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Council Hears Project Appeal, In-Lieu Fees, New LPO

By Judith Scherr
Friday July 21, 2006

The Berkeley City Council dealt with three development issues Tuesday: a citizen appeal of housing-retail project at 1201 San Pablo Ave., a proposal to charge developers in-lieu fees rather than requiring inclusionary units and the second reading of the Landmarks Preservation Ordinance. 


Development appeal 

Some 20 neighbors of a proposed 30,000-square-foot residential-commercial development at San Pablo Avenue and Harrison Street came to the City Council Tuesday evening to appeal the project approval in April by the Zoning Adjustments Board. 

After hearing from neighbors and developers who spoke during the scheduled public comment period, the council decided to set a public hearing on the project for September.  

“The project is too tall to be adjacent to a residential neighborhood; it should be one story lower,” said nearby neighbor Joan Molesky-Poz of the proposed five-story building. 

In order to deny concessions requested by a developer for a project with an affordable component, state law requires the city to find that the concessions were not necessary to make the project financiallly feasible. In this case, the ZAB majority was in favor of the building, and thus did not need to make feasibility findings. The majority thought that the building as proposed was a better building than a larger building that included a density bonus component would be. 

Other neighbors pointed to the problem of mandating only a five-foot separation between the new development and the neighboring residences.  

But project architect Don Mill argued that an appeal needed to be held on the project before the council, and not on what the neighbors want the project to look like. “The appeal needs to be decided on its merits,” he argued. 

Speaking for the Zoning Adjustments Board Commission, Commissioner Dave Blake told the council there was no legal alternative. “It’s the law—we have no choice,” he said. 


Condo developers can pay fee, skip inclusionary units 

Allowing condominium developers to pay a fee rather than provide one inclusionary unit for every five units of housing for people whose income is at 80 percent of the area’s median (around $40,000-$60,000 annually for a family of three) was popular with the council, which approved the ordinance unanimously Tuesday. 

Councilmembers agreed this would be a boost for truly affordable housing, because the city would be able to use funds received from developers to leverage more low-income housing money and create more units to serve very low-income people. 

Controversy arose, however, when Mayor Tom Bates called for a review of the fee in several months, after first consulting with the Housing Advisory and the Planning commissions. Bates’ proposal would set lower fees for developers. 

“It is in the spirit of being fair,” Bates said. “The developer should be allowed to (recuperate) costs.” 

Councilmember Kriss Worthington, who said he preferred higher developer fees, moved to table Bates’ motion, but lost, with only Councilmembers Max Anderson and Dona Spring voting to support his motion. 

Voting for the motion to review developer fees were Bates and Councilmembers Linda Maio, Darryl Moore, Laurie Capitelli, Betty Olds and Gordon Wozniak. 


Second reading of the landmarks ordinance draws fire 

Normally, the second reading of an ordinance, a mandatory step in the creation of local laws, passes quietly on unanimous council votes, but in the case of the controversial revision of the Landmarks Preservation Ordinance, opponents turned out to oppose passage of the ordinance on the second reading. 

One question, brought to the council by former Landmarks Preservation Comissioner Patti Dacey, was that the date for implementation of the ordinance when it was passed last week at first reading. In response, the council rescinded last week’s ordinance and passed a new draft at first reading which had the Nov. 1 start date included.  

The second question Dacey raised during the public comment period was whether the new ordinance was consistent with the voter-passed 1982 Neighborhood Commercial Preservation Initiative, provisions of which she said may conflict with the new ordinance. 

Councilmember Kriss Worthington responded by asking staff to report back next week on whether the two laws conflict; he also asked staff to report on the degree to which the initiative has been implemented in ordinance form.