Berkeley Neighborhoods Council
Dedicated to improving the quality of life for all
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:
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…
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:
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
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:
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:
** 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:
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.
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:
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.