Note: In this Section, BNC publishes articles that are written either by a neighborhood representative without editing or is summarized from material that has been submitted to us.
The article that appears below is about the biggest development ever to be approved in the city of Berkeley, the 18-story mixed use building at 2211 Harold Way. Since so many neighbors have questions about it, we’ve decided to do a summary of the approval process. Since that would literally take up thousands of pages, we’re doing it in as brief as possible bullet points with links to documents for those of you who want more information. We’ll start with a description of the project and take you through the filing of two lawsuits against the City.
Description:
Project Title: | The Residences at Berkeley Plaza, “The Project”. |
Location: | 2211 Harold Way is located in the block immediately in the back of the Shattuck Hotel on the west side of Shattuck Ave, between Allston Way and Kittredge. |
Applicant: | Mark Rhoades, former city of Berkeley Director of Land Use Planning. |
Owner: | Joseph Penner, HSR Berkeley Investments, LLC, Los Angeles. |
Approved Priot to Council Appeal: | An 18-story mixed use development, said to be 180′ tall, but actually 195 feet or more in height, with: 10,877 square feet of commercial (restaurant with live music) on the ground floor; 302 “luxury” dwelling units above, 70% of which are studios and 1-bedroom units, and 0 below-market rate units on-site; and three floors of underground parking with 177 spaces for both residential and retail needs. The current 10-screen Shattuck Cinemas with 862 seats will be demolished and replaced with a cinema complex with approximately 6 — 10 screens with reduced theater and screen sizes, and fewer seats (about 641). |
Permits and Actions Required:
A number of permits/and actions were required for approval, most important of which were to:
- Exceed the 180 foot height limit in the Downtown Core Area.
- Exceed the diagonal width limit required in that Zoning District.
- Demolish parts of the landmarked Shattuck Hotel site.
- Certify the Environmental Impact Report (EIR) which is required to identify impacts and propose specific mitigation measures to reduce those impacts and present “reasonable” alternatives.
- Approve a Statement of Overriding Consideration accepting any impacts which are found to be outweighed by benefits to the common good.
- Dismiss the appeal to consider the view from the Campanile on the UC Berkeley Campus as a landmark.
Actions by City Bodies Before Hearing by City Council:
- The Zoning Adjustments Board (ZAB) certified the EIR on June 25, 2015.
- Since the project involved demolition of part of a building and other features on an existing city of Berkeley landmarked site and building, a Structural Alteration Permit (SAP) was required. The Landmarks Preservation Commission (LPC) approved the SAP on August 13, 2015.
- Because the LPC declined to consider the Campanile Way view from the base of the Campanile steps to San Francisco Bay a landmark on April 2, 2015, an appeal was heard by the Council on June 30, 2015. The decision of the LPC was upheld in violation of Council Rules of Procedure because it wasn’t acted on by the Council within 30 days of its first appearance on their agenda.
- The ZAB voted to approve all necessary permits on September 30, 2015.
Nine Appeals of the LPC and ZAB Actions Were Filed:
- 10-23-15: Appeal by the Applicant, Mark Rhoades on behalf of HSR:
- The applicant states: ZAB approved an additional $5.5 million in cash payment toward community benefits which is more than the Council meant in their adopted “guide” to assess such benefits, and the payment lacks “proportional relationship” to the Project’s impacts, and is “unreasonable” in regard to the theater complex, and
- The applicant further, names certain conditions of approval which he feels should be eliminated or modified.
- 10-27-15: Appeal Filed by Law Firm on behalf of the Berkeley Unified School District (BUSD):
- General contents: Failure to notice or consult with BUSD prior to the preparation of an EIR which is required by law when projects are within 1/4 mile of a school. City improperly relied upon the Downtown Plan EIR which did not recognize the presence of nearby schools which serve some 3,500 students (Berkeley High and Washington Elementary) and hundreds of teachers and staff daily.
- EIR relied on an obsolete traffic study which was done on 1 day in 2013 and after it was done, a major addition to BHS was added to the campus on Milvia.
- EIR failed to study construction and post-construction traffic impacts, noise and air quality in classrooms, existing sewer overflows in the BHS campus area and impacts on availability of teacher parking.
- 10-27-15: Seven Appeals were filed on behalf of Berkeley Architectural Heritage Association (BAHA) and Individual Community Members:
General contents,- The overall process was flawed due to the flawed presumption of entitlement when no entitlement existed to approve this project in this location. The process is subject to Use Permit review to determine its appropriateness for this site.
- Procedural requirements were violated. The City violated the Brown Act by holding 2 meetings on the same subject but in different locations making it impossible for the public to attend both and limiting the availability of information provided to the public. In addition, commissioners were dismissed for voicing opinions contrary to those of their appointers.
- Commissioners relied on erroneous information which was later admitted, but no effort was made to correct the mistake.
Excluding the appeal filed by the applicant, there are about 51 issues listed in the other appeals. Most of these are addressed in the two subsequent lawsuits described below, so they are not repeated here. The complete appeal documents can be found in their entirety on the City’s website: www.ci.berkeley.ca.us/Planning_and_Development/Zoning_Adjustment_Board/2211_Harold.aspx. (Scroll down to the “Appeals Filed.” section.)
The Council heard the appeals on December 8, 2015 held at Longfellow School:
The appeal was the only item on the Council agenda for this date. There were 109 comments from the public per the City Clerk and the meeting lasted for 6 hours, 33 minutes. The meeting was, at times, both contentious and confusing. In a surprise move, a packet of letters was submitted as follows:
- A 2-page letter addressed to Mayor and Council from Mark Rhoades dated December 8, 2015 and stamped “Received at Council Meeting of December 8, 2015, Office of the City Clerk.” This letter transmitted the following additional letters:
- A 12-page letter dated December 8, 2015 from Kristina Lawson of the law firm, Manatt, Phelps and Phillips; and
- A 4-page letter addressed to Mr. Rhoades dated December 4, 2015 and signed by Mr. Penner with a notation dated December 7, 2015 that it was “Accepted and Agreed” by Berkeley Unified School District Superintendent Donald Evans and Judy Appel, School Board President rescinding BUSD’s appeal of the Project; and
- A 5-page letter addressed to Mayor and Council dated December 8, 2015 unsigned but on behalf of the Project regarding “proposed Community Benefits Pursuant to City Council Guidance; and
- A 9-page letter addressed to Mayor and Council dated December 8, 2015, unsigned but on behalf of the Project regarding ”Condition of Approval Modification Requests for 2211 Harold Way“
This immediately raised a serious procedural issue: Council Rules of Procedure state that late arriving materials ”may be considered only if the City Council, by a two-thirds roll call vote, makes a factual determination that the good of the City clearly outweighs the lack of time for citizen review or City Council member evaluation of the material.“ (Emphasis added.) The attorney’s letter is clearly marked with a stamp that says ”Received at Council Meeting of December 8, 2015“ City Clerk’s Office. There was no vote by the Council to accept the material at the meeting. There was no notice to Council Members or the public to read, understand and respond to these new agreements in an informed way. Mayor Bates presented a copy of the multi-page letter which he distributed to other members of the Council at the beginning of the hearing.
The agreement between the Project and BUSD contain highly questionable conditions, two of which are:
- Item 2(e) in the BUSD Agreement states: ”The Project Applicant agrees to locate all construction staging on the northeast side of the 2000 block of Kittredge Street….“ This would place the construction staging area in the street in front of the entrance to the Main Public Library which numerous people including seniors, disabled people, and children use on a daily basis. The impact of this location wasn’t studied in the EIR, nor was the Library Board of Trustees consulted.
- Item 2(j) in the BUSD Agreement which states the agreement ”prohibits all project construction-related truck and equipment traffic and staging from using the segments of the four streets adjacent to the school (Milvia Street, Allston Way, Martin Luther King Jr. Way, and Channing Way) at all times.“ The letter does not explain or mention how construction-related truck and equipment traffic will be able to reach the project. No notice was given to the affected residences and businesses or the general public, nor were studies made regarding the impacts. It is doubtful that the City Council can approve such changes without the involvement of the Traffic Engineer.
Neither of these issues were discussed by the Council during this meeting.
In addition, Mr. Rhoades requested a number of changes to the conditions of approval recommended by ZAB. Probably the most important was his request that the Project have two years, instead of the usual one year, to exercise permits before they automatically lapse.
In our report below, we paraphrase only the 3 motions which reflect approval of permits by the Council. Other motions, involving sending the Project back to the ZAB for further study and additional community benefits, which were not approved are not reported below.
Motion #1: On a motion by Mayor Bates, seconded by Council Member Moore, the Council adopted Resolution No. 67,298-N.S. certifying the EIR and making certain findings required by CEQA.
Voting Yes: | Bates, Capitelli, Droste, Maio, Moore,Wengraf |
Voting No: | Anderson and Arreguin |
Abstaining: | Worthington |
Motion #2: On a motion by Mayor Bates, seconded by Council Member Moore, the Council adopted Resolution No. 67,299—N.S. approving Structural Alteration Permit No. 13-40000002 and related findings and conditions for the Project under the Landmarks Preservation Ordinance.
Voting Yes: | Bates, Capitelli, Droste, Maio, Moore, Wengraf |
Voting No: | Anderson, Arreguin, Worthington |
Motion #3: On a motion by Mayor Bates, seconded by Council Member Wengraf, the Council adopted Resolution No. 67,300—N.S. approving Use Permit No. 13-10000010 and related findings and conditions for the Project under the Zoning Ordinance which were amended to include the following:
- Conditions agreed to by the applicant and BUSD.
- Modification of conditions as proposed by the applicant.
- Acceptance of $17 Million in community benefits, but with higher credits to be given to the developer. (See chart below.)
- Additional staff conditions involving a building permit time table, fees and commencement of construction.
ZAB Recommendations | Council Approved | |
Total: | $14.5 M | $17.0 M |
Credits: | ||
Offset for labor agreement | $5 M credit | $6.0 M credit |
Offset for theater construction | $4 M credit | $5.5 M credit |
Total Credits: | $9.0 M | $11.5 M |
Payments: | ||
Arts fund | $1 M payment | $750,000 payment |
Habitot Children’s Museum | (eligible for entire $1 M amount) | $250,000 payment |
Housing Trust Fund | $4.5 M payment* | $4.5 M payment* |
Total Payments: | $5.5 M | $5.5 M |
* The payment to the Housing Trust Fund is an addition to the required payment in lieu of having on-site below-market units. Twenty-eight units would have been required. The Council set the value of these units at a discounted rate of $20,000 each in order to provide an ”incentive“ toward development. The Council’s economic consultant put the value at around $34,000 each.
In addition, all the protections that would help ensure the continued operation of the Shattuck Cinemas in the Project as recommended by ZAB were eliminated.
To watch the video and read the staff report , all of the motions and communications including the December 8 letter from the applicant and project attorney, and BUSD side letter agreement, etc. click here: www.ci.berkeley.ca.us/Clerk/City_Council/2015/12_Dec/City_Council__12-08-2015_-_Special_Meeting_Annotated_Agenda.aspx
In brief, the Council agreed with the Project’s attorneys that all the appeals, including the procedural complaints, were dismissed as being without merit and all the applicant’s requests were granted.
Two Separate Petitions for Writ of Mandate were filed:
The first Petition was filed on January 13, 2016, by Ruth Ann Kelly Hammargren, Alameda County Superior Court Case #RG16799959. On January 14, 2016, another Petition, #RG16800141, was filed. Both petitions were filed Pro Per, i.e. as citizens filing without legal representation. Both have the same basic premise that the EIR does not include, or relies on erroneous information, and does not adequately analyze significant environmental impacts. Specific issues appear below in summary. They are not listed in a priority order. The complete petition documents can be accessed by clicking these links: January 13, 2016 Hammargren Petition for Writ of Mandate and Petition Number Two, January 14, 2016.
- At 195 feet or more, The height of the Project violates the will of the voters as expressed in both the language of the 2010 Measure R and in the ballot arguments in support of that measure that there would be ”2 residential buildings and 1 hotel no taller than our existing 180 foot buildings.“ (Emphasis added.) Requests of the Design Review Committee and citizens to establish the true height of the Project were consistently ignored; and
- The northeast corner of the site was erroneously treated as ”separate“ and ”adjacent“ to the site, not part of it, even though the entire Project site with all additions from 1912 through 1957 were designated a City Landmark on November 9, 1987; and
- At over three times the height, the Project looms over the immediately adjacent, landmarked, eligible for the National Registry, 5-story Shattuck Hotel and impacts existing neighboring structures which are all 2 to 5 stories in height. It is just across the street from the landmarked Berkeley Main Library and a few doors from the landmarked Post Office; and
- Inaccurate and misleading information was used to determine that the Project only partially obstructed views of and from the Bay, including at night; and
- The Project fails to address Berkeley’s greatest housing need-the lack of affordable housing and results in further segregated housing by not including very low to moderate income residents. Monthly rent for units in the building are believed to be in the range of $3,200 — $7,000 per month, requiring $120,000 and higher in annual income Allowing the payment of a discounted fee to the Housing Trust Fund to build this needed housing elsewhere, pushes meeting this need far into the future and enables further disparity in housing availability for persons of all economic and racial backgrounds. This may constitute a violation of the 1968 Fair Housing Act; and
- The site is identified by State Seismic Hazard Zones map as being in a liquefaction zone. State law requires developers to submit a project specific geotechnical report defining and delineating any seismic hazard prior to approval of the project. This did not happen. Information regarding these issues was dismissed by stating that the liquefaction soils would be removed even though a geotechnical consultant hired by the developer also recommended that a site-specific study be done; and
- The Project violates City policies and goals to promote sustainability. It attains most of its LEED points simply through its location. Effects of the drought, now and in the future on water supply and unit-water usage metering, gray-water reuse, enlarging rain water capture were dismissed, renewable energy is projected to be only 5-10%. The embedded energy involved with demolition, excavation and building were not considered; and
- The Project incorrectly relies on the Downtown Area Plan (DAP) regarding impacts on utilities and service systems and did not take into full account probable changes to predicted population increases. DAP states that each future individual project in the Downtown must have a site-specific analysis. This was not done for this Project despite City records confirming that BHS High is a sewer overflow ”Active Hotspot.“ Further, the projected population for the Project is said to be 517 people, yet when a more likely standard of 2.1 persons per bedroom is applied, the projected population is about 60% more, and possibly even more if units are rented to groups of students which seems likely because of the design of the Project’s units, high rents and increased enrollment on the UC Berkeley campus. No studies were done on infrastructure capacity; and
- The information on wind impacts in the EIR was for a prior design of the project, not the current design which may increase updrafts at street level and subject the roof garden to higher wind effects than previously thought. There was no update of the impacts associated with the approved design; and
- There is an absence of ”reasonable“ alternatives required by CEQA. The alternatives presented simply repeat the 18-story height of the project. Not presented was a 75 foot alternative which is allowed within the current zoning; and
- The Project permanently downgrades the Shattuck Cinemas, a cultural resource that is a successful source of revenue in the Downtown. Today they are a ten theater complex with 862 seats with high ceilings and murals throughout, and full wheelchair accessibility. The Project replaces this with a complex with only one full size theater, nine screening rooms with low ceilings that will severely limit screen size, and 641 mostly stadium style seating which will significantly affect mobility impaired individuals. ZAB conditions to ensure that the final theater complex is fully developed, completely built out, with all tenant improvements necessary for occupancy and usable so as to prevent the condition of an empty unusable shell were removed by the City at the applicant’s request. Further, economic impact studies required by CEQA when a project changes revenue sources because of its size were not done. The Shattuck Cinemas contribute at least $3 million annually to City revenues; and
- The EIR, Staff, ZAB, LPC and Council failed to consider the Secretary of the Interior’s Standards for Rehabilitation. The Shattuck Hotel Building was landmarked by the City in 1987 and it is eligible for the National Register which automatically results in it being listed on the California Register of Historical Resources. The movie theaters became a part of the Shattuck Hotel Building in 1988 and have operated in that location ever since. The Secretary of the Interior has issued guidelines for the rehabilitation of historic buildings that apply to both the exterior and interior of the historic building, the building’s site and environment as well as attached, adjacent or related new construction. These Standards were never even mentioned, let alone considered; and
- There is no evidence of consultation with other ”sensitive receptors“ which are located even closer to the project than the schools. These include Berkeley City College (200 feet northwest of the Project), Central Berkeley Public Library (across the street from the Project), and the Downtown YMCA (about 150 feet west of the Project) facilities well-used each day by children, the elderly and the disabled.
- The City relied on an erroneous pro forma despite repeated requests to correct the applicant provided information. This pro forma overstated the cost of the land by 100%, ignored revenue such as parking and included the inconsistent use of rental rates. When the correct numbers were inserted into the pro forma, it indicated that both alternatives presented in the EIR were financially feasible; and
- The City failed to insist on an independent pro forma that included all elements of the DAP to determine community benefits. The actual profits are excessive ($89 — $141 million) while community benefits are miniscule even after including the cost of using union labor and maintenance of the SCs. An increase of $10 to $20 million in community benefits would still ensure that a ”more than significant“ level of profit for the applicant.
- Further, the community benefits do not fully pay for the relocation of the non-profit Habitot Children’s Museum which currently has 66,000 visitors annually to another site, nor of the financial impact to the Downtown of losing that resource; and
- Replacing the existing Shattuck Cinemas should not be counted as a community benefit since the Project destroys them and then seeks to replace them in a much reduced form for which they are given a large credit; and
- The EIR relied on 15-year old data, ignored information from other recent EIRs, did not use U.S. Census data regarding the impact on public transit, including on BART which already exceeds its carrying capacity, did not conduct a cumulative analysis, and did not consider the impact on public transit of charging an additional amount for parking to the Project’s residents, making the EIR inconsistent and inaccurately describing the project as required by law. It places in jeopardy the goal of achieving ”transit friendly“ development because the EIR fails to address how that will happen if there is insufficient transit infrastructure and funding to accommodate this growth; and
- The City failed to adopt necessary findings before adopting the EIR, and issued them only after the EIR was adopted, which further indicate new and different assumptions regarding the project making it impossible to determine the level of community benefits and other financial details which is contrary to the purpose of CEQA, that the EIR is designed to be an informational document of decision-makers to make informed decisions; and
- The City did not meet the requirement in State law to be used for ”Infill EIR“ process which ”shall include“ promoting infill development and equity by ”rehabilitating, maintaining and improving existing infrastructure“ that supports infill through the ”appropriate reuse and redevelopment“ of previously developed, underutilized land presently served by transit, street, water, sewer and other essential services, particularly in underserved area, and to preserve cultural and historic resources (emphasis added). Nowhere does the term ”demolish“ appear — instead the emphasis is on ”rehabilitating“, ”maintaining“, and ”preserving cultural and historic uses“.
The complete petition documents can be accessed by clicking these links: January 13, 2016 Hammargren Petition for Writ of Mandate and Petition Number Two, January 14, 2016. BNC wishes you all happy reading!
FLASH ! FLASH! FLASH!
Application for another 18-story, 180 foot tall building has been submitted to the City. It’s just across the street on Allston Way and Shattuck above the current Walgreens. Stay tuned!!!