There is much to be said, but the Holidays have arrived, so we are going to ease back a little and write only about two projects that raise questions about significant issues affecting every neighborhood in this City:
- Just what do the references to “detriment” and “loss of sunlight” in the Zoning Code mean, and
- What is the appropriate level of commercial development in the commercial corridors outside of the Downtown and what does this mean for residential neighborhoods that abut commercial zones?
BNC will explain the two projects below, but we ask our readers to be thinking about both of them in light of the two questions above. We propose to ask each member of the Zoning Adjustments Board to respond to these questions within the context of the projects described. We will print their answers in subsequent issues. We begin, as follows:
What Does “Detriment” and “Loss of Sunlight” in the Zoning Code Mean When Considering a Proposed Project Like the One at 2135 Roosevelt?
What looked for all the world like a run-of-the-mill request to build a second story on an existing one-story home in a R-2 zone at 2135 Roosevelt just might turn out to be a watershed decision for neighborhoods regarding the meaning of “detriment” and “loss of sunlight.”
The proposal to build a second story on an existing house is usually a straight forward decision when development standards such as height and lot coverage are well within the required zoning guidelines for the area it’s in. However, the lot next door to this proposed project at 2135 Roosevelt is 45′ wide and deep with two houses that were built many years ago. They are separate houses under separate ownership on one lot, 2131 and 2133 Roosevelt. 2133 is a two-story brown shingle which sits as far back on the lot as is possible and the other, 2133 is a one-story stucco which sits up front on the lot, but is built sideways so that the whole house is oriented not to the street, but to the South toward the side of the house at 2135. The houses at 2131 and 2133 have no back yards or side yards as would be found in a traditional build-out. The front yard of 2133 is the yard that extends to the house in back (2133) and becomes its front and only yard. This yard serves as the shared garden for both houses in which both occupants raise vegetables and flowers. The 2131 house has a deck that extends into this yard and is used by the occupant as an extension of the house where he works. The occupant of this house is a published author, artist, and musician who writes, paints and composes materials related to the sun and sun-related cultures around the world. This is his livelihood. In carrying out his work, he has mounted several exhibitions. All-in-all, because of the placement of the next door houses, the configuration of their yard space and the home occupation of one of the property owners, this is arguably an unusual situation.
The 2135 Roosevelt property owner, Adam Berman, who runs Urban Adamah, a local non-profit organization concerned with urban gardens, purchased the property at 2135 Roosevelt about a year ago to build a house for his family. He has never lived there and in the interim has been renting it to tenants who have at times been living in tents in the back yard. He is now ready to build a second floor and move in. He submitted his plans and a list of residents who live in an apartment building across the street who have no objection to his plan. Planning Department staff, without a site visit, issued an Administrative Use Permit (AUP) and when the yellow sign regarding the AUP was posted on the property, neighbors appealed the issuance of the AUP to the ZAB. The appellants are the most affected neighbors at 2131 Roosevelt, Jim Berenholtz and Deborah Todd at 2133 Roosevelt along with the signatures of 19 other neighbors who live within a 300 foot radius of 2135 Roosevelt, and two others who live nearby but outside that radius.
Shadows Cast on October/February 20
ZAB heard the appeal on October 9, 2014. Not including the two appellants and the applicant and his architect, 12 people spoke — 11 neighbors in support of the appeal and 1 in support of the applicant in general.
The person in support of the applicant was architect, David Trachtenburg who stated that such projects as this one should be granted as a matter of right without hearing or notice.
Those who spoke in favor of the appellants cited various issues: The situation of the appellants who have lived there for years should be considered before the wishes of the applicant; the applicant has never lived there, doesn’t know the neighborhood and rents to tenants who make late night noise; the applicant proposes to build not only a second story that will completely shade the appellants’ yard but also plans to build a large backyard deck with a hot tub right under the bedroom window of the house at 2133; while normally there would be no objection to a second story this is a genuinely unique situation that should be denied; supporters in the apartment house are mostly students who come and go and don’t care about the neighborhood; a registered nurse presented a letter from one of the appellant’s doctors who wrote about the negative effect on the appellant’s health; a registered nurse who testified about the positive effect of sunlight on people in general; a landscape designer who stated that there are trees on the appellants’ lot that are routinely cut back so they supply appropriate shade when needed but still allow the cultivation of a vegetable garden; that the loss of sunlight will mean higher energy costs for the appellants; and a realtor who stated the appellant’s house was purchased years ago specifically because of the existing sunlight.
BNC wrote a letter supporting the appeal of the issuance of the AUP on the basis of Zoning Code 23D.28.090B (see below), and that alternative solutions should be explored between applicant and appellants.
The appellants testified they had had one meeting with the property owner but he flatly refused to make any changes. They are not opposed to the applicant expanding the existing house, and have offered some alternatives. The shadow studies that have been submitted do not show existing conditions, and their own studies show that for five months of the year (October through February) their shared yard and front deck on the south facing house will be completely in shadow. The appellants requested that story poles be installed to help find a better a better solution.
The applicant testified he had looked for a long time to find the right sized home, finally settled on this one because of the potential to build a second story. He confirmed the one meeting, and stated no others were scheduled because he felt there was no room for further conversation. His architect, Scott McGlashan, emphasized that the project met the development standards for the R-2 and that other houses in the neighborhood and City had second stories and side entrances so the permit should be granted.
Staff responded they continue to recommend that the proposal should be approved and that story poles were used only in the hills where there were view problems. (Note: BNC is surprised to hear this. It seems to us that story poles would be helpful in many situations anywhere in Berkeley, not just in the hills.)
ZAB closed the public hearing and discussed at length what to do. In the end, they finally decided to continue the matter to November 13, 2014 in order to give the appellants and applicant time to meet and try and reach a compromise. ZAB member Williams, was especially vocal about trying for a compromise and even suggested looking at shifting the house at 2135 Roosevelt to the North side of its lot. The vote to continue was made on a motion by Williams, seconded by Tregub:
Voting Yes: | Hahn, Pinto, Pinkston, Tregub and Williams |
Voting No: | Allen, Donaldson and O’Keefe |
Absent: | Alvarez-Cohen |
Many neighbors came to the November 13, 2014 ZAB meeting in support of the appellants. They were not allowed to speak to the surprise of the appellants and their supporters. Staff stated that when the ZAB closed the public hearing on October 9, 2014, they reasoned that the Board didn’t want to hear any more testimony from the public even though the purpose of this meeting was to learn about a possible new proposal that might be a compromise. This apparently was discussed with ZAB Chairperson Alvarez-Cohen who agreed this was the way this meeting should be conducted. No Board member challenged the ruling.
Both the appellants and applicant made presentations. They met and the result was that the applicant decided to move the house 11 inches. The applicant submitted shadow studies that showed the existing situation. The appellant stated this was not a compromise, that there was still an “unreasonable obstruction of sunlight” for 5 months of the year. The appellants reiterated they did not want to stop construction and again suggested a one-story extension of the existing house into the back yard or building a two-story addition and moving the driveway to the North side of the lot. This later suggestion would cause some additional shadowing which the appellants would accept.
Shadows Cast on Nov/Feb 5
At question here are Zoning Code Sections 23B.28.050A and 23D.28.090B which state the following:
23B.28.050A
The Zoning Officer may issue an AUP, 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. (Emphasis added.)
and 23D.28.090B
To deny a Use Permit for a major residential addition or residential addition subject to 23D.28.070 (insert note — these are general development standards) the Zoning Officer or Board must find that although the proposed residential addition satisfies all other standards of the Ordinance, the addition would unreasonably obstruct sunlight, air, or views. (emphasis added)
Shadows Cast on December 21 Shortest Day of the Year
Comments by the Board were interesting as to how they viewed these Sections of the Code:
- Allen: What compromises did the appellants make?
- Williams: The appellants should share in the cost of any compromise.
- Pinkston: The way the streets are laid out and in the “grand scheme of zoning” we allow second stories to be constructed.
- Hahn: There already is heavy foliage in the appellants’ yard.
- Pinto: This is similar to a house we approved on Prince Street, but he didn’t say what those similarities were
- Tregub: This project has more significant impacts on the houses and garden than the project on Prince that was approved. This goes against the City’s Climate Action Plan.
On a motion by Pinto, seconded by Allen to approve the addition of a second story at 2135 Roosevelt and dismiss the appeal to the AUP,. the vote was:
Voting YES: | Allen, Alvarez-Cohen, Donaldson, Hahn, Pinkston, Pinto, Selawsky, and Williams |
Voting NO: | Tregub |
At the end of discussion of this item, during a ZAB break for the captioner, a member of the audience present for another matter, was overheard saying:
If this project had been in the hills, the ZAB would have fallen all over themselves to reach a different conclusion. They just don’t care about the flatlands.
You be the judge of that statement, but also consider the issue of the application of the two Zoning Code Sections cited above. What do you think?
What Does Approval of the Proposed Parker Place Development at 2598 and 2600 Shattuck and 2037 Parker Mean for the level of Commercial Development Along Other Commercial Corridors Outside of the Downtown?
Back in December 2011, ZAB approved Parker Place, one project that was located in three buildings on Shattuck Avenue in South Berkeley. Two 5-story buildings were located at 2598 and 2600 Shattuck with 22,905 square feet of commercial space on the ground floor and residential above and one 3-story residential building located at 2037 Parker. A total of 155 residential units were in the three buildings with 31 of these to be reserved for below market rate (BMR) households. The developer was given three options for where the BMR units would be located:
- Place 28 BMR units in 2037 Parker which would be designed specifically for households with disabilities and scatter the other three units elsewhere in the project, or
- Scatter 31 BMR condo units throughout the project. or
- Pay an in-lieu fee to reduce the number of BMR units to as few as seven, the minimum required to qualify for a density bonus.
Neighbors appealed ZAB’s approval of the project to the Council. In January 2012, the City Council approved the project and dismissed the appeal. A lawsuit was filed on the question of whether the Mitigated Negative Environmental Impact Statement that the City had done was adequate. The lawsuit was unsuccessful and nothing happened on the site until this year. In reading about what happened next, readers must keep in mind that this project already had a permit and the only thing up for consideration now is the request to modify that permit.
On October 7, 2014, a new developer, Lennar Multifamily Communities, LLC, 100 Pine Street, Suite 2262, San Francisco, asked the ZAB for modifications to the original Use Permit. These modifications include:
- Add 8,927 square feet of commercial space to the 22,905 sq ft already approved without increasing the height.
- Allow professional (not medical) offices, gyms/health clubs and dance/martial arts studios in the commercial spaces. Such uses would be allowed as a matter of right, with no further hearing.
- Add 116 parking spaces to the 186 already approved, creating a total of four levels of parking and exceeding the zoning ordinance requirement by 100. Parking is for the businesses, not residents.
- Reduce the amount for food service from 1,948 to 1,616 sq ft
- Scatter 31 BMR rental units throughout the buildings.
- Re-orient the placement of the buildings on the site and replace windows with a less expensive type.
Neighbors expressed their concerns to the ZAB about what types of businesses would be located in the project. The original permit had specified “neighborhood serving businesses” — the modifications were ambiguous at best, and rumors were circulating that high tech businesses would be located there and that this was the reason for the large increase in parking spaces.
The developer was asked this question but did not provide any more information than was indicated in the request for modifications. ZAB members expressed concern regarding the number of parking spaces as “excessive.” The applicant stated that the amount of parking was based on conversations with tenants that were unspecified. In the end, at ZAB Member Allen’s suggestion, ZAB ultimately decided to leave it up to the applicant’s judgment as to the number. It is interesting to also note that staff, with ZAB acceptance, provided the rationale that the increased greenhouse gas emissions from cars parking in the project would be offset by the provision of AC Transit passes for residents, providing some parking for car share vehicles and EV charging stations, and increased bike spaces.
ZAB member Pinkston was concerned that offices being on the ground floor would not provide a pleasing pedestrian experience so at her suggestion they added that ground floor offices would require a separate Use Permit. And, in order to discourage “big box chain retail” ZAB members also added that no retail would be allowed on the new second floor.
The developer would be allowed to install less expensive windows.
On a unanimous vote of 9 to 0, ZAB approved the requested modifications to the Use Permit with additional conditions as described above.
An appeal was filed on August 14, 2014 by Christopher Lien on behalf of Carl Word and 45 other persons “owning or leasing property in the vicinity of the project.” The appeal was heard by the Council at a public hearing held on October 7, 2014.
Planning staff recommended approval of the modifications as further conditioned by the ZAB. The Planning Director stated that ZAB found no detriment because the modifications do not substantially change the volume, height or massing and are “consistent” with the zoning standards for the district and also because the project had received a favorable recommendation from the Design Review Committee and wouldn’t impact on the neighborhood parking supply because of the “large parking surplus.” Staff stated that cars circulating looking for parking would be an environmental concern, but that wouldn’t happen with this project because of the amount of parking being provided. A mitigated negative environmental declaration with the developer paying for a new traffic signal is felt to be adequate.
There were nine speakers, all opposed except for one speaker, Tim Frank, Director of the Center for Sustainable Neighborhoods, who stated he felt like a neighbor because he rode his bike by the site two to four times weekly. He is quoted in the Daily Cal as saying There is desperately needed housing there, and adding mixed usage will improve sustainability of that neighborhood and make that immediate area more walkable.
In the Council discussion that followed the close of the public hearing, two themes seem to emerge: 1) The need to develop/revitalize an area that was underutilized; and 2) The need to develop below market rate housing units.
Council Member Anderson made a motion to send the matter back to the ZAB for further consideration. This motion was not voted upon as it was followed by a substitute motion made by Council Member Capitelli, seconded by Vice Mayor Maio to approve the Use Permit as modified.
Voting Yes: | Mayor Bates and Council Members Arreguin, Capitelli, Maio, Moore, Wengraf, Wothington and Wozniak |
Voting No: | None |
Abstaining: | Anderson |
This project is located in what is called the South Area Commercial (C-SA) District. The purposes of this District are listen in Section 23E.52.020 of the Zoning Ordinance. There are nine as follows:
- Implement the Master Plan’s designations for Community Commercial, and the Commercial/Residential areas, as well as the policies of the South Berkeley Area Plan.
- Provide locations for both community-serving and regional-serving businesses, particularly those which reflect the culture of the surrounding area.
- Provide an area of neighborhood and lower intensity community Commercial Uses, serving as a transition between the Downtown area and the neighborhood-serving area south of Ashby Avenue.
- Encourage the location of a wide variety of community-oriented retail goods and services in South Berkeley.
- Encourage residential development for persons who desire both the convenience of location and more open space than is available in the Downtown.
- Provide limited locations for other activities such as offices which may be compatible with both retail and Residential Uses.
- Encourage development and amenities that support pedestrian-oriented uses.
- Encourage appropriate mixed-use development (retail/office/residential) on appropriate sites in the District.
- Increase the opportunities for the establishment of businesses which are owned and operated by local residents. (Ord. 6478-NS § 4 (part), 1999)
BNC has difficulty in understanding a number of issues related to the approvals for this project:
- By what factors are the ZAB and Council decisions determined to be “consistent” with the Zoning Ordinance?
- How do “offices, gyms/health clubs, and dance/martial arts studios” make a neighborhood more sustainable?
- If tenants have determined how much parking they need, why is the identity of the tenants not disclosed?
- How does a mixed-use project with 30,000+ square feet of commercial space and more parking spaces than would normally be required by the Ordinance make a neighborhood more walkable?
- If a commercial corridor is to be determined to be less intense than the Downtown and serve as a transition between the Downtown and a neighborhood commercial district, why is the commercial space in this project equal to at least one major building (the Acheson Commons) in the Downtown Core?
- How is the purpose of increasing opportunities for businesses owned and operated by local residents to be accomplished in this project or anywhere in the SA District?
- What is the open space available for residential tenants in this project and how does it compare to requirements for residential tenants in the Downtown?
- What are the amenities in this project that support pedestrian-oriented uses? Is there a list available to decision makers of what types of amenities, in general, support such uses?
BNC wants to help neighborhoods understand our zoning regulations so that responses both pro and con can be clear, focused and civil. That’s why we are seeking answers to these and other questions. We ask all neighborhoods to join with us in finding the answers to these and other questions that may be raised.
Side Note: On November 17, 2014, San Francisco Mayor Ed Lee announced that an agreement had been reached between Lennar Corporation and retail developer Macerich (they developed Broadway Plaza in Walnut Creek) to develop a 500,000 square foot “Urban Outlet Shopping Center” at the site of the former 49’er/Giants Stadium at Candlestick. The shopping center is planned to be the retail anchor for a $1 Billion development that would include 6,000 homes.