The Public Eye—Discretionary Conditions: How Developers Win

By Patti Dacey
Wednesday February 25, 2009 - 08:04:00 PM

Your neighbor has built her heavily chlorinated hot tub eight feet closer to your kitchen window than allowed by her use permit? Food is being served by the religious organization down the block earlier and later than its permit specifies? A developer is hosting riots downtown instead of the cultural uses commanded by his permit? Good luck in getting the City of Berkeley to enforce any of these use permit conditions, which were put in place, after all, to protect the citizenry’s quality of life. It doesn’t have to. And it probably won’t. 

Turns out the city has complete and utter discretion as to whether or not it will enforce the conditions of a use permit. Any use permit. So all those carefully spelled-out conditions can be considered mere suggestions in terms of the duty of the city to enforce them, sort of like letters to Santa Claus. So argues our acting City Attorney Zach Cowan, and so ruled a local judge recently. 

Who knew? Not the City Council, it appears. Not the director of planning, with whom I discussed this rather startling discovery. Probably not the august members of the Zoning Adjustments Board. Certainly not all those citizens who have been mollified by conditions attached to use permits after lengthy negotiations that they believed protected them from the detriments of noise and traffic and pollution caused by development in their neighborhoods.  

I learned the discretionary nature of conditions on use permits only recently, and much to my chagrin, as it appears a perfect recipe for corruption. All the conditions that have been added to mitigate detriments to a neighborhood or to sweeten density can be totally ignored later on by the city and its favored developers. I was taught this rather startling fact when the acting city attorney vigorously and successfully argued it in my recent lawsuits against the city for not enforcing the Gaia Building use permit. We all know how well that is working out, with mayhem in our streets and gunplay on Shattuck Avenue. (Taxpayers, of course, pick up the tab for the huge amount of police time needed to control the out-of-control private parties that occur regularly at that venue.) 

You don’t have to take my word for this. You can take our acting city attorney’s words. 

“The City Has Discretion With Respect to Enforcement of the Zoning Ordinance” headlines part of Mr. Cowan’s legal argument. “It is equally well settled that the City has discretion as to how and when to use its limited prosecutorial resources,” he continues. Quoting our Zoning Ordinance, BMC Section 23B.64.010, “which provides for enforcement of the Zoning Ordinance against violations,” Mr. Cowan underlines the last sentence of part (E): “Nothing in this section is intended to create a mandatory duty under Government Code Section 815.6.” He continues: “Similarly, BMC Chapter 23B.60, which refers to revocation of Use Permits, is phrased in a permissive manner. . . Under these provisions both the initiation and determination of enforcement proceedings, by the way of revocation or nuisance, are discretionary.” (Emphasis added.) 

Forgive me for quoting the decidedly dull language of law here, but rumor has it that Mr. Cowan is denying that he believes that enforcement of the zoning ordinance is discretionary—in other words, that the City of Berkeley can skip enforcing the law if it wants to. The language is dull, but it’s pretty damned clear. And the judge agreed with him. 

So what does that mean in the present? I think the most interesting consequence is to the goings-on at ZAB. Before projects in residential neighborhoods can be granted a variance from Zoning Ordinance requirements, the Zoning Board must make a finding of non-detriment—that is to say, must vote that the project will do no harm to the neighborhood. That mandate can be found in our Zoning Code, the codification of a particular section of the Neighborhood Preservation Ordinance, a citizen’s initiative passed in the early ’70s.  

I have long questioned ZAB’s practice of reaching a non-detriment finding by attaching mitigating conditions to a use permit, as such a scheme is not spelled out in our Zoning Code. Now, moreover, I also fail to understand how a mandatory finding of non-detriment can be reached by attaching to a use permit entirely discretionary mitigating conditions that might never be enforced. It seems logically impossible to get to non-detriment by leaning on discretionary mitigations. A non-detriment finding should only be possible for a project that requires mitigating if enforcement is mandatory. We now know, courtesy of the acting city attorney, that it isn’t. ZAB, therefore, can legally come to a non-detriment finding only for projects that actually cause no detriment in and of themselves, without depending on attached conditions. 

My advice to citizens faced with detrimental and inappropriate development in their neighborhoods, festooned by wishful and discretionary conditions that might never be enforced: Lawyer up, friends. Take a writ. You might be lucky enough to argue your case in front of the very judge who agreed with Mr. Cowan’s reasoning. With that kind of luck, you just might win your case.