TO FROM: LawrenceJ. Goldzband, Executive …July 29, 2016 TO: All Commissioners and Alternates FROM:LawrenceJ.Goldzband, Executive Director (415/352-3653;[email protected])

July 29,2016

TO: All Commissioners and Alternates

FROM: Lawrence J. Goldzband, Executive Director (415/352-3653; [email protected]) Sharon Louie, Director, Administrative& Technology Services (415/352-3638; [email protected])

SUBJECT: Draft Minutes of June16, 2016 Commission Meeting

1. Call to Order.The meeting was called to order by Chair Wasserman, atthe Ferry Building, Portof San Francisco, Californiaat1:04 p.m.

2. Roll Call. Presentwere: Chair Wasserman, Vice Chair Halsted (represented by Alternate Chapell) and Commissioners Addiego (departed at4:22 p.m.), Bates (arrived at1:10 p.m.), Chan (represented by Alternate Gilmore), Cortese (represented by Alternate Scharff – arrived at1:30 p.m. / departed at4:07 p.m.), Gioia(departed at4:22 p.m.), Hicks (represented by Alternate Galacatos), Kim (represented by Alternate Peskin), Lucchesi(represented by Alternate Pemberton – departed at4:24 p.m.), McGrath (departed at4:22 p.m.), Nelson, Sartipi (represented by Alternate McElhinney – arrived at1:10 p.m. / departed at4:12 p.m.), Sears (departed at4:22 p.m.), Spering (represented by Alternate Vasquez), Techel (represented by Alternate Hillmer), Wagenknecht (departed at4:07 p.m.), Ziegler (represented by Alternate Brush – departed at4:29 p.m.) and Zwissler.

Chair Wasserman announced thataquorum was present.

Notpresentwere Commissioners: Secretary for Resources (DeLaRosa), Departmentof Finance (Finn), Speaker of the Assembly (Gibbs), SonomaCounty (Gorin), San Mateo County (Pine) and Governor (Randolph).

3. PublicComment Period. Chair Wasserman called for public commenton subjects thatwere noton the agenda.

SandraThrelfall of WaterfrontAction addressed the Commission: My public commentis regarding Scott’s Pavilion in Oakland builtwithoutpermits. We broughtitto your attention in March of 2013. We were promised thatthere would be apublic process.

There were afew design review meetings where they could notunderstand how someone could build apavilion without permits. Itwas said thatBCDC would take care of itbecause we have an enforcementprogram.

The standard clock for fines was started in May of 2013. To my knowledge there has been no resolution. The huge door has been removed butthe frame is still there. This is all on public trustland.

BCDC MINUTES June16,2016

mailto:[email protected]

mailto:[email protected]

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They have builtadining areathatthey rentatextraordinary fees. There was apossibility of acease and desistorder; itis now three and ahalf years later and to my knowledge thathas nothappened.

Whatis the status of all of their violations and fines? Ithas to be amillion dollars by now. Iam speculating because none of this has been public other than the Design Review Committee. We were told thatthere would be avote from the Commission this spring. Thisisnow June. Tomorrow is the firstday of summer. My main concern, other thatthe factthatithappened withoutpermits, is thatithas setthe standard for people who have access to public trustland to build whatthey wantwithoutpermits and cutthatlandofffrom public use.

Thatis notthe purpose of the public trust. Itbelongs to all of us. We do nothave enforcementpowers. You do have enforcementpowers and this involves major violations. Three and ahalf years later no action to date; Iwould like to know whatis going on. Iknow you cannotanswer public comment. Why is this still unresolved? Who knows why nothing ever happens? Thank you very much.

Chair Wasserman moved to Approval of the Minutes.

4. Approval of Minutes of the May 19, 2016 Meeting. Chair Wasserman asked for amotion and asecond to adoptthe minutes of May 19,2016.

MOTION: Commissioner Vasquez moved approval of the Minutes, seconded by Commissioner Wagenknecht.

VOTE: The motion carried with avote of 17-0-1 with Commissioners Addiego, Bates, Gilmore, Scharff, Gioia, Peskin, Pemberton, McGrath, Nelson, McElhinney, Sears, Vasquez, Hillmer, Wagenknecht, Brush, Zwissler, Vice Chair Chappell and Chair Wasserman voting, “YES”, no “NO”, votes and Commissioner Peskin abstaining.

5. Report of theChair. Chair Wasserman reported on the following:

a. NewBusiness. Does anyone wish to add anything to our future agenda? (Nocommentwas voiced)

b. Bay Fill Policies Working Group.I would like to startby requesting thatCommissioner Nelson briefly reporton the Bay Fill Policies Working Group meeting held earlier today in this room.

Commissioner Nelson reported the following: We had an excellentdiscussion and these meeting are open to the public. We had anumber of the public thatdid attend and participated in the discussions and we appreciate this.

We have had over the course of the lastyear plus aseries of briefings from apretty wide range of interests from around the Bay to bring to us issues related to transportation, wetlands issues and arange of other issues thatraise issues regarding sealevel rise and Bay fill.

We are now starting to go back over thatwork and draw fromthe lessons learned from that. Whatwe wentover today was aseries of seven issues thatwe thing are related to Bay fill and sealevel rise adaptation issues thatare related to habitatissues.

BCDC MINUTES June16, 2016

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Atasubsequentmeeting we are going to startdoing the same for issues thatare related to shoreline developmentand the need to protectthe builtshorelines. We are also going to coordinate thatwork with the future work of the Commission as we come back following our previous meeting and think aboutpotential future workshops and how we mightuse our working group to tee up issues for those workshops.

One item came up during our discussion thatChair Wasserman may wantto address atthe Commission. We are all very pleased thatMeasure AA passed which will putmoney on the table for habitatrestoration and shoreline adaptation purposes. This will be atremendous overlap with the work thatour Bay Fill Working Group is doing butitalso touches on the issues thatthe Commission was wrestling with.

An opportunity for the Chair to consider is doing abriefing for the Commission because ifthe Commission does notdo one, myworkinggroup certainly should do one on nextsteps and implementation of Measure AA because itis atremendous opportunity and itis also amomentwhere we need to step back and make sure thatwe are getting itright.

c. Measure AA. Chair Wasserman continued the meeting: Thank you. Ithink we should all take pride in the work thatwe did and commend the people who really puttheir shoulder to the wheel on getting Measure AA passed. Itwas awonderful combination of supportfrom the environmental and the business community. Itwas avery strong demonstration of supportfrom the voters throughoutthe Bay Area.

Itwas the firstregional measure approved by all nine counties. Itis avery significantstep forward in the work thatwe are doing. The Measure is notprimarily focused on rising sealevel. Itis focused on preserving our watersheds and marshes. Those activities are very importantin our efforts to address rising sealevels.

The campaign thatthey puton was terrific and avery significantpartin the educational campaign for whatwe are trying to do and whatwe outlined in the reportthatwe approved atour lastmeeting on May 19th. Itis agreatstartand we will invite the Bay Restoration Authority and members of the campaign to make apresentation. Itis worthy of the whole Commission hearing it.

d. Chronicle Article. Ialso wantto note and hope thateverybody on the Commission reads John King’s article in The Chronicle. There is acopy in our packettoday. Itis avery thorough and very good coverage of the basic issues and the actions thatwe took lastmonth. Iwantto publicly thank John and The Chronicle for that.

As we know, the problem is notgoing away. The projections as the scientists startto include the increasing meltfrom Greenland and Antarctica; the numbers are simply rising. They are going to continue to be uncertain as to how high and how soon the Bay is going to rise butthatitis going to rise; there is no question.

When Commissioner Scharff arrives Iwill have him reporton the ABAG/MTC merger talks.


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e. ABAG MTC Merger.Commissioner Scharff reported the following: Iam pleased to reportthatboth ABAG and MTC have come to an agreement. ABAG will notcease to existin the near future. ABAG is moving its entire staff over to MTC. There will be an implementation plan of how thatworks. Itis actually fairly complicated and there is a50 page reportthatthey have puttogether. The bestways to do this will be worked outover the nextyear or so. There is going to be two boards. There is going to be the ABAG Board and the MTC Board and there will be one staff. The MTC Board will have directcontrol over the hiring of the Executive Director and the Executive Director will reportdirectly to the MTC Board. ABAG will have a, quote, dotted line, towards the Executive Director. Responsibilities thatare currently in existence will stay in existence. After the currentExecutive Director leaves office and anew Executive Director is hired, ABAG and MTC are supposed to have jointauthority over the hiring and the firing of thatExecutive Director. Thatwas the agreement. If there are any questions Iwould be happy to answer them.

Chair Wasserman asked: Any questions? (No questions were voiced)

f. Next BCDC Meeting. We will nothave ameeting on July 7th. Wewill have ameeting onJuly 21st here atthe Ferry Building. We expectatthattime thatwe may take up the following matters:

(1) We may have apotential public hearing on the Treasure Island DevelopmentProposal.

(2) A public hearing and vote on an enforcement matter regarding Park SFO in South San Francisco.

(3) A staff briefing on the ART Program mapping and analysis work.

g. Ex-ParteCommunications. Thatcompletes my report. Does anybody wish to putan ex-parte communication aboutan adjudicative hearing matter thatwe have heard or are going to hear on the record now? (No comments were voiced)Thatbrings us to the Executive Director’s Reportwhich will be made by Steve this afternoon.

6. Report of the Executive Director. Acting Executive Director Goldbeck reported: Thank you very much Chair Wasserman.

Summer begins nextweek, usually the pace of our permitapplications slows down abitbutwe have alotof major projects in the pipeline. So we are going to be checking on your availability over the summer particularly in Augustwhen quorums are hard to come by.

Ihave two importantpieces of budgetnews to share with you. First, BCDC has borrowed $435,000 from the State’s General Fund to ensure thatwe have positive cash flow during the nextcouple of months as we begin to receive our income generated from the work our staff has conducted to fulfill our contracts and grants. The Departmentof Finance continues to be atremendous partner as we continue withoutachief budgetofficer and aviable billing system, and Finance is working hard on some collaborative solutions. Justto assure you – overall, our finances are solid.


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Second, while we have notyetseen the full new state budget, we have every reason to believe itincludes the funds BCDC will use to move to the new regional governmentcenter on Beale Street. We already have asked the Departmentof General Services to move forward on our relocation.

Chair Wasserman and Executive Director Goldzband have decided thatitwould be worthwhile to give you all abriefing on BCDC’sFY16-17 budgetafter itbecomes official.

With regard to the Planning Division, senior staff has metwith GinaBartlett, our consultantwho worked with Lindy and the planning staff to help them think abouthow the Planning Division should change in strategy or structure prior to our moving forward with finding apermanentChief Planner. We shall brief the Commission on the results of thatprocess this summer.

Ihave several importantpieces of staffing news to share as well. First, Iam saddened to say thatwe are losing one of our mostdedicated staff members who is actually atwo-time BCDC staff member. Ellen Miramontes, our Bay Design Analystwho has served as our public access and design expertfor many years, is leaving the agency nextweek to lead her family into the wilds of suburban Philadelphia. As aterrific and creative landscape architectand planner she has worked on hundreds of developmentprojects thatring the Bay and has made each better for the visiting public. She has redesigned the agency’s Shoreline Landscape guidelines, tirelessly promoted both the Bay Trail and barrier-free access into the water viathe Bay AreaWater Trail and has very effectively overseen your Design Review Board. Indeed, lastweek, Ellen managed the first-evercombined meeting of the DRB and the Engineering CriteriaReview Board. Ellen, her husband Pete, and their two daughters are moving to take advantage of agreatjob opportunity and we all are sure thatEllen will leave her mark on eastern Pennsylvania, just as she has here. As Ellen’s family has lived in the Bay Areasince her greatgrandparents moved here, we expectto see them back here atsome pointand wish them the bestin their temporary eastern digs.

On behalf of the staff and the Commission Iwantto say, thank you to Ellen. (Acting Executive Director Goldbeck presented Ms. Miramontes abouquetof roses – applause)

You’ll remember thatwe have losttwo members of our planning staff to marvelous new positions – SaraPolgar and Maggie Wenger. Today, Iwould like to ask you to concur with our hiring decisions to replace them. First, I’m pleased to reportthatAdam Fullerton has accepted aposition in our planning section. Adam earned his B.A. in Political Science with aMinor in Chinese atBates College in Maine, aMaster’s Degree in Environmental Policy and aMBA from the Middlebury Institute of International Studies atMonterey. Adam has mostrecently worked as acontractor for NOAA Fisheries on strategic planning and ecosystem-based managementand, prior to that, he worked for United States Senator Tom Udall of New Mexico.

Also, ElizaBerry has accepted aposition in our planning section. Elizaearned her undergraduate degree in History from Carleton College in Minnesotaand aMaster’s Degree inEnvironmental Science from the Bren School of Environmental Science atUCSB. Elizahas mostrecently worked for the Irvine Ranch Conservancy surveying trail systems to determine the impacts of public access on restoration activities and erosion and for the Wildlife Conservation


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Society as the manager of foundation communications tasked with making the technical work of conservation biologists accessible to awide audience. Both Adam and Elizawill be working on several planning projects and programs including providing supportto the Adapting to Rising Tides Program. We would like to move forward with these appointments to the planning divisionunless we hear an objection. (No objections were voiced)

As afinal note regarding staff, we are pleased to be joined by our second legal intern for the summer, Harsharon Sekhon. Harsharon is athird year studentatVermontSchool of Law. She earned her undergraduate degree from UC Irvine and completed agraduate gateway program in applied politics atAmerican University in Washington, D.C. (Ms. Sekhon stood and was recognized)

Of course, the greatnews since we lastmetwas the passage of Measure AA which will provide $500 million over 20 years to improve the quality of the Bay’s water and habitatprimarily and also will increase our shoreline’s resilience. While there hasn’tbeen afull analysis of the vote, the mostrecentaccountis thatMeasure AA received justshortof 70% of the total votes cast. Mostimportant, the measure received amajority in each of the nine counties, in four counties more than 70% of the voters approved the measure, and only two counties recorded majorities below 60%. We will have abriefing on this going forward.

We also have other good news. Earlier this month Caltrans awarded the Metropolitan Transportation Commission aplanning grantof $800,000 – matched by MTC’s $400,000 – for BCDC’s Adapting to Rising Tides Program. ART will use these funds to work with Caltrans, MTC and other transportation agencies and interested parties to conductanine-county vulnerability assessmentof flooding and rising sealevel focused on three key areas: (1) transportation infrastructure; (2) Priority DevelopmentAreas (PDAs) as identified in Plan Bay Area; and, (3) communities of concern as defined by the Metropolitan Transportation Commission. Additionally, this projectwill prioritize strategies and create aroad map to implementamore resilient, safe and sustainable transportation system. Lindy Lowe and Wendy Goodfriend of our staff, Alison Brooks of BARC and Steve Heminger of MTC deserve greatcreditfor bringing this projectto BCDC and MTC.

Some other good news to share comes from Washington, D.C. You will remember thatthe Senate’s Environmentand Public Works Committee approved areauthorization of the ArmyCorps’ authority in the Waters Resources DevelopmentActthatincludes provisions to increase the beneficial reuse of dredged materials. Justacouple weeks ago, the House Committee on Transportation and Infrastructure approved afundamentally different version thatalso would greatly increase our ability to reuse dredged materials. We hope thateach chamber will take action on the differentbills and go into conference and bring us outsomething thatwe can use to move forward working with our federal partners to beneficially reuse dredged material from the Bay. We wantto thank both Senators Feinstein and Boxer and Representatives Garamendi and Denham for their support.

On adifferentnote, you may recall thatin the May 5th ED’s reportExecutive Director Goldzband mentioned thathe had issued an Executive Director’s Cease and DesistOrder in April to begin resolving alleged violations of the Mac Actand the Suisun Marsh Preservation Actinvolving unpermitted fill and developmentactivities atan island known as PointBuckler in the


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Suisun Marsh. On the day you lastmet, on May 19th, the named parties filed aPetition for Writof Mandate and Complaintfor Injunctive Relief in Solano County Superior Courtchallenging the Order. Four days later, BCDC issued aViolation Report/ Complaintfor the Administrative Imposition of Civil Penalties concerning the same alleged violations and scheduled the matter for ahearing before the Commission. Since thattime our counsel has started negotiations with counsel forthe named parties to promptdiscussions among BCDC, the named parties and representatives of the San Francisco Bay Regional Water Quality Control Board and EPA Region Nine. Icannotprovide the Commission with details concerning the alleged violations atthistime and we have notprovided the Commission with acopy of the Order or the Violation Reportbecause this matter is likely to come before the Commission prior to the Order’s expiration.

Thatcompletes my report, Chair Wasserman. Iam happy to answer any questions.

Chair Wasserman inquired: Are there any questions?

Commissioner McGrath added: Iwanted to thank John Coleman for his helpwith the Water Resources DevelopmentActas well as David Lewis and all the coalition thatwas puttogether to supportthat. We appreciate all of the help.

Commissioner Gioiacommented: When you indicated thatthe July 7th Commissionmeeting is cancelled, is there aSeaLevel Rise Working Group Meeting thatmorning?

Chair Wasserman answered: No. For the foreseeable future we do notenvision reconvening thatgroup. Thatbrings us to Item 7.

7. Consideration of Administrative Matters. Chair Wasserman stated: We have received alistof administrative matters. Does anybody have aquestion for Jaime Michaels aboutthose? (No questionswere voiced) Chair Wasserman moved on to Item 8.

8. Public Hearing and Possible Vote on Oracle America, Inc., Centrum Owners Association and Oracle Corporation’s Application for Material Amendment No. Eight to BCDC Permit No. 1982.026for Constructionof a School Building and Parking Lot Located on 275 Oracle Parkway, in the City of Redwood City, San Mateo County.Chair Wasserman announced: Item 8 is apublic hearing and vote on Oracle Design Tech High School adjacentto BelmontSlough in Redwood City. TinyaHoang will introduce the project.

PermitAnalystHoang addressed the Commission: OnJune 3rd you were mailed asummary of the application to constructthe Design Tech High School on Oracle Parkway in the city of Redwood City, San Mateo County within the Commission’s100-footshoreline band jurisdiction. The proposed projectinvolves construction of aportion of aschool and associated parking lotand studentdrop-off area, araised levee and outdoor recreational spaces. The projectdoes notinvolve any Bayfill.

The projectalso includes subdivisions of land. The application summary describes the creation of anew parcel entirely within the Commission’s 100-footshoreline band jurisdiction butaportion of this parcel is partially in the Bay as well. The recommendation mailed on June 10th includes the corrected description. The projectis physically constrained by alimited areabetween the shoreline and the streetand existing dedicated public access areas atthe site.


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The projectwould provide approximately 1.6 acres of new public access area. A portion of this areawould be permanently guaranteed for public access while another portion would be required and remain available for general public use outside of school hours. Public access improvements include an improved Bay Trail and other pathways and various recreational amenities.

The amountof proposed public access is similar to thatprovided in comparable Commission-authorized projects. Two examples of comparable projects are provided on page 23 of the staff summary in Table 1. These examples are the Redwood Shores Branch Library Projectwhich is located nearby and the Tidewater Aquatic Center Projectin Oakland. Please note thatfor the Tidewater Projectthe table incorrectly describes the projectas having two buildings as opposed to three and this will be corrected.

The projectis expected to be in place until 2070 and the applicants have incorporated aprojection of 36 inches of sealevel rise into their projectdesign. However, the projectsite and public access areas could potentially experience flooding within the life of the projectdue to overtopping occurring off-site.

In evaluating the proposed projectyou should consider; (1.) Whether the proposed public access would be the maximum feasible consistentwith the projectand would be constructed in amanner thatwould maximize opportunities for public use and minimize impacts to wildlife; (2.) Whether the proposed projectwould be designed and managed to avoid impacts from sealevel rise and flooding and; (3.) Whether the proposed projectwould maximize views to the Bay and shoreline.

Unless there are any questions Iwill introduce Dawn Jedkins who will presentadditional information.

Ms. Jedkins addressed the Commission: Iam with DES Architects and Engineers. We are the architectfor the project. Ihave prepared apresentation to walk you through some of the aspects of the design. First, Iwanted to introduce some key team members, Colleen Cassity with the Oracle Education Foundation as well as Dr. KentMontgomery who is with Design Tech High School.

Ms. Cassity commented: Iwanted to take amomentto give our sincere thanks to the BCDC staff who have worked with us so actively and generously over the lastyear. Iam the Executive Director of the Oracle Education Foundation which Ihelped startin 2000. For the lasteightyears Ihave also managed Oracle’s philanthropy globally which includes Oracle Giving and the Oracle Volunteers Program. Both our giving and our volunteerism focus on the same three areas, which will be of interestto the Commission. The firstof those is protecting the environmentand wildlife. The second is enriching community life and public life. And lastly, is education; advancing education globally.

Oracle gives millions of dollars in cash and millions of dollars in software and curriculum to help advance education every year. Our opinion abouteducation and the quality of educational institutions is avery well informed one.


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We have seen alotof highly effective models all over the world. We have never seen one thathas more promise and more potential than we see in Design Tech High School, which is why we propose to build afacility for this school.

Finding agood facility is one of the major challenges thatnew charter schools face. And Oracle is in aposition to help d.tech by providing itwith apermanentstable home and the rightkind of infrastructure to supportits continuing evolution and the fulfillmentof thattremendous potential thatwe see in this organization to help young people become the designers of solutions to the world’s problems.

This relationship began ataprogrammatic level. One of the ways thatd.tech really stands outis through aprogram called Intersession. Through the Intersession Program d.tech invites the community into students’ educational experience; invites them to provide elective workshops for students four times ayear. Thatis where our relationship began: the Oracle Education Foundation beginning to engage Oracle employees as volunteer coaches delivering workshops for d.tech students on coding, electrical engineering and design thinking. Every one of these workshops opens into adesign challenge.

In the two years thatwe have been running this program we have had 77 employees deliver 12 workshops, more than 3,000 donated hours of their time and talentserving 230 students. Iwantto highlightthatthis is an extraordinary example of apublic/private partnership based in shared values. One of those is acommitmentto making community life better, engaging the community in students’ education, giving them agreatcivics lesson. Oracle’s commitmentto education is very well invested in our relationship with Design Tech High School.

Dr. KentMontgomery addressed the Commission: Iam going to give abrief overview aboutour school and some of the programmatic elements. We have some students thatare going to speak.

We are apublic high school so we are acharter high school. We are open to any studentwithin the state of California. We are free so anyone can attend. The admission is by lottery if the number of applicants exceeds the number of spots thatwe have.

We are currently operating in Burlingame, California. Whatis amazing is how many differentgroups have come together to supporttheschool. We are apublic/private partnership with us possibly being located on Oracle’s campus. The county office worked with the San Mateo Union High School Districtto give us ahome for this pastschool year and the nextschool year. The two districts, San Mateo Union High School and SequoiaDistricthave worked together to enable us to possibly be located on Oracle because San Mateo Union High School Districtis our authorizer butOracle is located in SequoiaUnion High School District. Those two districts had to come together and establish MOUs to make itall work.

Our mission is to develop students who believe thatthe world can be abetter place and thatthey can be the ones to make ithappen. Everything thatwe do is designed around building the students asense of optimism thatthings can getbetter in the sense of efficacy thatthey can be the ones to do it; thatthey have the self-efficacy, the knowledge, the skills to improve it.


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If you understand thatthis mission is atthe heartof everything we do, thatis really all you need to have to know aboutour school. Thatis whatyou have to know aboutour relationship with Oracle and if we are located there how we will take care of things because thatis really whatwe are trying to develop in students, thatthe world can be abetter place and they should actively be the ones designing itto be thatway. We are guided by two principles, extreme personalization. We really try to personalize educational experience and also knowledge and action; thatyou take whatyou learn and you do something with it.

Iam going to letthe students talk aboutthis with you and we also wantto make sure thatwe have enough time to cover the building. Our students are actively engaged in solving real-world problems. Weuse design thinking. We are apartner with the d.school atStanford to use design thinking as our tool for teaching students the optimism and efficacy; the mindsetthatthey do nothave to passively receive the world. They actively design thatthrough the design thinking process. We take itvery seriously thatall of our students very much wantto be good neighbors and there are big things they can do like solving sealevel rise. There are also alotof little things thatyou can do to make things better for people. We really take thatto heartaboutbeing good stewards.

Ms. Jedkins spoke: Thank you for taking the time to hear us outon that. We really feltitwas importantfor you to understand how this projectcame about.

This firstslide orients you to the Oracle campus and where the projectis located in relation to that. Oracle Parkway runs around the full perimeter of the projectsite. Outboard of thatis landscaping and then the Bay Trail access thatexists today. We are going to locate the schoolbuilding on the northern mostpointon campus.

A good portion of the projectsite is within the BCDC jurisdiction. Currently on site there is avacantlotas well as asmall parking lot. Both of those will be removed to allow for the projectto occur. Also, there are 14 public parking spaces to access the Trail. The existing pedestrian Bay Trail does actually run along the top of the existing levee and around the perimeter of the site. The Trail will remain in approximately the same location and there will improvements to the levee to accommodate sealevel rise for the life of the project. Wewill improve the width of the Trail to 12 feet, 10 footwith atwo-footDG shoulder. The schoolparking lotis arelatively small lotfor the size of the school. Itis significantly smaller than whatwould typically be required. This is for staff and small number of visitors’ parking spaces, 35 in total. The school has astrict, no-student-driver policy. We are providing no parking for students.

Around the perimeter of the parking lotis the drop off. Itis adouble-wide lane with 20 available spaces to pull in and then afree lane to drive all the way through and thatwill be aone-way arrangement. The building is to the eastof the site following the shape of the site. Weare constrained between Oracle Parkway and the existing levee. To the westof the parking lotare some high-power lines. We are actually required to keep the building away from those power lines. Thatdrove the general arrangementof the site. There are three existing Trail access points from the public right-of-way. The proposed projectmaintains three. The schoolbuilding is surrounded by patio space. All of these open areas will be accessible by the public.


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We will be removing asignificantamountof Ice plantfrom the currentslough side of the levee. We have arestoration ecologistpreparing areplanting plan for the slough side of the Trail to address habitat. We will also be installing adeterrentfence in the hopes thatthis will keep peoplefromtrespassing, keep their animals on leashes and keep them outof the habitatarea. Itis apostand rope low fence.

There are very nice views from the slough and itextends quite narrowly along the projectsite along the north edge and then opens up as you move eastand then outto the Bay. When you come around from the westside, the levee is elevated and you can see the houses and the residential areas on the other side of the Trail.

There is an existing view corridor through the middle of the site. Due to the programmatic needs of the building and to have one continuous building we are respecting thatview corridor with focusing the main entry of the building atthatlocation making itvery clear, glassy, transparentmulti-use space, main lobby space through the middle of the building. When you are on the public right-of-way and you arrive atthatplace you can look through the building.

We have some educational nodes, picnic space, contemplative space, maybe some space with game tables butalso some additional exercise nodes. The educational node is on the westside. There was some habitatwork thatwas done for aprevious Oracle projectso agood amountof habitatthatwas restored on the westside of the site we feltwas an appropriate place to have some informational signage aboutthe kind of wildlife thatis atthe site.

When you getto the main entrance of the building through the middle we have aslightly larger plazawhich is the mostsignificantplace to stop along the Trail butalso something thatdefines the pointof entry for the building from the Trail side. We have enhanced both the eastand the westTrail access points. We have made them broader and added some nice decorative concrete. We have enhanced the planting and also added some bicycle parking in those locations for people thatare coming to use the Trail.

One of the features thatwill no longer be here are the 14 parking spaces thatwere in this location. Onlot8 there is already aturnout, which accommodates anumber of Trail parking spaces. We will be extending thatto relocate the 14 spaces directly adjacentto the Trail access pointin thatlocation. We mentioned thatthe school patios in the parking lotwillbe available for use by the public on evenings and weekends when the school is notin session.

The parking lotis 35 spaces and we have two EV charges in the parking lot. We have also provided for afull courtbasketball court. Itis kind of an open space thatcan be flexible and hoops thatcould be removed if there is some other kind of eventthatneeded to occur within thatparking lot. We can provide for maximum flexibility of views there. The genesis for the design was two-fold which was in response to the solar orientation of the building as well as the adjacentarchitectural style on the site.

Another reason for this location of the building; the reason the building can be so compactis because there are shared uses. Oracle is going to allow the school to use their conference center for any large events they mightneed to have as well as the fitness center thatOracle has.


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Those two buildings are low buildings on the opposite side of Oracle Parkway. They have aslight look and feel to the towers thateverybody is so familiar with. We have acouple of lower, single-story elements facing BelmontSlough. This is primarily because those are the pieces of the building thatprojectinto the shoreline band. We wanted to be sensitive to stepping down so itdid notfeel as large from the Trail.

Another greatcomponentof this is thatthe Slough side of the building happened to be north facing so we could really do agreatdeal of glass on thatside of the building and nothave to worry aboutheatgain butalso take advantage of the views and the fantastic location thatwe have here. We will be incorporating bird-safe glass which is required of us by the EIR. Itis aglass thathas aregular dotpattern thatis appropriately scaled so thatthe birds can see itand notbe distracted or confused. We also have two differentmetal panels on the project. One is asilver gray color and we are using one which is kind of awood look. We wanted to incorporate warmer, kind of more shoreline-appropriate look and feel to the building on thatside. We have made aconcerted effortto have the building complementthe Trail wherever possible. We tried to go for anatural feel along the Trail.

A big aspectof the projectis to increase the amountof dedicated public access as well as expand on thatwith the required public access, which will be the shared-use facilities. After 5:00 p.m. during school hours or on the weekends, those spaces would be open to the public for use. There isnofence around the building. Movementbetween the Trail, the right-of-way and these patio spaces is unencumbered. We also have additional dedicated public access over and above whatis currently provided for. Our public access total is close to 72,000 square feet.

We also have about71,000 square feetof improved landscaping. A lotof the areaaround the Parkway is currently turf, which is ahigh-water use plantmaterial. The goal for this projectwas to putin drought-tolerant, native habitat-forming plantspecies thatultimately would need little to no water. Once these plants are established we will be maintaining them using reclaimed water from the city system.

This is a50-year building. We are addressing the levee improvements to the three-quarters century with sealevel rise assumptions of 36 inches with one footof freeboard. The levee elevation is coming up to 14 feet, which is improved for the length of the projectsite and then as we getto the eastand the westwe are transitioning down to meetgrade atthe existing levee elevations.

The building has to connectto the existing roadway and sidewalk system, which islowerthan the building. The building meets FEMA requirements for finished floor elevation, which isthe 100-year flood plus one foot. The building elevation is rightaround 11 and the levee is up at14 feet. There is asoftelevation change in slope down to aseawall height, which is around 18 inches and then the patios.

This concludes the presentation thatwe have prepared. We have our projectteam here if you have any questions. Thank you for hearing our presentation and we are here for questions if you have them.

Chair Wasserman asked: Questions?


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Commissioner McGrath commented: There is astatementthatthe sidewalks are narrowed from eight feetto five foot, six inches. Could you go back to the site plan and show me where those locations are. (The slide in question was shown to the attendees)

Ms. Jedkins stated: Those sidewalks are along the city right-of-way. Itis the city sidewalk, which is contiguous to the road.

Commissioner McGrath inquired: So there is no narrowing along the Bay Trail?

Ms. Jedkins replied: No, absolutely not.

Commissioner Bates commented: Idon’tlike the color scheme and Idon’t– (Laughter) Thank you for providing all of this information thatis notrelevantto our decision such as the color scheme etcetera. How many parking spaces are you going to provide and where are they going to be located?

Ms. Jedkins answered: Oracle had applied for aprevious BCDC permitto putsome recreational uses outhere. The parking lotwas constructed and the recreational uses were not. Rightnow thatis overflow parking. Itis notthe base requirementfor the campus. Itis justadditional parking spaces thatare utilized by whoever is on thatside of the campus.

Commissioner Bates continued his inquiry: Don’tyou think thatthose people who work atOracle are going wantto park someplace? And this basketball courtyou have; looks like itis going to be difficultto make shots there when there is acar there in the middle of the lot.

Ms. Jedkins replied: Well the basketball courtis clearly for use after the school is in session. Itwas justto provide some flexibility and some additional parking.

Commissioner Bates continued: Ithink it would be very helpful to know. Ipersonally do nothave acar. The pointis thatthey are going to go someplace and thatis an isolated place. Where on campus are these additional parking spaces going to go? Are they going to go in the BCDC parking lotto the south of the campus?

Ms. Jedkins commented: These rectangular buildings are actually parking structures. Rightacross the streetfrom the parking lotthatis going to be removed, directly adjacentto the conference center, is alarge parking garage which is significantly underutilized rightnow.

Commissioner Bates concluded: So the answer is, they have enough to absorb those withouthaving to provide additional parking space someplace on the campus.

Ms. Jedkins agreed: Thatis right.

Commissioner Bates had more questions: Whatare the requirements for physical activity for students if this is the only activity around this basketball court?

Dr. KentMontgomery fielded this question: The physical education requirements in independentstudy programs are thatthe students have to log acertain number of minutes, 200 minutes per week.


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They can do this is avariety of ways. We have sports teams, basketball teams, cross-country teams. When they participate in those they can keep track of the minutes to satisfy the requirements or running along the Bay Trail or riding their bike. We have afew kids thatare fencers and thatsatisfies it. Itis all independentstudy for their physical education requirements.

Ms. Jedkins added: Oracles’ fitness facility does include afull gym, outdoor volley ball and aswimming pool. There is also abaseball field justacross the slough.

Commissioner McElhinney commented: Iam quite impressed with this facility. Thank you for considering all of our concerns. Ireally am impressed with expanding the public access versus whatis current. The improved landscaping is going to be terrific. Whatis the construction timeline and during thatstage are there any impacts to the access or the parking?

Ms. Jedkins answered: The projectis pretty time sensitive. The school is going to open in Augustof 2017. We have one year to constructthe project. We have every hope thatwe are going to getthere. We are very committed to meeting thatschedule. For the construction of the project, the Trail will be diverted. They are going to take aportion of the roadway and use the barricades so thatthe public can come around the projectsafely and then reconnectto the Trail ateither end of the site.

Commissioner Zwissler had questions: The levee isbeing raised to 14 feetbutjustin frontof the building?

Ms. Jedkins replied: For the length of the projectsite, yes.

Commissioner Zwissler continued: And then on either side itis back down to the existing heightwhich is about2.1 feetor 25 inches above the 100-year flood level?

Ms. Jedkins agreed: Yes.

Commissioner Zwissler inquired aboutthe levee: Whatis the pointof building up the levee?

Ms. Liane Ware replied: The real pointof raising the levee where Oracle is now is to getahead of guaranteed levee raising in the future when FEMA comes through with updated requirements for the existing levee to address sealevel rise and if flooding levels were to increase with that. Oracle wants to getahead of thatso thatthis projecthas the lifetime itis intended to of the 50 years. Therefore, we are constructing the levee adjacentto our portion of the projectrightalong the site improvements and the building to the elevation of 36 inches plus 12 inches of freeboard over the currentbase flood elevation of the slough, which iselevation 10. We are conforming atthe ends. Itis lower and those portions will atsome pointin the future be raised when the entire Redwood Shores citywide levee system has to be upgraded.

Commissioner Zwissler had additional questions: Iam curious whatthe thinking was in terms of designing the building justassuming thatthe levee alone was going to be the protection and had you considered other adaptation strategies in the design of the building?


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Ms. Jedkins replied: Itis a pretty narrow site and we have challenges raising the building to thatelevation given the tightproximity and the opportunity to transition back down to Oracle Parkway and the existing infrastructure. The ideahere is thatOracle is alarge corporation and they have an assetto protectwhich is much larger than the building we are constructing here. Clearly they have interests in adaptation strategies going forward to protectthe campus as awhole.

This projectis required to improve the levee for its portion of the site. We have had some discussion with staff and with our civil engineer in terms of how the grading works around the site in terms of intermittentflooding if thatmay occur. Oracle Parkway is higher atthe northern mostedge of the site where our projectis going to be located and then flows down towards Marine Parkway in both directions.

Any floodwater thatwere to come around the end in an incremental amountwould flow away from the projectsite. In terms of near-term projectprotection the finishedfloor elevation of the building, we believe, is adequate to protectthe asset.

Clearly, going forward there would need to be an adaptation strategy to improve the levee for the length of Redwood Shores as awhole. There is an issue thatneeds to beaddressed there. There is already work going forward with the city of Redwood City and FEMA to address those levees and whatwould be required of landowners in order to improve some of those things.

Commissioner Zwissler continued: Iam trying to understand building along the shoreline. Atwhatpointdo you think aboutprogrammatically having adifferentuse on the ground floor, having itadaptable; stuff you can getin and outfastas other countries and other locations do? It’s okay you have answered the question.

Commissioner McGrath had questions for staff: As Ilook through the recommendation Isee notjustthese 14 parking spaces, but41 for Phase 1A, 10 for Phase 1B and these 14. So thatis afair amountof parking for public access and Iam comfortable thatitis probably agood number. How do we have asystem to assure thatthey are notused as overflow parking for people thatare notusing the recreational facilities of the Bay Trail? How do we enforce that?

My second question, Iam notconcerned aboutasidewalk thatis narrowed. Iam concerned aboutaBay Trail, active use, where there are both bicycles and pedestrians thatany narrowing is dangerous. Itdoes say on page 12 aportion of the bicycle/pedestrian path will be narrowed.Iwantto make sure thatis notthe main section of the Bay Trail. Those are my two questions.

Ms. Jedkins fielded Commissioner McGrath’s questions: The Oracle facilities immediately adjacentto the Trail have significantparking available to them. Any guests of the conference center are directed to alocation to park. Oracle also has 24/7 security and partof thatis monitoring the areato make sure itis being used appropriately. If cars are sitting there for along period of time they are going to notice and they are going to talk to their employees aboutnotusing those spaces. They already give clear direction to employees thatthose are for Bay access only. And with the significantamountof parking onsite itis notan issue from our perspective in terms of overflow use potentially using the Bay access parking.


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Commissioner McGrath continued: And so you think thatis clearly indicated in the application so there is no need for aspecial condition should enforcementever be needed?

Ms. Jedkins replied: Well Ijustwanted to commenton the signage package thatwe have. Staff has been pretty particular aboutthe types of signs thatare applied to these locations to directpeople to the Trail, to directfor the use of the parking lotand for the use of the permanent public parking spaces. We have an extensive signage program thatis going to address thatalso. We could amend the language of the signage in any way thatyou see fitto make sure thatpublic access parking is respected.

Chair Wasserman referenced aprevious point: And there was aquestion aboutthe narrowing of some partof the Bay Trail.

Commissioner McGrath clarified apoint: Well itdoes notsay thatitis the Bay Trail. Itsays itis acombined pedestrian access.

Ms. Jedkins added: Itis acity sidewalk. Itis contiguous to Oracle Parkway.

Chair Wasserman asked: Any other questions? (He received no comments) With thatwe will open the public hearing. We appreciate thatwe have asignificantnumber of students and parents here. Ihave nine cards in total.

Ms. Daphne Palmeter was recognized: Iam currently afreshman atDesign Tech. Iwould like to tell you whatd.tech means to me and whatithas done for me. Itis aplace where Ifeel safe and where Ihave acommunity and alotof people who Ican connectwith. Atd.tech we focus aloton empathy and building empathy between our students and our staff and also the people we are designing for. Ithas always been kind of challenging for me to really empathize with other people because Ireally justwanted to getto asolution. WhatIlearned atd.tech was thatthings will come outahundred times better when you connectwith the people who you wantto make things better for. In the end thatwas myself really. Ican truly say thatthis year has been the bestyear of my life. Iwould like to thank d.tech for that. Thatis all Ihave to say, thank you.

Ms. JayaReddy addressed the Commission: Iam also afreshman atDesign Tech High School. Aboutayear ago Iwould have been very mortified of talking in frontof you rightnow. Iwould notbe up here if Ididn’tcare so deeply aboutthis school. Before this school Iwas completely relianton my teachers. Idid notknow how to do things or whatto do. Iblocked outmy guidance on the inside. When Icame to this school, Iwas completely self-directed, notonly academically in school butartistically and Ithoughtdifferently. Even outside of the school d.tech is importantto me. Ifeel the environmentaround me and Iam always self-directed. Thank you.

Ms. Courtney Sullivan Wu spoke: Iam astudentatDesign Tech. D.tech has always encouraged me to try new things and pursue my passions and push me to reach my fullestpotential. One way we do this is through intersession classes, which you have heard aboutearlier. Iam only 14 and thanks to Design Tech intersessions, Ihave already gone through expecting something to be one thing and having itturn outto be completely differentbutstill loving it.


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Ilike to dance so Itook the dance intersession and usually ata regular school you would learn things like jazzand ballet. AtDesign Tech Ilearned how to African dance and Salsadance. Thatis very unique and differentand Iam so glad thatItook thatclass because Ihave fallen in love with itever since. Ihave also learned things aboutwearable technology and how wireless connections work. These are things thatInever would have learned ataregular school and they would never have given me the opportunity to learn aboutthese things. Having this new building would mean we would have more space for more classes. Thiswouldgive more students an opportunity to continue to try new things and pursue and discover new passions and reach our fullestpotential. Thank you.

Ms. Vani Suresh addressed the Commission: Iam also astudentatDesign Tech. Ithink this new school building atOracle will be abig help to d.tech. Our community atd.tech has been awonderful one and really accepting and empathetic of other people. We have had an opportunity to have apartnership with the Burlingamer on Rowlands Road so we have used their facilities and through intersessions we have had access to alotof differentfacilities both on the Oracle campus and other places. D.tech students have been really caring and aware of the property thatthey are on and have always been aware of the environmentand thatwould continue atthe Oracle campus.

Fred Colman spoke: Iam notastudentatd.tech. (Laughter) My son Sam is astudentatd.tech. We live in Palo Alto justacouple of minutes from the Palo Alto High School. This is ateenage kid who decides to getup early and geton to atrain to go up to Millbrae so he can attend. Ihave asked him why anumber of times. He says he likes the smaller size; itis 150 people in his class rather than 400or500. He also likes the empathy thatone of the students spoke aboutearlier. He also said thatwhen there are issues he does notunderstand he or any other studentcan meetwith the teacher and they will work with the studentuntil thatstudentunderstands itwell enough to teach itthemselves. He also very much likes the opportunity to work athis own rate and the opportunity thatastudentcan delve as deeply as they wantinto asubject. So when they find something they really are interested in the school offers them the opportunity to do so. My wife and Iare extremely excited aboutthis school and Ithink they are well on their way on the trajectory to be one of the bestschools in the United States. One of the hindrances or challenges is facilities. Lastyear they were in asingle hallway atMills High School where they were made to feel less than welcomed sometimes. This year they are in awarehouse facility which they have done remarkable clever things with space butitstill is awarehouse. The opportunity thatOracle offers to build afacility and this magnificentpublic/private cooperation is justspectacular and itremoves thatbiggestimpedimentthatthe school is facing. Thank you.

Ms. Jaime Dal Porto spoke: Icome to you with three hats on today. Iam the proud and founding d.tech parentof Nicolas who will be ajunior atthe school. Iam also aDesign Tech High School Board Member. Iam the parentrepresentative on the Board. Ialso live in this community, the Belmont/Redwood Shores community. Iwould like to speak to you aboutmy perspective on all three of these. As aparentIhave always been passionate abouteducation. In looking for an alternative for our son, we gotinvolved with Design Tech High School. Itis avery differenttype of education. We believe in this model of self-direction and individualized learning.


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Our son Nicolas has thrived. He has learned askill setthatwill prepare him for life, notjustfor college, notjustfor the nexttwo years, butlife skills. And for thatwe are grateful. We are also for his ability to really pursue his passions which for him happen to be technology, engineering and robotics. In fact, he is the captain of the build team on the robotics team thatwe have.

Icontinue to be extremely impressed and pleased in the commitmentthatOracle has made to our school starting with providing volunteers to teach our intersessions, to promoting our school and to really give us ahome which is why we are here today. As aBoard Member when this position became available lastyear, Iimmediately threw my hatinto the ring and wanted and was honored to be selected to be our parentrepresentative. Ihave been fortunate to siton asubcommittee, which is to interface and liaison with Oracle along with Dr. Montgomery. Ihave been even more fortunate in being apartof designing this building. Itwas awonderful process where the school, the architects and Oracle allowed some of us parents and even our children to come in and design this school to meetthe needs thatwe have in our unique learning environment. Ican tell you thatin every session Isatin on, we talked aboutthe Bay Trail, the Slough and the environment. Ifeel very confidentin going through thatprocess thatevery measure has been taken to make this awonderful place for the habitat, the environmentand for users of this area. As acommunity member there is greatsupportfor our school and this new Oracle location. There has been greatconsideration for the Bay Trail and as auser of thatwe are going to have alotof greatenhancements. This is agreatschool. We have agreatpartner in Oracle, athoughtful and well-designed plan. Icontinue to be extremely excited to see this facility getbuiltin time for my son to share in ithis lastyear before he graduates. Again, thank you for consideration of approval of this plan.

Ms. Whitney Wisnom addressed the Commission: Iam asophomore atDesign Tech High School. Iwanted to talk aboutthe personalization atthe school and how we learn. Ihave always gone to atraditional high school. AtDesign Tech, we have personalized learning. If Idon’tunderstand asubjectthen Ican stay back and keep learning itand understand itmore. If Ido understand asubjectthen Ican thrive. Ican keep learning more. Ihave never experienced anything like that.Ihave done so well atDesign Tech High School because of the personalization. Iam so lucky to have been on the design team to help build the new school. Ireally hope Igetto spend my senior year there. Thank you.

Ms. Elizabeth Ouren spoke: Iam aparentof aboy who is finishing his sophomore year. We live in Menlo Park. My son also gets up early to ride the train every day to school. When we were looking athigh schools, we looked atalotof differenthigh schools. The big highschoolswere notagood fitfor my son. There are alotof kids outthere who are looking for something different. When he wentto the open house thatd.tech had and heard KentMontgomery explain the vision for the school, he knew he had found the place thatwas rightfor him. Ithas been awonderful experience. He feels like he is very safe and encouraged and challenged there. There isnobullying. The kids are so nice to each other. The staff is so nice to the kids and to each other.


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Iwenton the camping trip for the whole school this year and lastyear and Ican tell you thatthatis an experience where there can be some stress involved and justseeing how everyone treated each other the whole time was amazing. Ihave never been with agroup of people thattreated each other so well. Ithink itgoes to the empathy and the advisory thatthey have atthe school thatis builtin. Iam so fortunate and blessed to be partof this school. There is agreatvision, greatstaff, greatstudents and the only issue has been where is their home going to be. We are so excited thatOracle has come along with this wonderful offer to build aschool for d.tech so they can have ahome for the currentstudents and students to come. Thank you so much for listening to all of us and for supporting building on the Oracle campus.

Chair Wasserman continued: Thank you for all of you who spoke and all of the students and parents who came to supportthis.

Commissioner Gioiahad aquestion: This sounds like avery greatschool. Itsounds like you draw from students from outside the Redwood City School District. Charter schools normally draw from aparticular school district. Whatis your screening process?

Dr. KentMontgomery replied: Rightnow we draw from students from all over the Bay Area; from San Francisco in the north to Sunnyvale in the south to San Leandro to Half Moon Bay. Thatis going to change because you putin an application and itis alottery. There isnoscreening or testing, no interview, no essay. You apply and then your name is chosen outof ahat. In this lastyear we had for the incoming ninth grade class about500 applications for 137 spots. The selection is all electronic now. We give preferences to siblings, to children of d.tech staff and then also San Mateo Union High School Districtresidents. Thatis San Bruno to Foster City roughly and then SequoiaUnion High School Districtresidents. The new school will be located in the SequoiaUnion High School Union High School District. They have afour-to-one preference in our lottery. We do see as we are maturing thatmostof the students will be San Mateo and Sequoiastudents.

Chair Wasserman continued: Iwould entertain amotion to close the public hearing. Oh wait, we missed acard.

Ms. MariaMcAlister Young addressed the Commission: Iam also afreshman atDesign Tech High School. Iwantto clarify thatitis notan all-girls school. (Laughter) Irealize thatalotof people talked aboutintersession and self-direction and Iwanted to go alittle bitmore into the academic part. In this school year, Ihave actually completed two years of math. The way Iwas able to do thatis because the teachers were very helpful. If you wanted to go ahead of whatthe teacher was teaching atthatclass time,you could. They provided you with the resources and they helped you with the math. The other interesting thing is thatif you are on pace with your classes you also have free time to follow your own passions; passions outside of the intersession classes thatyou may have taken. Itis amazing thatd.tech gives us the opportunity to understand the material so well and then go further into things thatwe are interested in. They give us the time and the supportto do that. Thank you.


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MOTION: Commissioner Wagenknechtmoved to close the public hearing, seconded by Commissioner Nelson.

VOTE: The motion carried with avote of 17-0-0 with Commissioners Addiego, Bates, Gilmore, Scharff, Gioia, Peskin, Pemberton, McGrath, Nelson, McElhinney, Sears, Vasquez, Hillmer, Wagenknecht, Zwissler, Vice Chair Chappell and Chair Wasserman voting, “YES”, no “NO”, votes and no abstentions.

Ms. Hoang presented the staff recommendation: OnJune 10th,you were mailed acopy of the staff recommendation, which recommends thatthe Commission authorize the proposed project. The staff recommendation contains special conditions thatrequire the permittees to take avariety of measures including:

a. providing 26,900 square feetof dedicated public access area,

b. making the school patio parking lotand studentdrop-off areaavailable to the public outside of the school hours,

c. providing an improved segmentof the Bay Trail, additional new and improved public pathways, landscaping and other public access improvements, and

d. reporting on flooding of the public access areas and measures to address sealevel rise adaptation.

As conditioned, the staff believes thatthe projectis consistentwith your law and Bay Plan policies regarding public access and appearance, design and scenic views. With that, werecommend thatyou adoptthe recommendation.

Chair Wasserman continued: Before Iask the applicant’s concurrence, any questions of staff?

Commissioner Bates commented: Did Ihear you say thatthey are going to provideparking for the public outside of school hours?

Ms. Hoang replied: Itis making the parking lotavailable to the public outside of school hours for recreational uses. There is the school parking lotwhich is 35 spaces thatwould be available to the public outside of school hours. And then there are existing parking spaces thatwould be relocated.

Commissioner Bates asked: So the 35 are on the basketball court?

Ms. Hoang answered: Yes.

Chair Wasserman asked: Does the applicantconcur in the staff report?

Mr. Michael Bangs, Vice Presidentof Real Estate for Oracle replied: Weconcur.

Chair Wasserman added: This is aterrific projectin all kinds of ways. Oracle’s commitmentto this is terrific. This is really putting the rubber to the road and getting very directly involved in making this kind of contribution and integrating the education with Oracle itself is really wonderful.


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Itis nice to have Oracle before us because you are in the forefrontof sealevel rise. Ithink thatIam happy thatyou are putting the children rightthere. (Laughter)

Ido wantto recognize thatthere are acouple of things in this reportthatare importantmodels for addressing sealevel rise as we go forward. One of them is, how do you deal with overtopping and the overflow and Oracle has some physical resources thatsome other spaces will nothave. Ithink this is importantfor us to look at. The reality is how whatyou are doing relates to your adjacentproperties. We know you can’ttake care of itnow butwe are addressing itand we are starting to look atthatand all of those items are very important.

Iwould now entertain amotion on the staff recommendation.

MOTION: Commissioner Zwissler moved approval of the staff recommendation, seconded by Commissioner McGrath.

Commissioner McGrath commented: Idid look again atthe conditions and Iam satisfied thatthe requirements to submitall the documents and make these available assure thatthe parking spaces will be available during the period of time. Iam comfortable with this projectand the footprint.

VOTE: The motion carried with aroll call vote of 17-0-0 with Commissioners Addiego, Bates, Gilmore, Scharff, Gioia, Peskin, Pemberton, McGrath, Nelson, McElhinney, Sears, Vasquez, Hillmer, Wagenknecht, Zwissler, Vice Chair Chappell and Chair Wasserman voting, “YES”, no “NO”, votes and no abstentions.

Chair Wasserman continued: Before we go to Item 9 Iam going to ask Commissioner Scharff to give us areporton the ABAB/MTC merger discussions. (See Chair’s Reportin the Agenda)

9. Public Hearing and Possible Vote on the grand Marina Village Owners’ Association’s Application for Material Amendment No. Fifteen to BCDC Permit No. 1983.005 to Divide Permit between Co-Permittees.Chair Wasserman recused himself and exited the room.

Acting Chair Chappell stated: Item 9 is apublic hearing and vote on apermitamendmentrequestby the Grand MarinaVillage Owners’ Association to divide the permitbetween the co-permittees. Ethan Lavine will introduce the proposed amendment.

Principal PermitAnalystLavine addressed the Commission: OnJune 3rd you were mailed asummary of an application for aproposed material amendmentto BCDC PermitNo. 1983.015.11. Thatpermitoriginally issued in 1983, as well as subsequentamendments, authorized the developmentof Grand Marinaand associated facilities, including ashoreline park atthe location of Grand Harbor in the city of Alameda.

The mostrecentamendment, issued in 2008, authorized the adjacentGrand MarinaVillage residential development, aportion of which is located within the Commission’s jurisdiction as well as additional public access areas and improvements.


https://1983.015.11

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Unlike mostprojects before the Commission, this application concerns no new development. Rather, the applicantis seeking to divide the specific authorized activities and responsibilities of the previously-issued permitbetween the two co-permittees, which are Grand MarinaVillage Owners’ Association, which is ahomeowner’s association, and Encinal MarinaLimited, the owner of Grand Marina.

The effectof the proposed amendmentwould be to create two separate permits thatidentify the rights, responsibilities and duties of each permittee. The proposeddivisionwouldoccur along the lines of underlying legal control of the land, as shown here on the screen, with the areain orange under the control of Encinal and the areain blue under control of the HOA.

This amendmentrequestis an unusual one for the Commission in thatthe proposed permitsplitwas applied for by only one co-permittee, the HOA, and withoutthe consentor concurrence of the other, Encinal. Encinal is objecting to the requestto splitthe permitand thus did notsign the application for the subjectamendment.

This raises aprocedural matter thatthe Commission may wish to consider. The Commission’s regulations require thatan application for amaterial amendmentto amajor permitbe signed by all co-permittees. However, in this unusual case the requestfor the amendmentis based on the very inability of the co-permittees to agree on whether or how the permitshould be split. The effectof rejecting the application on the basis of Encinal’s refusal to sign the application would be to preventthe Commission from considering the HOA’s otherwise routine requestto amend the permit.

Given the nature of the dispute between the co-permittees and the procedural issues itraises the staff directed the HOA to apply for amaterial amendmentso thatthis matter could be heard before the Commission and with the benefitof apublic hearing.

The staff believes thatthe proposed permitamendmentraises athreshold question for the Commission to consider. Thatis: Whether to materially amend this or any major permitjointly held based on the application submitted by only one of the co-permittees and over the objection of the other co-permittee.

On this threshold question the staff believes the Commission should consider the proposed permitamendmenteven though itis lacking the signature of one of the co-permittees. From apermitadministration standpoint, the responsibilities and duties of the permitcould be clearly divided along the lines proposed by the applicant. In addition, splitting the permitwould clearly define the permittee’s respective public access maintenance obligations and thus potentially avoid asituation where public use and enjoymentof the areais adversely affected in the eventthatmaintenance is deferred.

Butfundamentally, in adispute such as this, the effectof rejecting the application on the basis of one co-permittee’s refusal to sign the application would be to preventthe Commission from considering an otherwise legitimate and reasonable requestto amend apermit.


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Should the Commission agree itwill then consider the other primary issue raised by the proposed amendment: Whether apermitsplitwould be consistentwith the Commission’s law and Bay Plan policies related to public access.

First, the Commission should determine if public access areas provided under the two resulting permits would continue to provide maximum, feasible access. The McAteer-Petris Actand the Bay Plan state in partthatmaximum feasible public access consistentwith the proposed projectshould be provided.

The division of the permitproposed here would notchange the total areaor nature of public access required under the permit. Rather, division of the permitwould assign the responsibility for continued provision and maintenance of public access improvements to each co-permittee on the basis of their underlying legal control of the land.

Asecond consideration is whether the proposed action would in any way impair the ability of the permittees to comply with the required public access maintenance responsibilities.

To this point, all previous authorized public access improvements would be required to be maintained by each permittee.

The lines along which the permitwould be splitgenerally correspond to physical markers on the ground such as sidewalks, such thatthe boundaries delineating public access maintenance responsibilities would be clear cut.

It’s importantto note thatthere is adispute among the co-permittees as to the costs associated with maintaining public access if the permitis split.

Encinal contends thatitshould be notsolely burdened with the costof maintaining access improvements on its property, some of which came aboutas aresultof authorizing the residential development.

The HOA contends thatatno pointwas there an agreementthatitwould be responsible for maintaining public access areas or improvements on property itdid notown or control and thatitwas always the intentto splitthe permitalong these lines.

While the co-permittees are in disagreement, the Commission’s ultimate concern is whether apermitsplitwould impair the ability of the permittees to comply with their access maintenance responsibilities.

In summary, in evaluating the proposed projectthe staff recommends you firstconsider the threshold question of whether apermitcan be amended by one permittee withoutthe consentor agreementof the other.

If you decide the answer is “no,” the action would be to deny the permit. If you decide the answer is “yes,” you should nextconsider whether the proposed splitwould be consistentwith yourlaw and policies on public access, specifically if the splitwould guarantee maximum feasible public access consistentwith the projectauthorized under each permitand whether the splitwould ensure continued maintenance of the required access.


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If you find the proposed splitconsistentwith your law and policies you would adoptthe two motions found on your staff recommendation with asingle vote, which will be presented after the public hearing.

If you find the proposed splitinconsistentwith your public access law and policies the action would be to deny the amendmentrequestto the permit.

With that, Chief Counsel Marc Zeppetello would like to add afew points. Following Marc we will have additional presentations by Wendy Manley who is representing the HOA and by Chris Anderson and Eric Shaw who are representing Encinal. Thank you.

Chief Counsel Zeppetello addressed the Commission: Iwould like to address three issues. Firstto provide alittle more background on why the staff is recommending thatthe Commission consider this matter with the dispute between the co-permittees: Lastfall the HOA applied for this permitsplitas anon-material amendmentand the Executive Director initially denied thatrequestbecause itwas only signed by one of the co-permittees.

The HOA submitted aletter appealing thatdecision to the Commission as they had arightto do under the Commission’s regulations. They made anumber of arguments abouttwo signatures notbeing required and thatthey were being denied due process. And withoutneeding to go into those arguments the pointwas thatthis issue was going to come before the Commission one way or another so thatwas one of the reasons we directed the HOA to resubmitthe requestas amaterial amendmentwith an opportunity for apublic hearing before the Commission.

Another issue in terms of background is thatlastfall Ireviewed the complaintin the underlying litigation between these parties and the complaintraised anumber of allegations regarding the BCDC permitand how itshould be interpreted and thatraised, for me, two concerns. One was thatitwas possible thatone or both of these parties mightultimately name the Commission as aparty to thatlawsuitand try to bring us in there on some grounds thatwe were indispensable to resolving their dispute; or in addition, thatthe Courtmightmake aruling atsome pointinterpreting our permitas ajudicial matter in away thatstaff or the Commission mightnotagree with.We feltitwould be more appropriate to bring the matter before the Commission for resolution as an administrative matter.

The second issue thatIwould like to mention thatIdon’tbelieve is stated in the staff reportis thatas you may know, we typically include astandard condition in permits thatsays thatthe permitis noteffective and no work may be performed under the permituntil the permittee signs the permitand sends itback. We have notincluded thatcondition in the proposed amended permits, instead we have included acondition thatsays each of the permits will be effective when signed by the Executive Director and mailed outto the co-permittees.

We do notbelieve thatin these circumstances, because the permitdoes notauthorize any new work and both co-permittees already are enjoying the benefits of the existing permit, thatitis necessary to have their signature. And also we do notthink itwould be appropriate to allow adissatisfied party to refuse to sign the amendmentand then create uncertainty or


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continue the uncertainty abouttheir obligations where we would have the existing permitstill in effectas to one co-permittee and another co-permittee signing an amendment. So that’s the reason for thatspecial condition.

The final pointIwould like to make is thaton the merits the issue before you is whether to splitthis permitin order to clarify the obligations of the parties going forward; interpretation of the existing permitwe don’tbelieve is an issue thatis before you. From the staff’s pointof view, both of these co-permittees are jointly and equally responsible for their obligations under the existing permit.

In thatregard Iwould mention thatstaff wentoutto the site yesterday because we wanted to have abaseline reportof whatthe conditions are now, and the staff did note some compliance issues with maintenance of the public access areas.So the staff is intending to write an enforcementletter to address those issues. Thatletter will be addressed to both parties because as of today, and for everything in the past,our view is thatthey are both responsible and if they have gotadispute thatis between them to work outbutitis notthe job of the Commission to do that. The purpose of splitting the permitor considering itatthis time is to clarify obligations going forward.

If there are any questions Iwould be happy to answer them, otherwise Iwill turn itover to the applicant.

Commissioner Gilmore inquired: Did Ijusthear you say thatthere is no new proposed work under either the permits or splitting the permits; itis justaboutwhathappens going forward?

Mr. Zeppetello replied: Correct.

Commissioner Gilmore continued: Yetif we decide to go forward and say thatwe aregoing to splitthe permit, staff is saying one of the things we need to consider is if there is maximum feasible access. Butwhy are we considering thatif there is no work to be done?

Regulatory Director McCreaanswered: This is aclarification of the permitthatwe have in frontof us. The Commission originally determined thatthe Marinaprojectand then the subsequentsubdivision residential developmentthatcame to the Commission some number of years ago and the corresponding public access were sufficientto meetthe Commission’s laws and policies, particularly as itpertained to maximum feasible public access consistentwith the project.

Any time the Commission makes an action we have to maintain thatstandard. So whatEthan was pointing outwas that when we splitthe permits we will have apermitrelated to aresidential subdivision and we will have apermitrelated to Grand Marinaoperated by Encinal. In each of those permits you need to determine thateach of those permits still provides maximum feasible public access consistentwith those approved projects, if you will.


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Commissioner McGrath commented: Ikind of believe we’re always in abetter situation of having two people jointly responsible for maintenance and improvements rather than one entity, two entities rather than one entity. And particularly in the case of marinas, which are notnecessarily the mostfiscally robustorganization compared to ahome which is accelerating, aseries of homes which are increasing in value and have atax base.

Butto go back to the starting point: Putting this responsibility on the legal control of the land does notappear to me to capture whatwas originally the package of things thatmade us able to determine thatmaximum feasible public access was attained. Nothing in the record thatIwas able to review said the improvements for each differentpartof the whole projectfall neatly on the land; and in factthere’s alittle bitof evidence thatsuggests thatin order to provide maximum feasible access for the 40 new homes they had to provide some of the facilities on the Encinal Marinaparcel. So if you have two entities notof equal fiscal robustness, allowing some of the maintenance, for example, of some of the facilities thatwere necessary for the housing projectto be maintained by an entity where we did notknow up frontthatthe fiscal responsibility was there and separable seems to me to be asignificantloss of our capability to enforce.

Ihave alotof trouble with the threshold. You are perhaps letting one entity off the hook for maintenance of facilities thatwere partof the package thatthe Commission found was maximum feasible access. That’s notaquestion; Iunderstand that. (Laughter) It’s alittle bitof lobbying.

Butlet’s take the question partof itwhich is: Whathappens if, for example, the marinagoes outof business for fiscal reasons? Iknow enough aboutmarinas in the Bay Areathatthey are struggling abit. Whathappens then to the public access thatthey’re required and whatmighthappen in the case of the public access thatthe Commission found was partof the whole project, which included the 40 homes?

Mr. McCreaclarified apoint: Under thatunlikely scenario itwould be no differentthan any other business around the shoreline of the Bay thatgoes outof the business and the commensurate associated public access improvements thatare partof thatproject. They wouldcease to be maintained. In some cases around the Bay when projects are closed, usually it’s restaurants and things like that, sometimes the public access is maintained and continued by some larger entity - I’m thinking of the Portof Oakland - and in other cases the areais closed, the public access is closed because the authorized projectceases to exist.

Commissioner McGrath posed ahypothetical: So if there was aclear record thatsaid, this much of the public access is associated with the marinaand the burdens of the marinathen we know whatis atrisk. The difficulty thatIhave here is thatdivision line is notso clear. Yetif we kind of assign itto the property we’re declaring itto be clear withoutnecessarily knowing thatthatwas the intentof the original decision.

Mr. McCreastated: Mr. Chair, I’m happy to entertain more questions. Irecommend thatwe hear from the projectsponsors.


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Acting Chair Chappell concurred: Iwould agree. We’ll come back and have plenty of Commissiondiscussion. Iwould now like to invite the applicant’s representative from Grand MarinaVillage Owners’ association to describe the projectin greater detail.

Ms. Manley addressed the Commission: Good afternoon. My name is Wendy Manley; Iam an attorney atWendel, Rosen, Black & Dean in Oakland. Iam here with my colleague, Bruce Flushman, on behalf of the applicant, Grand MarinaVillage Owners’ Association to urge the Commission to approve the application to splitthe permit, AmendmentEleven of this permit, into two permits along property boundaries of ownership and control.

Iwantto thank the Commission for the opportunity to be here today and Ialso especially wantto thank the staff who has been exemplary in their professional handling of arather challenging situation.

Here is alocation map. The projectas authorized by AmendmentEleven was a40-home developmentin Alamedaadjacentto Grand Marina.

This is aview of the area. The lightyellowish-green line outlines the projectthatwas authorized by AmendmentEleven. You can see adashed line; itgoes through the parking lotand around the edge that’s the 100 footshoreline. There was about7,800 square feetof areawithin the home developmentthatis within the 100 footband.

Atthe time of permitting Encinal Marinaowned all of this property. As aresultAmendmentEleven, was issued as ajointpermitfor Encinal the owner and the developer and purchaser, Warmington Homes.

After BCDC issued AmendmentEleven in 2008 the sales transaction closed. The developmentwas completed in 2010. And then as contemplated in the permititself, the public access areaon the developmentproperty was conveyed to Grand MarinaVillage Owners’ Association, the HOA, for managementunder the conditions, covenants and restrictions thatwere specified in the permit.

Justto give you aquick view of the area. AmendmentEleven did requiresomereplacementof some improvements in the public access areathathad previously been established along the shoreline. For Encinal there were some signs and benches and some landscaping done. This was apreexisting public access areafrom prior versions of the permit. These pictures are taken along the shoreline and show the areathathad been partof the public access under prior versions of the permit, prior amendments.

As aresultof the projectapproximately 27,000 square feetof public access was added to this area, mostly in two triangle parks thatare outside of the 100-footshoreline band. These are justtwo views of the two triangle parks.

The application seeks to splitAmendmentEleven along the lines of property ownership and control to create two permits, one for Encinal and one for the HOA. The areaowned or leased by Encinal as shown in orange includes the water areaof the marinaboatslips, the shoreline parking lotand the AlaskaPacker Building to the far leftof thatpicture, which is the west.


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The orange cross-hatching shows the public access areathatis mostly along the shoreline within the 100-footband and mostall of thatwas partof the public access thatwas required in amendments issued solely to Encinal prior to AmendmentEleven.

The areaunder the ownership and control of the HOA is shown in blue. Again, the cross-hatching reflects the public access areas.

So creating separate permits is astraightforward matter of following readily identifiable boundaries as described in our application.

This photo provides an example of aboundary between the two areas thatwould be splitand enables aclear, physical division of the maintenance responsibilities.

Splitting AmendmentEleven completes the final and intended step in BCDC’sauthorization of this home development. Encinal declined to sign the application because itnow seeks to use AmendmentEleven as leverage to force the HOA to pay for maintenance on Encinal’s public access property, public access thathad been established by prior amendments to the permit.

The home developmentprojectwas notajointproject. The issuance of AmendmentEleven as ajointpermitwhere apermittee in the singular was uniformly replaced with permittees in the plural was notintended to make the HOA responsible for Encinal’s preexisting obligations from earlier amendments such as informing marinatenants aboutthe permitor properly disposing of dredge spoils or maintaining their public access area.

AmendmentEleven in factexpressly limited the HOA’s responsibility to areas under its legal control. AmendmentEleven clearly contemplated thatthe homeowner’s association would be formed and created to own and maintain the public access areas on the home developmentsite under CC&Rs thatwere prepared in accordance with requirements of the permit. Among those requirements of the permitwas aspecification thatthe HOA’s responsibility would be limited to the property and to the areas over which ithas legal control.

And this is whathappened. The HOA was created. The CC&Rs were reviewed by BCDC. They were recorded in 2009 and they incorporated the language thatlimits the HOA’s authority and maintenance responsibility.

The public access property was transferred to the HOA in 2010 and ’11 and the HOA has been maintaining thatpublic access areaever since.

This specific provision respecting the HOA’s responsibility effectively created an exception to whatever jointco-permittee obligations were created by uniformly changing permittees throughoutthe permitthatincorporated all the prior amendments.

Encinal was in agreementatthattime. Itsigned AmendmentEleven and itsigned the application for AmendmentEleven, which very clearly stated thatatthe conclusion of the projectthe Marinawould continue to maintain its public access areaalong the shoreline.


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So as addressed in our correspondence to the Commission earlier this week, BCDC has the authority to grantthis application and to issue separate permits, even withoutEncinal’s signature on the application. The Executive Director has the authority to waive permitapplication requirements and the statute requires thatpermitapplication requirements be reasonable.

In addition, there have been numerous attempts to address Encinal’s concerns and engage them in this process. We have metwith the BCDC staff, we have tried to negotiate aresolution with Encinal, and they have been provided with the application and all supporting documentation and afforded ample time and opportunity to voice concerns,and so far as we know, have provided no responses until abouttwo weeks ago. They are here today and so there has been no denial of due process.

The Commission should approve the application and issue separate permits. Separate permits would clarify AmendmentEleven and eliminate the confusion thathas allowed the issue over maintenance responsibility to arise.

Consequently, approving the application would actually enhance the ability of the co-permittees to comply with their ongoing public access maintenance responsibilities. Separate permits will also ease BCDC’s administration and enforcement. Separate permits will enable each permittee to seek Commission authorization in the future, unencumbered by aco-permittee thathas no common interest. Separate permits are in the public interestbecause they will ensure the maximum feasible public access in AmendmentEleven will be protected and maintained. And finally, separate permits are fair to all involved because they do notchange any of the existing obligations or any substantive measures in AmendmentEleven. Issuing separate permits would notauthorize any new work, would notchange any previously authorized projector alter any existing public access.

Encinal and HOA are very separate interests and they share only aproperty boundary. Separate permits are alogical arrangementfor separate projects on separate properties owned by separate parties.

Thank you for your time and your thoughtful attention. Bruce is going to add something.

Mr. Flushman spoke: The BCDC jurisdiction over the project, the homeowners’ project, was atotal of 7,800 square feet. If this is truly ajointpermitwhere the homeowners would be responsible for maintenance, for those four homes thatwere affected the remaining 36homesplus the four, would be responsible jointly to pay for maintenance of 90,000 square feet, which is the total public access area. Thatcouldn’thave been the intentof the permitand is the reason for the exception in the permitwhich limits the homeowners’ responsibility to the property thatitowns or controls. Ithink thatgoes directly to your question, Commissioner McGrath.

Acting Chair Chappell continued the meeting: Could we now hear from the Encinal MarinaLimited representative.


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Mr. Chris Andersen addressed the Commission: Ialso had to make some notes. The Grand Marinais our name so Ihad to scratch itout. I’m going to try to stick to the Encinal to keep itfrom being too complicated here.

Encinal Marinahas been aBCDC permittee in good standing since around 1983. The Encinal Marinahas documented history of working with the BCDC as partners in acommon goal to proudly maintain nearly two acres of public shoreline.

In 2009 Encinal Marinawelcomed Warmington Homes, which is now the HOA, as aco-permittee for no consideration other than whatitsought as apartner in the permit. Since the HOA Warmington was able to save aconsiderable amountof time and expense of such anew permititwas always assumed thatthey would share in the ongoing maintenance of the permit.

The HOA or Warmington atthe time was added as aco-permittee to the 83-5 as AmendmentEleven for the sole purpose to build new executive shoreline homes. Encinal Marinawas notapartner of Warmington atthe time nor shared in the profits.

Because Encinal Marina’s long history and experience with BCDC and its 83-5 permit, through the years 2010-2012 the Encinal Marinamade numerous attempts with Warmington atthe time to establish the shared responsibilities of the permitin the shoreline maintenance before the homes were even sold.

Encinal Marinacontinues to maintain the shoreline permitwithoutthe help of Warmington or the HOA. The landscape installation thatwas acondition of the permitwas entirely paid for by Encinal Marina. The landscaping prior to the Warmington Homes projectwas in compliance with the 83-5 permit. Itwas efficiently maintained and drought-resistant. The new landscaping thatwas required by the Warmington projectcurrently requires tremendous irrigation, constantreplacementdue to apoorly designed and mismatched species to the environment. The burden of the costis Grand Marina’s alone, although the installation was arequirementof the Warmington project. With the currentdroughtconditions and plantreplacementcosts the average yearly maintenance costs have doubled for the Marinasince the Warmington project.

That’s all Ihave butIwould like to invite Eric up here, Eric Shaw.

Mr. Eric Shaw commented: Good afternoon. My name is Eric Shaw and IrepresentEncinal Marina. Thank you for your time and the consideration.

The public access here was designed to serve two projects on asingle large parcel of property originally owned by Encinal. There is apath, aparkway thataccompanies the path, two small parks, two bathrooms and parking.

The permitas issued and understood by the Marinacreated two co-permittees which shared maintenance responsibility. Historically the Marinamaintained its areas and itacknowledges thatithas responsibility for those uniquely marina-related things such as placing riprap along the shoreline and improvements like its own shower house and bathrooms and the piers on which itsits.


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Butthe changes required in PermitEleven, as alluded to by Chris, increased the Marina’s costof operations with respectto running the projectand the existence of the residential community.

The Marinaincreased the usage of the parkway. Indeed, mostof the parkway is used by notthe public butby the members of the homeowner’s association. HOA residents have been even observed using the Marina’s trash dumpsters to discard their excess garbage.

And the Marinabelieves itis forced to incur adisproportionate share of the maintenance costs.The exactextentof thatdifference is an issue in the pending litigation.

The Marinaunderstood the permitas creating ajointmaintenance obligation and read the permitas requiring some type of agreementon acommon plan. If you look atpartII.C.3 of the permititsays, prior to any assignmentthere will be an agreementon ajoint deal and how to control, operate or maintain all public access areas. The Marinatried to negotiate this with Warmington.Itwas never done. You mustread condition III.C.4 in thatlight. There should be ajointly-owned entity by the Marinaand the HOA thatcontrols all this so itwould be under the HOA control as provided for inC.4. Thathas never been done. Warmington has purported to assign some butnotall rights of the permitand ithas notentered into any kind of maintenance agreement.

The parties disagree. We disagree with each other’s interpretation and thatdisagreementas to whatthe permitmeans has been festering for some time. Itcame to ahead with the requestto split. Staff metwith both parties, iturged them to negotiate, butstaff indicated itwould notgetinvolved in the dispute. In fact, you heard Mr. Saputo (sic) earlier say, interpretation of the permitis notan issue here before you.

Butacentral and underlying issue here and notone addressed by the staff is the interpretation of the permit. Warmington’s arguments assume their interpretation. Asplitis only appropriate if their interpretation is correct. If the Marina’s interpretation is correctand if the Marinahas rights vis-à-vis Warmington and the HOA to share in maintenance costs, the precise issue in the litigation, then splitting the permit and removing those rights would be taking away avested rightthatbelongs to the Marinawithoutdue process.

Itis said thatthe due process is this hearing. No. The interpretation is notatissue, according to Mr. Saputo (sic), so this hearing is notproviding due process on the fundamental issue of whatthe permitmeans.

Indeed, with regard to the question of interpretation, staff advised the Marinathatinterpretation was an issue for the parties to deal with and resolve themselves and thatthe Commission had no position on thatissue. Staff advised us such issues should be dealtwith in aforum other than before the Commission. And in looking atthe Commission’s regulations we saw no regulations concerning adversary proceedings or how to maintain adversary proceedings between co-permittees.


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Reliance on the Commission remaining neutral on this issue the Marinafiled apending lawsuit, which we believe we should have arightto maintain to conclusion. Until thatis finally resolved, either for or againstthe Marina, there will be no definitive legal interpretation of our rights under the permit. And to splitthe permitnow is merely to erase the Marina’s claim withoutproviding them aproper adversarial forum for resolving them.

This forum is ostensibly merely to consider the logistics of the permitor the jurisdictional appropriateness of proceeding in the absence of one permittee’s signature. Itis notthe forum for resolving debates over the interpretation of the permit. American and English law have for centuries provided rules and substantial experience in interpreting documents and we believe thatissue should be leftto the courts. There is athreshold issue there thatneeds interpreting before one can talk logically abouthow to resolve and splitthose responsibilities.

Second, throughoutthe entire history of the permitthe staff has repeatedly advised thatthe Commission would notconsider aunilateral permitsplit. In fact, the firstletter requesting apermitwas mistakenly assumed by staff to be aletter from the Marinaand they sentus aletter chiding us for notgetting the signature of Warmington on thatletter. Thatwas our firstnotice thatapermitsplithad been requested. While they say itwas an initial application, itwas notin the application, itwas in the supplemental materials provided with the application and there is no record those were provided to the Marina.

Further, it’s notin the permit. If this was so importantwhy doesn’tthe amendmentitself say itwill be splitatthe end of the day when the improvements are completed? Thatlogically would have been the place to putitso thateverybody was on notice.

Again, the Marinahas relied upon and even been inconvenienced and placed atrisk by the interpretation of the staff thatyou need both signatures. Our building was falling down and threatened by earthquakes when the piers were rotting.

We soughtan emergency permitamendmentto allow that. Warmington in an effortto stronghold us into agreeing to their splitrefused to sign off on thatsupplemental application for an emergency permitand we could notgetaction. The only way we could do itwas because we filed aseparate permitjustto allow the renovation of the pier.

So Warmington all along has been trying to strong arm us and thatis more of whatthey are doing here, attempting to forum-shop to avoid having acourtresolve these issues. Idon’tknow if we’ll win or lose in court, butuntil the courthas determined definitively whatthe permitmeans, which itwill do either by denying our claims or allowing us to litigate them further, itseems premature to be discussing this permit.

Finally, as discussed by Mr. Andersen, there is aquestion of economic fairness here in the proposed split. Had the Marinanotexisted itseems likely thatthe burden on the developmentof the townhomes would have been significantly greater. If there was notalready ashoreline path wouldn’tthe Commission have required thatthe southern and northern ends be connected by putting apathway through the HOA property? If there were notalready existing bathrooms would you nothave required apublic bathroom in two public parks? Iwould notwantto be the maintenance departmentof the HOA if there were notapublic bathroom across the streetfrom this public park. Clearly thatis agreater expense. And while


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we talk aboutpublic access, again as noted before, we believe the facts on the ground is thatthe parkway and the associated areas of public access are primarily for the benefitof the HOA and itbenefits their values and their property values to have this maintained.

Nor is itcorrectto say, as Ms. Manley alluded to, thatthe Marina’s position is thatitwould nothave responsibility for the public access park. If some disaster befell the parks and they were destroyed we acknowledge thatwe would have to help replace those if in acertain year there was more burden on the HOA. We are only asking for the rightto determine in courthow to responsibilities should be adequately allocated.

Further, we only lease this. Mostof this property is merely leased from the City of Alameda. The marinadocks can easily be moved away. If our projectbecomes economically inviable because we are now in lease negotiations to getanew lease with the City of Oakland,who has asked for abouta5,000 percentrentincrease, we will move those docks away and there will be no one leftto maintain this parkway. And Idon’tknow thatthe City of Alamedais going to wantto undertake thatsince it’s mostly on their property. So itshould be considered thathaving more responsible parties rather than fewer responsible parties mightbe good for the public access.

And with thatIwould close. Thank you for your consideration.

Acting Chair Chappell continued: Thank you. Would the HOA’s representative care to make abrief comment? You have two minutes.

Mr. Flushman commented: I’ll be brief. The allegation is thatthere was no consideration for the jointpermit. The property was purchased. Itwas purchased with its existing attributes, one of which was the permit, the path, the bathrooms, and itwas paid for as partof the purchase price. Thatwas whatwas bought. So they did receive millions of dollars for their property.

The example of the emergency permitthatWarmington or the HOA refused to sign is aperfectexample of the problems here. Because thatpermit, which was needed for Encinal’s property, would have increased the responsibilities, if it is truly ajointpermit, of the homeowners’ association. It’s aperfectexample of the reason thatthe permits need to be separate. Itwas entirely an Encinal matter.

The other couple of points Iwould make is if itis truly ajointpermitwhere it’s jointmaintenance responsibility for the entire public access area, where is Encinal’s contribution to the maintenance of the homeowners’ public access? It’s joint. And if itis ajointobligation, if all the permitobligations are jointhow are the homeowners supposed to comply with the requirements for Bay fill, for dredging, for notices to the tenants of the Marina, all of which are purely Marinaresponsibilities, have nothing atall to do with the homeowners.

And Iwould justremind the Commission again politely thatfor 7,800 square feetof shoreline band jurisdiction affecting four homes, Encinal’s position is thatthe homeowners, 40 homeowners, have responsibility to maintain all of the public access in this areathatwas created, atleasttwo-thirds of itwas created specifically for the Marinalong prior to there being homes. And with thatI’ll sitdown, thank you.


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Acting Chair Chappell continued: Thank you. Would the Encinal representative have further comment?

Mr. Shaw commented: With regard to the lastpoint, Ibelieve Iaddressed thatearlier. The Marinaacknowledges thatthere are certain marina-related functions thatare purely ours. Our docks are ours, our showers are ours, and the responsibility for maintaining riprap is ours. We’re talking aboutthe parkway, the path, the bathrooms; those are whatwe’re talking about.

With regard to sharing costs, itis my understanding, and again, based on the information previously provided to us by Warmington’s counsel, thatwe pay more every year rightnow than they pay to maintain these public access improvements. All we’re asking is to equalize thatin the lawsuit. That’s the pointof the lawsuit. If in agiven year the homeowners’ association had paid more than we paid then by our logic we would owe them money and we are notshying away from thatresponsibility.

Finally, with regard to the value: The pointis thatwhen these homes were builtthe Commission required us to redo our landscaping to match the landscaping in the parks. We had to putin lawns. Wedidn’thave lawns previously. We had low-water, low-maintenance landscaping. We had to putin this lush landscaping which certainly materially enhances the value of the homes and thathas greatly increased our expense so itis only fair therefore thatweshould have some share. Butagain, thatis the issue in the court. We may lose in court; Idon’tknow how thatis going to be resolved. And thatis notbefore you, according to your own attorney. Thank you.

Acting Chair Chappell opened discussion for Commissioners: Thank you. Before we open the public hearing there is now opportunity for comments and questions by the Commissioners.

Commissioner Scharff had questions: Thank you. Ihad acouple of questions justso Iunderstand itfrom our staff. The firstone is: Rightnow it’s ajointand several obligation for the maintenance. That’s whatIheard, Iunderstand, Ijustwantto make sure I’m righton that.

Mr. Zeppetello replied: That’s correct, that’s the staff’s view. Commissioner Scharff continued: So if that’s true, Iagree with Commissioner McGrath; I

don’tunderstand why we would ever give thatup. Why we would wantto wade into whatis basically acivil matter and say, this is how we’re splitting it, itmakes no sense to me. Whatdo we getoutof it? Itseems much more appropriate for us to say, ‘You’re having acivil dispute. We don’tcare who pays for the maintenance, you guys work itout, butin the meantime we’re going to do enforcementactions if no one pays for it.’ Idon’tunderstand why we would basically putourselves in asituation where we splitthe permitand then somebody doesn’tpay for itand we have less of adeep pocket, which would basically be the Marinamostlikely, the homeowners are going to pay for it. And Ialso did actually think thatthe argumentthatwe are wading into acivil suitand preempting their rights to work this outin courtseemed inappropriate because I, firstof all, don’tunderstand the claims between the parties. Idon’twantto sit, in fact, as ajudge for their lawsuitand preemptit, thatdoesn’tseem appropriate. Ifind itreally hard to imagine why we would wantto splitthatpermitgiven the financial issues. Idon’tknow if you wantto address if we have the jointand several liability why do we wantto givethatup.


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AssistantAttorney General Tiedemann commented: Iam notgoing to commenton whataction the Commission should take butthe homeowners’ association has filed the application for the material amendmentso staff didn’tinitiate this on its own. What’s before the Commission is consideration of whatto do with thatapplication.

Commissioner Scharff replied: That’s very helpful. So there is no staff recommendation, so to speak, to do this?

Mr. Lavine answered: There is astaff recommendation. And the recommendation, which Iwill present, following the public hearing and which you have in your summary, does recommend the Commission consider firstthis threshold question and then we do provide arecommendation in terms of how we think this impacts public access in relation to the law and policies.

Commissioner Scharff continued: Iguess Iwould say in terms of the public access issues, itdoes seem to me thatif we splititit’s really justamatter of maintaining. If we lose thatability welosepublicaccess, Iguess. If there comes atime thatyou wantto address why thatwould notbe so, butthat’s sortof how itseems intuitively to me, thatit’s really aboutmaintaining it. And if we don’tmaintain itor if itdoesn’tgetmaintained public access is lost. Idid sortof buy into the due process argumentthatif we do splitthe permititdoes seem thatwe have made amaterial decision and preempted the court’s authority or changed the courtof who is going to pay for what. And atthe end of the day this is acivil dispute between two parties aboutmoney: Thatthe homeowners don’twantto pay for something and the Marinawants them to pay for it; and we shouldn’tcare who pays for it, we should justcare thatit’s paid for. And Iam very concerned aboutus basically playing thatrole of making thatchoice aboutwho pays withouthaving all of the facts of alawsuitand understanding the equities involved and the legal of who should pay and who should not. When the Marina’s counsel said, that’s notbefore us and staff said it’s notbefore us to wade in to make thatdecision Ididn’tunderstand how we wouldn’tbe wading into itand making thatdecision if we splitthe permitbecause we’re saying who is responsible if we splitthe permitfor who pays what. And so itseemed to me thatwe, in fact, were wading into thatand making thatdecision. If I’m wrong aboutthatletme know butthatwas sortof how Isaw it.

Mr. Zeppetello clarified apoint: My pointearlier was thatwe are notinterpreting the existing permitand their obligations as they have had adispute in terms of their obligations from the time AmendmentEleven was adopted to the presenttime. Thatwe are notgetting into that. Butgoing forward we have arequestto modify the permit. Itseemed both logical and perhaps the only legally permissible grounds would be to do itbased on ownership and control. Italso appears thatthe square footage atleastof areathatwould be Encinal’s responsibility under the amended permitwould be less than whatitwas prior to AmendmentEleven when Warmington gotinvolved. Idon’tknow if thatresponds fully to your question.

Commissioner Scharff responded: No, Ithink that’s helpful and Iappreciate that. Ithink thatclarified in my mind thatwe actually would be making adecision on the equities of the matter between the two parties in terms of who pays what. As athreshold matter Idon’tthink we should be doing thatif we don’thave agood reason to and we, in fact, give up the ability of having two parties who would pay for it. And frankly, Ithink the homeowners are probably the


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deeper pocketatthe end of the day butIcould be wrong. ButIsee no reason to wade into thateither and why notjusthave both parties responsible and have the enforcementaction againstboth parties and enforce itif they don’tand letthem figure itout. And Ithink through their litigation they actually probably will figure outwho is responsible for whatportion of paying. Thatstruck me as the legal framework for this butI’m open to understanding if I’m misunderstanding it.

Mr. Zeppetello reiterated aprevious point: Butto be clear, perhaps I’m reiterating. Weare simply processing the application to splitthe permit. We are notdeciding how their obligations are; we are deciding whether to splitthe project. And of coursewebelieveunderthe currentpermititis jointand several so they are both on the hook.

Commissioner Scharff added: Butif we do splitthe permitwe have made thatdecision. We have made thatposition so we have made thatchoice.

Commissioner Peskin commented: Aren’twe really rightnow considering the appeal of the Executive Director’s initial denial because they were notjointapplicants? Isn’tthatthe firstthreshold question? Aren’twe really considering the appeal of the Executive Director’s decision, staff?

Mr. Lavine answered: In effect, yes. The HOA originally applied for an immaterial amendmentand the Executive Director determined and communicated to the HOA thathis decision would be to deny thatpermitfor two reasons. One is because the application was lacking asignature and the second was thathe believed itwas amaterial amendmentand should be heard by the Commission with the benefitof apublic hearing. Atthatpointrather than going forward and having the denial happen for the immaterial amendmentthe HOA withdrew and resubmitted amaterial amendmentwhich had the same effect.

Commissioner Peskin stated: Letme justsay Iagree with the previous statements by two members of this Commission and if we were to rule Iwould say thatthe Executive Director’s initial decision was the correctdecision and thatwe should justrule on the threshold question and notmove on to maximum feasible determinations. Ithink the Executive Director performedcorrectly.

Commissioner McGrath spoke: Iwould like to add to that.

Acting Chair Chappell interjected: Commissioner, Ithink atthis time since the public hearing hasn’tbeen held we shouldn’tbe giving opinions butwe should be justasking for clarifications.

Commissioner McGrath spoke: As Iunderstand the position of the attorneys from the HOA they’re arguing, and Ithink it’s greatto have this up, thatthey will be responsible for maintaining the blue areas, which meets aburden testin their mind, and thatthe maintenance of the other areawas apreexisting responsibility. I’ve heard from the attorneys from the Marinathatindeed there were new responsibilities in terms of maintenance and landscaping costs thatwere added. So from the perspective thatIhave in trying to weigh in on the equities here Iam notclear as to exactly whatand of whatconsequence is an existing pre-established responsibility thatsolely wentwith the Marinaand whatwas new thatwentwith the 40


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houses. If Ican see thatImightbe willing to entertain an amendment. So that’s the real question is thatit’s notclear to me – and Iwantthe staff to respond notthe applicantor the opponent– as to whatwas apreexisting responsibility thatdidn’tchange, whatwas apreexisting responsibility thatperhaps gotmore expensive because of the 40 homes and then what’s aseparable elementthat’s the responsibility only of the 40 houses? Thatto me is the information thatwe musthave to be able to acton this.

Mr. Lavine commented: In terms of the preexisting requirements under the amendmentprior to AmendmentEleven, AmendmentTen. I’ll justpull thatup and Ican justread them off for you and then Ican tell you whatthe differences are. In terms of public access under AmendmentTen, which is the lastamendmentprior to the developer joining the permit, the public access areas consisted of essentially the areain orange and alittle bitof the section in blue in the shoreline park to the east. Itwas about2,000 square feetmore in terms of the amountof public access thatwas required under the existing permit. Itincluded differentlandscaping butithad both bathrooms and roughly the same amountof square footage. Whenever the developer joined the permit - and the successor of the developer, ofcourse, isthe HOA, - there were additional public access requirements. The obligations included work on the pathways and changing over existing benches to new benches, new lighting, seating, trash receptacles. There were landscape improvements, the addition of barbeque areas and new signage along the shorefrontpark.

Mr. McCreasummarized some points: Ithink we can summarize by saying thatthe shoreline was augmented with new public access improvements, asmall plaza, better entry into the area, crosswalks and crossings from the new developmentto the shoreline. The look and feel of the shoreline is essentially the same, justbetter.

Commissioner McGrath added apoint: Butif notfor the homes those would nothave beenrequired.

Mr. McCreaagreed: Correct.

Commissioner McGrath added: So thatcrosses over from the blue areato the orange area.

Mr. McCreareplied: That’s right.

Commissioner McGrath continued: And there is aresponsibility for maintenance thatgoes along with the construction?

Mr. McCreaagreed: Typically, yes.

Commissioner Zwissler addressed the threshold question: Iwould like to getback to the threshold question. Does addressing this question today setany precedent? Iam justconcerned if the facts and circumstances were differentin afuture consideration, when do we weigh in and when don’twe weigh in? I’m confused; Iwould like to getsome guidance on that.

Ms. Tiedemann commented: As people have said, it’s an unusual situation. The matter before you today isn’treally the threshold question of acceptance of the application, it’s whether to grantor deny this application.


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Commissioner Zwissler asked: The application is to split?

Ms. Tiedemann clarified: The Commission’s regulations provide thatapplications for material amendmentor major permitshould be signed by all of the applicants. The regulations also provide thatthe Executive Director may waive thatrequirement. The Executive Director has really punted thatwaiver to the Commission buthe has done thatin the form of putting before you the application thatwas filed by the HOA. Idisagree somewhatwith Commissioner Peskin’s suggestion thatthere be some kind of threshold vote of whether to consider this application; you are considering this application.

The Commissioncould vote to deny itbecause itbelieves both permittees should be required to submitthe application, the Commission could vote to deny itbecause itdoesn’twantto eliminate jointand several liability, itcould deny itfor anumber of reasons. Butmy recommendation would be you vote to grantor deny this application and thatwe nothave aseries of procedural votes.

Commissioner Zwissler added: So there is justgoing to be one vote. Then Iwon’tmake acommentatthis pointthen.

Commissioner Nelsondiscussed ahypothetical: I’m sympathetic to the perspective we have heard from acouple of Commissioners, thatwe don’twantto bifurcate this permitand reduce our options for enforcing down the road in terms of maintenance for the public access. Butthere is another implication here thatIwould justlike to make sure Iunderstand. In thatscenario if the permitwere to be bifurcated and if the Marinawere to go bankrupt, if there were activities in the marinaside, whatwould become aseparate marinapermit, if we were to bifurcate the permit, then any enforcementwe would take regarding thatpermitwe would have to take againstthe Marinaand they may or may nothave gone bankruptatthatpoint. Solet’s assume for amomentthatthere is aproblem with riprap or maintenance of the docks or something that’s clearly aMarinaresponsibility in terms of operations today. If we were to notbifurcate the permit, if we were to leave the permitas is with two permittees, then wouldn’tthatmean thatour only alternative for enforcement, thatwe would have the alternative for enforcementatthatpointagainstthe HOA to make sure thatthey were doing whatever was required with the marinadocks and so forth? Iam notentirely sure I’m comfortable with that. Itend to feel thatwe shouldn’tbe in the business of settling adispute between parties. Butitdoes seem to me if we do notbifurcate this and if the marinashould for whatever reason cease operations and we were to need to take enforcementwe mightbe forced to take action againstthe HOA for alack of maintenance on the Marina’s properties. So the firstquestion is whether Ihave thatright, then Ihave another question.

Mr. Zeppetello advised: Ithink you have thatright. Ithink there would be issues of either equity or control. The HOA would nothave aproperty interestto go outand do work in the Bay. They would have the permitbutnotarightto go on thatproperty and take corrective action. And then if we came to you with an enforcementaction and were seeking apenalty the HOA would certainly have equitable arguments as to why itcouldn’tor shouldn’tbe obligated for liability.


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Commissioner Nelson inquired further: The nextquestions are with regard to the dueling letters we’ve received from the attorneys. The firstis the letter from the Weyland law firm on behalf of the Marinathatasserts thatsplitting the permitwould deprive Encinal of vested rights and would constitute “an improper taking.” A question for our AG: Do you feel thatthere is apotential taking here issue if we were to bifurcate the permit?

Ms. Tiedemann commented: I’ve considered thatargumentand I’ll justgive you apreliminary opinion. They will have an uphill battle with thatargumentbecause they are ending up with less public access maintenance responsibilities after the splitof the permitthan they otherwise would have had so Idon’tknow how far thatargumentis going to go in court.

Commissioner Nelson had another question: The other question is with regard to the letter on behalf of the HOA thatsays thatthe courtis waiting “to allow BCDC to vote on June 16.” Idon’tknow whether you have reviewed any of the courtdocuments or whether weshould care whatthe courtthinks butis thataccurate thatthe courtis waiting to see if we resolve this issue to make this case mootbefore the court?

Mr. Zeppetello stated: Ibelieve they provided acopy of astatus conference statementfrom the Courtwhere the Courthad deferred ahearing on ademurrer thatthe HOA has filed until after the Commission considers the matter. The only thing thatwould be decided atthathearing is whether Encinal has stated aclaim. Butthere won’tbe any ruling or any determination from the Courton any legal issue thatwould go to the substance of the dispute any time soon.

Commissioner Zwissler asked for clarification: Could you restate that? Ididn’tunderstand whatyou justsaid. In other words, they’re claiming thatthe Courtis waiting for us to act. Butif we actthen thatsettles the lawsuit; isn’tthatcorrect?

Mr. Zeppetello replied: No. As Iunderstand itand maybe they can clarify, it’s justputting off ahearing on ademurrer, which is afailure to state aclaim. The HOA is responding to the complaint; their response is thatEncinal hasn’tstated aclaim. So the Courtis going to decide thatissue butit’s avery threshold issue and doesn’tgo to the merits.

Commissioner Gioiamade apoint: Itake itthatthis Commission has never either through action of the Executive Director or the Commission waived the requirementof all parties to apermitsigning on to apermitamendment?

Mr. Goldbeck agreed: As far as we know.

Commissioner Gioiacontinued: So as far as we know. Is there any guidance in the statute or regulations aboutstandards thatwould be applied in considering whether to grantawaiver?

Ms. Tiedemann replied: There is not.

Commissioner Gioiacontinued: So it’s justplain language thatsays, Executive Director has the authority to waive butthere is no guidance to the Executive Director in exercising thatdiscretion.

Mr. Goldbeck agreed: Correct.


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Commissioner Gioiareiterated: And we are unaware thatthis has occurred before?

Mr. Goldbeck answered: Correct.

Commissioner Gilmore commented regarding the demurrer issue: Iwantto getback to thatdemurrer issue because talking among my colleagues here there still seems to be alittle bitofconfusion. So the way Iunderstand itis thatthe Courthas postponed the ruling on the demurrer, in the sense waiting to see whatBCDC does. If BCDC acts to splitthe permit, thatis essentially adecision on the merits because we will have decided the very issue thatthey are in courtarguing about.

Ms. Tiedemann stated: We should probably letthe attorneys for the parties talk aboutthis butmy understanding of the litigation is itconcerns pastexpenses, so Idon’tthink the Commission’s vote today would render the lawsuitmootin any event.

Acting Chair Chappell opened the public hearing: Iwould like to open the public hearing now. Do we have any speakers from the public? Seeing none we can close the public hearing.

MOTION: Commissioner Wagenknechtmoved to close the public hearing, seconded by Commissioner Bates.

VOTE: The motion carried with avote of 16-0-0 with Commissioners Addiego, Bates, Gilmore, Scharff, Gioia, Peskin, Pemberton, McGrath, Nelson, McElhinney, Sears, Vasquez, Hillmer, Wagenknecht, Zwissler and Acting Chair Chappell voting, “YES”, no “NO”, votes and no abstentions.

Commissioner Vasquezcommented: Why wasn’taseparate permitissued if this was going to be an issue anyway, for the developmentitself?

Mr. Lavine answered: Atthe time thatAmendmentNo. Eleven was applied for Encinal MarinaLimited was the landowner. Itis our practice to have both the landowner and any other permittees as jointpermittees.

Commissioner Vasquezasked: So the new buyer assumed those responsibilities under thatagreementthen?

Mr. Lavine replied: They are jointly shared by both parties.

Commissioner Vasquezcontinued: Much like aMello-Roos. The developer creates aMello-Roos districtand the homeowners are responsible for those agreements individually.

Mr. Lavine replied: Iam notsure Iknow how to answer that. Idon’tknow if Marc wants to. Essentially both permittees are equally responsible for all the requirements of the permitand they enjoy the authorizations equally as well.

Commissioner Vasquezinquired: So now they have adifference in who is responsible forwhat.

Ms. Lavine stated: In our eyes they are both responsible for them now. How they achieve thatis amatter thatis up to them. In our eyes they are jointly and severally liable to meetthose obligations.

Commissioner Vasquezasked: Whywould wechange thatatall?


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Mr. Lavine replied: That’s the question before you.

Commissioner McGrath moved negative approval: Iam going to move approval of acting on this and urge a“NO” vote.

Commissioner Gioiaasked for clarification: You’re saying thatthat’s amotion to uphold the “NO” position by the Executive Director?

Commissioner McGrath clarified: Ithink we’ve passed over this; staff has said we’ve gone beyond that. WhatIwould like the Commission to do is deny the application for amendment.

Commissioner Scharff asked: So would you move that, deny approval of the amendment? Justmove denial of the approval.

Mr. Goldbeck added: Before we go to that, Commissioner McGrath, could we have the recommendation? Butif there are other questions or comments before thatthis would be agood time.

Commissioner McGrath finished his commentary: To finish the comment, the thing thattroubles me, Iam sympathetic to the arguments made very ably by counsel for HOA thatthey are perhaps being held hostage, butthere is no neatline atthe property boundary for the access improvements thatwere putin, in part, for the homeowners, which are on the other property. Until Isee some agreementthatwould assure thatthose getmaintained Idon’tthink we can separate the project. That’s the connection.

Acting Chair Chappell asked for the staff recommendation: Could we have your staff recommendation, please.

Mr. Lavine presented the staff recommendation: On June 10th you were mailed acopy of the staff recommendation, which recommends the Commission approve the proposed amendmentto splitthe permit. Staff recommends thatthe Commission approve the application for amaterial amendmentto PermitNo. 1983.005, which will divide the permitin accordance with the staff’s division recommendation. The staff believes the projectis consistentwith your law and Bay Plan policies regarding public access. And with thatwe recommend thatyou adoptthe recommendation.

Commissioner Gioiaadded: Ihave aquestion.

Acting Chair Chappell interjected: Can we have amotion and asecond on the staff recommendation?

MOTION: Commissioner Scharff moved denial of the staff recommendation, seconded by Commissioner Gioia.

Ms. Tiedemann stated: You are notdenying the permit; the motion is to deny the material amendment.

Commissioner Gioiareiterated: Deny the material amendment, correct. Ihave aquestion. Ijustheard astaff recommendation to supportthe splitof the permitbutIthoughtthatthe Executive Director denied that.


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Mr. Goldbeck clarified: The Executive Director denied the non-material amendmentrequestpreviously.

Commissioner Gioia: Isee, the non-material request. Then itwas resubmitted as amaterial, which goes to the full Commission.

Mr. Goldbeck replied: Correct.

Commissioner Peskin added: Which did notneed to go to the full Commission had staff determined thatitwas notsigned by both the parties butthatgotpunted to us.

Commissioner McGrath had apointof order: Pointof order. Do we have arecommendation to deny or arecommendation to approve where a“NO” vote would be to deny?

Mr. Goldbeck requested Commissioner Scharff clarify his motion: Can the maker please clarify.

Commissioner Scharff replied: The motion is to deny the material amendment, which means if you vote “YES” it’s denied.

Commissioner Nelson commented: Can we justmake sure we are all clear on the motion. The motion is to deny the staff recommendation.

VOTE: The motion carried with aroll call vote of 15-0-1 with Commissioners Addiego, Bates, Gilmore, Scharff, Gioia, Peskin, McGrath, Nelson, McElhinney, Sears, Vasquez, Hillmer, Wagenknecht, Zwissler and Acting Chair Chappell voting “YES”, no “NO”, votes and Commissioner Pemberton abstaining.

Acting Chair Chappell announced: The motion has passed. (There was apause in theproceedings to allow Chair Wasserman time to reenter the room)

10. Public Hearing on Potential Port of San Francisco Legislation. Chair Wasserman continued the meeting: Item 10 consideration of Portof San Francisco sponsored legislation regarding Pier 48 in San Francisco. Steve Goldbeck will introduce the topic.

Chief Deputy Director Goldbeck presented the following: You have astaff reportdated June 3rd before you on Assembly Bill 2797 with the title of City and County of San Francisco Mission Bay South ProjectRedevelopmentPlan. This bill is being carried by Assembly Member David Chiu.

The bill is sponsored by the Portof San Francisco and presently is regarding the public tidelands delegation and use of non-trustrevenues by the proposed Mission Rock developmentatPier 48 and the adjacentSeawall Lot337.

However, the Porthas approached BCDC staff suggesting thatthe bill could be used to address two inconsistencies regarding Pier 48 in BCDC plans. First, adesignation for neo-bulk inthe SeaportPlan; and secondly, how the pier is treated in the San Francisco WaterfrontSpecial AreaPlan. The Porthas been clear thatitwill only address this in the legislation if BCDC does notoppose it. Brad Benson is here from the Portof San Francisco to walk you through the bill and provide the context. After Brad’s presentation you will hold apublic hearing.


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Mr. Benson was recognized: Iam here representing Interim PortDirector Elaine Forbes. AB 2797 is abill thatamends prior legislation thatthe Portsoughtin 2007 and negotiated with the help of the State Lands Commission related to the Port’s seawall lots.

Thatearlier bill made afinding thatthose seawall lots were notneeded for trustpurposes, were cutoff from the water and thatthe Portwould be enabled to lease those seawall lots on the other side of the Embarcadero for non-trustpurposes for 75 years to generate revenues mainly for historic rehabilitation of the Port’s historic assets. Also for parks called for in BCDC’s plans.

There was extensive public outreach aboutthatbill. Itwas negotiated with State Lands and wentthrough apublic process before the Portknew aboutthe details of developmenton those seawall lots.

Since thattime the Portwentthrough acompetitive process, selected adevelopmentpartner, an affiliate of the San Francisco Giants, who have continued public planning for developmenton thatsite and now there is proposed amixed-use developmenton Seawall Lot337 thatwould include approximately 1,500 residential units, 40 percentof which would be affordable to low- or middle-income residents, 1.3 million square feetof office, about250,000 square feetof retail and 8 acres of open space and importantly, rehabilitation of Pier 48.

The currentproposal is to redevelop thatpier with Anchor Brewing as the tenantalong with retail, restaurants, tours, public access and maritime berthing around the pier.

So that’s the background for the bill.

The projectitself is going through environmental review rightnow. We expectaDraftEnvironmental ImpactReportto come outthis fall, acopy of which will be subjectto review by BCDC and State Lands. There has been apublic vote on the projectjustthis lastyear approving heightincreases for the projectthatwas well-received by San Francisco voters.

After thatvote we turned to the enabling state legislation and realized there were some things thatneeded to be changed aboutthe 2007 legislation and I’ll be brief aboutit.

We have been working with State Lands since approximately December or early January to come up with amendments to AB 2797.

Whatwe have learned since 2007 is thatwe needed some of the land value from Seawall Lot337 to fund the parks, the streets, the utility infrastructure for the site so thatitcould bedeveloped. The amendments thathave been adopted by the Assembly were permitloans of thatland value to fund the infrastructure, subjectto repaymentby public financing sources, basically property tax increment.

The 75 year leases thatImentioned could extend beyond adate thatwas in the prior legislation, 2094 and we found alittle parcel thatused to be partof the Mission Bay South RedevelopmentAreathatwas going to be alandscaping parcel thatneeds to be added to the site.

So thatis whatis in the bill today. Ithas been well-received in the process so far.


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We have gotten unanimous votes up until yesterday where we gotasingle “NO” vote in Senate Governmentand Finance.

As to the proposed amendments:

Pier 48 is aunique animal. In 2000 the BCDC Commission adopted amendments to its Special AreaPlan in recognition of the historic piers and eliminated the ReplacementFill Policy in the areabetween Pier 35 and ChinaBasin. The Commission also authorized the full range of public trustuses in the historicpiers. Pier 48 atthe time was notknown to be partof the historic districtand itis justsouth of ChinaBasin so thatis one issue thatwe would like to address because rightnow to take on thatpier, half of the pier would have to be removed or converted into apark.

The SeaportPlan, jointly published by MTC and BCDC, currently lists Pier 48 as an inactive bulk terminal/neobulk terminal. Ithasn’toperated as afreightfacility for more than 30 years. There is no freightrail access to the facility.

In lieu of going through approximately ayear-long public planning process the Port’s proposal is to use the state legislation to address these two narrow issues to allow us to rehabilitate Pier 48.

We would propose thatPier 48 be treated under BCDC permitting rules like all of the other historic piers in the northeastwaterfront. Nothing aboutthatamendmentwould change the Commission’s major permitting authority over aprojectatthe site. And thatthe SeaportPlan be amended to remove that“inactive neo-bulk status.”

Chair Wasserman announced: Iam going to open the public hearing. We have one speaker, Corinne Woods.

Ms. Woods addressed the Commission: Good afternoon. My name is Corinne Woods. Ihave been involved with the Port’s Central WaterfrontAdvisory Group for more than ten years and Ichair the Mission Bay Citizens Advisory Committee, which is contiguous with this project.

Iam here to urge you to supportthis legislation and to supportthe Port’s requested amendmentto bring Pier 48 into the Northern Waterfrontrules for the historic piers. Itis partof the Embarcadero Historic District. There is areally interesting plan to rehabilitate itand itmakes sense to be logical and bring itin.

Iam kind of here with afurther wish and thatis, this legislation gives the Portand the developer asignificantadvantage in terms of financing and time and Iwantto be sure thatthe public benefits are the priority in this legislation.

Itwill open up this whole partof the waterfrontfor more public access, improve publicaccess; the beginning of the Blue Greenway, which we have been working on for along time.

Iwantto see thatChinaBasin Park, thatfive acre park atthe northern end, be builtin the firstphase of development. Ithink thatpublic benefitis importantfor the whole projectand for the neighborhood and thatBCDC could, in fact, maybe ask for an amendmentto the legislation thatprioritizes the ChinaBasin Park and encourages the public benefits to be the firstthing on the agenda.


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Chair Wasserman recognized Commissioner Peskin: Commissioner Peskin.

Commissioner Peskinreplied: Iwould like to close the public comment.

MOTION: Commissioner Peskin moved to close the public hearing, seconded by Commissioner Gilmore.

VOTE: The motion carried with avote of 14-0-0 with Commissioners Addiego, Bates, Gilmore, Peskin, Pemberton, McGrath, Nelson, Sears, Vasquez, Hillmer, Brush, Zwissler, Vice Chair Chappell and Chair Wasserman voting, “YES”, no “NO”, votes and no abstentions.

Commissioner Peskincommented: Ijustwanted to thank Vice Chair Halsted and Executive Director Goldzband for their work with the Acting Director of the Portwhich produced her letter of May 24 and Isupportthe staff’s recommendation on behalf of the City and County as the motion.

Chair Wasserman interjected: We atleastneed very briefly to getthe staff recommendation on the record.

Mr. Goldbeck presented the staff recommendation: The staff recommends thatthe Commission remain neutral on Assembly Bill 2797. BCDC could handle this through its existing process butyou have heard thatthere aren’tsubstantive issues. This would move the bill forward and itpreserves your authority to consider any projectthatis proposed coming down the line and maybe address some of the other issues thatare raised today.

Commissioner Nelson had aquestion: A simple question for Brad. You stated thatone of the benefits of this projectis itallows you to finance improvements. Iwas hoping you could talk aboutthe actual connection in terms of phasing. Whatis the linkage between the developmentof this parcel and the improvements to Pier 48?

Mr. Benson replied: We don’tknow exactly which phase Pier 48 will come in. It’s an expensive facility. The seawall needs to be repaired in thatarea; there are extensive seismic improvements to the pier so we’re still examining the financing of the pier. I’m pretty sure the Giants and Anchor Brewing would like itto be in Phase 1 and if they can figure outaway to make thathappen itwill be in Phase 1.

Just to Corinne’s requestaboutthe park: ChinaBasin Park is thatfive-acre park. Wehave talked to the Giants to see whether or notthey could deliver thatpark in Phase 1. So if the Commission wants thatadded to the legislation that’s something.

Chair Wasserman stated: We have amotion on the floor.

Commissioner Bates asked: Did they acceptthatamendment? You’re making thatan amendment?

Chair Wasserman stated: Iwould ask atthis momentnotto acceptthe amendment. There’s going to be awhole lotof process here. The sense is we are going to have some time to weigh in. Ithink atthis momentwe oughtto move forward.


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MOTION: Commissioner Zwissler moved approval of the staff recommendation, secondedby Commissioner Peskin.

VOTE: The motion carried with aroll call vote of 14-0-0 with Commissioners Addiego, Bates, Gilmore, Peskin, Pemberton, McGrath, Nelson, Sears, Vasquez, Hillmer, Brush, Zwissler, Vice Chair Chappell and Chair Wasserman voting, “YES”, no “NO”, votes and no abstentions.

MOTION: Upon motion by Commissioner Sears, seconded by Commissioner Vasquez, the Commission meeting was adjourned at4:22 p.m. and continued as aCommittee.

11. Briefing on Highway 37 and Rising Sea Level.Item was postponed.

12. Briefing on Policies for a Rising Bay Project.Chair Wasserman announced: Item 12 is astaff briefing on the Policies for aRising Bay project. Isaac Pearlman will provide the briefing.

Planner Pearlman addressed the Commission: The Policies for aRising Bay projectis funded through NOAA’s Section 309 Projectof Special MeritGrant program and has the following objectives:

To collaboratively evaluate the Commission’s policies to determine whatchanges are needed, if any, to supportsealevel rise resilience and adaptation.

To assess how the Commission can allow fill for resilience and adaptation projects.

And to evaluate existing laws and policies thatcan be used to ensure disadvantaged communities are protected.

Justto give alittle context: If some of the language seems familiar that’s notacoincidence. BCDC has several sealevel rise initiatives, including the Adapting to Rising Tides Program, the Commission’s sealevel rise workshops, the Bay Fill Working Group, amongstothers.

Ideally, these initiatives are all informing and building upon each other as partof BCDC’s larger climate change program.

To dive into the project’s specifics:

The Policies for aRising Bay Projectdeveloped afour-step process to achieve its objectives:

Firstwas to form the Steering Committee, which is composed of external stakeholders.

The second was to work with both the Steering Committee members and BCDC regulatory staff to assess BCDC’s policies and identify which are key for sealevel rise resilienceand adaptation projects.

Third was to testthese policies againsthypothetical case studies in order to evaluate where certain gaps, limitations and uncertainties may lie.

Last, the stage thatwe are currently in is developing the final report.


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The Steering Committee members include representatives from over 30 institutions, which representgovernment, nonprofitand the private sectors and they representperspectives from BCDC’s four frames of sustainability, which include governance, social equity, environmentand the economy.

In the Policy Analysis step BCDC staff worked with Steering Committee members and regulatory staff in order to assess their perspectives on key policies relating to resilience and adaptation including: fill policies; public access, mitigation, recreation; as well as policies relating to environmental justice and social equity. In the end, perceived challenges and limitations were also assessed from both sides of the table.

Then four hypothetical case studies were developed in order to testthese policies and also evaluate whatsortof resilience and adaptation actions can potentially be permitted using our currentpolicies.

The Shoreline Community Case Study evaluated proposal to implementahorizontal levee, atidal gate and marsh sedimentaugmentation in order to protectacommunity.

The Transportation Case Study evaluated aseawall along with mudflatrecharge and barrier beach creation in order to protectacoastal highway.

The airportscenario evaluated an instance of incomplete adjacentproperty’s shoreline protection making an airportmore vulnerable to sealevel rise.

And last, the Landfill Case Study looked atinstalling anew shoreline revetmentand acutoff slurry wall in order to protectaclosed landfill.

The final reportstage thatwe are in is basically summarizing information from all of those steps into aPolicy Analysis and Findings Section which has identified four central policy issues, identified how BCDC’s currentlaws and policies address those issues, and summarizes Steering Committee findings and policy options.

The four overarching policy issues include: (1) Fill for wetland restoration protection and adaption; (2)fill for innovative green shoreline protection;(3) policies on environmental justice and social equity and (4)adaptive managementpolicies.

For the firstpolicy issue, the main question identified is wetland protection, restoration, and adaptation may require large amounts of fill, and how can BCDC reconcile thatwith policies thatrequire minimizing fill?

Possible actions thatwere garnered throughoutthis process from Steering Committee members and staff include:

Organizing and working with technical experts and partners to develop guidance or bestpractices for whatminimum fill for wetland resilience adaptation lookslike.

Ask permitapplicants to clearly identify benefits and impacts of using fill for wetland adaptation.


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Potentially exploring the possibility of developing aregion-wide permitfor sealevel rise habitatresilience and adaptation.

As well as exploring specific language to amend the Bay Plan or legislation.

The second policy issue is the factthatBCDC’s limited jurisdiction in the shoreline band as well as their currentpermitting requirements can sometimes hinder innovative, green shoreline protection projects.

Some of the possible actions thatcame outof this process to address thatissue include:

Organizing and working with partners to develop aguidance or bestpractice relating to green, innovative shoreline protection.

Itincludes giving assistance to projectapplicants viaatechnical “help desk.”

Developing aregion-wide permitfor innovative green shoreline adaptation strategies.

Exploring the additional jurisdiction thatBCDC has in special areaplans and priority use areas in order to encourage innovative green shoreline adaptation projects.

Amending the Bay Plan.

One of the significantissues arising from this projectis BCDC’s currentpolicies severely limititin terms of addressing environmental justice concerns in regard to sealevel rise.

Some of the possible actions thatthe Steering Committee and staff identified are to:

Continue highlighting disadvantaged community vulnerabilities through the Adapting to Rising Tides program.

Actively engaging environmental justice communities in BCDC’s planning and permitting process.

Explore amending the Bay Plan to include explicitpolicies on social equity and environmental justice.

Lastly, adaptive managementpolicy issues include – we heard time and time again from members thatclear guidance is needed on whatconstitutes an adaptive managementplan and/or risk assessment. So again apossible action is to:

Work with technical experts and partners to develop criteriaand guidance for adaptive managementplans and risk assessments.

To startto require projects to include key thresholds and triggers. For example, if public access is closed due to flooding for Xnumber of days thatwould trigger potential adaptive managementactions.

Also specifically to increase coordination and collaboration with the Regional Water Quality Control Board to ensure contaminated lands are adaptively managed to protectthe environmentand human health.


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Justto close out with our projecttimeline. We metatthe end of May with the Steering Committee to presentthese draftfindings and possible policy responses and collecttheir feedback. We are currently integrating feedback from thatmeeting and from our draftreport, both from BCDC staff and the Steering Committee into the final report. June 30 is our deadline to submitthatreport, which is why Iam here briefing you today. After the reportis done we will continue to work with partners to refine policy options.

With thatsaid the only lastthing Iwould mention is thatBCDC staff, Miriam Torres who is nothere, has done alotof heavy lifting on this project. She is now doing adifferentkind of lifting as she is on maternity leave. Toconclude, go Golden State Warriors and Iam happy to answer any questions from the Commission.

Commissioner Nelson commented: Justacouple of quick comments. First, Iwantto thank Isaac and especially Miriam and the restof the staff for their work on this project, which has really been interesting. Ijustwantto pointoutthatthis projectpredates alotof the other things thatthe Commission is currently doing on sealevel rise.

And you will note atthe end of this, Isaac, atthe end of three of your four slides on three of those four issues itended with ‘consider amending the Bay Plan.’ Sowe will be, both atthe Bay Fill Working Group and then atsubsequentlikely future Commission workshops, picking those recommendations up and Ijustwantto thank the staff. This process has been really helpful to engage stakeholders and startfleshing these issues outand Ithink really inform some of the workshops thatthe Commission has held as awhole and Ilook forward to continuing to move forward with many of the issues and recommendations thatthe staff has come up with here.

Chair Wasserman added: Iconcur in thatand recognize thatthis did startbefore many of our activities, the Rising SeaLevel Working Group and so forth. They are obviously much related, working in parallel. And hopefully with the conclusion of this phase of the work we reportto NOAA we can, in fact, integrate them more and bring those in as partof fully partof the work plan so itis notsitting outthere on its own. Ithink itis very good and Ithink we need to make sure the final reportis distributed to the Commission and probably avery brief reporton it, particularly if we getany response from NOAA.

13. Committee Adjournment.Upon motion by Commissioner Gilmore, seconded by Commissioner Nelson, the Committee meeting was adjourned at4:35 p.m.


Documents

TO FROM: LawrenceJ. Goldzband, Executive …July 29, 2016 TO: All Commissioners and Alternates FROM:LawrenceJ.Goldzband, Executive Director (415/352-3653;[email protected])