Features

Council Debates Land Use, Affordable Housing By MATTHEW ARTZ

Friday July 22, 2005

Calling some Berkeley staff recommendations “chicken poop,” Councilmember Dona Spring escalated the war of words over city land use and affordable housing at Tuesday’s City Council meeting. 

Spring and Councilmember Kriss Worthington fumed over the city’s interpretation of state housing law that they charge incorrectly gives developers higher profits without making them offer truly affordable housing. 

At one point, when Mayor Tom Bates asked the city attorney if Berkeley was in violation of state law, Spring chimed in, “You’re asking the wrong person.” 

Bates later told Spring to be careful about her language. 

“You make all these characterizations about things being illegal and secret,” he said. 

“I have a right to my opinion,” Spring said. 

Councilmember Betty Olds predicted mass resignations in the Planning Department following Spring’s outburst and asked Spring to mute her concerns in public. 

“If you have gripes with the staff, for heaven’s sake, air them in private,” she said. “It shouldn’t be put out for all the world.” 

When land use wasn’t on the table Tuesday, the council found some common ground. They voted unanimously to spend up to $300,000 over the next three months to reduce fire company closures and keep the Berkeley hills fire station open during fire season. The money will come from funds set aside for street repairs. 

A proposal to give the city manager authority to approve contracts of up to $200,000 without council approval passed 7-2. Spring and Worthington, voted no, preferring to keep the limit at $50,000. 

No vote was taken on proposed amendments to the Landmarks Preservation Ordinance. The issue will return to the council in September. 

 

Density bonus at University Avenue project  

For several years there has been a brewing firestorm over Berkeley’s interpretation of the state density bonus law, which requires cities to give additional building space to developers who provide affordable housing units. 

Before the council Tuesday was the “Tune-Up Masters” project at 1698 University Ave., which has become the poster child for critics of the city policy.  

In January the council sent the five-story, 25-unit condominium project back to the Zoning Adjustments Board because city staff had erred in calculating the bonus space. 

The ZAB had granted the developer 25 percent more space for including condominium units to be sold at a price affordable to people making at or below 120 percent of the average local median income.  

But it turns out that for condominiums, the state allows a 15 percent bonus, equal to three additional units. A 25 percent bonus (five additional units) would only be permitted if the four affordable condos were offered at 80 percent of AMI.  

Rather than drop the price of the affordable units or reduce the number of bonus units, the developer invoked a separate section of the state law requiring Berkeley to grant additional concessions to offset lost revenue from including affordable units. 

The city determined the developer was entitled to an additional 1.6 units, bringing the number of bonus units from three to 4.6. To win the full fifth extra unit, the developer agreed to reduce the cost of one of the affordable units from 120 percent of AMI ($270,000) to 90 percent of AMI ($177,000).  

The ZAB approved the revised project in April. 

Critics appealed the ruling to the council charging that planning staff had incorrectly applied the state law and given the developer too many concessions. They also warned that the recommendation threatened to set a new precedent for developers to price affordable units at 120 of AMI rather than 80 percent. 

ZAB Chairman Andy Katz told council that a ZAB subcommittee has since begun reviewing the law, and if the ZAB had to vote over again, “we may have had a different result.” 

Seizing on the previous staff error, Councilmember Kriss Worthington called for the council to set a public hearing on the development. “I’m very nervous about setting precedent when the city government might be breaking the law,” he said. 

In most cities, the density bonus law encourages affordable housing. However, in Berkeley, which already requires developers to make one-fifth of new units affordable to low or middle-income residents, the law has often decreased the proportion of affordable units in new buildings since the bonus space goes to building more market-rate units. 

“For 25 percent more space, not to get affordable units for 80 percent of AMI is a travesty,” said Spring. “It will be a blot on everyone’s record who votes for this.” 

Councilmember Gordon Wozniak countered that the project would help middle income home-buyers afford to live in Berkeley and didn’t want to see it delayed any further. “I have problems holding this project up while we resolve the density bonus issue. That could take a year or two,” he said. 

The council voted 5-3 (Spring, Worthington, Anderson, no) to uphold the ZAB’s ruling. 

With Tune-Up Masters behind them, the council stayed focused on the density bonus. By a unanimous vote councilmembers formed a nine-member joint subcommittee of the ZAB, Planning Commission and Housing Advisory Commission to review the city’s application of the law.  

The council also struck language from the proposal that would have prevented the ZAB from implementing new interpretations of the law until the council reviewed the complete subcommittee recommendation, a process that could take over a year. 

During the debate, Worthington demanded a copy of city rules, never approved by the council, that are used to set land use policies. 

“We’re being told it’s impossible to change these rules despite the fact that they are applied inappropriately and illegally,” said Worthington. 

Planning Director Dan Marks replied, “No one on staff has indicated that anything on the density bonus is illegal.” 

“It’s in the public record already that staff at a minimum gave inaccurate information to the zoning board in the case we heard this evening,” Worthington said. 

City Manager Phil Kamlarz urged councilmembers to be patient while the subcommittee meets. “We want to come back to council with some straight answers and that will take some time,” he said. 

Spring then defended the right of the ZAB and the council to ignore staff recommendations and apply its own density bonus interpretation to future projects. 

“We don’t have to vote for all this chicken poop,” she said. 

 

Landmarks Preservation Ordinance Revisions 

For the first time Tuesday Councilmembers briefly staked out positions on how to deal with proposed changes to the city’s Landmarks Preservation Ordinance. With conflicting recommendations from the Planning Commission and Landmarks Preservation Commission, Mayor Bates is expected to try to forge a compromise by the fall. 

Councilmembers Max Anderson and Darryl Moore both called for the council to establish a working group to iron out differences. Wozniak urged the city to find money for a survey to determine which city buildings should be protected before a property is proposed for a new development. 

Councilmember Laurie Capitelli said the LPO had “become a tool” for opponents of new developments to control the development process. He also questioned the contention of Landmarks Preservation Commission members that the ordinance could be made to confirm with state law simply by changing a few words. 

Spring countered that there was little evidence the landmarking laws had done much to slow down or stop development in the city.