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Berkeley Council Loosens Downtown Restaurant Rules

By J. Douglas Allen-Taylor
Wednesday February 25, 2009 - 07:58:00 PM

In what may prove to be a simple solution following a thoroughly confusing debate, the Berkeley City Council moved to solve what it had originally thought was its University Avenue fast-food moratorium problem by voting Tuesday night to allow “quick service” restaurants on University between Oxford Street and Martin Luther King Jr. Way, but to continue the prohibition of “carryout service” restaurants in that same area. 

Oh, and contrary to the widely held belief held by the council, city staff, and the public that the council was acting on a moratorium on University Avenue fast-food restaurants, between Oxford and MLK, the council had originally instituted in 1999, Berkeley Economic Development Manager Michael Caplan told councilmembers that the proposed changes were not targeted to fast food restaurants because “the zoning code doesn’t have a definition of fast food,” and Planning and Development Director Dan Marks said that in any event, the 1999 council action was never a moratorium. 

“It was not a moratorium,” Marks said. “We called it a moratorium, but we actually just changed the zoning code. If it had been a moratorium, it would have automatically expired long ago.” 

Still confused? 

While the council may not have been confused, it was sharply divided, voting 5-3-1 to approve Councilmember Jesse Arreguin’s substitute motion to allow new quick service on upper University Avenue and continue to disallow new carryout restaurants (councilmembers Arreguin, Linda Maio, Darryl Moore, Max Anderson, and Kriss Worthington yes, councilmembers Laurie Capitelli, Susan Wengraf, and Mayor Tom Bates no, Councilmember Gordon Wozniak abstaining).  

The recommendation to lift the quick service/carryout service prohibition came from the city’s Planning Commission. The Downtown Business Association, which had asked for the original prohibition in 1999, is now in favor of its lifting. 

Over Arreguin’s request to delay its decision until he could further study the issue, the Planning Commission decided last December to recommend the zoning changes on a 6-2 vote. Commissioners Roia Ferrazares, Larry Gurley, Jim Novosel, Harry Pollack, James Samuels, and Dorothy Walker voted yes, commissioners Patti Dacey and Gene Poschman voted no. 

The council never voted on Capitelli’s motion to support the staff and Planning Commission recommendation for full lifting of the prohibition, nor on Anderson’s friendly amendment—not accepted by Capitelli—that the prohibition be automatically reinstated in two years if the council did not renew it. 

Capitelli, who called the later lengthy discussion of definitions of various categories of restaurants in the Berkeley zoning code “bizarre,” said that he felt there were enough protections in ordinances to keep unwanted restaurants out, including the requirement of obtaining an administrative use permit (AUP), which requires findings that can be appealed to the City Council. Staff members later pointed out that in both the existing zoning ordinance and the proposed changes, a national fast food chain could bypass the AUP process by simply buying out an existing restaurant in the downtown area. 

If that doesn’t clear up the confusion, here’s the background. What was thought—until Tuesday night—to be a City of Berkeley ban on new fast food restaurants and carryout food stores on University Avenue between Oxford and MLK was first adopted by the council in 1999 at the request of the Downtown Berkeley Association (DBA) and with the support of then-Councilmember Dona Spring, who represented the downtown area on the council, and Councilmember Linda Maio. 

In April 1999, then-Berkeley City Manager James Keene referred to the proposed council action as a “downtown fast food moratorium,” and as late as last September, current Economic Development Manager Caplan informed the Planning Commission in a memo that “in 1999 the City Council adopted a ‘temporary’ moratorium on new fast-food establishments in the downtown area.” By December, however, in another memo to the Planning Commission, Caplan was calling the 1999 action a “prohibition on Carryout Food Stores and Quick Service Restaurants.” 

That’s in part because Berkeley’s zoning ordinance only has three categories for food service establishments, none of them “fast food”: full-service restaurant (with waiters who take orders at tables and bring the food back to the tables), quick service restaurants (food is ordered and immediately paid for at the counter and then either picked up by the customer after preparation or else brought to the customer at a table by restaurant staff), and carryout food store (provides no seating for eating and prepares food for the customers to be taken out in packages or containers). 

During the debate, councilmembers took pains to distinguish quick service restaurants—which they said are often locally owned and operated and are desirable additions—from fast food restaurants, which many equate with national restaurant chains. 

“I can’t understand why quick service should be banned in any part of Berkeley,” Wozniak told fellow councilmembers, adding that instead, “We should look into passing a national anti-chain ordinance. I would support that.” 

But Mayor Tom Bates said he didn’t see the problem with national chains on University. 

“I don’t know what chains we’re worried about that will come in an destroy Berkeley,” the mayor said, noting that national chain restaurants Dominos Pizza, Round Table Pizza, and MacDonald’s are all in the downtown University Avenue-area with no apparent problems. 

And Councilmember Wengraf, who seconded Capitelli’s motion to lift the ban, added, “I’m not afraid that University Avenue is going to be inundated with bad fast food restaurants. I think it’s time to lift [the prohibition].”  

Economic Development Manager Caplan noted during Tuesday’s meeting that “there has been an exodus of fast food from downtown since the moratorium was instituted,” including Kentucky Fried Chicken, Burger King, and Taco Bell (he was still calling it a “moratorium” at that point in the discussion), with some councilmembers indicating that discerning Berkeley eating tastes would continue keep fast food chains out of the downtown area. 

Councilmember Linda Maio said that it was actually the trash dropped by customers on the street after leaving carryout restaurants that was one of the major reasons the 1999 prohibition was put in place, saying, “I am concerned about the trash. I don’t want to encourage carryout foods.” 

Arreguin, who represents the Oxford-to-MLK University Avenue area, said that while he was “not opposed to lifting the moratorium,” he felt that more study needed to be done to fine-tune the proposal and weed out possible bad effects, including the fact that “allowing fast foods may negatively affect existing restaurants. We must address these underlying issues first.” 

But after Maio indicated that it was carryouts that were the main problem, Arreguin put in his motion, Maio seconding, to split the issue and allow new quick service while continuing to ban carryouts in the downtown University Avenue area.