The City of Santa Monica is smaller than Berkeley by 22,000 but it has a bigger and better idea for planning growth than Berkeley’s flawed Measure T, and theirs has already paid off in jobs, green buildings, infrastructure improvements, open space, and other community benefits.
Santa Monica uses the development agreement (DA) for all buildings over 32 feet, negotiated under LUCE, their land use and circulation element that was generated after six years of extensive community engagement and adopted in 2010.
Since then, the number of development agreements negotiated by Santa Monica continues to grow, with 2 projects under construction and 6 more approved and waiting to be built. Prior to LUCE, 12 DA projects were completed between 1981 and 2007.
The benefits that such projects will bring Santa Monica include neighborhood conservation, integrated land use and transportation, affordable housing, greenhouse gas and congestion reduction, historic preservation, daycare, and cultural facilities.
Compare this community generated and award winning plan with Berkeley’s Measure T, a revision of the master use permit section of the zoning ordinance allowing heights of 75 feet on large sites in the manufacturing zones of West Berkeley. Any such site would qualify for a development agreement under existing code, so up-zoning the MUP ordinance is redundant.
The reasons why
It’s a mystery why planning staff chose to handle large developments by revising the MUPs when the existing development agreement code is a far superior tool that can be precisely tailored to the site and the needs of the developer.
Some speculate that the pre-approved allowances were devised with the needs of LBNL in mind, to lure the Labs to Berkeley, and planners continued to push the MUPs even after the Labs chose Richmond for the second campus in January of this year. According to information elicited through the Pubic Records Act, land owners, their agents and developers met in 2010 with City planners about the LBNL site submissions. City planners have more power to control the permit process under the MUPs than with development agreements by minimizing input from the community, which they obviously see as interference. In June 2011, staff asked Council to make land use appeals more difficult by increasing the cost and restricting the number of appellants.
The MUP applications will go through a discretionary process similar to other use permits, involving discussions with staff, a recommendation to the Zoning Adjustments Board, and ZAB action. For some considerations, ZAB is instructed by the MUP mitigations to find detriment if certain conditions apply, but these determinations are subjective.
Public input will be limited to short testimony at ZAB or expensive appeals. Any negotiation will happen behind closed doors until the project reaches the ZAB. No permit applicant has allowances “by right” under a MUP or other zoning because ZAB can find detriment, but only a development agreement insures public input and requires a citizens advisory board to represent the interests of the community in negotiations.
Measure T will not produce jobs or benefits until projects are approved, and nobody knows when that will happen. The eligible properties could change hands many times over before a use permit application for a project is submitted, while developers snatch up other low-cost property to qualify for a MUP. The City has a financial interest in promoting land speculation and consolidation because increased prices add to the municipal treasury through the property transfer tax, 1.5% of the sale price.
MUP v. DA
The main difference between a DA and a MUP is that a developer with a project is party to the DA, while the MUP affects land owners, who may or may not be developers. The increased building allowances raise the value of the land and promote speculation, not jobs and benefits.
Some of the nine targeted MUP sites are not owned by developers. The relentless public relations campaign for the “Peerless Greens” project invents mythological expectations about a self-sufficient artists’ colony. But the owner, Doug Herst, is not a developer. He is trying to get a portion of his land, currently zoned for manufacturing, spot-zoned to allow for housing, which would increase its value. Herst will then sell the land to a developer, and nobody knows at this point what the use application will look like after market analyses, revenue projections, density bonus calculations, and soil contamination reports are completed.
The Jones family, the property owners of the former American Soils lot, the Plexxikon site and other buildings are not developers. They will also sell their eight acre parcel adjacent to Aquatic Park. It’s a complicated property to zone because of its uneven elevations.
The fate of other eligible properties including the historic H.J. Heinz building, a City landmark, can not be determined. Designating the Heinz building as a potential MUP puts the landmark at risk because the increased allowances create an incentive to demolish the existing buildings and replace them with condos. The EIR lists demolition of cultural resources as a significant and unavoidable impact.
All these problems could be solved if these large land holdings were developed through site specific agreements rather than the “one size fits all” MUP standards.
When we negotiated the Bayer DA in 1991, job creation was assured. The company employed less than half its current work force of over 1200, but they were in production and had plans for expansion. A large international corporation, Bayer could afford the many benefits that we proposed. As a Council appointed citizen advisor, I pushed for a biotechnology education program and got it, now called Biotech Partners.
Besides job training, we got child care, affordable housing, public infrastructure, a transportation demand management (TDM) program, and a million bucks for the West Berkeley Foundation to spread around the community over ten years, which was District 2 Councilmember Margaret Breland’s idea. In exchange for all this, Bayer got development standards designed to their expansion needs.
Some Council and community members seem to think that Measure T is going produce the same results. It’s not. Measure T will not create a single new job because it’s only zoning, not a project oriented development agreement.
At the benefits workshops held in September by the planning commission, staff estimated the total monetary amount available for community benefits that would derive from six MUP based projects over ten years to be a paltry $5 to $15 million total, based on a formula calculating a percentage of the value of the increased allowances.
That amount would not come close to meeting Berkeley’s needs for affordable housing, one of the “benefits buckets” that were discussed, and would be but a drop in the big bucket of Aquatic Park, which is sorely in need of expensive engineering improvements including new plumbing and a sound wall barrier.
At a subsidy of $300,000 per unit of affordable housing, $5 million in benefits would fund only 16 new units. The price of a new Potter Creek storm drain that would divert polluted water from the lagoons and stop the flooding in southwest Berkeley is $20 million according to the Watershed Management Plan.
The estimated benefits return from the MUPs is not sufficient to fund the needs and expectations of the community; nor is it adequate to compensate nearby residents and businesses for the negative impacts of large developments, especially traffic. It’s not clear whether the traffic demand management (TDM) strategies that are suggested for the MUPs will be counted as benefits or mitigations.
In contrast, under the DA, Bayer has paid over $20 million, adjusted for inflation, in community benefits, above and beyond required fees, taxes, and mitigations. In 2010 they spent over $650,000 for TDMs including ride sharing, mass transit subsidies, and alternative transportation.
The process and its discontents
The benefits package and protections for Aquatic Park had not yet been decided by July, when the Council majority rushed to put the unfinished MUP ordinance on the ballot to preclude a referendum, which could have given the impacted neighborhoods some leverage in crafting a compromise or substituting development agreements. The Council wants voter approval because passing Measure T would strengthen the City’s legal position in a pending CEQA lawsuit.
Measure T asks wealthier, less dense neighborhoods to impose intensive development on West Berkeley that they would not choose for themselves. As expressed at a recent forum, it is “an invitation to bully” poor neighborhoods or in other words, a proposition asking the greater community to sacrifice the weaker for the benefit of the stronger.
When the Bayer development agreement was approved early in 1992, there was some talk of a referendum among the die-hards, but it never got off the ground. Bayer had threatened a plant closure; the union was on edge; and in the end, Berkeley was amply rewarded.
The worst effect of the Bayer expansion was that it increased the volume and speed of traffic on Dwight Way, a narrow residential street that is now considered an arterial east of Sixth Street. The neighbors complain, although improvements like bulb-outs, a heavy truck prohibition, and additional cross-walks have made the street safer, thanks to efforts by neighborhood activists.
If the MUP zoning actually results in projects the size of the increased allowances, rush hour traffic will increase, not only on Dwight Way but on every other West Berkeley arterial and intersection studied in the exhaustive traffic report by Wilson Smith for the EIR. It’s doubtful that many people have actually read this volume, but as one who has, I find it appalling that anyone could advocate such a plan in light of the CEQA findings. 23 of the significant and unavoidable impacts are traffic related, including dangerous back-ups at the freeway interchanges of Ashby, University, and Gilman.
These are the escape routes in case of a disaster such as a quick spreading fire following an earthquake. Even at current traffic levels, flatland residents will be in danger trying to escape the flames with the water front as their destination. Unless all traffic is stopped on I-80 so that people can cross the highway, they will be massed on the overpasses and the pedestrian bridge.
Consider the crush on the Brooklyn Bridge after 9-11, the residents who ran downhill from our October 1991 firestorm or the people of New Orleans stranded on a highway overpass during the Hurricane Katrina flood of 2005. We should be thinking of disaster planning, like storing supplies at the waterfront so that a tent city could be quickly erected at Chavez Park.
Disaster planning and other concerns have not been discussed because the community was largely shut out of the MUP process. It’s not only the size of the anticipated developments and their impacts that have generated so much discontent in West Berkeley, but the municipal imperialism that has treated the residents like colonials without the right of self-determination. Most neighbors and business owners were not notified of the plan, but the City did not hold a single public meeting in West Berkeley to hear from residents.
In August 2009, a group of MUR residents organized a meeting at a hall on 6th Street and invited Darryl Moore, his planning commission appointee Teresa Clarke, and Rick Auerbach from WEBAIC to address concerned neighbors. Planner Alex Amoroso attended, mostly as an observer. About 80 people crowded into the room. The organizers believed that when Moore heard their concerns, he would change his support for the project, but that was not to be.
Instead insults flew in all directions, some shouted “recall”, and instead of mutual understanding and involvement, feelings hardened. Residents were not drawn into the planning process but dropped out. A few of us persisted, attending planning commission meetings at the North Berkeley Senior Center, where we were allowed to speak for one, two or three minutes, and even fewer submitted comments to the draft EIR.
In short, the City made residents of the target neighborhoods into the enemy by excluding them from the process. When the City Council finally held public hearings in May, they turned out in force to voice their disapproval, and newly hired planning director Eric Angstadt scrambled to revise the standards and mitigations program in response to their criticisms. But time ran out, because the Council majority was more interested in blocking a referendum than in allowing the planning process to run its natural course.
Two other factors have influenced this outcome. One is the discontinuity in planning leadership. Former planning director Dan Marks resigned in July 2011, leaving his deputies in charge of the MUP process while the City searched for a replacement. The reason for Marks’ departure is a mystery. Some attribute it to a lawsuit brought by a disgruntled planning department employee who named Marks as a respondent, while others say that Marks was forced out. Perhaps personal concerns took priority.
Angstadt started his job on May 1, coinciding with the first City Council public hearing on the MUPs, and seems to be on the right track. He showed up to direct the community benefits workshops himself and involved the audience in face to face discussions. Unfortunately, since the Council politicized the planning process by putting the MUP ordinance on the ballot, Angstadt is not commenting until after the election, and he is right. It is not professional for a planning director to get involved in a political debate; nor is it proper for politicians to turn a delicate planning effort and complicated zoning ordinance into an elections issue.
Another factor influencing the project is the demographic shift in the population of the affected community. West Berkeley is a diverse working class neighborhood with a median income of $45,000. A population of 7200 including 1500 children, not counting the many who attend day care and school in the area, will suffer increased traffic, pollution, shadowing, noise, odors, and other negative impacts as documented in the EIR, which found 33 significant and unavoidable impacts, including 23 potentially dangerous traffic conditions like delays at intersections, railroad crossings, and freeway ramps.
Hispanics are 26% of the West Berkeley population, some recent immigrants without voting rights or sufficient English competency to understand the complexities of this zoning ordinance. Others are simply too busy making a living to involve themselves in civic affairs.
The established African American population had dwindled by 19% city-wide at the last census count, even more so in western tracts where property values are on the rise, increasing the economic pressure on African-American owners to sell their appreciated properties and move elsewhere. The area surrounding San Pablo Park, long a bastion of black home ownership, saw a loss of 594 African Americans, 32% of their 2000 number. The West Berkeley Project will accelerate this trend as demand for single family homes increases, driving prices ever higher.
Under development agreements, programs to prevent foreclosure and provide loans for home repairs could be provided as a benefit, addressing the causes of the black exodus.
And so Berkeley stands at a crossroads. The YES proponents emphasize revenue to the City and the creation of future job and economic opportunities.
The NO coalition fears the worst in traffic and other negative impacts, including loss of Aquatic Park views and bird habitat.
A compromise between those who desire development and those who want to shape it to the needs of the surrounding neighborhoods could be achieved through development agreements. Should moderates, skeptics and environmentalists add their NO vote to the opponents and Measure T fail, the City can fall back on DAs and build on the MUP work to date. Little will be lost, and much can be gained by this strategy.
Voters should pop the “Berkeley bubble” and take a lesson from Santa Monica.
Toni Mester represented the Sierra Club on the Bayer DA Citizens Advisory Board