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Planning Commission Endorses Tighter Density-Bonus Controls

By Richard Brenneman
Friday April 11, 2008

By a 5-4 vote, Berkeley planning commissioners voted Tuesday night to endorse the recommendations of the Joint Density Bonus Subcommittee over a more developer-friendly staff report. 

Both documents will go to the council, which will chose what—if any—measures to enact prior to the June 3 election, when passage of Proposition 98 could impose potentially harsh penalties on new land regulations by local and state government. 

Commissioners acted to give the City Council a chance to enact a law that would give city planning staff and the Zoning Adjustments Board more control over the size and massing of large mixed-use housing projects, so that it could be in place in case the statewide ballot initiative passes. 

The measure would contain a built-in sunset clause, so the measure would expire if the ballot measure fails. If 98 passes, the commission and council could subsequently modify the law. Critics of Proposition 98 contend that it would effectively forbid any kind of downzoning, ending the ability of city, county and state government to limit such construction projects. 

In a similar action on virtually identical alternatives prior to the November 2006 election when Proposition 90, a similar statewide initiative, threatened local land use controls, the council backed the staff version, which was characterized by some commissioners who voted with Tuesday’s majority as being more favorable to developers. 

It was Planning Commissioner Susan Wengraf who swung the vote in favor of the proposals by the subcommittee she had chaired. Gene Poschman had made the motion, which was seconded by Patti Dacey and joined by Helen Burke and Roia Ferrazares. 

Poschman said that by recommending the subcommittee proposals to the council, the commissioners would be giving the city’s top elective body the most options for staving off the most adverse potential impacts of the ballot measure. 

Commission Chair James Samuels had sought unsuccessfully to divide the vote into two sections, the first on the question of sending both proposals to the council, and the second to recommend one or the other. 

One of those voting against Poschman’s recommendations was Erin Rhoades, who was filling in on the commission for Harry Pollack. She’s the spouse of former Land Use Planning Manager Mark Rhoades, the author of the original staff report in 2006. Rhoades was present in the audience during the meeting, along with his new business partner, developer Ali Kashani of Memar Properties. 

“Now maybe I can stop attending these meetings,” quipped Bob Allen, one of the two remaining Zoning Adjustments Board members who had sponsored the creation of the subcommittee, originally an adjunct of ZAB alone. A City Council directive later expanded the group to include members of the Housing Advisory and Planning commissions. 

Allen has said that he favors the subcommittee proposals because they will give the board some measure of control over the size and shape of new projects within the constraints of a state law that grants a 35 percent size increase for projects that meet affordable housing requirements. 

Whatever action the City Council takes is likely to have a sunset clause. 

Allen and fellow ZAB members had long voiced concerns that without a local law to implement the state’s density bonus law, the city had little control over the size and shape of major housing projects on the city’s main thoroughfares. 

The state law, which grants developers increased building size over and above local ordinances in exchange for creating affordable housing, has been cited as justification for projects that significantly top the city’s height and mass limits. 

Just how much control the city can exert remains an open question and a matter of contention between acting City Attorney Zach Cowan and critics like Gene Poschman, who have said the city’s legal interpretation doesn’t match those of other cities in the state, which have enacted tighter controls than Cowan contends are legal. 

Despite an effort to turn out support for the staff proposals which had been emailed by Erin Rhoades in her role as chair of the Livable Berkeley pro-development lobbying group, Tuesday night’s audience was overwhelmingly in favor of the tighter subcommittee controls. 

Also voting no were Samuels, Larry Gurley and retired San Francisco city planning official George Williams, who was filling in for David Stoloff, the only subcommittee member who had opposed the group’s recommendations. 

Of 22 speakers, only four endorsed the staff version, while 17 backed the subcommittee’s recommendations. 

The remaining speaker, Jim Hill, was concerned only if the proposals would limit his ability to rebuild the building he owns at 48 Shattuck Square, should it be destroyed by an earthquake. He was assured by Samuels that he could do so, whatever action the council took, since his property is landmarked. 

Those who appeared in support of the staff position included Kashani, Livable Berkeley board member Alan Tobey, West Berkeley broker/developer Ruegg & Ellsworth’s infill project manager Brendan Heafey and West Berkeley resident Bill Walton. 

Subcommittee supporters included Allen, Housing Advisory Committee Chair Jesse Arreguin, Barbara Gilbert, Steve Wollmer of, ZAB member Sara Shumer, Julie Dickinson, Sharon Hudson, tree-sitter Zachary Running Wolf and Merilee Mitchell. 

Just what impacts Proposition 98 could have if passed by state voters remains unclear, given the measure’s vague language. Some critics charge it could effectively end the power of governments to regulate land use by allowing property owners to sue for compensation for any government action that could be construed to reduce the maximum potential value of their property.  

The measure’s anti-rent-control provisions, designed to end the last vestiges of the statutes landlords love to hate, have drawn strong support from apartment owner lobbies. Proposition 99, an alternative choice on the same ballot, is credited by supporters with solving perceived problems with the state’s power of eminent domain stemming from a recent U.S. Supreme Court decision without adding any other undesirable provisions. 

Meanwhile, Berkeley planning commissioners will continue to grapple with the density issue in upcoming meetings, on the premise that should Proposition 98 fail at the polls, they’ll still be charged with coming up with new regulations for density in the city.  

In Los Angeles, a lawsuit filed last week is challenging that city’s new density bonus, and more suits may be in the offing, according to a Tuesday story in the Los Angeles Daily News. 

Unlike many other cities in California, Berkeley already has an inclusionary housing law that requires developers of projects with five or more dwelling units to set aside an allotment of apartments or condos at rents or sales prices affordable to those otherwise unable to rent or buy.