pages: CityCouncil/2021-11-30.pdf, 15
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CityCouncil | 2021-11-30 | 15 | legal issues will be generated. Councilmember Herrera Spencer inquired whether the zoning could not be changed, but instead it could be clarified that the site for recreation or commercial use. The Planning, Building and Transportation Director responded the situation is complicated; stated the site has been designated commercial recreational in the General Plan for 30 years and has been zoned mixed use to allow residential; residents would like Council to zone the space not to allow housing, which is acceptable; he is struggling with what to change the zoning to; questioned whether the City is committing to owning and running the site as an open park or public facility if the City designates the site as open space; stated if the City does not allow housing, the property owner will not be allowed a return on investment and other issues will arise; staff has left the designation and zoning alone. The City Attorney stated the City runs greater risk in limiting possible uses; the City runs less risk in limiting less uses and remaining open to other uses; there is a sliding scale where the judicial decisions on zoning allow the Council great flexibility in zoning; however, if all viable uses are eliminated, a compensatory taking argument is possible; if Council wishes to set broad policy about the kinds of uses desired, Council may direct Planning staff to designate recreational uses for the site; Council may even designate recreational with ancillary commercial uses for the site; Council may direct staff to create a zoning for the types of uses which still create opportunity while limiting the number of uses; if Council places limits, judicial review is likely. Councilmember Herrera Spencer stated page 51 of the General Plan document speaks to parks and wildlife; there is a category called commercial recreation, which the Harbor Bay Club is under; other categories listed designate that housing is not permitted in certain areas; inquired whether Council may direct staff to add similar language under commercial recreation, to which the Planning, Building and Transportation Director responded in the affirmative. Councilmember Herrera Spencer expressed support for input from the City Attorney; stated the commercial recreation section has not prohibited housing; the section could be expanded without touching the zoning similar to the other listed categories. The Planning, Building and Transportation Director stated the General Plan designations that indicate no housing is allowed have underlying zoning which prohibits housing; discussed the public parks designation, which does not allow for housing; stated a covenant preventing housing at the Harbor Bay Business Park was placed by the Port of Oakland when Harbor Bay was originally developed; the covenant is the result of a prior lawsuit about building housing close to the airport; Councilmember Herrera Spencer's proposal would create a General Plan designation which states no housing is allowed even though the zoning allows for housing; the conflict would have to be resolved by changing the zoning; staff and the Planning Board chose to leave the matter as-is and punt the issue to the discussion of the project or Housing Element if the City decides housing is needed at the site; if housing is needed at the site, the General Plan designation would need to be changed and the zoning would remain as-is; staff felt as though it is premature to have the City make decisions on the matter. Councilmember Herrera Spencer stated that she would like to hear from the City Attorney. The City Attorney stated that he believes there is no problem in adding commercial or ancillary Continued November 16, 2021 Regular Meeting Alameda City Council November 30, 2021 15 | CityCouncil/2021-11-30.pdf |