Public Comment

Commentary: An Unenforceable Contract

By Judith Epstein
Tuesday June 26, 2007

Parking in the Elmwood hangs by a tenuous thread. The proposed retail complex to be housed at the old Wright’s Garage near Ashby and College will have no on-site parking, and the only requirement owner John Gordon must meet is to try to provide parking. He doesn’t even have to try very hard!  

In order to be given a building permit for his restaurant, bar, and lounge, (not a use permit as Mayor Bates has stated), Mr. Gordon only has to satisfy the following vacuous condition imposed by ZAB: “The property owner shall cooperate to the extent practical with the Elmwood Merchants Association and City of Berkeley Transportation Planning Department, on opportunities and strategies to improve parking supply in the district.” These strategies include employing valet parking in the Elmwood public lot throughout the day and at the merchant lot at night, arranging for paid parking at the Huntmont Garage near Alta Bates on evenings and weekends, acquiring the property to the building’s north, extending Residential Permit Parking hours in zones B and D to 9 p.m. and extending the hours of operation of parking meters on College Avenue. Before receiving his building permit, Mr. Gordon only has to demonstrate to ZAB that he has gained access to additional parking using these or other options, or failing that, he may present a study showing that parking needs generated by the restaurant could be “accommodated within the neighborhood.”  

It should be noted that Mr. Gordon is not required to provide adequate parking for his 200-seat restaurant, only “additional parking,” and he may choose to provide a parking study, in lieu of providing any parking at all. This study need not be of any minimal professional quality, nor is it required to satisfy any specific standards. A poorly conducted study with the right conclusions would suffice. Furthermore, ZAB would not address any of the other heartfelt concerns raised by neighbors and merchants in the appeal process, because those concerns would be permanently dismissed when the City Council finishes with Wright’s Garage. 

Only the City Council can address these issues and in doing so, deny the use permit already granted to Mr. Gordon by ZAB; that opportunity will vanish if the Council fails to act in either its June 26 or July 10 meeting. In the past few weeks, the council has received well over 100 letters in opposition to this project, in addition to hearing multiple testimonies about potential impacts at least as important as parking. How could Mayor Bates, Councilmember Moore, and Councilmember Olds have failed to acknowledge the most important issues raised by neighbors and merchants? These issues include: 

• Increased traffic and traffic congestion, danger to pedestrians and neighbors, drunk driving, and additional exhaust pollution, as a result of the patrons of the restaurant, lounge, exercise studio, and other unspecified businesses. 

• Public drunkenness and its associated behavior, including noise, vandalism, crimes against women, and drunk driving from allowing a late-night bar and lounge to be established in a family neighborhood. 

• The harm to small businesses, including the Elmwood Theater, as a restaurant and bar the size of Spenger’s usurps customer parking and drives up its costs. 

• The irregularities of granting a developer a use permit for unspecified businesses, whose impact on the neighborhood and local businesses cannot be evaluated in any realistic way. 

It is difficult to understand how Mayor Bates with his ambitions for re-election and Councilmember Moore with his ambitions to run for the Assembly could be so casually dismissive of the well-being of the many people who would be impacted by inebriated lounge patrons and the traffic generated by the customers and employees (probably well over 300 in all), who could occupy this complex at a single time. Indeed, Mayor Bates expressed far more interest in trying to remove this item from future Council agendas than addressing the issues neighbors and merchants raised. It is incomprehensible that a project that violates multiple provisions of the Elmwood Zoning Ordinance could be so strongly embraced by public officials who have sworn to uphold the law. 

On Tuesday, June 26, the seven members of the City Council, who have not recused themselves from voting on this agenda item, will again attempt to find five members who can agree on how to proceed. Because so little is known about the businesses that might operate in this complex and so many negative impacts have been left unmitigated by ZAB, the only logical and legal choice is to remand this project back to ZAB. It should never have been approved in the first place. 


Judith Epstein writes on behalf of the Elmwood Neighborhood Association.