For years, the city of Berkeley has led its citizens to believe that its general plan and its constituent area plans actually articulate municipal public policy.
Berkeleyans — those who labored hard and long to hammer out the community’s land use constitution and continue to refine it, and those who are concerned about the literal shape of Berkeley’s future cityscape and all of the impacts upon individual and collective living that will flow from that shape— might well be alarmed to discover that, in fact, both the general and area plans are legally meaningless with respect to zoning and land use decisions in this city.
It is time for citizens to insist that ordinances be consistent with the general plan, for Berkeley’s competing agendas to be brought out from back rooms for debate and selection as public policy, for the general plan to be made a meaningful guide to public decision-making and for it to be the touchstone of Berkeley’s ordinances.
On March 6, the city argued in Alameda Superior Court that Berkeley, as a charter city, has no obligation for consistency between its general plans and its zoning ordinance. Unlike most jurisdictions in California, Berkeley is free to say one thing in its general and area plans and to implement something entirely different in its ordinance. On March 18, the court agreed.
Among the specifics is that Berkeley has no applied population density standards for zoning districts denser than R-2A; no established or consistent methodology for evaluating a project’s density or its impacts, and no intention of developing either operative standards or methodology. In spite of state law requiring population density standards throughout a jurisdiction, the court decided that a “statement” was literally all that was required of a charter city, not its actual application.
The implications are potentially dramatic for Berkeley. The city has put its cards on the table: With respect to zoning, there is no public policy document. The interpretation and the enforcement of local zoning ordinances are largely in the hands of City Council and staff, who now stand not so much above or outside the law, but are empowered to shape local law from moment to moment to suit private agendas. Competing visions of development have no principles by which they may be refereed except by the naked exercise of political power and the hidden exercise of special interests and back-room dealing.
We now discover that there is no real need for “density” bonuses, for there are no density limits. Indeed, the Planning Department has specifically asserted in support of state funding applications that the density possible in both the C-SA and C-2 zoning districts is “unlimited.” Conveniently, the city can turn to the legal cover of “concessions” under the State Density Bonus Law to justify the waiver, relaxation or set-aside of any — and any number of —development standards for any project with “affordable” housing.
Thus, Berkeley’s famously discretionary zoning is revealed to be so flexible as to offer no real guidance, control or boundaries to municipal actions. The sky is literally the limit.
Whatever future shape citizens may wish Berkeley to take, the most alarming revelation from the court’s decision is that city officials are not obliged to provide a meaningful civic framework to articulate it. Whether smart-growth advocate, neighborhood preservationist, new-urban visionary or back-to-the-earth utopian, the lack of a public road map to chart Berkeley’s land use aspirations for the near and middle future will make progress difficult and development divisive. The absence of an operational road map, a general plan, reveals the fundamental lack of planning in Berkeley, reducing that department’s duties to one of mere permitting — or, more darkly, “planning” will be a creature of hidden agendas rather than the fruit of public policy.