Page One

Abuse of Use Permits, Strife Between Citizens and Staff Mar City Planning Process

Friday June 20, 2003

The mayor has convened an advisory task force taking on the difficult task of trying to make our planning process better. I offer the following comments to spur public input into this process. To me, there are two “big picture” problems with Berkeley’s planning process: 

1—Misapplication of Use Permit Process. Berkeley’s Zoning Code overextends the reach of the use permit into areas that are better served by the combination of a reasonable “by right” envelope and a variance if exceptions are required.  

2—Poor Alignment of Staff and Community. Friction between “professional” planning and Berkeley’s commissions and community members must be overcome. 

Both of these areas have solutions. 

Use Permit Background: A use permit was originally intended to deal with compatible and incompatible “uses.” For example, if you want to have a grocery store, a printing press or a music club, a planning process ensues to determine if this “use” is compatible with the neighborhood in which you want to locate it. Hence the “detriment” finding: the use will not be detrimental to the health, safety, peace, morals, comfort or general welfare of persons residing in the neighborhood.  

A variance is intended to deal with exceptions from a consistent “by right” envelope for physical structures. For example, to build a commercial building, a mixed-use building or a residential building, there is an envelope of height, setbacks, open space and required parking that establishes development consistent with the intended fabric of a neighborhood.  

A discretionary planning process only ensues if you require a variance—an exception to the standard rules. Hence the “exceptional circumstances” finding—there are exceptional or extraordinary circumstances applying that do not apply generally to land, buildings and/or uses in the same district. 

Solution: Revise our Zoning Code to establish reasonable “by right” envelopes for all building types by district, grant exceptions by variance, and limit the use permit process to uses. This need not “take years” —this how planning is done in most cities across the United States. Berkeley has numerous planning documents demonstrating community consensus on what this envelope is. 

Opportunity: Developers and homeowners are looking for a fair, consistent process. The clear rules of a “by right” planning process will spur a blossoming of three- and four-story buildings replacing parking lots and one-story structures on Shattuck, San Pablo and University Avenues (allowing us to build our “fair share” of housing and more). Acrimonious neighborhood battles over partial second stories would be the exception, rather than the rule. ZAB Meetings might even end before midnight! 

Barriers: For reasons that are puzzling, our professional planning staff and a small cadre of activists and developers are at odds with our citizens on the level of density, setbacks and parking that our community finds acceptable.  

Alignment of Staff and Community Background: The management and staffing of the city Planning Department are troubled. During the three years I served on the ZAB, there were five different zoning officers. The planning director (the third to depart in the past five years) trumpeted criticism of our community and commissions as reasons for her departure. Her criticism merits consideration.  

I experienced considerable tension between “professional” planning and our community boards when I was on the ZAB. From where I sat, I found myself dismayed by staff reports that were frequently unprofessional in their writing and biases. I felt bad for applicants who had been drawn through a lengthy process, only to find that the staff’s suggested findings were at odds with previous board decisions, and showed a less sophisticated understanding of the Berkeley Zoning Code than that demonstrated by members of the board.  

Causes: Certainly, the “overworked” staff’s inconsistent interpretation of the code can be attributed to the poor fit between use permit findings and physical construction. A Planning Department culture that can be charitably characterized as indifferent to Berkeley’s citizens and commissioners, and a planning ideology that holds a different vision of our community than that held by what I believe are the majority of its citizens (that we are a low-slung, relatively dense community that values human scale and historical fabric) don’t help.  

Solution: Capable, knowledgeable citizens who are responsive to our community’s values staff our commissions. To improve alignment of the Planning Department with our community, the planning director and city manager should implement a formal process where commissioners are asked for written evaluation of the staff’s performance. An action plan should be jointly developed to improve alignment, and monthly meetings between commission chairs and the zoning officer/planning director should be held to monitor progress. Egregious staff reports should be identified and trigger write-ups that go into the staff planner’s personnel record for evaluation and action during annual performance reviews. 

Opportunity: There is a new planning director with considerable administrative expertise.  

Barriers: Institutional change is never easy… 

Kevin Powell has lived in Berkeley since 1980, and served on the Berkeley Zoning Adjustments Board (ZAB) from 1996 to 1999. He received his Master’s degree in Architecture from UC Berkeley.