Posted Thurs., Feb. 7—Neighbors say they are relieved: there won’t be a 5,000-square-foot restaurant and bar replacing the old Wright’s Garage at the corner of Ashby and College avenues.
The Elmwood Neighborhood Association (ENA) agreed to settle their lawsuit against the city, in which they alleged that the permits granted to developer John Gordon for the project violated the California Environmental Quality Act, and that it would bring excessive noise and traffic to the small commercial area. It was settled out of court, with Gordon’s agreement and the City Council’s unanimous approval, in a closed-door session on Monday.
“Settlements are always a little bit win, win and a little bit lose, lose.”
said Harry Pollack, an attorney and member of the Berkeley Planning Commission who acted as spokesperson for Gordon. Nonetheless, Pollack added, “It’s a good settlement.”
The lawsuit was causing delays in getting the project leased, he said. “Holding up the project is not good for the neighborhood,” he said. The settlement did not concede that any CEQA violation had taken place, however.
Speaking for the ENA, Judith Epstein underscored that the neighborhood is not anti-development. “We wanted to get rid of the most inappropriate parts of the project,” she told the Planet, stating further in an e-mail: “The 5,000-square-foot restaurant, bar, lounge, and banquet facility with extended hours would have been disastrous for our community.”
In March 2007, the city’s zoning board approved the project. The ENA appealed the ruling, which was heard by the City Council in June. The council mustered only four votes, with five needed to support ENA’s request for a public hearing, a critical step before the council may overturn a zoning board decision. (Voting in favor of holding a public hearing at the time were Councilmembers Linda Maio, Kriss Worthington, Dona Spring, and Max Anderson.)
After losing the appeal, ENA attorney Amber Vierling filed the lawsuit on behalf of the neighborhood association.
Based on the California Environmental Quality Act, the complaint names the city as defendant and Gordon as an interested party, and says that because the restaurant-bar would bring traffic and noise to the neighborhood, the developer was required to do an Environmental Impact Report.
The lawsuit also cited Berkeley’s municipal code, saying that the proposed project violates the purpose of the Elmwood commercial district’s quota system, which is “’To maintain a scale and balance of retail goods and services in the district to compatibly serve the everyday needs of surrounding neighborhoods by: Providing locations for retail goods and service establishments to serve surrounding neighborhoods; preventing development which exceeds the amount and intensity of use that is compatible with adjacent residential neighborhoods; [and] limiting the space occupied by businesses that generate high traffic and/or parking demands….’”
Councilmember Gordon Wozniak, who was advised by the city attorney’ s office to recuse himself from council discussions and from the vote on the project because he had publicly supported the project, told the Planet he thinks it is a “reasonable” settlement.
“John can go ahead and develop the rest of the project,” he said.
The settlement agreement specifies that Gordon agrees to relinquish four permits:
• a use permit to exceed the district’s full-service restaurant quota
• a use permit for extended hours of restaurant operation;
• a use permit for a sidewalk café;
• a use permit to allow alcohol sales and service within a full-service restaurant.
If Gordon wishes to include a restaurant in the development, he will need to go back to the zoning board and begin the process anew.
The $40,000 in the plaintiff’s attorney’s fees and $1,670 in costs will be paid jointly by the city and the developer, Pollack said.
To date, no leases have been signed for space in the project due to the uncertainty that the lawsuit created, Pollack said, noting that up to seven commercial tenants can locate in the development.
Pollack said Gordon expects leases to be signed within the next two-to-three months. “The project moves on,” Pollack said.