Nishi Affordable Housing Facts

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Interior View of NishiDear David, please post the following facts; first from the existing municipal code regarding affordable housing exemptions:  and second, the PD zoning of the residential zone which lists many, many uses unaffiliated with the operation of the residences which are permitted commercial uses. Not just retail but offices, day care, rental agencies, bike repair, just to name a few.  I would appreciate you providing these links when you write articles in the future regarding this issue. The $1,000,000 payable to affordable housing trust fund was not a requirement by code but was negotiated by the City Council even though the project was categorically exempt.    Sincerely, Tim Ruff

I would also provide links to (1) Affordable Housing Ordinance   http://qcode.us/codes/davis/view.php?topic=18-18_05&frames=off  under exemptions.  And (2) Nishi Zoning http://www.cityofdavis.org/home/showdocument?id=5197

Exemptions to affordable housing: 

(b)    Residential developments constructed as exempt condominiums are exempt from the requirements of this article.

(c)    Residential components of a vertical mixed use development are exempt from the requirements of this article.

Approved  Zoning:   Purpose of Project:

  1.  Develop a mixed-use project with an array of dense, efficient, urban housing types, as well as land for business opportunities

The subsection pertains to Sub Area A (Residential: Multi-family For Sale and Rental)

  1. Purpose. The purposes of Sub Area A (Residential: Multi-family For Sale and Rental) are as follows: to implement the policies and objectives of the Nishi Gateway Project Sustainability Implementation Plan; to support high density multi-family for sale and rental housing near UC Davis and Downtown Davis; and to enhance opportunities for multi-modal connectivity and improved quality of life for local residents.
  2. Permitted Uses. The principal permitted uses within Sub Areas A shall be High Density For-Sale Condominiums and Apartments. Up to 90 dwelling units per acre is allowed within this subarea.
  3. Accessory Uses. The accessory uses within Sub Area A shall be consistent with the accessory uses in section 40.09.040 (Accessory Uses: Residential High Density Apartment District) of the Zoning Ordinance, as amended from time to time. The permitted accessory uses within Sub Area A shall also include the following: a. Ground Floor Podium or Below-Grade Parking. b. Structured Parking.  c. Home occupations, subject to the provisions of Section 40.26.150. d. Bicycle Storage and Bicycle Rental. e. Bicycle and Car Share Services. f. Farm Stand/Outdoor Market. g. Smaller scale ground floor retail commercial uses (e.g., less than 2,500 total gross square feet) that primarily serve the day-to-day needs of on-site residents and employees, rather than destinations that compete with downtown Davis businesses. These uses may include the following: i. Restaurants, cafes, bakeries (including indoor and outdoor seating areas), which may include sale and service of beer and wine; ii. Neighborhood-serving or employee-oriented retail and service establishments (i.e., printing and copying shops, drycleaners, bicycle sales and repair, beauty salons); iii. Daycare; iv. Nursery school;   v. Health and fitness studios; and vi. Other appropriate supporting uses. h. Outdoor Entertainment, associated with Permitted Uses. i. Indoor and outdoor exercise areas and gymnasiums (commercial or noncommercial). j. Power Generating Facilities (solar and wind). k. Urban Agriculture. l. Small family and group day care homes, subject to the requirements of Section 40.26.270. m. Other accessory uses and accessory buildings customarily appurtenant to a permitted
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36 thoughts on “Nishi Affordable Housing Facts”

  1. ryankelly

    So this is not the issue opponents are making it out to be. Even if we vote to approve Nishi, opponents have pledged to tie it up in Court.  It will be this section that the Court will interprete.  Harrinton’s accusations that the City Council is breaking the law is unfounded and irresponsible.

  2. David Greenwald

    From Tim Ruff:

    “Great choice of photo David- it perfectly demonstrates vertical mixed-use- high density, efficient, urban condominiums…. everything the zoning and affordable housing exemptions talk about. Not to mention the Unitrans bus! Sincerely, Tim”

    1. CalAg

      How cynical can you get?

      Instead of claiming black is white, maybe Ruff should present a detailed description of how the developers plan to fill the ground floors of the student apartment buildings with “unrelated non-residential uses on the ground floor, including office, restaurant, retail, and other nonresidential uses” (language from the Municipal Code).

      It the plan meets both the AHO code and the adopted pre-Measure R zoning, I won’t post on this topic again.

  3. The Pugilist

    It is interesting that Harrington-Pryor push gets 80 comments but the developer correction of facts, belated and limited as it is, gets nary a murmur of protest.

  4. CalAg

    “… even though the project was categorically exempt …” Tiff Ruff

    This statement is categorically false.

    The 440 proposed apartments are NOT exempt under the code.

    Do we really need to go back and repost all the (actual) facts documenting this?

    1. CalAg

      Davis Municipal Code – 18.05.020
      Vertical mixed use development means mixed-use structures that vertically integrate residential dwelling units above the ground floor with unrelated non-residential uses on the ground floor, including office, restaurant, retail, and other nonresidential uses. For purposes of this article, vertical mixed use does not include structures that vertically integrate uses ancillary to residential units, such as resident parking, laundry rooms, community rooms, or common space on the ground floor with the residential units above.

      The project has four rental buildings – each with footprint of approx 30,000 sq ft. That translates into a need for approx 120,000 sq ft of non-ancillary ground floor uses to meet the requirements for vertical mixed use.

      The entire project (R&D plus residential) is zoned to allow only 20,000 square feet of commercial (includes office, retail, etc.) uses.

      In order to qualify for the vertical mixed use exemption, (1) the project would need to be zoned for approx 100,000 sq ft of additional commercial (a big problem for the downtown) and (2) the City would need to be diligent to insure that 100% of the first floor uses in the student apartment cluster are “unrelated non-residential uses” as required by the code posted above.

      Bottom line – There’s not enough “office, restaurant, retail, and other nonresidential uses” allowed in the entire 46 acre project to get anywhere close to putting in the required amount on the first floors of the student apartment buildings in order to qualify for the vertical mixed use affordable housing exemption.

      1. David Greenwald

        “The project has four rental buildings – each with footprint of approx 30,000 sq ft. That translates into a need for approx 120,000 sq ft of non-ancillary ground floor uses to meet the requirements for vertical mixed use.”

        Where is this written?

        1. CalAg

          It is estimated from the table on page 10 of the Development Agreement (apartment sizes and numbers) and the assumption that the 4 buildings will be 5-6 stories.

          1. David Greenwald

            Right, but where is it written to qualify for vertical mixed use, the retail must occupy the entirety of the ground floor footprint?

        2. CalAg

          In the zoning ordinance.

          “Vertical mixed use development means mixed-use structures that vertically integrate residential dwelling units above the ground floor with unrelated non-residential uses on the ground floor, including office, restaurant, retail, and other nonresidential uses.”

          Ancillary uses are not allowed.

          I hope you are not implying that developers should be able to game the ordinance in order to get exempted from affordable housing requirements. If that’s your position, the the City Council should simply exempt all multifamily development.

           

        3. Mark West

          “Ancillary uses are not allowed”

          The code that Alan P. posted last week did not state that.  It stated that ancillary use does not count as mixed use for the purpose of the definition, but it did not specify that ancillary use was not allowed or that non-ancillary use had to be 100% of the first-floor space.

        4. CalAg

          Actually it does …

          from Davis Municipal Code – 18.05.020
          For purposes of this article, vertical mixed use does not include structures that vertically integrate uses ancillary to residential units …

          While the language could be better, the code is clear. There’s no way to parse this. If there are ancillary uses on the first floor, the building is not vertical mixed use.

          It’s very unfortunate that staff and the developer tried to finesse this and, in doing so, opened the door for more litigation from Harrington. Just once, I’d like to see staff process a proposal straight down the middle.

          I’m pretty sure Harrington wins on this point, but as DP says, that’s why we have lawyers.

          1. David Greenwald

            Right. So what if half the uses are commercial, the other half are not. By your measure that means they are not ancillary, but we don’t know how the breakdown will be because it wasn’t laid out. We don’t know how the law rules that. Moreover, we don’t know if the council can simply change the law on the fly. Too many variables here for you to make a simple declaration.

        5. Mark West

          “Actually it does …”

          No, it does not.  It specifies what is considered mixed use, and what is not considered mixed use for purposes of the definition.  It does not say anything at all about a mixture of the two, nor does it require 100% of one or the other as part of the definition.

          There is no way to parse this, you are mischaracterizing what is stated in the ordinance to fit your preferred outcome.

        6. Mark West

          I suspect that the code was written in this somewhat ambiguous manner specifically to provide flexibility to the City for interpreting the zoning requirements.

        7. CalAg

          The ordinance says “Vertical mixed use DOES NOT INCLUDE …”

          So parse and dissemble all you want.

          There can be no ancillary uses on the ground floor. There can be no residential on the ground floor. What there can be – as laid out in the ordinance – is office, restaurant, retail, and other nonresidential uses. These allowed ground floor uses are further restricted by the project’s zoning, which does not allow office in the residential part of the project. As a consequence, all the developer is left with for the first floor of the student apartment buildings is retail commercial (and that is capped at 20,000 for the entire project) and “other nonresidential uses.”

          So to qualify for the affordable housing exemption under the vertical mixed use exception, the developer will need to come up with at at least 100,000 sq ft of “nonresidental uses” that are not “ancillary to the residential” for the ground floor of the student apartment buildings. While theoretically possible, as a practical matter this is very unlikely from a development perspective. As I said in my previous post, if the developer discloses a plan for the first floors of the student apartment buildings that is compliant with both the AHO code and the adopted pre-Measure R zoning, I won’t post on this topic again.

          As required by the ordinance, this should have all been worked out very early in the process when the affordable housing exemption was being considered. Instead, there was an almost complete lack of transparency, some sort of back-room deal linking he AHO exemption to the UPRR undercrossing, and now a bunch political of misdirection about the interpretation of the AHO and the City Council fixing the problem after the fact.

          1. David Greenwald

            You’re saying all that, but again, show me case law or an authority that backs your interpretation.

        8. CalAg

          I’m not going to waste any more time trying to get you to engage in the issue in any kind of intellectually honest way. I can see it’s a waste of time.

          Sorry. No more free content for you today.

          1. David Greenwald

            Good. But I know what you’re interpretation of the ordinance is, what I don’t know is what the law says. Unless you can answer that, there really isn’t anything more you can say. I do know that the city and developer disagree with your interpretation of that language. They interpretation of “does not include” isn’t “cannot include.”

            But there is another interesting point – some of the uses may be to serve the residential, but apparently the uses include nonacilliary and also non-retail, which it appears you have no considered. Retail is limited to 20K square feet or 2000 feet per building, but the other uses aren’t limited.

        9. Ron

          David Greenwald:  (The) interpretation of “does not include” isn’t “cannot include.”

          Really?  Wow – if I was “hanging my hat” on that argument, all I can say is “good luck”.  (Regardless of what one thinks of the proposed development.)  I guess we’ll see how that works out.  I also probably will not respond further, since my statements will ultimately (also) not matter, regarding the law (including any process that the city was supposed to follow when making decisions).

          1. David Greenwald

            What if 90% of the space on the first floor was for non-ancillary purposes, but you have a small space that isn’t? Does that make it not mixed use? There is more to it than that, but I think CalAg reached a flawed conclusion based on the amount of retail without considering the possibility of non-retail but also non-ancillary uses.

        10. Ron

          David Greenwald:  “What if 90% of the space on the first floor was for non-ancillary purposes, but you have a small space that isn’t? Does that make it not mixed use?”

          I decided to post one more time.  Regarding your point above, I haven’t studied this issue in as much detail, as some (including the attorneys who will likely dive much more deeply into such questions – including the process by which the city arrived at its decisions).

          I will say this – I don’t think the city has served project proponents very well, by placing this development proposal on the June ballot (due to unsettled issues).  It seems that even some supporters might acknowledge this.  And, I think the exclusion from low-income housing will be an issue politically, if not legally.  (Especially if the public perceives that the agreement/proposal violates the “spirit of the law”.) If that occurs, perhaps the legal questions will be moot.

           

        11. South of Davis

          CalAg says (yet again):

          > There can be NO ancillary uses on the ground floor. 

          Yet time after time telling him if this were true the only legal “mixed use” buildings would only be accessible by helicopter or rope ladder he still thinks he knows what he is talking about.  I rarely agree with (attorney) Davis Progressive, but I think he makes a good point that an attorney is a better person to interpret zoning language than an anti-development activist…

          P.S. To CalAg I don’t think David will mind if you stop saying something that is wrong multiple times a day and I don’t think anyone else will miss the “free content”…

          1. David Greenwald

            I used to live in Capitol Towers in Sacramento. On the ground floor was a bar, a convenience store, a couple of restaurants, and a copy center. But there was also a lobby for the hotel and the laundry room. By their definition, Capitol Towers wouldn’t qualify as mixed-use.

  5. Eileen Samitz

    1) Vertical mixed-use is one zoning category and residential multi-family is another. They are not the same.

    2) Vertical mixed-use is exempt from affordable housing, residential multi-family is not.

    3) Vertical mixed-use does NOT allow ancillary uses to the residential above it, residential multi-family does allow ancillary on the first floor.

    4) The reason vertical mixed-use gets the exemption is because the condition must be met that the first floor uses must not be related to the residential above it. It was an incentive for the downtown to get more retail that would serve the whole community while inviting higher density “vertical” housing.

    So either way, the Nishi project does not qualify for an affordable housing exemption given what the ancillary uses to the residential that the developers want to have on the first floor of the rental housing.

     

    1. South of Davis

      Eileen wrote:

      > The reason vertical mixed-use gets the exemption is because the

      > condition must be met that the first floor uses must not be related

      > to the residential above it.

      Can you name a single building anywhere in America that meets your definition of “mixed-use” with NOTHING related to the apartments above on the ground floor?

      In addition to making the residents and mail carrier climb a rope ladder (since stairways, elevators and a mailbox area would be related to the residential) the property would also need some kind of system to lower the dumpster down to the garbage truck (since a “dumpster area” for the apartment residents to use would also be  “related” to the residential above (just like the water meters, electric meters and a bunch of other stuff)…

  6. ryankelly

    It seems that this is open to interprete to interpretation.  Price’s lawsuit should resolve that.  Opponents seem to be asking voters to interprete the ordinance and vote accordingly, but then opponents don’t trust the voters and have filed a lawsuit to attempt to overturn the vote if it passes.  I find this offensive.  It is either a campaign issue and we vote on it or it is a legal issue and the Court decides, not both at the same time.  As it stands now I feel that my vote doesn’t matter on this issue and Price’s action has taken away that power by filing her lawsuit even before we have had a chance to vote.  She has declared harm before it has been possible, likely at the encouragement of Harrington and Mooney.   I will evaluate the project by other issues and let a Judge in Woodland decide this issue.

  7. skeptical

    Judges do NOT decide issues.  They are supposed to determine a rule, for legal purposes, where legislation has not provided a rule or has provided a rule without sufficient clarity.

    This is not the place to provide legal arguments, nor should voters constrain themselves with such nonsense.

    What the City has done is insufficient, it is incompetent, it is a sham.  Voters are not stupid, and will likely vote Nishi down.  The City ripped off the developers to subsidize the planning department payroll, and the public is being scammed.

     

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