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Appeal Denied, Elmwood Project Opponents Vow To Keep Fighting

By Judith Scherr
Friday July 13, 2007

Elmwood neighbors and merchants lost their bid to overturn zoning board approval of a proposed retail development at College and Ashby avenues at the City Council Tuesday. Opponents say the proposal for stores, a gym and large restaurant-bar is too big for the small shopping district. 

Despite their loss at council, opponents promise to challenge the development elsewhere, possibly in the courts or on the streets—or both. 

In other council business, councilmembers held a public hearing on Iceland (see accompanying story), heard a report on setting standards and fees for alcohol outlets, modified the condominium conversion law (a workshop will be held in the fall), approved a contract with the YMCA to subsidize city employee memberships, raised fees to keep up with costs for sewers, planning, animal adoption, the marina and more. 


Wright’s Garage 

The council failed to schedule a public hearing on the appeal of zoning board approval of a retail project that would re-use the former Wright’s Garage at College and Ashby avenues. 

The proposed restaurant-bar that could become one of the city’s largest full-service restaurants has brought neighbors and merchants out to council meetings since June 12 in an attempt to convince the council to hold a formal public hearing on the project with the aim of eventually reversing zoning board approvals. 

Tuesday’s vote, consistent with previous council votes, was 4-2-1 in favor of holding the public hearing, with Councilmembers Linda Maio, Dona Spring, Max Anderson and Kriss Worthington voting in support of the hearing and Councilmember Darryl Moore abstaining. Five votes are required to hold the hearing; Councilmembers Gordon Wozniak and Laurie Capitelli both recused themselves from the vote. 

Similar to previous meetings, dozens of people, mostly from the Elmwood Neighborhood and Elmwood Merchants’ associations, lined up at the council mic to speak about the concerns they have with the proposed project, particularly focusing on the restaurant-bar, which they say would be too large for the small district where there is already too much traffic and inadequate parking.  

In contrast to previous meetings that drew few neighbors in support of the project, several nearby residents spoke in favor of the development. 

Fred Norton lives near the proposed project on Hillegass Avenue and said that he and his wife moved to the neighborhood especially so that they could walk to shopping and restaurants. 

“Nine out of 10 people on my street support the development as Mr. [John] Gordon proposed it,” he said. 

In a phone interview Thursday morning, Raymond Barglow of the Elmwood Neighborhood Association said that the neighbors are not giving up their fight to have the project scaled down.  

The neighborhood is considering three possible strategies, he said: one is an attempt to contest the restaurant’s application for a liquor license, another is holding a regular neighborhood picket of the site, and a third would be a lawsuit, which could be based on various elements included in the Zoning Adjustment Board (ZAB) approvals.  

The suit might contest the ZAB’s use of as a measure of neighborhood and merchant support, Barglow said. Kitchen Democracy is a hills-based web site to which individuals can submit their opinions about specific city-related matters.  

Councilmember Gordon Wozniak, who contributed $3,000 from his council fund for Kitchen Democracy, expressed his support for the development in a statement posted on the site, which Wozniak consistently uses to express his views. 

Councilmembers are expected to keep open minds on projects that might come before them; Wozniak had to recuse himself from participating in a vote on the project, because of his statement on Kitchen Democracy. 

The Zoning Adjustment Board’s use of Kitchen Democracy as a measure of public support is noted in the March 8 ZAB findings: “The zoning board decision states that the bar-restaurant is unique to the area, because it would include a ‘bar/lounge or gathering area.’ This type of restaurant facility is not currently provided in the district. Neighborhood and community support of a restaurant use is evidenced by the positive polling results posted on” 

In a recent letter to the mayor and council, 24-year Elmwood resident Richard B. Spohn, an attorney and former state director of consumer affairs, condemned ZAB’s use of the website, contending it is more like a blog or a chat room than a gauge of public opinion. 

The Elmwood zoning ordinance requires evidence of neighborhood and merchant support, Spohn said. 

“Who of the affected neighborhood merchants or residents know about this chat room?” he wrote of Kitchen Democracy. “When in the process of assessing resident and merchant support in the neighborhood did the ZAB declare that this chat room would be the dispositive gauge of support? Only after-the-fact, in the Findings and Recommendations, after the process at the ZAB had ended. This is an abuse of administrative and democratic processes. It is an abuse of administrative discretion. It entails a delegation of public responsibility that is impermissible and it fatally flaws the outcome.” 

Spohn goes on to say “This is a stunningly invalid foundation for the project, a serious misrepresentation and a disservice to the processes of governance of the city of Berkeley.” 


Alcohol Addressed 

Binge drinking around the campus, loitering and drug sales around liquor stores and sales to minors in restaurants were signaled out as some of the reasons the city needs operating standards for alcohol outlets—liquor stores, grocery stores and restaurants. 

At the beginning of the year, the City Council approved the concept of establishing standards and fees to pay for inspections of the outlets. At Tuesday’s meeting, Assistant City Attorney Zach Cowan came to the council to report on his work on the ordinance and ask for council input. The ordinance will be presented to council for a vote in the fall. 

Cowan said inspection costs would be about $150,000 and asked the council for feedback on how it would want the fee schedule to work—should all alcohol outlets, including restaurants, be assessed? Should there be penalties for those outlets that do not pass inspections? Should there be fines levied above inspection costs?  

Funds from fines could be used for education on alcohol-related issues and detox programs, councilmembers said. 

Among the standards suggested by Cowan were keeping windows clear so that one can see inside a store, quick removal of graffiti, adequate lighting, refusing to sell to customers who create a public nuisance and not allowing loitering inside stores where alcohol is sold. 

For problematic outlets, other conditions may be required, such as video surveillance and enrollment in a supplementary inspection program. 

Some councilmembers did not want restaurants to pay an inspection fee, but most thought it was fair, especially, as Councilmember Dona Spring said, because many restaurants regularly serve underage patrons; some wanted to be sure that fees would be equitable and that small businesses would not be overcharged; several stated their agreement with staff that reinspection fees should escalate for violators, while for the first violation they said the fee should be relatively small. 

Staff will meet with owners of alcohol outlets and community members and write an ordinance, which should be back before the council in the fall.