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Ms. Selena Kelaher Page 5 of 6 • Section 4.8 requires the developer submit an overcrowding mitigation plan. This is surprising and constitutes an implicit admission that the City's current Code and processes are ill equipped to regulate usage levels in apartments. Nevertheless, the Development Agreement does not provide for any compliance measures beyond the provision of such a plan and does not allocate resources for enforcement (an item that should have been negotiated). • Section 4.9 requires the developer to develop a local live work plan and entrusts the City Manager with approval. The Section does not appear to mandate compliance -merely that the plan be submitted. Section 501 of the City Charter does not authorize the City Manager to approve such plans. The same concern is evident for Section 4.10 (local sourcing plan). • Section 6.1 requires the developer to submit an annual monitoring report. No parameters for such a report are given. • Section 7 does not provide adequate remedies beyond termination of the Agreement. For example, the Agreement should specify that upon termination, owner may be required to conform the property to applicable changes to the Code or cause the prior zoning to revert. Spot Zoning/Contract Zoning As set forth in my prior correspondence, the Project constitutes an example of impermissible spot zoning. The final proposed EIR attempts to sho-fly this problem away by explaining that there are no other properties zoned Professional Office in proximity of the site. Therefore, the EIR concludes that the selected zoning is appropriate. Put another way, the EIR attempts to answer a negative with a negative. There are however commercially zoned properties to the north of the site. There are no similarly situated high -density residential developments adjacent to the project site. Given that the developer has lauded the project as being for luxury apartments, there does not appear to be a compelling public policy justification to support unlawful spot zoning in this instance. Ambiguities in the Development Agreement also give rise to a contract zoning claim. While the City is statutorily permitted to enter into development agreements in exchange for agreeing to zoning concessions, it is questionable whether concessions in a development agreement must be clearly stated and refined as opposed to vague and obtuse promises of future plans and actions that the public is not made privy to. It is therefore evident that the City's approval of the Project in reliance on the subject development agreement and conditions will be susceptible to claims of unlawful contract zoning. As a land use professional, I respectfully submit that the Council's approval of the Project would be: