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New: Council Majority Denies Appeal of Wareham 740 Heinz Permit (News Analysis)

By Curtis Manning
Monday March 04, 2013 - 10:32:00 AM

On January 22, the Berkeley City Council denied an appeal of the Zoning Adjustment Board’s approval of modifications to a project 740 Heinz Avenue. The project, which would see the demolition of the landmark Copra Building and the construction of a 74-foot bio-lab by Wareham Development, was opposed by the Friends of the West Berkeley Plan. 

After a brief hearing, City Attorney Zach Cowan assured the Council that staff’s recommendations were legal. For the record, the real, substantial issues that motivated the appeal were the lack of reasonable grounds on which to award the variances for height (30 feet over current zoning), floor area ratio (FAR=4, where FAR=2 is allowed), and parking (none provided), as well as the lack of a risk assessment for synthetic biology, the likely use for which the building is designed. Since we have previously discussed the tortured issues behind the City’s stand on the height variance (see “The 740-Shuffle”, Daily Planet, January 18, 2013), we here concentrate on the other disconformities of the proposed project with Municipal Code. 

Garr Land and Resource Management owns 740 Heinz Ave. – the land and the landmarked Copra Warehouse. Garr has reportedly leased the land to Wareham Development of San Rafael (Rich Robins) for a term of 100 years, with conditions stipulating possible escape mechanisms. Wareham has developed, and owns property adjoining 740 Heinz, which they have named the “Aquatic Park Campus”. In order to solve the problem of providing variances for the excessive FAR and the absence of parking in the proposal, City staff suggested a way to side-step the issue and achieve victory. Zach and Wareham’s representative, Chris Barlow, suggested that 740 Heinz was going to function as a part of Wareham’s “Campus”, and that its open space and parking could accommodate the needs of their 100,000 sq. ft. building. The problem, from a legal perspective, is that the properties are not owned by a single entity, but two.  

Cowan suggested that deed restrictions could be written that would serve the purpose of acknowledging the “special relationship” between the properties of Garr and Wareham, and the uses to which the property is to be devoted. This relationship is taken to have the effect of expanding the reference area over which the FAR and the parking requirements for 740 Heinz would be calculated. Cowan said that deed restrictions would be written to ensure that, for perpetuity, the parking and open space needs of 740 Heinz can be met on the property currently owned by Wareham.  

How does the City set, for perpetuity, a relationship between organizations that may change on a 10 to 20-year time-scale? The author would like to see. On the one hand, perhaps Wareham will treat 740 Heinz as part of their “Campus”, and all might be wonderful. But on the other hand, there may be a dissolution of agreements that affect the lease on the property, and the City could be left with a seriously non-conforming building. Clearly, Garr does not want to sell to Wareham, or these convolutions would not be necessary. This fact points to the reason why the City Attorney’s idea may be a bad one, since what is to stop a dissolution of this weak bond? Obviously, it is important to check on how the deed restrictions are written. Maybe check in with Garr to make sure they’re in the loop. 

However, at present, the deed restrictions have either not been written, or we are not privy to them. For, we are not allowed see what they are until Wareham is ready to build and the building permit is issued, according to a Feb. 7 e-mail from Greg Powell (Planning). It appears that that there is no opportunity to criticize the document before the building permit is granted. From the perspective of what is supposed to be an open process, this seems inexcusable. 

Whether it is legal to contort Berkeley’s Municipal Code to allow the excessive massing on one property to be averaged with that of a neighboring property is a policy decision that requires community and commission input, and Council action, before it is adopted. It is not for the City Attorney to pull out of his hat. Let Mr. Cowan write the new legislation and let it go through the Commission system as such policy matters ought to, rather than surprise an unprepared Council. 

The Case for an extended public hearing: Council’s rejection of the appeal of the ZAB action on 740 Heinz was made with one piece of relevant information having been withheld. Without question, the proposed deed restrictions are relevant to the proposal. The legal validity of the building permit will be in question as long as there has been no opportunity to discuss the conditions of the deed restrictions in public sessions of the ZAB and City Council before final votes are taken. For, the public has the same intrinsic right to inspect the deed restrictions that it had to inspect the other documents, and to have had access to it before the ZAB meeting of 9/27/12. The conditions of the deed restrictions ought, then, to be considered in a re-opened ZAB hearing. 

The City Attorney is using the deed restriction concept as an invisible substitute for the variances that they cannot get through the commission system in a legitimate manner. Instead of grounds for variances (well, there were none), we get nothing but promises. 

Some time was spent looking into Wareham’s claims of their need for a larger, big-box building (their 2012 proposal now 105,000 sq. ft.). Wareham claimed that costs for building R&D space in the Bay Area had increased 17% since the time the use permit was granted for the 2009 version of this project. Staff (9/27/12; ZAB) said that the City-hired consultants, EPS (Economic and Planning Systems, Inc.), have independently corroborated this figure. This high rate was used to support Wareham’s claim that they needed to reduce building costs by removing the parking, and the façades, and to enlarge the building to get more rent.  

Inspecting the calculations of EPS (see Attachment 7 of the 9/27/12 ZAB Staff Report), we find that they cite a rate of increase of 3.8% per annum for building costs. This rate has no adjustment for inflation. However, the inflation-adjusted rate is 1.3% per annum, which EPS also cites. What both Wareham and EPS have “independently” done is to choose the 3.8% per annum value, rather than the inflation-adjusted value of 1.3%. They do this without saying why they have done it, or even which value they used. Compounded over four years, the cost of building including inflation would increase by 16%, but only 5.4% when adjusted for inflation -- a rather substantial difference. I would believe this is an error of the elementary sort, if it was done by dullards, but these are professionals, and therefore another, more nefarious reason comes to mind – deception. Using the correct number, 5.4%, would remove significant support for removing the parking and the façades, would it not? This is, it seems to me, a crime: misleading a quasi-judicial Board by padding figures in order to obtain permits to build. But it appears that in this case, the criminality is spread evenly between the City, the consultant, and the developer; it was a joint effort. We wuz gamed! 

A couple of weeks after the Council’s nay-vote, February 6, 2013, there was better news, as the Planning Commission met to vote on staff’s recommendation that they should rescind all of their recent amendments to the West Berkeley Plan -- changes made in anticipation of Measure T’s victory. Thanks to Berkeley’s voters, the Commission very tamely, perhaps even contritely, voted to rescind them. 

Strike up the band!