HomeMy WebLinkAboutCD Village at Loch Lomond Marina Development"ry Agenda Item No: 14
n. Meeting Date: October 5, 2009
SAN RAFAEL CITY COUNCIL AGENDA REPORT
Department: Community Development Department
Prepared by: Robert Brown, Director (PJjt City Manager Approval:
SUBJECT: Village at Loch Lomond Marina Development (110 Loch Lomond Drive) —Request for
interpretation regarding Vesting Tentative Map (TM04-001) condition of approval No. 45, which requires
the formation of a Mello -Roos District to fund long-term maintenance of publicly -accessible park and
recreation areas on the marina site. File No. P09-002.
Staff recommends that the City Council accept the staff recommendation of an interpretation regarding
Vesting Tentative Map (TM04-001) Condition No. 45.
BACKGROUND:
Site Description/Setting. The Loch Lomond Marina is located immediately south of Point San Pedro
Road and the Loch Lomond residential neighborhood, which is approximately two -miles east of US101.
The marina property encompasses 131+ acres of submerged tidelands and upland, which is currently
developed with: a) a full-service marina that includes 517 boat berths (of which 52 berths are authorized
for `liveaboard' use by the marina BCDC permit), and marina support facilities such as a public boat
launch, a bait sales shop, dry dock boat storage, and yacht club; b) a local -serving grocery store; c)
medical office; and d) two undeveloped jetties, a breakwater, seasonal wetlands and submerged
tidelands.
Project Description and History. In August 2007, the City granted land use and subdivision approvals
for the Village at Loch Lomond Marina Development. The City approvals authorize the development of
the 29.7 -acre upland portions of the site with: 81 new residential units (detached single-family residential,
attached townhomes and condominiums); 22,250 square feet of new neighborhood commercial use
(including a new full-service grocery store); upland marina support uses; and bay front park and
conservation uses. The approved project does not change the current marina berth and public launch
operation and use. The bay front park and recreation uses were approved for public access consistent
with both City and BCDC approvals. The publicly -accessible park and recreation improvements that were
approved include: a turf -surfaced marina green; the development and use of the two jetties with equipped
play areas, picnic facilities; restrooms as well as a kayak launch and fishing stations.
One of the more significant project issues was the ownership and long-term maintenance of the bay front
park and conservation areas. Since the bay front park must be publicly -accessible to meet BCDC
requirements, various options regarding land ownership and long-term maintenance were studied by the
City staff and City Attorney, and carefully considered by the City Council, Planning Commission and Park
& Recreation Commission. Ultimately, the City Council approved the project requiring that the publicly -
FOR CITY CLERK ONLY
File No.:
Council Meeting:
Disposition: _
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 2
accessible bay front park area and the conservation areas be retained in fee by the marina property
owner, but that non-exclusive public access easements be offered and recorded over these areas to
ensure public access in perpetuity (Vesting Tentative Map [TM04-001] condition of approval No. 46). To
assure the long-term maintenance of the publicly -accessible park and conservation areas, the City
required the formation of a Mello -Roos District for this purpose, to be established concurrently with
recordation of the final subdivision map. The Mello -Roos District requirement is memorialized in Vesting
Tentative Map condition of approval No. 45, which reads as follows:
45. The Vesting Tentative Map requires and the project sponsor shall agree to the formation of a
Mello -Roos District for the purpose of providing and guaranteeing long-term funding and
maintenance of park and recreation improvements that are approved for public use and the
conservation area (seasonal wetlands) on Parcel V. The boundaries of the District shall cover the
entire 131+ acre marina site for assessment to the marina property owner, the owners of the
neighborhood commercial/mixed-use parcels and the residential property owners within this
development. The 17 below -market -rate (BMR) residential units approved with the
Vesting Tentative Map shall be exempt from the Mello -Roos tax. Long-term funding and
maintenance of the following above -ground improvements and facilities shall be covered by the
Mello -Roos District:
a. The marina green and boardwalk
b. kayak launch
c. park play equipment and area
d. pedestrian pathways along the west jetty/spit, east jetty/spit
e. viewing areas along the west jetty/spit, east jetty/spit
f. public rest rooms (2), one on the east jetty/spit and one at the entrance to the breakwater
g. fishing cleaning station located near the entrance to the breakwater
h. park and informational signs within these areas
1. lawn/turf, shrubs and groundcover, irrigation systems, storm water drainage inlets within
boundaries of the area, lighting pole standards and fixtures above the foundation; benches;
trash receptacles; and bicycle racks
f conservation/seasonal wetland area (parcel V)
The District shall be formed concurrent with the filing of the Final Map.
As specified in this condition, the Mello -Roos District is to encompass/cover the entire 131+ acre marina
site. The inclusion of the entire marina site was intentional, so that the marina property owner would be
obligated to participate in the district tax collectively with the future residential and commercial area
property owners. By covering the entire marina site, no one group within the district (e.g., the 81
residential property owners) would be fully burdened with the long-term maintenance tax.
Voting Nuance Associated with the Formation of a Mello -Roos District. For the past several months,
City staff has been working with Real Estates Strategies and Solutions, the new project managers for the
Village at Loch Lomond Marina development project. During our working process on the Mello -Roos
District, a nuance was discovered in the district formation procedures, which focuses on the City
requirement that the district "cover the entire 131+ acre marina site." Typically, Mello -Roos districts are
formed in cooperation with the developer prior to the time any lots are sold, and the developer, as the
sole property owner, is the only voter involved in the approval of the special tax funding the district.
However, the State law regulating the formation of a Mello -Roos District (Government Code Section
53326[b]) mandates that when there are 12 or more registered voters within the boundaries of the
proposed district, it is the registered voters, not the property owner/developer, who must vote in the tax
election. While it was not the City's intent when the Mello -Roos District requirement was established for
this project, the condition requiring that the district "cover the entire 131+ acre marina site" could be
interpreted to require that the registered voters living at the marina (the marina berth liveaboards) would
need to vote on the tax even though they would not be required to pay the tax, and conversely, that the
marina property owner, who would be assessed with the tax under the district, would not be permitted to
vote. It was never the intent, nor is it logical, to require the marina berth liveaboards to participate in the
Mello -Roos District formation process as they would not be party to the district tax.
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 3
In response to this nuance, the project managers have filed a request for interpretation to clarify the intent
of the Mello -Roos District condition of approval. This request and their approach to address this issue are
presented in the attached letter dated September 3, 2009. In brief, the representatives are suggesting
that the district boundaries would include all the land and water areas within the Loch Lomond project
site, with the exception of the limited areas within the water portion of the marina containing berths, as
shown on the map attached to the September 3 letter. The elimination of the berth areas from the district
would not change the amount of taxes to be paid by the marina property owner, the future owners of the
neighborhood commercial/mixed-use parcels and the future residential property owners, respectively, but
would merely ensure that the voting right for forming the Mello -Roos District would be held by the party
who will be paying the taxes, the marina property owner.
ANALYSIS:
City staff and the City Attorney's Office have reviewed the rationale and approach to the request filed by
the project managers and find that it is consistent with the intent, understanding and purpose underlying
the condition to form the Mello -Roos District. Under the proposed interpretation, the district would indeed
"cover the entire 131+ acre marina site," but would merely exclude within that area the limited areas
where the berths are located, thus it is consistent with the language of Vesting Tentative Map (TM04-001)
condition No. 45. Further, as noted above, the City's intention in defining the district boundary to include
the entire marina site was to ensure that the marina property owner would be obligated to participate in
the district tax collectively with the future residential and commercial area property owners. The proposed
interpretation is consistent with this goal, since exclusion of the berth areas is not proposed to alter the
allocation of taxes between these three ownership groups. As such, Staff believes that the proposed
interpretation would be consistent with the intent of Vesting Tentative Map (TM04-001) condition No. 45.
This interpretation would not change the requirement previously established by the City Council, nor
would it compromise or change any of the project approvals, nor would it change the relative amount of
tax to be assessed to the residences, businesses, and marina owner. However, it would facilitate the
speedy formation of the Mello -Roos district. Staff recommends that the City Council discuss and accept
the interpretation as presented.
NOTICING/CORRESPONDENCE:
This matter involves a request for an interpretation of a Vesting Tentative Map condition of approval.
Since the request is limited to an interpretation and would not result in a change, modification or revision
to Vesting Tentative Map condition of approval No. 45, no public hearing is necessary. However, notice
of this request was mailed to the representatives of the three neighboring property/homeowner
associations and to the Federation of Neighborhoods.
FISCAL IMPACT:
As requested, the City's interpretation of an approved project condition would have no fiscal impact on the
City of San Rafael. As initially reported when the Village at Loch Lomond Marina was being reviewed for
action by the City Council, all costs associated with the formation and maintenance of the Mello -Roos
district would be initially borne by the marina property owner and subsequent property owners within the
future marina development.
16120912:
The City Council has the following options to consider on this matter:
1. Accept Staff Recommendation (of Interpretation) as presented
2. Continue matter for additional information and response to Council comments and concerns
3. Deny the request for interpretation
ACTION REQUIRED:
It is recommended that the City Council accept the staff recommendation that the requirement in Vesting
Tentative Map (TM04-001) condition of approval No. 45 that the boundaries of the Mello -Roos District
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 4
"cover the entire 131+ acre marina site" be interpreted to authorize exclusion from the District of the
limited areas where the berths are located, as set forth in Exhibit A and the map attached thereto.
ATTACHMENTS:
Exhibit A — Letter and Map from Real Estate Strategies & Solutions, September 3, 2009
Lch I m nd.CCrpt10-5-09[melio-roos]
Real Estate
Strategies &
Solutions
September 3, 2009
Honorable Mayor Al Boro
San Rafael City Council
Attention: Ken Nordhoff, City Manager
City of San Rafael
Box 151560
San Rafael, CA 94915-1560
Re: Loch Lomond Marina
Request for Clarification
Dear Mayor Boro and San Rafael City Council:
The conditions of approval for the Loch Lomond project include a requirement that, in
order to provide long-term funding and maintenance of certain park and recreation
improvements, the developer create a Mello -Roos Community Facilities District (CFD)
to provide a stream of tax revenue. In the process of preparing to form the CFD, we have
noticed an anomaly in the procedure for establishing the CFD. Virtually all Mello -Roos
districts are formed in cooperation with the developer prior to the time any lots are sold.
The developer, as sole owner of the property being developed, approves a special tax to
fund the CFD as the sole voter in a procedure that requires a two-thirds voter approval
under Propositions 13 and 218. As the sole voter, the developer is also able to waive
various election procedures and timelines that would otherwise delay the formation
process. This is a very standard process for developer -formed CFDs and was the
procedure contemplated by the approvals of the Loch Lomond project.
We have noticed a potentially problematic issue regarding the election that will be
required to enact the tax to fund the Loch Lomond CFD. State law (Gov't Code
53326(b)) mandates that when there are more than 12 registered voters in a proposed
CFD it is the registered voters, and not the landowners, that must vote in the tax election.
In preparing the election -related documents for the CFD formation, we have noticed the
following language in condition No. 45 on page 46 of City Council Resolution 12332:
"The boundaries of the [Mello -Roos] District shall cover the entire 131+ acre marina site
for assessment to the marina property owner, the owners of the neighborhood
commercial/mixed-use parcels and the residential property owners within the
development." While not intended to do so at the time, this language could be interpreted
to require that voters in the "live -aboard" community residing in the Marina would need
to vote on the proposed special tax, even though they would not be required to pay the tax
(and the developer would have no vote on the tax, even though it will be paid from its
property). This would also mean that there could be no waiver of election deadlines and
that ballot arguments, etc. would need to be prepared. All of this would result in
unnecessary delay and uncertainty in the CFD formation process.
5801 Christie ° Suite 680 ° Emeryville ° Ca ° 94608 ° voice 510-658-6260 ° fax 510-658-7244
EXHIBIT A
Mr. Boro
September 3, 2009
Page 2 of 2
We recognize that the formation of the CFD was an important goal of the community to
ensure that the City, using the CFD's tax proceeds, would be in control of the
maintenance of the park and recreational areas. In order to efficiently further that goal
we wish to ask the city to clarify the intent of the language quoted above from the
approval resolution. We would propose that the quoted condition be clarified to mandate
that all land and water areas within the Loch Lomond project site, including those needed
by the marina operator, be included within the boundaries of the CFD, except for the
limited areas within the marina containing berths. (See attached map.) This will allow
the developer to vote on the proposed special tax, while still ensuring that the owner of
the marina, as well as the owners of the neighborhood commercial/mixed-use parcels and
the residential properties, pay their fair share of the taxes to fund the public recreational
improvements. It will also mean that there will be no change in the identity of the parties
who will pay the tax nor in the amount of the tax to be paid by each party, including the
marina operator.
We would ask that the City Council formally act to clarify this condition so that we may
proceed to finalize the arrangements for the CFD's formation.
Sincerely,
Real Estate Strategies & Solutions, Inc.
FeeD opment Manager for San Rafael Marina, LLC
Dan in
Project Consultant
Cc: Bob Brown, City of San Rafael
Paul Jensen, City of San Rafael
Lisa Feinberg, City of San Rafael
Ambrose Fisher, San Rafael Marina, LLC
Todd Wright, Real Estate Strategies & Solutions
Michael Conneran, Hanson Bridgett, LLC
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