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Berkeley Zoning Adjustments Board members authorized a key document last week paving the way for the tallest structure to rise in downtown Berkeley in decades, the nine-story Seagate Building slated to replace four 1920’s era low-rise structures on Center Street. 

On an initial vote, ZAB members voted to deny the mitigated negative declaration, a document enabling the builder to bypass a lengthy environmental impact report. But minutes later they reversed themselves and voted 6-2 to approve the document. 

Approval came despite opposition testimony from eight Berkeley residents—including two former and one current city commissioner—and no favorable testimony save from the developer. Another former and one current planning commissioner signed a written protest. 

The board delayed action on a second key document, the use permit authorizing construction, pending the resolution of questions concerning the size and placement of units for low- and lower-income tenants. 

While Seagate Properties, a 17-year-old Marin County real estate, investment and management firm with major holdings in at least four Western states, had first told city officials they were building an apartment building, plans have now shifted toward condominiums. 

Their controversial giant—10 feet higher and nearly three times the mass of the nearby Gaia Building—rises four floors above the five-story limit for new buildings in the downtown plan. 

Two additional floors were allowed because Seagate is providing some apartments at rates affordable to low and lower-income tenants. The second extra two floors were granted for leasing ground floor space to Berkeley Repertory Theater. 

Zelda Bronstein, a former planning commissioner who resigned earlier this year, was actively involved in the formulation of the downtown plan. She read a prepared statement, cosigned by former planning commissioner Rob Wrenn and current member Gene Poschman, declaring that even with the bonus additions, the downtown plan barred buildings higher than seven stories. 

“[S]taff seems to have misinterpreted the plan so as to allow affordable housing stories to be piled above the explicit seven-story limit. . .ZAB has no legal obligation to agree to extra stories,” Bronstein said.  

“I am appalled that the board would approve such a colossal building without an environmental impact report,” said Clifford Fred, another former planning commissioner. “This Seagate high-rise would be the death-knell for Berkeley’s remaining small town character.” 

He then rattled off a list of smaller structures where the city had required EIRs. 

Fred also declared the application “in stark violation of the downtown plan,” citing the 14-year-old document’s strict height limit of seven stories and 87 feet in the downtown core. 

Wendy Markel, president of the Berkeley Architectural Heritage Association (BAHA), also called for an environment impact report.  

Richard Schwartz, a contractor and Berkeley historian, said he was outraged at the lack of an EIR. “There are hundreds of Native American burial sites in the area,” he said. “CEQA (the California Environmental Quality Act) does not allow an exemption (from an EIR) when there is reasonable expectation of cultural resources.” 

Schwartz called the ZAB meeting “a cynical game in which the public good is sacrificed.” 

Landmarks Preservation commissioner, BAHA member and MoveOn.org Chief Operating Officer Carrie Olson said the Seagate Building violates the plan’s requirement that new development in the city center must take a back step to the historic nature of the area. 

“I’m shocked it’s not having an environmental impact report,” Olson told the board. “You guys should be requiring it. I went to 53 meetings of the General Plan Committee and came out of it thinking we couldn’t have a building like this.” 

Aiming a jab at the roof line housing the top floor penthouses, Olson said “that Quonset hut on top is going to scream out. This building is going to be glitzy, and once they’re condominiums, they’re going to be really junky. You can’t stop that.” 

Each of the critics drew applause. 

“Obviously, everybody has a different opinion,” said Seagate developer Darrell DeTienne. “The (city) Design Review Committee spent a lot of time and effort to make this thing work.” 

Following the testimony, ZAB members took the first of two votes on the project, rejecting the mitigated negative declaration on a 5-3 vote, with only Robert Allen, Deborah Matthews and Christina Tiedemann voting in favor. 

Allen, who said he wrote Berkeley’s first EIR in 1972, voted in favor because “the EIR has no effect on the final outcome except to raise housing costs and delay construction for at least a year.” 

“I think this will be the most elegant building to be put in the downtown for at least 40 years. We should be lucky to have this quality,” he added. 

“If we did an EIR it wouldn’t address most of the questions we’ve heard tonight,” Tiedemann added. “I don’t see a reason to reject this project.” 

Debbie Sanderson of the city’s planning staff said only “a handful of questions” involved EIR issues, while most of the others didn’t. 

At that point, member Laurie Capitelli announced he was ready to change his vote. Chair Andy Katz and Jesse Anthony followed suit. 

Sanderson and Senior Planner Greg Powell then dismissed concerns that the foundation might intrude on the undergrounded Strawberry Creek—which Powell said was far enough distant not to be a concern—and assured the board that construction would halt immediately if water or burials were discovered, pending appropriate remediation. 

Then, without the normal parliamentary niceties of introducing and passing a motion to reconsider, the board reversed its vote, leaving only David Blake and Carrie Sprague in opposition. 

Groans erupted from the audience, and several opponents walked out. 

“This building is so beautiful that it detracts from other buildings downtown,” said Tiedemann after the vote 

That left the issue of the cultural and inclusionary density bonuses for extra floors and the placement of low-income housing units within the complex. 

Civic Arts Commission Chair David Snippen huddled with DeTienne briefly, then announced that differences over the handling of a public gallery corridor had been resolved, eliminating one potential roadblock. 

During the discussion, Senior Planner Powell explained that under city rules, a developer who committed 5,000 square feet to arts and cultural space received one additional floor, with 10,000 square feet earning two floors—regardless of the overall size of the building. 

When ZAB discussed the Seagate Building two weeks ago, member Blake had challenged plans to restrict the 20 percent of units reserved for low-income tenants to the intermediate floors, while excluding them from the top two floors. 

At that time Land Use Planning Manager Mark Rhoades insisted that the upper two floors “are not subject to the inclusionary bonus.” 

When Blake asked, “So you’re going to make a class-based penthouse?” Rhoades answered, “No, the state law does that.” 

Sanderson told the board Thursday that inclusionary units had been kept off the upper floors because of a “request from the applicant. . .it is justified in this case, but we are not making a blanket recommendation for all projects.” 

It was that issue that kept the board from approving Seagate’s use permit. Instead, they continued a decision until their next meeting on Sept. 23.