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Finally, the Berkeley Planning Commission has elected a new chair, though the last one still fumed that Wednesday’s election wasn’t needed. 

It was the panel’s third election in two months, and the man who provoked it all—David Stoloff—cast the sole dissenting vote against revoking the last election. The end result was the same, with the election of James Samuels and Larry Gurley as chair and vice-chair. 

The outcome leaves the developer-friendly five-member majority in charge, as demonstrated by the next vote, a measure that eases changes of use for Telegraph Avenue’s commercial properties and may spell the beginning of the end for Berkeley’s business quotas.  

The vote followed the five-four split that has pitted Samuels, Gurley, Susan Wengraf, Harry Pollack and Stoloff against Helen Burke, Roia Ferrazares, Gene Poschman and Mike Sheen. 

If Stoloff has his way, the action will be the first step in eliminating any quotas on the types of enterprises allowed in the city’s three business improvement districts. 

Dave Fogarty of the city’s Office of Economic Development, told commissioners that the Telegraph Avenue district was created in 1985 after state legislators voided the city’s commercial rent and eviction control ordinances, with the Telegraph Avenue quota system created effective January 1, 1988. 

While the first ordinance—a city-wide measure passed in 1978 which expired in 1980—was prompted by rent hikes that threatened the beloved Ozzie’s soda fountain in the Elmwood, the Telegraph Avenue measure was prompted by controversy over the pending demise of Espresso Roma, a very popular coffee house run by two students. 

Fogarty said the owners had done such a good job running the business—“they were making money hand over fist”—that the building owners had decided to force them out at the end of their lease and take over the business. 

While creation of the Telegraph Avenue ordinance in 1985 temporarily saved the business with its provision barring evictions for subsequent occupancy by a building’s owner, Fogarty said the landlord went to the Legislature and succeeded in winning passage of an ordinance striking down the law effective Jan. 1, 1988. 

The ban also ended rent control in  

the Elmwood district, which had  

been implemented three years before the Telegraph Avenue ordinance was passed. 

Quota history 

The Berkeley City Council responded by passing amendments creating a quota system for Telegraph Avenue businesses, the system that the commission modified Wednesday. 

Similar systems exist for the Elmwood, North Shattuck Avenue and Solano Avenue, and merchants on Euclid Street north of the UC Berkeley campus are asking for a similar quota program. 

The Telegraph Commercial District runs along the avenue from Parker Street to Bancroft Way, and along Durant Avenue to the Bowditch Street intersection and along Bancroft from just east of Dana Street to the Bowditch intersection. 

The existing code sets limits on the number of barber and beauty shops (10) and three types of eateries: carry-out service (19), quick serve (30) and full service (29), and limits the sizes of quick-serve restaurants to 1,500 square feet. While there is no quota number for gift and novelty shops, they are limited to 3,000 square feet. 

Some business types are over their quota numbers, either because they were grandfathered in when the law was created or because the Zoning Adjustments Board allowed use permits with variances. 

The two quota-busters are barber/ beauty shops, which total 11, and quick-serve restaurants, now numbering 43. 

Two quick-serve establishments have been added to Telegraph Avenue recently, a Peet’s coffee shop at the southeast corner of Dwight Way and a Smart Alec’s at the northwest corner of Durant Avenue. 

The existing law required the Zoning Adjustments Board find that variances were merited by unique physical circumstances of the property, Fogarty said, which could lead to somewhat laborious justifications. 

To award the variance to Peet’s, which wanted seating that would have been otherwise prohibited, the board found their way to granting a variance by declaring the use justified because it helped preserve a landmark building, and in the case of Smart Alec’s, the board held that the eatery would discourage drug dealers and other reprobates who congregated under the building’s overhang. 

Backed by Fogarty, Planning Manager Mark Rhoades and Telegraph Avenue Association Executive Director Roland Peterson, the revisions would dramatically ease the requirements for exceeding the numerical limits by requiring only that ZAB determine that the new use would “result in positive enhancement” to the district without causing parking and transportation problems that couldn’t be mitigated. 

Fast dollars 

Quick-serve restaurants are the most financially profitable uses on Telegraph for the city, said Fogarty, pointing to  

a staff report from his boss, Michael Caplan, showing that they generated annual taxable sales of $5,473  

per square foot, compared to $233 for  

full-service restaurants and $255  

for retailers. 

While total sales tax revenues on the Avenue have basically remained flat since 1990, once inflation is taken into account, the total has fallen in terms of 1990 dollars from $1.4 million a year to less than $1 million. 

In the two years between the third quarters of 2004 and 2006, the only significant rise in tax revenues has been from restaurants, followed by a lower increase from clothing stores. Retail in general has fallen.  

But Gene Poschman said he worried that making use changes easier would drive other retailers off the avenue. 

“Look at the five retailers. The question is, which one do we want to lose to a restaurant?” he said. “We should also look at the language being proposed” for the findings, he said, and suggested something might be adopted closer to what is required for variances in the Elmwood, where neighborhood residents’ and merchants’ support and marketing surveys are needed as justification, or other information that showed nearby residents would patronize the new businesses. 

“I don’t believe quotas serve any purpose,” said Stoloff, who said that the lack of any public speakers in opposition showed no support for continuing the ordinance in its present form.  

It was only after passing the proposal as written following the now typical 5-4 vote that Pollack and Wengraf indicated they might be willing to reconsider the findings. 

As a compromise, the board voted unanimously to hold more discussion on the findings at their only meeting in April—the board having voted to cancel their scheduled meeting on April 11 because many members will be out of town. 

Barring any more changes, the amendments will head back to the City Council, the source of impetus for the change. 

The one point of agreement was that the city could do little to halt chains that want to move in, especially when they fit an approved use. 

Rhoades cited the case of the application for something called “the Red Cafe, a very Berkeley-sounding name.” Soon after the approval, calls began coming in to report that deliveries to the store at 1600 Shattuck Ave. bore the dreaded Starbuck’s logo, and sure enough, it was a green logo, and not a red one, that ended up on the coffee shop. 

Wengraf, for one, doesn’t mind. “I find it to be a real asset to the community,” she said.  

Last election? 

Wednesday also witnessed what should be the commission’s third and final election for the year, though Stoloff remained adamant that none was needed. 

Stoloff, who had been elected chair last month in another 5-4 vote that denied then-Chair Helen Burke the customary second of two one-year terms usually handed to chairs, had resigned after the coup stirred bad feelings. 

Vice chair James Samuels had been elected to fill the post, and Gurley was elected vice chair, despite protests from Poschman and Mike Sheen that the meeting hadn’t been properly noticed. Though Planning Manager Mark Rhoades had sided with Stoloff, City Attorney Manuela Albuquerque later intervened, forcing another election Wednesday. 

Before the vote for what was a foregone conclusion, the commission first had to formally rescind the earlier vote. 

“Point of order,” declared Stoloff as Samuels called for a vote. “I don’t understand the action being suggested by the City Attorney and the reasons put forward.” He then recited from Robert’s Rules of Order, a document that doesn’t deal with the legal public notice requirements imposed on civic body elections by the California Open Meetings Act. 

“David, I think the City Attorney has ruled against your interpretation,” said Burke, who said the commission needed to vacate the earlier vote. 

“So I’m vacating my resignation, too?” he replied. 

“I really want to sympathize with David,” said Poschman, declaring that he found it odd to be agreeing with Albuquerque for once. 

Stoloff cast the only vote opposing the measure to rescind the earlier election, and following that vote, Samuels was again elected on a 6-0-3 vote, with Poschman, Sheen and Burke abstaining. 

Susan Wengraf nominated Gurley as vice chair, and called for the question before Roia Ferrazares could nominate Sheen. The vote went 5-4.