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Council Approves Sale of Air Rights, Sets New Rules

By Judith Scherr
Friday October 12, 2007

While the city’s appraiser said the air rights over a rebuilt City Center Garage is worth $850,000, a developer planning a building adjacent to the garage valued the rights the developer would buy at $22,250.  

On Tuesday, the City Council voted 8-1 to guarantee that there would be no building within a strip 20 feet by 89 feet—and above 67 feet—adjacent to a rebuilt City Center Garage. They called the decision a “compromise,” charging developers, SNK Captec Arpeggio, LLC, $200,000. 

Councilmembers Dona Spring and Kriss Worthington lost in a preliminary vote to send the question to the Downtown Area Planning Committee. Worthing-ton voted with the majority in  

a second vote to approve  

the $200,000 price tag; Spring  

dissented. 

In other city business, the council voted unanimously to accept a proposal to expand pubic participation in meetings, approved recommendations from the city auditor to tighten oversight in the Fire Department over controlled substances used by paramedics, supported the Iraq Moratorium’s monthly demonstrations against the Iraq War, and more. The acting city manager removed approval of the firefighter’s contract from the agenda. 

 

Air Rights 

What the council voted to approve on Tuesday is the sale of air rights over an eventually rebuilt city-owned Center Street Garage to developers of a building at 2025 Center St. The developers would purchase the air rights to a strip 20 feet by 89 feet above a garage rebuilt to 67 feet. This permits SNK to place windows in its adjacent building above 67 feet.  

The developer’s appraiser said the easement was worth only $22,250, in contrast to the city’s much higher appraisal of $850,000. The city’s appraisal was based on lost opportunity for the city to build on the space next to the easement and the added costs the city would incur to design and build in the remaining space. 

“After negotiations,” the developer offered the city $200,000, says a report by City Manager Phil Kamlarz on the question. “These offers represent a compromise between SNK’s appraisal and Yovino-Young’s [the city’s appraiser]...” Kamlarz wrote. The city manager is on vacation and did not attend Tuesday’s meeting. 

Worthington questioned the nature of the negotiations. “It seems like a shadow government is making these presentations to developers,” Worthington said at the council meeting, asking what kind of back-and-forth negotiations had gone on between developers and the city.  

“How did we get to this place?” Worthington asked. 

In an interview with the Planet Wednesday, Spring commented: “Tom [Mayor Tom Bates] gets so much done behind the scenes.” 

According to the Kamlarz report, the city’s appraiser said that despite the fact that the proposed setback easement covers only 5 percent of the air rights, “the actual effect of the easement is clearly equivalent to a limitation on any practical use of the air space over the [67 foot] elevation for the entire garage structure.”  

The developer’s appraiser, however, said, according to the Kamlarz report, that the city can still develop 95 percent of the airspace “to its highest and best use,” and that space could be used for “amenities, such as open space.”  

Deputy City Manager Lisa Caronna, sitting in at the meeting for the vacationing Kamlarz, supported the $200,000 price tag. “The city has the right to build as high as it wants to go,” she said, referring to the 95 percent of space not covered by the air rights that would be sold. 

At the council meeting, Councilmember Betty Olds said she would have wanted to read the appraisers’ reports directly, but voted for the $200,000 “compromise.”  

Asking the council not to rush, Spring said: “It’s way too premature to lock in a parking garage at 67 feet.” She urged her colleagues to hold off on the vote and send the question to DAPAC, the Downtown Area Planning Advisory Committee, “before deciding on a million dollar giveaway to a developer.” 

Councilmember Laurie Capitelli argued in favor of the resolution: “It’s not a view easement,” he said. “The city reserves the right to build to an unlimited height if it stays 20 feet from Arpeggio.” 

 

Public comment expands 

Often known as the free speech capital of the world, Berkeley voted to catch up to many other cities—and state law—on Tuesday, unanimously passing a council resolution expanding the ability of the public to address elected representatives at City Council meetings. 

The wording is to be finalized by city staff and brought back to the council at a later date for approval. 

The resolution incorporates the new rules for public comment within the council rules.  

The subject of a number of council discussions over the last year has been the extent to which the public is permitted to address the City Council. Last year SuperBOLD (Berkeleyans Organized for Library Defense) threatened to sue the city over limiting public comment to 10 speakers chosen by lottery, which their attorneys said violated California’s open meeting laws. 

Disagreement among councilmembers had been focused on when people who wished to speak about items not on the agenda would have a chance to address the council. Worthington had wanted all speakers in this category to speak early in the meeting. The mayor had wanted these speakers to wait to speak until the end of the meeting. 

The compromise position adopted was allowing five speakers chosen by lottery early in the evening and the others at the end of the agenda. 

On the question of public comment on appeals to the council from the planning, landmarks and zoning commissions. Worthington and Spring wanted all persons who wished to do so to be allowed to speak.  

The question addressed a mandatory preliminary council decision on whether these appeals should get a public hearing, be sent back to the commission they came from or be approved. 

Bates argued that having the public talk extensively at this point is “a public hearing before a public hearing.” 

Councilmember Laurie Capitelli agreed. “There is a substantial difference between discussing whether to have a public hearing and the merits of the appeal,” he said. 

Worthington said his reading of the state law required allowing all to speak on appeals who wanted to. A resolution to that effect was supported, however, only by Worthington and Spring. 

Another question raised was to what bodies the new rules would apply. Worthington’s proposal would have applied to all city boards and commissions; the resolution that passed makes the rules apply only to council meetings. Gene Bernardi of SuperBOLD—whose organization originally had targeted inadequate public comment at the Library Board of Trustees Meeting—called on the mayor to expand the rules, but the mayor declined to do so.  

None of the councilmembers took up the challenge offered by Dean Metzger, who, speaking to the Claremont-Elmwood Neighborhood Association, called on the council to “meet weekly and have shorter meetings.” 

At the Council’s Sept. 11 discussion of the public comment issue, Worthington had pointed out that public comment is made difficult by an inadequate council chamber, which is difficult for wheelchair-users to maneuver, too small to hold large crowds that periodically attend council meetings, and not seismically safe. Bates’ proposal asks the city manager to explore other venues.