Guess What? The March of the Mini-Dorms does indeed go on and on and on and on and on…
The sum of City Council actions regarding 2201-05 Blake Street and 2204 Dwight Way clearly points to the conclusion that the Council is leaning toward approving what the developer, Nathan George, has planned despite the overwhelming opposition by neighbors.
You might ask — and BNC thinks it’s a fair question — how did we come to that conclusion? The process undertaken by the City to review the permits involved is confusing to say the least, so, in explaining how we arrived at our conclusion, we’ve set this up on a timeline, hopefully making it easier for everyone to understand just what this march is all about:
July 10, 2014:
Zoning Adjustments Board (ZAB) public hearing. (See BNC eNEWS, Issue 11, Late July to mid-August 2014.) ZAB votes to deny the permits for:
2201-05 Blake St.
Voting Yes: | Alvarez-Cohen, Hahn, O’Keefe, Pinto, and Tregub |
Voting No: | Williams |
Abstaining: | Allen, Donaldson, and Pinkston |
2201 Dwight Way
Voting Yes: | Alvarez-Cohen, Hahn, O’Keefe, Pinto, Tregub and Williams |
Voting No: | None |
Abstaining: | Donaldson and Pinkston |
Absent: | Allen |
July 24, 2014:
ZAB approves findings for both projects in support of the denial of permits:
Voting Yes: | Hahn, O’Keefe, Pinkston, Pinto, Tregub and Williams |
Voting No: | Allen and Donaldson |
Abstaining: | Mikiten (substituting for Alvarez-Cohen) |
August 12, 2014:
An appeal of ZAB’s denial is filed by Marc Madrigal, tenant and self-described, “friend,” of the developer/owner, Nathan George. (See BNC eNEWS, Issue 12, Featured Neighborhoods Late August — September 2014.)
December 9, 2014:
Date scheduled for Council’s public hearing on both appeals. Meeting was cancelled by Mayor Bates due to his concern about the meeting being taken over by “Black Lives Matter” protestors.
January 13, 2015:
The Council held its first public hearing on Mr. Madrigal’s appeal. The Council took testimony from 32 speakers, the vast majority of whom expressed opposition to both projects and asked the Council to uphold the ZAB’s decision to deny. On a motion by Council Member Wengraf, seconded by Council Member Maio, the Council voted to close the public hearing. The Council then decided to put off making a decision, and on a motion by Council Member Capitelli, seconded by Council Member Wengraf, they voted to continue the item to a Special Meeting to be held on February 17, 2015. (See BNC eNEWS, Issue 14, Featured Neighborhods December 2014 — January 2015.)
January 26, 2015:
The Council’s process to schedule items for upcoming Council meetings occurs at the Council Agenda Committee. Current members of the Agenda Committee are: Mayor Bates and Council Members Maio and Wengraf. At each Committee meeting, members of the Committee receive a copy of the upcoming Council Meeting, Plus two charts: one for upcoming workshops and the other for scheduled land use matters. On January 26, 2015, Agenda Committee members received charts indicating that the Zero Waste Commercial Franchise Study Workshop was scheduled for February 10, 2015 at 5:30 pm and the appeals for 2201-05 Blake Street and 2204 Dwight Way were scheduled for February 17th.
February 9, 2015:
The next scheduled meeting of the Council Agenda Committee. The Packet for this meeting contained a land use schedule as usual. That schedule indicates that the appeals regarding 2201-05 Blake and 2204 Dwight Way are scheduled for February 10, 2015 with the notation that the schedule was updated on February 2, 2015. This is the first indication on the City’s website that is available to the general public that the date the Council will hear the appeals has been changed.
February 10, 2015:
On this date, people gathered in Council Chambers not knowing what the rules for public participation might be or whether they would even be allowed to speak on the Blake Street/Dwight Way appeals. The City Clerk had been telling the public that since the Council had closed the public hearing, it was an indication that they would not be taking further testimony. Some stayed home.
The Council’s planned schedule for the evening was very tight. It would begin at 5:30 pm with a workshop regarding the Zero Waste Commercial Franchise Study, then start a Special Meeting at 6:30 pm during which the Blake Street/Dwight Way appeals would be the only items considered. The Special Meeting was set to last 30 minutes, until 7:00 pm, when the Council would begin its Regular Meeting. During the Special Meeting, after testimony had begun on the appeals issue, everyone was stunned when the Council abruptly adjourned around 6:45 pm to become The Successor Agency of the Berkeley Redevelopment Agency, to take care of some routine business before adjourning that meeting and resuming the Special Meeting regarding the appeals. The Agenda lineup didn’t show this would happen, and the public didn’t know about it until it happened. No reason has ever been given to the public for either the change in date, or why the Council interrupted the appeals discussion, or for their plan to allocate only thirty minutes to reach a decision on this highly controversial issue in the first place.
Did the Council really think that people wouldn’t look around for the answer as to why the meeting was moved from the 17th to the 10th? Well, BNC found a plausible one. Berkeley Municipal Code Section 23B.32.060 City Council Public Hearing, subsection G plainly states:
If the disposition of the appeal has not been determined within 30 days from the date the public hearing was closed by the Council, then the decision of the Board shall be deemed affirmed and the appeal deemed denied.
Couldn’t be much plainer than that. Thirty days from January 13, 2015 is February 12, 2015 at which time, absent Council decision otherwise, the appeal would be dismissed and the ZAB decision to deny would be affirmed.
However, that’s not the end of this puzzle. City staff had clearly advised Council that there was a deadline for action regarding these appeals. This advice appeared in each of the staff reports that were a part of the Council packet for the January 13, 2015 meeting. In any land use appeal, Council is limited to one of three choices: 1). Set the matter for public hearing; 2). Affirm the ZAB decision and dismiss the appeal; or 3). Remand the matter back to the ZAB. Staff then advised the Council:
Pursuant to Berkeley Municipal Code Section 23B.32.060 C if none of the three actions described above has been taken by the Council within 30 days from the date the appeal first appears on the Council agenda (not including Council recess), then the decision of the Board shall be deemed affirmed and the appeal shall be deemed denied.
There must be some kind of error in the citation of Berkeley Municipal Code Section 23B.32.060. The subsection we quoted from is subsection G that can be found in the version posted on the City of Berkeley website. City Staff cites subsection C. However subsection C on the website version states:
Each hearing shall be open to the public, which shall be given the opportunity to present their views and to be heard in accordance with established procedures.
Such discrepancies need to be fixed. The discrepancy wouldn’t make a substantial difference except that in the staff version, it might be argued that the first time these appeals appeared on the Council’s agenda was December 9, 2014. (You will recall that the December 9th meeting was cancelled by the Mayor.) Inquiring minds might want to know whether the December 9th date counts or doesn’t count in this instance. If it counts, clearly the deadline for Council action is different than if the December 9th date didn’t count. Moreover, remember that in the face of the Staff advice regarding a deadline for action, the Council motion to hold the appeals over was to the specific date of February 17 — 35 days after January 13th. If the December 9th date counts, there are 60 days between December 9 and February 17 and if 21 of those days were discounted as “Council Recess,” there would be a total of 39 days to February 17th. If the 21 days did not count as a “Council Recess” the 30th day would have been January 8, 2015 4 days before the Council held its public hearing on January 13! However counted, the February 17th (and maybe even the January 13th) date would have automatically resulted in affirming ZAB’s decision and dismissing the appeals.
Whatever twists and turns this matter takes, and putting aside the many questions that have been raised, the Special Council meeting on February 10, 2015 was called to order. The Council was immediately confronted with charges that the Meeting violated the Brown Act and other procedural issues. The charges being:
- The amount of notice given: The Brown Act requires 72-hours’ notice. Special Meetings require 24-hour notice, but these are usually for urgent, emergency type meetings, not for meetings that are routine and have already been determined by Council vote to be held at a specified date (in this instance February 17th),
- The amount of time scheduled for the discussion: The Brown Act requires that all those who wish to speak will be heard at a Special Meeting. There were far more people in attendance at the Special Meeting than could be heard within the scheduled time for the meeting (in this instance less than 30 minutes).
- The amount of time each speaker will be allowed: Council’s practice as stated in their Rules of Procedure and Order that if there are more than ten speakers interested in speaking, the Presiding Officer may limit the public comment to one minute. However, the Mayor made it clear that he wanted to combine the two appeals into one which lead to the question as to whether each speaker would have two minutes (one for each item on the Agenda). The Mayor finally agreed to two minutes, but he was adamant that the ability to combine comments up to four minutes for one item would not translate into eight minutes for the two items together.
- Revised plans had been submitted by the applicant, but they were submitted too late to be included in the packet. There was no way for the public to see them before the meeting. However, they were included in a Supplemental Packet that was provided on the table outside Council Chambers at the time of the meeting. Generally, when the Council has a new document before them they must vote on accepting it for discussion. That did not happen.
There were 21 speakers. Far more people were present to speak, but instead of speaking for themselves, many ceded their time to a single speaker under the four minute rule. All were opposed except the architect for the project and Mark Rhoades who represented and spoke for the developer, Nathan George. The meeting lasted almost one hour, adjourning at 7:24 pm according to the City Clerk’s Annotated Agenda notes.
Speakers made the following points in addition expressing concerns regarding violation of the Brown Act and the Council’s Rules of Procedure and Order:
- The property is and has been functioning as Mini-Dorms with the associated problems of loud noise, late night parties that last until 3:00 am, garbage and maintenance problems. Neighbors had previously submitted copies of ads on Craigslist showing rentals at 2201 Blake in 2011 indicating seven bedrooms that would hold “15 plus” people for a rental of $8,900 per month.
- Density: The South Side Plan calls for adherence to density standards as indicated in the General Plan, with the increased density beginning with the north side of Dwight Way to the campus.
- Impacts on an existing City of Berkeley Landmark, the Bartlett Houses, has not been adequately considered over a series of meetings. In a written communication, buttressed with several exhibits, the attorney for the No Mini-Dorm Village reminded the Council that there have been repeated calls for a California Environmental Quality Act (CEQA) evaluation of the impacts on an existing Landmark and that the City could not rely on a CEQA Infill Exemption because of the admittedly significant impacts to the Landmarks and violation of City Zoning Regulations.
- The new driveway will be much narrower than standard resulting in increased safety hazards
- Parking is not sufficient for both projects that involve so many additional bedrooms. (There are only 6 parking spaces planned for 35 bedrooms.)
- The negative impacts from Mini-Dorms with their annually changing population and occupants that affect the quality of life of the neighborhood. Neighbors have no recourse.
- No public review of proposed changes.
- If the units were to become condominiums, there would be no way to prevent each unit becoming a Mini-Dorm.
Faced with a large audience of neighbors opposed to reversing ZAB’s denial of both of these projects, there was little discussion. Council Member Anderson moved to affirm the ZAB decision and dismiss the appeal. His motion was seconded by Council Member Arreguin. That motion was never voted upon by the Council as Mayor Bates moved a substitute motion to send the matter back to the ZAB. His motion was seconded by Council Member Maio. Substitute motions are voted upon first and, if approved, the main motion just dies.
Council held a brief discussion about what direction the Council should provide to the ZAB when the matter is sent back to them (this is a requirement). It was determined that ZAB should look at the following:
- The new plans submitted by the applicant
- Parking requirements
- Home ownership of the units
- CC&Rs addressing behavior of occupants
- The usability of the open space and solar access
- The driveway
On the Bates/Maio motion to send the issue back to the ZAB with the request to review the six issues indicated above:
Voting Yes: | Council Members Capitelli, Droste, Maio, Moore, Wengraf and Mayor Bates |
Voting No: | Council Members Anderson, Arreguin and Worthington |
As BNC has said, the march of the Mini-Dorms goes on and on and on and on and on, so we will have to wait to see what happens once more at the ZAB.
BNC continues to advocate for the Council and City staff to uphold two fundamental principles of democracy and fairness:
- Clear, timely notification, and
- Adherence to the rules that have been established at the time of the issue at hand.
Therefore, as we wait for the next ZAB meeting, BNC has seven questions that we have sent to the City Manager. These questions are procedural and based upon the timeline that we have indicated above. When we receive answers to these questions, we will let you know.
Yet More News About Mini-Dorms
At the March 24, 2015 Council meeting, the Council will be asked to consider revisions to the Mini-Dorm operating standards. These revisions would impose additional operating standards for Mini-Dorms and extend those operating standards to Group Living Accommodations (GLAs) in specified districts.
You will recall the definition of a Mini-Dorm (Section 13.42.020A):
“Mini-Dorm” means any building in an R-1, R-1A, R-2, R-2A and R-3 Zoning District that is occupied by six or more unrelated persons over the age of eighteen years. Permitted and Legal non-conforming Sororities, Fraternities and Student Co-Ops shall not be considered Mini-Dorms, as long as they have a resident manager.”
The definition of GLAs (Section 23F.04.010):
A building or portion of a building designed for or accommodating Residential Use by persons not living together as a Household, but excluding Hospitals, Nursing Homes and Tourist Hotels.
Per the Zoning Ordinance as posted online, GLAs are allowed in the R-3, R-4, R-5, R-S, and R-SMU Zoning Districts. The proposed ordinance would add the R-SMU District (South Side Mixed Use area) to the list of Residential Districts in the definition of Mini-Dorms. It would also add that permitted and Legal non-conforming Sororities, Fraternities and Student Co-Ops which are currently exempt from Mini-Dorm operating standards if they have a resident managers will, if the ordinance is approved, be considered to be GLAs whether or not they have a resident manager.
Other proposed requirements include:
- Every Mini-Dorm and GLA is required to have a resident manager who has specified responsibilities regarding management, maintenance and complaints.
- Neighbors within 300 ft of a Mini-Dorm or GLA will receive contact information for the resident manager.
- Regulations regarding large events are expanded and include
- Events of 50 or more require providing security personnel
- Access to the roof is prohibited
- Gatherings of 10 or more must end by 10 pm Sunday through Thursday and 12 am on Fridays and Saturdays and any day preceding a national holiday.
- Alcoholic beverages are prohibited in rooms occupied by a resident under the age of 21 years, in common area accessible to persons under the age of 21, or served to persons under the age of 21.
- Kegs and alcoholic beverage consumption games are prohibited.
- The resident manager must attend training on alcohol service.
- No gathering may involve more than 100 persons at any time including those on the public right-of-way outside.
- Forty-eight hour advance notice of gatherings of 50 or more must be provided to adjacent properties.
- If a resident or guest at a GLA is either convicted of or enters a plea of no contest to specified Penal Code Sections or any other felony assault or felony sexual assault committed at a Mini-Dorm or GLA, or the Center for Student Conduct of the University of California at Berkeley determines that a resident or guest violated the Student Code of Conduct by committing a sexual assault at a Mini-Dorm or GLA, then the Mini-Dorm or GLA shall be deemed a nuisance.
BNCs Response
The proposed ordinance addresses many of the issues that are of concern to neighborhoods, and that is good. However, BNC has two concerns that we would like Council and staff to comment on at the March 24 meeting:
- Adequate enforcement by both the City and the University.
- How and when is a building designated as a Mini-Dorm or GLA. Right now staff informs us that the operating standards are voluntary, i.e., implementation is dependent upon complaints by neighbors.
Flash, Flash
BNC has just learned that this item will not be on the Council’s March 24 agenda. It has been postponed to the meeting of April 28. The reason stated for the delay have to do with the fact that students are on Spring Break.