TCUPs make a mockery of the long zoning update process

Tonight (Wednesday, October 20th), the Oakland Planning Commission will consider a proposal that would allow the City to issue temporary conditional use permits for uses that would otherwise not be allowed under the zoning code, as I wrote about last week.

You can read the staff report on the subject by downloading the 149 MB agenda packet for tonight’s meeting (PDF) and then flipping to page 158. Or, you can just read the report for this item (PDF), which I have separated for your convenience.

Basically, the idea is that since the economy is bad, people don’t want to build on their land, and so we should allow them to apply to do something with it as a temporary use, like make a community garden or a park or a surface parking lot. Oh, except that nobody wants to put a community garden or a park on their vacant land because they know people will go completely apeshit if they ever try to take it away and build some big condo building on it instead, regardless of whether or not there’s some a sign somewhere on the property saying that the park will go away on some exact date several years in the future. So the only actual interest anyone has in the temporary conditional use permits (T-CUPs) is to make new surface parking lots.

The staff report (PDF) explains:

During this current economic downtown, Oakland land owners with vacant or underutilized parcels are interested in maintaining the economic viability of the land and yet are not able to finance permanent development of the highest and best use. In particular, Oakland hosts a large inventory of vacant or underutilized lots with no current entitlements as well as vacant lots that are entitled for permanent development yet are not able to secure financing for said development. In order to reduce the blight of vacant lots and promote economic development in this challenging economic climate, staff proposes consideration of regulations that would allow short-term uses of vacant and underutilized properties with relaxed standards to reduce blight and promote economic development in a realistic manner.

I spent a long time going over the many reasons we should not be allowing new surface parking lots downtown in my blog last week, so I’m not going to go through all that again. Daniel Schulman also made a very good point about process in a comment on that blog:

Finally, what has most recently become apparent to me that I did not realize at first, is that staff is just asking for a big transfer of power from the Planning Commission to themselves. As the report notes, most of the uses are already conditionally permitted, so what they are asking for is to change the process of applicants going in front of the Planning Commission seeking a variance to a closed-door one of applicants going to staff for approval. Without the Planning Commission involved, ordinary citizens won’t have the ability to know what’s going on and to comment on it.

His point is well stated, and I don’t have much more to add to it. He also makes another good point that “temporary” is a very strange way to describe something that lasts four years.

Anyway, I want to talk today about process, but from a different angle than Dan took.

When a decision is not actually a decision

So. Last night, in hopes that I could convince her to come speak against the T-CUP proposal, I called up a former co-worker who I had not spoken to in quite some time. Getting people to drag themselves out to a Planning Commission meeting in the middle of a heated election season is a difficult task, so I thought I might have better luck with someone who tends to be fairly apolitical and I knew wouldn’t have their nights full of phone banking dates and so on. The only thing City thing she had ever expressed any interest in was keeping that lot at 19th and Telegraph from turning into a surface parking lot. She had been (as I have) assaulted downtown by someone who had been hiding behind a car parked in one of downtown’s many surface lots, lying in wait for targets, and really, really hates them. She sent I think her first ever e-mail to the City Council about that 19th and Telegraph lot, and was even going to speak at the meeting, but of course things dragged on too long that night and she couldn’t stay until the item came up.

So anyway, knowing she is invested in the issue, I tell her about the TCUPs and how they would allow more surface parking lots downtown and how awful this is, and I think I’m getting somewhere until she interrupts me and is like “Um, I thought you said those already got banned.” I’m like “Well, yeah. They did. But now they want to change it.” And she’s like “But last year you said that they would not be allowed anymore once the new zoning passed. Did it not pass?” And I’m like “No, it did pass. This is different.” And she’s like “But I thought you said that the new zoning banned surface parking lots.” And I’m like “Well, yeah. It did. But now they want to change that. So we have to go speak about how surface parking lots are bad so they don’t allow them.” And she’s like “But I thought that already happened.” And I’m all…well, you get the picture.

We went around in circles like that for a while, until she was finally like “Look, you know I agree with you. But I don’t see the point in rearranging my evening to go down to City Hall. If they already decided to ban them like a year ago, and now the City wants to change it back already, what is the point of going to speak? Even if they decide against it this time, what’s to keep them from bringing it back again in another year?” And I’m like “Well, I guess nothing. But if it does, I promise I’ll make sure you know about it and you can come speak then, too.”

That was (while true) clearly the wrong thing to say. She was just like “Look, if I thought it would make a difference, I’d come help you. But if they already voted to ban surface parking lots, and now it’s coming back, I don’t see why even if it gets voted down again, it wouldn’t come back again, and so I really just don’t see the point.

Why bother zoning at all?

And really, what was I supposed to say to that? She was right, of course. Why should anyone care about decisions the City makes when those decisions have no permanence? What is the point of having zoning at all if we’re just going to ignore what it says? Why did we bother going through the year and a half long process of updating the downtown zoning if staff was just going to come back seven months later and say they want to change it?

And by the way, this thing about how nobody could have anticipated the bad economy and that’s why we have to change the zoning now is total bullshit. The downtown zoning was adopted in July of 2009, a year after the real estate market fell apart. Nobody objected to the surface parking lot prohibition then, and nobody thought then that we were about to break ground on any new skyscrapers anytime soon.

And then, what about the rest of the City? One of the T-CUP options is to allow them only for surface parking lots downtown, but other options would allow T-CUPs citywide. Remember — the T-CUPs would let property owners get a “temporary” permit to use a space for 4 years (technically, 3 years with a one year extension) for a use that would not otherwise be allowed by the zoning.

Meanwhile, we are right in the middle of adopting new zoning for the entire city. This process, which has involved I can’t even imagine how many community meetings and then meetings of two different advisory groups made up of community members and which started in October of 2008, isn’t even finished.

And then you read the staff report (PDF) on the T-CUPs, and it’s like this whole other world where this isn’t even going on.

Is the use acceptable near the West Oakland BART station but in the Central Business District? The Planning Commission could consider taking a position on surface parking in Oakland. Any temporary use regulation proposal would be informed by such direction.

Isn’t adopting a zoning code that says whether you can have surface parking somewhere or not taking a position on the issue? Am I missing something here? If you think surface parking is appropriate for the West Oakland BART station, zone for it there. Yeah, it’s not the highest and best use. But, you know what? A 35 foot building is not the highest and best use at 51st and Telegraph, and that’s allowed in the most recent draft of the new zoning.

Discouraging public engagement

Anyway, so I was thinking about this last night, and it made me think of something Commissioner Michael Colbruno said when the Central Estuary Specific Plan came to the Planning Commission last winter. There was this long line of public speakers going on and on about how happy they were with this long process they had gone through and blah blah blah, and then like half the Commissioners had all their own ideas about the plan and basically said they didn’t like what the community process had produced, and then when it’s his turn to talk — well, I wish I could show you the video, because it was really good. I tore my apartment apart last night trying to locate the DVD, but it was just nowhere to be found.

Anyway, he basically said (in much more eloquent terms, of course) “Look, this is ridiculous. We sit here all the time and talk constantly about public process and involving the public and how important that is, and then the one time when we have all these different sides coming together to tell us how happy they are with this long process they went through and the consensus they came to, and now we’re going to sit here and tell them we don’t like it so we’re just going to ignore them all and change it? What the fuck?”

And that’s a lot how I feel about this. You know, when it comes to the City, I don’t mind banging my head against a wall with no end in sight. But a lot of people do. I try so hard to get people to be engaged in Oakland government, and let me tell you — getting people to care about this stuff is one hell of an uphill battle.

And I want to be upfront about things, so I always tell people you can’t always expect to get your way, and you can’t expect the Council or whoever to do what you want just because you showed up, you have to be persuasive and make good arguments, and don’t get too discouraged if you lose, because there will be other important things coming up later and maybe you’ll win then. But then having to go an extra step and also tell them that it doesn’t even matter if you get your way, because the whole thing is going to be back a few months after it was supposed to be over? I’m sorry, that’s just one caveat too many. Why should people put any effort into being involved with the zoning update process if we’re creating a way to go around the rules before they’re even adopted?

The economy will go up and the economy will go down, and that’s just how the world works. But when you do zoning, you have to keep in mind the future as well as the present. You can’t just change your mind every time the market changes.

12 thoughts on “TCUPs make a mockery of the long zoning update process

  1. ralph

    If one has the time to speak up against SPL, then do so. If someone can backdoor something, they will. But if you keep shutting the door every time they try to sneak in, eventually, they will stop.

  2. livegreen

    V, This reminded me of a conversation I had with a friend a couple weeks ago. I explained to him how when you go to the Council meetings and expect to get to an issue at a certain time, often they’ll fill the schedule with 2nd Readings (& I mean FILL), and then go overtime with other important issues (& I mean OVERTIME).

    So if the item you’ve come to speak about is towards the end of the agenda, NO MATTER HOW IMPORTANT IT IS, the City Council Members are like yeah, whatever, I’m really tired (& they should be, it’s like 11pm). It’s time to go home. RUBBER STAMP.

    My friend made the point that the City Council President or Committee Chair should be able to stick to a schedule. I thought this was a good point.

    It made me wonder: Can they?
    Then I thought maybe there are some impediments for the Council members, and what those might be, and whether they couldn’t get over those? Which led to a few more questions:

    –Why does the Council/Staff overfill the Agenda sometimes?;
    –Why don’t they get more of the questions out of the way before hand?
    –Why don’t they build a reasonable Agenda and try to stick to it? (Every organizational meeting, small or large, I’ve been to tries to do this);

    & the biggy
    –Does the City Council meet often enough?

  3. Naomi Schiff

    The City Council does not meet enough. Two aspects: 1) A lot of stuff is shunted into committees (particularly sending critical or politically important decisions for the CED committee, with its carefully chosen members), and limiting public input due to meeting during the day; and 2) With fewer meetings they are happy to have fewer week nights tied up, but meetings get so long that as you point out it is limiting public input (again). Until Danny Wan promoted this schedule they used to meet weekly, with occasional interruptions. I’d propose that they should meet at least three times monthly, if they can’t stomach four times. We’d all have to push pretty hard, though, because the councilmembers have gotten used to this meeting-scarce schedule. It does reduce their efficiency, and during budget crises, causes terrible delays.

  4. Robin

    Thank you not only for fighting the good fight at endless meetings, V, but also for writing such cogent, helpful posts.

  5. Chris Kidd

    Why is staff focusing on tearing apart zoning to abate the blight caused by empty lots? Never mind that surface parking is just replacing one form of blight for another, never mind that at least the blight of an empty lot is easily changeable (hello, construction) as opposed to the blight of an asphalt surface parking lot; why isn’t Oakland putting the onus on the property owner to abate blight downtown?
    Downtown is still a redevelopment district: place an abatement fee on property owners who maintain empty lots. Tell the property owners they can rack up fees, develop the property, sell the property, or engage in a non-development form of abatement (park, garden, etc.).
    In the immensely more dense and built-out city of Berlin, the city creates incentives for owners of empty lots to convert property into temporary parks. The residents don’t mind that the parks eventually get developed into a building when the market is right because they know that there will always be another park popping up as soon as another building is torn down.
    We get parks, blight is abated, surrounding property values go up, increased activity drives economic revitalization. What is so hard about this?

  6. Chris Kidd

    And for the argument that leveraging such fees would create a “bad business environment”, why would we want to create a GOOD business environment for landowners that refuse to develop property? And you could create a mechanism to redistribute those collected fees, in a Shoup-ian fashion, back into facade upgrades and street improvements for the surrounding neighborhood, making the area more attractive for development.
    And if the owner doesn’t want to/can’t develop, have the city facilitate a working relationship with a community group/non-profit that can convert the empty plot into beneficial open space on a pro-bono basis or with grant funding.
    We need to dis-incentivize property owners sitting on property that serves no purpose in our community.

  7. Matt C.

    I’m for a dis-incentive. We’ve got to lower the percentage of non-productive land in the downtown area.

  8. len raphael

    Ck, hmm you might have something there with the temporary parks.

    If the city provided the insurance; and the utilities at the city’s cost w/o utility tax and sewer charges, benches and lighting at cost with installaton provided by owner.

    landscaping and maintenance is not cheap, but then property taxes on vacant land sb fairly low these days.

    definitely worth following up.

    -len raphael
    Perata supporter

  9. DD

    So glad this was continued as I did not even see the post ’til today!

    P.S. “Shoup-ian” is my new favorite word.

  10. Naomi Schiff

    The Planning Commission was suitably unimpressed with the proposal, I’d say. I agree with the above ideas: why encourage landbanking by way of parking lots? It would be better if the owners would find it terribly uneconomical to own, and sell these parcels off to someone who would develop them responsibly. I don’t care if they get developed as high rise (which is the eternal gleam in the eye of many a longtime blight-owner) or not. It would be fine to put up a mere ten story building or something. We could add a very large amount of residential or commercial density even at modest heights (that is, with less huge capital investment) if we would fill in some of these holes. In the meantime: green it up!

  11. Chris Kidd

    Yes, highrises are not necessary to create extremely high density. Koreatown in LA is the densest census tract outside of Manhattan, yet is dominated by 4-5 story walkups. The key is that almost every building is 2+ stories and there are minimal setback restrictions, allowing maximum utilization of property.
    Now, K-town’s got a whole host of issues to deal with due to the head-on collision of density and auto-centric planning, but I just used it as an example to point out density is achievable on many different scales.