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.  There are two parts in today's post:  One regarding rezoning of the R-1A District and one regarding approval of a project at 2597 Telegraph Avenue in an R-2 zoned neighborhood.  Both were submitted by representatives of the their particular area.

Planning Commission Fails to Solve R-1A Zoning

By Toni Mester for Friends of R-1A

After four meetings and two consecutive public hearings on the subject of R-1A zoning standards, the Planning Commission has failed to resolve the problems of overbuilding in West Berkeley residential neighborhoods.

Although a neighborhood group Friends of R-1A and other members of the public have submitted research and recommendations, the Planning Commission Chair has failed to find consensus.

Instead of sending a recommendation to the City Council, it appears that the notice of public hearing will be revised and re-published for the July meeting.  One of the problems is that the scope of consideration was too narrow, limited to the standards affecting the second unit only instead of the entire parcel including the front house.

The problems are so long standing that the Council first referred the matter to the Planning Commission in September 2010, asking for clarification of the size relationship between the two “main buildings” and suggesting several possibilities for the proportions.  The Council also directed the Planning Commission to “consider floor area (FAR) standards, as well as lot coverage and setback standards and any other standards that might further clarify the situation.”

The R-1A rules had been ignored since the 1960's when the areas were down zoned from R-2 and R-4 to R-1A, which permits only two units per lot.  The groups that worked on the West Berkeley Plan of 1993 did not review the “residential core” but instead focused on subdividing the M zone.

In 1991 the uniform height limits on residential buildings throughout the city were raised to 28-35 feet, so that the development envelope of buildings in the rear of lots shot up to three stories in the R-2 and the R-2A as well, which became a factor in the infamous 1310 Haskell Street appeal.

So resolution of the R-1A problems may well affect the other two zones as well.  Of the three low-to-medium residential zones, the R-2 is the largest.  The current uniform height for more than one “main building” on one parcel is a recipe for creating large condo-houses on insufficient open space, as the minimum lot size for such development is only 4,500 square feet.

In West Berkeley alone, 33 parcels have been subdivided into 984 separate condominiums, even though the law prohibits the creation of a parcel of less than 5,000 square feet.  The developers and the City get around this prohibition by designating the original lot as a common area with a separate assessor's parcel number;  it's a legal fiction that allows the separate sale of each house.

The creation of condo-houses has not been a subject of extended discussion at the Planning Commission, although it's at the heart of the matter.  Instead the height of the second building has emerged as a primary consideration.  Gene Poschman, the Chair of the Commission, and the Friends of R-1A recommend one story, while staff wants two.

But the neighbors also want a smaller envelope for the front building, a sun light access plane, and a floor area ration of .4 for two buildings and .5 for a duplex, to advantage one building with two units.

Owners of single-family houses in any zone can build an accessory dwelling unit up to 750 square feet, either detached or internal, but a detached ADU cannot be sold separately, and a parking space is not required which provides protected child play area, landscape, and garden space between the main building and the ADU.

In the case of two “main buildings” whether condos or not, an off-street parking space is required, usually taking up protected open space in the middle of the lot and adding a long driveway into the inner block.  This elimination of serene and green open space has become an issue throughout the City.

At this juncture, we urge supporters to write to Alex Amoroso, the Secretary of the Planning Commission, in support of widening the scope of the next public hearing to include the height of the front house, an FAR, lot coverage and daylight plan.

Proposed Development at 2597 Telegraph Ave

By the Parker Street Neighbors Group

We agree with most everyone in Berkeley (from investors to housing advocates) that providing more housing is a good thing.  However, some developers are using this fertile political climate to build with an abusive disregard for planning, zoning, and the City's neighborhoods.  This is the story of how one such developer got much more than he should have, leaving neighborhood residents wondering who's minding the store.

The Landmarked building facing Telegraph Avenue (Gorman's) is on the left.  This rendering
was submitted by the Developer and shows the project taller than Gorman's and the building
behind and to the right is a non-conforming building in the adjacent residential zone.  The rendering
does not show the existing small conforming R-2 buildings to the south and east.

It started in January 2015 when the owner-developer submitted an application to build a massive 4-story, sidewalk-to-sidewalk building on the split zoned R-2 and C-T lot that begins behind the landmarked Gorman's Building at 2597 Telegraph Ave, and continues along Parker to Regent Street.  The entrance of this 4-story building would be on Regent Street where the lot is zoned R-2 and all corners at that intersection are also zoned R-2 and developed with existing modest 2-story structures.  The developer proposes building ten residential units with underground parking for a car share business currently using the lot.  Each of the ten units would have 5 bedrooms and 2 bedroom-size sleeping lofts for a total of 50 bedrooms and 20 sleeping lofts.  One of the units would be affordable, nine would be market-rate.  If built, this would be the largest building built in this R-2 Southside neighborhood in over 50 years.

For over a year and a half, this proposed project quietly proceeded through the City's approval process, but was generally unknown to neighbors within 300 feet of the project who would be most affected) until a week before the second and final Zoning Adjustments Board (ZAB) meeting on June 23, 2016.  When they learned of the project details and location, they submitted over a dozen letters in opposition and several spoke at the ZAB meeting.  Despite the opposition, ZAB approved the project.  The neighbors filed an appeal signed by 40 near neighbors.  On March 28, 2017, the City Council heard the appeal but ignored neighborhood concerns, the Zoning Code, General Plan and Berkeley Municipal Code (BMC) and confirmed ZAB's approval.

Although the neighbors will file a lawsuit, it is critical at this juncture for Berkeley citizens to see how this egregiously out-of-scale mega-dorm project achieved approval, thereby setting a troubling precedent for neighborhoods throughout Berkeley.  This is how it happened.

First, the developer was allowed to minimize community involvement by using multiple site addresses making it confusing and difficult to find information and also by not fulfilling the public notification requirements of the application process.

Required Public Notice Signs which provide information on the proposed project were not installed and maintained on the site.  For such a large project, the requirements are:  4' by 4' size;  weather-proof;  posted at a visible height;  facing all streets;  include relevant information;  and maintained for the life of the application process.  The project application contains a photo of one small cardboard sign on a low fence with the wrong address (even after ZAB approved this project, requesting information using this address resulted in the Planning Department telling the public there was no project proposed for this site).  None of the near neighbors ever saw this small sign.  Further, when the legal notices for the City Council hearing were posted onsite, the site was conveniently cleaned a few days later and all notices were removed via power-washing.  Perhaps other legal notices were also posted but quickly “disappeared” before neighbors saw them.

The developer did not meet with abutting and confronting neighbors to discuss the project and have them sign the project plans to show he had done so.  None of the near neighbors remembers receiving an invitation to a meeting.  However, the application included a list of 10 meeting attendees, most of whom live outside the area.  When the neighbors contacted one of the non-neighbor attendees (an acquaintance of the architect through Berkeley Architectural Heritage Association) before the final ZAB meeting, she said there was no use in opposing the project and that ZAB approval was a “foregone conclusion”.  It seems that outsiders had significant influence while near neighbors were left in the dark.

No onsite signage and no contact with near neighbors left the community largely unaware of this project and allowed the City to indicate there was no opposition.  When the neighbors complained that the “required” community notification process had not been followed, the Planning Department responded that the “requirements” are not really required because there is no consequence for not fulfilling them.

Second, the city did not enforce its own laws, plans, and regulations.  For example, the City did not enforce city requirements regarding the state density bonus law.  One of the ten units would be “affordable”;  the other nine would be market-rate.  State law says that if a developer offers a certain percentage of affordable units, they are eligible for a density bonus and 2 concessions of development standards, such as height and setback regulations.  In this case, the one affordable unit, made them eligible for up to 3 additional bonus units.  But given just 2 concessions, 3 bonus units won't fit into the site (probably because each unit has effectively 7 bedrooms!), so they asked for 7 additional waivers/modifications which the City had the discretion to grant or deny.  Staff did not inform ZAB they had this discretion under state law.  Instead staff recommended granting all the concessions and waivers and ZAB, believing they had no choice, granted all.

Other design elements which are in violation of development standards in the Berkeley Municipal Code were simply ignored.  For instance, the developer proposes using 4th-floor balconies as 100% of the required usable open space.  However, BMC 23D.04.050B states balconies can only satisfy 50% of the usable open space requirement.  The other 50% must be ground level open space.

Third, the developer did the old bait and switch.  The City is hungry for projects that will house local workers such as teachers and firefighters and their families.  Even though most Berkeley families do not need a 5-bedroom unit with 2 sleeping lofts, the developer promoted this project with ten such units as “family housing” and several ZAB members expressed approval based on the purported middle-income family who would reside there.  Privately, the developer admitted it is not “family housing”;  it is student housing.  In public, the Planning Department said the lofts were for storage;  in private, they admitted the lofts were for sleeping.  By the time the project reached the City Council, they saw the neighborhood opposition and understood this was student housing, but they felt pressured by the ZAB decision and did not want to be seen as an obstacle to providing more housing.

Fourth, the Planning Department has both great discretion and influence.  In addition to not enforcing their own requirements for public notification, the Planning Department also made several “required” studies disappear.  For instance, a shadow study showing loss-of-light impacts on neighboring residents was required, but the study was less than 20% complete, and although a traffic impact analysis was required by all triggering criteria, staff said the traffic engineer decided it wasn't necessary.  These required studies would have provided evidence that this project will pose a significant detriment on the neighborhood and therefore cannot be approved per BMC 23B.23B.32.040.  So they simply were not done.  Opposition was suppressed.  At the second ZAB meeting, the staff report included discussion of two letters which favored the project, but did not mention the dozen or more in opposition.  Staff verbally presented a few opposition concerns and assured ZAB these concerns had been addressed or were without merit.  At the first ZAB meeting, the appellant for a different site, 2211 Harold Way, told ZAB that an opposition letter regarding 2597 Telegraph had been “misfiled” in her file.  Both the Planning Department and ZAB were indifferent.

And while the Planning Department promotes the General Plan (GP) in support of a project, it considers the GP unenforceable if it gives grounds to deny a project.  The proposed number of residents per acre for this project is over 700% more than the maximum that the GP and Zoning Code considers suitable for this site.  As long as the GP is unenforceable, the planner-developer complex wields substantial influence over what actually gets built.

Fifth, the city conducts no independent fact checking.  The applicant presented drawings of the project which made the massive building look small and more in scale with the neighborhood.  They also can present bogus financial numbers.  Even to get the 2 concessions, the applicant must show that he needs those concessions (and any additional waivers) to make the project financially pencil out.  It appears that the City does not check the applicant's financial justification and that he could easily lowball his income.  We asked what he expected to get in rent and he floated a figure that was less than half of what he could actually charge.

Our city planning decisions seem to rely not on City land use laws and standards, but on one City project planner and the developer.  ZAB seemed unaware of important details of the project and both ZAB and Council relied on the developer and planner to allay their concerns.  During the City Council hearing, Council Members asked questions of the Planning Department and developer and accepted their answers.  There was no independent fact checking or questions to the appellants.

That's how to get a project approved in this environment of a developer-friendly Planning Department.  Don't inform the public, tell the City what it wants to hear, dismiss any opposition, and get the project through ZAB before anyone gets a good look.

We are concerned that the process which is supposed to adhere to Berkeley laws broke down and set a precedent for future development.  The site is half zoned R—2 (low medium residential, with one 2- story house on this lot) as is the entire neighborhood to the east and south.  The number of potential residents of this project alone is similar to the number of residents in an entire square block zoned R-2.  This is a huge project that should have followed all City requirements and undergone a thorough review.

Some projects like this one were built in the 1960s before the City realized their mistake and wrote new zoning laws that exist today.  One of these older, larger “grandfathered” buildings was used in this instance to justify ignoring current zoning.  These older, larger buildings are scattered among lower density zoning districts in other areas of Berkeley, and so this project opens a pathway for developers to follow in getting approvals without consideration of current zoning regulations.

This type of project contributes to the expansion of an area south of campus known to students as “no man's land” where activities such as loud late-night parties, underage and public drinking, littering and illegal dumping are considered normal.  These negative effects are exacerbated by attitudes expressed by decision makers when they say “that's what you get for living so close to UC” or “what do you expect when you live in the Southside”.  Such attitudes inform decisions at all levels, from land use planning to enforcement, and serve to weaken neighborhoods and destabilize communities.

What we expect is that the City will uphold its laws and requirements in all parts of the City equally.  Ignoring City requirements, the BMC, zoning laws and the GP, gives the developer and one City planner the authority to determine whether our neighborhoods will be safe, peaceful, and livable.  In this developer-as-city-planner model, neighbors are seen as obstacles rather than well-informed sources of site-specific conditions.

Neighborhoods should be empowered, encouraged, and represented by their City leaders.  Existing laws and other requirements should be used to promote and strengthen neighborhoods, not ignored so as to weaken and destabilize neighborhoods.  In this case, that didn't happen.  Instead, the Planning Department assured the Design Review Committee, Landmarks Preservation Commission, ZAB, and City Council that all requirements were met and that the issues raised by the opposition were either addressed or “without merit”.  And so, a project got approved that is 8 times bigger than what's acceptable — one that will adversely impact us for the rest of our lives.

In conclusion, we asked several Council Members and the developer if they would live in this project.  They all said no.  The city has spent a lot of time and resources to develop plans, laws, rules, and requirements that, if used, can ensure that all Berkeley citizens (not just the fortunate) can enjoy a good quality of life.  We encourage the City to follow their own processes to provide high-quality housing for all that is suitable for a broad diversity of residents.  The City has the responsibility to make an informed determination that a proposed project will not result in detriment to residents, neighbors, and the City.  We should not have to rely on the courts to review all the information and make these decisions for us.