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Zoning Board Approves Trader Joe’s Building, Project Foes Planning Lawsuit

By Richard Brenneman
Tuesday December 19, 2006

Rejecting the pleas of angry neighbors and threats of a lawsuit, the Zoning Adjustments Board (ZAB) voted 5-3 early Friday to approve the “Trader Joe’s Building.” 

Though the name’s not official, it has become a convenient handle for a five-story project that will include 148 apartments, a popular grocery store and a second commercial tenant. 

Neighbors fear it will overshadow their nearby homes, render already scarce parking almost non-existent and lead to more congestion at the heavily trafficked intersection of University Avenue and Martin Luther King Jr. Way. They have already retained a lawyer, Stuart Flashman of Oakland, to prepare a legal challenge. 

The 139,040-square-foot project includes 148 apartments, mostly one bedroom and studio units, 14,390 square feet of retail space, 109 tenant and 48 commercial parking spaces and two truck-loading spaces, one of them on University Avenue.  

“Like many people in this room, I have lived with this project for four years and through many hearings,” said ZAB member Bob Allen as he moved approval. “To me, this is far superior to the original proposal... I think it is a real amenity for the city. It’s terrific for the city and terrific for the street front.” 

“We have addressed all your concerns,” said Chris Hudson, project developer with partner Evan McDonald. “The project provides ample benefits with significant negative impacts.” 

But Steve Wollmer, a leading critic of the project, charged that developers Chris Hudson and Evan McDonald had deceived the city—“They lied and they knew it”—and demanded a 63 percent density bonus above the local zoning standard “for bringing Trader Joe’s to Berkeley.” 

And it was the trendy grocer that won the endorsement of the Downtown Berkeley Association, represent by its president, Mark McLeod. “The DBA has consistently supported the project because Trader Joe’s will be a major contributor to the economic development of the downtown,” he said. 

ZAB member Rick Judd asked the developers if in fact they had a real commitment from the grocer. 

“I have an executed lease with Trader Joe’s that is 100 percent binding provided we can deliver” the space on time and at the agreed cost, said Hudson. The lease was “for more than 10 years,” with an option extending the total period to “more than 20 years.” 

Hudson declined to elaborate on the terms beyond saying the store would pull out if they couldn’t get the parking spaces specified in the permit application. 

The final vote came at the end of a marathon session that began more than six hours earlier. 


Foes abound 

While project supporters sent in more than 500 letters urging approval, it was project foes who packed the ZAB meeting. 

Only one other supporter spoke to the board. UC Berkeley student Erik Panzer, who lives a block to the east, said “the objections now are all philosophical” since traffic and noise “have been shown to have minimal impacts.” 

Another project critic is Dean Metzger, who had just been removed from ZAB by Councilmember Gordon Wozniak and replaced by University of California executive and project supporter Michael Alvarez-Cohen. 

“Trader Joe’s has become the emotional vehicle for approval by you,” Metzger told his former colleagues. “You’ve got to get rid of the Trader Joe’s emotion and look at the facts.”  

“I believe they (the developers) are getting incredible benefits from the planning department when in fact this is student housing,” said Kristin Leimkuhler. “I wonder if you would be evaluating the project in the same way if it was a BevMo or a Pottery Barn instead of Trader Joe’s.” BevMo is a corporate trademark of Beverages & More, a discount liquor retailer. 

The maximum project allowed by city zoning ordinances would be 111 units, he said, and neighbors would accept a project with 130 units. 

“Have you carefully considered what you are giving up for a German-owned, non-union” store, said Regan Richardson. “There has been crude manipulation of the worst sort designed to circumvent [city zoning laws. Should Hudson McDonald be allowed to run roughshod over state laws?” 

“The developer is offering a very popular grocery store to wash it down with—a very popular grocery store with not enough parking,” said neighbor Gloria Artese. 

“Also, granting the developer 25 more (housing) units than required by law is opening a huge loophole,” said neighbor Rob Browning, spouse of City Councilmember Linda Maio. The project also calls for a major alteration of streets and a loss of parking, he said 

Parking spaces will be eliminated on both sides of Berkeley Way adjacent to the project to create an additional turn lane, all on-street spaces on the west side of MLK between Berkeley Way and University Avenue will be permanently removed, and parking will be banned in spaces on the east side of MLK between University and Hearst avenues between 3 and 7 p.m. daily except Sunday. 

In addition, a new traffic light is to be added at Berkeley Way and MLK and linked to the light at MLK and University Avenue. 

“It would be a very bad precedent to allow anything to trump local zoning,” said neighbor Tom Hunt. “You shouldn’t give anything away unless it is absolutely required.” 

“I believe this board has been manipulated and held hostage to approve this project,” said Hillary Goldman, who described the project as “a monkey on the city’s back that’s so complicated no one actually knows what kind of monkey it is.” 

Stuart Flashman, a lawyer hired by project foes Neighbors for a Livable Berkeley Way, called parts of the developer’s proposal “a masterpiece of obfuscation and double-talk,” and the neighbors have raised the threat of a lawsuit. 

“We’ll bear that risk,” said Hudson. “We’ll hire the attorneys for the lawsuit that’s promised by Mr. Wollmer. We’re comfortable.” 


Board musings 

One concern of ZAB members who voted against the project was the amount and size of affordable housing promised by the developers in return for the density bonus that allowed them to submit a project larger than would be otherwise permitted. 

The plans approved Thursday require the developer to provide 22 units at rentals affordable to individuals and families earning less that the area’s median income (AMI). The total includes 15 one-bedroom and seven two-bedroom units. 

Of the total, 11 apartments will be priced at rates affordable to those earning 50 percent or less of the AMI, with the rest affordable at 80 percent of AMI. 

“I don’t feel that distribution would meet the needs of families,” said board member Jesse Arreguin. “In June you had suggested that 100 percent would be at” the 50 percent rate, a figure he said was reasonable “given that you’re asking for a significant density bonus.” 

“We are meeting the city and state requirements,” Hudson said. “The 80 percent units are the ones that are affordable to teachers and others who couldn’t qualify for the 50 percent requirement.” 

When Arreguin repeated his request to up the number of the lowest price units, Hudson responded that he and his partner are the city’s largest affordable housing builders in Berkeley, with more than 100 units already built. “We haven’t tried to pull the wool over your eyes,” he said. 

Arreguin said he wanted more affordable two-bedroom units, and proposed that half the density bonus apartments be two-bedroom units at the 50 percent AMI rate and the other half one-bedroom units at 80 percent. 

“I wonder if we’re kidding ourselves,” said Alvarez-Cohen, who said the apartments weren’t amenable to families and would wind up going to grad students and others.  

After more discussion, Arreguin amended his amendment to read that all of the bonus units should be rented at 50 percent. 

Dave Blake suggested splitting the units equally between one- and two-bedroom units, with half of each at 50 percent and half at 80 percent. 

The motion failed 5-3, with Arreguin, Blake and Sara Shumer in support. 

The final vote on the project followed the same split. Voting with the majority was former school board member Terry Doran, who was filling in for Raudel Wilson.