Piedmont’s Planning Commission will hold a study session hearing and discussion concerning the General Plan Housing Element Site Inventory on Monday, February 10, 2014 at 5:00 p.m. in the City Hall Council Chambers, 120 Vista Avenue, Piedmont, CA 94611. The Site Inventory is currently being drafted for Chapter 4 of the Housing Element and will be circulated later in February.

The Association of Bay Area Governments has decided Piedmont’s Required Housing Needs Allocation for 2015-2022 is 60 new housing units: 7 above moderate income; 15 moderate income; 14 low income; and 24 very low income. The City is not required to produce the 60 new housing units but only to provide circumstances that allow private developers to produce them.

The sites inventoried are: existing vacant lots; lots that can be created through subdivision; underutilized sites for multi-family housing; public land; and houses without second units.

The staff expects to submit an updated draft of the Housing Element to the California Department of Housing and Community Development in June 2014. During the summer and fall the staff would work with State reviewers  to revise the Housing Element and have it ready for City Council adoption by the end of the year. Bay area cities are required to adopt Housing Elements to cover the period 2015-2022 by January 31, 2015.

This study session is third in a series of sessions, and follows the introduction of the update to the Planning Commission on October 14, 2013, and a review of demographic changes and housing needs in Piedmont during the last decade on January 13, 2014.

The public is invited to provide ideas on housing policy and suggest sites for new housing.

– The following letter written by Councilmember Jeff Wieler is addressed to David Mix and was sent to PCA on February 4, 2014. – This is a response to an opinion letter by David Mix published February 3, 2014 on this site.

Dear David,

I have been the unwilling recipient of your emails, and will try and explain your many misconceptions as simply as possible, to give you a chance at understanding the facts.

Majority requirement:  If measure A passes with 51% of the vote but less than 67%, Piedmont can request judicial approval to issue bonds. If it passes the 67% threshold, that is sufficient for us to proceed.  Note: the two thirds requirements generally applies to taxes.

Before you start making claims about another city, it might be prudent to read the city’s Charter.  If you like to do this, you can easily do so by going to the city website. Section 2.11, part five says the City Council is empowered to borrow money if they pass an ordinance to do so.

Then you need to go on and read Section 4.14, which says that bonds are limited to 20% of the assessed valuation of the city, and issuing debt requires a majority vote.  Clearly we’re not talking about borrowing in excess of 20% of Piedmont’s property valuation.

You are in error about the side fund. CalPERS will issue a (final) payoff amount upon request.   I have no idea why you think the amount is a moving target.  That is something that is true about the overall CalPERS  pension funds, however the new accounting standards going into effect soon, will require disclosure of the unfunded liability.  The truth of the matter is that the side fund is actually quite similar to a simple home mortgage. And there are no “Neighborhood Association’s fees” associated with the pension side fund.  Your facts simply are not correct, and although in some respects applicable to the overall CalPERS pensions accounts, they are not valid in the case of the side fund.

You can rest assured that we’re not doing what Oakland did — we’re not speculating on the future of interest rates, nor are we borrowing at low muni rates in an attempt to profit through arbitrage.  Piedmont has a long history of pay-as-you-go financing.

Finally, you are correct we rely heavily on bond counsel and the City Attorney.  Yes, our legal advisers do work for the city, and have the professional and fiduciary responsibility to advise us properly.  Your implication that they would give us bad advice because they had an “undeniable vested interest” is highly inappropriate. By your logic, the 20 plus other cities who have refinanced their side funds must also have had incompetent or venial city attorneys and financial advisers.

I suggest you focus your attention on your own city of Oakland, instead of trying to interfere with a historically well-run city.  I would also like to know whether you have any professional qualifications to opine on the legal and financial issues involved. Based on your comments, I can only assume that you are speaking from a position of ignorance.  I will note that Piedmont’s City Council contains one lawyer and four finance professionals.  I think we know what we’re doing, can you say the same?

Jeff Wieler
Member Piedmont City Council

Editors’ Note:  The opinions expressed are those of the author and not necessarily those of the Piedmont Civic Association.  The Association does not support or oppose ballot measures. 

– New City Administrator will Transition from a Lumber and Fisheries Town to Piedmont – 

Piedmont’s recently chosen City Administrator, Paul Benoit, is scheduled to assume his Piedmont duties on March 1, 2014.  The contract  with Benoit agreed to by the City Council during contract negotiations will be acted upon publicly at the February 3, 2014 Council meeting in City Hall.  He is to receive a salary of $200,000, an increase over his current $165,750 salary as City Manager of Astoria, Oregon according to the Astoria budget.

Benoit has spent 25 years in Astoria, Oregon:17 as Community Development Director and; since 2005, as City Manager. While the population of Astoria is similar in size to Piedmont, it’s land area is far greater and it is a former industrial city.

Fishing, fish processing and lumber have been the lifeblood of Astoria, with 30 canneries located along its waterfront.  In the 1970’s and 1980’s the canneries closed and the lumber industry declined. The last large employer, Astoria Plywood Mill, closed in 1989.  Railroad service to Astoria ended in 1996. City Data Inc. reports that the median household income was $37,161 in Astoria in 2011. Benoit commented that the very different nature of the Piedmont community would provide a welcome challenge for him.  “I love getting to know a community and being a part of it.”  Benoit has a son, daughter-in-law and grandson residing in Alameda.

Photos funded by the University of Oregon offer an introduction to Astoria:

Pilings that once served the former canneries lining the Columbia River front of Astoria. Paul Benoit’s Marine Affairs degrees from the Department of Marine Affairs of the University of Rhode Island and from the College of Ocean and Fishery Sciences of the University of Washington made him a natural fit with Astoria’s marine industries.

Astoria’s more recent pattern of development built on suburban parking-oriented pads siphoned off retail from downtown, creating vacant storefronts in the core — a challenge faced by many American cities.

In 2012 the Astoria Downtown Association hired Civilis Consultants to formulate a strategy for bringing life back to vacant storefronts in downtown Astoria. Thus far, Civilis has produced the “Building Blocks for a Successful Downtown project” report.  Research, assessment and workshops continue to explore Astoria’s possibilities for the future. Nearby, Cannon Beach and Seaside, Oregon have active, walkable downtowns that may serve as models for Astoria,  according to consultants.

photos copyright Patrick S. McGovern (by permission)

see 23 Astoria photos sponsored by University of Oregon Benjamin & Louise Carroll Visiting Urban Politics Professorship

The following letter was provided to PCA on January 30:

John Tulloch
Piedmont City Clerk

Re: Piedmont Pension Bonds

Mr. Tulloch

As you may recall, I came by your office a week ago Friday and you kindly provided me copies of the above captioned February 4th Pension Bond Ballot Measure.  While I am not a resident of Piedmont I am nevertheless acutely interested in the matter. I am a native of Oakland and have watched Oakland’s Pension Bond debt on the now closed (pre-PERS) Police and Fire Retirement System (PFRS) grow to an unsustainable amount. All the while the present City PERS, Police and Fire and the Miscellaneous employees systems continue to grow by substantial amounts.

Oakland, along with its Bond Counsel, Orrick, Herrington and Sutcliffe LLP, brags that it pioneered the “pension bond” back in 1985. Unfortunately, the City’s Pension Bond debt is now close to one billion dollars (for PFRS alone) and having lost considerable amounts in investments.  An October 2010 City Auditor’s special report (Courtney Ruby, see City WEB site, cityauditor@oaklandnet.com) indicates, through its bond issues, the City lost, since 1998, approximately $250 million dollars.

While the City of Piedmont is considerably smaller its Bond Measure still represents millions of dollars in taxpayers money. A review of the Measure’s language and background material (the May 29, 2013 BAFP Committee Report) it is clear that sometime prior to 2003 the City Council over-extended the pension benefits to its employees, driving the cost sky high and beyond a sustainable amount. However, it is not my intent to criticize the Council for what it did back then but to raise questions and legal concerns regarding the present (Feb. 4th) Pension Bond Ballot Measure and the obvious need for full public disclosure.

1.)  The Measure indicates that by Section 4.14 of the City Charter that only a 50 % affirmative vote is required for passage.  Although the Charter language stipulates that the question submitted to the electors is to be in full compliance with the provisions of the State Constitution and other State laws, it appears to run afoul of the State Constitution and the debt limitations.  The 1879 Constitution (although dating back to 1850 – see People v. Johnson (1856) 6 Cal. 499; Nougues  v. Douglass (1857) 7 Cal. 65) Article XVI, Section 18, in pertinent part, prohibits cities (including charter cities) from entering into indebtedness that in any year exceeds the income and revenue provided for such year unless the city first obtains two-thirds (2/3) voter approval for the obligation. (See Garrett v. Swanton, 216 Cal. 220, at p. 226).There are three notable exceptions to this requirement: (1) The Offner- Dean exception; (2) The Special fund doctrine; and (3) the “obligations imposed by law” exception. Disregarding the non-applicable first two exceptions, the City, by its Ordinance No. 711 N.S., paragraph (e), is claiming the “obligation imposed by law” exception. However, recent appellate court cases have determined that the, “obligation imposed by law” exception is not applicable to Pension Bonds.  In State ex rel. Pension Obligation Bond Commission v. All Persons Interested (2007) 152 Cal. App. 4th 1386, the court held, the exception does not apply to the State’s obligation to fund PERS because the obligation is one the Legislature voluntary imposed upon itself.Please Note, the above case concerns  Constitutional Article XVI Section 1, rather than Section 18.  Where Section 1, deals with the State and Section 18 deals with Cities, Counties, School districts, etc., the language is practically identical. While Section 18 has not yet been the direct subject of a Pension Bond legal challenge the application is the same. Some attorneys have argued that the PERS “side fund” creates a difference in claiming that the side fund is an obligation imposed by law. Their reasoning is fatally flawed in that all PERS obligations are strictly voluntary, usually the result of bargaining unit negotiations or direct City Council legislative action. See County of Orange v. Association of Orange County Deputy Sheriff’s (2011) 192 Cal. App. 4th 21, and cases cited therein.

2.)  The Bond enacting  Ordinance, No. 711 N.S., at paragraph “e”, claims that the “Side Fund Obligation” are “debt obligations” of the city imposed by law.  It appears the City is incorrect in both instances. The Side Fund is neither a “debt obligation” nor is it “imposed by law”. The Side Fund is the “Unfunded Accrued Actuarial Liability” (UAAL) or simply the Unfunded Liability (UL). (See above, State ex rel. Pension Obligation Bonds Commission v. All Persons Interested, validation case and  County of Orange v. Association of Orange County Deputy Sheriff). Both cases clearly hold that the UL and or the UAAL are not, in the true sense of the term, a debt obligation nor an obligation imposed by law.

3.)  Also, the Ordinance,  at paragraph (f.) indicates that the City is authorized to issue “refunding bonds” or “incur indebtedness” for the purpose of refunding any evidence of indebtedness under Government Code, Section 53570 or its Charter, Section 4.14.  It does not appear that this section provides the necessary authority. Sections 53570-53572 deal with “revenue bonds” and the refunding of revenue bonds while the City’s proposal is to issue  “new”  general obligation bonds for the specific purpose of funding the PERS side fund (the pension funds’ unfunded liability [UL]). The “side funds” are not an existing debt under the law subject to refinancing – they are no more than regular contract obligations entered into voluntary by the parties.  Further,  the PERS laws  (Gov. Code, secs. 20840 et seq., risk pools) creating the side funds, does not create a financial obligation  “imposed by law”. It is simply an actuarial assumption determined by PERS in order to finance the parties agreed to employee pension benefits. Again, see cases cited above.

4.)  Section 4 of the Ordinance is  clearly a “Blank Check”.  “…to do any and all things that they deem necessary or advisable…” Should the people of Piedmont approve this Bond Measure they will completely loose whatever opportunity they may have had to oversee or approve any future Bond deals relating to the pensions.  It is an “unlimited” blank check – it couldn’t be any worse.

5.)  Also, the structure of the Measure and the enabling Ordinance beg a haunting question – should the voters approve the Measure does the voter approval then not authorize the City to collect a property tax to service the bond debt in excess of the limitations imposed by Proposition 13? (See Valentine v. City of Oakland (1983) 148 Cal. App. 3d 139; Bandt v. Board of Retirement, (2006) 136 Cal. App. 4th 140;  Carman v. Alvord, (1982) 31 Cal. 3d 318; and Howard Jarvis Taxpayers Association  v. County of Orange [City of Hunting Beach] (2003) 110 Cal. App. 4th 1375.

6.)  Additionally, as the Ordinance indicates, at paragraph “d”,  speaking to the Side Fund, and showing amounts of $2,311,901 and $5,532, 124) it notes:  “This amount changes from time to time based on actuarial determinations prepared by PERS.”  This of course begs another haunting question, considering “the amounts change from time to time”, and that the amounts (Side Fund, UAAL) are merely “projected” amounts depending on investment returns and numerous other factors (see Orange County Sheriffs) then exactly what amount does the City intend to bond. And, if the amount increases in the near future (which it usually does) will that not require the need to sell additional bonds. How can you sell bonds and expect to save money, to cover an amount that is ever changing?

7.)  The Council Agenda Report of October 7, 2013 features a comparative earnings and payment sheet on projected debt and bond payments, (BAFP Report). What the sheet does not show nor indicate is by far the most crucial to making a comparison – what kind of bonds and for what term. There are as many different bond issue out there as there are cars for sale on Broadway. There are the short term, 12 month, low interest bonds on one end of the scale and then the notorious Capital Appreciation Bonds (zero coupon)  (CAB) on the other end. CABs are no payments, (interest or principal) for as long as 40 years costing as much as 15 to 20 times the original amount.  A $2 million dollar bond can end up costing $40 million. The Report completely ignores any aspect of the crucial difference the term period makes – the interest rate is only part of the calculation. The  differences can be huge.Many of the Pension Bond deals to cover Side Funds are a mixture of different types and terms, including CABs. Most are quickly refinanced costing the tax payer yet more money. Or extended for longer periods in order to lower payments to free up the City’s General Fund for other uses, again costing more and more money.

8.)  The last issue. As was pointed out in the BAFP Committee Report of June 3 (p.19) and recently the subject of a letter to the Montclarion by Rick Schiller. The critical point, without a contract change of the employee payment “cap” the City’s scheme to bond the Side Fund will save the employees a substantial amount, but will actually cost the City more money.  Considering there is no incentive for the employees to change the cap (costing them more money), what sense does this whole proposal make?

David E. Mix

Long Deferred Maintenance Will Be Done-

At the Tuesday, January 21, meeting, the City  Council approved moving ahead with a portion of a landscape plan for Blair Park and authorized landscape design consultant Bob Berkeland, of Restoration Design Group (RDG), to complete his firm’s drawings for the entire plan. 

RDG’s landscape plan was broken down into two phases by the Piedmont Park Commission and City Public Works Director. They recommended that the Council approve only Phase I, which consists primarily of long deferred maintenance.  The Park Commission asserted that further improvements to the park should not be undertaken until safe pedestrian access is provided, another traffic study is conducted, and community consensus is reached on the future of the park.

The Phase I work consists of: removing all Monterey Pines, & all ivy, blackberries & other invasive weeds, creating a 5-foot diameter weed-free zone around each tree on the hillside, surveying the south property line to make certain the City knows the park boundaries, making the park an “open meadow” with possible planting of native grass seed, irrigating the meadow with a water truck, placing log barriers, rustic bollards or split rail fence along Moraga Avenue curbside, retaining the park as an off-leash dog area, and adding the park to the City’s weekly maintenance schedule.

Phase I could be submitted to the Capital Improvement Project Committee for funding this year, although City Administrator Geoff Grote noted that the park  qualifies for money from the facilities maintenance fund. He said the $300,000 estimated Phase I cost must go through the budget process. 

Under Phase I, there will be no proposals for pedestrian access, no new parking, no seating areas, no pathway and no permanent irrigation system. There also will be no gateway monument identifying the park as an entrance to Piedmont, as proposed by the Park Commission.

Despite urging from a number of speakers that the Council approve the entire plan (Phases I and II), particularly an informal, loop pathway called for in the RDG contract, the Council declined to do so, and they made clear that their approval of Phase I does not mean they will proceed with Phase II.  Council member Margaret Fujioka stated, “The park belongs to everyone, and we want to know what the community thinks.” Councilmember Robert McBain added, “The community needs to be on board.”  And Council member Jeff Weiler said, “We are not committing to Phase II.”

New report shows residents and businesses of Alameda County what’s in their garbage and the economic value of properly sorting it.                                                                                                                  

Oakland, CA – January 20, 2014 –   Most of us say that recycling is important, but are we good at it? StopWaste spent the past year taking a look at garbage carts to find out. A report being mailed this week shows that residents and businesses in Alameda County dumped as much as $70 million of recyclable and compostable items in the garbage last year. The report is part of a new Benchmark Service from StopWaste, a public agency responsible for reducing waste in Alameda County.

“Let’s face it, we’re still burying too many valuable resources in landfills,” said Gary Wolff, P.E., Ph.D., StopWaste Executive Director. “More recycling would capture valuable resources already in our communities, stimulating the local economy and creating jobs.” Our goal for Alameda County is that by 2020, less than 10% of what’s in garbage containers will be recyclable or compostable. The Benchmark Service tracks progress towards that goal, and has three components:

1. Random, anonymous measurements of how much garbage, recyclable and compostable material is in garbage containers in Alameda County
2. Analysis of those measurements
3. Reports sent directly to garbage service account holders describing what was found.

The first reports are now being sent to Alameda County residents and businesses. The data in the reports show how much garbage, recyclable and compostable material (as a percentage by weight) was in residential garbage containers, and some categories of business garbage containers, in 2013. On average, residential garbage carts in Alameda County contain 32% “good stuff” (recyclable and compostable material) by weight, an improvement from 60% in 2008. School garbage containers contain about 55% “good stuff.”

Consistent with the data collected in 2008, the biggest potential for improvement is with organics recycling. “If we could make just one change, it would be to recycle all our food scraps in the green bin, all the time” said Alameda County Waste Management Authority (StopWaste) Board President Don Biddle. “This would reduce greenhouse gases and help create compost that’s used to grow food and beautify urban landscapes.” For tips on how to recycle better, residents and businesses can visit www.StopWaste.org.

Jeff Becerra: (510) 891-6549; jbecerra@stopwaste.org

On Tuesday,  February 4, Piedmont will elect two members to the School Board in a contested election between Doug Ireland, Amal Smith and Hari Titan.   And in an uncontested election, Teddy King, Tim Rood and Jeff Wieler will be elected to the City Council.  The terms for School Board and City Council are four years. 

The Piedmont City Charter language states:

SECTION 7.02 MEMBERSHIP, TERM OF OFFICE [School Board]

The Board of Education shall consist of five (5) members elected from the City at large for a term of four (4) years. Board members shall be elected at the times and in the same manner provided for members of the City Council and shall be required to meet the same eligibility qualifications. No person who has served two (2) full consecutive terms as a member of the Board of Education shall be eligible to hold office until one (1) full intervening term of four (4) years has elapsed. Any person who serves as a member of the Board for more than eighteen (18) months of an unexpired term shall be considered to have served a full term.

City Council election is specified, as follows:

(D) ELECTION. The regular election of Councilmembers shall be held on the first Tuesday after the first Monday of February in each even-numbered year, in the manner provided by State law. The terms of elected Councilmembers shall begin the second Monday after their election. They shall hold office for four (4) years. Elections shall be alternately for two (2) and three (3) Councilmembers, excluding elections to fill an unexpired term of office.

Race for Mayor – 

Actually, in Piedmont there is no race for mayor, because the City Council elects amongst themselves who will hold the two year mayoral term.  Voters do not determine who will be the mayor. Usually, but not always, there has been an orderly transition when the Council chooses the next mayor.  Some think the mayor should be the highest vote getter in a class of candidates.  Tenure also plays a role in the selection of a mayor. But this has not always been the rule. In fact, some years ago, when a Council member was in line to become the next mayor, the Council voted to elect another Council member, and the spurned council member promptly resigned from the Council.

The mayor’s term is for 2 years, providing a fast turnover in mayors.  The  frequent turnover in the mayor position supposedly has kept power or control within the Council as a whole and depoliticized the position.

The job of mayor as specified in the City Charter:

SECTION 2.08 MAYOR

Following each general municipal election, the City Council shall elect from among its member officers of the City who shall have the titles of mayor and vice-mayor, each of whom shall serve at the pleasure of the Council. The mayor shall preside at meetings of the Council, shall be recognized as head of the City government for all ceremonial purposes and by the Governor for the purposes of military law, but shall have no administrative duties. The vice-mayor shall act as mayor during the absence or disability of the mayor. In case of the temporary absence or disability of both the mayor and vice-mayor, the Council shall select one of its members to serve as mayor pro tempore.

The mayor works with the staff to approve the Council agendas and presides over the Council meetings.  Unlike many cities, the Piedmont mayor has no special authority or powers other than those determined by the Charter or City Council.

Election signage – 

When driving around Piedmont during this campaign period, one will see lawn signs for School Board and City Council candidates. A new campaign promotional tool has been a large banner covering the driver’s side of a red convertible parked on major Piedmont thoroughfares. Some residents do not like the littering aspect of campaign signs and may view them as unnecessary.  Candidates often want their name better known and want their community support communicated by signage.

All candidates want your vote, contested or uncontested.

The more votes a candidate receives, the greater the perception that the individual is liked in the community and their actions are respected.

In an uncontested election, it is unusual to have an all-out campaign when the individual candidates will unquestionably be elected. 

Bullet votes –

Voters who do not know all the candidates, or support only one candidate, may do what is known as bullet vote for one candidate,  which weights their vote for their preferred candidate.  While campaigns rarely advocate it publicly, the tactic of bullet voting is perfectly legal and it allows voters to place a higher value on their vote for a preferred candidate. 

Measure A –  The Piedmont City Council has placed on the February 4 ballot a bond measure allowing the City to pay with bonds the CalPERS pension side fund obligation and reducing the amount of interest charged for the amount owed to CalPERS.

Piedmont voters must cast their vote on or before Tuesday, February 4.  Each vote counts. 

Election article by PCA.

Prior article in The Piedmonter

City Charter

After two tentative agreements were rejected by AC Transit unions and a Governor’s 60 day cooling-off period, AC Transit workers have voted to approve the latest negotiated contract.  The AC Transit Board of Directors is scheduled to finalize contract approval on January 8, 2014.

The wage increase was settled at 9.5% spread over 3 years and retroactive to October of 2013.  Employee contributions to their health care was reduced to $125 per month.

Piedmonters heavily use the P and C lines that provide direct service from Piedmont to San Francisco’s Transbay Terminal.  Also, popular with Piedmonters is the 11 line that originates in the Piedmont Civic Center at Highland Way on its way to downtown Oakland via Oakland and Harrison Avenues.

For additional information on the contract click on the following:

http://sanfrancisco.cbslocal.com/2013/12/27/ac-transit-workers-approve-tentative-agreement-strike-averted/

http://www.sfgate.com/bayarea/article/AC-Transit-workers-approve-3-year-contract-5098616.php

http://abclocal.go.com/kgo/story?section=resources/traffic&id=9374112

For information on how to use AC Transit click on the following:

http://www.actransit.org/customer/contact-us/

http://www.actransit.org/trip-planner/

The City Council on December 2, 2013, adopted without voter approval an ordinance changing a zone use contrary to intent and wording in the City Charter. Zoning changes known as reclassifications have been under the strict authority of voters for well over a half century, perhaps since the origin of Piedmont in 1907.   However, voter approval requirements were dismissed December 2, as the Council assumed the role of making zoning changes without voter approval by means of permanent Conditional Use Permits for individual parcels of land.

Charter language –

The City Charter states that voters must approve zoning use changes under “SECTION 9.02 ZONING SYSTEM”:

“The City of Piedmont is primarily a residential city, and the City Council shall have power to establish a zoning system within the City as may in its judgement be most beneficial. The Council may classify and reclassify the zones established, but no existing zones shall be reduced or enlarged with respect to size or area, and no zones shall be reclassified without submitting the question to a vote at a general or special election. No zone shall be reduced or enlarged and no zones reclassified unless a majority of the voters voting upon the same shall vote in favor thereof; provided that any property owner which is zoned for uses other than or in addition to a single family dwelling may be voluntarily rezoned by the owners thereof filing a written document executed by all of the owners thereof under penalty of perjury stating that the only use on such property shall be a single-family dwelling, and such rezoning shall not require a vote of the electors as set forth above. ” City Charter .  Emphasis added.

New interpretation of residential use –

The Council approved a new interpretation of residential use allowing single family residential use to be interchangeable with multiple family (apartments) residential use. Since its beginning, Piedmont has been a primarily single family residential city evidenced by history and the limited commercial buildings and apartments in the City.  The state, working through staff and consultants, persuaded the current council to change the Charter interpretation without following traditional and established law requiring Piedmont voter approval.  

The Charter states specifically:

“provided that any property owner which is zoned for uses other than or in addition to a single family dwelling may be voluntarily rezoned by the owners thereof filing a written document executed by all of the owners thereof under penalty of perjury stating that the only use on such property shall be a single-family dwelling, and such rezoning shall not require a vote of the electors as set forth above. “

The Charter language shows a change in use is reclassification requiring voter approval – examples:  “for uses ” and “only use.”

Piedmont governance is based on the City Charter –

The raison d’etre for the organization of Piedmont’s governance through the City Charter was to establish the principle that the very small community of Piedmont would let the citizens make major decisions about governance and content of the community to an extent difficult in larger cities where officials have greater authority to make zoning decisions for the citizens.

No Piedmont vote proposed –

Not once during Council consideration was a motion made to place the matter on a Piedmont ballot. Election timing, costs, ballot arguments were forgone in preference to Council determination of what was appropriate for Piedmont avoiding the risk of allowing voters to approve the change.

New City Attorney sways Council –

The pivotal junction in the Council’s decision was the opinion of a new temporary City Attorney, who verbally convinced the City Council that “residential is residential.” Leading to a decision that single family residential use allows multifamily residential use under a Conditional Use Permit when individually granted by the Planning Commission.

Council approval of zoning change –  

The Council’s approval of Mixed Use (apartments in conjunction with business) in the Commercial Zone D changed the use allowed in the zone. Mixed use language has been placed into the revised Chapter 17 of the Piedmont City Code by the City Council. Where apartments were not allowed, they will now be allowed through a conditional use permit process in the Commercial zone.  This change expands the multifamily residential zone parcel by parcel enlarging the multifamily zone.   Establishing a pathway through new interpretations of the Charter, opens the door for all of Piedmont to change without voter approval. 

Council avoids voter approval while potentially impacting all of Piedmont –

The Council forfeited the long held interpretation, intent and definition of Charter zoning language which defined the classification of a zone as its use.  Piedmont zoning laws specifically allow single family dwellings in all areas /zones. The new interpretation establishes a gateway for all of Piedmont to have its zoning changed through new special permits approved by the City Council.

Precedent of  interpretation of “residential is residential” –

Upon repeated questioning from Council members concerned about precedent setting based on the new interpretations, the City’s attorney stated no precedent would be set. There was no explanation on how terms as “classification /reclassification” and “residential is residential” could be established now, yet not set a precedent for future application of the same words.  Nor was there an explanation on how parcel by parcel use changes leveled with the Charter.

Attorney based interpretation of Charter language on other cities rather than Piedmont. –

The advising attorney relied on current practices in other cities with no relationship to the Piedmont and expounded on the term “reclassification” as being a broad term applying only to a very consequential change in zoning when an entire zone would be changed to another use.  

In fact, the opposite is true in Piedmont. It has been the practice of the City to require voter approval of use changes even when a single parcel’s use was changed from one use zone to another.  This was implemented recently, when Piedmont voters readily approved reclassifying 801 Magnolia Avenue, the site of the current Piedmont Center for the Arts previously zoned Single Family Residential Zone to Public Facilities Zone. The process and ballot measure involved one parcel.

Previous Councils defined “classification as the use”. –

Another example of the established definition of “classification” as “use,” was in 1987 when the Council voted to create two separate single family residential zones, one for single family residential parcels with a minimum 10,000 square feet (Zone A) and another zone for single family residential parcels with a minimum 20,000 square feet (Zone E – Estate).   This was done by the Council without voter approval on the basis that there was no change of use. The Council stated that the use within the zone was not changing, consequently it was not a new zone, even though one zone was reduced, Zone A,  and Zone E, the Estate Zone was created out of Zone A.  In Chapter 17 of the City Code, there are two separate single family residential zones, Single Family Residential (Zone A) and Single Family Residential Estate (Zone E), approved by the Council because the use did not change.

No written legal opinion on the language interpretation presented –

Despite the pivotal nature of the new definitions of classification and reclassification, as of this publication, no prior written legal opinion on new definitions and interpretations of the City Charter language have been provided to the public and, evidently, not to the Council or Planning Commission before their decision to accept the new interpretations. Several requests by the Piedmont Civic Association were made to City staff for prior written legal opinions, yet to date no response or information has been forthcoming.  

Every Piedmont property impacted by the new interpretation of the Charter 

The new interpretation of the Piedmont Charter language “classification and reclassification” and “residential is residential” creates a conundrum of issues. The most controversial is establishing an interpretation impacting every Piedmont property in every zone. Since every zone allows single family residential, every Piedmont parcel is a potential apartment site based on Council action allowing use changes.

Zoning change lacks Design Review Guidelines for Highland/Vista and Grand Avenue –

The change becomes effective January 1, 2014, however, the Council and Planning Commission have not considered laws to control height, set backs, parking, hardscape, etc. within the zone, leaving a void.  Discussion of separate conditions for the two commercial zones (Highland/Vista and Grand Avenues) were deferred, while the ability to build Mixed Use projects on all properties will be law.

Zoning is important to Piedmont –

Zoning has been the mainstay of Piedmont.  Neighboring communities have faltered, while Piedmont has remained stable and sound largely based on zoning.  As the state continues to want higher density housing, the new interpretation of the City Charter removes the strength provided by the Charter language requiring voter approval prior to zoning changes.

Council approval of the new interpretation might be the most expedient appeasement of state requests, but it has weakened Piedmonters ability to govern their city through voters rights found in the City Charter.

Option available to City Council:

The City Council can act to consider the broader implications and future of Piedmont zoning by following the City Charter and allowing voters of Piedmont to vote on the proposed changes to Zone D Commercial, thus protecting the remainder of the City from “new definitions and interpretations” that  remove voters from the process.

Editors’ Note: The Piedmont Civic Association takes no position on whether apartments should be allowed in Commercial Zone D or any other Piedmont zone. The Piedmont Civic Association takes a definite position advocating adherence to the language in the Piedmont City Charter  which states voters must approve changes in zoning use classifications.  

The Piedmont Civic Association does not support or oppose candidates for public office or ballot measures.  

The following letter was sent to Mayor John Chiang prior to the December 2, City Council meeting when the Council approved the Mixed Use zoning change for Zone D Commercial.

Item #3 – 2nd Reading of Ordinance 712 N.S. – Amending Chapter 17 Correspondence Received before 4:30 PM on Monday, December 2nd

Dear John,

I read with great alarm that the City Council is considering adopting a policy which will allow the city to bypass current zoning laws by implementing the Conditional Use Permit process to change commercial and single family mixed use zoning to commercial and multi-family use.

While it appears that the proposal at the moment is limited to the Grand Avenue business corridor, I am very concerned that creating a precedence for bypassing the zoning here will provide precedence to take similar action in other areas of the city, especially when it would appear that this recommendation is the result of pressure from state regulators. It would certainly be a terrible thing to allow this process to permit multi-family development in the heart of the city in the commercial area adjacent to City Hall or in any residential neighborhood.

These concerns stem from the cavalier comments attributed to temporary counsel and the new deputy city attorney that changing from single family to multi-family is not a zoning change because “residential is residential.” This is absurd, and one only need look at the neighborhoods bordered by Oakland Avenue, near Plymouth Church, to see how these once lovely neighborhoods have been ruined. If this is truly the attitude of our new city attorneys, the city needs new lawyers, ones who are sensitive to this community and the desires of its citizens.

Further, while permitting the commercial Grand Avenue corridor to become a mixed use of multi- family residential and commercial may ultimately be a positive thing, this is an issue which should be put to the voters. Allowing this to occur under a Condition Use Permit process establishes a dangerous precedent, especially if one is to believe the construction changing from single to multi-family is not a zoning change as “residential is residential.” It is simply not true. It appears that the state is exerting undue pressure on city staff to ignore the law as it exists in this city. Where is the legal precedence to support this position? This is unacceptable. We should be providing support to the staff to stand firmly in support of the zoning that is presently in place.

At the meeting on December 2, 2013, I would ask that city counsel take a moment to review the city charter which provides in pertinent part:

“The City of Piedmont is primarily a residential city, and the City Council shall have power to establish a zoning system within the City as may in its judgement be most beneficial. The Council may classify and reclassify the zones established, but no existing zones shall be reduced or enlarged with respect to size or area, and no zones shall be reclassified without submitting the question to a vote at a general or special election. No zone shall be reduced or enlarged and no zones reclassified unless a majority of the voters voting upon the same shall vote in favor thereof; provided that any property owner which is zoned for uses other than or in addition to a single family dwelling may be voluntarily rezoned by the owners thereof filing a written document executed by all of the owners thereof under penalty of perjury stating that the only use on such property shall be a single-family dwelling, and such rezoning shall not require a vote of the electors as set forth above. ” City Charter . Emphasis added.

It is clear that any reclassification of the existing zoning must be approved by the City Council and must also be approved by the electorate. The staff’s recommendation of a Conditional UsePermit to circumvent existing zoning is not an acceptable solution, with or without pressure from the state to do so. The council should not yield to this pressure.

Best regards,
Anne Gritzer

Editors’ Note:  The opinions are those of the author and not necessarily those of the Piedmont Civic Association.  The letter is posted on the City website.