Public Comment

TO: Dee Williams-­Ridley, City of Berkeley City Manager; Zach Cowan, City Attorney;
Carol Johnson, City of Berkeley Acting Planning Director; Phil Harrington, City of Berkeley Director of Public Works; Ann­Marie Hogan, City of Berkeley Auditor

As South Shattuck neighbors and participants in area plans for our community, we request immediate clarification of City policy concerning dealership use of the public right­-of­-way and green space in the Commercial-­South Area (C­-SA) District.

The City refuses to issue parking citations to South Shattuck auto dealers, despite repeated complaints and extensive documentation from residents over a period of many months. Dealership use of the public right­-of­-way to conduct auto sales and to display inventory violates numerous City ordinances and constitutes a public nuisance. Selective parking enforcement results in lost ticket revenue, a shortage of convenient short-­term parking spaces for customers of local businesses, and spillover traffic in the surrounding neighborhoods. This is prohibited in every other District in the City; why is it allowed in South Berkeley?

Photo 1, from January 2015, shows the parking bay in front of 2700 Shattuck, which is regularly filled with display vehicles. Allowing the use of limited public parking spaces as extended commercial gross floor area by South Shattuck dealerships eliminates numerous parking spaces (2-­hour and 30-­minute) in the area at any given time. 

This constitutes an encroachment under BMC 16.18.010.A. Merchandise is not “parked”—regardless of whether or not the merchandise has wheels. Auto dealers have converted street parking spaces into extensions of dealership gross floor area, where employees conduct business. They also display merchandise on sidewalks and green space. 

It hardly inspires confidence in the Adeline/South Shattuck PDA planning process when the City ignores existing community-­based area plans, and their emphasis on reducing the domination of the automobile, in order to encourage car dealerships throughout South Berkeley commercial districts. 

South Berkeley public space is not given equal protection or consideration; South Berkeley area plans have been disregarded; residential neighborhoods abutting commercial districts in South Berkeley must rely on institutional memory (increasingly absent) and vague discretionary findings in the absence of zoning protections that are given to other Berkeley neighborhoods abutting commercial districts. 

Attached to this letter is a 2009 memo from then-­Planning Director Dan Marks to local developer Patrick Kennedy, strongly discouraging the developer from proposing encroachments in the public right­-of­-way at 2711 Shattuck. The memo notes apparent conflict in the code, lack of standards for approving encroachments, and potential detrimental impacts of encroachments. The memo claims, “Staff will now be taking [encroachment issues] up to the City Council for discussion and direction as soon as possible. Until then... staff will be recommending denial of any encroachments to the reviewing commissions.” 

Such a Council review never happened, and the City continues to allow private interests to profit from encroachments that have the potential to prevent open space and other improvements on land owned by the public. (See for example Honda’s proposal to reserve curb space on Adeline Street for use as a vehicle unloading dock—in a location currently under consideration for community open space and a dedicated bike lane.) 

The City transferred sidewalk seating encroachment permits from Land Use to Public Works, but this and other temporary uses of the public right­-of­-way required careful consideration, a separate Ordinance, and a public hearing before City Council. (Another example: allowing vendors on Telegraph Avenue sidewalks for limited times.) Is Public Works no longer involved in this process? 

In the case of encroachments granted for parklets in North Berkeley, the public retains access whether or not they are customers of the associated cafés and other businesses. Should the public expect free access to dealership display vehicles in public rights of way as enclosed spaces to spend leisure hours? 

At the Adeline/South Shattuck Complete Streets Community Workshop, Jeff Tumlin—an owner of Nelson\Nygaard and author of Sustainable Transportation Planning—described our streets as public spaces; a “capital public resource held in the public trust,” adding that our values are reflected in their design. For Berkeley to allow entitlements that run with lands held by the City in trust for its citizenry is not acceptable public policy. The City Charter requires an Ordinance for the selling or leasing of public property. Surely an Ordinance should be required for outright giveaways. 

Yet once ZAB has granted a use permit for auto sales, all development standards in BMC 23E.52.070.F—including those prohibiting vehicle storage in South Berkeley rights of way and limiting auto display along street frontage—may be overturned by a simple over­-the-­counter AUP. The 2013 Ordinance encouraging auto sales in the Commercial­South Area District includes this glaring zoning loophole: “ The Zoning Officer may approve a modification of the standards applicable to new or relocated automobile and motorcycle sales uses if it finds that doing so is necessary to... accommodate dealership operations.” (BMC 23E.52.090.E) 

Many South Berkeley residents worked in collaboration with the City to develop the South Berkeley Area Plan and the South Shattuck Strategic Plan, both added as amendments to the current Berkeley General Plan. Like the emerging Adeline Corridor/South Shattuck PDA Plan, existing area plans and District purposes were created to foster pedestrian-­oriented, neighborhood­-serving retail and phase out “Gasoline Alley.” The City Manager, the City Attorney, Land Use Planning, Public Works, the City Auditor, and the City Council must give serious and immediate attention to the dysfunction in planning policy for the South Shattuck area. At a minimum, the City must investigate why its departments allow South Shattuck auto dealerships to squat on public lands without penalty. 

Please refer to photos and correspondence below for a partial record of violations and lack of enforcement between June 20, 2015 and August 25, 2016. 

Sincerely, 

[letter signed by 69 South Berkeley residents]