Public Comment

Why We Appealed 1200 Ashby Ave. (Part 1)

By Steve Wollmer
Thursday April 30, 2009 - 07:07:00 PM

On Tuesday, May 5th, the City Council will consider two appeals of the Zoning Adjustments Board (ZAB) approval of the Ashby Arts project, appeals that go to the heart of the City’s procedures for projects along San Pablo Avenue. 

Ashby Arts is a 98-unit, five-story mixed-use eyesore that overwhelms the commercial corner at San Pablo and Ashby Avenues and looms over the modest adjoining neighborhood. Toni Mester addresses the nature of the development, its impact upon the neighborhood, and the manipulation of the permitting process by Berkeley's newest dynamic development duo, Ali Kashani (ex-Affordable Housing Associates) and Mark Rhoades (ex-Berkeley Zoning Officer). 

My appeal addresses the City’s application of State laws: the density bonus law that encourages the production of affordable housing and CEQA (California Environmental Quality Act) that ensures public disclosure and discussion of environmental impacts. 

The ZAB granted a use permit with a number of procedural errors, including failure to make a required variance finding for additional bulk (FAR, the ratio of building floor to lot area) and a vague wording of the project’s affordable housing condition.  

While the arguments in the appeal are specific to Ashby Arts, developers will be closely watching the decision to see if the Council delivers on their promise of “flexibility” in the planning process as a return for the development community’s continuing support for the Planning Department's budget and the campaign coffers of Council members. 



In the Ashby Art’s approval, staff used a “short-form” of environmental analysis (categorical exemption) reserved for infill projects that comply with all General and Area Plan policies and Zoning Ordinance development standards. The State grants categorical exemption if the plans and the zoning have already been analyzed under CEQA. Infill housing can be exempt if the General Plan and Zoning CEQA process included analysis of the impacts from the additional development allowed under the State density bonus, which Berkeley’s does not. 

The State CEQA guidelines for exemptions specify that they are to be “construed strictly, shall not be expanded beyond their terms, and may not be used where there is substantial evidence that there are unusual circumstances...” Ignoring this cautionary language, Planning Staff expanded the exemption granted for this project by adding the phrase “with the exception of waivers/modifications and concessions pursuant to State density bonus law.” This wording means that no matter what modifications of zoning standards a density bonus project requests, the impacts no longer need to be analyzed or mitigated under CEQA. 

The density bonus modifications awarded to Ashby Arts include the fifth story, height 60 feet, and reduction of the setback on Carrison Street. It will be up to the Council (and the courts) to determine whether complying with the density bonus law makes CEQA analysis and the public process of disclosure and mitigation 'optional' in Berkeley. 


State Density Bonus Law 

Ashby Arts is Berkeley's first project to be permitted under the new State density bonus law (Saldana AB2280). Two significant changes in the law were ignored by the ZAB: restricting waivers of development standards to those that physically preclude use of a density bonus and changing the basis for calculating the density bonus from the Zoning Ordinance to the General Plan. 

The ZAB justified the project’s added height and bulk and reduced setbacks to allow for tenant amenities (high ceilings, a courtyard, and sidewalk cafe), which are not necessary to fit in the bonus units. The ZAB approval presents a road map to developers on how they can improve a project’s bottom line at the expense of the neighbors.  

Under the new law, and confirmed by the legislative history, cities may no longer choose which standards to apply when their General Plan and Zoning Ordinances differ, but shall use the General Plan. But Staff maintains that Berkeley’s General Plan is so 'special' that a State law applying to all jurisdictions in the State doesn't apply here. 

The State law’s new basis for calculating the density bonus would impact Berkeley according to zone. Some residential districts (especially R-2A and R-3) would see larger projects, while most commercial districts would get some relief. The Ashby Arts lot (in medium residential density of 40 dwelling units per acre in the General Plan) would allow a maximum project of 31 units, but C-W zoning (commercial west including San Pablo Avenue) allows 70 units. The new law would grant 12 bonus units instead of the use permit’s grant of 24 units, which would force a redesign of the project. 

If the Council followed the new State law, it would protect neighborhoods and fulfill the City’s obligations to grant State mandated benefits to affordable housing projects. Through this appeal, the Council is being forced to make a choice between the citizens who have elected them and the few rogue developers who “push the envelope” with their massive projects and subvert the City’s stated policy of a fair and open public process. 


Stephen Wollmer is a former member of the Housing Advisiory Commission.