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New: NIMBY Geese Protest West Berkeley Development (News Analysis)

By Toni Mester
Monday June 04, 2012 - 11:21:00 AM
Canada Geese occupy Aquatic Park
Toni Mester
Canada Geese occupy Aquatic Park
Bolivar Drive and the main lagoon
Toni Mester
Bolivar Drive and the main lagoon

A gaggle of Canada geese has occupied the north end of Aquatic Park in a growing protest against the West Berkeley Project and its flawed EIR, which claims that bird habitats are concentrated at the south end of the park.

The human inhabitants of West Berkeley are also concerned and have turned out in the hundreds for City Council public hearings that began May 1 and continued for three weeks, the large majority of speakers opposed to zoning changes west of San Pablo Avenue including Aquatic Park. Many complained about a top-down process that ignored their concerns. The next public hearing is scheduled for June 12.

The definition of habitat, according to Mike Lynes, conservation director of Golden Gate Audubon, is “anywhere the birds are,” and the threat of increased distress brought by large development on the north end of the lagoon has ruffled the feathers of the diving ducks and more than 70 other avian species found at the park.

The Canada geese (Branta Canadensis), usually visit in winter but are staying on this year, which worries the leadership of Ducks United because the geese, who poop worse than seagulls, are considered the black bloc of the occupy Aquatic Park movement, giving birds a bad rep.

Glaring Errors and Omissions

As a result of Audubon’s EIR comments, bird-safe building standards have appeared in the mitigations monitoring program of the revised master use permits ordinance that will get a public hearing on June 12. 

But bird-safe standards are not intended to safeguard against glare and reflected heat, which could also disturb park users, blinding boaters and cyclists in the afternoons. Bird-safe building standards, like those adopted city-wide in San Francisco, demand window treatments to prevent transparency and bird collisions, but environmentally sensitive fenestration should also prevent glare and heat reflection caused by certain types of widely used window glass. 

If activists are successful in adding prevention of glare and heat reflection, it will join a growing list of changes to the West Berkeley Project that appear in the mitigations monitoring program rather than in the ordinance itself, because state law requires that any modification of such legislation be referred to the Planning Commission for consideration, an issue that was raised May 8 by Gene Poschman, a long time member of Berkeley’s planning body. According to City Attorney Zach Cowan, the mitigations monitoring program has the force of law. 

On May 22 Councilmember Laurie Capitelli presented approximately 20 amendments to the ordinance that he characterized as a compromise “put forward after conversations with a variety of stakeholders.” Some of these changes can be found in the revised ordinance and some in the mitigations monitoring program, depending on whether the issues were considered by the Planning Commission. 

The amendments were moved by Laurie Capitelli and Darryl Moore, both of whom face opposition in the November election, and referred to staff. The public hearing was set for June 12, and the proposed changes are now available on the Council agenda


A Moving Target 

Following late changes to the master use permit (MUP) amendments proposed by Planning Director Eric Angstadt and Laurie Capitelli, Council plans to vote on June 12, without the benefit of review by the Planning Commission. Although the Public Hearing has been reopened for June 12, a vote at the same meeting will not allow for revisions in response to public comments. 

Some of the changes include a setback of 5 feet for MUP projects adjacent to the Mixed Use-Residential (MU-R) zone, and within the MU-R, buildings will step up from 35' to 45' at a 30° angle. Density in the MU-R may be increased to C-W (San Pablo) standards, a 100% increase, in spite of recommendations by both Planning Director Angstadt and the Planning Commission to maintain existing density. 

Buildings in an MUP may be 75 feet high at a site-wide average height of 50 feet, and can cover 75% of a project area with a minimum of 10% dedicated to publicly accessible open space. Since the average height is “site-wide” rather than an average height of the buildings, grade of 0 would be figured in the average, which means that up to two-thirds of an MUP site could reach 75 feet. In the mitigations program, a new stipulation to preserve the visual character of West Berkeley states that no more than 25% of the site area can be at a single height as part of a contiguous mass. 

It’s hard to imagine how this will produce a less massive and more visually pleasing project without seeing architectural drawings and models. 

Additional building height is allowed up to 100 feet for industrial infrastructure when the applicant can demonstrate absolute necessity, although a developer argues that this should include rooftop equipment and mechanical penthouses. 


The Abuses of Uses 

In the Capitelli proposal, certain uses normally allowed in the MULI are prohibited in the underlying MU-R portions of an MUP site: construction products manufacturing, pharmaceutical manufacturing, testing and commercial biological research labs, and commercial excavation. This would cushion nearby residences from obnoxious industry. 

The location and density of housing have been a matter of controversy and confusion throughout this process. In an early staff version, residential uses that were allowed in one portion of an MUP site could “float” to other locations and be expanded, subject to approval by the zoning board. After the public hearings, Eric Angstadt concurred with the Planning Commission in retaining the MU-R standards, much to the relief of the neighbors. 

Now the housing allowance has been changed once again to permit C-W (commercial west) standards in the MU-R portion of an MUP, which would apply to the Peerless project on Fifth Street between Allston and Bancroft, evidence that Doug Herst and his team have been successful in lobbying for increased housing density on his site. That’s no surprise since high density growth has long been a priority for Mayor Bates and his Council allies. 

C-W allows 40 feet of housing or 50 feet with mixed use, but the zone, which includes the new project 4th and U, stops south of University at Addison. If the Peerless spot-zoning is approved, condos on Fifth Street could rise to over 65' due to the density bonus. The additional height would depend on the amount of affordable housing provided. 

This twist in the saga of Fifth Street is sure to dismay the MU-R neighbors who have turned out in force for the hearings and felt a fleeting sense of relief for a few weeks, believing that they had preserved the scale of their neighborhood. 

In the Capitelli proposals, the C-W zoning portion of the MUP site owned by Wareham Corporation, where the Urban Adamah farm is located between San Pablo and Tenth Street, would have retained the C-W zoning standards, but that limitation is not clarified in the revised ordinance. An apartment building could still be 75' on San Pablo Avenue, with a potential increase from the density bonus, unless stated otherwise. 


Aquatic Park Puzzle 

Doug Herst publicized his Peerless Greens project two years ago, hired a traffic engineer for the environmental review, and made his plans visible, if not totally accessible. The size of the residential units, the economic viability of the project, and the fate of his current tenants remain indeterminate, but at least the community knows what he intends. 

The general appearance of the Wareham project in Berkeley is available in their LBNL second campus presentation August 2011, although not specifically articulated. The Wareham development track record in Emeryville suggests the look of their expanded Berkeley site. 

But the design of the Aquatic Park MUP sites remains a mystery. Of all the LBNL presentations, Aquatic Park was the least specific, a preliminary plan relying on pretty views of the lagoons and the bay as well as West Berkeley shops, restaurants, and galleries. Adam Glaser, an architect with Stantec, mentioned that the buildings would be 2-4 stories and located to protect view corridors, while the landscape design would add 2 acres to Aquatic Park by blending the public and private open spaces. Both Glaser and Joe DeCredico spoke of environmental enhancements that would remediate the hydrology problems of the lagoons. 

What has happened to all these good intentions since LBNL has chosen to locate in Richmond? The Aquatic Park MUP properties, owned by the Jones and Goldin families, would get a height allowance to 75', enough for five lab stories that could obliterate public views, while Glaser said the project would respect the scale of the neighborhood and implied that 60' (four stories) might suffice. 

The new proposal for building setbacks would be “an average of 100' from the water’s edge” but fails to stipulate how such an average would be calculated and suggests a blending of public and private lands. The corollary to the notion of adding acres to the park is expropriating public land for a corporate campus. It’s problematic for many reasons, including maintenance, access to recreational amenities, and liability. Setbacks are normally measured from the edge of private property, which would be along Bolivar Drive. 

And then there’s the problem of grade. At present, the north end of the Jones property, including Plexxikon is level with the park but the south end, the American soils yard, is almost 20' above Bolivar Drive. Before building heights can be determined, it is necessary to know how buildings will be designed relative to the grade of the site. 

The latest revision of the development standards for the Aquatic Park sites includes building step-backs at a 45° angle, a steeper plane than the 30° required at the MU-R interface, and there are no MULI prohibitions of use for the sensitive park environment. These inequalities should be resolved so that the park gets similar protections, even if egrets can’t vote. 

To complicate matters further, the EIR did not study rise in sea levels and revealed in the final SEIR that “contaminated plumes” exist in the high water table west of the railroad tracks, new information which may necessitate further environmental review, according to Tom Lippe, the lawyer representing the Sustainable West Berkeley Alliance in a May 15 letter to the City. 

The rezoning of the Aquatic Park sites has preceded the environmental review of the Aquatic Park Improvement Program (APIP) that begins this fall, which could create problems. These efforts should be better coordinated, connecting the Planning Department to Public Works and their big project, the Watershed Management Plan, and to Parks, Recreation and Waterfront, who will be overseeing APIP. All three of these projects affect Aquatic Park. 


The Giveaway 

Money is the motive. The City thinks that their zoning initiative is going to pump up the local economy, attract LBNL spin-offs and start-ups in biotech, bring brilliant scientists to Berkeley who will live in a nearby maxi dorm, and that industries need 100 feet heights to cure cancer. Plexxikon is developing a melanoma drug in a 15 foot high building and needs to expand, but not that much. 

Scientists and technicians will commute from their single family homes in the suburbs, and the West Berkeley neighbors, who have been insulted throughout this process as infantilized NIMBYs who simply cannot accept change, will suffer worsening traffic conditions and air quality, and a local economy destabilized by a sudden rise in land values. 

The Council has a sketchy list of community benefits they would like to exact from developers, but those benefits have not been considered by the Planning Commission. And so our elected officials plan to pass this zoning ordinance, granting increased building allowances to a few owners and developers, before defining what benefits the developers would be required to provide to the community. 

Two benefits should have priority: transportation and infrastructure. Both have a clear nexus to the developments and will benefit the new employees and residents. Many of the traffic mitigations depend on TDM (traffic demand management) programs like providing employee Clipper cards and funding a BART shuttle. Other transportation fees could apply to redesigning intersections and road improvements that are suggested mitigations in the EIR. 

The decayed hydrology infrastructure of Aquatic Park requires massive capital investment, and the tax payers may not vote for the green infrastructure bond if they feel that developers aren’t paying their fair share. In recent polls, streets and the storm water system (watershed management) are getting the highest approval. If the Council shows a clear priority for these benefits, the City could possibly afford to improve streets and intersections as well as the water quality of Aquatic Park and the bay. 

Our over-eager City Council would be making a mistake in passing this half-baked ordinance. They should send the MUP amendments back to the Planning Commission, requiring input from all stakeholders, until they get it right. Creating building allowances before determining fees weakens the City’s negotiating position in what are sure to become development agreements by another name. 


Dump the MUPs? 

The Council could abandon this ordinance without sacrificing future projects and economic growth. There’s a growing awareness in the environmental community that Aquatic Park is at risk and that the adjacent properties should be zoned separately. But the same could be said for all of these sites, each unique in problems and potentials. 

With separate development agreements, the community could examine the plans, and the challenges could be solved on a case by case basis. One size does not fit all. The original intent of the master use permit section was to allow the owner to get permits for more than one building without having to apply separately, but within the existing allowances and standards in the zoning code. 

The proper channel to develop large parcels with expanded allowances in exchange for benefits is the development agreement. Everything is negotiated, and the community participates in an advisory capacity. All the experience and information gained to date can be used in the agreements and will not be wasted. Each project would undergo separate environmental review, and their EIRs can be improved based on what has been learned. As currently proposed, an environmental review is discretionary, not mandatory. 

Clarity can not be achieved in the current situation because it is ruled by political gamesmanship, not good governance and planning. The Council majority is pushing the flawed and unfinished MUP ordinance so they can overcome a referendum in November. Instead of working with the community for a win/win outcome, they want to defeat West Berkeley. The members of the Council who are trying to broker a compromise should be commended for their efforts, even if politically motivated. That’s OK. Compromise is what politicians should do. They should not make war on workers, tax payers, small business, and existing neighborhoods. 

This planning exercise, both process and product, has failed. It has become a grotesque charade that sacrifices the life investments of thousands to the ambitions of a few. The ordinance cannot be fixed within this rushed time frame. Many commendable projects will take longer to create under this miserable piece of legislation than through separate development agreements in more open and transparent negotiations. 



Back at the lagoon, the geese are foraging in the shallow waters of the north end of Aquatic Park, oblivious to the surrounding storm of controversy. 

The executive committee of Ducks United huddle at Bird Island, savoring their new found status as stakeholders and wondering if the immigrants from Canada will undermine their cause. 

“Our goose is cooked,” proclaims Patches, the leader. 

“The City Council has its ducks in a row,” quacks another, as they wade away into the sunset, flipping their tails and calling to one another. 

“We’re not going to be sitting ducks” 

“Aquatic Park is for the birds.” 

“It’s water off my back.” 

“They are so lame.” 

Toni Mester, a West Berkeley resident for 33 years, served on the Bayer Development Agreement Citizens Advisory Committee.