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A Planning Commission majority agreed Wednesday night not to challenge acting City Attorney Zach Cowan’s contention that key sections of a proposed density bonus ordinance are illegal. 

“The City Attorney has no clothes!” declared a disgruntled but smiling Gene Poschman after he lost a show of hands. 

Poschman earlier had handed out a hefty stack of paperwork that included ordinances from other California cities doing precisely the same things Cowan has declared legally verboten. 

While state law mandates that cities have a density bonus law, the drafting of specific regulations is left up to each local government, and therein lies the nexus of a three-way contest shaping up between the Planning Commission, the Zoning Adjustments Board and the City Attorney’s office. 

The density bonus is designed to create housing for lower-income tenants and buyers by giving developers additional building size to offset their costs for including extra affordable housing in their projects. 

ZAB triggered the fracas after members decided to form a subcommittee to examine problems they encountered with their perceived lack of control over specific development projects. 

The struggle was kicked off by the board’s frustration with the so-called Trader Joe’s project—the five-story building at University Avenue and Martin Luther King Jr. Way—and the city staff’s insistence that developers get a major boost in size for providing parking spaces for their commercial tenant. 

Members said they didn’t have problems with a bonus for creating cheap living space, but they did with one that created parking spaces for grocery stores. 

After ZAB set up a subcommittee, the City Council intervened, adding members from the Housing Advisory and Planning Commissions. 

After two years of deliberations, the combined panel came up with a set of recommendations and an ongoing dispute with the city’s legal and planning staffs. 

Planning Commissioner David Stoloff was the only subcommittee member who opposed the recommendations, which he again dismissed Wednesday night “because it seemed to me to be an effort by the committee to bring the staff under control” the panel felt that staff was “in cahoots” with developers.  

“It’s just a way of reining in staff,” Stoloff said. 

Commission Chair James Samuels formally raised the issue of whether commissioners were willing to “send something to the City Council against the advice of the city attorney.” 

Susan Wengraf, another commissioner who sat on the subcommittee, said she too wanted to get a commission decision on moving forward, given Cowan’s opposition. 

“We should defer in this situation,” said Harry Pollack, who said he wasn’t opposed in principle to acting against legal advice, but not in the case of the density bonus proposals. 

“I do not think so,” said Poschman. 

Jesse Arreguin, filling in for Patti Dacey, agreed with Poschman, while Stoloff said he was opposed to the proposals regardless of what the attorney thought. 

In the end, five Planning Commission members (Samuels, Stoloff, Larry Gurley, Wengraf and Pollack) said they would not oppose the decision of legal counsel, while Poschman, Arreguin and Helen Burke were for forging ahead with the subcommittee proposal. Roia Ferrazares ab-stained. 

Land Use Manager Debra Sanderson said she considered the subcommittee guidelines muddled, and she agreed with Cowan that the proposals would limit the discretion of ZAB members. 

Poschman laughed, noting that five ZAB members—a board majority—felt the proposals would give them more discretion. 

Arreguin, a ZAB member himself, agreed. 

Of the subcommittee’s nine specific recommendations, city staff agreed with three, wanted “minor” changes in two others, major changes in three more and the elimination of the ninth. 

Staff wants to eliminate the proposal’s “two-menu” approach, which allowed for waivers and modifications for projects that requested relatively minor variances from code requirements, while proof of financial justification would be required for projects that required more significant variances and waivers. 

Cowan, who wasn’t present Wednesday night, has provided a written opinion claiming that the two-menu concept violates state law by restricting ZAB discretion. 

With the Planning Commission majority typically including the five members who said they wanted to defer to the staff’s advice, the subcommittee proposals face a tough road ahead as the commission considers them further in meetings to come. 

Tour of West Berkeley 

Commissioners reelected Chair James Samuels and Vice Chair Larry Gurley to second one-year terms. The vote for Gurley was unanimous, but Samuels was opposed by Burke, with Arreguin and Poschman abstaining.  

Members have two formal meetings in the next five days. The first comes starting at 8:30 Saturday morning, when members will tour West Berkeley sites picked as examples for the “increased flexibility” the City Council wants written into zoning codes for the area. 

More than 100 members of the public signed up for the tour. 

The proposals have raised concerns that changes would ease the way for major developers but might make it harder for smaller artisans and industrial companies by forcing up land costs and spurring landlords to sell and seek changes of use.