Bird Safe Ordinance Finally on the Berkeley City Council Agenda for June 6
The final step for the BIrd Safe Ordinance is the vote by the City Council on June 6 at the 6 pm regular meeting. Reading the 50 page report in the June 6 City Council Agenda packet makes my eyes glaze over.
There are things you should know. This is not a done deal.
Erin Diehm put together a tool kit with the actions (there are three) to take. https://docs.google.com/document/d/1ZkY-L8ugJoy-sU3WfkPnlh2Mx8UcE6MIM7VRDYlY2nA/edit?usp=sharing
You might ask, Why, is it so important that Berkeley gets the BIrd Safe Ordinance right?
Of most importance is that bird populations are in steep decline. The net loss of 29% of birds in North America since 1970 sent a shock wave across the scientific community, spilling over to front page news. The lead scientist Ken Rosenberg of the groundbreaking 2019 study which reported that nearly 3 billion breeding birds had vanished in North America in 48 years said this:
“Because birds are highly visible and sensitive indicators of environmental health, we know their loss signals a much wider loss of biodiversity and threats to human health and well-being.”
Despite the alarming findings, the scientists say there is hope, but that requires transformative change. Bird-glass collisions are estimated to kill up to 1 billion birds per year and residences, the 1 and 2 story buildings, are 44% of the problem.
The second reason why it is so important that Berkeley gets this right can be found in Jesse Arreguin’s website as a candidate for State Senate. https://www.jesse.vote/about
“Mayor Jesse Arreguin: One of the Bay Area’s Most Respected Progressive Leaders.
The EAST BAY is one of the most dynamic diverse, progressive regions in the nation. Big movements for social economic, and environmental justice launch here, ripple outwards, and shape our country and world for the better. The future starts here-boldly…[emphasis added]”
Berkeley really is looked upon as a progressive city. The Free Speech Movement started here. The gas ban for new construction, initiated and carried by Councilmember Kate Harrison, really is a model for cities across the country, even though the California Restaurant Association, unhappy with the ban, is the plaintiff in California Restaurant Association v. City of Berkeley. Alice Waters is onboard with the gas ban, and she is going all electric in the Chez Panisse remodel.
What Berkeley does with the BIrd Safe Ordinance will ripple outwards. What kind of ripple depends on whether this mayor and the council he heads follow the best science by voting for the BIrd Safe Ordinance draft passed unanimously by the Berkeley Planning Commission on March 1, 2023 or instead vote to dismantle it.
Buildings are with us for decades, 40 to 100 years or more. The BIrd Safe Ordinance as passed by the Planning Commission saves birds each and every year that buildings complying with the ordinance stand.
The third reason passing the BIrd Safe Ordinance is so critically important is to get local suppliers onboard so that bird-friendly, bird-safe products are readily available. That is precisely why there is a phase-in for smaller projects and replacement products.
Having the firm phase-in implementation dates for smaller projects opens the door to getting the attention of local suppliers. Right now there is no incentive to change or even listen. This ordinance as drafted by the Planning Commission will change that.
Of course, some products are already bird-friendly. I did not know when I bought the double hung windows for my kitchen which open at the top and the bottom with full insect screens that I was buying a bird friendly product. I wish I had done the same several years later when I had to replace three south facing windows. I ordered the windows that only open at the bottom so they came with a half screen. That is where I found the little songbird that died from a bird-glass collision. Now those windows have Solyx film on top.
Change is difficult. Doing things the way we always have is familiar and comfortable even when it is wrong.
The ordinance proposed by Berkeley city staff in the Planning Department removed the language recommended by the Planning Commission and the Audubon Society for patterned glazing, saying it was too technical.
Are Berkeley’s planning staff such dunces that they are incapable of learning? New regulations are passed all the time. State building codes are updated every three years with emergency supplements in between. City staff learn new regulations, conditions, technical standards all the time, or at least let’s hope so.
The BIrd Safe Ordinance as passed by the Planning Commission on March 1, 2023 didn’t start out as what it became: “…Among the most effective bird-safe building ordinances in the country if approved in its current form by the City Council.” In the opinion of Glenn Phillips, Executive Director, Golden Gate Audubon Society.
Philips’ comment really encapsulates the importance of voting for the BIrd Safe Ordinance as passed by the Planning Commission.
It is unfortunate that City Council will look to City Planning Department Staff for answers when the experts will be in the audience.
The Planning Department Staff has been justifying their recommendations by referring to the initial ordinance proposed by the Community Environmental Advisory Commission (CEAC) and to neighboring cities with NOT recommended BIrd Safe Ordinances. Ordinances passed for Alameda, Oakland, Palo Alto, Richmond, San Francisco, Santa Cruz and San Jose were listed by the American Bird Conservancy as NOT recommended. The Emeryville Ordinance has serious flaws as noted by the American Bird Conservancy as it applies bird friendly features only to glass of 12 square feet of contiguous glass or greater. https://abcbirds.org/glass-collisions/existing-ordinances/ Staff keep referring to 12 square feet of glass as the starting point, when this is the glaring flaw cited by the American Bird Conservancy regarding Emeryville and other ordinances.
Berkeley was without even a whiff of a BIrd Safe Ordinance until 2018, when Jamie Cooney, a city hazardous waste intern, found two birds in front of her Berkeley downtown office that had died from a bird-glass collision. Cooney reached out to CEAC and the Audubon Society for action.
CEAC Commissioners and members of the Audubon Society looked to neighboring cities as models and made their recommendations to City Council in 2019 before the release of the September 19, 2019 study report by Rosenberg, et al. “Decline of the North American avifauna” was published in the journal Science and before the American Bird Conservancy (ABC) published the 2020 model ordinance.
The research by eleven scientists in the United States and Canada reporting widespread cumulative loss of billions of breeding birds across much of North states, “[T}his loss of bird abundance signals an urgent need to address threats to avert future avifaunal collapse and associated loss of ecosystem integrity, function and services.” https://www.science.org/doi/10.1126/science.aaw1313?siteid=sci&keytype=ref&ijkey=dcWYzH9MGv13I
The ABC model ordinance is based on the 100/100/100 framework, 100% of all glass and other building materials as bird friendly, 100% of the building, and from the ground to 100 feet. It requires all hazardous features to be bird friendly, such as, but not limited to, free-standing glass walls, noise and wind barriers, walkways, skyways, balconies, greenhouses and rooftop appurtenances no matter where they are found. https://abcbirds.org/glass-collisions/
Glenn Philips with New York City developed the NYC BIrd Safe Ordinance, one of only three recommended ordinances in the U.S. and Canada. In 2021 Philips moved to the Bay Area as Executive Director of the Golden Gate Audubon Society. His expertise and guidance have been instrumental. The Berkeley BIrd Safe Ordinance passed by the Berkeley Planning Commission picks up where New York City left off.
Getting anything through the City of Berkeley bureaucracy can end up in a circuitous route. In this case, the BIrd Safe Ordinance started in CEAC and went to the Berkeley City Council, which passed it on to the Planning Commission on November 12, 2019. From there the Planning Department city staff, who determine the priority of what will be addressed by the Planning Commission, placed the BIrd Safe Ordinance in the bottom of the Commission Workplan (priority list).
The Berkeley BIrd Safe Ordinance might never have even seen the light of day had not Erin Diehm and I picked up the mantle and started showing up at City meetings. We spoke to bird-safe glass in projects before the Design Review Committee (DRC) at every meeting for months, actually years, and requested action on the BIrd Safe Ordinance at the Planning Commission and several times at City Council.
DRC Vice-Chair Charles Kahn requested that DRC Staff advise project applicants that the DRC would be reviewing design information on native and wild-life-supporting plants and bird-safety. This elicited a DRC meeting discussion on November 18, 2021.
On March 2, 2022 the BIrd Safe Ordinance finally debuted at the Planning Commission, initiating comment and direction. The Commissioners asked staff to bring back an ordinance based on science and to encompass the entire city.
By 2022, research by Scott R. Loss, Tom Will, Sara S. Loss and Peter P. Marra identifying residences (1 & 2 story houses) as responsible for 44% of bird-glass collisions deaths had been available since January 2, 2014. The September 19, 2019 research publication on the alarming decline in bird populations was widely available, and the American Bird Conservancy model ordinance with the 100/100/100 framework was posted, and yet the Planning Department staff was still looking toward problematic Oakland, Alameda and Emeryville ordinances..
The Planning Department Staff met with DRC on Sept 15, 2022 and came back to the Planning Commission for further discussion on October 19, 2022, 7 ½ months after the first meeting.
In the second meeting Planning Department City Staff brought a draft that still clung to the CEAC proposal recommendation requiring bird-friendly materials only for glass 8 feet square and treatments that are ineffective. This was when the Commission appointed Alfred Twu and Christina Oatfield to pick up the ball and come back with recommendations.
Another problem crept in at that October 19 meeting. The meeting’s Berkeley city staff report had 2 feet instead of 2 inches describing the distance between patterns on glass. Birds can fly through amazingly small spaces making a 2-foot spread between patterns on glass to be so ineffective there might as well be nothing at all.
Birds do not see glass as an obstacle and try to fly through it, or they may see the reflection of the sky and foliage and fly into it. The patterns on the outside of the window show the glass, transparent material as an obstacle. Curtains, drapes, features on the inside of a building do nothing to stop the reflection on the outside. To protect hummingbirds and small birds the patterns on glass need to be at a distance of no greater than 2 inches by 2 inches.
The 2-foot error has stayed in city staff reports and is repeated over and over.
When the Planning Department came back to the Planning Commission for the 3rd time on March 1, 2023 for the BIrd Safe Ordinance Hearing, after public comment ended and Commission discussion began, the first words from Commissioner Christina Oatfield were that the city staff proposal before the Commission was “not what the subcommittee recommended.”
The Planning Commission voted for the alternative ordinance from the Golden Gate Audubon Society which follows the 100/100/100 framework with the following changes; the threshold for exemption of affordable housing projects was lowered from 75% affordable to greater than 50% affordable and the date to require complying with the ordinance from January 1, 2028 was changed to January 1, 2025.
On the recommendation of Alfred Twu and his convincing reasoning, everywhere there was an exemption for buildings with less than 50% transparent material on all facades, that exemption threshold was lowered to less than 30%, with an implementation date of 2025 or 2028 depending on the size of the building (10,000 square feet and larger or under 10,00 square feet) and whether the building is new or existing.
The BIrd Safe Ordinance only applies when a building permit is required. That means that a broken window needing replacement does not fall under the ordinance. And no property owner is required to replace existing windows though learning about the staggering decline of bird populations will hopefully spur implementing one of the many inexpensive methods of treating existing windows especially on the one and two story residences that are responsible for 44% of bird-glass collision mortality.
Cost is always brought up and followed with the panicked “it will stop housing.” Less glass in the design not only saves costs in construction, these buildings require less energy to operate and less cost to maintain through the lifetime of the building.
The cost of using bird-safe materials in the total cost of a new building can add anywhere from 0.03% (Portland cost study of a health center) to 1% to 2% of a building with full glass façades like 747-787 Bancroft Way. The 1%-2% is according to devlopers’ facilitator Mark Rhoades. Rhoades responded to my request on cost and said that neither he nor his clients will oppose the ordinance. Charles Khan, AIA, LEED AP said at the April DRC meeting he supports the BIrd Safe Ordinance 100%.
Seeing a version of the BIrd Safe Ordinance that was different from the BIrd Safe Ordinance passed by the Planning Commission at a presentation for the Berkeley Design Associates in April with 2’ and “2 feet” errors in It was a surprise. After I spoke to the error, one person commented that “2 feet” could not be excused as a simple typo like 2’ for 2”.
Erin Diehm and I spoke to voting for the BIrd Safe Ordinance passed by the Planning Commission at the Agenda Committee on May 22. What we heard back was the very clear statement from Councilmember Wengraf , “I just want to point out to the public that this committee has not yet seen the ordinance; it's on our agenda for June sixth. And so we will be getting that ordinance in our council agenda packet. But at this time we haven't yet seen it. Those are my comments.”
Diehm and I are thoroughly familiar with the BIrd Safe Ordinance passed by the Commission, but we too had no idea what would be in the report for City Council. By Thursday, May 25, just before 5 p. the June 6 City Council Agenda was posted.
It is concerning and disappointing to see the error pointed out at the April Berkeley Design Associates, stay in the documents being shared by Planning Department Staff and now in the City Council packet with “2 feet” on page 6 and 2’ instead of 2” in multiple places in the 50-page report plus the removal of language defining glazing treatments.
Justin Horner, Associate Planner the author of the reports from October 19, 2022 on responded to my May 25, 2023 email noting the errors in the City Council agenda packet report. Horner wrote, “Thank you, Kelly, for your close reading and identifying those typos. They are, indeed, merely typos, and, importantly, the ordinance itself includes the correct measurement (2 inches). We will make sure that the Council knows that 2 inches is what is intended, which I hope, from context, is already pretty clear.”
As of Sunday, May 28, no correction notice is included with the report, just know that wherever you see 2 feet or 2’ it is supposed to be 2 inches.
It might have been corrected in the final report before being posted in the Agenda Packet had the report been included for review with the draft agenda on Monday, May 22 at the Agenda Committee. But this is not the way the City of Berkeley works.
Anything in the City Council draft agenda initiated by the City Manager or Directors and City staff reporting up the chain lists just the general description and none of the reports. If the City Manager, Directors and staff had to turn in their reports, documentation like the Mayor, Councilmembers and Commissions, we would not have a document that states “2 feet” on page 6 instead of 2 inches and 2’ instead of 2” on multiple pages. At least let’s hope so.
All this leaves a bigger question. Why is it that the Mayor and Agenda Committee Members Hahn and Wengraf and alternate Bartlett accept a draft agenda with items from the City Manager without reports?
It is difficult not to read more into this looking over the hurdles, twists and turns since this started in 2018. It was a blow to City staff for the Planning Commission to reject their recommended ordinance. They keep dancing back to it by calling up flawed ordinances and flawed arguments. DRC never brought up design concerns and bird-safe features and low-e glass (energy efficient) are perfectly compatible.
Please go back to the tool kit and take action. Email council@cityofberkeley.info, respond to Berkeley Considers and show up June 6, in person if you can on Zoom if you must.
Birds Are Real at least for now.
