Planning Commission - Regular Meeting

And you're surprised, like, what the hell is he doing?

Good afternoon, everyone. Welcome to the February 18th, 2026 Oakland Planning Commission meeting. I will call the meeting to order and we can do the roll call.

All right. Commissioner Maurice Robb is absent today. Commissioner Alex Randolph?

Here.

Commissioner Owen Lee?

Here.

Commissioner Josie Aarons. Here. Vice Chair Natalie Sandoval. Here. E-Chair Jennifer Rank. Here.

You have a quorum. Thank you. We'll move on to Commission Business. Do we have any agenda discussion?

No agenda discussion. Do we have a director's report? No director's report.

Okay. And it looks like we have an informational report that was continued from the January 7th agenda meeting. So that will go right to item number one.

Yes. And I feel bad because I just told the presenter, oh, you've got a bit of time because of open forum, but open forum is later. So now, of course, she's sitting in the middle of a row. So I apologize for that. So we have Christy Johnson here from EWD. I believe you're Deputy Director of Economic and Workforce Development Department with a presentation on activation regarding the downtown. And before she gets going, she's got a nice presentation. I will note this is something that the Planning Commission asked for. You had noted that there's been a trend of proposed updates to regulations that affect the downtown. you were curious about other initiatives the city has worked on in concert with relaxation of alcoholic beverage regulations in the downtown adoption of the DOSP and so this presentation is intended to complement the regulations you are now becoming familiar with they're new to all of us of course and I also have asked Laura Kaminsky the strategic planning manager to be here as well in case you have questions about the connection between the economic development initiatives that Christy will be presenting and the recently adopted regulations for which you provided recommendations to city council. And with that, Christy, welcome.

Thank you so much. And hopefully you can hear me all right. All right, so for the next 15 minutes, I get to walk you through our five-year- I'm sorry, can you please state your full name for the record?

Sure.

Thank you. Like a rookie. Christy Johnston-Limon, Deputy Director of Economic and Workforce. And thank you for inviting us here today to talk about this strategy. So I'll spend about 15 minutes giving you an overview of the economic development action plan, which is the city's 5 year strategy to address many of the economic opportunities and challenges that you will probably have talked about before here, including 5 goals and actions that the city intends to take. And then go out into a deeper dive into our Oakland business community, who they are, where they're located, and more importantly, how the city of Oakland and the planning and building department can partner to further support both retaining and expanding our business community here in Oakland. And then I believe we also have some time for question and answer. all right so with that um this is the overall economic development action plan i actually brought three hard copies which we just picked up from the printer last week if you or the public are interested there's also copies of the slides there if you'd like to follow along what we tried to do was develop a five-year vision for how we wanted to develop oakland's economy in a way that is equitable and that aligns with the cities cities existing policies Our role at EWD, primarily my role in the business development division, is to sustain, attract, and retain and grow businesses here in Oakland and increase their investment. But we also have many other roles that we play as part of the entire department. including building relationships with our business community, connecting businesses with the city and community resources to help them navigate Oakland so that they can thrive. We permit special events that help activate our communities, including film permits and our cannabis and mobile food vending and other special activities that are what make our community really vibrant. We also manage the Workforce Development Board, which many cities do not, mostly counties do that function. but I believe it really allows us to integrate our workforce and economic development work in one place. We also attract and administer grants and funding. We provide real property asset management services through licensing and leasing of city-owned property, as well as attract private investment, such as the partnership with Samuel Merritt University here downtown. We also work with our artists and our culturalists to strengthen the creative economy. And I can't read that last part. Here we go. You know what? I have it right here. I always come prepared. It's because of the captioning. I got it. I got it. Thank you. All right. So these were the guiding principles that helped us draft the plan. Thank you. I need to copy my own presentation. And so what we did is really tried to center this idea of advancing a just and equitable economy. being responsive, accountable, and transparent, using data informed by community experience, cultivating community partnerships. We know that community members generally have all the solutions that we need to make our communities thrive. And finally, aligning with our city policies and strategies. We embarked on a very inclusive engagement approach, which you can read all about, but we had many conversations over multiple years as we were developing the strategy as well as when we were serving the public. We also engaged many of our city council members, our local and civic leaders, neighborhood business associations. That's what we do in Oakland. We engage and we engage often. So these are the goals. What we did is we aligned the five strategic goals with the divisions in the Economic and Workforce Development Department in a way so that we could operationalize the work. Goal one, to attract and grow key sectors. We understand that there are industries here that have helped Oakland grow, and there are others that are continuing to grow, and so we want to lean into those as we think about how to grow Oakland's economy. Two is to sustain and support our businesses that are here. One of the major goals of the business development division is business retention and growth. And we know that that is a key strategy to grow a local economy. Three, to build Oakland's workforce. And that's our partnerships that we have with many community-based organizations that help to upskill, reskill, train, and support a workforce so that they can also thrive. Four, investing in places. This could be everything from designating a cultural district like we did here in the downtown in the Black Arts Movement Business District to really highlight a cultural destination to the partnership with Samuel Merritt, where we were able to create a land lease with Samuel Merritt for $100 million investment for 99 years to bring that university to downtown. And commercial corridors, where in our business corridors we help to engage and sustain businesses and address some of their concerns, help them navigate city process and permits so that they can sustain and grow their businesses in our neighborhoods and better serve the community and provide local jobs. And then last but not least, these are not in any sort of order of importance. I want to say that especially for my arts and culture community who wanted to go first. that we support oakland's artistic cultural and social activities it is such a part of what brings our communities together and makes oakland a really special place that people gravitate towards so i can go into more detail if you have questions specifically about what it looks like to actually attract and grow key sectors there's some more detail in the presentation around how we're going to pursue very sector-specific strategies building partnerships I will go into more detail on how we specifically sustain and support businesses, because I understand that was one of the questions that this commission asked when I was invited to speak before you. In terms of Oakland's workforce, I talked about the job training and employment there, but there are specific sectors that we want to engage in, which I included at the end of this presentation, which show you what some of the top sectors are, both where we've seen employment growth as well as where we're seeing continued growth and opportunity for Oakland residents to work. And then the invest in places really focuses again on that private sector development, working with businesses and developers to improve the business climate. Much of the work there actually implicates the planning and building division as well as our zoning partners and that we want to streamline many of our permit processes to make Oakland a very attractive place for investment. We also are working with local businesses and property owners and business associations to steward clean, safe, active places and spaces. What we heard over and over again from our community over the course of writing this strategy is that we needed to create the conditions for investment to thrive here, for us to be able to provide just table stakes. Safety and cleanliness was really important. We've also seen how our arts and cultural institutions have been central to our identity and our economy. We have many artists who are business owners here as well. And so really engaging and supporting our arts and culture community is important. We also have many cultural assets that the city owns or stewards. One of them that I might even point out is the Oakland Ice Center, for example. And if you watched the Olympics last night, hopefully you were able to cheer for Alice Liu, who gave a shout out to Oakland when she got her second place placement. So those are places that we really want to support. So moving on to who our businesses are. First of all, what we did is we took a look at our own data. So we looked at the city's business license data. and then analyzed it, and what we found was quite interesting. About 40% of businesses, of the 54,000 businesses in Oakland, are actually from residential landlords. So that gives us about 27,000 or so actual businesses that pay business license taxes to the city of Oakland. Of those, 94% earned or reported they earned less than $250,000 a year in revenue and employ less than five people. So 79% employ less than five people. So what that tells us is that our business community is a small business community. And then we took a look at some of the race data as we wanted to see who is doing business in the city of Oakland. So you can see that just like our population, our ownership is also incredibly racially diverse, which is why we have such a rich cross section of products and services, food and beverage, and why we're the number one city food destination for a second year in a row. I think it really speaks to the richness of the diversity of our community and the business community in particular. So you can see that we have Yeah, just a really good mix of different backgrounds. This is a map that we were able to pull together with that business license data that shows you where the business corridors are concentrated. So this is the top 15 business corridors in the city. And again, this is using 2023 business license data. So you can just sort of see by count and you know, this is going to also be, there'll be more businesses obviously on a long street like Broadway or like a street like international Boulevard, which runs about four miles, I believe east to west four or five miles. And these are the business sectors that are represented in that business license data. So real estate, rental and leasing, no surprise there with all the landlords and real estate operations. Oakland's second largest business sector is in the professional scientific and technical services sector. So that includes consulting firms, tech companies and management services. And within those, we see many that are advancing innovation in climate technology, artificial intelligence, and robotics, life sciences, and food production. Here we also see components of the creative economy, including media, architecture, design, and production businesses. So we see a pretty good mix in this sector here. Third, which should not be surprising, is also the construction sector, then retail, trade, and residential services as the top five. So that's just a snapshot of who the businesses are, where they operate, how much they make, what sectors they're in, what they do. I can talk for a couple of minutes about what EWD does to support businesses in Oakland, and then share a few opportunities for deeper exploration with planning and building. So we provide business technical assistance. We have a division of six people. I'm a developer, my colleague's a real estate broker, my other colleague runs a business, and then I have someone in the manufacturing and industrial sector, and then an expert in data. So between the six of us, we provide much of the service navigation and inquiries that we receive on a regular basis from the business community and the developer community who require assistance navigating all of the city departments. We're one of the front doors, so to speak, for business and for entrepreneurs and growingly for developers and real estate actors. We also run a facade and tenant improvement grant program. We have about $2.5 million in bond funds that we are deploying to support 100 or so small businesses to renovate their businesses so that they can provide a greater product or service in our neighborhoods. And that is through redevelopment funds. We also administer the City Council budgeted corridor safety and ambassador grants, and those operate in about seven commercial corridors throughout the city that we identified for being in high priority areas. So those are areas that had specific spikes in either crime or blight or other behavior that was negatively impacting our business corridors. And what they have done is really partnered with us and with MACRO and with other services to provide some of that on street level, what they call lay counseling, cleanliness services, door-to-door business engagement. And they really are a force multiplier for city staff and city services to get information out to the business community, either about our revolving loan fund, about 311. about who to call for what and when. Many questions that we get from our business community, we're able to answer in part by sharing information and having it distributed through our ambassadors. We also have a revolving loan fund. It's small, but it's still active. The Entertainment Zones is a new initiative or policy that Council Member Brown has then given to EWD to implement. And again, that is meant to activate our streets and try to bring foot traffic back to the city of Oakland. and specifically downtown and some of the other areas that are part of that policy. So we'll be administering that. And that entails partnering with business improvement districts, other cultural organizations, Um, there's the uptown stroll, for example, where they've asked us to come in and really build their capacity and support for having these monthly sort of 3rd, Thursday events that are family friendly. They're from 4 to 10 and it's really meant to again, encourage people to come out and spend time in 3rd spaces. Um, and start to rebuild our foot traffic and activity downtown. We also supply employer incentives through our Workforce Development Board. We have an on-the-job training program where employers are able to hire someone at 50% of cost, and we cover the other 50% for the first three months so that it's an incentive for folks to actually open a business here and to hire locally. We also offer apprenticeships. We also oversee our business improvement district programs. There are 11 in the city of Oakland, and so those are partnerships with these entities where they assess themselves from their property taxes in order to pay for additional services such as cleanliness, beautification, marketing, special events, festivals. If you live out in my neighborhood, there's the Oktoberfest, which is put on by the Laurel District Association. And then the city-owned real estate development and asset management function, that is yet another function of ours where we have about a thousand leases or more that we actually administer on behalf of the city of Oakland, including leasing spaces to community-based organizations to activate our parks, for example. And lastly, we also have the city resources that we share with our business communities, such as 311, so that they can report blight or illegal dumping and adopt a spot where we coordinate information and referral where neighbors who want to help the city of Oakland and partner with us to also do litter pickup and graffiti abatement. So those are the main services that we either advance through our department or that we collaborate with other agencies on. All right. This is the last slide. That's perfect. So these are some opportunities that came up from the discussions that we had with our business community. We heard loud and clear that businesses have cited lengthy, complex, and disjointed processes to obtain the necessary permits that they need to operate. And so permit reform and streamlining was a top priority of theirs. Zoning flexibility, that's another area where businesses cited some frustration in finding the right place to operate their business and want some alternatives or guidance from our planning and building department on where they can locate. They also cited again time and cost of the conditional use permit process and other processes. And then a request for more guidance and support so they want clear and early guidance particularly on fire building planning and zoning requirements so that they are not Then facing costly delays and even failed financing efforts as a result of long timelines for approvals With that I'm happy to answer your questions Thank you so much and please say hi to Tom for me Does anyone have any questions

Commissioner Randolph?

First of all, thank you for coming. I mean, this is exactly what I was hoping to get, kind of an update of what the city is doing, kind of the gaps and barriers that we're seeing. I know since I joined the commission almost like three plus years ago, I was very concerned around specifically the commercial vacancies we see around downtown and other parts of the city. I was happy to see I think East Mound and other parts of the city mentioned because there's a lot of retail or commercial vacancies amongst those corridors that are pretty depressed and not a lot of activity happening in some of those areas. And happy to see some of the data around the vacancies not just downtown but across the city and comparing us to other parts of the East Bay. One question I have is that the E-DEP identified zoning as a major barrier to economic activity. As you mentioned, businesses struggle to find sites where they are allowed to buy right, and there seems to be a heavy reliance still on COP, so Conditional Use Permits. I know that production retail combos, entertainment, logistics, micro fulfillment that you mentioned as potential growth areas, tech hybrid spaces still require and often times a CUP and don't fit into the traditional zoning categories like retail, office, industrial warehouse. I know that planning staff and the city council and the commission has done a lot of work changing some of the zoning around the city, specific with the approval of the downtown specific plan that took a long time, specifically around the retail, commercial units. But it sounds like there's still a lot of room to make improvements. So I guess some of the questions I have, what specific zoning provisions most frequently block businesses today? Did you do that analysis or did you get that feedback?

Well, first of all, the downtown Oakland specific plan, I think, did a really good job of addressing many of the concerns that we were hearing from the business community and brought in that flexibility. And so I've heard that now the strategy will be to implement some of that policy change. And so we're doing that in partnership with our planning and building colleagues and then to explore expanding that out into the rest of the city. So with that said, I think it will be, the devil's gonna be in the details when we actually start to implement some of the downtown Oakland specific and the Broadway Valdez changes as well. But the flexibility was a big one that we wanted. And to remove the conditional use permit process for certain uses was another big win. I did not hear about specific zoning issues outside of that though. So I wonder if you wanna answer that, because you've been having these conversations for years.

Laura Kaminski, strategic planning manager. So in addition, we did make, I think these changes, they just took effect in January, I believe. That was for the conditional use permit streamlining in other areas besides the downtown. So we're hoping that will also make things a lot easier. And a lot of what we're also trying to do, if you recall with that, is some of the things that normally maybe would have required a conditional use permit, we've created some performance standards so that something could still be approved essentially over the counter as long as they meet certain standards. And one of those was like the, if there's noise in certain things, they can do a noise study that wouldn't require a conditional use permit to do that. where previously they would have had to get a conditional use permit for like group assembly as an example. So we're trying to figure out innovative ways to address potential problems that normally would have been addressed with a conditional use permit and instead to say, okay, if you could meet these standards, then you're approved. And so those are other things we're looking at, trying to make things easier. And then in addition, the other thing right now is we're, as you know, we're working on the general plan update phase two. And part of what we're looking at for that is definitely what kind of economic development and working with economic development department, what type of businesses we wanna attract to the city and how can we make it as easy as possible. Where do we want those to go? So obviously, if we're getting some kind of R&D type of use that we want, then we should be able to permit that as a buy-write process as opposed to a CUP and making it harder. And so a lot of that will be, as we're doing the general plan, working a lot with economic development to try to figure out what kinds of industry and business we want to bring, where we want to bring it, and making it as easy as possible.

Yeah, I'm glad you said that because my other question was, what uses are candidates for by-right approval as part of the phase two? So that's good that you're already thinking about that. And then geographic impact, I know you mentioned that after the downtown specific plan was passed and is just getting implemented, there are potential other areas in the city for expansion or duplication of that. Have you identified which corridors or neighborhoods face the biggest zoning barriers in the city?

Well, I think that's actually a lot of what we just did. So that was what, um, it just actually, you know, went into effect in January. So I think that was, you know, that came to you all, the planning commission, I think that was in December maybe. And it, um, or might've been November, went to council in December and then took effect in January. So I think we did, that's what we try to do is replicate essentially what we did in the Brailleville does as well as downtown into the rest of the city. Wow.

And then how long do you take to review if any improvements have been made in those neighborhoods or corridors before you potentially make additional changes? How long does planning usually take? It took effect January. Do you take a year, two, five years to see if businesses ended up coming into those neighborhoods or if improvements were made, like vacancy goes down? Do you track that on a regular basis?

Yeah.

Yeah, actually, that's an excellent question. We created, through this process, we created ways to establish a baseline. So now we know the business count and where it's located and have it geocoded so that we can actually map where all of our businesses are. And we created these heat maps to show where the clusters are, including the number of employees, for example. We also collected 311 data to see where all of the calls were going. We also collected OPD crime data, specifically property crime, so that we could see of those neighborhoods that were highly impacted, at least we have a baseline. And then now we have our commercial corridor program where we're supporting 21 different neighborhoods in the city with the ambassador program, with all these different programs and services that I just mentioned. So at an annual basis, we'll be able to look at the data. And we know correlation is not causation, but it does give us at least a baseline so we can track, okay, so if we just invested $400,000 on International Boulevard for ambassadors, another half a million in facade and tenant improvement grants, and we are organizing the community and exploring a business improvement district and helping them get connected to services, what do the conditions look like now a year later, three years later, five years later? So we will be collecting that data and we will be bringing it to council at least on an annual basis.

Okay, perfect. Yeah, if we can maybe get that information as well. I know you don't have to come back to the commission necessarily, but we would love to maybe get an update periodically about how you're advancing in that. Thank you.

Yeah, thank you. Any other questions? Commissioner Ahrens.

Thank you for your presentation. I have a few questions about goal four, which was invest in places. And one of the goals is encouraging public or private real estate development on public property. And so I'm wondering how that dovetails with legal requirements around the Surplus Lands Act, and then also pieces of the housing element that prioritize public land for affordable housing.

Not that I'm going to provide much of a better response. So that's a big question that would typically be handled by our real estate department, which is part of EWDD, but they aren't here today, because that involves exclusive negotiating agreements and leasing and all of the state regulations around leasing we have to offer. And here's where I'm about to say something completely outside of my lane, so it may not be completely accurate. But that's why we don't want to speak to this too closely because it's not our expertise. There's some land that belongs to the city that we must make available for certain uses before we can allow other uses, for example. And we have to go through very specific state mandated processes that might control use or terms of agreements before we can engage in a development similar to the Samuel Merritt University to which Christy referred. So we can, at some point, if that becomes a question related to zoning changes you're seeing where you believe that there's some connection to also how the city is handling the land that we own, happy to invite real estate to come and answer those kinds of questions if that makes sense. Is that adequate for right now, helpful for right now, or do you have more specifics that we might be able to respond to?

Yes, I think that's helpful for right now. I think this folds in well probably to the general plan phase two updates around the land use element and public land. So if we could come back to it at some point, that would be great. I do have another follow-up question just to put out there for when we can get folks from the real estate department here. But I'm wondering how often the city grants exemptions to the general policy that I believe was adopted at the end of 2014 that city land should be leased and not sold so wanting to prioritize ground leasing which it sounds like the Samuel Merritt project is which is great but just wanting to know how many times the city has granted exemptions to that I don't know that response either

I will invite, I'll seek, I'll talk to Brendan Moriarty, who is our real estate director, to see when there might be a good time for him to come to this meeting and answer questions like that.

Great, thank you. And then tangential, but maybe hopefully you can... answer this is on the business services slide one of the last bullet points was about city owned real estate development and leasing those properties is there a public map of properties that are leased or I'm just curious about like small businesses that are maybe leasing from city properties and and what that program is like and if there's more information about that

Yeah, I could definitely follow up with Brendan who oversees that part of the portfolio. Yeah. Thank you. And why they're not here is the request from Planning Commission was to better understand what the City of Oakland is doing to support the business community, which is totally in my lane.

Okay. yes thank you i know i went deep into the public lands piece um so thank you and thanks for letting me share my future questions um i do have one final question which is um around business license revenue and i just um i had heard that there were some challenges in connecting and collecting business license revenue for a few years and i'm wondering if we're sort of back on track to make sure that the city is able to support businesses in paying that and so that our city revenue is strong from the business license.

Sure, and the business license revenue collection is done by the revenue department, and they were kind enough to share their data with us so that we could do our analysis. I forgot to mention that vacancies are another way that we measure a business corridor's success or if they're struggling. And so we're using that data as well. So combined, we're able to make some conclusions about where we need to invest our resources. But in terms of the collections efforts, I feel like that is a question for revenue. And we work closely with them. So happy to either share more information with you, Catherine, or you let me know the best way to get you that information. um i believe there was also a council report not too long ago that was released that addresses this question as well as has a strategy for how the city plans to either collect or otherwise determine how best to support the collection of those revenues thank you i can look at the report if someone sends it to me those are all my questions thank you sure sorry vice chair sandoval

Thank you. And thank you for your presentation. Thank you for coming. Really exciting to see some of the work you've been doing, all the incredible outreach. And look forward to seeing how this five-year plan starts to get implemented. You mentioned in your presentation the plan also references corridor improvements and place-based initiatives. And I'm just wondering if you could speak a little bit to how those commercial corridors get prioritized and how you work in tandem with planning and the There are the certain planning efforts that are underway or have recently just passed.

That's a great question. Thank you. So the first thing that we looked at was the Oaks equity indicators report, and we looked at in the larger version of the report, which you should have access to after this. I'll send you the link. We looked at the racial equity indicators that the Department of Race and Equity developed as part of our racial equity policy. And we used those metrics to then look at where in our city we had inequities and where we could close those gaps. And so when we made our investments, let's take the ambassador program as an example. We looked at those areas of the city where there was some capacity to partner with the city on an economic development project, such as an ambassador program. We aligned our staff culturally and linguistically to staff those efforts and help to develop an ongoing dialogue and partnership with the city and are now in 21 corridors supporting efforts with organizations that either just have a group of residents and property owners or business owners that have concerns about general blight or encampments or how to attract business to their neighborhoods or all the way through to the Downtown Business Improvement District and the North Lake Partnership, which is a group of private property owners that want to invest additional funds to support the reactivation and the revitalization of downtown. So that is how we are choosing what neighborhoods to work in. It's largely need driven by the equity indicators and our capacity and the community capacity. And then lastly, what programs we have available in terms of grants, which there's only a couple of programs that we actually run that come with funding to support those initiatives. So that's the entertainment zones, the corridor safety ambassadors, the facade and tenant improvement grants, and then our business and improvement district formation and feasibility funds, where we actually employ consultants to come in and help continue to build that capacity to potentially form business improvement districts, which really do help to create a longer, more sustainable way for communities to continue to revitalize. Hagenberger Corridor is one of those examples where we've been working there for the last several years, and we have some momentum, and it may become a business improvement district, the first one in East Oakland, actually, if we're successful, when we're successful.

Wonderful. Thank you. And can you just speak a little bit to how you coordinate with planning on, say, the specific plan? Yeah.

So we've been attending the general plan update meetings with our colleagues. They've done a great job of continuing to keep us engaged. We look at the different... We're reviewing the elements right now. And so specifically with the land use... and transportation element we're in the conversation with our colleagues letting them know what we know from the business community what sort of sectors we want to attract and having the conversation about where in the city we should locate them but i also want to ask my colleague laura to see if there's anything more she wants to add about that process if you want to add anything

Yeah, we actually, we sit right next to each other as well. So that's actually very helpful. I can hear over the cubicle wall, like, Shawnee saying something that's a problem. And I'm like, oh, that, you know, is that something we can try to address? So that actually is really helpful. But we do meet, you know, quite regularly. And, you know, so definitely do the general plan process, all, you know, specific plans. We've always had economic development very much involved there. BUT JUST AS WE'RE DOING DIFFERENT ZONING CHANGES, SO CERTAINLY WHEN WE'RE DOING THE BROADWAY VALIDATES CHANGES THAT ACTUALLY CAME FROM ECONOMIC DEVELOPMENT, TALKING TO US AND SAYING, YOU KNOW, BUSINESSES ARE HAVING PROBLEMS AND WE'VE BEEN MEETING WITH THEM AND THESE ARE THE ISSUES AND SO WE WOULD LIKE YOU TO LOOK AT MAKING THESE CHANGES. SO THAT WAS REALLY THE START OF WHY WE MADE THE CHANGES TO THE ZONING BECAUSE OF WHAT WE HEARD FROM ECONOMIC DEVELOPMENT STAFF DIRECTLY. So I think we have a really good working relationship and try to coordinate because they're meeting more directly with the businesses and so forth and hearing things that we are not hearing.

That's great. Thank you both.

Anyone else?

Nope. Great.

I don't have any questions, but thank you again for coming today. I really appreciate it.

Thank you for having me. And I encourage you to read the report. At the end of the report, there is a breakdown of all of the major challenges that our community shared with us, and I think that could maybe spark more questions for you.

Thank you. Thank you. Okay, so do we, I don't think we have any committee reports. I don't think any committees have met.

No committee reports.

Any commission matters? Anyone have anything? Commissioner Ahrens?

Thank you. So I do want to follow. I have a few items. So one item is something that I've been asking for information on for a bit of time. And we did get an update from staff in November. So this is regarding rent data and deed restricted units. I and Commissioner Randolph and Commissioner Lee are interested in finding out more information about this. Bringing it back up under Commission Matters, wanting to see if staff have had the ability to work with HCD yet to collect the data. I will also point out that I have been asking for this information since June of last year, and it is now middle of February, and I would like to move forward on this item. Commissioner Randolph had asked for an update from our business community, and we just got to hear that today, and he asked for that in the fall. So I'm just trying to move this item forward. And hope that we can get it on the agenda soon to discuss.

I will bring that back to the deputy director and ask for a response to bring back to this body. Thank you.

Commissioner, are you done?

I have two more items. Go ahead. Okay, thank you. Item is about the impact fees. I know that this item, which is not just in the planning code, also relates to the building code. Really big report went to the city council last night. I'm particularly interested in having the item come to the commission just to hear about the portable housing impact fees section. I'm hoping that that can be an item that we could hear here as well, just about the affordable housing impact fees. Then my third item is wanting to know when the annual progress report will be coming to the planning commission. I think there's a deadline around April 1st from the state and I know that we often hear the item later than that so just want to know when that will be coming and a follow-up to that is that I had requested information as have other commissioners about looking into whether or not deed restrict non deed restricted units could be counted towards Rena and so I'm hoping that that

piece of information that we've asked for can also be included when the annual progress report comes thank you i will bring three of your questions are geared towards strategic planning and laura just left but i think she would just take those under advisement and come back to you with the response but i will bring those questions back to her you also asked about the impact fees which is a slightly separate topic I just don't know who in strategic planning brought that forward. So I will find out who and see if they are available to bring that report here or the results of any city council actions back to the planning commission. Thank you.

Commissioner Randolph.

Yeah, that's the question. Maybe a potential future informational item. No rush. I was very excited to see that BART announced that they're moving forward, I think, with phase one of the Mandela Station project around the BART station. I know there's a lot of other projects that are already approved or hopefully moving forward. So I was just wondering if we can reach out to BART to potentially maybe get a presentation sometime later this year about a progress report with those projects and the projects that are around the area that aren't necessarily directly related to BART, but I know there's a lot of stuff hopefully happening soon around the West Oakland BART station.

I will take that back to my leadership and see how we can respond to you on that and if we can bring BART here to make an informational presentation.

Great, thank you.

Okay. Anyone else? Okay, thank you. City Attorney's report.

Good afternoon, no city attorney's report.

Thank you, Brian. All right, that takes us to open forum. This is an item for members of the public to speak on issues not on the agenda. Hanifa, how many cards do we have today?

We have five speakers. I will call three at a time. So we have Layla Goh, Ellen Kohler, E. Jack Gearson. You may come up to the mic. Please state your full name for the record, and you have two minutes.

Hi, good afternoon. I'm Layla Goff. I've been a resident of Auburn Avenue for 26 years. I'm here to set the table today for what comments you're going to hear. We really support housing, and we recognize that the property that we're talking about is a valuable asset to the city of Oakland, and that it needs to be developed. however we've been listening closely to city staff over the last few weeks regarding the general plan we heard director gilchrist speak about the importance of thoughtful development for all neighborhoods development that respects character and a sense of place while building a land use framework for the entire city that's why we keep coming back before you we want to ensure that the developer stays within the guidelines of a fifty five foot high building with appropriate setbacks and step-ups. The developer has filed an application. The zoning number is ZW2502934. They are in negotiations with city staff. When this project eventually comes to you for a decision, we urge you to look with a critical eye toward public health and safety. Specifically, we're looking for rigorous studies on traffic safety on the impact of shade from such a massive building on current residents and seismic and fire risks. And we hope that those studies will be addressed. And my neighbors are going to explain why those items are so very important to us. Thank you.

Good afternoon. My name is Ellen Kohler. I'm 84 years old and have lived in the neighborhood for 15 years. I'm here to express grave concerns regarding the 6230 Claremont Avenue proposal. As currently planned, this project places our most vulnerable residents, including myself, directly into a known high-injury corridor. This stretch of Claremont is already lethal. We are not talking about theoretical risks. We are talking about a pattern of fatalities. This month, 72-year-old Billy Grant was killed just a block from this site. Only seven months ago, Roderick Nared was killed at Claremont and the Uplands. According to the city's own data, seniors are twice as likely to die in these crashes. Adding hundreds of residents to this gauntlet without a plan is a recipe for tragedy. The current plan lacks sufficient parking for caregivers and visitors, which will only increase traffic chaos. Before approval, I urge the Commission and the Oakland DOT to require a comprehensive traffic study of the Claremont College intersection. physical speed mitigation to slow down freeway bound traffic, and quick build safety measures like bulb outs and high visibility crossings. We must prioritize vision zero goals now before we add another name to the list of fatalities. Please require a traffic study. Thank you very much.

Thank you.

Appreciate your time.

Hello, commissioners. I'm Jack Gerson. I've lived on Auburn Avenue for 29 years, directly over the backyard fence from 6230 Claremont. I support a senior care facility at this location, but I'm afraid the scale of the proposed facility presents significant risks to public health and safety. Today I'm going to speak to request studies in one such area, a systematic shadow and sunlight study comparing the proposed building against the zone-compliant building, and comprehensive health impact assessments. The developers claim that they've done a shadow study that shows that their 85-foot building with a 15-foot setback emits the same amount of light as a zone-compliant building, which they say can be 55 feet high with a 5-foot setback. But their study is, at best, inadequate. First, their study relies on insufficient data. We need to look at many more solar positions, which means more dates throughout the year, more times during the day. Second, they didn't really compare their proposal to a zone-compliant building. Code requires a 55-foot building to step back one foot for every foot above 30 feet in residential neighborhood-like hours. That's a 45-degree sloping plane upwards from 30 feet to the roof 55 feet. If you look at that building, any middle school math student could tell you that the 85-foot wall will block sufficiently more light of afternoon sunlight towards the east than will a 55-foot building sloping upwards from 30 feet. Second, on the west side of the site, across Claremont Avenue, there's a frequently used public space right in front of Safeway. And there's no way that an 85-foot building will let in as much light as a 55-foot building.

I'm sorry, your time is up. You can complete your last statement, please. Thank you.

Okay. So please do ensure further reviews, including systematic comparison... against the zone-compliant building and comprehensive health assessments of respiratory hazards, heightened severity of seasonal affective disorder, and chronic disease risks, because recent studies show an increased correlation with both coronary disease and various internal forms of cancer. Thank you very much.

Thank you. All right, so we have two speakers left, Victoria Griffith and Javier Arizmendi. Please state your full name for the record, and you have two minutes. Thank you.

OK, thanks. Hi, my name is Victoria Griffith. I've lived on Florio Street for 25 years, just a few feet from the proposed project at Claremont. As currently designed, the Ellis plan would place a 90-foot wall directly over my fence. This massive building will fundamentally alter my life and the lives of my neighbors in a few critical ways. this ninety-foot wall will block my sunlight after midday for most of the year stripping my home of warmth and natural light while obstructing vital airflow this will have a direct adverse effect on my physical and psychological well-being In addition, the proposed building's units will have a direct line of sight into my living space, eliminating all privacy. At night, electric light from the building will shine into my house, further adversely affecting my health and well-being. Even worse, the plan places a large industrial transformer just a few feet from my house, creating incessant noise and potential exposure to electrical magnetic radiation. It doesn't have to be this way. The Ellis Company could create a design that protects our health and safety and fits our residential scale. They should step the building back on the Florio side to match our one and two story houses. Shift the height toward Claremont where it's a commercial corridor. relocate the transformer away from residential property lines to protect our health. This design dominates and threatens the health and safety of the neighborhood. It sends a clear message that the developer is not interested in being part of the community and protecting the welfare of the seniors who live there. I urge the commission to send Ellis back to the drawing board to make a plan that respects the scale of our neighborhood and the health and well-being of the people who live there, both in the neighborhood. I'm sorry, your time is up. Please complete your last statement. Okay. That they respect the well-being of the people who live here, both in the neighborhood and in the senior facility itself. Thanks. Thank you.

Hello, my name is Javier Arizmendi. I'm an architect. I want to also speak with regards to 6230 Claremont. We're all in favor of a project that actually can be developed and that fits into the neighborhood, one that actually ensures the safety and health of the community as well. I want to talk about fire safety. This site is only less than a mile from the edge of the area that was burned during the 1991 Oakland fire. We are all very concerned about fire in this particular location. We're also concerned because the drawings that have been submitted so far to the planning department do not seem to show a complete understanding of fire codes. The height of this building is measured incorrectly to 75 feet to the last occupiable floor. it needs to be measured to the lowest level of fire department vehicle access which is not the case in addition it shows the same amount of opening window and balcony on two property lines that are 15 feet away and 10 feet away respectively Those are actually limited in terms of its type of construction and the amount of opening by fire code. This is not reflected in the plans either. We would like to propose that along its longest property line, which is against the residential neighborhood to the east, we introduce, this is 300 feet long, We introduce or ask for a full access for fire truck in order to protect the life and safety of current residents and future residents. Fire codes are not negotiable. We would like to make sure that we have your support in making sure that all fire safety codes and best practices are ensured for this behemoth of a development.

He's our final speaker. Okay. Catherine, do we have any updates on this project?

No, we do not. The applicant, there is a submittal on file. However, they have not made it through intake yet. So we don't have a case that we're processing. So I heard the word negotiation. And just to be really clear, the city is not negotiating anything and we don't negotiate applications. We review applications and make recommendations or decisions based on whatever law applies. And there is nothing to review or make a decision regarding at this time because we do not have an application yet. We only have a submittal, if that makes sense.

Have they filed an SB 330 preliminary application?

I can't remember off the top of my head. Okay.

So they're within their 180 days before they have to... Oh, the pre-app. Right, right, right.

So they may have, but again, we have not reviewed anything yet because nothing has been successfully taken in yet. Right. Understood. Okay. Thank you.

Commissioner Randolph?

May I ask a clarifying question as well about process? So what is the role of the commission at this point? Because I know we don't get involved until the application is in front of us. Is that correct? I know that we're being asked to do a lot of things, but I don't think we get involved until the item is in front of us, correct?

Right. If there's a report in front of you for a regulated item, you consider the report and the recommendation in front of you. And you don't have a report or a recommendation. Again, we don't have an application that we are processing yet. I know it's complicated for me. I won't tell you how many years I've been at the city, but longer than some of you have been on this planet, I bet. So imagine in the olden days someone would come in with a giant box of documents and say, I'd like to submit my application. And so someone has come in with that giant box. It comes through a digital portal now. However, we've reviewed that and it's not ready to submit and put into a manila folder that says city of Oakland processing now. So we are not considering any application at this time. We are aware they're trying to submit. We have seen some things, but we're not reviewing or analyzing any of the documents that the applicant is submitting yet. We're simply trying to determine if they have enough and the correct materials to start our review process. So we don't know what will come before you, if anything. We just don't know at this time. We have to wait until we have an application that I can assign staff to review. Is that helpful? Yes.

And through the chair, it's actually not an agendized item, so you can't take any formal action in response other than just listen to the speakers.

And then the other question, would a project like this also come to the design review committee of the commission, or what would

I can't answer that because we don't connect. Our role in development, this project, because of its size, will probably come to my division. I'm the manager for the development planning division. We're regulators. So we analyze projects against regulations, both state regulations that the city is mandated to comply with, as well as our local regulations, the zoning regulations, subdivision regulations. We haven't conducted any of that analysis yet. Part of that analysis tells us where an application goes for decision. So one option is it might be an application once we review it that is subject to ministerial review and that would be a decision at the city staff level and the public would be noticed about that and could appeal that decision. Or it may be that the kind of project that comes in once we conduct analysis, we determine that it's subject to discretionary review and that is this body here, the Planning Commission. Some projects, as you know, you've made recommendations for. They go to city council for one reason or another. An example would be if a project is subject to a development agreement, that project, the entire project with the proposed development agreement would go to city council. And really, that's more than what you asked for. What you asked is, are you going to review this case? We don't know yet. We won't know until it comes in. And we may not even know on day one or two when it comes in. So we do our analysis first. And then we determine what the required CEQA findings or California Environmental Quality Act findings might be. We determine who would make the decision. And it sometimes takes us some time to get there. You've seen many cases where we've been looking at a case. Once it comes in, an applicant is paid. We have a sense of what the permits are that the applicant is applying for. and yet you don't take a look at that case for sometimes a year or two years, as you heard fairly recently, there was a lot of consternation about the CCA campus because it took so long to get in front of you, because that analysis took a long time, both to get to the point of having a recommendation, but even fully, maybe not in that case, but in many cases, fully understanding who will be making the decision.

Yeah, knowing that we don't have an application about this specific project in front of us or even in front of you, in general, I know there was concern about fire codes and safety. That's also part of the review and regulations of any project that's being reviewed. Is that correct?

So yes, by the end of the day, by the time an applicant can start construction, which is some, by the time an applicant can start construction, a project will have had to been reviewed, not just for land use regulations, against land use regulations. But once a project is entitled, meaning they're approved against the applicable land use regulations, then there will be the application of building code through the building permit process. authorized to speak to the building code, but fire code and building code are usually, a project is analyzed against those in the building permit process, which happens after the land use entitlement.

Okay, thank you.

Okay. Thank you, Catherine. Okay. So we do not have anything on the consent calendar and we do not have a public hearing today. So that'll take us to our appeal and item number two.

Yes, this is item number two. And just for clarification, item number one was your info item. We have to number them now because of the way our website, because we rely on our website. So just to reduce any confusion, this is item number two, but it is your first hearing. The site is 966 81st Avenue. This is an appeal of a determination that the property cannot continue to be used for general outdoor storage industrial activity as a legal non-conforming use based on discontinuance. And the case planner for this is Neil Gray. He'll be making a presentation. And the appellant is here as well to make a presentation, I believe. Yes. Thank you.

Good afternoon, commissioners. The applicant is appealing a staff determination.

I'm sorry, can you please state your full name for the record?

Neil Gray. The applicant is appealing a staff determination that resumption of general outdoor storage industrial activities at 966 81st Avenue requires a conditional use permit. They believe it should be able to continue as a legal non-conforming activity. 966 81st Avenue is industrially zoned and adjacent to residential zones and across the street from a school and shares a property line with an affordable housing development. According to information provided by the applicant, the property has been used for industrial purposes, including trucking and general outdoor storage activities since at least 1963. The last use of the property ended in November of 2024 when AJW Construction ended its general outdoor storage activities. Since 2014, the planning code has required a conditional use permit for truck-intensive activities such as general outdoor storage. If it's within 600 feet of a residential zone, then you would have to make special findings to get your CUP approved. Staff agrees with the applicant that the activity was legal nonconforming prior to ajw construction terminating its lease but the planning code states that truck intensive activities cannot continue as a legal nonconforming use if there is a purposeful abandonment of the operation for any length of time This tight restriction on the length of an activity can remain legal nonconforming after ceasing operation was adopted by the city council because excuse me, truck intensive industrial activities can pose major negative impacts, especially when they're near residential neighborhoods. The applicant concedes that the site has not been used since AJW construction left in 2024. So the only issue really is whether general outdoor storage was purposefully abandoned. Staff's determination states that there was a purposeful abandonment because the owner took affirmative steps inconsistent with the continuation of outdoor storage, including clearing the site, marketing it without reference to outdoor storage, and seeking zoning clearances for other uses. Colony activity purposefully abandoned would support the intent of the ordinance.

OK.

In 2023 the City Council reduced the 90 days standard for truck intensive activities such as outdoor storage to lose legal non-conforming status to zero days because they pose significant health issues especially when they're near residential neighborhoods. The zero day abandonment rule was specifically designed to prevent placeholder claims such as proposed here that would indefinitely preserve these activities while they are not operating. allowing a placeholder claim would let a truck intensive activity preserve its legal non-conforming status after banning a site for longer than the prior even three months standard and possibly even longer than the one-year general standard in the Planning Code It's important to remember that losing legal nonconforming status of the activity does not necessarily mean that it cannot be reestablished at the site. The activity would need to comply with the requirements of the CIX-2 zone and the planning code, including the granting of a conditional use permit and meeting performance standards. Furthermore, there are many activities in the CIX-2 zone that could operate on the lot by right, as described in the staff report. Thank you.

Thank you, Neil. I think we should hear from the appellant before, okay, yeah. Come on up.

Hi, I'm Neil Johnson. I'm the owner of the property at, in question here, and I respectfully request that you reverse staff's conclusion that I abandon the outdoor storage use at the site. Thanks, counsel.

Good afternoon, Madam Chair, members of the Commission. My name is Annie Mudge. I'm a partner at Cox, Kessel & Nicholson in San Francisco. I'm a land use lawyer and I'm representing Mr. Johnson here today. I do have a PowerPoint and here it comes. And so do I, I get to Move the slides. Oh, do you advance or? Okay, okay. Okay. And so, okay. So here we go. Who is the appellant and what is on appeal today? Mr. Johnson is the appellant. He owns this property, 1.7 acres of industrial zone property, 966 81st Avenue. We are appealing staff's determination that Mr. Johnson, quote, purposefully abandoned the general outdoor storage use at this site. What is a determination? Perhaps you know this already, but a determination is a formal finding first by planning staff applying the planning code to a particular property. We applied for a determination here. Staff made a determination. That determination is appealable to this body, to the Planning Commission, and then appealable on to City Council, and if necessary, on to Superior Court. What is at stake here? What's at stake is Mr. Johnson has been unable to release this property. The economic climate has been poor in Oakland. It's been vacant for some time. He's been trying to release it. I think, frankly, what is happening is that the staff position that a CUP is necessary is making people walk away. No one wants to wait for a year and spend a lot of money to use a site for general altar storage. That's simply not a tenable market position. Our position, and I'm going to explain why, is that the use is grandfathered as a legal non-conforming use and no CUP is necessary because Mr. Johnson has not purposefully abandoned the use. So we've got at stake a vacant lot, we've got a loss of economic activity, we've got a loss of tax dollars, and we've got, in my opinion, a failure to fairly uniformly and reasonably apply the planning code. So what we're asking you today is to find that general outdoor storage continues to be a legal nonconforming use. and that Mr. Johnson has not abandoned that use. He has not walked away from that use. And there's a couple of principles that apply here. First, discontinuance of the use, just cessation, is not enough. That's very clear. Cessation must be based on purposeful abandonment. Those words come directly out of the code, based on purposeful abandonment. We're going to talk about what that means. That means that the city has to show that Mr. Johnson had an intent to walk away from the property for general outdoor storage uses. And that simply is not supported by the facts or the law. We're going to talk about the reasons that staff says that. I'm going to tell you why I think they lack merit. So this body has the authority and, in fact, the responsibility to reach its own conclusions with respect to the law and the facts. And we're asking you to do that today. Quickly, site background, property has been used for industrial uses for the past 80 years. It's located here on this aerial. I think a lot of this is in your staff report, so I'm not going to spend much time on these slides. As you see, it fronts on 81st Avenue. It's parallel with Hagenberger. It's just a few blocks from San Leandro Avenue where the BART runs through. It is bordered by residentially zoned property, as Mr. Gray has said. It is also directly adjacent to the west and south with industrially zoned land, and it has been zoned for industrial use for many, many years. The general plan designation is business mix. This, again, is in your list. staff report that is suitable for a wide variety of business and related commercial and industrial establishments. It is zoned CIX2, which is also appropriate for a wide variety of commercial and industrial establishments. So 80 years of industrial and storage uses. These aerials are in your staff report, just showing you from 1936. I love aerial photographs. 1936 aerial of this site and a 2016 aerial of this site showing the property in its developed state. So since 2000, I think we should focus on the last, it's amazing, but a quarter century of use between 2000 and 2024. It was used for general outdoor storage by a company called AJW Construction. They stored machinery and equipment, cement trucks and backhoes and pickup trucks and things like that. They dispatched construction crews out to fix pavements and walls and things like that, mainly on behalf of PG&E. They were a PG&E vendor, and they kept their equipment there. It's a fairly low truck-intensive use. It's not like a freight forwarding where you've got containers and large trucks coming in and out. So it's a fairly low truck use. So, how did it become non-conforming, even though it has been legally there for many years? As Mr. Gray said, at one point, the city adopted a restriction that if you wanted to establish a new general outdoor storage use, within 300 feet of a residentially zoned boundary, you had to get a use permit. In 2023, that 300 feet was extended to 600 feet. So as long as the use was not abandoned, you don't need a use permit. But now the city staff has taken the position, incorrectly in our view, that the use was abandoned. So here's a little timeline of what happened. I think we've gone over this generally, right? AJW used the site from 2000. There was a sale and a lease back, which is really not relevant here, but I'm just throwing that in there for context and background. In the beginning of 2024, so in January of 2024, AJW told Mr. Johnson, hey, we're going to vacate. We're going to terminate our lease. He gave him a year's notice, which is a pretty long time. But he said, we're going to vacate at the end of 2024. So what did Mr. Johnson do? He immediately hired Collier's. to try to find a new tenant for the site. Colliers, very respected commercial broker. So he did not wait. Immediately upon being notified of this, what, February, January of, January of 2024, immediately starts marketing the site for reuse. As you see, it's a little blurry, but I think it's in your materials, at the bottom of the site, of the marketing flyer there, Colliers has said that it's zoned CIX2, which is accurate. Well, why has it remained vacant all this time? Well, you know, you can probably ask Mr. Johnson better than I know, but the market's poor. Oakland's a tough place to do business. Vacancy rates are high. But I got to tell you, one of the real reasons that the property is vacant is that staff has told people that they need a use permit before they can put anything on there. And people are not going to sit around and wait for that before they're going to reestablish a storage use on that site. So that's been a big impediment. As this became to be a problem, we understood this to be a problem, Mr. Johnson applied for a determination saying, hey, wait a minute, I did not abandon the general outdoor storage use on this site. I did not walk away from it. I've been trying to reuse this site for a CIX2 allowable use since January of 2024. I've got no takers. I have not abandoned the site. Well, staff came back and said, no, we think you have abandoned the site, and a CUP is now required to recommence the use. We applied for a determination in June of 2025. Staff came back with the determination in September of 2025. We promptly filed an appeal. Here we are months later, finally getting this appeal to you. So we just think staff got this one wrong. We think they got it wrong on the facts. We think they got it wrong on the law. I'm going to explain to you why I think that. So under Oakland's code, a legal nonconforming use cannot expire just based on cessation of operations, regardless of the length. if it's not, quote, based on purposeful abandonment. And what the case law has said is that the city has got to show intent where your code uses those words Based on purposeful abandonment, showing of purpose, you have to show the intent of the landowner. They walked away from this, intending never to return. And that's just simply not what happened here. I'm going to jet ski through these. I'm just pulling up the relevant code sections for you. This is where your code says a non-conforming use, meaning that it was legal before the zone change, which is the case here. may thereafter be continued and maintained indefinitely, and the rights to such use shall run with the land, except as otherwise specified in a non-conforming use." And that except as otherwise specified is this purposeful abandonment requirement. And so that language is here. This is where a legal non-conforming use can expire. based on a discontinuation of the use, quote, based on purposeful abandonment. Okay, let's turn to what that means. What does it mean? What is purposeful abandonment? The code doesn't define it. So we have to look at other sources to interpret the meaning of those words. And generally, the first place you look towards is, what is the plain meaning of those words? So Black's Law Dictionary, basically the same definitions as you find in Webster's. Purposeful, intentional, by design, consciously, knowingly. Abandonment, the giving up a thing, of a thing absolutely. with vacating a property with no intention of returning. What has the California Supreme Court said about abandonment? There's a California Supreme Court case about a quarry owner that they alleged had purposely abandoned. The court said no. The facts are different in that case. I'm not citing that case to you for similarity of facts, but I am bringing it to your attention to show you what the standard is, that cessation of use alone does not constitute abandonment. The city has got to show that Mr. Johnson intended to walk away, never to return. What has the city itself said about this language, purposeful abandonment, in its own code? In 2025, a landowner in a very similar position came to the city and asked for a determination. This was a property at 727 Kennedy. It had been an industrial warehouse. Very, very similar facts to here. It had been used for industrial warehousing purposes. At the time that tenant left, it was a cannabis operation. The cannabis operation left the site, left it vacant, but just as in this case, the owner there promptly hired JLL, another very reputable commercial broker, to promptly and actively market the property. On those facts, city staff found that the owner there had not purposefully abandoned the property because they had actively and promptly marketed the site for reuse. So here are some, this is a cut and paste from the determination itself. So here we go. In the spring and summer of 2024, Purple Oaks, they were the cannabis folks, terminated their lease at the project site, while JLL Commercial Real Estate, the broker, promptly proceeded to actively market the project site as available industrial warehouse space. Then in the fall, the owner wanted to sell the property. And prior to closing, which would be a responsible thing to do, they went to the city to make sure that no CUP would be required. And the city said, nope, no CUP is required. you guys were promptly and actively marketing your site for reuse, that's not abandonment. That is the proper outcome. The city got it right in this one, based on the language of the planning code. So here, this is no different than the 727 Kennedy. Mr. Johnson took multiple proactive steps to maintain the site for general outdoor storage. He has not abandoned the site. Now, what does staff say when we say, hey, wait a minute, what happened at 727 Kennedy? Well, staff has a couple of reasons why they think it's distinguishable, and I'm going to explain to you why I think they're wrong. Staff first says, at 727 Kennedy, the structures and improvements remained after the tenant vacated. Here, owner removed all the buildings, improvements, and structures. This is factually untrue. It is not true. The owner has not removed its structures and improvements. They have maintained on the site improvements and fixtures and structures that are suitable for outdoor storage that remain immediately available for reuse as outdoor storage. There's a 12-foot perimeter wall. There's a mechanized security gate. There's a building with bathrooms. There's paving. All that stuff remains. What I think staff was referring to is when AJW left the site, they took their machinery and their equipment with them. When you have a tenant who leaves your property, they take their belongings with them. That doesn't mean that you've abandoned your rights as a landlord. Staff also says that because a third-party trucking company came to the city and asked for, if I may have a few more minutes.

You may complete your last statement. Thank you.

Yeah, I think you can keep going, Annie. Okay, I appreciate that. Just wrap it up. I will wrap it up. I only have, like, five more slides. I appreciate that courtesy. So a third party came in, a trucking company came in and said, hey, we might like to use this site for trucking. Staff said, no, that's not general outdoor storage. That's trucking. That requires a use permit. Staff says, because this third party trucking company came in, that means that Mr. Johnson abandoned his rights. Well, that doesn't make any sense either, right? Mr. Johnson has no control over whether a third party comes in and makes inquiry to the city, and that's exactly what happened here. Some third party came in and said, hey, we want to use it for X, and the city said no. That does not mean that Mr. Johnson gave up the use for general outdoor storage. Okay, last reason that staff distinguishes 727 is that they say that Mr. Johnson's marketing materials are evidence that he abandoned the site because colliers failed to specify that the site could only be used for general outdoor storage and only said that the site was zoned CIX2. What? I don't see how a marketing flyer can be attributed to the owner's intent, whether to use the site or not. And the marketing flyer was correct. It is zoned CIX2, for which general outdoor storage is one of the uses. So in no world that I'm aware of are marketing flyers expected to or required to list nonconforming uses. I've got one quick additional point. There was an argument made in the determination itself, which was not raised in the staff report. So perhaps it's being abandoned. I don't know. But staff has taken the position that what it really meant by zero days based on purposeful abandonment is that in order to not lose your rights, the vacancy had to be only temporary and incidental, like for holidays or repairs. Well, that language doesn't appear anywhere in the code. And it's totally inconsistent with the interpretation of 727 Kennedy, which was vacant for months due to market conditions, not based on holidays are repaired. And so the regulated public is entitled to rely on the language in the code as written, not as staff may have intended the code to be written. So in summary, the staff's arguments here that Mr. Johnson abandoned the use are not supported by the facts or the law. We respectfully request that you find that Mr. Johnson has not abandoned general outdoor storage use. There's been no intent to abandon. Mere cessation of use is not enough. And the city must apply its code uniformly and fairly. I'm here to answer any questions.

Thank you. So does anyone want to start with questions? Vice Chair Sandoval.

I don't want to start with a question just yet. But just for transparency, I want to note that I did meet with the applicant or the appellant, sorry, before this item was even posted. And I just want to put that out there for the record and for transparency's sake. That would obviously not influence my decision, but just want to put that out there.

Thank you for that. I have a bunch of questions I could, okay, all right. Okay, so let's see. So Neil, so can we talk about the zoning clearances for a moment? That seems to be one of the reasons that I guess the staff believes that it sort of spoke to the purposeful abandonment. And I'm trying to kind of make sense of the timing of that. And so from the staff report, it looks like there were, you cite three Zoning clearances to which date back to 2023 which would be before the appellant even got notice of the lease termination and it was certainly well before the Collier's materials so Get so explain to me why why those are relevant and maybe the appellant can explain separately what those zoning clearances were for and if they were for sort of Sort of additional uses on the site while the current user was there for the outdoor storage and then lastly there was one in 2025 that seemed to relate to outdoor storage as well. So I'm trying to understand that timing and how if the two of the three predate when the lease notification came in, why is that relevant to what we're talking about today?

You know, I don't have the zoning clearance language in front of me, but I suspect that it's been known that the construction company was going to be leaving before that November of 2024 time, and perhaps in anticipation of that, someone came in and applied for that zoning clearance. But again, I don't have that in front of me.

Well, so in the staff report that cites the Acela record, so there's one for July of 2023, and then another one in August of 2023, and then lastly in April of 2025. So... Given the city's sort of reliance on the zoning clearances, speaking to sort of the intent of the abandonment, I'm trying to kind of figure out how that relates to how this timeline has been established.

Hi, this is Michael Branson senior deputy city attorney. So what I have in my staff report material is that the 1st. Zoning clearance mentioned the July 2023 is from transport. Which, um, in a response that staff requested from the appellant about whether. they had received any offers on prospective tenants. A&G Transport was mentioned as a party that was interested. The timing is a little bit off, so there may be a discrepancy in facts that needs to be resolved here because, as you know, that zoning clearance was put in 2023, whereas the applicant's response said that A&G had interest in March of 2025. the zoning clearance that came in was for container storage, and container storage is a different activity than outdoor general storage. So if someone came to the counter asking for zoning clearance to do container storage, first off, they would be told that they need a CUP to do that. And if they were relying on a non-conforming use that was general outdoor storage, the appropriate answer would be that a non-conforming for general outdoor storage would not provide you a non-conforming right to do container storage. The second zoning clearance that came in was from Provendor Partners, which again, the applicant is welcome to clarify this if we have it incorrect, but we understand that to be the property owner. Provendor Partners is essentially affiliated with LLC here. And they came in with a zoning clearance for EV charging for trucks and automobiles, which is certainly a different activity type than the existing operations.

So, but is that date right? August of 2023? In the staff report?

That is what the city has on file in terms of the Xcel records. Yes. And then the third one was from SS Trucking. And that's not an entity that we're familiar with. But again, it was for truck, trailer, container storage, small office, and apparently maybe also a warehouse. So there's several different activity categories that are going on there. The responses that would normally come in on things like that would not be related to the non-conforming use, because what's being asked for is not the same as the non-conforming use. The question would be whether the zoning allows those in particular, just as a general activity. Did that answer your question?

I mean, I guess I'm struggling to understand why staff would be relying on zoning clearances that predate when the appellant would even know that their tenant was leaving. So that leaves the April 2025, which would have happened, I guess, after even the A&G transport came in, so I'm just struggling with how that's dispositive of the intent of the appellant to not sort of purposely abandon the site and explore other uses.

Yeah, go ahead. i think one thing that perhaps is an important component to the story is that the tenant was previously the owner right so it was the owner at the time that put the activity in place had been operating for for 20 years and so then there was a sale of that property to the current owner to some degree there can be some assumptions as to what the understanding of the future use of that property was when they chose to lease back the property. And when was that? I don't know when the sale was.

Okay.

So there seems to be some period of transition and some knowledge that that long-term user was leaving the site.

Okay, I will move on. So let me make sense of my notes here. So the If I'm looking at the Collier's marketing materials and I want to do this existing use of outdoor storage, what do I come into the city and ask for?

Well, first of all, the Collier's advertisement points to the CIX zone. Right.

So I'm an outdoor storage guy. I realize that this site has now become available. I want to use it for outdoor storage. I do my due diligence. I look at the code. I'm presumably talking to the owner and figuring out that, in fact, their use is nonconforming. However, we're continuing it, so there shouldn't be a problem. What do I do then to walk into the city and try to continue that storage use?

To continue the storage use, I mean, if you came into the city, they would say, as was discussed by Ms. Mudge, that a conditional use permit would most likely be required because it's within 600 feet of a residential zone.

But the question that we're trying to resolve here is if it was purposefully abandoned. So if I'm talking to the owner or trying to lease or buy, and I want to continue the use and it's not being abandoned, The prior tenant has taken all the stuff off the site. There's still some improvements there. I just want to move in. What do I do with the city if I'm coming in under the presumption that I can continue the use because it hasn't been abandoned?

Well, you would apply for zoning clearance, which sounds like that's partly what happened. and it would be up to the city to make the evaluation about whether that zoning clearance could be issued. In this case, probably what happened was someone said you need a conditional use permit to continue that activity. Now, if you disagree with that decision, you can apply for a determination. And that's sort of an official determination of how the city falls on this question of whether it could be continued as a legal use, legal non-conforming use. And if you disagree with that decision, it can get appealed to this body.

OK, and so that's why we're here today. There's a purposeful abandonment, and then there's an assumption that you can continue the use if it hasn't been purposefully abandoned. And so what doesn't seem to exist here is a process for when that continuation can happen. you're set up for failure if you have to go in for a zoning clearance, and then you're gonna get told that you have to get a CUP, and then you're gonna say, well, I don't have the time, money, or energy for that, so I'm not gonna pursue the deal. Or you go and you try to get a notice of determination, and then here you are with an appeal. If the code allows for these uses to actually continue under the right circumstances, it just doesn't seem like there's an effective process that can get you there. And so I'm just, that's just sort of my, what I'm perplexed by in terms of sort of this fact pattern.

And there is an option, I believe we discussed it with the owner, although I'm not 100% sure, of the owner applying for that conditional use permit ahead of time so that when businesses come in, they can use it for outdoor storage without having to get the conditional use permit themselves.

But if it's a continuation of the use, the owner shouldn't have to go through the pain and suffering of a CUP either.

Well, we're going by what the code says. And if there's different standards of time for when a use stops, you lose your legal nonconforming status. And that's what happened here. They went over that time. In this case, because there's so much... There's so much concern about truck intensive uses near residential activities that time was very, very small.

But the determination wasn't, the rationale wasn't hinged on timing. It was based on sort of these facts about the marketing, the zoning clearances, and the removal of the improvements, not time.

well it was based on time because we looked we looked at time and it said oh well they're past that time therefore they're no longer legal non-conforming when it was appealed we looked into all these other issues other issues as well okay um i'll ask one more and then i'll hand it off and i may come back but i'm also

little perplexed that the the city's determination is relying on sort of the fact that the tenants materials were improved as sort of a indication of the appellants purposeful abandonment when we know when if you're leaving a site you're gonna take your stuff and so I don't know how that is can sort of speak to the intent of the owner in terms of the continuance of a use.

This is Michael Branson again, W. City Attorney. Often we're not going to receive a written statement of an intention to abandon, right? So there's some necessity to look at individual facts. And I think what's unique here is this activity type of general outdoor storage. You don't always have a physical building. It's not a warehousing activity where there's a warehouse with 30 loading docks. It's not a car wash where there's physical improvements. And I think it would be easier and what the type of evaluation that staff would ordinarily do. You know, for example, if there was a car wash, and all of the materials to operate that car wash center were stripped of the site, somebody came back in for a car wash. And that car wash was conditionally permitted. It's pretty likely they would run into some problems have to establish. Um, you know, whether or not there was an intention to abandon the removal of those features, uh, would, uh, play a role in establishing whether there was an intention to abandon. i think staff still looked at that in this case looking at a site that did have improvements uh as we understand and again i welcome the applicant to add details on this there were a few uh non-fixed foundation structures on the property as well as an above-ground uh... tank uh... storage tank uh... some so in addition to all of the the striping and the vehicles and lay down material so there were some physical improvements uh... and what was left at the end of it was all of those improvements removed uh... i believe there was a building that was that received a demolition permit at one point I believe there may have been a fire on the property that caused that building to be demolished. That was not reconstructed, so now there's sort of a question about whether, you know, if this was to restart, do they now have a right to rebuild that building? Those are the kinds of questions that I think staff would have to struggle with if a nonconforming activity was found here.

I'll let someone jump in if they'd like. Thank you.

Commissioner Randolph?

Yeah, very interesting case. I do have a couple questions, both to the applicant and the appellant and staff. Maybe I'll start with staff. I also am struggling a little bit with the determining that the zoning requests are assigned, that they're pivoting to other uses. But one of the questions is, could it also be interpreted that the owner is also just trying to expand the ability to find new talents, not just one specific use, but trying to expand it to other potential uses, not necessarily abandoning one and finding three others, but adding three others to the current non-conforming use. So I don't necessarily feel like adding additional zoning uses is a sign that somebody wants to move away from existing or previously existing use. So I do struggle with that as well. And then I guess one of the questions is around the purposeful abandonment. So who... Who is the entity that decides that? Like, if a tenant abandons it, but the owner doesn't, does the city then see that as a sign of abandonment? Or does the owner of the actual property have to do the abandonment? I mean, that goes back to, I think, the question that was asked already. Who's the entity that actually does that? Can anybody, could I walk into the city and just say, I don't think this space should be used for outdoor storage anymore. It should be used for EV charging. Could I be the entity to make that abandonment?

relevant or is it actually up to the owner of that property to abandon it um the planning code is unclear like it could be the it could be the property owner that abandons it obviously but it could also be the business i think the business that is operating there they can say i'm abandoning this site and therefore I'm abandoning this use from the site. The code doesn't, it just says, it uses a passive voice. It doesn't say who would abandon it.

But that seems to be, A gap or problem to me. Because if I'm an owner of a property, I should have the right to determine what the use is or not use is or what the future use is because I should have the flexibility out there to be able to rent it to as many tenants as I want to. It shouldn't be up to a tenant who leaves or a third-party entity that might be interested in renting an existing property. They might not even have talked to the owner about it. that is just preparing to potentially apply for a lease on that property. So if the voice is passive, if there's this ambiguity, then I don't think you should hold the owner responsible I mean, it can go either way. It seems to be a gray area in the planning code that needs to be potentially fixed to really make it clear that it should be the owner of the property that makes that determination of future, current, and use. It doesn't make sense for a third-party entity or even a tenant to be able to do that.

Yeah.

Yeah, and the code, I'm just repeating what the code says, so perhaps it does need to get cleared up. And I would also agree that, or not agree, but I also say that the definition of purposeful abandonment probably needs to get cleared up in the code, too, because if we interpret it, if we interpret purposeful abandonment being we want this activity and we'll abandon this activity forever and never do it again, never let it, operate on the property again will only do other activities that makes the legal non-conforming much less strict the legal non-conforming status of that activity much less strict than other act other activities in the in the Planning Code and that's to me it's directly against the intent of what the Planning Code amendments were they were meant to be more to be more strict to truck intensive activities and I I feel that in order to really understand what purposeful abandonment means, you also have to look at what the intent was of this ordinance. And it was to be more strict on these truck activities next to residential zones, particularly, well, that doesn't, yeah, next to residential zones.

And another question I have, what mitigation could realistically make truck yard compatible with adjacent housing or schools?

What we would look at is the size of the trucks, how often the trucks operate. There's particular findings for truck intensive activities that would have to be met, and we would look really specifically at those. We would probably, because of the wording of the findings, we would probably ask for smaller trucks, not big sort of trucks that you see at the port, for them to operate during certain hours, particularly because there's a school across the street, that sort of thing. That's what conditional use permits are for, is to apply these types of conditions.

If I may, I mean, ironically, it sort of relates back to what Laura said earlier about not requiring CUPs for some uses that would have performance standards that would address adjacent uses. But, you know, since that came up earlier, I just want to point that out.

Yeah, and there's always a balance, particularly in this case, between, you know, economic development and, you know, environmental justice. And that's kind of the job of you guys and us to figure all that stuff out.

Another question I have, what uses are allowed by right today on this site?

I have a list of that. Hold on one moment. What's that?

Right, just to help, I think they're listed in the staff report. Okay. Just to help Neil out. He can flip through and find which page.

All right, page six, I note it.

I can, yeah, you can read that.

And then if the appeal is denied, how long would a CUP process usually take? I want to assume that the owner or some other entity would go through the process.

Like, what is the average that... You know, a lot of it depends on input from neighbors and things, so it's hard to say exactly, but... You know like six months and given the process they've been through we probably give them some priority and it's already been assigned somebody me We could and I'm a generally assigned cases, so I don't have a lot of cases so I could probably do it fairly quickly, but and there plus there'd be negotiation about what sort of Conditions would would be applied So I'm I'll say six months, but it could be more could be less and

And then is historic use or previous use of this type of use that the COP would be asking for, is it a consideration in the determination of whether or not to approve the COP? Or is that not relevant?

It's not really relevant. The planning code is generally to shift from activities we don't like to activities we do like. So if a past activity is something we didn't you know, was having impacts on neighborhoods, maybe we'd allow those, but with some conditions. Or, you know, it's a discretionary permit, so we could also say no to it. In terms of evaluating a project, we really depend on the findings that we have to make, and we look at those, and if it meets the findings, we approve it with conditions. If it doesn't, we deny it. We don't think we can condition it sufficiently to meet the findings, we would deny it.

Okay. And then I have a couple questions for the appellant, if I may.

Neil Johnson.

Yeah. For either of you, but you've argued that there was no intent to abandon the outdoor storage use. Can you remind me, or can you kind of go into details what specific actions you took to actively preserve the use during the vacancy?

Well, we've been marketing it to specifically outdoor storage space users via cold calling and things like that.

Can I add another one?

Sure. Mr. Johnson's been maintaining the site in good repair and condition. He's been paying property taxes. He continues to market it. Do you have security?

We have drive-bys.

Yep. and has been consistently renewing the Collier's contract to continue to market the property.

And then if the appeal were granted and outdoor storage resumed by right, what specific activities would occur on the site? Or does that depend on the tenant you would get?

General outdoor storage, it'd be a contractor. So there'd be some light trucks. The site's too narrow for semis. So I get the concern that you don't want idling trucks next to neighbors. Good. That's just not a use that we could implement there. Although the port of Oakland, right? That's, that's what that, there's a lot of activity around that, but we couldn't do that on our site.

Okay. Given the proximity to housing, school, library, what measures would be in place to mitigate truck traffic noise or diesel emissions if the use resumed? Do you have any mitigations or restrictions on the lease in mind?

we would put a sign on the you know for trucks to take a left out of the site away from the school but the school is that's directly across is kind of the for lack of a better term the back end and there's there's not an entrance there there's there's not a lot of foot traffic there that's on the other side where people are parking and coming in and out of the library in the school can I add something the

Use category general outdoor storage also prohibits container storage. It prohibits freight forwarding. It prohibits all these really high truck-intensive uses. So whatever general outdoor storage could go there would be, I imagine, somewhat similar to what was there before, a construction contractor storing their equipment there.

Since the use could still be re-established if the appeal is denied through a conditional use permit, can you help me understand why maintaining non-conforming status is necessary rather than going through the CUP process?

With respect, first of all, a CUP is unlikely to be issued within six months. My prediction? Twelve. Minimum. Under protest, we have discussed applying for a CUP with staff. They've indicated they're likely to deny it based on a prototype project description that we supplied. Was there a reason? And Neil, I don't know if you want to weigh in here. Well, maybe I misunderstood you, but that's what I understood, particularly because there's a vehicle entrance and exit. We'd need a variance based on the new performance standards. Okay.

I mean, we were just given a very, we were given a quick sort of punch list of the things that they wanted approval for. And as it was written, we couldn't approve it, but that was before we could negotiate any sort of changes or conditions or anything else. There is a condition that says trucks can't go through residential neighborhoods or adjacent to residential neighborhoods. And we feel like we could make that finding by allowing large pickup trucks and box trucks and that sort of thing, which it sort of sounds like that's what they want to do anyway. And those sorts of trucks we could definitely permit and would not require a variance, but we didn't get into these details with the applicant at all. I don't see them as being an obstruction to getting something worked out, but we haven't gone through that process yet.

Okay, and then one final question. It seems to be there's a lot of ambiguity and gray area and confusion on what purposeful abandonment actually means in our planning code. Under Oakland's current code, what actions would you consider sufficient to demonstrate abandonment or be actual purposeful abandonment? What is your interpretation? You say that in this case, it wasn't, that the staff is misinterpreting it because there's not really a clear definition, but what would you consider purposeful abandonment?

So you're asking me to kind of speculate on a set of facts that doesn't exist. Before I do that, though, and I will, This exact same fact pattern occurred at 727 Kennedy, right? Where it was vacant for months, and the fact that it had been actively and promptly marketed was found to be sufficient evidence of no purposeful abandonment. Okay, to your question, what would constitute... All right, let's just say that Mr. Johnson got the notice of termination of the lease, and he sat on his hands for... I don't know, until today. And made no efforts to actively and promptly market the site. Took his wall and security fence and bathroom building down. And did nothing to protect his rights for, I'm making this up. Thirty-six months. I might, if I were sitting in your seat, say, yeah, that sounds like purposeful abandonment to me. That didn't happen here.

And then this brought another question I have in mind. So I'm not smart enough to be an attorney or went to law school, but no, I'm not. Trust me, I'm only married to one, and that's enough. Even worse. Yeah. In court cases, I do know that there's always this question about standing. Who is standing to bring a court case to a court? And I guess the question I asked earlier is, who has standing? Who is the entity that actually should determine purposeful abandonment? Is it the property owner? Or is it some random third party that might be interested in the space? Or is it a tenant? Like in your... In your opinion, who should be the entity to have that standard or have that standing or ability to abandon a use? Should it be the property owner or should it, like, it seems to be currently any entity that...

It's got to be the owner, right? It's got to be the owner. It can't possibly be some third party walking up to the zoning desk and... And it shouldn't be the tenant, right? If you're a landlord and you're leasing a room to a tenant and they say, okay, we're leaving, we're taking our bed and dresser and everything, we're leaving. Are their actions attributable to you and your intent to continue as a residential landlord? No. It's got to be the owner.

All right. Thank you.

Vice Chair Sandoval.

Thank you. I have another question for the appellant before you sit down. Can you just talk through a little bit... So you started marketing the site in February after... That's when you hired the broker, put it out there. My understanding is that this... The marketing from Collier's said it is for what is, I forget, CTI. CIX2. Yeah, yeah. So one could look that up to see what that included. Once you found out, once you did get interest from someone to do outdoor storage and they came and then that's when I guess you probably also learned that a CUP was being asked for. Yeah. Did you do anything differently in marketing efforts, or was that when you came to the city to start talking to them about filing for a determination, just out of curiosity? You said you were also calling specific companies that might be interested in this site. Could you just talk us through that?

Well, specific to marketing, we were calling on tenants that had that specific use. We weren't going to the port looking for people with trailers and semis. What we wanted to do was put outdoor storage grandfathered use because the market knows now that it takes nine months to a year to get a CUP. There's no tenant in the world that's going to sit still, especially an outdoor storage guy, for that period of time. It's not going to happen. So we did all that we could, which was just keep calling people and file the determination letter. That's all we could do, unfortunately.

Okay. That's helpful just for background and thinking through, again, coming back to what is the meaning of purposeful abandonment and what are the efforts taken to understand if the appellant purposefully abandoned I mean, to me, that seems like there was some effort made under, and if you could just clarify, you were doing some cold calls to continue your non-conforming use, legal non-conforming use, but you were also opening up the site to potential author uses as well was the hope.

We were exploring everything we could, knowing that we were having a problem.

As one does when trying to lease space in general. And I think it was apt that the January 7th presentation from Economic Development was today, too, because I think it just spoke a little bit to there has to be these bigger strategies to think about how to attract people to even downtown Oakland at this point, too. And this isn't downtown that we're talking about. Thank you. I think that's all my questions for now.

Anyone else? No? OK. Do we have any? Oh, sorry. Commissioner Lee.

I had a few questions for staff. So I mean, to me, it seems like staff is sort of creating this bright line rule that in order to maintain this legal non-conforming use, Essentially, this is a bright-line rule that you can't have this placeholder claim, that you can't have speculative marketing, and that you need to basically only be looking at continuing the use and not exploring new uses, and that that was the intent of the amendments, the 2023 code amendments. Where do you get that intent from? Can you be specific about that?

Yeah, I can, you know, if you read the ordinance, you know, when it was passed, and I think it was 2023, the explicit reason why this was passed was kind of for economic or environmental justice reasons, and to not have these trucks near the residential neighborhoods, and they do tend to be in low-income neighborhoods because that's where there's this mixture of industrial and residential zones. So if you open it up and say, kind of like what I said before, and say that the placeholder... can apply, it actually makes the regulations about trucks less strict than other activities, than even activities that are much less impactful. So based on that intent, it kind of helps us and educates us in how to define purposeful abandonment.

Yeah, I mean, I think I understand the rationale. The thing that I'm having a hard time with is that to define purposeful abandonment as you can't be taking steps to look at or contemplate any other use in order to avoid the termination of purposeful abandonment. it's kind of going into the mind of the property owner. They could, for example, be completely intent on continuing outdoor storage as the use, but then someone might walk up to them and say, can we do outdoor containers? And then they might just change their mind. And in that situation, they would obviously, that would be purposeful abandonment once they change that use. I mean, at the same time, I understand that there's a reluctance to or intent not to keep it open indefinitely. So, I mean, it seems like a lot of this is, you know, with this Bright Line rule, a lot of it is sort of trying to prevent the indefinite continuance of this legal nonconforming use.

The code before this didn't have that language about the purposeful abandonment. And if you were marketing a site for three months and no one leased it, no one occupied it and did the activity, the legal non-conforming status was extinguished. So that's why it didn't make sense to us to define the purposeful abandonment to allow you to go well beyond that three months. OK, thanks.

Do we have any comment cards?

No, we do not.

OK, so no public comment. So I'll bring it back.

Maybe I'll try to get a go at this. Yeah, definitely one I'm struggling with a little. Because it strikes at the core of definitely environmental justice and what the owner actually intended here. Environmental justice has been a priority for Oakland as we consider current and future uses throughout our city, specifically as a West Oakland resident. I'm very sensitive to this particular issue and how we envision to move forward in certain areas that are heavily impacted by community pollution, health burdens, historic over concentration of industrial uses that are conflict with residential and schools and libraries and parks. specifically since this is in a site that is designated an environmental justice community under the Oakland 2023 EJ element. So I agree with staff that any decisions about truck intensive or outdoor storage uses triggers the EJ policy consideration. And that seems to be at the core of this appeal. The element specifically says that it does not automatically preserve legacy heavy industrial uses near vulnerable communities without review and requires updated analysis and mitigation before continuation or expansion. And that's, I think, an irregular normal process. would be something that I would agree with or push for, specifically since Oakland has adopted such strong environmental justice policies that require us to carefully evaluate truck intensive uses. However, the question for me is whether or not the owner actually purposefully abandoned the use of outdoor storage space. And that's where I think I'm struggling. It's like on the one side, I believe that this would be a perfect case that the city envisioned in a community that's heavily impacted by this potential use or past use, specifically since it was going on since the 1960s. And this is why the new code and processes were adopted. But I don't really feel like the threshold was met here to prove that the owner abandoned the use and that we should allow third party entities like tenants and others to determine that a use was abandoned. And then to use marketing material on top of that as well. when I and I think other commissioners seem to think that the owner should be able to find potential other tenants or other uses and then go through a CUP for those uses because they're not currently permitted on that space. So I don't think you should punish an owner for trying to find a tenant and being creative and find other uses while they're still trying to potentially move forward with the current use. I don't know. I would love to hear from other commissioners, but I'm struggling to uphold the goal of our environmental justice goals here, which I think are very important, specifically in this community. But this seems to be a case where the owner is being put in this weird gray zone that I don't think we were intended to put them in.

Commissioner Leap?

Can I just clarify, though, that before these amendments around intent and deliberate abandonment, purposeful abandonment, that the legal nonconforming use would have automatically terminated after 90 days?

Yes. That's true.

So, I mean, your point is that it's kind of absurd to have stricter language when, you know, if we were to interpret this case in a way that where the 90-day would actually be more strict. But what about 727 Kennedy Street, though? Because they didn't find a tenant until the fall. Did they also pass the 90 days?

I wasn't involved with that case, so I don't know.

Because if that's the closest precedent here, it seems like they also ended up with an absurd result.

Perhaps. And we do take these case by case. There were, as discussed previously, there was sort of different set of facts for that. But I would say we do take it case by case. And yeah, I don't know what else to say. I don't know if it was longer than 90 days. It may have been. It may not have been. I'm not sure.

OK.

Thanks.

Well, apparently, it was marketed for multiple years following termination of a lease.

Was it? Yeah.

Vice Chair Sandoval.

Thank you. I think Commissioner Randolph very well said of how I'm personally feeling about this, too. I think just one thing to add is I feel that that gray area is also including just like market conditions, kind of putting that on the owner, which is there are things that are beyond their control in terms of just market conditions more broadly. Then I have a follow-up question that it's clear that the planning code is vague and that we don't really have a definition here of purposeful abandonment. Is there an opportunity likely separate from today's appeal to address that? Because I see this as easily happening again.

I can bring that question back to our leadership. OK, thank you.

I mean, I agree. I mean, I don't I think we all understand that the purpose of phasing out nonconforming uses is evident and reasonable and makes sense, especially in this circumstance where it's sort of truck trips around a residential neighborhood. I don't think that. that this determination suggests that we're choosing one use over the other. I mean, I think it's interesting that we're kind of being asked to determine state of mind. And so there's language peppered throughout the staff report about intent, overt acts, purposefulness. And so just based on the facts as they've been presented, and I agree that only an owner can be the one who determines what purposeful abandon is not a third party not call yours not a tenant that I just don't think that these facts support that it was purposely abandoned especially given some of the extra color that we've gotten today so I'm inclined to uphold the appeal Commissioner Aarons.

Thank you. I think other commissioners have shared some of my thoughts. I have kind of a mix of feelings and assessments. I think for me, the ideal outcome would be to I think because of the piece around environmental justice and what the code says now, the ideal outcome for me would be a conditional use permit that would extend the legal non-conforming use if the property owner, which sounds like they do want to continue that legal non-conforming use. I also... feel that I do not know if the evidence around purposeful abandonment is strong enough. So I feel sort of torn because I think the intent of the planning code is to reduce the harmful impacts on neighbors and the school. And I do want to see that happen. You know, there's a bunch of other Uses that could exist by right which are listed on page six of the Planning staff report and if those were one of the uses that a tenant wanted to do moving forward We probably wouldn't be here today but because the owner wants to continue the legal non-conforming use that's what we're trying to address so I feel, yeah, pretty torn about what to do moving forward. I think the piece about pre-2023, it sounds like the legal nonconforming use would have expired after 90 days. That's also sticking with me because we also wouldn't be here today, I guess, if that was the case. But that's not what we're operating under today in 2026. So I think I'm still mulling it over. I don't have any more questions. I do feel stuck. But my inclination is to follow the code, which is very clear for the CIX2 zone and the request to continue the legal nonconforming use, again, I would not want that to continue. But the information around purposeful abandonment is where I'm getting stuck.

Commissioner Randolph?

Yeah, I completely agree with you because I think we have to look at current code and the way it's currently written and then look at the facts and the evidence in this case. And I don't think it meets the threshold for us to deny the appeal, to be honest. Otherwise, makes me very unhappy because I don't want this use necessarily to continue in this community. That being said, I think, I don't know if separately we'll have to make a motion or a request because I do think this definition of this specific piece of the environmental justice component with a purposeful abandonment needs to be revised or reviewed. And I don't know if that's something planning can do or staff can do, but I think it's Definitely something that I think it's causing a lot of the anxiety and angst, specifically with the previous case that was waiting for several years and was able to continue the non-conforming use. So I think there seems to be a lot of gray area that needs to be, and staff acknowledged it, that there's some, I think it needs to be improved. So I don't know if that's something that needs to be done as part of the process.

So I have a procedural question, I think. So thank you for that. So in the actual agenda under appeals, it says that if the commission reverses or overturns the staff decision and no alternate findings for decisions have been prepared, then the vote on the matter will be considered a straw vote. which essentially is a non-binding vote directing staff to return to the commission at a later date with appropriate findings for decision and as applicable conditions of approval that the commission will consider in making a final decision. So I guess is that true? And if so, what does that look like? And would that give anyone any comfort?

Right. So I think this is a little different. I'm looking to my entire staff team in that this is not a case. This is a determination. So I believe you can make a motion either way on the item that's in front of you. Everyone's nodding yes for the camera. They're all nodding yes. But I do want to note that the item before you is this specific case, the appeal, sorry, this specific determination in the appeal. And any request for revisions to the planning code to be considered is is something that I can take back to my leadership to respond to this body, whether they'll take that under consideration, whether they'll move forward with that, if they'll move forward with that, what will be this year, next year, what have you. But that is separate from the appeal of the determination.

So what does this mean? I think that that's from...

I think it's for a case. If you all want to help me out, that's fine. So if you have a case file, for example, if the city approves a case file for a new... So an actual project. Right. Like a capital P project. Right.

Someone from the community comes and says, yeah. Got it. Okay. That makes sense. Thank you for that. So we would be making a motion to thumbs up or thumbs down on the appeal. End of story. Correct.

Through the chair, we always encourage you to add your well-reasoned findings as well to establish the reasons why and substantial evidence on the record.

I do have one more process question. So does our decision today impact a future purposeful abandonment? Could there still be a case where the owner or a third party, I guess instilled in this case, purposefully abandons this space and then it would trigger yet again the non-conforming use to be no longer allowed on this site. Like for example if the owner decides to abandon the use. Or is this forever now granted? Or is this yet again this threshold gets triggered again when they purposefully abandon the outdoor storage use?

Again, in the future, through the chair, I would say, you know, it's a fact based analysis, as you all learned today. So I think, you know, we'd have to reexamine it, you know, another case. But there certainly can be a change in behavior from the appellant that would evidence purposeful abandonment. So certainly that could happen tomorrow. We don't have a crystal ball. So it's a fact based analysis. So they could be back before you with the same question.

OK, well, there you go.

Commissioner errands I'm just trying to think through it sounds like there was some discussion between that applicant appellant and the city staff about the conditional use permit and I I understand the city's work you know through the presentation we heard earlier and to minimize the level of time and stress and money for applicants and having to apply for a conditional use permit. So I understand wanting to minimize the time and money and stress put into that. I'm wondering if there is a way to move forward with with trying to process a conditional use permit so that there are performance standards that could be set and addressed. and to make sure that the legal nonconforming use could continue, but that we are also still being sensitive to the planning context today about the 600-foot barrier. So I don't really know if that's something that we can ask or recommend today, because we do need to vote on the appeal itself. But it sounds like a lot of us are struggling with not wanting this use to continue, but also recognizing that it has been a legal non-conforming use. Maybe that was not helpful. Maybe that was more confusing.

So what's your suggestion?

I don't know if the applicant slash appellant and staff would feel comfortable. Go ahead.

May I approach? Thank you. Commissioner Ahrens, thank you for that. You know, we had some informal discussions with staff about talking to them about approaching on a CUP under protest. That question is not before you. It is not what we're asking for. It's not an acceptable solution to us. So this is really an appeal on the determination on purposeful abandonment. And we would ask you to make a determination on that question.

and if I can just add on a related topic, Michael Branson, again, city attorney. If the Planning Commission upholds the appeal, then essentially what that means is that nonconforming activity has not been abandoned. It continues. But there are still several limitations that go with being a property owner with illegal nonconforming activity at your property, particularly around... If you do a change of use, again, you do lose that at that point. There's some limitations on the ability to expand, and so I don't have the code in front of me. Typically, expansion can be in the context of actual building expansion, but it could also be in exceeding performance standards by a certain amount, by increasing usage in certain ways that go beyond the activity that was present previously. And I want to make sure that the applicant's aware as well.

So thank you for that. And that's a good point about nonconforming uses in general. So I hate to bring up a hypothetical, but I'm going to. So if we upheld the appeal, what would the next steps be? In other words, so how would planning address a new tenant that would, you know, fit into this storage category and, you know, what, what, just walk me through that.

you know we would put in our system what the result here was and in the determination and then if they fall under the classification of general outdoor storage they would be able to get a zoning clearance and begin their operation if they were as Michael alluded to if they were to construct something or add floor area, that sort of thing, that would sort of kick them out of the legal nonconforming arena. But otherwise, yeah, they could just, as long as they fit within that classification, they could commence.

Would you consider the type of materials being stored, the type of trucks that would come to and from? Because there's the expansion idea from a physical standpoint, and then there's intensity.

I mean, we have performance standards that everyone has to meet in the city. But no, I mean, basically, if you fit under that classification, you'd be able to go on that property and operate.

OK. Thank you, Neil.

If I can just add, too, I'd say from what we've heard, assuming that Planning Commission goes in the direction it's going, I think there is an assumption that the advertisement would continue. And so just some areas where I could see some problems is if Planning Commission upholds its appeal, and then the contract is not renewed, the site remains vacant for a significant period of time, then we may end up in a dispute again about whether At that point, there's been purposeful abandonment, so there does need to be proactive steps by the property owner to maintain. You know, maintain the basis that the planning commission is is using and then again, I'd say. You asked about materials, general outdoor storage is agnostic as to materials, but there are some other areas, some other categories. If you go into that container storage category, that's a different activity type. And so. So that wouldn't count. Yeah, if an application came in for that, it would be viewed as a new application.

Thanks, Mike.

In that same vein, you say that if they stop advertising and it still is vacant, it could be considered purposeful abandonment. Would you then also consider, I know that was one of your facts, if they try to get a CUP for other uses, like container, that that would be also yet again a sign of purposeful abandonment? Or would it be more of a broadening of appeal to potential tenants while they want to keep their right to general outdoor storage industrial activity?

I would say, and I'll defer to Michael if he disagrees, but if you apply for a conditional use permit to do something different, I would say that is pretty definitely a purposeful abandonment. Does that answer the question?

Could they apply for a CUP that includes several different types all together? Or is it just CUP for each individual use?

We usually have to get either within one classification or one type of business. We generally wouldn't approve a CUP over several different classifications.

Could they continue to operate under this nonconforming use if we uphold the appeal and then also apply for a CUP to have this type of general outdoor storage into an activity be made permanent? Is it like a parallel track? Could they operate under the nonconforming use but then also apply for a permanent CUP?

I suppose they could. I don't know why they would, because they could continue to operate without the restrictions. Well, it would be a safeguard, right?

Because if you had the CUP, then you could apply for other CUPs without losing the use. Is that correct?

Yeah, the CUP would run with the land. So it's kind of a safety net.

So you could get the CUP, and then you could apply for the other CUPs without losing that use, if you grant them that CUP. Yeah.

I think you can see how fact-specific this can get at times, right? So, like, if there was an existing tenant there that was operating under the legal nonconforming, and the owner came in to apply for a CUP for anything, we wouldn't shut down the business, right? And there's obviously an intent to continue that operation, and people explore different things and try to have contingency plans. I think the factual scenario, I try to look at the opposite end. If we're here 10 years down the line, the property has not been occupied that entire period, the collier's is not listed anymore, and they come in for a CUP for a different activity type, then I think staff would seriously look at whether there is legal non-conforming activity at the site anymore.

OK.

Thank you. Yeah, as I said, I don't have to repeat myself. I am a champion for environmental justice, but I just don't feel that in this case the burden of proof has been met, that there's been purposeful abandonment. So I'm inclined to, I guess, we would make a motion to uphold the appeal.

Are you making a motion?

Yes.

OK. Second. All right, so we've got a motion to uphold the appeal of the determination with a second. The motion by Commissioner Randolph and a second by Sandoval.

All right, Commissioner Lee?

Yes.

Commissioner Ahrens? Yes. Commissioner Randolph.

Yes.

Vice chair Sandoval. Yes. Chair rank. Yes. Motion passes unanimously. This appeal is upheld the determination. Now I'm, I'm messing up the language. The planning commission has upheld the appeal of the determination and this decision is final. Thank you. Thank you. Okay.

Thank you, everyone, for that. OK. So commission business approval of minutes from February 4, 2026. Motion? I know we're a little bleary eyed.

Motion to approve the minutes from February 4, 2026.

Second. There's a motion by Sandoval and a second by Commissioner Ahrens.

Commissioner Lee? Yes. Commissioner Ahrens? Yes. Commissioner Randolph? Yes. Vice Chair Sandoval?

Yes.

Vice Chair Rank?

Yes. Motion passes. These minutes will be posted to the website. Thank you. Any correspondence? None to the Secretary.

Any City Council actions?

Well, last night, in fact, you all pointed this out yourselves, that the impact fees, updates to the impact fees were approved. And I will be asking for a minimum, a summary that I can report out to this body of what was approved. And you asked specifically about the affordable housing impact fees and what changes were made. And I'll either be answering that or there will be staff from that team coming to this body to explain those changes to you. Great.

Thank you, Catherine.

I'll also add that the 1205 Franklin self-storage appeal is making its way to council on March 17th.

I missed that one. So we will report out to you afterwards.

Okay.

Thank you for that.

Okay. And with that, I will adjourn the meeting today at 5.30 exactly. Thank you.