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Planners Adopt West Berkeley Subdivision Regulations

By Richard Brenneman
Thursday July 30, 2009 - 10:46:00 AM

Planning commissioners finished the easy part of their West Berkeley zoning changes Wednesday, July 22, but the hardest part will be on their agenda after their August break. 

Skeptics of the City Council directive aimed at easing development restrictions in the city’s only sector zoned for industry and manufacturing won on one key vote governing the breakup of space within existing sites, but they may face a tougher road on the larger issue of the master use permit. 

Master use permits would govern multi-use development on larger sites, but how large and how many are key questions commissioners will address starting in September in meetings likely to provoke semantic firestorms. 

The controversy pits a coalition of West Berkeley’s smaller manufacturers and artisans against developers with big hopes for the area and a City Council allied with UC Berkeley in a vision of the sector as home to a building and revenue bonanza tied to “green tech” patents created by UC scientists and spun off to start-up companies. 

The outcome of the contest will determine the shape of West Berkeley. 

During the July 22 meeting, commissioners faced an audience overwhelmingly composed of members of the group West Berkeley Artisans and Industrial Companies (WEBAIC) and their allies. 

WEBAIC and two of West Berkeley’s leading real estate brokers, John Norheim and Don Yost, have emerged as allies, pitted against the area’s major developers and some—but by no means all—commercial property owners. 

Commissioners disposed of one key issue by adopting a proposal formulated by WEBAIC, Norheim, Yost and former city Office of Economic Development Director Neil Mayer on rules for subdividing (“demising,” in planner-speak) space within existing sites. 

The choice facing the commissioners was what level of oversight should govern the demising process. 

The first, a zoning certificate is a simple process, acquired by a simple exchange at the counter of the city Planning and Development Department and requires no extensive review. 

The second level of oversight governs the administrative use permit (AUP), where scrutiny by city staff is required before a permit can be issued. 

The third and most complex level is the use permit, for which applicants must submit to a staff review, followed by a public hearing before the Zoning Adjustments Board. 

The two proposals from planning staff would have made the administrative use permit the highest level of scrutiny for demising buildings and allowed a zoning certificate only for the largest divisions of the smallest of three categories of buildings, based on square footage. 

The third and ultimately prevailing alternative from WEBAIC and its allies created a simpler system based on the number of proposed subdivisions of a structure. 

Breakup into two to five spaces, regardless of square footage of either the building or the newly created spaces, would be allowed with a simple zoning certificate. Subdivision into six to nine spaces would require an AUP, while breakup into 10 or more spaces would mandate a full use permit with a public hearing before the Zoning Adjustments Board. 

Before the vote, Michael Ziegler, owner of the Temescal Business Center at Seventh and Heinz streets, urged commissioners to grant demising permits with a simple zoning certificate.  

Rick Auerbach, WEBAIC’s lone staff member, said his group’s proposal would ease the process for owners of small buildings, while “people with large buildings have resources owners of smaller buildings don’t, and that’s where oversight should be concentrated.” 

Auerbach said oversight would be concentrated on breakup of large buildings into 10 or more spaces, “because the reality is that more spaces means that disproportionately more people are packed in, more people are parked on the streets.” 

“We’re really liberalizing” the rules, he said. “Over 10 is really where it gets controversial.” 

Asked by commissioners, Alex Amoroso, the city planner assigned to what is now known officially as the West Berkeley Project, said he had no objections to the WEBAIC proposal, and commissioners voted unanimously to approve it. 

Commissioners also voted unanimously to ease regulations on existing manufacturers who want to open retail outlets to sell the products they make. Under the current city zoning code, they can create “incidental retail” outlets on site only with a full use permit and zoning board hearing. 

Commissioners voted unanimously to lower the requirement to an administrative use permit from the current use permit level. 

Two other unanimous votes would allow site owners zoned for Material Recovery Enterprise (recycling), Manufacturing, Warehousing or Wholesale to freely interchange uses of floor space among the categories with a use permit and to switch the numerical categorization of businesses from the current but outmoded Standard Industrial Code to the North American Industrial Classification System. 

The four votes, held within a few short moments, were followed by a burst of applause from the WEBAIC-dominated audience. 


Master use permits 

By far the hottest potato on the commission’s plate is the master use permit (MUP), as it will apply to future development in West Berkeley. 

For the council majority and its allies in UC Berkeley and the development industry, the stated goal is allowing development of as many sites as needed to accommodate the anticipated bonanza from high-tech solutions to the energy and global warming crises. 

For WEBAIC and its allies, the professed desire is to preserve West Berkeley as a place where artists, small industries and current residents can continue to thrive and not be priced out by rising real estate prices from the anticipated green-tech bonanza. 

Under the master use permit, a developer can build in stages as the market warrants while facing only one regulatory process at the very beginning rather than a new one each time something new is built at the site. 

While both sides agree the master use permit is a useful development tool, they remain strongly divided about how many should be issued and on what sites. 

Other issues involve the height and massiveness of buildings allowed under the MUP process, with developers asking for taller and bulkier buildings than WEBAIC wants; how much parking should be required for each project; what uses should be permitted on MUP sites; and what benefits developers should give the city in exchange for the right to build their projects. 

Steve Goldin, a principal at SWERVE, a West Berkeley furniture manufactory and software company and a proponent of greater development in the area, said, “It’s an economic issue. There is a subtle bias against developers,” but “we need to have flexibility to make a deal with the city to make it work.” 

Darrell de Tienne, a developer’s representative who has appeared before city bodies representing Wareham Properties, Seagate Properties and would-be West Berkeley developer Douglas Herst, said critics “take a rigid point of view” of development. “But you need to know you’re getting a new world” with the demand for technology to meet energy needs and global warming, he said. 

Business center owner Ziegler built his firm with a master use permit and remains a strong advocate for the process. 

City planner Amoroso recommended the city allow a floor-to-area ratio (FAR) of 4, double the current city maximum. Heights would be increased from the current 45-foot maximum to 70, and could go up to 90 feet for projects that meet “special considerations and needs.” 

He proposed allowing master use permits on all four-acre sites, and granting up to 10 permits in the five years after the zoning changes are adopted. Developers would also be able to buy adjacent sites to meet the minimum acre threshold. 

Master use permits could also be granted on sites smaller than the minimum acreage as long as they encompass an entire city block. 

Auerbach said four acres is too small, with WEBAIC proposing a four-and-a-half-acre minimum. “Four-acre sites would mean 42 percent of West Berkeley. Instead of six master use permits in five years, Auerbach said, “six projects in 10 years would be a lot.” 

WEBAIC wants the city to hold with the current 45-foot height limit and a maximum FAR—which compares a building’s total square footage to the site area—of 2, “and we want guaranteed benefits.” Higher FARs mean taller, denser buildings. 

While the commission majority seemed to favor the staff proposal during the discussion, the issue was not resolved, and Amoroso will return to the commission in September with draft language for the revisions.