PARC negotiates Community Benefits Agreement compromise with Sherwin Developers ahead of Council EIR Certification

Published On September 6, 2016 | By Rob Arias | News & Commentary, Planning & Development

Tonight, the Emeryville City Council will finally weigh in on certification of the Final Environmental Impact Report (EIR) for the proposed development of the Sherwin-Williams site. The EIR will be presented to council at the regular meeting at 7:15 p.m. A non-voting study session of the site plan will precede the meeting at 5:45 p.m. Ahead of this meeting, the resident advocacy group PARC (Park Avenue Residents Committee) has struck an eleventh hour deal with Sherwin-Williams developer Lennar Corporation in what is an unprecedented Community Benefits Agreement (CBA) for our city. Neighbors with varying interests united under the common goal of advocating for our neighborhood working together and with residents across the Park Avenue District to advance the top priorities for our community as a whole.

The agreement between PARC and Lennar that was sent to the city and is included below, outlines eleven neighborhood benefits including a private shuttle to West Oakland BART, various traffic mitigations, a dedicated community Art Gallery space and other bike/ped improvements. In exchange for these concessions from Lennar, PARC agreed to support certification of the EIR for the project. PARC had previously withheld their support citing that the EIR prepared by LSA Associates inadequately addressed key components including traffic mitigation.

It should be noted that this agreement does not necessarily guarantee that the EIR will be certified, but our council would have to present some compelling reasons not to certify it with the major stakeholders coming to an agreement. The Planning Commission previously deadlocked on the EIR at the July 28th meeting after being lobbied heavily by members of PARC to withhold a certification recommendation until additional mitigation measures were provided by Lennar. The 2-2 Commission vote has set the stage for a showdown at Council.

Next steps for the project

If the EIR is indeed certified, Lennar may move to have the proposed PDP (Preliminary Development Plan) for the September 22nd Planning Commission meeting. Lennar is under time constraints to get certain approvals from the City while they still have the development contract with Sherwin-Williams which expires at the end of the year. PARC was able to leverage this urgency and get them to concede to more community benefits than what would be possible under other less time-restrictive conditions. Others in the city have previously called for community benefits agreements as part of the development process but centered mostly around the use of union labor and not necessarily benefits to the neighborhood which the project was being built. No resident group has succeeded thus far in actually getting an agreement for conditions of approval until now.

Advocacy from PARC and The E’ville Eye

PARC is an all-volunteer committee of local residents that has been meeting and communicating with Lennar for over two years (The E’ville Eye editor Rob Arias was in fact involved in the early stages of the Warehouse Lofts groups organization before they coalesced with other neighborhood efforts). The group set up a committee structure that consists of two members from each surrounding residential buildings, including Donna Briskin and Mike McConnell on behalf of the Emeryville Warehouse Lofts, Paul Germain and Sharon Wilchar representing the 45th Street Artists Cooperative, Kevin Kellogg and Marianne Clark for The Horton Street Lofts and Bryan Hord for the Blue Star Corner. Planning Commissioner and Council Candidate John Bauters was invited to join PARC earlier this year as the second representative of Blue Star Corner when it was determined he would have to recuse himself from voting on the project due to his residential proximity to the project. Bauters stepped in to assist the group with the ongoing negotiations.

The E’ville Eye has long been an advocate for an Emery Go-Round (EGR) route to West Oakland BART but has made no progress despite presenting compelling data of rider support and feigned support by our council. The private shuttle agreement seems redundant with the EGR but it is explained could not be negotiated into the deal as the ETMA (Emeryville Transportation Management Association) that operates the EGR operates independently of the city. The ETMA therefore cannot be compelled to provide the service in an agreement between the developer and the city. The hope is that when the five-year agreement with Lennar to fund the shuttle ends, this could be rolled into EGR’s or AC Transit’s service or determine an alternative funding mechanism.

Will Lennar “Do the Right Thing?”

The final sticking point for the project remains ownership housing which the two sides were not able to reach an agreement on. Lennar has continually noted that it will provide a condominium map (which is in fact already required by the city’s planning code) and that ownership mix will be considered as the units come closer to being online, being determined by “market conditions”. The city cannot legally require ownership housing and their Development Bonus System that was built around our current council’s desire to encourage affordable and family-friendly housing, but has yet to entice developers to build for-sale housing. No developer has willingly built a significant ownership housing development in the city since redevelopment was abolished in 2011 removing a key financial incentive that the city was able to use to encourage this.

The agreement between PARC and Lennar is provided below in full. The expectation is that Lennar will commit to including these as Conditions of Approval for their PDP to the City Council in exchange for PARC removing opposition to the EIR and supporting its final certification. Ultimately, the decision rests with Council. Will they support the years of work by residents?


Terms of Agreement

The following agreements between PARC (representing the residential community surrounding the Sherwin Williams project) and the project developer (Lennar) have been negotiated and agreed upon by both parties. The following terms are the result of many good faith meetings between the developer and PARC over the past two years. With these agreements in place, PARC would recommend certification of the EIR by City Council.

1). Pass Thru:

The Final Development Plan (FDP) for the project shall include a permanent, public pass-through of the existing Building 1-31 (also listed as Building “A” in the EIR). This pass-through shall penetrate the building from east to west, beginning with an opening at the western terminus of 45th Street at Horton Street and shall extend west through Building “A” unimpeded by other structures to the community park and open space on the south and western edges of the project site. The design of the pass-through shall be such that cyclists shall not be required to dismount and are able to move through the space continuously between the park and 45th Street. The pass-through shall be complete prior to the issuance of a final Certificate of Occupancy for Building “A.” and the both parties agree that costs associated with implementing the pass thru should be included under the Flexible Public Benefits category of the City’s Density Bonus program.

2). Car Share:

The project FDP shall include ten (10) dedicated car-share parking spaces which shall be in place prior to issuance of a certificate of occupancy. The spaces shall be located both within the project site (7) and on adjacent streets (3) that are publicly accessible so long as the City of Emeryville (City) agrees that 3 existing public parking spaces may be so dedicated. These spaces shall be filled with car-share vehicles as the demand for car-sharing increases. At the outset of occupancy, only two (2) of the on-site dedicated spaces need to be used for car-share purposes. The remaining five (5) on-site spaces must remain dedicated to car-share but can be used for alternative parking purposes until future TDM reports dictate their use. Annual quantifying and reporting of demand and usage of the car-shares shall be made available in the annual TDM reporting and the car-shares shall be adjusted as the demand changes. The overall goal is to provide an adequate number of on-site car share vehicles to assure users that there will always be a vehicle available when they need to reserve one. The remaining three (3) off-site spaces shall be placed elsewhere within the Park Avenue District in coordination with the City of Emeryville to help accomplish the goal of reducing parking throughout the neighborhood.

3). Bike Share/ Bike Lockers:

Prior to issuance of a final certificate of occupancy for the building located closest to the bike sharing station, the project shall include a permanent, subsidized public bike-share station with an expandable capacity. The goal is to provide an adequate number of onsite bike shares as the demand changes and to provide enough bike shares that there will always be a bike available when there is demand. The vendor for bike-shares shall be the same vendor that provides bike-sharing opportunities at West Oakland BART, which is currently Bay Area Bike Share. Annual quantifying and reporting of demand and usage of the biker-shares shall be made available in the annual TDM reporting and the bike-shares shall be adjusted as the demand changes. A subsidy program to encourage residents/employees to become bike-share members shall be 50% subsidized by the developer and future owners of the project.

The Developer and future owners shall maintain a minimum of thirty (30) lockable, enclosed bike lockers for residents and employees. The lockers shall be provided by the developer and no fee shall be charged for their use by project residents and employees. Annual quantifying and reporting of demand and usage of the bike lockers shall be made available in the annual TDM reporting and the number of bike lockers shall be adjusted as the demand changes. No less than 50% of these bike lockers shall be sized to accommodate “cargo bikes” and employees/residents shall be able to charge electric bikes within the lockers while being stored.

4). Public Art Gallery

The developer shall provide a permanent Art Gallery space, consisting of not less than 2,000 sq. ft. of a publicly accessible indoor space that is designed to serve as an art gallery. The space shall include an office and shall be made available as a meeting room for residents and the local community. No fees of any kind shall be charged for use of this space. The Emeryville Celebration of the Arts shall be granted 24-hours access to the space. Both parties agree that costs associated with implementing the public art gallery and community-meeting room should be included under the Flexible Public Benefits category of the City’s Density Bonus program.

5). TDM, Shared Parking & Parking Management:

Prior to approval of the FDP, the developer shall produce a TDM that estimates a 30% reduction in traffic based on the addition of transit-oriented incentives and mitigations. This obligation does not require that the developer prove a 30% reduction in traffic upon completion of the project but that the traffic mitigations in the TDM have the potential to achieve this level of traffic mitigation. The developer agrees to not seek City approval of the current TDM and to submit a revised and enhanced TDM for approval with the PDP that is consistent with these goals. Additionally, the developer agrees to create and provide a shared parking plan that will optimize parking capacity by allowing varying uses within the project to share spaces, reducing segregated and unused parking. Public parking shall be included in this plan. Finally, the developer agrees to work with the City to provide parking management services for time-restricted parking to assist in facilitating the use of street and other parking for small businesses in the neighborhood and to contribute financially to the enforcement of those parking restrictions.

6). GreenTrip:

The developer shall achieve an equivalent compliance to the GreenTrip “Platinum” certification (without seeking such a certification) from TransForm prior to the final certificate of occupancy for the final residential building of the project, excepting only that the developer shall not have to meet the 0.5 parking spaces per unit standard required for “Platinum” certification. Qualifying Traffic Reduction Strategies (TRS) shall include Shuttle Service to West Oakland BART.

7). West Oakland BART Shuttle:

The developer shall provide a private shuttle service between the project site and West Oakland BART. A bus stop that is within 500 feet of the project site is sufficient for being considered “within” the project site. The developer agrees that the service shall commence within 60 days after occupancy of fifty percent (50%) of the total residential units for the project and shall endure for a period of five years. Both parties agree that costs associated with implementing the shuttle for the first five years should be included under the Flexible Public Benefits category of the City’s Density Bonus program. If, prior to the onset of the developer’s obligation to provide private shuttle service to West Oakland BART, or at any time subsequent to the commencement of such service but prior to the expiration of the five year period of service the developer has negotiated the provision of transit services from any other existing transit provider that provides the same or similar frequency, route and stops as the service provided by the developer, this obligation shall cease and any community benefits not expended shall be returned to the city in the form of payment. The private shuttle service shall be provided without cost to residents/employees at the project site and residents of Emeryville.

8). Park Avenue District Overlay:

The developer shall comply with the Park Avenue District overlay and associated guidelines, including but not limited to the requirements for shared parking, a special emphasis on the use of building materials and aesthetics that comply with the overlay’s attention to the historic and industrial roots of the community and a fine grain street layout that is pedestrian and bicycle-friendly, among others.

9). Construction Parking:

The developer shall provide off-street parking for construction workers during all phases of construction. All construction deliveries shall be within the project and not offloaded from delivery vehicles on public streets with limited exceptions for site and construction work done on buildings and infrastructure along the perimeter streets of the project site.

10). Public Process for Park Design:

Working with the City and its bodies and processes, the developer shall engage the community in a public process that shall include facilitated community workshops related to design of the parks, bike and pedestrian paths, streetscape and other public programming.

11). Sidewalks and undergrounding of utilities:

The developer agrees to install or to fund City installation of the following infrastructure improvements for the neighborhood prior to issuance of the final Certificate of Occupancy for the final residential structure on the site:

  1. Install curb and sidewalk and underground all utilities on the east side of Hubbard
    Street between Sherwin Street to the north and Park Avenue to the south;
  2. Underground all utilities on the east side of Horton Street between the intersection of the proposed 46th Street to the north and Park Avenue to the south;
  3. Install curb and sidewalk along the south side of Sherwin Street between Horton Street to the east and Hubbard Street to the west.

The developer’s intent is to install the improvements listed above concurrent with the project unless the City deems it more efficient or favorable to have the City perform the improvements.

Both parties agree that costs associated with implementing the improvements above should be included under the Public Improvements category of the City’s Density Bonus program.

The following term of agreement could not be finalized or agreed upon. We are including it for information purposes:

Home Ownership:

Prior to granting of the first certificate of occupancy, the developer shall designate not less than 20% of the project housing units as for-sale units.


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About The Author

is a third generation Californian and East Bay native who moved to Emeryville in 2003. A new parent in the community, he can often be seen walking his French Bulldog rescue "Fiona" around his Park Avenue District neighborhood, traversing the greenway on his bike or enjoying his favorite Emeryville small businesses. Rob's "day job" is as a creative professional.

2 Responses to PARC negotiates Community Benefits Agreement compromise with Sherwin Developers ahead of Council EIR Certification

  1. M says:

    Valuable information and well presented. Many thanks!

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