Public Comment

The Berkeley Neighborhoods Council (BNC) is writing this letter because of deep concerns expressed by many Berkeley neighborhoods over the increasing threat to the well-being of residents and the unshakable hope that the year 2021 will provide the opportunity for a fresh start for cities everywhere. While these concerns include the broad spectrum of urban life issues, this letter focuses on existing land use policies, procedures and practices that affect the daily lives of residents in every part of our City. The Berkeley Neighborhoods Council is not anti-development, anti-housing or anti-business, we are pro-people.

These concerns have been expressed over a long period of time, mostly at meetings of the Zoning Adjustments Board (ZAB) and on appeals to the City Council. Today, they have grown to the extent that there are increasing calls for a holistic approach, a new visioning of our City that considers social, economic and age diversity, public health and safety, racial justice, livability, climate change and resilience, in a process driven by residents, not by paid consultants, nor the preconceived concepts of City staff. On January 9, 2021 at the regular meeting of BNC, we heard loud and clear the voice of the people in neighborhoods throughout the City.

Those concerns centered around four basic objectives as follows: 

1. To uphold the principle that the fundamental duty of government is to protect the health and safety of all the people they serve;
2. To maintain local control over land use that respects statewide and regional objectives, but still considers geographical, environmental and governmental circumstances that define our City and sets it apart from a ‘one size fits all’ approach;
3. To ensure that the value and timeliness of the participation of people in land use decisions is practiced; and
4. To adopt land use regulations and enforcement mechanisms and procedures that are fair, transparent, free of influence as to outcome, and address racial and socioeconomic inequities imposed in the past.

Five major land use decisions that have been made recently or are under current consideration by the City of Berkeley exemplify our basic concerns. These projects are: 

1. The renewed attempt to resolve the more than 30-year problem of eliminating the toxic air emissions and disturbing noise emanating from the Lehigh Asphalt plant at 699 Virginia Street:

The plant located in Berkeley in 1956. In 1999, because of odor pollution complaints, the Oceanview Neighborhood Association and Communities for a Better Environment filed a lawsuit that resulted in a settlement agreement between the plant and the City of Berkeley that modified the plant’s Use Permit to require that loading operations be covered. In subsequent years complaints again escalated, and in 2015 the City directed staff to enforce the settlement and take corrective actions. A committee of Council Members Maio and Droste was appointed to look into the problem and contact Bay Area Air Quality Management District (BAAQMD). Between October and December 2020, over 200 complaints were filed with BAAQMD regarding intense episodes of sulfurous air pollution affecting large areas of Berkeley. Three Notices of Violation (NOV) were recently issued: Two by BAAQMD on December 8 and December 22, 2020 under Code 1 Section 301 Health and Safety Code 41700, Public Nuisance, giving the plant 10 days to submit a written description of corrective actions or seek a variance. The City issued a NOV on January 11, 2021 because of frequent noxious odors stating that the plant shall enclose the asphalt product truck loading operations with a February 1 date to submit a plan check correction list or within 15 days submit evidence of compliance. Monetary penalties up to $500/day are citied, but there is no mention of revoking the plant’s Use Permit. Why? 

BNC wants to know the answer to that question and what exactly has happened as a result of the NOVs. The long-time failure of this plant to comply with the terms of its Use Permit, plus failure to implement new advances in technology is inexcusable and threatens the health and safety of all residents. It is the obligation of the City and the BAAQMD to take immediate and decisive action. 

2. Approval of the co-living project at 2435 San Pablo Avenue:

This is a four-story building with commercial/retail on the ground floor and on each of the three floors above, a shared kitchen, eating and communal seating area surrounded by 15 small rooms (200-240 sq ft with a bed, desk, sink, toilet and shower), topped by a patio with shared open space, laundry and toilet facilities. The project was presented as a trending co-housing model for individual professionals. Potential rents are said to be $2,000 per room per month. There are no affordable rooms. The City considers these as Group Living Accommodations (GLA) similar to “guest rooms” in rooming/boarding houses and in single family homes with five or more bedrooms. ZAB approved the project in August 2020. An appeal was filed in September on issues regarding health and safety, avoidance of payment of Housing Trust Funds, no regulations for the establishment of residential hotels or GLAs, shadowing on nearby residential uses, and traffic and parking impacts. 

BNC supported the appeal for three main reasons because it 1) puts tenants and the whole City at risk because it goes against all current health and safety regulations; 2) evades paying Affordable Housing Mitigation Fees, and it 3) should be deferred until health and safety standards for Non-Transient Long Term Residential Hotels are put in place. The Council held a public hearing and approved the project with the addition of adding a soap dispenser in the bathroom sink that is part of the toilet tank. After the meeting, we note a Twitter post from Council Member Robinson, who characterized such health and safety concerns as the usual "dog-whistle" complaints from housing detractors. 

Health and safety issues cannot be lightly dismissed as the City in granting its approval found specifically that “the circumstances of this particular case existing at the time at which the application is granted” are not detrimental to the health, safety and general welfare of the persons in the neighborhood or to the general welfare of the City.” BNC is puzzled as to how a land use decision for “Group Living Accommodations” can be allowed that violates the regulations the Berkeley Health Department has in place for dining-in businesses throughout Berkeley and a directive from the California Department of Public Health which banned gatherings “that bring together people from different households at the same time in a single space, or place.” 

We want a written explanation, particularly given the increase in COVID infected UC students with no indication of where or how such contacts might have occurred. 

3. Adherence to State policy regarding Accessory Dwelling Unit (ADU) development:

1. on narrow streets in the CALFire designated high fire Zones and the Alquist-Priolo Earthquake Zone safety risk areas which hinder both emergency vehicle response and resident evacuation.

In mid-year, the City Council asked the Planning Commission (PC) to consider a local ADU ordinance with a focus on the CALFire designated Fire Zones 2 and 3 since the ADU Urgency Ordinance approved in January 2020 would expire in December of that year. The PC in turn requested feedback from the Disaster and Fire Safety Commission (DFSC) which responded to the PC on July 20, 2020. The DFSC concluded that the prohibition on ADUs in the Fire Zones should remain and added three recommendations: 1) the prohibition should only apply to new ADUs on narrow streets that impede emergency vehicle access in designated fire zones; 2) the prohibition should include two designated evacuation routes in those Fire Zones even if those streets were not narrow; and that the PC join the DFSC is supporting various wildfire prevention and evacuation measures. 

The DFSC report was never discussed by the PC. It is said that the City Attorney’s Office short-stopped the discussion by concluding that the City could not regulate ADUs based on street width and the existing ADU Urgency Ordinance expired. On January 26, 2021 the Council took two actions regarding off-street parking and new ADUs. These were: 

• Reduce on-site parking requirements citywide for new construction, including ADUs and halt expansion of the on-street reserved parking permits program.
• Ask the DFSC and PC to recommend within 90 days ADU ordinance amendments that would address emergency access and egress, street parking in Fire Zones 2 and 3, and limiting the size of new ADUs.

While no one can argue against trying to reduce dependency on the private automobile, this is a prime example of poor planning when an action is approved and at the very same time, amendments to that action are to be considered. The City had more than 6 months to respond to the ADU question. It didn’t do so, and while it is raining now, we cannot breathe easier. The danger to all Berkeley residents is increasing as wildfire is now considered not to be a seasonal event but to be present throughout the year, and rain ensures the production of more fuel for future fires. 

The City also ignored the information which appears on page 9 of the State issued ADU Handbook, updated December 2020, which states that while ADUs must be permitted, “any limits on where ADUs are permitted may only be based on the adequacy of water and sewer service, and the impacts on traffic flow and public safety.” (Emphasis added). 

We understand that the City Attorney’s Office may be reconsidering their opinion. BNC urges that this problem be addressed immediately as ADU units are being approved administratively that are far above what people expect from such housing units and which are harming existing tenants. See below. 

2. granting approval that disrupts existing housing, including disabled access such as the approval of the project at 2915 Harper Street.

On October 20, 2020, the City administratively granted a permit to build a 4-bedroom, 1,005 sq ft ADU in the front yard of an existing multi-family building at 2915 Harper Street. The ADU eliminated the front yard setback of the existing building at that address along with the five parking spaces for existing tenants, including the access used by a wheelchair-bound disabled man. The only notice to tenants was a note in their mailbox to move their cars to enable the construction. 

On November 19, 2020, during the Rent Stabilization Board’s Public Comment Period, six speakers told of the distress and problems encountered by residents due to this construction and how it was handled. It is said that the City has published a one-page summary of ADU regulations this month. A long search by BNC has failed to find such a document. However, we have been told that it indicates that the City has decided that detached ADUs on multifamily lots that do not exceed 16 feet in height may be of unlimited size. This is truly an important issue throughout Berkeley. The experience of 2915 Harper is the canary in the mine where any and all zoning features will be waived. This speaks volumes as to how residents can be expected to be treated in the future. The future is confirmed by what happened regarding the Adeline Corridor Plan. 

4. Introduction at the last minute of allowable building conditions that have never been previously seen by the public and which overturned years long planning efforts as occurred in the approval of changes to the Adeline Corridor Plan.

On December 8,2020, the Berkeley City Council approved a new Adeline Corridor Plan that covers 86 acres along Adeline and Shattuck from Dwight Way to the Oakland border. Once an area with a majority Black population, it had thriving commercial areas, surrounded by well-kept homes. It now suffers from significant gentrification and displacement. The new Plan approved by the Council allows greater density than had been recommended, 75,000 sq ft of commercial space, 1,450 housing units, 850 of which will be on the Ashby BART parking lots. 

No question, this was an important land use decision. After five plus years of planning, citizen participation and endless meetings, the PC approved a hard-fought compromise that was supported by both the Berkeley Tenants Union and the Friends of Adeline, a grassroots neighborhood group. That compromise was before the Council when they met to vote on it. During the meeting, without any written material having been circulated before the meeting, Mayor Arreguin proposed allowing greater heights without any increase to the amount of on-site low-income housing the developer would have to provide. Solar protections for adjacent properties were also eliminated. A motion to approve the PC’s recommendation failed, and the Mayor’s proposal for greater density without increased affordable housing was approved by Mayor Arrequin and Council Members Kesarwani, Taplin, Wengraf, Robinson and Droste. 

The Mayor hailed it as accelerating affordable housing by “placing racial and social equity at the front.” The Berkeley Tenants Union called it a “sell-out to Corporate Developers.” Community participants were stunned to see their years of hard work to forge a compromise on density and finally achieving a significant amount of affordable housing, summarily swept away. Many saw this as an unjust, insulting and duplicitous move that denigrates their continued, positive engagement in their community. 

5. Tacit acceptance of the designation and planning efforts of the Bay Area Rapid Transit District of the North Berkeley BART Station as an “Urban” site while at the same time saying that any proposed development would be in context with the low-rise development of its surrounding, existing neighborhood.

About 60 years ago, some 75 houses where the North Berkeley BART Station is currently located were torn down to create the North Berkeley Station with a large parking lot to be used for commuters using BART. Under then Mayor Wallace Johnson, Berkeley voted to tax themselves to pay for undergrounding BART tracks and creating a public transit system that would in appearance and function be unlike any in the East Bay. 

Today, Berkeley’s BART Stations are part of the statewide effort to build some 14,000 housing units on properties they own. The vast majority of these stations in urban areas are in locations surrounded by existing commercial and high-rise multifamily uses, i.e. in neighborhoods that are similar to downtowns. However, the North Berkeley BART Station on Sacramento Street is uniquely smack in the middle of low-density residential uses. BART doesn’t recognize this unique situation and they classified the North Berkeley site as “Urban” which calls for the construction of a minimum of seven-stories of housing. 

Planning has been going on for some time. A City-BART agreement has been signed indicating that the subsequent plan would “consider” the context of the surrounding lower density environment and a 14-member Community Advisory Group (CAG) was formed to address both the North Berkeley and Ashby BART Stations. 

During this planning stage, staff and paid consultants have only been talking about a plan that will allow eight story and above structures with 800 – 1200 housing units. The North Berkeley Neighborhood Alliance supports a stepped plan with 400 to 500 housing units that are 100% affordable. Two stories would be at the perimeter with 4 stories in the middle. Architectural renderings have been prepared that show an 8-story structure plan compared to what the low-rise story plan would look like in its existing surroundings. The Alliance wants the low-rise plan to be presented as an alternative scenario for the Station. To date, participants in the planning discussion have overwhelmingly preferred the low-rise design yet there has been no indication that this alternative is even being considered. The low-rise plan isn’t shown and the staff and consultants have made it clear that the final design will be created by the developer chosen to build the project. 

Breaking news: Council Member Droste has submitted a “Resolution of Intent,” No. 31, Consent Calendar, City Council Meeting of February 23, 2021 that calls for upzoning most of the City. The item is co-sponsored by Council Members Robinson, Taplin and Bartlett. 

The item presents a history of single-family zoning and red-lining loan practices ending with the conclusion that this racist history is a proxy for racial restrictions that still exist today. It calls for “zoning reform” that will allow single-family homes but will also allow a greater mix of home types and affordability in more neighborhoods and reduce housing costs for low and middle-income households. It will do this by pursuing zoning reform that: 1) addresses public safety in all parts of Berkeley; 2) where a mix of single and multi-family housing exists, new housing will occur within the existing multi-family range; 3) the inclusion of new and rehabilitated multi-family developments will be encouraged; and 4) multi-family housing in certain parts of Berkeley will no longer be banned. 

There can be no better example of establishing a process for which a conclusion has already been reached so that it can be claimed that public input occurred but comments by those who might not want that particular conclusion can be ignored. 

Berkeley residents need to be informed and comment on this proposed resolution. 

BNC has held a regular meeting on Saturday, February 13, 2021 from 10:00 am to 12:00 pm for a preliminary discussion. ... We are also working on arranging a forum on Saturday, February 20, 2021 regarding this problem and inviting at least one of the Council Members associated with it to be present. 

Conclusion: 

BNC requests that the City take immediate action on the following: 

1. Create a partnership between the City, BAAQMD and a committee of residents that will establish a written timeline to either resolve the problem permanently or face revocation of their Use Permit.
2. Rescind the action to grant a permit for The Poet’s Corner at 2435 San Pablo until the Department of Health has granted approval for dine-in facilities throughout Berkeley.
3. Request that the Planning and Community Development Department work on a priority basis to create appropriate code standards for Resident Hotels.
4. Request the Department of Health to review health and safety standards for new GLAs throughout the City to determine whether they should be altered to ensure resident safety or be halted altogether during pandemic conditions.
5. Request the Rent Stabilization Board produce written guidelines as to rent, eviction and other tenant protections applicable to residents of GLAs.
6. Re-institute the emergency ban on ADUs in Fire Zones 2 and 3 until action has been completed on the Council’s 90-day request to the DFSC and PC to comment on this matter.
7. Review construction on the administratively approved ADU at 2915 Harper to determine if there is any way that disabled access for an existing tenant can be re-established.
8. Revise Council meeting procedures to include prohibiting the introduction of significant changes to an item which previously has not been seen by the public at a Council meeting at which action is to be taken on that item.
9. Revise Council meeting procedures in order to provide speakers on land use issues at least 2 minutes of time, and that Council not take action on the same date that a public hearing is held on zoning appeals and land use issues, but instead schedule such action at a future Council meeting.
10. Re-consider the Council decision regarding rejection of the PCs recommendation regarding the Adeline Corridor Plan.
11. Request planners prepare and make a side-by-side comparison of the 8-story plan and the alternative 5-story plan, including an analysis of how each meets the Council’s signed agreement with BART that the adopted plan would be in compliance with the existing neighborhood.
12. Reject item 31, submitted by Council Member Droste and co-sponsored by Council Members Robinson, Taplin and Bartlett establishing a Resolution of Intent regarding zoning reform.

BNC assures you that we support zoning reform which includes a review of our current Master Plan, and we will be submitting ideas in the near future of how that might occur. Today, we urge that the Council indicate its intent to begin such review and reform by beginning a process that will be fully vetted through all appropriate boards and commissions. Furthermore, that the process will consider the need for housing and include transit planning that does not rely upon high priced and polluting old fashioned public transit alternatives. Today, we urge that such a process begin.