Berkeley Neighborhoods Council


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Neighborhood Forum

In this Section, BNC publishes articles that are written either by a neighborhood representative without editing or is summarized from material which has been submitted to us.  We will tell you when an article has been written by a representative or when it has been summarized.

Development in the Shasta Road Hill Neighborhood Hits Every Neighborhood

The information posted in this issue is largely taken from the Council appeal filed by a newly formed neighborhood association, the North Berkeley Hills Watershed Coalition.  How the City Council mishandled this development proposal is of importance to every neighborhood because of its connection to the Housing Accountability Act (HAA).  It is the poster child demonstrating the reason why every neighborhood in Berkeley must work together.  That's a strong statement, but just read on to see if you agree.

The story starts with The San Francisco Bay Area Renters Federation, aka SF BARF, located at 1540 Market Street, Suite 100, San Francisco.  They describe themselves as “an unincorporated club of pro-building and pro-density renters.” Their main activity is advocacy regarding various housing projects around the Bay Area, including filing lawsuits “to enforce the good state laws that already exist.” SF BARF states that last year they raised or committed about $250,000 to pay for one full time employee and two lawsuits.  To carry out their lawsuits, they use CaRLA, a “California non-profit corporation founded to advocate for and ensure compliance with the Housing Accountability Act” This year SF BARF plans to increase their full time employees to two and file “at least twice as many lawsuits.” They also plan on creating a resource guide for local land decision makers to use when making development decisions.  They state they will use the court order they obtained in their lawsuit against the city of Berkeley in future activities.

Back in October 2016, Sonja Trauss, self-described as a potential resident of the proposed project, and Daniel Aguilar-Canabal, self-described as a Berkeley resident, sued the city of Berkeley over the Council's reversal of a use permit granted by the Zoning Adjustments Board (ZAB) that would have allowed three separate duplex buildings on a single lot at 1310 Haskell Street, zoned R-2A.  The three buildings met Zoning Code requirements, but the Council denied the permit on appeal using the broad discretionary power given to them through a 1975 citizen-backed Initiative (The Neighborhood Preservation Ordinance) that was subsequently incorporated into the Zoning Code.  This established that a use permit would be required whenever a residential unit was proposed.  SF BARF filed a petition asking that the Superior Court overturn the Council's decision.  The court decision which the city of Berkeley agreed to, covered 5 points:

  1. Rescind the resolution denying the Haskell Street permit.
  2. Reschedule a new public hearing regarding 1310 Haskell Street.
  3. Comply with the HAA in the Haskell Street rehearing.
  4. Conduct an HAA analysis as part of the project review for all pending and future housing construction project applications.
  5. City to pay BARF's attorney fees and costs, $7,375.

Before the 1310 Haskell Street project came back to the Council for rehearing, an appeal was filed regarding a new housing project at 2702, 2704 and 2706 Shasta Road which would require a HAA compliance analysis.

The application for the 2702, 2704 and 2706 Shasta Road Project was submitted by Matthew Wadlund who operates a Berkeley Design Studio located at 805 Jones Street, Berkeley.  His website states he specializes in the “design, detailing and construction of contemporary, high performance buildings.” He presented the plans for the project to all of the neighbors surrounding the proposed site and, per the neighbors had them sign that they had seen the plans.  Although a few neighbors refused to sign, he presented the signatures he had obtained to ZAB using them as evidence of neighborhood support for the project.

On September 22, 2016, the Zoning Adjustments Board (ZAB) unanimously approved the construction of three separate homes at 2702, 2704 and 2706 Shasta Road to be constructed side-by-side on three adjacent lots in the North Berkeley hills.  While presented as three separate proposals, the houses are to be constructed simultaneously as one large development.  Two of the houses will be built at the rear of lots on what was once a tennis court and the third will be built on a steep empty lot that has never been developed.  All three lots have a steep 68 foot front section that contains 19 coast oak trees which are protected by Berkeley's tree ordinance, limiting the buildable portion of the site to a much smaller area than indicated on the permit application.  Further, this front section slopes down to Shasta Road from the driveway at 2702 Shasta Road and greatly exceeds an 8% grade so it cannot qualify as usable open space for the project according to the City's Useable Open Space Ordinance.  The true angle of the slope fluctuates between 20 and 30 degrees (36% to 58% grade).
Entry to spring sits on 2740 Shasta Road, a foot from the retaining wall of the tennis court where
the proposed development would be built.
Spring abutting the tennis court sits directly uphill of proposed development.  Picture taken on
January 11, 2017.

Each proposed house is large — three stories, ranging in size from 2,720 to 3,136 square feet, and while each has three designated bedrooms each also has other rooms (media, yoga, study, den, etc.) that meet Berkeley's definition of a bedroom so that each house has at least five spaces that could be bedrooms.  Access to each of the houses is via a 12 foot wide steep driveway that opens onto Shasta Road at the northern end of the three lots, then veers across all three lots to their southern end, then turns left and goes back across all three lots to the northern end, providing parking to each of the three houses on the upper turn.  2706 and 2704 have two parking spaces at the house, 2702 has one parking space at the house and two at the Shasta Road street level.

City Staff maintains that the houses themselves meet the R-1H Zoning Code except for the backyards which are reduced to 7 feet (20 required) because they back onto a slope that rises sharply up to further development on Northgate Avenue above.

No one in the neighborhood has ever come forward in support of the project.  Twenty four neighbors signed the original appeal, and an additional 20 joined in an expanded appeal.  All 44 signatories were within the project designated impact area of the property.  The neighbors raised seven issues that ZAB did not consider and which had they been considered would have probably required additional permits that ranged from an Administrative Use Permit to a Variance.  The neighbors wanted the project to be remanded back to the ZAB, specifically stating they were not opposed to a project at this location, but building three houses to the maximum allowed without considering all the factors involved with this particular site was not responsible planning.  Three of the seven appeal issues are as follows:

  • Creeks and Swales, Landslide Zone and Geotechnical Concerns:
  • All three of the houses are within the U.S.  Geologic Survey designated landslide area and will undergo not only landslides triggered by an earthquake but severe shaking.  This specific site has a history of sliding when in 1939, the land slid out onto Shasta Road.  Photos were submitted showing cracks and slumps in the surface of the existing tennis court.  The project consultant dentified old landslide soil at the site, but indicated it was “feasible” to build in the area using modern construction methods, so this issue was dismissed.
  • However, a question remains as to whether a part of the total development is within the Alquist-Priolo Earthquake Zone (Hayward Fault), or immediately adjacent to the Zone's edge, or just outside of it.  The map presented to the Council by staff at the public hearing clearly indicates that 2702 Shasta Road is inside the AP Zone.  However, different documents within the administrative record state different opinions as to whether the site is in or not in the AP Zone.  It is important to keep in mind that the exact location of the Hayward Fault is not known in his location so, therefore, the exact edge of the AP Zone is not known either.  The Hayward Fault is considered to be the most dangerous fault in the entire Bay Area.  This issue was also dismissed.
  • Neighbors additionally referred to the existence of a spring on the property.  Photos were submitted, but staff would not consider the issue because a potential creek is not indicated on the City's creek map.  Readers may remember the huge issue regarding creeks in Berkeley a few years ago.  An important part of that issue was the acknowledgement that the City's map was not reliable in identifying creeks.  City regulations prohibit construction within 30 feet on both sides of the mid-line of a creek.
  • Fire Safety and Accessibility of Emergency Vehicles:
  • Steep 12 wide driveway to proposed three houses
    Shasta Road, looking north from where steep driveway opens onto the street
    As noted above, the three houses are served by a single 12' wide steep driveway that opens off of Shasta Road which is only 20 feet wide.  The addresses in question are on the City's official list indicating inadequate response times for fire and emergency vehicles.  This was pointed out.  It was also pointed out that a person was killed in the past because a fire engine could not get through Tamalpais Road near its intersection with Shasta Road at this location.  (Tamalpais Road intersects Shasta Road in front of the three lots where the development is proposed.) Neighbors also submitted a link to footage taken from a security camera of a garbage vehicle striking a parked car in this same area on December 15, 2016.  And even if a fire truck or emergency vehicle were to reach the driveway in time, they would not be able to drive up to the houses because of the steep narrow driveway, and hoses and other equipment will have to be hauled up manually by responders.  This issue, too, was not discussed.  Instead, staff noted in their report to the Council that ZAB heard the testimony by neighbors about this, but approved the project because it “meets all applicable development standards” but that “prior to construction the dwelling must comply with Building and Fire Codes regarding access requirements.  Technical review of Building, Public Works and Fire Codes are not within ZAB's purview.” Neighbors maintain it is only common sense that it is preferable to know whether the project meets safety access standards before land use permit decisions are made.
  • Parking:
  • Parking is provided that is more than the minimum required (one space that does not take into consideration the number of bedrooms in each house), but this does not resolve the project's parking problems.  It is likely that drivers, such as guests and delivery vehicles, not used to the driveway, will be discouraged from using it by its steep, narrow width and having to navigate turning around to descend, so they will park on the already congested and too narrow (20 ft wide) Shasta Road, worsening that problem.  No doubt, occupants, at times, will leave cars parked along the driveway.  These possibilities simply serve to exacerbate the parking problems that three large houses on this particular site will bring.

With all of these major site problems, City staff determined, and ZAB agreed, that the project was categorically exempt from requirements under the California Environmental Quality Act (CEQA), Section 15303 (New Construction of Small Structures), including that the project wasn't located in an “environmentally sensitive area”, and posed “no significant effects.”

The appeal was heard by the new eight-member City Council on January 31, 2017.  It was the very first public hearing on a land use issue to be heard by the new Council who had been elected on a platform of listening to the concerns of neighborhoods in regard to new development.  An expanded appeal had been filed timely by the neighborhood on January 17, 2017 and was not included in the regular packet but instead was in the “Supplemental Communications.” It was not evident during the hearing that it had been read by anyone.  The public hearing was held in the usual format with the only support for the project coming from a contractor who lives in a different area of the City, the applicant's realtor and one non-neighbor who had a vacant lot in the hills that he wanted to develop.

Planning Staff dismissed many of the appeal points and recommended approval of the project.  The “analysis” of the Housing Accountability Act which the court mandated consisted of the Staff quoting §65589.5(j) that states that when a proposed housing development complies with the general plan and zoning standards but a local agency wants to deny or reduce the density of a project, the agency must base its decision on written findings supported by substantial evidence of a specific adverse impact on public health and safety and that there is no feasible method to avoid that adverse impact.  Staff had not prepared any such written findings per their explanation:

“The project has one proposed element which does not comply with applicable, objective general plan and zoning standards in the zoning ordinance, a reduction of the rear yard setback.  Therefore, the findings required by §65589.5(j) do not apply to this project.”

In other words, an analysis had not been deemed necessary because the issues raised in the appeal had been treated separately and dismissed.  The HAA defines that “specific adverse impact” means “significant, quantifiable, written public health or safety standards or policies, or conditions as they existed on the date the application was complete.” If, for example, the City's list of addresses where emergency vehicle access is impeded or where the presence of a creek would restrict or prohibit development, would not trigger undertaking a detailed analysis, what policy or condition would ever meet that requirement? Additionally, no consideration was given to whether the existence of all of these points taken together should have triggered a closer look and subsequent analytical evaluation.

With hardly any discussion, the Council approved the project on a vote of seven Yes (Mayor Arreguin and Council Members Bartlett, Droste, Hahn, Maio, Wengraf, and Worthington), and one Abstention (Council Member Davila).

What happened here goes to the very heart of the disputes over new residential units being proposed to be constructed in already built-up neighborhoods.  Does the HAA signal the end to the City's discretionary power to seek a balance in our growth between existing and new development? As the City has undergone growth, the goal of the Council's discretionary powers has been to provide better projects in the already dense urban environment of this community.

We will report on the outcome of the Haskell Street rehearing in our next issue.  In the meantime, we urge every neighborhood to begin the conversation that these issues have now raised.

We will also report on two landslides that are threatening homes in the North Berkeley hills, so stay tuned.