Agenda masks last ditch effort for housing above White House lot parking garage

Item 11.2 on the Council's agenda for the meeting of 1/25/05 bears an asterisk, which means it wasn't on the advance agenda last week. The Council will have to vote to add it to the agenda as an emergency item. Here's the agenda description:

"BACKGROUND: The City has received letters from three (3) developers each requesting to enter into an Exclusive Right to Negotiate (ENA) process for residential development on the White House site. City staff has consulted with Keyser Marston Associates to identify a process that will allow the City to select the most qualified developer team to negotiate with while protecting the City’s interest in an aggressive time schedule, financial guarantees that the developer will be responsible for the City’s additional project costs, and assurances that the project will be constructed. The recommended approach is a Request for Qualifications process culminating in selection of a single developer team to proceed with an ENA period.

RECOMMENDATION: Whether or not to authorize a Request for Qualifications (RFQ) process to select a developer with whom to negotiate a Disposition and Development Agreement for residential development on the White House site is a matter of Council discretion. Staff recommends that the Council, by resolution, determine whether to approve the described RFQ process, the time period in which to respond to the RFQ and whether the process should be open or limited only to the three developers. "

Now what the hell is all that about? What is the Council going to do?

Is the Council supposed to approve Keyser Marston's report? Is the Council going to hire a developer to build a residential project on the White House site? Who are the three developers who want the job? What do they want to build? How much will it cost? Who pays?

California's Brown Act requires the Council agenda to contain "a brief general description of each item of business to be transacted or discussed at the meeting"; and the Attorney General's guide to the Act explains, "The purpose of the brief general description is to inform interested members of the public about the subject matter under consideration so that they can determine whether to monitor or participate in the meeting of the body." If the agenda description doesn't tell the public enough about the item to decide whether to monitor it or participate, it's not consistent with the Act.

I sent the City Attorney an email Sunday night, contending "the agenda description is unclear, confusing, deceptive--and ultimately inconsistent with the Brown Act." Cheryl Woodward, Deputy Director of Transit and Parking, answered Monday. She wasn't qualified to respond to the Brown Act issue, but she explained:

"Brien Farrell asked that I respond to your email regarding Item 11.2 on the Council agenda for January 25, 2005, as he is out of the office.

This item is being brought forward to receive Council direction regarding developer requests to negotiate for development rights of a residential project on the White House site. The City is currently in the process of designing a 700-800 space garage with ground floor retail space. Should Council wish to consider developer proposals for a residential component to this project, much of the work that has been completed to-date will need to be redone. Timely direction is needed to avoid incurring additional costs for the garage that don’t consider the structural requirements of a residential component.

Should Council direct staff to proceed with an RFQ, the RFQ process, as proposed, will require interested developers to submit a concise narrative regarding the development team’s initial project concept for a for-sale residential condominium development above the public garage. The City will consider the developer’s qualifications, as well as the developer’s initial project concept, in selecting a single development team with whom to negotiate. "

The first paragraph is much closer to what the agenda should have said in the first place. Woodward explained the question is whether and/or how the Council wants to respond to the three still-unidentified developers, who each want to develop a residential component to the City's proposed garage/retail project. And she explained the decision needs to be made soon, because the City is spending money [about $140,000 so far] to plan the project without a residential component.

That's information the public needs to know, but wasn't told. The second paragraph also begs some serious questions.

It's clearer now that design of the current project may be stalled indefinitely, while the City chooses one of the three developers to negotiate with, and then negotiates the actual residential project with that developer. The agenda description also asked the Council to decide whether to receive proposals from other developers as well, which might take even longer. Time is money, and there's no estimate of how much the delay and any plan changes might increase the cost of the current project.

Woodward's staff report helps answer some of these questions, but the Brown Act doesn't require the public to read all the associated documents. I reviewed the 19-page staff report, and reorganized some points from Woodward's Analysis:

"8. Realistically, this is the last opportunity to consider a housing component as part of the White House Site Mixed-Use Parking Project."

"6. The garage and retail space that is being developed on the White House site is currently in the preliminary/schematic design phase. Approximately $140,000 has been spent to date on geotechnical analysis and design. Much of this work will need to be redone if a housing component is added to the project."

"7. The preliminary timeline for the RFQ process and ENA period is expected to add approximately eight (8) months to the current project schedule, pushing completion of the garage into the latter part of 2007. Project delay will result in unknown increases in design, construction and financing costs."

"1. From the outset of this project three years ago, Council members expressed interest in a mixed-use development that included 50 to 60 residential units (including a mix of market rate, affordable and inclusionary units); retail/commercial space; childcare facilities; a performing arts center; and public parking. ... Given the constraints of the site, Council reached agreement that the project must include, at a minimum, a housing component, parking, and ground floor activity other than parking."

"3. Three (3) developer teams have now come forward [just last month, December 2004] with requests to enter into an ENA period to develop housing on the White House site."

"4. City staff has consulted with Keyser Marston Associates to identify a process that will allow the City to select the most qualified developer team to negotiate with ..."

"5. The recommended approach is a Request for Qualifications process culminating in selection of a single developer team to proceed with an exclusive right to negotiate period."

Woodward's analysis makes clear that it's the Council that wanted a "mixed-use" project, to include retail and residential components with the parking garage. What's not stated here are that the parking garage itself is primarily to enable private development of a high-rise project on the adjoining site; and that the "mixed-use" components are intended to further "revitalization" of the downtown business district.

I think staff is telling the Council that for this downtown revitalization project, it's time to put up or shut up. Unfortunately, the agenda description wasn't as clear.

I asked Woodward, the City Attorney, and the City Manager to have Council postpone the item, and describe it consistent with the Brown Act on a future agenda. My best guess is the Council has already decided to tell staff to issue RFQs to the three developers, and will do as it pleases.