Comments

John English on the Mayor’s
Task Force on Permitting and
Development’s Draft Report

29 October 2003

Mayor’s Task Force on
Permitting and Development
c/o Cisco Devries
2180 Milvia Street
Berkeley, CA 94704

Re: Comments on the Draft Report

Dear Task Force members:

This is to comment on the October 2004 draft report that you’ve been reviewing. The remarks here are my own, and don’t purport to represent views of any organization that I happen to belong to.

Section Entitled “General Recommendations”

Role of Staff. One major topic here should be the role of staff. Whether or not fully justified, there’s a widespread citizen perception that staff are biased in favor of developers. Specific recommendations could address such matters as who presents a development project at the ZAB hearing.

Obsolete Environmental Review Guidelines. The report should call for prompt updating of the City’s own environmental review guidelines, which haven’t been revised since 1990. They need to reflect many pertinent changes in CEQA and the CEQA Guidelines. And in particular, they need to specify a procedure whereby decisions to do a negative declaration or EIR—or neither—can be appealed, timely, to the City Council.

Automatic Referral to Mediation? I question Page 8’s Recommendation 3.2, which says that “Appeal applications should be automatically referred to mediation if there has been no previous attempt.” Shouldn’t discretion be retained here, recognizing that in some cases mediation may not be productive?

Section Entitled “Recommendations for Residential Zones”

Unclear Scope. It’s quite unclear whether this section applies to (quoting various language on page 9) “residential zones,” “single family neighborhoods,” or “single family home[s].” (For instance, some residential zones allow multi-family buildings; as another example, some single-family dwellings are in nonresidential zones.) This needs to be resolved.

New Single-Family Houses by Right. The report’s most radical proposal is to allow new single-family houses (and major additions bigger than 499 square feet) by right if they meet a “Zoning Certificate Envelope,” and by a mere AUP if they don’t. Depending on lot size and on that envelope’s detailed parameters, this could mean construction of mega-houses with no opportunity for neighborhood objections. If this highly controversial proposal is to be made, the final report should express it much more clearly and prominently than the draft does.

Two- to Four-Family Dwellings by Right? Is it intended that if they met the “Zoning Certificate Envelope,” even two- to four-family buildings would (in most zones) be permitted by right? (For comparison, note how page 14 defines “Large Scale Development” as including projects of "five or more residential units.") If so, this obviously would be even more controversial. Please clarify.

AUP for Higher Fences Abutting the Street? Recommendation 1.3 (on page 9) needs clarifying as to whether fence height in yards that abut a public right-of-way could exceed four feet if an AUP is granted.

Overstatement About Replacing Stairs, Etc. On page 9, the Topic 1 discussion and Recommendation 1.2 may overstate the difficulty of replacing or repairing features like stairs that are in a required yard. The Zoning Ordinance’s Section 23C.04.050 now says, “Replacement of portions of a non-conforming structure is allowed provided that the removed portions were lawfully constructed and are replaced to the same size, height, extent and configuration as previously existed.”

Inconsistency Re Neighbor Sign-Offs. Page 11 says that a “fast track” AUP alternative where all immediate neighbors sign off was rejected in part because of “legal...difficulties.” If so, then why does page 10’s Recommendation 2.3 say that an AUP “would” be granted if the same neighbors sign off?

Section Entitled “Commercial Use Permits”

Inadequate Title. This section’s title isn’t broad enough. At least part of its Topic 1 isn’t about "use permits" as such.

Overstatement of Parking Requirements for Changes of Use. Using an example where a clothing store (within an existing building) is proposed to be replaced by a bookstore, page 12 quite incorrectly says that this now would require providing the full number of parking spaces that the Zoning Ordinance prescribes for bookstores. This particular conversion probably wouldn’t require any new parking—if only because clothing stores and bookstores would likely both be classified as general “Retail Sales.” The Zoning Ordinance’s definition of “change of use” says that it "does not include changes between uses that are classified in the same category of Commercial or Manufacturing use."

The draft report appears to overstate the present situation even for conversions that do constitute a “change of use.” The Zoning Ordinance’s rules on what, if any, new parking must be provided when an existing building’s use changes vary from zone to zone. For some zones the language is unclear, even internally inconsistent. And I don’t know exactly how the staff has been interpreting (or conceivably misreading?) the provisions. But it seems to me that at least in the C-1, C-NS, and C-SO Districts, many changes of use (such as from an office to a bookstore) are allowable without any need to supply new parking. For instance, in C-1’s Section 23E.36.080, sweeping subsection A evidently applies only where “new commercial floor area...[is physically] created”—and parking requirements for changes in the use of existing floor area appear to apply just where the new use would be one of those singled out by the table in subsection C. In various other zones, though, parking requirements do seem to potentially constrain commercial use changes in general.

And the subject as a whole does merit serious attention.

Some Problems with Recommendation 1.1. The second sentence of page 12’s Recommendation 1.1 is terribly unclear. Perhaps what its drafters intended would be better phrased as “In such cases, the incremental difference between the parking requirement for the existing type of use and the requirement for the new type of use shall be provided.” The first sentence says that a zone’s lowest parking ratio is “usually 2 per 1000 sq. ft.,” but it should be kept in mind that for some uses, several zones—along and west of San Pablo Avenue—have ratios as low as one parking space per 1,000 square feet of floor area. Another complication is that for some kinds of uses (such as hotels), the parking requirement is based not on floor area but on some other measure (such as number of beds).

Possible Models Elsewhere. The City should look at other jurisdictions’ diverse rules on whether, or to what extent, parking must be provided when there’s a use change within an existing building. One example which should be thought about—but which I’m not necessarily advocating for Berkeley—is the provision in Oakland. It essentially says that except to the extent you construct an actual “addition,” you can change the occupancy of an existing building from any nonresidential use to any other nonresidential use without the need to provide any new parking spaces.

Potential Effect on Neighborhood. While the existing rules on parking requirements for commercial changes of use may need revising or relaxing, the City should also consider potential impact on the availability of curb parking within adjoining neighborhoods.

Overstatement About Quota Restrictions. Page 13’s Recommendation 2.2 seems to incorrectly imply that number-of-establishments quotas can only be exceeded by means of a variance. Of the four zones that have quota systems, the C-E and C-SO Districts presently allow the number to be exceeded via a use permit. And they currently prescribe their own required findings for such use permits.

Overstatement of Difficulty in Changing Use. Although more flexibility of use changes may well be needed, the example given by page 13’s Topic 3 is misleading. I gather that a change “from food product distributor to furniture wholesale” wouldn’t now require a use permit. They’re both within the category “Wholesale Trade,” so there wouldn’t even be what the Zoning Ordinance defines as a “change of use.”

Section Entitled “Recommendations for Large Scale Development”

Need to Avoid Limiting LPC Membership to “Experts.” Looking at page 15’s Recommendation 2.2, I question whether the Mayor’s Task Force should address the matter of LPC membership at all. But if you do, it’s important to recognize the value of including not just “experts” but also citizens who have relevant enthusiasm and nonprofessional background. Often it’s a lay citizen who best understands the history of an area and what makes its buildings special.

Needed Distinctions on Timing of Landmarkings. Various statements on pages 16-17, such as in Recommendation 2.7’s Alternative B, should make distinctions between proposed landmarkings where a current development project is involved and proposed landmarkings where there is no such development project. In the latter case, there’s no pressing need to rush the landmarking process.

Even in the case where there’s a pending development project, is it really necessary to have a two-year “closed window” during which landmarking couldn’t be initiated? Could it instead be stated that landmarking could still be done but wouldn’t endow the LPC with power over the particular project?

Inadequate Time for Pre-Hearing Documentation. Recommendation 2.7’s Alternative B is so worded that it would often leave virtually no time between initiation and public-hearing notice during which to do the extensive landmarking documentation that may well be needed.

Overstatement About Pre-Submittal Review. I agree with the first sentence of page 17’s Recommendation 2.11: namely, that “[a] property owner should have the ability to ask the LPC for a review of a structure or property prior to project submittal.” But the second sentence’s statement that this would provide “a definite answer on the historic value of...[the] property” goes too far. While pre-submittal review would yield a valuable and typically pretty sound first reading, a “definite” answer must await the further procedural safeguards (and opportunity for public input) that come after formal project submittal.

Misreading of Responsibility for Design Review. The wording of Alternative A under Recommendation 2.8 (on page 17) seems to assume, incorrectly, that there now are cases where both the LPC and the DRC are charged with design review for the same project. In fact, the Zoning Ordinance explicitly assigns responsibility as such to either one or the other. While some types of cases for which the DRC is responsible get referred to the LPC, this is to solicit advisory comments—and such consultation is justified and important. Coordination is also fostered by the present requirement that the DRC itself must include a member of the LPC.

Confusing Language About Public Input. On page 18 in the part of Recommendation 2.14 where it says members of the public should be allowed to speak “during public comment,” those three unnecessary words should be deleted. The term “public comment” could be taken to mean something like the routine general open-mike period at Council meetings. But remarks from the public are often best made during the agenda item on the particular project.

Inconsistencies About Maximum Densities. Unlike all its peers, Recommendation 3.1 (on page 20) lacks any general statement of its subject or intent. More importantly, why does it treat the establishing of maximum density for all parcels as just one alternative whereas, on the next page, Recommendation 3.2 actually calls for this?

Confusion on Parcel Vs. Area Densities. Page 21’s Recommendation 3.2 calls for “a maximum residential residential density for each parcel that is within the range of population density currently stated in the General Plan Land Use Element....” And page 23’s Recommendation 5.2 says something rather similar. But do you literally mean that? For instance, regarding both “Avenue Commercial” and “Neighborhood Commercial” areas, the Land Use Element has a criterion of 44-88 persons per acre. Now if you’ll look at the actual densities (on an individual-parcel basis) of the recent big projects within those areas, you’ll likely find that most if not all of them far exceeded the Land Use Element’s criterion. Apples may be getting confused with oranges.

Maybe we need to have two sets of density standards, and thoughtfully maintain an ongoing balance between them: density on an area basis (for purposes of infrastructure and related planning) and density on an individual-parcel basis (for puposes of controlling a specific project and its effects on the immediate surroundings).

Unclarity About Mix of Unit Types. It’s very unclear what Recommendation 3.3 (on page 21) means by "standards specifying the mix of residential unit types." Is the intent to require that each project contain (say) X percent studio units, Y percent two-bedrooms, etc.? There are indeed certain unit types that the City should be encouraging, but prescribing a standard mix for all projects to meet would be very problematic.

Is the intent perhaps for “density” to be expressed as a sliding scale whereby the allowable ratio between number of units and amount of lot area would vary as between studios, one-bedrooms, two-bedrooms, etc.? This approach, which is used by some cities, offers better correlation with the likely number of people, and is worth considering.

Needed Planning Commission Restudy of Density—and Bonuses. The General Plan Land Use Element’s treatment of densities is very unclear, and includes various statements that seem to contradict each other. Some apparently refer to density as an area average, while others seem to imply density on an individual-parcel basis. And the density figures themselves (such as 44–88 persons per acre) seem to have been casually adapted from the previous Master Plan, with little thought given to them.

A related concern is Berkeley’s glaring lack of clarity and consensus on rules for computing density bonuses—and/or providing other concessions or incentives—under Government Code Sections 65915 et seq. To correct this, a detailed and rigorously reasoned set of Zoning Ordinance amendments needs to be drafted and publicly debated.

I don’t like to burden people who are already burdened, but these complex and highly interrelated concerns are a job (an urgent one) for the Planning Commission. The Mayor’s Task Force should so recommend.

Misstatements About Present Design Guidelines. Topic 7’s statement (on page 23) that special design guidelines for the Southside are “currently in place” may be an overstatement. Although staff may in practice already be using those guidelines, the Draft Southside Plan that they’re in unfortunately still hasn’t been adopted. Topic 7’s statement that “Large Scale Development taking place outside of [Downtown and the Southside]...is not currently subject to any published set of design guidelines”" is misleading. There actually is a printed, five-page document (presumably adopted years ago by the Planning Commission) consisting of guidelines that appear to apply to all areas subject to design review.

Admittedly, however, that five-page document is shorter and less specific than the tailor-made guidelines for Downtown and the Southside.

Overstatement About Basis for University Avenue and San Pablo Guidelines. I agree with Recommendation 7.1’s concept (on page 24) of special design guidelines for University Avenue and San Pablo Avenue—although I seem to recall that guidelines about some matters on San Pablo have already been drafted. But I suggest deleting Recommendation 7.1’s unnecessary statement that “[t]he guidelines should be based as much as possible on those already developed for the Downtown and Southside Areas.” While much can be learned and adapted from the Downtown and Southside documents, the guidelines for University and San Pablo Avenues also need to be tailored to their rather different context: long and narrow commercial strips running through relatively low-density neighborhoods.

John S. English
Berkeley

Copyright © 2003–2019 Daniella Thompson. Text © John S. English. All rights reserved.