Public Comment

Sanderson Delivers Coup de Grace to "Protected Arts Uses" in West Berkeley, Rules Nexus institute was Illegal Squat, then Just a School

By Robert Brokl
Friday September 13, 2013 - 08:43:00 AM

UPDATE: The Berkeley Kitchens will open soon at 2701-2707 Eighth St., at the location of the former Nexus Institute (1974-2006)R.I.P. The Berkeley Kitchens has no arts component nor was any arts replacement space provided within the district, as supposedly required by the zoning ordinance for "protected arts and crafts uses in West Berkeley. R.I.P. that, too.
Read this Eastbay Express article for more details:

Now Open: The Berkeley Kitchens
And for the back story, read below to find out how all this happened.

Remember the cliche about something looking, walking and talking like a duck, and therefore probably being a duck? Well, try telling that to Debra Sanderson, Zoning Officer and Planning Manager for the City of Berkeley, about arts uses at the former Nexus Institute complex in West Berkeley.

Nexus was a 501 (c) 3 non-profit, registered with the state of California in 1974 as a non-profit corporation from its inception and the beginning of its lease from the Berkeley East Bay Humane Society. (The lease ended in 2006, when the Humane Society put the building up for sale.) Nexus Gallery and adjacent studios and woodshop fit to a "T" the zoning description of "protected use, Category 2, Art Galleries, ancillary to Art/Craft studios and when located in the same building..." The City of Berkeley certainly agreed—the Civic Arts Commission awarded grants regularly to the gallery, which showcased local artists, craftspeople, dance and theater groups.

I maintained a long-time studio there, from 1982 until its end in 2006, and was the designated contact person from Nexus for its successful Berkeley landmark nomination.

Despite the evidence to the contrary, Nexus was disappeared by Sanderson as an official arts organization despite its 32 year history at that location, allowing the new owner developer to create 16 commercial kitchens instead, without recreating any artist spaces there or elsewhere in the district, as seemingly required by the zoning ordinance. 

Full credit should be shared in addition to Sanderson with Nathan Dahl, another planner now handling code enforcement with the City of Berkeley, and the retired Secretary to the Landmarks Preservation Commission, Giselle Sorensen. All three have their names on the hitherto unknown letter from Oct. 7, 2008, "prepared by Dahl", and signed by Sorensen, "for Sanderson," then a zoning officer. The letter to the developer, Todd Jersey, waived the requirement for arts uses, stating that "It is our understanding...portions of this property may have been used for the above-mentioned purposes in the past, however, research indicated that these uses were never established legally, with either zoning permit or business license issuance. therefore, space within the building(s) dedicated to any of the above-mentioned uses is not protected and can legally be changed to another use..." Quite a windfall for the developer, who had unsuccessfully attempted to develop $500,000 live/work condos with owners providing up-front money. (I was invited to buy in on those terms, after I called the number listed on the sign posted on the building after its sale.) And the waiver of any off-street parking for the developer's commercial kitchens Plan B with was a priceless gift indeed—one very successful local developer told me the off-street parking requirement stopped him from even attempting a purchase from the Humane Society. But the emboldened developer now has an application for retail pending—shoot the moon! 

The "secret" letter, as far as I can discern known only to the three city planners and the developer, came to light only this year, when a neighborhood activist working with other local, large property owners was told of its existence by the developer, as the reason he wasn't providing any arts component in the complex that had been so widely known for arts uses. I, of course, was not contacted at the time to provide any documentation proving our bona fides nor, apparently was any other Nexan. So convenient—documents dispersed, artists and craftspeople scattered, neighbors assumed to be eager for the now long-vacant building to be spruced up. 


After I was asked by the local activist to provide Nexus documentation, I called Sanderson. She wanted documents, quite readily disclosed the City's record-keeping for business licenses in that period was "sloppy," and reassuringly mentioned that there was still time for reconsideration of her decision, since the certificate of occupancy hadn't yet been granted. (Of course, around-the-clock work on the renovation was occurring as we spoke...) Sanderson laid out my task: Prove there was a use permit from the City for Nexus, and business licenses from before July 6, 1989, when protected uses were established within the MU-R District. 

Quack, quack

My document hunt began in earnest, spurred on by the local activist also convinced lakes can be drained by spoons without bottoms, needles found in haystacks. The Proof! The by now dusty Nexus box came up from my basement. I dug out records that might have convinced even an Antonin Scalia: 

A copy of the original letter from the IRS in 1975 according Nexus non-profit 501 (c) 3 status; the Articles of Incorporation from 1974 signed by Jerry Brown (then Secretary of State—such a long career!); Business Property statements by the Alameda County assessor from 1983; a City of Berkeley business license RENEWAL from 2004, and, seemingly the most important of all, the statement by Assistant City Manager Jim Hyne that 19,000 sq. ft. of Nexus was a protected use, and the affirmation by then Planning Manager Mark Rhoades that "the new owner is required to replace 75% of the whatever the Nexus tenants currently have...either at the existing location...or any other site within the district." A June 20, 2006 declaration from former City Manager Phil Kamlarz also surfaced stating in no uncertain terms: "...The space currently occupied by Nexus Art Cooperative must be for arts use, or the applicant will need to have made available replacement arts space elsewhere." 

Quack, quack, quack

One would have thought the Asst. City Manager, City Manager, and Planning Manager statements might have impressed Sanderson, since all were at one time of higher or equal rank, but not so fast. Sanderson's response came on July 26, after a month's delay. It married mock sorrow—"If we could make the determination according to our hearts and not the code, the outcome would be different" and galling cheek, claiming credit for the unearthed documents that I provided as evidence—"You'll see that staff found additional documents (all listed at the end of the letter) not considered for the 2008 determination that unfortunately reinforce the previous determination. Let us know if you want copies of any of these...." 

Not a Duck

Sanderson's new tack avoided the business license issue and the lack of a use permit altogether. It's unclear whether a use permit was even required then, according to Berkeley zoning/planning experts. Moreover, the City issued a building permit in 1975, indicating a green light. No, instead Sanderson focussed upon the wording of the original description of the non-profit in the zoning permit, the description of the Institute as a "vocational school" to "train adults in various vocations, e.g. cabinet making, printing, arts..." To me, this sounds like typical non-profit/grant application/broad brush speak, not at all contradicted by what Nexus was for the next 32 years, but for Sanderson it was the ultimate smoking gun. Until the next one..... 

I have beaten the Nexus drum at open forums for the Landmarks Commission, the Zoning Adjustments Board (ZAB), and at a (bare) quorum of the Civic Arts Commission, emailed letters to planning staff, Councilmembers, and the City Manager. Tony Blount, Secretary to the ZAB, barely refused to share more then his name, rank, and serial number (OK, just the first one), declared the issue predated his tenure and that Sanderson was the only contact person. Sally Zarnowitz, the secretary for the Landmarks Commission after Sorensen, was frosty—unapologetic that I hadn't been noticed when the renovation came to the Commission—"Why, in the past, even owners didn't receive notice." The review then would have been for arts and crafts live/work spaces presumably; a subgroup of the Commission reviewed later changes like the door cut-outs that surely look like retail to me. But Zarnowitz told me she observes the separation between form and function, and the commissioners presumably didn't ask, nor were told, about the new and different uses. As my mother used to say, "Ask me no questions and I'll tell you no lies." 

So, a duck is NOT a duck, black is white, and Nexus Institute and Gallery was a mirage. And arts and crafts uses are truly protected in West Berkeley by an ordinance still on the books but as meaningful as a monument to the dodo birds. 

A footnote: this is not the first controversy involving Sanderson, as well as litigation. According to the Dec. 2012, Council of Neighborhood Associations (CNA) Newsletter, Sanderson and Greg Powell were "Machiavellian" in their handling of the pending demolition of the historic Copra Building at 740 Heinz, now the subject of litiigation. An application by Wareham Development was approved to save two facades of the structure, and as a mitigation allowed to exceed height limits and build to 74 ft. inside the preserved walls. Then Wareham gained permission to demolish everything but retained the right to the 74 ft. height! 

Her name also surfaces in connection to the $250,000 settlement to a former planning employee, briefly mentioned in a April 27, 2012 article in the Berkeley Daily Planet by Toni Mester entitled "May Day Public Hearing on West Berkeley Developments." Mester mentions the $250,000 out-of-court settlement awarded planner Alan Gatzke, against former Director of Development Dan Marks and Sanderson, over issues of discrimination. 

And there's my article, "Eric Angstadt—Will He Bring His Bad Habits from Oakland to Berkeley?" in the May 4, 2012 Berkeley Daily Planet about her boss, Planning Director Eric Angstadt, who, like Sanderson, seems the perfect fit for Bates Berkeley. 

Robert Brokl is an artist and Oakland resident.