January 22, 2013 – Council Meeting

Item # 12  ZAB appeal 740 Heinz Street
Staff report
This project began in 2001 with demo application.  Came back in 2005 with a project.  Approved by Council in 2009.   In 2009 the project was 92,000sq.ft. with 49 parking spaces and retention of north and south historic facades.  Adjacent properties can meet parking requirements but must be deeded.  Applicant wanted to change the project to 100K feet and remove the parking with the condition of keeping upper floor setback.  Applicant filed an appeal in May 2012 proposing another revision that removed the historic building facades.  It was remanded back to ZAB.  ZAB approved changes in September and an appeal was rendered in October and is now before council.  Staff produced a response to the appeal and since there has been additional correspondence but did not have time to respond.  Staff recommends denying the appeal.

Appellant Comments
Request  that there be a public hearing.  This is exactly the type of development voted against in Measure T.  CEQA was not followed regarding public health.  ZAB and Planning pushed the approval to extremes.  It blasts holes in West Berkeley Plan.  There is no parking, too much density, too much FAR.
This is far and away from what the people of West Berkeley want to see.  There is a force that is pushing this.  Why is this being pushed?  It is a speculative building.  Everyone is being hyped on synthetic biology without consideration of the health consequences.
Irregular, false, misleading and irrelevant statements regarding the intent of the project and variance have been made.
All the characteristics that were there to grant the variance are being removed.  All the requirements to grant the variance are being thrown out.

Applicant Comments
This project had nothing to do with Measure T the dates support that.  It is stated that CEQA did not take into account the potential health consequences.  The building is a dangerous building and it was addressed in CEQA.  The FAR at the adjacent property is well below 2.  There will be reciprocal parking agreements with adjacent parcels and there will be deed restrictions.  Neighbors are concerned that their parking needs will not be met if there is not a parking garage built.
Why push for this project?  This building will create life science tenancies which do not exist in Berkeley.  It will create many jobs and not just PhD jobs.  We are developers that have experience in developing life science buildings and have done several in this area.  When the project was remanded back to ZAB it needed to be redesigned and that is why it is different.  We have 10 years of financial commitment to this project it is wafer thin in its economics.

Public Comment
There must be a public hearing.  Public was not properly notified.  The adjacent property owner is cheating. If it is a new design then why does it still get the same consideration without making the same concessions?
Public Health issues in projects such as this need to be addressed as the concerns for what might be developed in these buildings could be problematic.

Councilmember Comments
Bates:  I know parking is an issue but it has been addressed by the easements and deed restrictions by adjacent properties.  So someone else can come along and develop a building based on the variance that has been granted?  Is this state law?
Moore:  How will the developer be required to address the parking issues prior to permit issuance?
Arreguin:  The exceptional circumstance for granting the zoning variance which grated the additional height was the retention of the historic facade.  This raises a real issue if this variance can still be granted.  One of the main reasons that the variance was given was to retain the facades as a way to address the cultural resource impacts.  That is why an EIR amendment was not sufficient or appropriate for the change requested in this project.  A supplemental or subsequent EIR is required.  How is this not a severe and significant change?  This will set precedence down the road that if a project is not economically feasible that the city will grant a variance to make it so.  The basis for making this finding should not be the economic feasibility of this project.  Move to demand a public hearing, seconded by Anderson.
Bates:  When the variance was granted and it came to Council, could we have reversed the variance at that time?
Wozniak:  I agree with the applicant in that Measure T does not apply to this project.  I am a scientist and do know something about lab and biological science.   Much of our population have high level degrees and we need jobs for those people and then these people can live or commute to Berkeley and they are well suited for these jobs.  Also there will be jobs such as maintenance and secretarial available to those without advanced degrees.  I think the new design is better.  It was a dangerous building and this will be a new building that will add good life science jobs and the educational profile of the city.
Wengraf:  I understand that the developer does not own but leases the property.  Is the deed restriction part of the use permit?  Could we restrict the use of a building?
Moore:  It was a good project in 2009 and it is a good project now.  The same arguments made them were made then and we approved it.  We need the jobs at all levels.  What has been sitting there are dangerous walls for 25 years creating no revenue for the city.  This will just add to the projects that are already there.  This is a great project and needs the support of our council.  Substitute motion that we approve ZAB decision and move project forward.
Worthington:  As I understand the law there is no law in the zoning ordinance that states we need to maximize the profit of the developer.  If you look at all the options, there are other alternatives that provide decent returns on investment.  If you are building it to sell it then you need a higher return on investment but if you are building it to own it the return does not need to be as great.  I don’t recall seeing such a distinction that a project with a 5 1/4% return should be rejected but one with a slightly greater return and much greater impact to the community should be approved.  I don’t see why we should approve something just because it has a great return for a developer.  One of the cornerstones of the approval of this project (return on investment) is deficient.  There are other options that were studied that provide decent return and less impact to the adjacent property owners.
Maio:  I know that we couldn’t base the variance on retaining the historic walls but I do know that it was a reason that we granted the variance.  I am interested in learning more about this because we have an entirely difference project here.  Also I want to discuss the rate of return.  You have decreased the rental rates.  When were these models done?  So any project that comes to us now has the height variance because it has already been granted.  Could you tell me about the comments of the dissenting ZAB members?
Anderson:  How is it that projects get moved around and specific developers get special consideration?  When we have departments that are self-funded then they need additional oversight by council.  People feel excluded and that they have no voice.  Measure T sent a message about the people being excluded.  We need to be very very careful.  When there are economic pressures on the city we may favor economic considerations that are not in our best interest.  All of a sudden these zoning variances look like end runs around the process.  We need a public hearing about this project.  While a variance may go with the land there has been maneuvering by the developer around this project.
Wozniak:  How long has this project been before ZAB and Council?  So it has been in the process for 7 years?  There has been enough process here.  This is a good project.  It will contribute money to the housing trust fund, child care, business license, tax base and create good jobs.
Arreguin:  This project was approved in 2009 and they could build it today but now they want to change it.  They could have built it last year.  That is the issue we are discussing tonight — the project has changed because the developer wants it to be more economically feasible.  There are enough substantial changes that require a public hearing.
Capitelli:  Most of my concerns have been expressed.  I am troubled that there are suggestions that we are being swayed by additional revenue.  The difference in return on both of these projects do make a difference in the return on investment.  At $45 million the ad valoum tax benefit to Berkeley would be about $600,000/year in income.  Also, there will be a business license tax.  Can you give me any estimate on the business tax?  I bet it would be six figures.  That means out of 300 higher education jobs there will be 200 jobs for lesser educated.  This is not a Measure T project.  It wasn’t around.  There are two parcels here.  These recorded easements – do they rise to the “ownership” interest?  They will meet the required parking and exceed what has been required by the variance.
Maio:  I understand the parking and agree to that as well as the return for investment.  I want to understand why there are not any landscaping setbacks.  So there is no landscaping and set back on Heinz there is only a planting strip that is not owned by the project.  So you are planting city property 3 – 4 feet.  Do we know the width of the sidewalk?  There is landscaping on the east side.  Is the south side landscaping on your property?
Anderson:  Nothing we have discussed circumvents the fact that we should have a public hearing and clear up the things we still have questions about.
Wengraf:  If we hold a public hearing can we take back the variance?  Can we disapprove the project?  So the height of any project there can go with the land into perpetuity.    Would revoking the variance come before city council or go through another process.  If I thought the two brick wall were beautiful then I would fight for them but I just see them as dangerous.  My concern about the parking has been answered by the deed restriction.  The original building went right up to the sidewalk so now there will be some planting.
Bates:  This has been a long and interesting hearing and all of our questions have been answered.  I know this building and it is a hazard.  I think it is important that we see an R & D project in West Berkeley.  It is going to be good for our community and the area.

Vote on substitute motion (deny appeal and move project forward)
No:  Arreguin
Abstain:  Worthington, Anderson
Yes:  All others.
Item #16  Annual Grant for Sunday Streets
Public Comment
These organizations raised over $100K for Measure S and now they want the city to fund this project.  They stated they raised money at the event so why didn’t they hold it over for the next year.  I think the business community can raise their own money to promote.
Focus in the downtown – 16 blocks was too long.  suggest a Saturday that would coincide with the Farmers Market and add jazz on Addison for dancing and make the busses free so more people can come.
Sunday Streets gave Berkeley its soul back.  Creates a sense of community.
I had friends from San Francisco and Oakland come to this event.  Council funds other community building events but this is just so much bigger.
Communities look to Berkeley for their inspiration.  We cannot lose the momentum.

Liveable Berkeley:  Thank Bates for his leadership.  The city was ready for a community wide event.  There were 1000 signatures gathered to continue the event.  There will 2 events including a spring event also to coincide with Earth Day and another in the fall.  It is a great equalizer.

Downtown Berkeley Association:  This was an amazing event.  We were hoping for 10,000 people and there were over 40,000.  This is what the revitalization of downtown is about.

North Shattuck Association:  We felt like an open streets event was a natural for Berkeley.  The focus was on the existing merchants – not street vendors.  Merchants really liked it and would support it twice a year.

Councilmember Comments

Bates:  What are you asking for?   $22,000 in “in-kind” support plus $7,500 up front?  I am uncomfortable with this process as it is a new process.
Capitelli:  I am asking that the 2014 budget include the October event and then the spring event would be included in the budget process.   So the resulting cost for 2 events would be $44K in “in-kind” services and $15,000 cash.
Arreguin:  I would like to be a co-sponsor of this event.  The final decision will be made in June.  We need to let the organizers know we are willing to support this event so they can get started.  They need to know that we support this event and we can vote on the allocation in June as part of the budget approval process.  I think there are other neighborhoods that could benefit from an open street events and should be encouraged to do so.
Wengraf:  I attended and had a great time and for the first time saw people in wheelchairs and people on foot experience the street the same way.  That being said, I share the mayors concern about singling out this event and committing to fund it and not giving other events the same consideration.  What is the “in-kind” cost of all the other events?
Worthington:  There is a whole host of questions about this item.  I think we have many groups that have been doing events for decades and they have been cut in recent years.  So to suddenly say, without any evaluation, that we are going to guarantee funds for this event just is not fair.  There is also no detail and almost inconceivable.  Also there was no real data on the increase in business.  I think the proposal as it stands is pretty drastic and not spelled out with specific information and not in context with all the other events.  To pre-commit that we will give more money to this event than to any other is jumping the gun.  We could modify the proposed language to make it an “option” for referral to the budget process and not mandate it.  It was a really fun event.  I was there for most of the day and I have some great ideas and inclusion for more racial diversity.
Bates:  I suggest we refer the $59,000 to the budget process and I will fund $5000 from my D-13 account and if you all kick in money to get to $7500 then they can get started.  We can put this on the agenda in February and see who will kick in.  Worthington seconded.
Wozniak:  I support the mayor’s motion and I will contribute $1000 to the event.  We have to invest in Berkeley and the people who live here.  It meets our climate action plan.  We should spend .50/resident to do this.
Maio:  I loved it and the process.  We can donate money to get it started and then figure out how we can fund it.
Capitelli:  Support the Mayor’s motion.  There is uniqueness to this event and we come together so rarely as a community and this was a great community building event.  We need some community celebrations.  I have never been to an event in Berkeley like Sunday Streets last fall.  No one was trying to sell us anything.  We need to remind ourselves that with all our differences in this community we are all the same.
Anderson:  I am pleased with the modifications.  I was not able to attend the event but I know it was a great activity and brought a sense of community.  We can’t contrast this with other events but I want to make one comment.  In December, I brought an item to Council to give beds in the winter months to homeless youths.  I want to contrast the Council’s response to that issue and how it got pummeled without the thorough discussion we had tonight.
Moore:  I have a problem with the compromise.  The Council does a disservice without our D-13 accounts.  Perhaps we found an area to cut our budgets – cut our D-13 accounts.  The way we use them is wrong. I was prepared to vote for this tonight but I don’t like the way we shower money with our D-13 accounts. We should fund those projects that are worthy and don’t fund the projects that are not.
Arreguin:  Perhaps we should look at our D-13 budgets.  This is a new project – other events are recurring.  This is exceptional and should be looked at differently.
Wengraf:  Moore may be correct but in the meantime…..I do spend my D-13 account by funding events.  I will commit $1000 to the event from my account.
Bates:  This is one of the best events I have ever been to in my life.  Also I want Anderson to know that we are working on the homeless youth issues.

Vote (put on February 19th agenda for D-13 initial funding.  Refer in-kind service costs to the budget process)
Yes:  Unanimous
Item # 15 Potential City Council meeting Alternate Locations
Bates:  I think the idea that we should anticipate larger council meetings in an alternate location it is a good idea.  I strongly feel that the place to go is Longfellow School.  There is no way to do temporary TV broadcasting at any other venue.

Public Comment:
It costs less than $10K to add media coverage to the Auditorium locations.

Councilmember Comments:
Maio:  If any other venue becomes available then we need to look at it.
Bates:  I will accept that as a substitute motion.
Worthington:  I think that fixing the elevator etc. in this building is in our current budget.  So whether or not the meeting is called for Longfellow or the Little Theatre is not a major question.  The issue is when and where do we decide that the meeting is going to be changed!  There have been many times we have known when the meeting is going to be large and we have not done so.  What are the benchmarks that will require it being moved?  I don’t think we are going to solve this at 11pm at night.  I do think we need to address the question of thresholds.  How do we make certain?
Bates:  I will amend my motion that the agenda committee will come back to council with relocation criteria.
Capitelli:  My preference would be BCC.  Do we know how much it would cost to media upgrade?  There is also disability access there.  We were over capacity tonight.  Would we move if a proclamation would force a move?
Maio:  Even if we develop criteria we may not know if we have met them or not.  It needs to be fluid and other councilmembers need to let us know when there might be an issue.
Wengraf:  Does the School District charge us for use of their facility.  Are there monitors set up?

Vote:  (Except Longfellow school as the alternate location and have the Agenda Committee establish criteria for Council consideration.
Yes:  Unanimous