Berkeley Neighborhoods Council


Dedicated to improving the quality of life for all
by creating a unified neighborhood voice
for promoting livability and resolving problems


What We're Thinking About

Our previous issue was all about conserving water and managing to get here and there without getting too wet from the rains.  Today, drought restrictions have been lifted, but the Governor is still advising that we continue to conserve.  We are also advised that the price of water will probably go by about 19% over the next two years partly, because we are continuing to conserve.  Seems you can't win for trying, but conservation is still good, no matter what, because scientists say we'll have more severe droughts in the future.  Better to get into the habit of conservation now and stay there!

Then in mid-June along came the news that routine sampling of the Berkeley reservoir at 1431 Summit Road and one in Orinda revealed a contaminant level of 80 parts per billion of THMs.  THMs are the by-product of chlorine with naturally occurring organic such as leaves, brush, etc.  matter in water.  THMs are considered to be a cancer causing chemical and a cause for public health concerns when over 80 parts per billion is consumed over a period of time.  The East Bay Municipal Water District has apparently known that levels of THMs were rising, but they don't have to let the public know until the level is over 80 parts per billion until it happens for four quarters in a row.  Apparently, the rising THM levels are at least partly caused by the drought, conservation efforts to reduce water usage, and warm temperatures.  EBMUD began addressing the problem by flushing 90,000 to 120,000 gallons of water from the Summit Road reservoir into the Bay and are considering other short and long term actions.

BNC has a couple of pressing questions that we are putting to EBMUD:

  1. What's the impact of flushing this contaminated water into the Bay?
  2. Since Berkeley has more than one reservoir, are some areas in Berkeley more affected than others, or is it the entire City?
  3. Was the discovery of 80 parts per billion, in the first of four quarters, or if not, in what quarter did this discovery occur?
  4. The problem was reported in Bay Area newspapers, but there is no easily accessible information available to the public on the EBMUD website.  When will such information providing the public with information be available?

We think Berkeley neighborhoods deserve some straight answers.  We'll let everyone know.

Enough said on that subject, and let's get on to this eNEWS issue which is mostly about Berkeley's failure to plan early and well.  Where to build, how high, how much and for whom is still a hot topic.  We'll begin our report by repeating below the remarks we made in our last edition.  We're doing this because it's important to what came afterwards, so we want you to know exactly what those previous remarks were…

“While we aren't getting involved in Berkeley politics, we do intend to, from time to time offer some news about what is going on.  We thought that you might want to know that the Berkeley Democratic Club (BDC) Nominating Committee is recommending that the following slate of officers be elected:

President:  Laurie Capitelli
Vice President:  Deborah Mathews
Vice President — Programming:  Julie Holcomb
Treasurer:  Fred Harvey
Secretary:  David Shiver

Aren't these the same people who forgot to insist that affordable housing should be part of the building boom in Berkeley? Do you think this makes the BDC the most conservative organization in Berkeley? What do you think? The election is scheduled for Thursday, March 23, 2017, Northbrae Community Church, 941 The Alameda.”

That was what BNC said in its entirety in our last eNEWS issue.  Since then, BDC not only elected the people as listed above, they also held a Forum, Planning for a Better Berkeley, on April 27 also at the Northbrae Community Church.  About 30 people attended, including Council Member Lori Droste and her Legislative Aide, Ben Gould, former candidate for Mayor who later also ran for Council-District 4 and lost.

Newly-elected BDC President, former candidate for Mayor and former Council Member, District 5, Laurie Capitelli, opened the meeting by thanking David Shiver, former BDC President, now BDC Secretary, for putting together the program.  Speakers were:

Carol Johnson, Berkeley's Planning Director

David Shiver, Co-convener, Southside Neighborhood Consortium

Eric Panzer, Board Chair, Livable Berkeley

Dean Metzger, Southside Neighborhood Consortium and Berkeley Neighborhoods Council

BNC notes the conspicuous absence on this panel of any representation from the Adeline-Alcatraz area and west of Sacramento Street where residents have been engaged in several high-profile planning controversies.

Carol Johnson opened the program with the surprise announcement that she was leaving the city of Berkeley to go to Maricopa County, Arizona on May 17th.  She then gave a general overview of land use regulation beginning with a mention of a 1928 court case, Euclid v Ambler* which she cited as the beginning of zoning in the U.S.  The substance of her presentation was that zoning law is limited — it must be reasonable, not arbitrary, not unduly restrictive, but reflect a balance between property rights and community wishes.  Berkeley's zoning law is stated in Title 23 of our Municipal Code and is further shaped by State and Federal law which override local regulations on such issues as cell towers, density bonus requirements, and storm water regulations.  She described Berkeley's Zoning Ordinance as being “very flexible” with extensive submittal requirements and many levels of review, so that it takes a long time to reach a decision, and from the beginning there is “significant uncertainty.” Residents can sign up to receive notices of hearings and see material on the City's website.  She further stated there is new software in the offing and a consultant is looking at revisions to the Zoning Ordinance to address equity, bring Climate Action Plan policies into the Ordinance, and update it because of new State laws.  She stated there is a need to focus on processes to “avoid creating barriers” and that since the last time structural changes were made occurred in the1990s, the consultant will be looking at “clarifying procedures” and “eliminating redundancies and unnecessary complexities.” The timeline for this is

Phase I:  Identification of what needs to be done, June 2017

Phase II:  Recommendations as to approaches to take, August 2017

Phase III:  Draft Zoning Ordinance

Phase IV:  Adoption of Revised Zoning Ordinance, Spring 2019

David Shiver began his presentation by describing the Southside Neighborhood Consortium (SSNC) membership as the Claremont Elmwood Neighborhood Association , Bateman, LeConte, and Willard Neighborhood Associations, the Piedmont-Parker Neighborhood Watch, and Berkeley Neighborhoods Council.  He stated that SSNC has produced a white paper on zoning which describes Berkeley's planning problems as involving an outdated planning process, having a “laissez faire approach to density”, and utilizing a protracted review and approval process, all of which results in a lack of certainty for developers and residents.  Shiver provided the Ashby Arts Building, corner of Ashby and San Pablo, which has no setbacks to abutting residential property on Ashby Avenue, but does have set backs to residential properties on the other end of the building as an example of an “inequitable outcome.” He stated State law requires cities to have a General Plan which is supposed to reflect that city's community vision.  Around 1970, State law required that zoning ordinances and general plans be consistent in general law** cities.  In general law cities, if a proposed project doesn't meet the requirements of the zoning ordinance then a developer must ask for a general plan amendment.  This is very difficult and time-consuming, so it rarely happens.  Berkeley, as a charter city, does not have to meet this consistency requirement.  SSNC wants Berkeley to adopt a consistency ordinance.  He stated that Berkeley also does not have either a Density Bonus Ordinance or Design Standards.  There are such standards in the Downtown Plan, but nothing for the whole city.  He gave as an example that buildings on El Camino Real are required to be stepped down to the street along a 45 degree angle measured from the top.  Another example he provided was the city of Santa Cruz Accessory Dwelling Unit Design Manual.  Other issues raised by SSNC that are missing in Berkeley are:

  • Historic preservation using transfer of development rights
  • No Quimby Act fees (park fees)
  • Citywide financial feasibility
  • Review and revise inclusionary housing requirements

Eric Panzer began his talk by stating that he thinks SSNC is taking steps in the right direction, but the real problem is change and the attitude toward change.  He believes that new housing is “tainted” in a negative way and this negativity is at the heart of his concerns.  He said there is no such thing as “value-neutral development standards or procedures” and that you can't have “certainty for neighbors without certainty for developers.” Berkeley's current review process offers too many points for opponents to enter the discussion and there is a need to be more straight forward.  Further, the Zoning Ordinance should be simplified to allow “by-right” projects (up to some size-not stated) that comply with the standards in the Ordinance.  He thinks allowing Accessory Dwelling Units is good, but Berkeley needs to go further.  He gave as an example,1301 Haskell Street, stating that the project that was rejected actually was less dense than what the Zoning Ordinance would allow — so it's not about the Code, it's about “change.” He said, “Nearly all areas should allow small multi-family structures.” Berkeley should “end single family zoning — except in some areas” (not described),and “detriment should only be considered for non-compliance projects with small projects subject to staff review only.” Panzer was very clear about his vision for Berkeley:  “Processes with greater clarity do not guarantee outcomes.”

Dean Metzger concentrated his remarks around the issue of “detriment”.  Of the points listed by SSNC regarding Berkeley's planning problems, “detriment was the #1 issue.” He stated there is no definition of detriment*** in the Zoning Ordinance, and one needs to be added.  He pointed out that in the SSNC white paper on zoning, the number one issue is the lack of clear detriment standards.  In a study he did, he found that over the last 2 1/3 years there were 27 plus appeals to the City Council regarding projects approved by the Zoning Adjustments Board.  That number could be reduced if Berkeley had clearly defined standards and that “detriment doesn't mean anything” in our Ordinance.  We know what the words “detriment” and “unreasonable” mean in everyday language, but they are not defined anywhere in our Code — it's left up to the judgment of members of the Zoning Adjustments Board and City Council.  New State laws, SB 35 Streamlined Approval Approach and, SB 167 Housing Accountability Act have been enacted that impact local zoning laws, so it is more important than ever that we define what is a “detriment.” The Council must insist that the Planning Commission and ZAB work together to find a solution to this problem, and provide a timeline for that to occur.

There wasn't much discussion after the presentations, except for one question to Carol Johnson about the basis for approval of three large houses (3 stories, each with 5 or more bedrooms) to be constructed on 3 lots located in a designated geologic hazard zone with restricted Fire Department and Emergency equipment access.  Ms.  Johnson defended approval of this project by stating that the project had to be approved because it met most Zoning Code provisions.

This is what came next:

After the meeting adjourned, Ms.  Deborah Mathews, Berkeley Democratic Club Vice President, former member of the Zoning Adjustments Board and former candidate for Council District-3, approached Dean Metzger and loudly and vehemently stated that in the last issue of our BNC eNEWS she had been accused of “being in the pocket of developers.” Metzger replied that if that is what she believes, she should send BNC a statement and we will post it in our next eNEWS.  We've reprinted (see second paragraph of the beginning of this article) the exact wording of what was said in our previous issue, so you can decide for yourself the validity of her charges.  To date, we have not heard further from Ms.  Mathews, but if she does send us something, we will certainly post it exactly as she has submitted it.

Special Notes We Thought You Might Like to Know:

* We were so intrigued by the mention of Euclid v Ambler, so we looked it up, and this is what we found.  The year the decision came down was 1926, not 1928 as stated by Ms.  Johnson.  Ambler Realty owned 68 acres in the town of Euclid, Ohio, a suburb of Cleveland.  Euclid wanted to prevent industrial growth from destroying the character of their village (sound familiar) so they wrote a zoning ordinance that would prevent such growth on Ambler's property.  Ambler Realty sued Euclid on the basis that the value of their land had been reduced by limiting its uses without due process.  The case went all the way to the U.S.  Supreme Court which ruled that the Zoning Ordinance was not an unreasonable extension of Euclid's police powers and did not have the character of arbitrary fiat and therefore was not unconstitutional.  Key rulings were:

  • Speculation is not a valid basis for a claim of takings.
  • In a due process case, there has to be a showing that the law is discriminatory and does not have a rational basis.
  • Zoning Ordinances, regulations and law must have their justification in some aspect of police power and asserted for the public welfare.  Benefit for the public welfare must be determined in connection with the circumstances, the conditions and the locality of the case.

** Regarding “General Law Cities” and “Charter Cities”:  General Law Cities are bound by the State's general law, regardless of whether the subject concerns a municipal affair.  They generally have less autonomy than Charter Cities.  A Charter City has a form of government defined by that city's own charter rather than by the state.  For example, a General Law City is a city managed by a city council, while a Charter City can choose its form of government such as “strong mayor” or “city manager.”

*** Regarding “Detriment”:  Berkeley Municipal Code Section 23B.32.040, Findings for Issuance and Denial and Conditions states:

A.  The Board may approve an application for a Use Permit, either as submitted or as modified, only upon finding that the establishment, maintenance or operation of the use, or the construction of a building, structure or addition thereto, under the circumstances of the particular case existing at the time at which the application is granted, will not be detrimental to the health, safety, peace, morals, comfort or general welfare of persons residing or working in the area or neighborhood of such proposed use or be detrimental or injurious to property and improvements of the adjacent properties, the surrounding area or neighborhood or to the general welfare of the City.

Five days before the BDC Forum, on April 22, 2017, BNC sent a letter to the Mayor and Council with a copy to the City Clerk regarding ”Appeals-City Planning and Neighborhood Concerns“.  Here is the full text of that letter.

In the past two and one half years there have been 27 projects approved by ZAB that have been appealed to Council.  This means that 27 Council meetings have been required to decide how to settle disputes between the neighborhoods and the development community.  This has been a waste of the Council's and the public's time.  You have better ways to spend your time resolving issues like the homeless problem, our city's financial well-being, providing open space, reducing crime etc.

From the Berkeley Neighborhoods Council's point of view, this is caused by the apparent lack of the Planning Department to consider neighborhoods' concerns seriously.  The Planning Department pushes ZAB to approve any and all development, regardless of its impacts on our community.  As we see it, this has created an appeal process that is a burden on our resources.  It appears the Planning Department favors the development community instead of serving Berkeley residents.  They find ways to ignore the Zoning Ordinance so that all projects are acceptable.

Those in the development community and those who support them call us NIMBY's.  We do not believe we are because we have never said we oppose development.  While developers conduct meetings with the neighborhoods, those meetings usually are sessions where the developer tells the neighbors what the plan is, ignoring the issues raised by the neighbors.  They most frequently turn out to be one-way conservations.

It seems everyone agrees that our planning process is broken and needs to be fixed.  The Planning Department has hired a consultant to review the zoning ordinance and make recommendations for changes.  This is not widely known by the citizens of Berkeley.  There have been no public hearings to get input from the community.  It probably means whatever changes are made will be adopted regardless of what we say.

We all know the zoning ordinance is out of date and its anachronistic features are part of the problem.  The following is a partial list of things that need to be brought up-to -date:

  1. No density parameter
  2. No lot dimensions
  3. No FAR (Floor Area Ratio)
  4. No forms or building types
  5. No diagrams
  6. No daylight plane
  7. No design standards
  8. There are more

We would ask the Council to review this concern with all stake holders input so that the Planning Department can serve both the neighborhoods and the development community.

Dean Metzger
For Berkeley Neighborhoods Council

Then on May 14, 2017, BNC sent a letter to City Manager Dee Williams-Ridley requesting a meeting with her.  Here is the text of that letter:

At the the Berkeley Neighborhoods Council (BNC) meeting on May 13, 2017, the resignation of our Planning Director (Carol Johnson) was discussed.  We are concerned that a new planning director will be appointed without our neighborhoods input.  Our main concern is that the new director be a fair and impartial person what will give neighborhood issues as much weight as the developers now have and that all of our zoning laws are upheld.

BNC would like to meet with you to discuss the issues concerning the selection of the new planning director as soon as possible.  (There will be approximately 6 of us).

BNC would also like to request you give us permission to meet with the new city attorney when she begins her duties in July.

Please let us know when we can meet with you.

Dean Metzger

We are very pleased to report that City Manager Williams-Ridley responded and a committee from BNC will be meeting with her in the next few days.  We will report what happens at that meeting and again discuss the issue of creating a more transparent Planning Department that is responsive to all the voices involved in the future of our City at our next General Meeting.

All those who receive the eNEWS will receive a notice of the date, time and place of our next regular meeting and an invitation to each of you to notify any others you think should know about the meeting.