Public Comment

New: Certification of Final Environmental Impact Report: Letter to Berkeley's Zoning Adjustment Board

Shirley Dean, Berkeley Resident and Former Mayor
Thursday June 25, 2015 - 12:14:00 AM

I understand that in spite of repeated appeals to you to cancel consideration of certifying the FEI R for 2211 Harold Way, the item remains on your agenda with the notation that it is to be discussed no earlier than 8:00 pm on June 25, 2015. I personally know how time consuming and difficult your job is, as I have walked in your shoes back when the Zoning Adjustments Board was called the Board of Adjustments. I thank you for your willingness to do it. 

While I have not agreed with some of your decisions, I have always felt that each of you serve with unquestioned integrity. I am now calling on your inherent integrity, to either refuse to participate in consideration of this item or, at the very least, hear comments, but defer taking action on the item to another date. 

I have no idea of how many people will attend the June 25, 2015 Council meeting at 5:00 pm to speak on the issue of significant community benefits for buildings exceeding 75 feet in height. I predict it will be a large number. The Council seems to hold that same conclusion since they have scheduled their meeting to be held in the Auditorium of Longfellow Middle School at 1500 Derby, publicly stating that the venue was changed because they expected a large crowd. 

Given this schedule, how do you expect people to wait to speak their turn at that location, at an hour when most people are just leaving work, just getting home, or preparing for dinner, and then afterwards, drive to Old City Hall, find a parking space, and speak to you? How will you even be fully informed of the discussion held by the Council? How will you absorb the comments from the public and then cast an informed and thoughtful vote on the matter of certification of the FEIR? 

It is hard to believe that individually, you won't object. Each of you is accountable for your decision to participate. Each of you must consider what that decision says about your character if you participate in such an unfair and undemocratic process. It is my sincere request that you simply cancel the item and let us all go home or that you hear from those who have made it to the meeting but defer taking any action until you have had time for thoughtful consideration of the information you have received both from the Council and the public. 

In hopes that you will cancel the item entirely, I am offering the following comments regarding the inadequacy of the FEIR and of the whole process by which the FEIR and the project at 2211 Harold Way is being considered. 

1). On May 14,2015, I made comments and presented written material to the ZAB regarding the fact that the Geotechnical Feasibility Report submitted by EnGeo is invalid by its own admission. Section 8 of that report, page 11, first paragraph, last sentence reads, "The conclusions and recommendations contained in this report are solely professional opinions and are valid for a period of no more than 2 years from the date of report issuance." The date on that report was January 25, 2013. Two years have passed. The report is, without question, invalid. 

Since then earthquakes have occurred which show television appearances of USGS scientists stating they think existing California earthquake resistant building requirements should be reviewed. Putting aside that earthquake building standards may or may not be shortly under review, the power point presentation done by the EIR consultants as a response to comments on May 14 is silent on this subject. 

The June 2015 Addition to the FEIR and Response to Comments Document prepared by the City and the EIR consultants , pp 5-45 and 5-46 merely states that the project would be required to implement the geotechnical recommendations from the 2013 ENGEO report! Further, that the impacts "would be less than significant with implementation of geotechnical recommendations and adherence to existing regulations, policies and standard practices." Too bad, I guess, that the geotechnical report is invalid and that the City has determined is currently embarking on a review and strengthening of existing building codes. 

2.) Additionally, on May 14, 2015, I made reference to the October 13, 2014 letter from East Bay Municipal Utilities District regarding water usage, wastewater and City creek requirements. 

  1. Water Usage and Wastewater:
The power point presentation by the EIR consultants dismisses these concerns with statements that the water supply analysis is based on EBMUD's adopted Urban Water Management Plan that includes a multiple dry year scenario, and that EBMUD's letter reflects EBMUD's standard development project requirements, and did not identify any significant project impact 

Worse yet, the June 2015 Additional FEIR Report states that "impacts of the proposed project in relation to hydrology and water quality would be less than significant with compliance with existing regulations and normal standards of use." (Emphasis added.) Since the EBMUD letter was written 8 and a half months ago, the State has been declared to be in a Stage 4 Critical Water Crisis, a mandatory 20% reduction from 2013 usage has been imposed on all of us, and rate hikes have been enacted. The FEIR needs to explain why there is no adverse water impact from adding 936 ( State Department of Finance projected occupancy of 2.1 residents per unit) new residents in just 2211 Harold Way. The Additional FEIR Report provides the information that a mitigation measure will be watering two times daily during the site preparation and grading period (which they state will be about 30 days), to a depth of one inch, using 4.4 acre feet of water for dust control. Note: An acre foot = 1 foot of water on an area 66 feet wide and 660 feet long, or approximately 893 gallons of water. 4.4 acre feet would equal almost 4,000 gallons or more if watering took more than 30 days. 

The water problems with the construction and number of new residents in the 2211 Harold Way project is compounded by up-coming projects such as the one at 2150 Shattuck with 280 hotel rooms and 43 condominiums , and the 92 new dwelling units in 1951-75Shattuck just in the Downtown without even counting those that have already been approved elsewhere in the City 


  1. Wastewater
The June 2015 Supplemental Report states correctly that this project must be in compliance with Berkeley's NPDES permit that seeks to reduce existing excessive infiltration and inflow problems that allow sewage to currently enter San Francisco Bay. The letter warns that if these reductions are not achieved it could result in "significant financial implications" for East Bay residents. Besides the statement that this is just standard language for EBMUD, the FEIR response to this warning is that the Harold Way project includes a new sewer line 8" in diameter connecting to an existing 12-inch sewer main under Allston Way. Fine, but there is no analysis of whether the 12-inch Allston Way is adequate in light of the planned thousands of new residents in the Downtown, and all of the new residential units and commercial and industrial properties downstream of it. We also know that two new University of California 120 foot tall buildings will be constructed and that while the campus says they will contribute to infrastructure improvements such as the sewers, that agreement has been modified to say that it applies ONLY if it doesn't raise an amount they agreed to pay back in 2005. 

  1. Creeks
The June 2015 Additional Report responds to the question of impacts from Strawberry Creek which runs through the site on the north side of the project by stating that Strawberry Creek is culverted and is not "within any creek buffers identified in City plans or policies and is not subject to the provisions of Berkeley Municipal Code Section 17.08. 

It is not possible to access creeks maps online, but a map, Figure 7, provided in the EnGeo Report clearly shows the location of Strawberry Creek. A copy of that map is attached. The north side of 2211 Harold Way is within the marked creek location. The EnGeo report also discusses the need for taking out unstable creek landfill in order to accommodate the parking garage below the planned 18-story building to something like a 4-story depth. City maps of the Downtown do not show open or culverted creeks, nor do City records re 2211 Harold Way mention this issue. However, every property in the city of Berkeley is subject to BMC Section 17.08 which requires that, culverted or not, properties within a certain proximity to creeks have to undergo specific investigation and special permitting. BMC Section 17.08 does not exempt properties in the Downtown. Since everyone else must abide by this regulation, the FEIR needs to explain why 2211 Harold Way is exempt, not to do so results in uneven and unfair treatment of other property owners. 

3.) The Additional FEIR Report concludes that Design Review Committees' (DRC) analysis is the Recommended Alternative. It is compared to the Proposed Project, Preservation Alternative and Contextual Design Alternative. All of these build outs are listed as having a building height of 18 stories/180 feet. This is a factual error. The voters approved 2010 Measure R that stated no building in the core will be higher than existing 180 foot buildings. It turns out that there are no existing 180 foot tall buildings in Berkeley. However, the Voters Handbook for that 2010 Measure R defined the height as no higher than the Great Western Building, Berkeley's tallest building. The Great Western Building seems to be around 178 feet actual height, measured to the ledge and including everything else on top. 2211 Harold Way is 194 actual feet. Repeated requests from the public to settle these height issues have been ignored, so today neither you nor the staff know. How can a FEIR inform decision makers when it is factually incorrect? 

This also leads to how can the height impacts be accurately determined, along with the accompanying width impacts on nearby historic resources, the Shattuck Hotel and Main Berkeley Library unless the height is actually known. 

4.) The FEIR lists the objectives of the project, but no where do I find a list of what the City's objectives are. Affordable housing, how much? Retaining the Shattuck Cinemas to their full extent? Additional community benefits, what are they? No one knows. So, the FEIR can determine how a project or alternative meets the objectives of the proposed project, but no one knows how such a project meets the objectives of the City. The work simply hasn't been done: Should Labor Agreements be a given, on all buildings, and include employment and training of Berkeley residents? Should the Shattuck Cinemas be retained in their present form because they are part and parcel of the Arts and Theater District and their loss would mean a decrease in the vitality of the Downtown? How can mitigation measures and alternatives be analyzed without the answers to these essential questions that are currently lacking? 

5.) ZAB Member Pinkston stated that she felt the mitigation measures were all included in the FEIR, but they were "hard to find" and she, therefore, requested that they be put all together in one place. That is a very sensible way to organize the FEIR, but I can't find such a document. It should be produced to improve the understanding of both decision makers and public. 

Additionally I would request that the comments regarding subjects that the FEIR states are not covered by CEQA and which don't require mitigation or further analysis, but which the documents promises will be sent to decisions makers, should be compiled into a subject list, with reference pages, and attached to the FEIR. This suggestion is made for the same reasons as given above for the mitigation measures. 

6.) Lastly, while I find it unpleasant, and don't want to do it, I feel I must challenge the participation of ZAB Commissioners Pinkston and Dominguez in any discussion regarding 2211 Harold Way. I am advised that Commissioner Pinkston, a thoughtful contributor to Board discussions, sits on the board of the performing arts group that is seeking to be included in this project. I have also been advised that Nic Dominguez sits on the board of Livable Berkeley that has already taken a position of support regarding 2211 Harold Way. I have attached an opinion from the City Attorney dated December 1, 2000 that is the basis for raising these questions. The participation of these two ZAB members needs to be determined as quickly as possible as City rules are that if they do have such a conflict, they must leave the room and not participate in any discussion or vote involving 2211 Harold Way. 

Thank you for your consideration of this lengthy letter.