jarvis",
First of all, the rezoning is not happening on El Camino or a major street. The rezoning is happening in the middle of a residential neighborhood. There are some condos close to El Camino and on Arastradero, but the only apartments back in the residential neighborhood are the existing affordable Palo Alto Housing Corporation affordable rentals, which they would take umbrage at hearing you describe in such degrading terms, especially since they want to build this development on the same residential street.
Secondly, the development property sits between two "safe routes to school" and can only outlet onto those heavily traveled school commute corridors that take almost all of the 4,000 schoolchildren going to the local award-winning schools. I think those parents would take umbrage at hearing you characterize the neighborhood where their prize schools sit as "abutting... liquor stores, prostitute motels, and dilapidated storefronts." (But if you think that is what the neighborhood is like, perhaps you would like to inform the California Tax Credit Allocation Committee, as doubtless PAHC characterized the adjacent business district and nearby amenities available for seniors much differently in their funding application.)
The two main groups of homeowners in the residential neighborhood today are:
1) Seniors, often living on a fixed income, who bought their homes decades ago, and
2) Families, often willing to sacrifice significantly, to send their children to the 3 public schools that are walking distance in this neighborhood: Gunn High School, Terman Middle School, Juana Briones Elementary School.
The overwhelming factor when it comes to house price is proximity to the schools, especially Gunn High School. A typical 4 bedroom, 3 bath ranch house in this neighborhood, in original condition, will go for around $1.7million to $1.9 million, depending on the location, lot size, and condition. A 1400-1500 sq ft 3/2 house on Maybell, on a flag lot, in pretty original ranch house condition, went for $1.65 million earlier this year. It's hard to give comparables, because people tend to buy into this neighborhood and stay, so there isn't a lot of turnover. Homes over 2,000 sq ft are typically over $2million. Homes have sold in the neighborhood for over $3million.
Second of all, this issue is not about housing prices for the neighbors, who have never once brought it up in this debate because it's just not relevant. The concerns about traffic have to do with SAFETY for CHILDREN.
Maybell is a substandard street, not even wide enough for a single full-width bike lane or sidewalk on either side of the road. It has something like over 3300 vehicle trips per day, and is traveled by over 1,000 children on bikes and by foot per day. It is a City-designated "safe route to school" and bicycle boulevard, yet Marc Berman (no friend of the neighborhood in this) even deemed it NOT SAFE after witnessing the situation. Talk about the comprehensive plan seems dry until you realize the transportation element places safety over all other development concerns.
Maybell already underwent a six-figure safety improvement in recent years, yet the stop signs in front of the elementary school are regularly hit and even knocked to the ground so they have to be replaced. This is a bad place for a high-density development. If the City and developers wanted to counter that, they should have done the traffic safety analysis the neighbors kept demanding. (Note that the City Attorney's "impartial" analysis says they did an environmental review but failed to mention it's being challenged by significant public input and a CEQA suit in court.)
This is also about rezoning a residential neighborhood to high density using a new "creative" financing scheme (according to City staff), where more than half of the property is upzoned for the benefit of a for-profit market-rate developer, and funds from the upzoning help pay for the hugely upzoned rest of the property for affordable housing, which has to be sardined in there to accommodate the financing scheme. The neighbors are not against the affordable housing going there, they just want it to go in under the existing zoning, or something close to it. The financing scheme makes it so they have to exceed RM-40 "high-density" zoning and build closer to RM-60, on an RM-15 low-density lot, in the middle of a single-family residential area. They are putting in a 50-foot building where the existing zoning allows only 30-feet, and allowing a 60-unit complex to have only 47 parking spaces for residents, employees, visitors, aides, nursing, etc., when existing zoning requires at least 104.
The market-rate portion is upzoned in particular to shake out "in lieu" fees which are an extra incentive for the city to violate the character of the neighborhood. In other words, if the non-profit developer could get the same money by selling six large lots as 12 teeny-tiny lots in the same space, they still have an incentive to upzone because they get "in lieu" fees because of the City's BMR program - they get 15% of any developments of over units into the BMR program or in lieu fees. Zoning for sale.
If the development were simply financed more like 801 Alma and the costs not being shouldered by the neighborhood through the financing scheme, they could afford to build the affordable complex under the existing zoning or close to it. Greg Schmid gave a great speech about how the in lieu fees -- where another developer avoided putting those units downtown -- should have been higher in order to just pay for a reasonable development.
The rest of Palo Alto really needs to care about this, because anytime a large piece of property goes up for sale in this town, even in the middle of a residential area, it will be subject to such a scheme, and they will be attacked as mercilessly as neighbors have been here. The City seems to bent on densifying, and cares nothing at all for protecting neighborhoods. (Please vote against Measure D!!)
You wouldn't have any INKLING of any of this if you read the City Attorney's so-called impartial analysis. Everyone I've read that letter to is surprised to realize that the rezoning isn't what enables the senior affordable housing to be built there, and that almost as much could be built there under existing zoning, but respecting height, setback, daylight plane, density, and parking restrictions.
If PAHC came back with a new PC zoning proposal that was closer to RM-15 or even RM-30, they wouldn't see this kind of opposition. Neighbors tried, but they said all along that the financing scheme didn't allow it. All of this flows from the financing scheme -- at some point, I hope the Weekly coverage starts including it.
Posted by PAPNZ member,
a resident of Green Acres
on Sep 7, 2013 at 10:32 pm
RE: Safety problems on Maybell
Sorry, but no one is going to stop being concerned about SAFETY OF CHILDREN at that location [portion removed.] Even Marc Berman, after actually coming out and spending some time - during an actually pretty low time for traffic during the school year, when the weather is good - deemed the situation UNSAFE. He said even though it's a "safe route to school" it's not a safe route to school. The neighbors just disagree that adding a dense development there will make it safer.
Neighbors have been involved with that six-figure safety improvement to Maybell in recent years, pushed to do more than was even originally envisioned, and know that we are at the limits of the infrastructure there. There are currently 4 ranch houses - mostly occupied by seniors - and 100 trees. Putting an overly dense development there is a bad idea, and neighbors know it.
If you really want the affordable housing, and that's really what this is about for you, why aren't you working for some alternative, like building the affordable housing under the existing zoning (which many neighbors tried to negotiate all along), or even some compromise more in that scale, and making up more than the small difference by ensuring the 20 senior BMR units at Moldaw are filled (even subsidized) after 3 years of remaining unfilled? (I believe the City finally renegotiated the rules and filled 8 or more finally, so it is possible.) Or helping to redirect the financial resources to save the far greater amount of affordable housing at Terman Apartments, which is just a few blocks away and being converted to market-rate housing after only 25 years? If you could do that, you would quickly find your former foes would be working with you.
Why are you so dead set on THAT financial scheme at THAT location, even if it works against getting the most affordable housing? Neighbors are pretty clear why that location is a problem. They are also supportive of affordable housing in the neighborhood, of which we have a great deal already without controversy, including right next door to the orchard.
There are 4,000 children who have to get to school in that neighborhood every day. Close to half of the middle and high school students already bike and walk. Nearly ALL of them have to go along the streets, Maybell and Arastradero, which that development impacts. There's no way around it. No other way for the kids to go to school, and no other way for people living in that development to come and go. Maybell is a seriously substandard street with serious traffic problems. There is no way to widen it so it can include a full-width bike path or sidewalk on either side. The situation deserved the kind of study and consideration that City policy promises, and did not get it. Why?
The fact is, parents living in that neighborhood are there for the schools. [Portion removed.]
Children at the elementary school are not allowed to bike or walk by themselves to school until they are in 3rd or 4th grade. Many parents have to drop off their children on the way to work, or to take their children's instruments to school with them. When the weather is severe, more people drive - many of them come from across Palo Alto and this is the only reasonable option when the weather is very bad. On the Maybell side, the elementary school includes the OH, with a preschool for disabled children, and some of the most disabled children in the district attend and must be driven, plus a county facility for rehabilitation of disabled children, all of whom drive there on Maybell.
RE: Foisting the cost of the development onto the neighborhood through the financing scheme
The financing scheme is the whole point. The staff report begins with flaunting the new "creative" way of financing the affordable housing. But it involves taking more than half of the property, upzoning for the benefit of a for-profit developer, and shoehorning the affordable housing on the remainder.
Discussing all the ways this foists the costs on the neighborhood is a longer discussion, but let's start with the most obvious: Upzoning the neighborhood rather than respecting the existing zoning and character of the neighborhood. The market-rate houses are on 3,000 sq ft lots, when 6,000-8,000 is the norm in the neighborhood. There will be two houses on Maybell for every one of the 4 ranch houses there now, and 3-story buildings on Clemo (there are no 3-story houses in Barron Park or Greenacres, not allowed under existing zoning).
The City wrote the in lieu fees from those market-rate houses into the ordinance. The in lieu fee comes from someone building a lot of units. Hence, even if as much money could be made from selling larger lots to high-end developers (which a contractor in the neighborhood deemed would make as much) instead of the skinny lots, the City wouldn't get the in lieu fees. They're basically upzoning the neighborhood to shake out that extra money in in lieu fees and it's written into the ordinance -- and Candace Gonzales said in the paper that the in lieu fee was given to that development, not into the general pot. Jessica de Wit told neighbors they couldn't negotiate down the number of houses that low because of the financing scheme.
The financing scheme was put into place at the time of the loans, before any public input, and it has rigidly dictated all these aspects of the design of the project: the upzoning of the market-rate half of the development, the need to even make half of the development market-rate, the need to put traffic on Maybell instead of out onto Arastradero (with a light at Clemo), etc.
So the design of the project was basically decided by City Hall and PAHC and set in stone because of the financing scheme (including the point system on the funding application), long before there was any public input. (Larry Klein himself said he had never seen such "stonewalling" from an applicant, but his firm handled the sale and he was involved in the loan situation, he knows very well they had no ability to be flexible.) It has made the City Council and PAHC justify themselves and filter all input that came later. [Portion removed.]
If as much were spent per unit on the affordable senior rentals at Maybell, or even close to it, as was spent at 801 Alma, JUST the affordable housing could be built, closer to the pre-existing zoning at Maybell, and we wouldn't be having these fights now.
I don't think most people used the word "fraud". Tim Gray did when he spoke at City Hall, and the paper did, but most have tried to just describe exactly what was done: City staff filled out a document for PAHC's application verifying that their zoning was valid on June 26, which was 33 days before their own staff report said it would be valid at a minimum. (And it still is not valid today, more than 60 days later.) They said it complied with the comprehensive plan, even though it objectively doesn't, the City manager admitted staff cherry-picks for the ways it complies and ignores what doesn't, and even though neighbors successfully removed the rezoning from the comprehensive plan by referendum.
The application due date was July 3, and it required all zoning to be in place as of that date. So if it was no big deal that it wasn't, why lie? The application is made under penalty of perjury, so is a misrepresentation fraud? I'm not a legal expert and have never used that term. I do think it was unethical, and definitely evidences an inappropriate advocacy of City staff to improperly exclude public input.
Neighbors also produced a document from the funding application showing that the City loaned PAHC $7.3 million, which had never been publicly disclosed. Again, if it was no big deal, why lie? Ditto for exaggerating adjacency factors that give them points to win funding.
The tax credit funding is a competitive situation, where PAHC appears to be asking for so much money, if they misrepresented anything to get the money, they would be taking money away from considerably less wealthy communities, where truly low-income people would otherwise be homeless. Here, we have expensive housing, but we really do have far more resources and discretion for how we spend those resources. It really does hurt poor people if our City staff and PAHC are misrepresenting key requirements in their funding applications. Is it fraud? I don't know. The application was made under penalty of perjury. It did allow them to make changes, but I think that was for the purpose of correcting things that change, not taking back deliberate misrepresentations when they got caught.
Those other communities would be housing far more low-income people for far less money. (Remember, the Maybell rentals will be open only to people at 30-60% of AMI, which is actually kind of a lot of money --- it does not include one single person below the poverty limit, despite all the loud noises about needing to serve seniors under the poverty limit in the ordinance.)
RE: What this is about
And they take it so seriously, you need to understand that they see the referendum as only one step they will probably have to take, and aren't even counting on winning. [Portion removed.] They know the deck is pretty stacked against them. PAHC hired a political consultant the next day, whereas neighbors are still on a shoestring and trying to do everything with volunteers. The City Attorney has acted as an advocate for the rezoning all along, too, and it remains to be seen whether neighbors can get the truth out so that the rest of Palo Alto realizes that this is not about affordable housing. [Portion removed.]
Posted by PAPNZ member,
a resident of Green Acres
on Sep 9, 2013 at 9:22 am
A lot has been said about this already above -- no, it's not just the principle of the thing, it's problems caused by the actual proposal and limitations of the location, or you'd never have so many families and volunteers out over such a long period of time with such involvement.
Whether you think 12 houses and a 50-foot, 60-unit building with inadequate parking in the middle of a residential area is a problem or not depends on whether you think there's a difference between the 4 typical ranch houses that are there now, and the stovepipe houses on tiny lots at Alma Plaza.
If the 12 houses were about the same size as the 4 houses there now, with similar lots, you'd have trouble getting them all onto the remaining orchard property (with legal lanes), and there would be no room for the main building.
The problem with the 12 houses is that they are tearing down the existing 4 houses, and putting up 8 in their place, then 5 more across from the park on similar tiny lots, 3 stories high, even though there are no 3-story houses in Barron Park and Greenacres allowed under existing zoning. They're letting the for-profit developer have the giveaway of high density housing, which he will benefit from for being in that location, so they can get the extra in lieu fee out of it - zoning for sale by the City to reduce the cost of the main building.
If it weren't for the 12 houses, the main building wouldn't have to be sardined onto less than half of the property, and thus wouldn't have to be 50-feet tall. It could also have adequate parking. There are only 47 parking spots planned for 60 units, plus employees (there will be several), plus visitors, plus aids/nursing/hospice/helpers. The development is already going to require eliminating most of the parking on Clemo, i.e., most of the parking for Juana Briones Park. And, the plan is going to require eliminating the parking along Maybell during the day, where a lot of overflow parking from Arastradero Park Apartments (the existing PAHC property) parks during the day. This neighborhood already has no place else for the cars to go. They're going to end up competing with park visitors and the families of the disabled students in the OH and county rehab facility across from there for the already very limited parking.
Lastly, there are only 4 houses with mostly seniors living there now and an orchard. As it is, without adding any more development, the traffic is untenable and unsafe. This isn't just something where City Council can just handwave and it can all be worked out, because we just finished a major safety improvement on Maybell, and it's already about as good as it gets. There are limits to the infrastructure, and the City should be taking that into account in development. Instead, they have flagrantly avoided doing due diligence on the traffic and safety for the thousands of children who take the two streets on either side of that development to school.
The problem can't just be solved by putting all of them on bikes, almost half of them are already. Arastradero is a major east-west corridor, and business traffic is going to almost double in the next year or so because of developments the City Council approved going online. That particular location is at a traffic bottleneck in the neighborhood, and should not be the site of such a huge upzoning.
If they built just the senior rental apartments, without the 12 houses, they could make a much more compatible building with the neighborhood, with more space and parking. If they didn't have to make excuse after excuse for the rigid financing scheme, they could do things like put a light at Clemo and have all the traffic come out at Arastradero at a light instead of Maybell. Would that be workable? It would certainly be more so than Maybell, but hopefully without the rigid financing scheme, they could do the traffic study with current data and the traffic safety study they owe the residents under City policy (that they didn't do) to find out.
If they simply paid for the development they way the one at 801 Alma was paid for, and didn't have this convoluted financing scheme that required such gross violations of the zoning laws to work, it wouldn't be a problem.
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