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The City Council adoption Tuesday around midnight of an ordinance that would add open-space and parking regulations in all commercial-area development, a preemptive strike against possible fallout from the passage of Proposition 98, was a disappointment to some West Berkeley residents who hoped to see the passage of a competing ordinance—one that would have limited building heights along San Pablo Avenue. 

While the adoption of a competing ordinance would have meant the possibility of limiting heights to three stories (plus a bonus story) along San Pablo Avenue, the approved staff-written ordinance keeps heights along San Pablo as they are now zoned, allowing four stories plus one bonus story according to Planning Commissioner Gene Poschman. Poschman noted that in other commercial areas, heights are already restricted to three stories plus one bonus story. 

Adoption of the staff version of the ordinance is a loss for the community, Housing Advisory Commission Chair Jesse Arreguin told the Planet Wednesday. “It really was a battle over the livability of West Berkeley,” Arreguin said, referring to the height issue. 

Prop. 98 will appear on the June 3 ballot. Initiated by the Howard Jarvis Taxpayers Association, it is described as preventing government from using the power of eminent domain to take private property in many instances and as prohibiting other government actions that could reduce the value of property to its owners. Critics say the proposition is vague, as many of its tenets will face interpretation by the courts.  

If voters approve Prop. 98, it will likely to become more difficult or impossible to change zoning regulations. That is why the density bonus issue came to council on Tuesday rather than in the fall, as the Planning Commission had projected. 

In an 8-1 vote, with Councilmember Betty Olds voting in opposition, the council approved an ordinance, written by Planning Department staff, intended to regulate projects that are built under California’s density bonus law, a law that allows developers to increase the size of their project in return for a public benefit, such as including affordable housing units in a project. 

If Prop. 98 passes, the courts may interpret the law to say that limitations placed on developers, including the regulation of zoning, constitute a “taking” of private property. The council passed the staff-drafted ordinance—and will have a special meeting May 1 for its second reading—in order to have new development rules in place before the possible adoption of the proposition. 

A competing ordinance, written almost two years ago by a subcommittee made up of members of the Planning, Housing and Zoning commissions, was defeated 2-1-6, with Councilmembers Dona Spring and Kriss Worthingon voting in favor of the measure. They said the staff-written ordinance does not go far enough in protecting neighborhoods adjacent to commercial corridors. Mayor Tom Bates opposed the joint-subcommittee ordinance. Others abstained. The proposal failed since it did not win the necessary five votes. 

Arguing for the joint subcommittee ordinance, Councilmember Dona Spring said, “This gives us more flexibility; it gives us more options.” 

If Prop. 98 fails, the ordinance will sunset and the Planning Commission will present a new draft ordinance to the council in the fall. 

“This matter needs a lot more discussion,” commented Councilmember Linda Maio. 

Precisely how Prop. 98, if it passes, will affect developers using the state’s density bonus laws and the city’s ability to regulate zoning will likely become clear only after the courts have ruled on specific cases. Opponents have fielded a much simpler measure, Proposition 99, which supporters say limits the use of eminent domain against single family homes but does little else. 

The subcommittee ordinance would have allowed only three stories, which could be exceeded with a use permit.  

“I think the staff recommendation will result in big boxes,” West Berkeley resident Toni Mester told the council, calling for support of the committee’s recommendation.  

Speaking for Wareham Development, a large landowner/developer in Emeryville and West Berkeley, some of whose undeveloped property fronts on San Pablo Avenue, Chris Barlow faulted the subcommittee’s ordinance for the increased need of use permits and for “uncertainty.”  

He also said he disliked the regulations in the staff ordinance, but called them the “lesser of two evils.” Developer Ali Kashani of Memar Properties, which is proposing a large development at the corner of Ashby and San Pablo, called on the council to approve neither option, as did Erin Rhoades, chair of Liveable Berkeley and the wife of Kashani’s partner Mark Rhoades, until recently the city of Berkeley’s Director of Current Planning. 

Requirements in the approved ordinance that will impact all the commercial corridor development include: 

• transition setbacks—a minimum of 10 feet where a development on a commercial corridor abuts a residential district; 

• setbacks on upper stories—first and second stories will be 10 feet from an abutting residence, the second and third floors would be set back a minimum of 15 feet and the fourth story set back 30 feet from an abutting residence; 

• open space—75 percent of the required open space can be on the roof; 

• parking—10 percent of the required parking spaces must be at grade. (This amended the original staff version that said 25 percent must be at grade.)