The Return of 1155-1173 Hearst Avenue
In 2017, the neighborhood derailed construction of a proposed condominium project at 1155-1173 Hearst Avenue that would have displaced residents, some of whom have lived there since the 1990s. The project located between San Pablo and Curtis, on the south side of Hearst Avenue, is regarded as an “infill“ project which exempts it from California Environmental Quality Act (CEQA) provisions. The applicant, Hearst Avenue Cottages, LLC, represented by Mark Rhoades describes the site as a “Transit Oriented Development (TOD)” because it is one block from “one of the best transit regional corridors in Berkeley” (San Pablo Avenue) and two blocks from “one of Berkeley’s transit served crossroads” (San Pablo/University Avenue intersection).
At that time, the project involved two separate lots, which would be merged into one parcel. Eleven condominiums would be added to the seven existing units for a total of 18 units, each with one parking space. Two of the units would be “affordable” which entitled the project to a 35% State Density Bonus and up to three “concessions and incentives.” The site had a well-documented long history of hydrology issues with consistent flooding of adjacent properties. As usual, staff recommended approval, but the project did not receive approval from the Zoning Adjustments Board (ZAB) which told the developer to re-consider the proposal.
A new project was presented to ZAB on August 23, 2018. The applicant’s name is still stated as Hearst Avenue Cottages, LLC, and Mark Rhoades continues to represent that individual or group. At one point in discussion with ZAB members, Mr. Rhoades stated that “one investor is a Berkeley Realtor,” but said no more. The California Secretary of State website indicates that the name, Hearst Street Cottages, LLC was registered January 16, 2015 and listed the agent for contact as Mark K. Brown, with offices in Walnut Creek.
Mr. Rhoades described the differences between the former project and this one as follows: The lots would not be merged. Seven existing units would be rehabilitated and six new condominium units constructed, for a total of 13 housing units. Six of the seven existing buildings are in duplexes occupied by renters. The other existing building is a single-family home that is currently vacant. No density bonus is being sought, all buildings would be two-story, except one would have a “third-story element,” a roof garden. All existing tenants would remain in place as long as they wanted to stay, and only after they voluntarily left, would the rehabilitation work and conversion to condominium status begin. Units with four new bedrooms and four new bathrooms would be added to some of the duplexes. These would be “family units,” rather than mini-dorms.
At the ZAB hearing, no one spoke in favor of the project. Eighteen people spoke in opposition. Their concerns centered around two main issues, protections for existing tenants and the existing flooding problems. Public comment, staff and applicant response and ZAB comments regarding tenant protection issues were:
- Mini-Dorms: Most family homes don’t have a separate bathroom for each bedroom. Planning Staff responded that the Planning Department does not regulate mini-dorms. When six unrelated individuals form a “household,” they are required to register as a mini-dorm and follow certain regulations. Staff explained they didn’t feel “comfortable” challenging this type of unit configuration. ZAB members spoke of the need for family housing and wanted to change this configuration so that any 4 bedroom unit would have three bathrooms, maximum.
- Current tenants would be “kicked-out: Mark Rhoades repeatedly assured ZAB members that current tenants could remain voluntarily – even if it “took twenty years.” He did not assure that “Buy-Backs” would not be offered to remaining tenants. Buy-Back mechanisms are currently being discussed in landlord organizations as a response to current efforts to repeal Costa-Hawkins. Buy-Backs are sums paid to existing long-term tenants as an incentive to voluntarily leave so that landlords can raise rents to market values and/or convert to condos before Costa-Hawkins is repealed. Also expressed was concern that continued construction noise, dust and debris that would begin each work-day at 8:00 a.m., along with parking and use of construction equipment and related construction barriers on the property would drive existing tenants out. ZAB comments indicated they wanted to ensure that tenants that had existing leases that included parking spaces (1 tenant has 4 parking spaces) would continue to have them after construction was finished, even if it meant that there would be no parking spaces for new tenants who will have to find another place to park. Also, that a tenant could request a temporary move to another location while construction work was going on and that such a request would come under the City’s existing Relocation Office which may entitle that tenant to receive compensation from the developer for the difference between the old rent and the new rent during this temporary period of time.
- Conversion to condos would eventually mean the permanent loss of existing rent-controlled units: Public comment brought this up, but there was no discussion among ZAB members for any additional condition to address this issue.
- Homeowner/Tenant representation in the resultant Homeowners’ Association (HOA): If the project is approved, an HOA would be formed to address questions such as what can and cannot be one on the property, and general maintenance. Each condo unit would have a vote, but it appears that any and all remaining tenants would be represented by one person, Mr. Rhoades, on behalf of the property owner of their units. ZAB Members also brought up concerns about the strong opposition of the community toward the project and then determined that they wanted a condition that would require meetings every six months between the community and the developer while construction was going on.
The issues regarding flooding in and around this site was clearly identified as the second primary concern. Several speakers produced maps which indicated that a branch of Strawberry Creek flowed through the site and that the creek had been filled in at some time in the past and that this had consistently caused severe flooding and subsidence of land in the area. Neighbors also reported specific instances when they had suffered flooding in basements and backyards of their properties. One of the 18 speakers in opposition identified himself as a hydrologist who stated that a focused geotechnical report on the site was called for, and that the study presented by the applicant didn’t address that need. The concern was expressed not only for the safety of the buildings on the project site but that the proposed drainage system for the new project will worsen past flooding problems for surrounding properties. City staff and Mr. Rhoades were adamant that the project was “infill” and as such provisions of the California Environmental Quality Act (CEQA) provisions do not apply.
When public testimony and questions ended, ZAB members discussed the decision before them as if it was solely a matter of imposing the right conditions upon the development. There was no consideration of denial, or reduction in mass. There was only approval with conditions which included such matters as reconfiguring the four bedroom units, ensuring existing parking for existing tenants, providing existing tenants access to temporary relocation benefits, and meeting with the neighborhood during the time construction was in progress.
ZAB members decided that a geotechnical report would be required, but they did not describe the focus (or that it even should be “focused”) of such a new report. Mark Rhoades had stated earlier that a “blue curb” near the property was acting as a dam, and that removal of that curb would solve the flooding problem. There was very little discussion regarding this subject, and the technical reports submitted by the developer and the neighbors are not in agreement. Furthermore, there is no mention of how the City’s aged infrastructure will need to be repaired, modified or replaced to resolve the drainage problems that will come with projected heavy storms resulting from climate change and from sea level rise that is beginning to occur now and that will hamper drainage from the hills surrounding the Bay.
The motion to approve the project was passed as follows:
|Voting Yes:||Jackie Zaneri (substituting for Igor Tregub) – appointed by Mayor Arreguin
Savlan Hauser (substituting for D. Pinkston) – appointed by Council Member Droste
Teresa Clark – appointed by Council Member Maio
Leah Simon-Weisberg (substituting for P. Sheahan) – appointed by Council Member Davila
Shoshana O’Keefe – appointed by Council Member Hahn
Charles Kahn – appointed by Council Member Wengraf
Dohee Kim (replacing Brazile Clark who resigned) – appointed by Council Member Worthington
Carrie Olson – appointed by Council Member Harrison
|Voting to Abstain:||Maria Poblet (substituting for J. Selawsky) – appointed by Council Member Bartlett|
It is interesting to note that five of ZAB members voting that evening were substitutes most of whom will likely be filling the position on a one-time basis, or in the case of one appointee, is a new replacement for a member who has just resigned.
The neighborhood has filed an appeal, one of the big reasons being that Mark Rhoades is already maintaining that the condition regarding obtaining a geotechnical report has been fulfilled by the reports that have been previously submitted.