A Surprise Holiday “Present” from the City Council
On November 18, 2014, the Council held one of their Special Workshop meetings followed by a regular meeting at which they unanimously approved the first reading of the Berkeley Energy Saving Ordinance better known as BESO. With no notice of any kind to property owners regarding BESO, no public hearing, and the first reading already done, people caught another glimpse of BESO from an Information Report which appeared on the Council agenda of December 16, 2014.
The purpose of BESO is one that few would argue with. It’s to encourage participation in energy efficiency incentive programs that already exist for commercial, multi-family and single family homes. The information report further states that BESO is a:
key implementation action of the Climate Action Plan and is projected to result in substantial reduction in energy use and greenhouse gas emissions, as well as improve indoor air quality that will contribute to the health and well-being of occupants.
BESO would replace current ordinances that apply to residential and commercial buildings and require energy upgrades at the point of sale. Per City staff, these current ordinances are out of date and since they are based on sale of property, the numbers of properties that they affect diminishes each year. It was estimated that under these ordinances it would take about 70 years to reach Berkeley’s Climate Action Goals which are 33% below 2000 levels by 2020 and 80% by 2050.
OK, but what does this all mean? Just how will BESO accomplish the results that it wants to achieve?
- BESO applies to all buildings in Berkeley that are subject to City authority. This means that Federal, State, UC and Berkeley Unified School District buildings are exempt.
- Large Buildings with 50,000 square feet or more gross floor space must be in compliance with requirements by July 1, 2016. The compliance date for buildings of 25,000 square feet or more is one year later. To be in compliance, they must:
- Submit an Annual Energy Report that determines energy use intensity and a Performance Score based on utility usage data.
- Have a Registered Service Provider prepare the first energy report and one thereafter every 5 years.
- The summary Energy Report and Score are public documents and must be provided to all existing and prospective lessees and buyers.
- Medium Buildings with between 5,000 to 24,999 square feet gross floor space (excluding buildings comprised of 1 to 4 attached residential units) and Small Buildings with less than 5,000 square feet of gross floor space and any buildings comprised of 1 to 4 residential units, regardless of size have a phased in schedule. Buildings of 15,000 or more square feet have a date of July 1, 2018. Buildings with 5,000 square feet or more have a date of July 1, 2019. Small buildings, 5,000 square feet or less and buildings with 1 to 4 residential units have a date of July 1, 2020. These buildings must:
- Have a Registered Service Provider prepare a Building Energy Score upon the earliest date of sale, within 12 months of a lender having acquired title, or by the dates in the Ordinance.
- These reports shall be public and done on a 10-year basis for Small Buildings and on an 8-year cycle for Medium Buildings.
- Some Small residential buildings could have a low-income exemption.
- An Administrator will be appointed to set up rules and regulations and determine various specified exceptions, deferrals and extensions.
- Council is authorized to set fees for the administration of the Ordinance.
- Violations of the Ordinance are misdemeanors that may be charged as infractions.
- Appeals may be made to the City Council.
- The Energy Commission shall review the Ordinance within three years and may recommend revisions and/or incentive programs to accelerate improvements to low performing buildings.
The December 16th report included a “Participating Contractor List” with 57 names, five of whom are located in Berkeley. The list was compiled by the Bay Area Regional Energy Network (BayREN). Those on the list are described as independent contractors who are specially trained to conduct comprehensive home energy assessments and complete the installations required.
As people began to learn more about BESO, questions, particularly from home owners, were raised, with few answers provided:
- This is a mandatory audit for every building in Berkeley. What does an audit cost?
- BESO does not identify precisely what is to be audited so wouldn’t this leave the door open for compelling the home owner to correct various code violations that might exist in the building? Such violations run from the trivial to major. What will the cost impact be on home owners? Will the City be legally bound to pursue correction of code violations or unpermitted work done, regardless of any other concerns?
- Why were no notices sent to the owners of what is said to be 21,000 Berkeley parcels with small residential homes on them? BNC has been told that no notices of any kind were sent out.
- Why didn’t Council Members who unanimously voted to approve the first reading of this Ordinance raise some of these questions in the first place?
The second reading of BESO was on the agenda of the January 20, 2015 Council meeting. The item was taken up late in the evening. From the beginning of the discussion, it was clear that Council Members had received a lot of calls, e-mails and letters from their constituents expressing concerns about the proposed ordinance. BNC had sent letters to the Council requesting that the second reading not be approved until adequate notice was provided. Rumors had it that some Council Members would send it back for re-working.
The City Manager submitted a late “supplemental report” for the meeting. Her report outlined two options for the Council to consider:
- Eliminate 1 to 4 residential unit buildings from the energy audits and require such audits only at point of sale or within 12 months of sale, and re-evaluate including them in energy audits starting in 2020, or
- Within 3 years consider including 1-4 residential unit buildings in the energy audit program.
Her report indicated that greenhouse gas emissions, including emissions from building energy use, transportation and solid waste disposal are approximately 8% below 2000 baseline levels and that currently emissions are 16% higher than our targeted track. In the discussion, City energy staff stated that the projected gap is 20% and that the original BESO ordinance, which was purposely designed to apply to all buildings in Berkeley, was the mechanism they are recommending to close that 20% deficit. The Manager’s written report stated that the scope of the greenhouse gas emissions required to fill that gap is approximately equivalent to reducing to zero the energy consumed by 16,000 Berkeley households, taking 28,000 vehicles off the road and achieving Berkeley’s zero waste goals.
Twelve speakers made comments that ranged from making the program voluntary, eliminating small residential buildings, to approving the initial version of the ordinance and sending it back and undertaking due process by notifying people before crafting a new one. Speakers also mentioned that the greatest burden falls on homeowners, privacy concerns, ensuring that people doing the audits should not be vendors that sell the products, and that while the program will cost $7 million in staff costs over a 10-year period the ordinance doesn’t actually require that anything be done.
The discussion among Council Members was very confusing. What Council’s decision sounded like was to leave the original ordinance in place as it applies to all buildings except the 1-4 residential use buildings, make application to those residential unit buildings entirely voluntary for now and re-evaluate that decision by 2018 or less, with the intent of making it mandatory at that time. BNC is not entirely sure that we caught the entirety of what was approved, but the bottom line seems to be that the Council really didn’t make any changes to the Ordinance except to kick the decision about making the audits mandatory for single family to four unit residential buildings a couple of years earlier.
However, the ordinance will go back to staff for revision along the lines mentioned above, it will then come back for a first reading and at that time, we will know for sure the exact terms involved. We will be reporting back as things develop.
One question we immediately have is this: If we are to meet the City’s Climate Action Goals why aren’t energy requirements mandated for all the new big buildings that are currently being constructed? Most seem to be meeting only bare minimum energy standards. It’s much less expensive to build in energy construction at the point of new construction rather than to have to add it later.
BNC is going to try and find out the answer to that question, but we would also like to hear from our readers.
The Fruits of the Council’s Downtown Plan are Beginning to Bloom at 2211 Harold Way
Let’s agree right from the get go that our Downtown IS a neighborhood in its own right, one that defines the whole City to the outside world and one in which every other neighborhood in the City has an interest. What we are now seeing is the reality phase of the Council’s approved Downtown Plan.
The proposed project at 2211 Harold Way would be one of five new buildings in the Downtown core area that would be allowed to exceed 75 feet in height. In approving such projects, City regulations provide that the Zoning Adjustments Board (ZAB) must find:
that the projects will provide significant community benefits, either directly or by providing funding for such benefits to the satisfaction of the City, beyond what would otherwise be required by the City. These may include, but are not limited to: affordable housing, supportive social services, green features, open space, transportation demand management features, job training, and/or employment opportunities. The applicable public benefit requirements of this Chapter shall be included as conditions of approval and the owner shall enter into a written agreement that shall be binding on all successors in interest.
The application for this proposed project entitled, The Residences at Berkeley Plaza, was first submitted in December 2012. The project has undergone some changes since then, and in a staff report to the ZAB in December 2014, it was described as an 18-story mixed use building. (Note: the actual height will be 194 feet because the building has a mechanical penthouse on top. The 18-stories will be in a tower on the southwest corner of the site near Harold Way and Kittredge.) There with be 302 dwelling units, a rooftop terrace and gardens for residents, a new 6-screen cinema complex, 10,500 square feet of commercial floor space and a 171 space underground parking garage. More than 2,000 feet of the commercial space will be for a full service restaurant serving beer and wine and featuring live entertainment. The project will probably be a Gold level project, earning 66 points (60 is the minimum for Gold status.) Gold level means among other things that the building will be prepared for solar, but not actually have solar energy producing devices installed, with the exception of solar hot water.
Its location is in the ”core“ area of the Downtown on a 1.50 acre site on Harold Way, Allston Way on the north, Kittredge Street on the south and Shattuck Avenue to the east. The building would require the demolition of the former Hink’s Department Store Building at the corner of Harold Way and Allston and remove a portion of the Shattuck Hotel (primarily the 1926 Walter Ratcliff addition fronting on Harold Way and Kittredge and the portion of the 1913 addition extending west of the Hotel along Kittredge). Some alteration/excavation of the area beneath the retail stores along Shattuck Ave may be necessary in order to create additional space for the new cinemas. The existing 10-screen Shattuck Avenue Cinemas would be demolished.
A geotechnical feasibility report was done in January 2013 by ENGEO Incorporation, San Ramon, CA. The report stated that the project was less than two miles from the Hayward Fault and that Strawberry Creek had been filled in on the northern side of the site, and then culverted along Allston Way. The seismic engineers noted that there may have to be an excavation of upwards of 40 feet for the construction of the proposed basement levels. This is to accommodate the possible four levels of underground parking. Seismic problems would be addressed by shoring and possible underpinning of adjacent buildings, construction techniques and selection of an appropriate foundation system.
The owner of the building: | HSR* Berkeley Investments, LLC *(Note: HSR stands for Hill Street Realty)111000 Santa Monica Blvd, Ste 880 Los Angeles |
Local ”applicant/contact“: | Mark Rhoades* *(Note: Berkeley’s Planning Manager, 1998-2007)Rhoades Planning Group 505 — 17th Street, 2nd floor Oakland |
A Draft Environmental Impact Report regarding this project was published on October 3, 2014. Responses to that report are expected to be released in late January of this year.
The applicant’s proposed significant community benefits package is as follows:
- Full Project Labor Agreement
- Agreement signed with Alameda County Building Trades Council to construct all aspects of the project using union labor. An effort will be made to hire Berkeley residents, but no number is specified.
- Cinemas ”Retention and Modernization“
- Replacement of existing 10-screen Shattuck Cinemas with 6-screens, including physical shell and all interior tenant improvements since the existing cinema operator, Landmark Theaters, is said to be leaving in 2018.
- Transportation Demand Management (TDM) Features
- Projection of real time bus and BART arrival times on sidewalk adjacent to the building
- Two monthly AC Transit bus passes for each unit
- 11 Electric vehicle charging stations
- 100 bicycle parking spaces for residents
- 3 year rent subsidy to existing BART Bikestation
- 3 cargo bikes for residents
- 20 wheeled grocery carts for resident use
- 2 bike ”fix-it“ stations with tools
- Bike Corral on north side of Kittredge across street from existing corral in front of Central Library
- Shared electric bikes, number not specified
- Harold Way Plaza and Streetscape Improvements
- ”Privately Owned Public Open Space“, i.e., 1,800 square foot plaza at corner of Harold Way and Kittredge (BNC note, a resident reported to the Design Review Committee on December 18, 2014 that the actual measurement was only 500 square feet. It is unknown whether the reported 1,800 square feet figure is now regarded as inaccurate.)
- Raised crosswalk at Harold/Kittredge
- Bulb-out at Harold/Allston
- New street trees on both sides of Harold Way and on Kittredge and Allston abutting the building
- Pedestrian-scale lighting on both sides of Harold Way
- Bio-retention basins to handle storm water runoff from Harold Way
- Resurfacing of roadway
You can read the staff analysis of this proposed benefit package on page 7 of the December 11, 2014 staff report at www.cityofberkeley.info/uploadedFiles/Planning_and_Development/Level_3_-_ZAB/2014-12-11_ZAB_Staff%20Report_2211%20Harold.pdf
ZAB held two public hearings, December 11, 2014 and January 8, 2015 on the question of what community benefits should be required of the developer. Keep in mind that the community benefits must significantly benefit the community. At the January 8, 2015 meeting, one speaker asked the many people in the audience for a show of hands of people who favored the project and who were not being paid to attend the meeting. No one in the room raised their hands.
The public made the following summarized comments:
- Retain the Shattuck Cinema Theaters as is (not reduce or replace them): They draw an estimated 250,000 people into the Downtown, and create additional revenue for other Downtown businesses, such as restaurants. The theaters are an integral part of the Arts and Theater District. As one speaker put it The struggle for the Shattuck Theaters is a struggle for Berkeley’s soul. Most speakers supported retention of the Shattuck Cinema Theaters.
- Provide the required amount of affordable housing within the project instead of allowing the developer to pay for building it elsewhere: Berkeley’s Downtown has traditionally been the home of mixed income households, not an area of buildings that are ”Luxury Ghettos.“ Almost as many speakers as commented on retaining the Shattuck Cinemas, supported mixed income housing located within the project.
- Treat the Children’s Habitot facility fairly: Children’s Habitot has found a site that they prefer and the move to that site will cost them over $1 million. They are asking the developer for only $250,000, and as of January 8, 2015, the developer has not agreed to even this small amount. Children’s Habitot is an important service for families in Berkeley and needs to be supported.
- Community Benefits should not favor the developer or only serve the potential tenants of the proposed project: Full labor agreements are good, but they benefit the developer as it means a better constructed building with fewer problems during construction. The benefits that are described as Transportation Demand Features and Harold Way Plaza and Streetscape Improvements are all benefits that go to the tenants of the project and make the project more attractive. Most, if not all of the items on this list should be requirements by the City, rather than be regarded as ”community benefits.“
- Specific community benefits mentioned included restoring the fountain in Civic Center Park and other open space improvements to that park.
- Mitigating impacts on existing businesses was also mentioned: Some said that construction would last 2-4 years, and many of the businesses affected were small and would simply fold during such a long time. A letter written by an existing Downtown business person decried the loss of office space that the project would bring. (BNC remembers the City’s Office of Economic Development advising the Council that Downtown office space was a priority goal for the City.)
The discussion that followed public comments clearly indicated that ZAB members don’t quite know what to do about the issue of significant community benefits. On January 8, 2015 they agreed that
- The City will define community benefits, not the developer.
- Community benefits should serve the community not just the tenants of the project or the developer.
- The benefits that have been and will be suggested will be divided into ”bins“ or ”categories“ for ZAB to consider. It is hoped that this will provide some more orderly way for items to be considered.
While not exactly clear what happens next, it is important for all neighborhoods to weigh in on this subject.
People can sign the petition to save the Shattuck Cinemas at www.ipetitions.com/petition/save-the-berkeley-shattuck-cinemas or, go to their Facebook page at www.facebook.com/saveshattuckcinemas
And write to bnc50@berkeleyneighborhoodscouncil.com
All neighborhoods need to join in on this issue, so let’s hear from you!
FLASH: An Important Meeting that you don’t want to miss is coming up regarding the Berkeley Main Post Office
The Save the Berkeley Post Office group has announced they are holding a Community Meeting on understanding the lawsuits between the City of Berkeley and the National Trust for Historic Preservation vs the United States Postal Service. This Meeting will be held on:
February 19, 2015, 7:00 PM
2133 University Avenue (between Shattuck and Walnut)
Speakers: Antonio Rossmann and Brian Turner
We quote from the Save the Berkeley Post Office announcement:
In an epic court battle, the City of Berkeley and the National Trust for Historic Preservation are taking on the U.S. Postal Service over the sale of the Berkeley Main Post Office and of our nation’s historic post offices. The two legal actions are separate but are being heard concurrently in federal court in San Francisco. When a developer pulled out of a purchase contract, the USPS started playing games about whether the post office is for sale. The USPS claims the suits are moot, or not ripe, or that Berkeley and the National Trust have no right to a judicial review of a Postal Service decision, or if there is a right to judicial review, the basis of the review was terminated when the developer pulled out of the purchase contract… The judge will decide whether the case will go forward on or after March 19th.
The Community Meeting is an opportunity to understand the lawsuits. Tony Rossman is the attorney representing the City of Berkeley against the U.S. Postal Service and Brian Turner, is an attorney with the National Trust. They will provide details on how the USPS has avoided complying with environmental and preservation law and why the City of Berkeley and the nation’s leading preservation organization are asking the court to intervene.