Issue 24, Fall 2018

The Return of 1155-1173 Hearst Avenue

In 2017, the neighborhood derailed construction of a proposed condominium project at 1155-1173 Hearst Avenue that would have displaced residents, some of whom have lived there since the 1990s.  The project located between San Pablo and Curtis, on the south side of Hearst Avenue, is regarded as an “infill“ project which exempts it from California Environmental Quality Act (CEQA) provisions.  The applicant, Hearst Avenue Cottages, LLC, represented by Mark Rhoades describes the site as a “Transit Oriented Development (TOD)” because it is one block from “one of the best transit regional corridors in Berkeley” (San Pablo Avenue) and two blocks from “one of Berkeley’s transit served crossroads” (San Pablo/University Avenue intersection).

At that time, the project involved two separate lots, which would be merged into one parcel.  Eleven condominiums would be added to the seven existing units for a total of 18 units, each with one parking space.  Two of the units would be “affordable” which entitled the project to a 35% State Density Bonus and up to three “concessions and incentives.”  The site had a well-documented long history of hydrology issues with consistent flooding of adjacent properties.  As usual, staff recommended approval, but the project did not receive approval from the Zoning Adjustments Board (ZAB) which told the developer to re-consider the proposal.

A new project was presented to ZAB on August 23, 2018.  The applicant’s name is still stated as Hearst Avenue Cottages, LLC, and Mark Rhoades continues to represent that individual or group.  At one point in discussion with ZAB members, Mr. Rhoades stated that “one investor is a Berkeley Realtor,” but said no more.  The California Secretary of State website indicates that the name, Hearst Street Cottages, LLC was registered January 16, 2015 and listed the agent for contact as Mark K. Brown, with offices in Walnut Creek.

Mr. Rhoades described the differences between the former project and this one as follows:  The lots would not be merged.  Seven existing units would be rehabilitated and six new condominium units constructed, for a total of 13 housing units.  Six of the seven existing buildings are in duplexes occupied by renters.  The other existing building is a single-family home that is currently vacant. No density bonus is being sought, all buildings would be two-story, except one would have a “third-story element,” a roof garden.  All existing tenants would remain in place as long as they wanted to stay, and only after they voluntarily left, would the rehabilitation work and conversion to condominium status begin.  Units with four new bedrooms and four new bathrooms would be added to some of the duplexes.  These would be “family units,” rather than mini-dorms.

At the ZAB hearing, no one spoke in favor of the project.  Eighteen people spoke in opposition.  Their concerns centered around two main issues, protections for existing tenants and the existing flooding problems.  Public comment, staff and applicant response and ZAB comments regarding tenant protection issues were:

• Mini-Dorms: Most family homes don’t have a separate bathroom for each bedroom.  Planning Staff responded that the Planning Department does not regulate mini-dorms.  When six unrelated individuals form a “household,” they are required to register as a mini-dorm and follow certain regulations.  Staff explained they didn’t feel “comfortable” challenging this type of unit configuration.  ZAB members spoke of the need for family housing and wanted to change this configuration so that any 4 bedroom unit would have three bathrooms, maximum.
• Current tenants would be “kicked-out: Mark Rhoades repeatedly assured ZAB members that current tenants could remain voluntarily – even if it “took twenty years.”  He did not assure that “Buy-Backs” would not be offered to remaining tenants.  Buy-Back mechanisms are currently being discussed in landlord organizations as a response to current efforts to repeal Costa-Hawkins.  Buy-Backs are sums paid to existing long-term tenants as an incentive to voluntarily leave so that landlords can raise rents to market values and/or convert to condos before Costa-Hawkins is repealed.  Also expressed was concern that continued construction noise, dust and debris that would begin each work-day at 8:00 a.m., along with parking and use of construction equipment and related construction barriers on the property would drive existing tenants out.  ZAB comments indicated they wanted to ensure that tenants that had existing leases that included parking spaces (1 tenant has 4 parking spaces) would continue to have them after construction was finished, even if it meant that there would be no parking spaces for new tenants who will have to find another place to park.  Also, that a tenant could request a temporary move to another location while construction work was going on and that such a request would come under the City’s existing Relocation Office which may entitle that tenant to receive compensation from the developer for the difference between the old rent and the new rent during this temporary period of time.
• Conversion to condos would eventually mean the permanent loss of existing rent-controlled units: Public comment brought this up, but there was no discussion among ZAB members for any additional condition to address this issue.
• Homeowner/Tenant representation in the resultant Homeowners’ Association (HOA): If the project is approved, an HOA would be formed to address questions such as what can and cannot be one on the property, and general maintenance.  Each condo unit would have a vote, but it appears that any and all remaining tenants would be represented by one person, Mr. Rhoades, on behalf of the property owner of their units.  ZAB Members also brought up concerns about the strong opposition of the community toward the project and then determined that they wanted a condition that would require meetings every six months between the community and the developer while construction was going on.

The issues regarding flooding in and around this site was clearly identified as the second primary concern.  Several speakers  produced maps which indicated that a branch of Strawberry Creek flowed through the site and that the creek had been filled in at some time in the past and that this had consistently caused severe flooding and subsidence of land in the area.   Neighbors also reported specific instances when they had suffered flooding in basements and backyards of their properties.   One of the 18 speakers in opposition identified himself as a hydrologist who stated that a focused geotechnical report on the site was called for, and that the study presented by the applicant didn’t address that need.  The concern was expressed not only for the safety of the buildings on the project site but that the proposed drainage system for the new project will worsen past flooding problems for surrounding properties.  City staff and Mr. Rhoades were adamant that the project was “infill” and as such provisions of the California Environmental Quality Act (CEQA) provisions do not apply.

When public testimony and questions ended, ZAB members discussed the decision before them as if it was solely a matter of imposing the right conditions upon the development.  There was no consideration of denial, or reduction in mass.  There was only approval with conditions which included such matters as reconfiguring the four bedroom units, ensuring existing parking for existing tenants, providing existing tenants access to temporary relocation benefits, and meeting with the neighborhood during the time construction was in progress.

ZAB members decided that a geotechnical report would be required, but they did not describe the focus (or that it even should be “focused”) of such a new report. Mark Rhoades had stated earlier that a “blue curb” near the property was acting as a dam, and that removal of that curb would solve the flooding problem.  There was very little discussion regarding this subject, and the technical reports submitted by the developer and the neighbors are not in agreement.  Furthermore, there is no mention of how the City’s aged infrastructure will need to be repaired, modified or replaced to resolve the drainage problems that will come with projected heavy storms resulting from climate change and from sea level rise that is beginning to occur now and that will hamper drainage from the hills surrounding the Bay.

The motion to approve the project was passed as follows:

Voting Yes:

Jackie Zaneri (substituting for Igor Tregub) – appointed by Mayor Arreguin Savlan Hauser (substituting for D. Pinkston) – appointed by Council Member Droste Teresa Clark – appointed by Council Member Maio Leah Simon-Weisberg (substituting for P. Sheahan) – appointed by Council Member Davila Shoshana O’Keefe – appointed by Council Member Hahn Charles Kahn – appointed by Council Member Wengraf Dohee Kim (replacing Brazile Clark who resigned) – appointed by Council Member Worthington Carrie Olson – appointed by Council Member Harrison

Voting to Abstain:

Maria Poblet (substituting for J. Selawsky) – appointed by Council Member Bartlett

It is interesting to note that five of ZAB members voting that evening were substitutes most of whom will likely be filling the position on a one-time basis, or in the case of one appointee, is a new replacement for a member who has just resigned.

The neighborhood has filed an appeal, one of the big reasons being that Mark Rhoades is already maintaining that the condition regarding obtaining a geotechnical report has been fulfilled by the reports that have been previously submitted.

All This at 3000 Shattuck Avenue and Honda Too!

BNC publishes articles in this Section that are written either by a neighborhood representative without editing or is summarized from material which has been submitted to us.  BNC received an email on July 1, 2018 about what happened at the Zoning Adjustments Board (ZAB) meeting of June 28, 2018 regarding the proposed development at 3000 Shattuck Avenue, but before we get into that, let’s start with a little background.

3000 Shattuck Avenue is on the southwest corner, Ashby and Shattuck intersection, 4 blocks from the Ashby BART Station.  This proposed 5-story building, with 23 housing units and ground floor commercial retail, would replace an existing gas station.  The applicant is Michael Cooney of Naples, Florida, represented in this matter by a person well-known to us, Mark Rhoades, who was formerly a highly-placed staff member in Berkeley’s Planning Department and who since that time, has represented many, if not most, of the applicants seeking to develop housing in our city.  According to the application, the proposed housing units would be a “Co-housing Model,” i.e., 18 of the 23 housing units would have private bedrooms but shared living rooms, kitchens and bathrooms.  There would be: six, 3-bedroom units; five, 4- bedroom units; six, five-bedroom units; and one, 6-bedroom unit.  A roof deck and central courtyard was offered as open space.

The project first came to the ZAB on July 27, 2017 and was “Continued, off agenda.”  It was heard again on May 10, 2018, and then again on June 28, 2018 when it was denied on a 7 to 2 vote as follows:

Voting to Deny:	Igor Tregub (appointed by Mayor Arreguin) Patrick Sheahan (appointed by Councilmember Davila) John Selawsky (appointed by Councilmember Bartlett) Shoshana O’Keefe (appointed by Councilmember Hahn) Charles Kahn (appointed by Councilmember Wengraf) Brazile Clark (appointed by Councilmember Worthington) Carrie Olson (appointed by Councilmember Harrison)
Voting Not to Deny:	Teresa Clarke (appointed by Councilmember Maio) Denise Pinkston (appointed by Councilmember Droste)

---

Now Here’s What the Neighborhood Had to Say

Dateline: June 28, 2018

ZAB vote:  7 to 2 to deny use permits for 3000 Shattuck

Tonight, the Zoning Adjustments Board (ZAB) voted 7 to 2 to reject use permits for 3000 Shattuck.  After the vote, Robert Lauriston commented, “Wow. That’s the best outcome I’ve seen for a ZAB hearing on a bad building in the 20 years I’ve been following this stuff… I think that meeting might have been an historic turning point. “

In contrast, a self-described YIMBY (Yes-In-My-Back-Yard) commented, “There is no such thing as a ‘bad’ building. No housing is perfect.  We need it. Let’s build it.” But more on that later.

Although, this is not a victory for affordable housing (or any housing for that matter), it might be a sign that ZAB is starting to do its job, namely looking critically at building proposals, setting sensible standards based on the community needs, and standing up to developers who want to ignore those needs:  build, sell, take profit, walk away and let the community deal with the aftermath.

A mere month ago, ZAB was poised to approve this project.  Tonight, during public discussion, there seemed to be a change in the Board’s reaction and questions.  It is likely that our South Berkeley residents played an important role in this awakening.  For one, Damon Todd was the first to raise the question of how deliveries & pickups were to be handled at 3000 Shattuck without any provision or space for loading zones. After meeting with the developer agent, Mark Rhoades, and taking measurements of the site, we verified that there was indeed only 28 feet of possible space pending approval of traffic engineering (Greg Powell, city planner was quoted” no available space” for a loading zone on Shattuck however).  Tonight, during public comment, Janis Ching delivered a brilliantly vivid picture of scenarios of double parking and gridlock on the two-lane section of Shattuck at Ashby that laid bare a major flaw of the proposal.

More public commentary called for on-site affordable units, criticized the developer for a floor plan redesign that reduced the in-lieu fees to the Affordable Housing Trust Fund (AHTF) by almost half, and questioned the scope and quality of the structure.

After public comment, the Board discussion was revealing.  ZAB members questioned the premises of the living arrangements.  Rhoades said it was affordable by design given the 5 and 6 bedroom units and that each unit was a household (His in-lieu fees were based on that concept).  On the other hand, the proposed property management group, www.common.com described the living arrangements as “co-living” and “private rooms & shared spaces,” which would mandate an entirely different in-lieu fee structure.  The contradiction appeared to be an attempt by Rhoades to avoid in-lieu fees to the City.

In addition, the Board cited more issues:

• There was no thought given to the services needed for the 80+ residences in terms of pickups & deliveries (passengers, mail, packages, or moving vans).  No loading zones were planned or appear to be viable for the two-lane Shattuck.  Even if the owners could recruit renters, there is no legal way the tenants could move in or out without a place to load/unload.
• There is no built-in provision or planning for janitorial services of the hallways & stairways, raising the specter of either very expensive maintenance or no maintenance at all.
• There is no adequate plan for residents to dispose of their trash.  They were expected to carry their trash down the hallway to the elevator (or worse, stairwell), down into and through the public reception area, into the garage to the dumpster.  A method used in the public housing projects of the 1950’s in Chicago, Detroit & San Francisco and look where that ended up.

The Turning Point

The turning point of the meeting was before the 3000 Shattuck discussion.  It was about the Honda Motors dealership at 2777 Shattuck that was approved by ZAB and completed March of this year that has been plagued by problems all during its construction and since it has opened its doors to the public.

Discussion started with a report from the Planning Department (PD) staff.  The PD staff member described the occupant as “essentially in compliance” and that “All issues are substantially resolved.”  The report concluded that “We haven’t had any more complaints [from the neighbors] in over two weeks.”  The subsequent heated commentary from Honda neighbors described a totally different picture citing ongoing noise, traffic violations, and dangerous pedestrian situations, which put in question the credibility of the PD.

The discussion revealed some very disturbing conclusions:  The PD is not doing its job, which is to provide support to the Board in matters that come before it (leaving us to wonder if it is incompetence, laziness, corruption, industry bias, understaffing & overwork or a combination).  In the two projects that came up tonight (Honda Motors & 3000 Shattuck), the PD presented ZAB with a recommendation to “Approve” without any meaningful analysis, direction, caveats or options (!).

The results are simply bad decisions from ZAB.  In the case of Honda, the consequence was an approval of a project that did not have adequate ventilation, garage entrances, outside lighting shading, and other issues that has disrupted the neighbors’ lives & Shattuck traffic in major ways. And when the staff response was “all problems are solved”, the Board reaction was severe.

Lauriston commented afterward, “I’ve lost count of how many ZAB meetings I’ve been to and I’ve never before seen them push back so hard on staff as they did about Berkeley Honda, or discuss revoking a permit…”  The reaction from the Board was indeed strong, which perhaps set the stage for the next discussion, namely 3000 Shattuck.

The fact is the PD has had the 3000 Shattuck plans before it on and off for almost 3 years without its noticing or alerting the Board to the problems & inadequacies.  It was Berkeley South residents that brought out the issues  and if the PD had done its job professionally and competently, the countless hours of wasted time spent by ZAB members and members of the community might have been avoided.

In other words, if the PD staff had done its job, we might have had a viable housing solution to 3000 Shattuck today.  Conversely, if we as Berkeley South had not become actively involved we might have had another Honda-like fiasco at 3000 Shattuck, which illustrates the importance of community involvement and input in planning intelligent and sustainable solutions. 

Contrast that to the YIMBY role that cheers “YES!” to everything developers propose.  It is an understandable reaction to the past mantra of “No to anything” with “Yes to everything”, which might feel good now but leads to a whole new set of problems later, as we have seen.  Isn’t it obvious that the YIMBY role actually defeats its stated goal of more housing by enabling the dysfunction of a rubber stamp permitting process to create defective, unsustainable, problematic housing that cannot last on the market?  A more constructive role would be to join us in the critical review of all proposed projects, so that the most intelligent, efficient and affordable result can be attained in a timely fashion.

Where do we go from here? 

It is not enough to defeat a bad building.  As a neighborhood we need to be an advocate for good buildings that are quality, sustainable, affordable, and are an asset to the community.

We need another steering committee meeting to map a plan of action and advocacy for new housing in our community.  The next installment will call for that meeting with a proposed action agenda.

Thank you to all who have contributed to this discussion.

Submitted by: David Warren

Note:  Your responses to this piece will be published through Berkeley South at your request in the interest of public discourse.

Note: Please forward this message to anyone who you think might be interested.  Also, you are receiving this message because either you signed up on a mailing list or you copied our email on your correspondence to City representatives. To unsubscribe, please reply with STOP in the subject line.

---

The above requests are from the Neighborhood.  BNC would also like to hear from you regarding this article.  Please respond at our website: Berkeley Neighborhoods Council by clicking on “Comments” under the “Submissions” button.

Since we’ve been thinking about the upcoming November election, we are reminded of the article that we wrote about in our last eNews, regarding the complaint filed with Berkeley’s Fair Campaign Practices Commission (FCPC) over a violation by the Berkeley Rental Housing Coalition Independent Expenditure Committee.  This committee, sponsored by the Berkeley Property Owners Association, violated Berkeley election laws by sending out a mailer in support of Judy Hunt and Nate Wollman for Rent Board Commissioner six days before the election and not reporting that action as required by both State and local law.

The details are not going to be re-hashed here – you can read about them in Issue 23 – but the FCPC set the fine for this violation at $18,900.84. As of May 2018, about a year and a half after the violation, they were waiting for a hearing date to be set.  So, what happened?

As near as we can tell, the answer is NOTHING even though the Chair of the FCPC has been continually asking that a hearing date be set.   We looked at minutes posted on their website that are posted through July 2018.  Nothing there.  Since minutes for August are not yet posted, we also looked at their August 16 agenda and this issue was not listed.  We’ll keep trying to find out and let you know, but don’t hold your breath on this one.

By the way, Judy Hunt who was supported by this flyer, and who lost the election in November 2018, is running again for Rent Control Commissioner in November 2018.  We didn’t see Nate Wollman on the list of current candidates.  To be fair, we must say that the Committee that printed and distributed this flyer is not controlled by the candidates that appear on the flyer.

---

Once again there is controversy about land use at the Clark Kerr Campus.

Back in the day, (1949), the California Schools for the Deaf and Blind were built there.  In the 1970s they decided to move to a safer location in the city of Fremont because the Berkeley site is in the Alquist Priolo Earthquake Fault Zone.  (They moved, but ironically, they found out later that their new site was also impacted by the same Hayward Fault – but that’s another story for another time.)  The property was added to the National Registry of Historic Places in 1982.

UC Berkeley scooped up the property in 1986 with plans to put student housing on what they were now calling the Clark Kerr Campus, now re-named in honor of Cal’s first Chancellor. It was a huge and highly controversial issue in the City even though the Campus could essentially do whatever they wanted to do.  The Campus in a cooperative mode, and wanting to move forward with their plans, signed agreements (covenants) with surrounding neighbors and a memorandum of understanding with the city of Berkeley.  These agreements provided how the Clark Kerr Campus property would be used, what is allowed and what is restricted.  They are still in effect and will end in the year 2032.

UC Berkeley is now proposing to construct four intercollegiate beach volleyball facilities on the Clark Kerr Campus with a target date of January 2019.  Beside the volleyball courts themselves, there would be a 3,000 square foot club house, permanent seating for 400 spectators, a scoreboard, amplified sound, and a bank of lights 50 to 70 feet tall.  The proposed volleyball court plan makes no provision for parking on site, nor does it consider the impacts of noise and light on surrounding residential neighbors.

Neighbors around the Clark Kerr Campus have long endured the impacts from the very heavy daily traffic generated by the Berkeley campus, including Memorial Stadium.  The Claremont Elmwood Neighborhood Association (CENA), Dwight-Hillside Neighborhood Association and the Panoramic Hill Neighborhood Association studied the proposed volleyball plan and concluded that all things considered, a more appropriate site for such a facility would be at the Edwards Stadium location which already has lights, some nearby parking and is close to public transportation.

The Clark Kerr Campus now houses students, the Krutch Theater, a conference center and child development centers. While there have been repeated breaches of the covenants, the neighborhoods have tried to work with the University throughout the years, sometimes successfully, sometimes not.  There is no certainty there will be any agreement at all in this instance.  Around 800 neighbors hold these covenant agreements which will allow the University to proceed with the project if 51% of them agree.

Not only do we have to keep an eye on this one, but it’s one more issue we will need to watch in the Downtown given the housing, University offices, and commercial space which have been approved, are in the pipeline, or are coming up for approval.  Seems like somebody in the City ought to be producing a new traffic flow chart for the area. Just a few days ago, one of those big projects, the Acheson Commons on University at Shattuck, started construction, and…

---

When, one block from the UC Berkeley Campus, the construction barriers went up on University between Shattuck and Walnut in front of what we have known as the Acheson Commons, we learned its new name, the Modera Acheson.

This new project is really four buildings that stretch from the old one-story MacFarlane candy store, continues east on University toward the UC Campus, incorporating the existing Bachenheimer Building and demolishing the former Krishna Copy, Crepes a-Go-Go, and Ace Hardware buildings, then rounds the corner where two old brown shingle houses were once located.  The facades of these old buildings will be retained. The new buildings will be six-stories tall, and stand at an approved height, not to exceed 75 feet.

The new owner of this property is Mill Creek Residential which is based in Dallas, Texas with some 16 community offices, including one in San Mateo, CA.  According to their website, Mill Creek is a national  company formed in 2011.  It’s stated mission is to “enhance lives by creating great living environments.”

Mill Creek states that all their Modera brand apartments have “the ultimate in flexibility, convenience and service in a premier location, gorgeous design, luxe finishes, spectacular amenities and innovative, make-your-life easier services inspired by the world’s best brands.”  You might be interested to learn that Mill Creek Residential also owns the Walgreen’s site at 2190 Shattuck where their proposed 18-story building has stirred up considerable controversy because of blocking the view of the Bay from Campanile Way.

In August 2018, Mill Creek proudly announced that the new Modera Acheson building will be full of amenities and have “dramatic City and Bay views.”   There will be 205 residential units with 9 ft ceilings, wood plank floors, stainless steel appliances and in-home washers, dryers and storage space.  The residential units will range in size from studios to 3 bedrooms in size, with the average size being 716 square feet.   Some units will have private balconies and patios, and there will be 2 roof gardens with BBQs and fire pits. There will also be a clubhouse, a fitness studio, an “expansive business center” and 14,000 square feet of retail space.  Eighty parking spaces will be available, 20 of which will be reserved for the retail and restaurant spaces that are proposed, and pets will be allowed.  There are no affordable units in the building, as the owner opted to pay $4 million into the City’s Housing Trust Fund.  Construction should be finished by 2020.

The development of this site has been eight years in the process. Acheson Commons first came to the City in 2010 when Chicago-based company, Equity Residential, owned by George Zell, purchased a number of properties in Berkeley.  Mark Rhoades, former city of Berkeley planner represented the owners during the permit process.   Permits were granted in 2012.  That decision was appealed to the Council on the basis of several issues, including parking, height, and loss of rent controlled units. The Council remanded it back to the ZAB, the developer made some changes to the original proposal, another public hearing was held, and on June 13, 2013, ZAB approved the project on a vote of 7 yes, 1 abstention, and 1 absent:

ZAB Commissioners voting “yes” were:	Robert Allen, appointed by Wengraf, District 6 Sachu Constantine, substituting for Stephen Donaldson, appointed by Moore, District 3 Sophie Hahn, appointed by Worthington, District 7 Deborah Matthews, appointed by Mayor Bates Prakash Pinto, appointed by Maio, District 1 Igor Tregub, appointed by Arrequin, District 4 George Williams, appointed by Capitelli, District 5
ZAB Commission abstaining:	Shoshana O’Keefe, appointed by Anderson, District 2
ZAB Commissioner absent:	Michael Cohen, appointed by Wozniak, District 8

When opponents didn’t appeal the decision the ZAB’s decision to the City Council, it was deemed approved in July 2013 with Berkeleyside calling it the “City’s Largest Apartment Building Ever.”

Mill Creek Residential purchased the property and its entitlements in 2016.  It underwent some further design review and that’s the project that we have today.  It is interesting to note that Mill Creek described our City as follows: “Berkeley’s proximity to major institutions, including UC Berkeley has allowed the city to become a cultural and transportation hub to the Bay Area.”

---

BNC was delighted to learn of the most recent actions regarding the proposed project at 1900 Fourth Street (Spenger’s Parking Lot).

The city of Berkeley approved historical landmark status in 2000 as land that was part of a sacred Ohlone Shell Mound.   Real estate developers, Blake Griggs Properties, located in Danville, CA, made an application to construct 260 residential units and 27,500 square feet of commercial space on the site in 2015.  It was to put it mildly, highly controversial, and when the State Legislature recently approved SB35 as a way to fast-track housing proposals, they approached the City to consider their project under that process.  The law gave the City until September 4, 2018 to make a final decision.  On that date, Planning Director Timothy Burroughs wrote a letter to Dana Ellsworth, an owner of the property, denying their SB 35 request.  Director Burroughs wrote:

“As a charter city, Berkeley has a constitutional right to govern itself as to municipal affairs.  Historic landmark preservation is a core municipal affair because designating landmarks often represents irreplaceable parts of the city’s unique history.”

Well said, Mr. Burroughs!    

However, before we get too carried away, the developer can still submit a standard application, so keep tuned.