There has been a lot of discussion about the Nishi Affordable Housing Component. Last week, we cited the city’s explanation from a November 2015 staff report which states, “The current affordable housing ordinance exempts vertical-mixed use rental housing and stacked-flat condominiums from inclusionary requirements. This was reflected in preliminary draft deal points presented with the predevelopment agreement in 2012.”
But some have argued, referencing the Davis Municipal Code, that the city’s exemption is wrong.
According to code section 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.”
Moreover, it says that “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.”
An immediate question that we have raised is whether that means that a vertical mixed use “cannot” include “uses ancillary to residential units” – as in if the bottom floor were 90 percent commercial but 10 percent ancillary, would that violate the definition of vertical mixed use?
One of our commenters wrote, “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.”
They note, “The entire project (R&D plus residential) is zoned to allow only 20,000 square feet of commercial (includes office, retail, etc.) uses.”
In their view, they argue that “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.”
They conclude, “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.”
But they would not cite any authority for this interpretation.
On the surface, this definition provided by our reader seems far too rigid. The intent of the ordinance seems obvious – they want to exempt truly mixed use buildings where there is commercial on the ground floor and residential above. It is obvious that commercial does not mean uses that are there to serve the residents, but rather separate, independent commercial interests.
The question from which we cannot get an answer by simply looking at the code is whether that means that none of the ground floor can have residential uses (which again would seem overly technical and violating the spirit of what is intended).
But the first question is what will the first floor of Nishi’s apartment buildings include?
Tim Ruff, the project manager, told the Vanguard, “The first floor on the vertical mixed use buildings will obviously contain some common space for residents; lobby, stairwells, hallways, elevators, utility rooms, laundry, and maybe an exercise room that could be a commercial gym that is available for the R & D tenants as well.”
He noted, “While the buildings have not been designed yet, parking takes up part of the first floor site plan as do interior courtyards, bike racks, and other outdoor common areas; so the first floor space for lease is smaller than the overall footprint of the site.”
So, right away, the assumption that the building structure will encompass the entirety of the footprint is false.
Next, Mr. Ruff addresses the uses for the commercial space. He told the Vanguard, “Permitting commercial space for lease on the first floor to outside businesses is the best indicator of vertical mixed use. Retail is permitted. It is limited to 20,000 square feet total but it could include 10 businesses of 2000 square feet each.”
However, as he points out, “There are many other permitted uses listed in the zoning that are non-retail; neighborhood-serving or employee-oriented service establishments for the business space (i.e., printing and copying shops, drycleaners, bicycle repair, beauty salons); Daycare; Nursery school; Health and fitness studios; Indoor and outdoor exercise areas and gymnasiums (commercial or noncommercial). Small family and group day care homes. Bicycle Storage and Bicycle Rental. Bicycle and Car Share Services.”
But there are more possible uses.
He writes, “The zoning also allows for other uses that are not listed if consistent with vertical mixed use zoning which could include offices. The site is permitted to have 325,000 square feet of offices and a small percentage of these offices could be located on the first floor of the vertical mixed use buildings.”
Tim Ruff also offered his view on the affordable housing exemption.
He told the Vanguard, “I think the primary reason for the affordable housing exemption for vertical mixed use and condominiums in the City code is to encourage higher density infill development. I think the City recognizes that mid-rise buildings and infill challenges make these projects much more expensive to construct.”
“These buildings will be 5-6 stories in height with podium, underground or structured parking and commercial spaces for lease on the first floor,” he said. “In addition, making first floor space available for retail use is expensive – especially the smaller retail spaces which often times require extensive plumbing, exhaust, and other specialized tenant improvements. Encouraging infill is a laudable goal that incorporates smart growth principals, and a vertical mixed use infill project at Nishi will be very popular given the extraordinary location.
“I do think it is important to note that the affordable housing exemption was clear from the beginning of the process as stated in the 2012 pre-development agreement to encourage higher density at this infill location,” Mr. Ruff explains.
He says, “It clearly meets the exemption requirement in the City’s municipal code. However, the City Council still negotiated a $1,000,000 fee payable to the affordable housing trust fund.”
Mr. Ruff adds, “Looking at the unit breakdown, there are 239 units that are under 850 square feet (36% of the overall units) whose tenants can live car free and walk to campus and downtown saving a considerable sum on living expenses. Given the extensive energy saving features, utility bills will be lower as well, making affordable living in the core area a reality.”
The bottom line from the ordinance’s standpoint is that the city wants to ensure that a project is legitimately “mixed-use,” not creating a first floor that simply serves the residents of the rest of the building.
There is no language that I see that precludes any uses ancillary to the residences, but rather that the bulk of the use on the first floor must be separate from serving those residents. That appears to be the case here – if anyone has case law or written analysis to the contrary, I would be interested in considering that.
But, based on what I have seen to date, I do not think this project violates the city’s affordable housing ordinance.
—David M. Greenwald reporting
David wrote:
> An immediate question that we have raised is whether that means that
> a vertical mixed use “cannot” include “uses ancillary to residential units”
Who are the “we” you are talking about? The anti-development NIMBY folks keep shouting “cannot include” but everyone else knows that the language just means you need “real” mixed-use building and can’t just put a laundry room or leasing office on the ground floor and call it mixed-use (to be exempt from Affordable Housing requirements).
Yesterday I asked Eileen (who has been fighting against any new development in Davis for decades):
“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 twice a week (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)…
P.S. A city will probably get more benefits (jobs, business taxes, sales taxes, business permit fees, etc.) from a “mixed-use” building over time than they would get from the one time affordable housing fee…
It is great to see all this concern for affordable housing coming out, in some cases from unlikely quarters. A cynic might think it’s just a political ploy to block the project.
The way to get more affordable housing in Davis is to build more apartments. It would be unfortunate if the net result of this use of the affordable housing ‘issue’ was to block the construction of apartments. That would be counterproductive.
Honestly, this argument is taking on a note of desperation, from proponents of the development. (The exclusion from low-income housing represents millions of dollars, regardless of one’s concern for it.)
Not to mention concerns regarding the process, or possible lack thereof, that the city fused when making a decision to exclude the development from low-income requirements.
Again, this will likely be argued by attorneys. However, these types of arguments do not look good (politically), for supporters of the development.
To be clear, I’m not a proponent of the development. My goal here is to accurately assess this debate as best I can. What I see here is a political not a legal argument and I have seen nothing cited here by you, Cal Ag, Michael Harrington or Alan Pryor that has bearing on the legality of this. The plain language that you cite doesn’t preclude any residential uses on the ground floor – both commonsense and examples demonstrate that most mixed use has both commercial but also residential uses on the ground floor. Show me case law that says it must be 100/0 rather than 80/20. Moreover, as I demonstrate here, CalAg has presumed that the entire footprint will be built on and has presumed that the 20,000 commercial component are the sole possible acceptable uses, whereas the developer has presented a more mixed picture. So again, show me case law or other opinions that back your point of view.
David: I’m not going to research this, to make an argument. I don’t have that level of interest. I was primarily responding to what you’ve stated.
For example, when you state that “cannot” is substantially different than “does not”, this goes against common sense.
It appears that the ordinance the ordinance discusses “structures”, not “footprints”. (I did not see any argument from CalAg in which he/she made an argument, regarding footprints.) In fact, all I’ve really seen are quotes from the code, with others (somehow) arguing that it means something entirely different than what it states. (Including the meaning of “does not”, for example.)
You have a level of interest enough to make an argument against the project based on it, but you do not want to do the leg work to see if you are correct? I’m troubled by that.
No – you’re interpreting this the wrong way. I was simply pointing out that your interpretation of “does not” seems illogical.
And all I keep asking for is some “authority” on how courts have ruled in the past. You are arguing for a 100/0 split and I still think 90/10 meets the spirit of the law.
Ron: Will try to make it as simple as possible… “cannot” means it is really not possible… ex., a castrated male ‘cannot’ father a child (unless sperm was stored)… “does not” is a snapshot in time… something either does or does not exist, in the present. Doesn’t speak to the future.
Why you equate the two concepts is beyond me. It violates common sense and common usage of the English language. Which do you lack? It ‘does not’ make sense to see an equality of terms… I believe you ‘cannot’ persuade me to the contrary.
O.K. – I guess the ordinance states that the condition exists.
Re-reading the thread, Ron, I stand by what I wrote, but the ordinance should have used terms (as an ORDINANCE) like “shall not” (“will not” or “should not” can be ‘squishy’ as to fortune-telling and/or discretionary actions that may or may not be intended by the ordinance), and listed any clarifications as to what was or was not intended… I better understand your comments.
I didn’t write the ordinance… I do better understand where you are coming from.
It is what it is.
But, in my opinion, the ordinance should be revisited, if for no other purpose, cleaning up the wording used. If you mean “shall” (or shall not), use that word… it has specific meaning, legally.
“Shall” is an imperative… “should” is a goal… “might” is a guess… “will” is prognostication… “may” is permissive, and sometimes suggestive… at least when you have an ordinance with the force of law, lesser terms MAY be appropriate, but only in policies, guidelines, etc., but ordinances SHOULD use the word “shall”, unless specifically spelling out ‘latitude’… but just my opinion, based on ~ 40 years of dealing with ordinances and other laws…
And, no, am not an attorney, but have dealt with many, and have several approach me as to “spirit” and/or “letter” of the law… and a few of them encouraged me to go into law… but I’m smarter than that, IMHO.
Wanted to clarify that when I say “I’m not a proponent of the development,” I am also NOT an OPPONENT. I am neutral. My goal here is simply provide as accurate of information as possible. If people have additional information on this, please send it to me.
“According to code section 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.””
Is there anything in the city’s code that states HOW MUCH non-residential use on the ground floor there must be?
This is what I keep asking – there is nothing in the city code, I have asked for case law or other opinions on this issue and have gotten nowhere with several of the commenters here.
David, in fact the ordinance is extremely clear on this point and you have added the applicable references yourself .
This does not leave wiggle room for putting any residential on the first floor. You made the statement above that this “seems overly technical and violating the spirit of what is intended above”. Laws are indeed technical in nature for purposes of not allowing people to skirt them with impunity. How can you say what was the “intention” of the law by reading anything into the language other than what is already in it unless you can provide any language to the contrary.
If the City had intended any other allowable residential uses on the first floor they could have easily added clarifying language by amending the ordinance just as they did for Cannery by allowing ADUs.
Finally, Ruff keeps saying that the language allowing him to not put in affordable housing is allowed in the original pre-development agreement signed in November 2102. In fact, there is no such language in either the resolution authoring the signing of the agreement or the agreement itself.
Off until much later in the day…have fun!
“This does not leave wiggle room for putting any residential on the first floor.”
As I read it: “including office, restaurant, retail, and other nonresidential uses…” And “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.”
So the question is, does the second mean that it can have zero? Functionally speaking is a 90/10 split impermissible? It seems you are arguing that. How difficult is it to support that opinion with some case law or other opinion (for instance an attorney general or city attorney analysis)?
Look at how Roe Bldg is defined… they have a doorway with stairs, entry foyer w/ mailboxes, elevator (?)… think that building qualifies a vertical mixed use. There is a utility closet, as I recall, to service the fire sprinkler system… all perfectly within the spirit of the definitions cited. The folk crafting the text probably were assuming folk would be rational, and not trying to do the ‘counting angels on the head of a pin’ thing. They were clearly wrong.
hpierce wrote:
> Look at how Roe Bldg is defined… they have a doorway with stairs,
> entry foyer w/ mailboxes, elevator
Don’t forget the mixed use building on the SW corner of the block that has all that and (from what I have been told) resident parking on the ground floor.
https://localwiki.org/davis/McCormick_Building
Like David I don’t care if Nishi is ever developed but is painful to see the same people hunt for a new fake reason (Covell Village-Flooding, Wildhorse Ranch-Too Expensive, Canary – Not Senior Friendly, Nishi-Smoke from I80 and Affordable Housing) to kill every new project.
It’s also painful to see a development bypass low-income housing requirements (to the tune of millions of dollars). This is a real and legitimate concern for many.
South of Davis… huge difference whether parking is on the “ground floor” of a ‘structure‘ (within the footprint of the building) and having parking on the ground level of the entire site (which, I believe is the case for both McCormick and Roe.)
I believe the logical reading of the language of the ordinance would argue against having residential parking within the building footprint, but is silent as to other portions of the site, which could provide residential parking, dumpsters, landscaping, etc. Not sure if some of the zealots are logical tho’.
I have no dog in this fight (Nishi)… the Rhett Butler quote comes to mind… but sure sounds like folk are obsessed with ‘angels dancing on the head of a pin’ thing… not a sign of higher intelligence.
HPierce: I noted the difference between the “footprint” and “structure”, as well (above).
I don’t think that those opposed to Nishi are the ones who are attempting to misinterpret the ordinance.
Woops – I meant “structure” and “site”.
You certainly are willing to cast aspersions towards the affordable housing part of the project while admitting you haven’t researched the accuracy of those claims and while declining you lack the interest. As they say… How convenient.
The only thing funnier was CalAg walking off in a huff when asked some basic questions to support his/ her opinion.
Wow – really? Are you one of the people who believe that “does not” is entirely different than “cannot”? (Yeah, let me research that.) Would you like to argue the meaning of “unrelated”, as well? Let me know what you find, if you do any research regarding the meaning of those words.
What a waste of time. No wonder CalAg abandoned this conversation.
This development was EXCUSED from low-income requirements, to the tune of millions of dollars. And now, proponents are attempting to defend how this occurred, in the face of plainly-written ordinance (and presumably, processes that were supposed to be followed).
Pathetic.
I’m certainly one of the people who doesn’t believe the requirement precludes a lobby on the first floor, stairwells, and other potential services. I’m certainly one of the people who wishes that you would bring more to bear than your repeated assertions and refusal to do additional research.
Ron:
Before you accuse the city of giving up “millions of dollars” can you tell us how a “mixed-use” building would work without anything related to housing on the ground floor (or tell us where one of these buildings that “does not” have anything related to the apartments on the ground floor is located)?
Final point:
It appears that Tim Ruff did not even read the ordinance, since he stated (above) that the first floor of the buildings would “obviously” include laundry rooms, etc. for residents. (Despite the fact that the ordinance specifically addresses this.)
Unless someone wants to continue stating that “does not” is different than “cannot”.
Again, the reason that this matters is because the development was excused from low-income requirements, which amounts to millions of dollars. This matters, for some.
It’s unfortunate (for the developer, and proponents) that such concerns weren’t adequately addressed. This will be voted on, in a couple of months.
Note that I’m not completely opposed to housing students on that site, especially if traffic concerns are fully addressed. (I also was not opposed to the Cannery, although I wish that some concerns were better-addressed.)
What if the laundry room is only 200 square feet, does that really violate the spirit of the ordinance?
I didn’t write the ordinance, but you (and others) can read it yourself. It appears to address the structure, not the entire site. From my understanding, it seems that anything within the structure (on the first floor) cannot be ancillary to the residential units above. It seems that the developer doesn’t understand this, and hasn’t worked it out (despite the fact that this will be voted on, in two months from now).
It’s really up to the developer, the city (and now – attorneys) to figure out how to adhere to the ordinance (and whether or not proper procedures were followed in the first place, in waiving the low-income requirements). It’s unfortunate (politically, if not legally) that this wasn’t done earlier.
O.K. – I’ll fall for this, one more time. Despite the fact that the ordinance specifically addresses this, maybe it’s o.k. if it’s 199 square feet?
Solution – put the washers/dryers in the units? Probably better for the residents that way, as well. (If the development is approved.)
(Nah, on second though, let’s fight over the meaning of “does not”, and “unrelated”.)
I’m done, for the day.
Why is it so hard for you to come up with a legal authority that backs your interpretation?
Huh? Maybe because a) I’m not an attorney, b) I have no interest, and c) I’m not arguing a legal point. Merely the definition of “does not”, “cannot”, and “unrelated”. (Man, I’m even starting to feel sorry for the developer, of all things.)
Kind of reminds me of when Bill Clinton argued about the meaning of the word “is”.
How about you? Do you have some type of legal authority to back up whatever it is that you think these words mean?
Seems like you’re quite invested in this. I’m not. But, this entire conversation has started to defy common sense. I doubt that very many are even paying attention to it, at this point. (Except maybe to laugh at it.)
hpierce wrote:
> huge difference whether parking is on the “ground floor”
> of a ‘structure‘ (within the footprint of the building)
If you look at Google street view on 4th street you can see that the McCormick building has parking “within the footprint of the building” (hard to tell if there is any on the F Street side of the MCCormick building or at the Row Building).
I know I’m pushing my luck, but I can’t help but think of this Family Guy cartoon clip (regarding the communications, today):
“No, there is no smoking, but we do let you smoke”: https://www.youtube.com/watch?v=Ph5PDUwXwbs
With that, I’ve really got to move on to something else, now.
Wonder when the million dollar trust fund originated. Wonder if it happened after the DACHA debacle.
Wonder if city attorneys have now educated themselves re: housing co-ops and affordable housing, in general. Because several years ago a city attorney stated in a city council mtg that she was not an expert in real estate law, or something to that effect. Wonder if there is any money in the city’s budget to help defend them against any future affordable housing litigation, should it arise.
“18.05.080 Exemptions from affordable housing requirements. (c) Residential components of a vertical mixed use development are exempt from the requirements of this article.
18.05.020 Definitions.
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.”
http://qcode.us/codes/davis/
It is not unreasonable to conclude that a project that has residential units above a ground floor that is predominantly nonresidential would qualify as a “vertical mixed use development.” My interpretation is that they are saying you can’t consider an apartment building a “vertical mixed use development” just because you happen to put the tenant uses on the ground floor and the apartments above it. The ordinance is not precluding the tenant uses on the ground floor, just that it is intended to be predominantly unrelated uses on the ground floor.
“Vertical mixed use development” would be mostly shops, offices, public areas, etc., on the ground floor.
Ron, I have not read all the comments yet, but you have twice used the term low income interchangeably with Affordable; they are quite different.
The so called for sale should be included in the AHO calculations so the$11 m is far too small
We will post the analysis soon
As far as we know this is the first larger project that has tried this tricky dickey process for avoiding the AHO contributions
Oh, it’s ‘tricky Dicky‘, unless you are making a fashion statement… both go back to the late 60’s, early 70’s… you are dating yourself, as I just have..
Would be interesting to know how many folk actually remember ‘tricky Dick’, and how he got the appellation….
And, if you think it (appellation) was due to Watergate or his presidency… (buzzer sounds) you are incorrect… much older than that…
I remembered it wrong… goes to the 50’s, but first use was before I was born, so, mea culpa.
[side note… Nixon is one of the ‘dead presidents’ who will probably never have his image on our currrency…]
Waiting, with bated (or should it be “baited”?) breath… better hurry though, as absentee/vote by mail ballots will be going out shortly… but then again you get two swings at ‘the bat’… one election based, the other in the courts… found your sympathetic judge yet?
Sympathetic? I think you mean sentient, and the answer is no chance.
No, didn’t mean that, but I believe your terminology (substitute) might mean (IMO) that a sentient judge would dismiss, with prejudice… as to whether we have a sentient YC judge, am offering no opinion… at least for now…
For future reference… please don’t even try to suggest what I mean (unless it is obvious that I did a stupid typo… then that’s cool) telling me what I think, or what I should think, “Thems’s fighting words”. Unless of course, a fight is what you seek.
To reiterate, using the Rhett Butler character line… “frankly, I don’t give a damn” on the specific proposal… can’t find myself advocating for it, but will oppose it if it has access to W Olive for anything other than bike/ped/EVA access… when I do so, if it comes to that, I will (@90%) level, say so in my ‘true identity’… no “nom de guerre’…