Density Bonus Debate Faces Proposition 98 June Threat

By Richard Brenneman
Friday March 14, 2008

The struggle to draft a Berkeley density bonus law ground forward Wednesday night, shadowed by the uncertain but foreboding impacts of a June ballot measure. 

While backers say the measure is a simple fix to stop government from using eminent domain for the benefit of private developers, critics said Proposition 98—a creation of the Howard Jarvis Taxpayers Association and heavily backed by developers and landlords—may be a time bomb targeting city and county zoning laws. 

The measure also phases out all remaining vestiges of rent control, and critics say it could also destroy many eviction controls on landlords. 

Questions raised by members of the Berkeley Planning Commission—and still unanswered by city staff—focus on the measure’s impact on a proposed density bonus law created by a joint subcommittee of members of the Planning and Housing Advisory commissions and the Zoning Adjustments Board. 

Acting City Attorney Zach Cowan has said many of the subcommittee’s proposals are illegal, though Planning Commissioner Gene Poschman offers laws in other cities that he says enact the very measures Cowan says aren’t permissible. 

But with Proposition 98 on the June ballot and backed by a fat treasure chest of contributions, the City Council is faced with the choice of getting something passed before the election or perhaps losing much of its control over new construction in the city. 

Planning Commissioners voted Wednesday night to stage an end run around the measure, using the same gambit adopted the last time Berkeley faced a statewide ballot measure that threatened to limit its power to regulation construction: preparing a new ordinance that would quickly expire if the statewide measure failed. 

In fact, the city could adopt the same measure the City Council voted to approve in September 2006, when Proposition 90 posed an even more explicit threat than its current and much more nebulous successor. 

Commissioners voted to call for a public hearing where they would look at exactly the same alternatives the City Council had before it in 2006. 

The panel would then be able to continue deliberations on a more polished measure, which would go to the City Council if Proposition 98 fails. 


Neighbor fears 

One thing that’s undisputed is the friction generated by current or pending large construction projects along University and San Pablo avenues, where neighbors have bitterly contested projects they say shadow formerly sunny yards, add to congestion on the streets and make curbside parking increasingly difficult. 

Without a law governing the mass of buildings along San Pablo, neighborhood resident (and Zoning Adjustment Board member) Sara Shumer told commissioners, five-story projects “would tower over the neighborhood.” 

That’s because, under current city interpretations of the state density bonus law, developers are entitled to break the current four-story limit in a neighborhood of one- and two-story homes and duplexes, Shumer said. 

Michael Larrick, a neighbor of a major project planned by developer Ali Kashani at the southeast corner of the intersection of San Pablo and Ashby avenues, urged adoption of the subcommittee recommendations and presented petitions in support signed by his neighbors. 

“Ali said, ‘I can build this bigger because of the density bonus,’” Larrick said, describing the project as “a monolith.” 

Under the subcommittee proposals, even with the bonus, developers could only build up to four stories along San Pablo, and Larrick’s sentiments were shared by signers of other petitions circulated near the San Pablo/University avenues intersection. 

And while city staff and Cowan have said the subcommittee proposals restrict the discretion of the Zoning Adjustments Board, ZAB member Bob Allen told the commission that the city staff’s alternative proposal “will do nothing to improve the no-man’s-land that ZAB works in when addressing density bonus projects.” 

Allen, who sat on the joint subcommittee, said the panel had repeatedly asked the city for permission to consult an outside attorney, but “was repeatedly rebuffed with ‘we don’t have the money.’” 

“My suggestion,” he told the commission, “is that if you don’t like the city attorney’s position, then talk to another attorney.” 

Another subcommittee member, HAC chair and ZAB member Jesse Arreguin, urged planning commissioners not to act before they had heard from all of the stakeholders impacted by the staff’s interpretation of the ordinance. 

“It is clear that ZAB has a lack of discretion with the current procedures,” he said, while the subcommittee proposals had been extensively debated and would give ZAB discretion while keeping construction within reasonable limits. 


Minority to majority 

Only one subcommittee member voted against the proposals, David Stoloff, the appointee of Mayor Tom Bates. Stoloff has disparaged the recommendations as an attempt to control development. 

While a minority of one on the joint panel, Stoloff is regularly one of the five-member planning commission majority (along with Chair James Samuels, Harry Pollack, Larry Gurley and Susan Wengraf) on controversial issues. 

Another commissioner, Susan Wengraf, was a member of the subcommittee majority, as was Gene Poschman. 

As city policy and legal practice now stand, developers are allowed concessions to enable them to recoup the costs of any aspects of their project deemed of public benefit by the staff. In the case of the so-called Trader Joe’s project at 1885 University Ave., the benefit justifying a controversial fifth story was the provision of parking spaces for the building’s commercial tenant, the non-union but popular grocer. 

Subcommittee members want the density bonus exceptions granted only for creation of affordable housing, which is the stated purpose of the state density bonus law. 

But the City Council rejected the subcommittee’s earlier recommendations in Sept. 2006, when it voted for a staff alternative in adopting regulations designed to head off Proposition 90. 

Under Proposition 90, a landowner could sue a government agency for any action it took which could conceivably depress of the value of a property. Zoning restrictions that could restrict land use were included. 

The measure passed by the council included a sunset provision if 90 failed, and 10 days after the measure went down to defeat in November, the temporary regulations expired, leaving the city without a density law.  

A good part of Wednesday night’s meeting was devoted to just how much open space a developer would be allowed to put on a building’s roof versus more publicly accessible space of the ground floor or podium. 

While the committee urged a 25 percent rooftop limit, staff has called for a 75 percent maximum, and Samuels passed out photos of the rooftops of two apartment buildings built by Patrick Kennedy, until recently the city’s largest private landlord. 

Another issue was the mandatory setback between the outer walls of new projects in commercial zones and adjacent residentially zoned neighborhoods. 


Uncertain, vague 

But the commission took no action Wednesday on these and other issues, though members did vote to allow staff to prepare for a public hearing on the temporary legislation city councilmembers could adopt to stave off the worst impacts of Proposition 98. 

Just what 98 means is as unclear as the language of the measure itself, and passage would almost certainly mean lawsuits and court decisions spelling out the measure’s precise applications. 

At its worst, according to the Western Center on Law and Poverty, the measure would also strike down inclusionary housing laws like Berkeley’s which already make developers include affordable housing in their projects. 

In the March issue of Northern News, the newsletter for Northern California members of the American Planning Association, San Jose Senior Planner Juan Borrelli writes that the ban on government’s use of eminent domain to condemn property for private use embodies a very broad definition of “private.” 

Among other things, the measure would ban eminent domain actions that took property for a public agency for natural resource consumption. That would bar eminent domain actions to take land for reservoirs, canals and pipeline rights of way, Borrelli writes. 

Debra Sanderson, Berkeley’s Land Use Planning Manager, said she had read several interpretations of the measure, with some predicting very extreme impacts and others very moderate ones. 

“It’s very broad and very vague,” said Wengraf. 

Meanwhile, planning commissioners are left struggling with a controversial measure, and poised to adopt regulations—temporary or permanent—certain to arouse yet more heat and the threat of more litigation. 

While Wednesday was the commission’s fifth meeting on the density bonus, it was the first session where members sat down to discuss the specifics, as they began working through a staff memorandum, contrasting the staff’s recommendations with those of the subcommittee. 

The question remains, given the June statewide vote, just how relevant their discussions will be.