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Updated: Berkeley Honda Goes to the Zoning Board
DEALERSHIPS IN SOUTH BERKELEY
The Berkeley City Council did ZAB no favors when it passed the notorious “Dealership Overlay” ordinance. The 2013 ordinance undermined existing zoning prohibitions on new or relocated auto sales in the Commercial South Area (C-SA) district. It explicitly contradicts elements of every Berkeley policy document guiding development in the area, including the South Area Plan, the South Shattuck Strategic Plan, and the emerging Adeline Corridor Planning Project. Members of the organized opposition to the Honda project were involved in developing every one of these citizen-driven policy initiatives. Yet curiously nobody in this unusually engaged neighborhood was aware of the “Dealership Overlay” until the Honda project became public in the spring of 2015. The Honda proposal is the first attempt to transform the South Shattuck streetscape under authority of the new overlay ordinance. But is it legal?
A CHANGE OF USE
2777 Shattuck was originally built as a bowling alley in 1940, and has served a number of businesses since its origins. Several storefront businesses operated from the Shattuck frontage of the bowling alley from the 1940s to the 1970s. During the 1950s, part of the building was the theater home of the ambitious Berkeley Drama Guild, and the site of the first complete performance of Allen Ginsberg’s landmark poem “Howl,” five months after the more famous Six Gallery reading of “Howl, Part I”. Most recently, Any Mountain sporting goods retailer leased the building. According to its former manager, Any Mountain lost its lease—contradicting the developer’s narrative that the store was forced to leave due to poor business.
The building’s most famous occupant was the Berkeley Bowl Market, an icon of local food culture, from 1977 - 1999. But 2777 Shattuck has never been permitted for any automotive business. Consequently, the Honda project constitutes a “change of use,” language that is meaningful in the zoning code, and should be determinative for city planners and board members.
Changes of use to auto sales and repair are exceedingly rare in urban areas—partly because dealerships tend to establish on sites with previous histories of commercial auto use and partly because other cities view the impacts of auto repair as fundamentally incompatible with residential neighborhoods. Unlike Berkeley, these cities have protecting zoning ordinances that include minimum lot sizes for dealerships, large setbacks from residences when they allow these uses to abut at all, and a low maximum lot coverage.
The 2013 overlay ordinance reversed a decades-long prohibition against new and relocated auto sales in the C-SA district, but one restriction did not change: C-SA District zoning still prohibits a change of use to auto repair and parts service as the primary use of a building, allowing this use only if it is “ancillary” to auto sales. (An ancillary use is one “that is both dependent on and commonly associated with the principal permitted use of a . . . building and that does not result in different or greater impacts than the principal use.”)
In fact, C-SA is the only commercial district in Berkeley to prohibit a change to repair and parts service as the primary use while allowing auto sales. Which is why ZAB had such a hard time at the June 9 ZAB hearing night reconciling the Honda proposal with what is legally permitted.
In fact, planning staff, Honda, and ZAB all struggled at the June 9 ZAB meeting to find a reason to consider Honda’s proposed “sales” operation as anything other than a stalking horse for a prohibited repair shop. The planning department staff proposed tweaking the square footage devoted to the separate sales and repair uses (a “solution” vehemently opposed by Honda and the developer), while Honda proposed to demonstrate “sales” revenue disproportionate to “repair” revenue—and even attached a letter from its accountant asserting the point.
Interestingly, in a December 2013 letter to then-city manager Christine Daniels, Tim Beinke of Berkeley Honda pleaded for a building permit waiver on the grounds that “when we make profits at all, we make them less on the sale of new cars than on quality service and the sale of used cars.” The letter did go on to claim that auto sales benefit the city as one of its largest sources of tax revenue, and that “sale of new cars remains essential to our overall business model.” Granted, profits are not revenue—but it’s remarkable that such esoteric debating points are deployed to argue the validity of a use permit.
Because it is patently obvious that the actual activities taking place in a building determine its “primary use.”
Thus, in order to approve Honda’s application, ZAB must come to 2 insupportable findings:
1) Honda’s primary activity at 2777 Shattuck is auto sales, not service & repairs, AND
2) the detriments stemming from the repair operation—to pedestrian & bicycle safety, traffic, parking, noise, etc.—are not different and not greater than than detriments stemming from auto sales.
Will existing zoning standards be scrupulously enforced at ZAB? Neighbors are skeptical, given the city’s recent history of approving development projects with disputed authority, and in the face of significant citizen opposition, like Harold Way. Parker Place is another such example. The multi-use development project faced significant neighborhood opposition, carries significant unaddressed impacts, and expanded well in excess of its original scope.
In a very real sense, the current Honda proposal is Parker Place metastasizing beyond its 2600 Shattuck address.
HOMELESS HONDA
Honda was kicked out of its long-term home at 2600 Shattuck, a structure purpose-built in 1926 for auto sales and service, to make way for the Parker Place multi-use development project of Citycentric Investments. Ironically, Citycentric managing partner Ali Kashani is now representing Honda’s bid to occupy the old Berkeley Bowl.
In a letter to ZAB, former mayor Shirley Dean suggested that promised occupancy of the old Berkeley Bowl may have been part of a deal to secure Honda’s cooperation as Citycentric sought approval for the Parker Place mixed use development:
“From its very inception, the move by Honda to this location has given every indication it is based on a ‘promise’ made to Honda that if they moved to make room for other projects, they would be given the right to locate to 2777 Shattuck Avenue . . . If one examines the very first time this subject appeared on the Council agenda, before any zoning or planning review, statements were highlighted to Council Members regarding the City’s loss of revenue should Honda leave, but there was no real explanation regarding what permits such a proposal would require, what the possible impacts of such a move would involve, nor that any notification or discussion with the surrounding residential neighborhood had ever occurred.”
It’s impossible to know if any such promises were made, but it should not be difficult to understand the neighbors’ suspicions. Moreover, Honda has apparently been led to believe that the Berkeley Bowl site would be theirs by right, that the neighborhood opposition, if any, would be slight, and that the city approval process would be speedy. If so, Honda should be extremely unhappy with its paid advocates.
At any rate, for all the concern about the potential loss of jobs and tax revenue, it’s clear that nobody in city government was concerned about them when Parker Place was allowed to evict Honda. Yet the concerns are real, even if they were late coming, and even if they were raised only when the neighborhood claimed a role in the permitting process.
ZAB’s discomfort at its predicament, stemming from the incompatibility of the Dealership Overlay with the purposes of the C-SA District, was evident at the June 9 hearing. It was reflected in its questions to staff concerning definitions of the key terms “primary” and “ancillary”, and about the authority of the Dealership Overlay ordinance in case of contradicting zoning language. It was evident that at least some ZAB members were not happy to have been placed in such a position by the city council.
Most ZAB members expressed intimate familiarity with chronic traffic congestion on the 2-lane portion of Shattuck between Ashby and Ward, and sensitivity to the neighbors’ concerns for safety, noise, parking and to other detriments inherent to the proposal. Yet they also signaled an obligation to protect Honda’s business, its jobs, and its tax contributions. ZAB’s sympathies are divided, and they are irreconcilable. Honda is disinclined to accept any mitigation that doesn’t include a repair shop at 2777 Shattuck, and the neighbors will consider mitigation meaningless if a repair shop is permitted.
ZAB has ample justification to deny the Honda application based on unavoidable detriments contingent upon bringing a prohibited repair shop to a fundamentally unsuitable site. ZAB has an obligation to deny the application based on the absolute prohibitions in C-SA zoning for the business’ primary activity. No mitigation can overcome these defects.
It is absolutely guaranteed that Honda would appeal a ZAB denial. And it is probably as likely that the city council will ultimately give Honda what it wants. Recent history indicates this, as does the hidden process by which the Dealership Ordinance came to an unsuspecting neighborhood with a long history of deep engagement with city planning initiatives.
ZAB cannot split the baby. The question for the zoning board is whether or not to provide the council with a fig leaf for an insupportable decision in the service of spot zoning. Or will it follow the law, deny the project, and force the city council to own its back-door deal making when Honda appeals the denial of permit?
