Planning Commission Upholds Storage Use Appeal, Exposing Gap in Oakland's Zoning Code

Oakland's Planning Commission wrestled with the limits of its own rulebook Wednesday, unanimously siding with a property owner who fought a staff ruling that his industrial site's decades-old outdoor storage use had been abandoned — then turned around and asked staff to fix the ambiguous code provision that forced the fight in the first place. Separately, commissioners received a sweeping look at the city's economic development strategy and heard pointed warnings from neighbors about a proposed senior care facility near the Oakland Hills.

• Commission votes 5-0 to overturn staff, ruling outdoor storage at 9668 First Avenue was not abandoned

• Commissioners flag undefined "purposeful abandonment" standard as a code problem needing a legislative fix

• Five Claremont Avenue neighbors urge traffic, shadow and fire studies for proposed 85-foot senior care facility

• Economic development presentation reveals 94% of Oakland businesses earn under $250,000 a year; permit complexity tops complaint list

• Commissioner Ahrens presses for deed-restricted rent data delayed since June 2025

Industrial Storage Fight Tests Oakland's Zoning Boundaries

The basics: The owner of 9668 First Avenue, an industrially zoned parcel adjacent to residential neighborhoods and a school, appealed a staff determination that his property's longstanding outdoor storage use — in place since at least 1963 — had been "purposefully abandoned." The site's most recent tenant, AJW Construction, operated there from roughly 2000 to 2024. After AJW terminated its lease in November 2024, the owner, Neil Johnson of Provender Partners, hired Colliers to market the property and cleared the site.

Why it matters: The ruling effectively establishes that active marketing and site maintenance are enough to show a property owner intends to keep a legal non-conforming use alive, even during an extended vacancy. It also exposed a significant gap in Oakland's planning code — "purposeful abandonment" has no definition — that commissioners said invites exactly this kind of dispute.

Where things stand: Planner Neil Gray told commissioners that staff based its abandonment finding on three actions by the owner: clearing the site, marketing it without specifying outdoor storage, and seeking zoning clearances for other uses. "Staff's determination states that there was a purposeful abandonment because the owner took affirmative steps inconsistent with the continuation of outdoor storage," said Gray.

Anne Mudge, an attorney with Cox, Castle and Nicholson representing the appellant, pushed back in a lengthy presentation. She argued the legal standard requires proof that the owner intended to walk away permanently. "Cessation of use alone does not constitute abandonment. The city has got to show that Mr. Johnson intended to walk away, never to return," she said. Mudge also cited a prior city determination at 727 Kennedy Street, where staff found no purposeful abandonment under nearly identical circumstances — a cannabis tenant vacated, and a broker marketed the site for general industrial use.

Mudge challenged the weight staff placed on the owner's marketing materials: "I don't see how a marketing flyer can be attributed to the owner's intent whether to use the site or not. And the marketing flyer was correct. It is zone CIX too, for which general outdoor storage is one of the uses."

The other side: Multiple commissioners acknowledged the environmental justice stakes. The property sits near homes and a school, and the 2023 zero-day rule for truck-intensive uses was designed to phase out exactly these impacts.

Commissioner Alex Randolph captured the tension: "I am a champion for environmental justice, but I just don't feel that in this case the burden of proof has been met that there's been purposeful abandonment."

Commissioner Josie Ahrens echoed the discomfort: "I do not know if the evidence around purposeful abandonment is strong enough. So I feel sort of torn because I think the intent of the planning code is to reduce the harmful impacts on neighbors and the school."

Chair Jennifer Renk questioned staff's reliance on zoning clearances that predated the lease termination, and concluded the facts didn't hold up: "I just don't think that these facts support that it was purposely abandoned, especially given some of the extra color that we've gotten today."

Vice Chair Natalie Sandoval noted that holding market conditions against a property owner seemed unfair: "I feel that that gray area is also including just like market conditions kind of putting that on the owner, which is, you know, there are things that are beyond their control."

Commissioner Owen Li challenged the logic of the staff standard more broadly: "To define purposeful abandonment as you can't be taking steps to look at or contemplate any other use in order to avoid determination of purposeful abandonment, it's kind of going into the mind of the property owner."

Decisions: Commissioner Randolph moved to uphold the appeal. Vice Chair Sandoval seconded. The vote was 5-0 (For: Renk, Randolph, Li, Ahrens, Sandoval; Absent: Robb). The general outdoor storage use at 9668 First Avenue stands. The decision is final unless appealed to city council.

What's next: Commissioners directed staff to bring back a proposal to clarify the definition of "purposeful abandonment" in the planning code. Gray acknowledged the language needs work. "The definition of purposeful abandonment probably needs to get cleared up in the code too," he said. Staff indicated they would bring the question to department leadership. Commissioners also discussed whether performance standards could replace conditional use permits for some truck-intensive uses — a thread that connects directly to the economic development discussion earlier in the meeting.

Small Business Reality Check: Oakland's Economic Development Plan

Why it matters: The numbers paint a stark picture of Oakland's economy. Of the city's roughly 27,000 non-landlord businesses, 94% report earning under $250,000 annually and 79% employ fewer than five people. Those businesses say the city's own regulatory framework is one of their biggest obstacles.

Where things stand: EWD Deputy Director Cristy Johnston Limon presented the city's five-year Economic Development Action Plan, organized around five strategic goals: attracting key sectors, sustaining existing businesses, building workforce, investing in places, and supporting arts and culture.

The presentation zeroed in on what businesses say is broken. "Businesses have cited lengthy, complex and disjointed processes to obtain the necessary permits that they need to operate. And so permit reform and streamlining was a top priority of theirs," Johnston Limon said. She detailed how the department is now establishing baselines to track progress: "We created ways to establish a baseline so now we know the business count and where it's located and have it geocoded so that we can actually map where all of our businesses are."

Strategic Planning Manager Laura Kaminski explained how the Planning Bureau has begun shifting from conditional use permits to performance standards for certain uses. "We've created some performance standards so that something could still be approved essentially over the counter, as long as they meet certain standards," she said. She added that changes like the Broadway Valdez zoning updates originated directly from economic development staff flagging business complaints: "That actually came from economic development talking to us and saying, businesses are having problems, and we've been meeting with them, and these are the issues."

Commissioner Randolph pressed on specifics, asking what zoning provisions most frequently block businesses. Commissioner Ahrens questioned how the city's place-based investment strategy interacts with the Surplus Lands Act and housing element requirements. "One of the goals is encouraging public or private real estate development on public property. And so I'm wondering how that dovetails with legal requirements around the Surplus Lands Act and then also pieces of the housing element that prioritize public land for affordable housing," she said.

What's next: Staff committed to annual tracking using business license data, 311 calls, and crime data across 21 commercial corridors. The presentation was informational — no vote required — but the zoning-reform thread runs directly into the commission's appetite for code fixes, as demonstrated in the appeal.

Claremont Avenue Neighbors Sound the Alarm on Senior Care Proposal

Why it matters: Five residents from Auburn Avenue and Florio Street used open forum to raise detailed, sometimes personal objections to a proposed senior care facility at 6230 Claremont Avenue. Though no formal application is before the commission — the city has received a planning application (ZW2502934) but it has not completed intake — the volume and specificity of the comments signal a significant neighborhood mobilization.

Where things stand: Neighbors support the concept of senior housing but object to the proposed scale. The project's reported height of 85 to 90 feet would far exceed the 55-foot zoning limit, and residents say the consequences would be severe.

Layla Goff, a 26-year Auburn Avenue resident, urged the commission to hold the developer to the 55-foot guideline and require rigorous traffic, shadow and seismic studies. Ellen Kohler, an 84-year-old who has lived in the neighborhood for 15 years, cited recent pedestrian fatalities near the site and called the stretch a known high-injury corridor. She urged the commission and OakDOT to require a comprehensive traffic study, physical speed mitigation, and quick-build safety measures.

Jack Gerson, a 29-year Auburn Avenue resident, requested a systematic shadow study comparing an 85-foot building against a zone-compliant 55-foot structure, along with health impact assessments. Victoria Griffith, a 25-year Florio Street resident whose home directly abuts the project, described how a 90-foot wall would block sunlight after midday, eliminate privacy, and place an industrial transformer near her property line. Javier Arizmendi, an architect, raised specific fire code concerns, noting the site is less than a mile from the 1991 Oakland Hills fire zone and citing non-compliant window and balcony openings in submitted drawings.

Staff clarified that the city cannot negotiate applications — only review and decide based on applicable law once a formal application is accepted. Commissioners confirmed they cannot take formal action until a project is before them.

What's next: Residents are watching for the application to clear intake. The organized nature of the comments suggests the commission can expect a packed hearing whenever the project formally comes forward.

Minor Items

• Commissioner Ahrens has been requesting deed-restricted housing rent data from the Housing and Community Development Department since June 2025 and pressed for delivery, noting nearly nine months of delay. She also asked about affordable housing impact fees, the annual progress report timeline, and whether non-deed-restricted units can count toward RHNA.

• Commissioner Randolph requested a future BART presentation on the Mandela Station project and development activity around the West Oakland BART station.

• Staff reported that impact fee updates were approved by city council the previous night.

• The 1205 Franklin Self Storage appeal is heading to city council on March 17.