Summary of arguments against the 2024 Durant private dorm project for 2013 Zoning Adjustments Board meeting

1/17/2013

Hi Zoning Adjustments Board,

I’m submitting this public comment regarding the proposed 2024 Durant/2025 Channing private student dorm project on behalf of the low-income seniors of the Stuart Pratt Manor senior residence next door, at 2020 Durant, and on behalf of residents of the protected R-4/R-3 southwest downtown area. We are deeply concerned that the city is trampling the rights of the low-income seniors and of the protected R-4/R-3 southwest downtown residential neighborhood by violating policies specifically designed to protect them, specifically Downtown Area Goal LU-7 and Policy LU-7.1.

Goal LU-7 directs the city to maintain the existing scale and character of the residential neighborhood, and Policy LU-7.1 directs the city to downzone proprieties in the R-4 residential-only neighborhood to R-3 zoning.

In addition, approval of the proposed project would violate and negatively impact many other General Plan and Downtown Area Plan goals and policies to the detriment of the residential neighborhood and the downtown area, including goals and policies promoting affordable housing, the health of seniors, and bicycle transportation to and from downtown.

Our opposition to the proposed 2024 Durant/2025 Channing project focuses on three areas:

1) protecting the health and welfare of the senior residents at 2020 Durant

2) protecting the scale and character of the R-4/R-3 southwest downtown residential neighborhood

3) promoting fair and just governance in Berkeley

Summary of Arguments:

1) All specific DAP policies order the city to protect the southwest downtown residential neighborhood and to downzone it from R-4 to R-3 zoning, with only exceptions for properties on the north side of Dwight east of Shattuck

2) The city correctly downzoned 2024 Durant to R-3 zoning in the draft Downtown Area Plan

3) There are no compelling reasons to have upzoned 2024 Durant to C-DMU in violation of Goal LU-7 and Policy LU-7.1

4)  The DAP is a compromise between increased height and density in the Core and Corridor and decreased height and density in the R-4/R-3 residential neighborhood at issue

5) The city and the owners can achieve increased density at 2024 Durant under R-3 zoning, since there were no residents in the current church building; upzoning to C-DMU is not necessary to increase density

6) Upzoning 2024 Durant to C-DMU from R-4/R-3 at the owner’s request, simply to build a taller building, is analogous to reclassifying an environmentally protected area as non-protected at the owner’s request, solely to increase oil drilling profits

7) Case-by-case analysis—the 2024 Durant project presents a special case because of the low-income seniors next door, and the city must act to protect these vulnerable neighbors

8) Solar access, shade, and low-income seniors—seniors tend to wake up earlier and are less mobile than younger people, and the 2024 Durant project will block the east-facing seniors’ sunlight from dawn to 9AM, maybe up to 11AM, greatly diminishing their quality of life

9) Traffic and parking—there is already a severe lack of parking in the neighborhood, and increased traffic will increase safety risks to the seniors as well as to bicyclists on the Channing bicycle avenue

10) There are many residential neighborhood protection statements in the DAP and in staff reports that are violated by the upzoning of 2024 Durant

11) There are several affordable housing protection statements in the DAP that are negatively impacted by the upzoning of 2024 Durant

12) There are several senior protection statements in the DAP that are negatively impacted by the upzoning of 2024 Durant

13) There is only one exception to Policy LU-7.1, for properties on the north side of Dwight  east of Shattuck

14) The city misapplied or ignored Goal LU-7, to “maintain the existing scale and character of residential-only neighborhoods”

15) Upzoning 2024 Durant and 2025 Channing drastically changes the existing scale and character of the neighborhood in violation of Policy LU-7.1 and Goal LU-7

16) The city published misleading information in Figure LU-1A and other parts of the DAP and omitted material information which caused the seniors and neighbors and others to forego their legal right to make public comments against and bring lawsuits against the R-4 to C-DMU upzonings

17) Buffers and transitions–the Staples parking lot, already zoned as C-DMU, would be perfectly adequate buffer and provide adequate transitions between the Core and Corridor and the residential-only neighborhood–there is no need to upzone 2024 Durant

18) CEQA Review–the project is not consistent with the General Plan and the Downtown Plan element, and such consistency is required by for a project to qualify for the infill exemption, so a full CEQA review is needed.  What will the impacts of the projects be on the seniors and neighbors in terms of shadowing, traffic, parking, noise, etc?

19) There is a pending Council of Neighborhood Associations lawsuit against the DAP’s Environmental Impact Report—if the EIR is found inadequate, C-DMU zoning will be invalidated, because C-DMU zoning was created by the DAP–the city must wait until after the lawsuit is resolved to issue any C-DMU permits

20) There is a potential church buyer for the church building, a church group which wants to use the church for its religious services—the city should facilitate a sale to the church group to preserve a religious and cultural institution in the neighborhood which would enrich the cultural and religious diversity of  the downtown area

21) The 2024 Durant project is of unprecedented or nearly unprecedented size for a residential-only neighborhood

22) C-DMU zoning is flawed—it doesn’t actually implement the DAP as it states it does, since it doesn’t implement Goal LU-7 and Policy LU-7.1; under California state law, it was invalid when passed because it is based on impermissible conflicts between Policy LU-7.1 and Figure LU-1A

23) Analysis of General Plan Goals and  Policies—the upzoning of 2024 Durant violates many of the General Plan goals and policies

24) Analysis of C-DMU ordinance–the 2024 Durant project does not qualify for approval under C-DMU zoning for several reasons, including that the project is not compatible with the surrounding buildings and uses

Arguments:

All specific DAP policies order the city to protect the southwest downtown residential neighborhood and to downzone it from R-4 to R-3 zoning, with a single exception  for properties on the north side of Dwight east of Shattuck

The city initially correctly downzoned 2024 Durant to R-3 zoning in the draft Downtown Area Plan

We shouldn’t even be here.  All applicable DAP policies call for  protection of the southwest downtown residential neighborhood and the seniors.  The city got it right the first time in the DAP  draft; the city knew it had to follow Goal LU-7 and Policy LU-7.1 and properly downzoned 2024 Durant to R-3 in the draft DAP.  So the matter was settled; the city would follow and uphold all of  the clear and specific DAP policies to protect the residential neighborhood and the low-income seniors of 2020 Durant. But one simple letter  from the 2024 Durant property owner, with no analysis of the potential negative impacts on the neighborhood and no mention of Goal LU-7 and Policy LU-7.1, apparently was enough to convince the city to ignore and violate the specific policies protecting the seniors and the residential neighborhood.  The city impermissibly applied the policies and goals that apply to the Core and Corridor areas to 2024 Durant,  policies which do not apply to the residential neighborhood as they have goals of increasing density and building height.  The point is, while increasing density is a goal in other parts of the downtown area, specifically in the residential R-4/R-3 neighborhood increasing height and density is an anti-policy, in fact, the clearly stated applicable goals and policies direct the opposite, to limit and decrease density and building heights by downzoning the area from R-4 to R-3 in the residential neighborhood.  This is not ambiguous; it is clear, and the city should have followed these policies as it originally did in the DAP draft.

As well as Goal LU-7 and Policy LU-7.1, the DAP states:

“Residential Neighborhoods. Few opportunity sites exist in residential-only areas, but when development does occur, it will be subject to residential zoning. Many residents have expressed their desire to maintain the scale and character of these residential areas. To reduce development pressures that could result in inappropriate development, Plan policies call for downzoning the southwest portion of the Downtown Area from R-4 to R-3.”

We understand the need for increased heights density in certain areas, however, 2024 Durant, which was R-4, supposed to be downzoned to R-3, and right next door to a low-income senior home, is not the place for it.  The Core and Corridor are the place for increased heights and density, and the Staples parking lot to the east of 2024 Durant was already designated as C-DMU in the draft DAP and was sufficient buffer between the Core and Corridor and the R-4/R-3 residential-only neighborhood.

There are no compelling reasons to have upzoned 2024 Durant to C-DMU in violation of Goal LU-7 and Policy LU-7.1

There are no compelling arguments to ignore the specific policies to protect the seniors and residential neighborhood and instead upzone 2024 Durant to C-DMU.  The Stuart Pratt senior home at 2020 Durant, itself six stories, was downzoned to R-3 zoning, in accordance with Policy LU-7.1 The “hole” argument offered by the 2024 property owner equally applies to 2020 Durant; if 2024 Durant builds a six-to-eight story building, and if the 2020 Durant owners ever sell their property or try to build a new building, they will be limited to three stories max, and thus could be stuck in a “hole” between two taller buildings, the exact potential situation the owners of 2024 Durant complained about.  And any owner in the residential neighborhood can claim that building taller will meet DAP goals of increasing density; if that’s the case, why doesn’t the city just upzone all of the residential neighborhood in order to fulfill the policy of increasing density?  The city doesn’t because the DAP is a carefully crafted result of seven years of hard work and negotiating, balancing increased heights and density in the Core and Corridor areas with lower heights and density in the R-4/R-3 residential neighborhood.  And the city, by upzoning 2024 Durant, is violating all of that hard work and negotiation and compromise, and is betraying the trust of the Berkeley residents who voted for the DAP.

There are no compelling reasons for the upzoning of 2024 Durant and 2025 Channing and other R-4 properties, especially in light of the policies designed to protect the residential character and scale of the neighborhood; no reasons override those policies, there are no general welfare or public health reasons that the city should have ignored Goal LU-7 and Policy LU-7.1, and as such the upzonings were arbitrary, capricious, and the city applied the policies in an unequal and discriminatory manner.

 The DAP is a compromise between increased height and density in the Core and Corridor and decreased height and density in the R-4/R-3 residential neighborhood at issue

At its heart, the DAP is a careful balance and compromise between competing forces of development expansion and contraction, of upzoning and downzoning, increasing height and density in the Core and Corridor areas and decreasing height and density in the R-4/R-3 residential neighborhood.  The city breaks that careful balance by groundlessly giving in to a developers’ request to upzone 2024 Durant when staff had already agreed to follow the specific policies protecting residential neighbors, including the seniors, by having 2024 Durant downzoned to R-3 in the draft DAP.

The city and the owners can achieve increased density at 2024 Durant under R-3 zoning, since there were no residents in the current church building; upzoning to C-DMU is not necessary to increase density

The 2024 Durant owner should not claim that it can only achieve the general DAP goal of increasing density by having 2024 Durant upzoned; properly downzoned to R-3 or otherwise limited to three stories, a three story building at 2024 Durant would increase the residential density far above the zero residents at the current 2024 Durant church building, and also comply with all of the specific DAP goals and policies protecting the seniors and the residential neighborhoods such as Goal LU-7 and Policy LU-7.1.  Properly downzoning 2024 Durant to R-3 and constructing a three story residential building thus would greatly fulfill the DAP policy of increasing density, since the church building had no residents, and complies perfectly with the DAP policies and protects the seniors and the residential neighborhood.

Giving in to the owners’ request to upzone the property, in violation of all of the specific DAP policies protecting the seniors and the residential neighborhood, is bad governance and policy.  The balance of the DAP is like the balance between oil drillers and environmentally sensitive and protected areas.  Oil drillers claim that drilling more oil will increase national security by facilitating energy independence and will improve the economy by creating jobs, which can be desirable outcomes.  However, there are more specific protective policies which apply to environmentally sensitive areas; we want energy independence and job creation, but some areas are off limits to drilling because they are rare, environmentally sensitive areas.  It is similar with the Core and Corridor areas of the Downtown Area and the R-4/R-3 residential neighborhood, where we the DAP has specific policies to protect the residential neighborhood from increased heights and increased density, and orders decreased heights via downzoning, and has specific policies to protect and encourage aid to seniors.

Upzoning 2024 Durant to C-DMU from R-4/R-3 at the owner’s request, simply to build a taller building, is analogous to reclassifying an environmentally protected area as non-protected at the owner’s request, solely to increase oil drilling profits

Upzoning 2024 Durant from R-4 to C-DMU at the owner’s request is like if an oil driller owns some environmentally protected wetlands, and asks the state or federal government if they can have their status changed to oil drilling land, and the state or federal government changes the classification from protected to unprotected, all under the rationale that the oil driller can bring energy independence and create jobs if only it could drill on its protected wetlands, if only the government would reclassify it from protected to a drilling-allowed classification, and ignoring the specific policies protecting the environmentally sensitive area. This is exactly what the city did with 2024 Durant; it took a parcel that had been quiet, two stories, and residentially zoned, religiously-used, for 65 years, and at the request of the owner, with the rationale that the owner could increase density if the property is upzoned, the city gave in and reclassified the property from protected R-4 and R-3 residential zoning to unprotected, commercial-mixed use C-DMU zoning, in violation of all of the specific protective policies. Nothing has changed regarding the 2024 Durant property; it was the same as it always was, part of the R-4/R-3 residential neighborhood; there was no good reason for the upzoning that justified ignoring and violating the specific policies protecting the seniors and the R-4/R-3 neighborhood.

Case-by-case analysis—the 2024 Durant project presents a special case because of the low-income seniors next door, and the city must act to protect these vulnerable neighbors

The 2024 Durant/2025 Channing presents a special case due to the low-income seniors living directly to the west of this proposed construction. The Stuart Pratt Manor at 2020 Durant is a senior residence that has existed next to a quiet, two-story church building since 1969. The zoning needs to be more restrictive, especially at the 2024 Durant portion of the project, such as when the city originally followed policy and downzoned 2024 Durant to R-3 in the DAP draft.

Solar access, shade, and low-income seniors—seniors tend to wake up earlier and are less mobile than younger people, and the 2024 Durant project will block the east-facing seniors’ sunlight from dawn to 9AM, maybe up to 11AM, greatly diminishing their quality of life

Seniors tend to wake up earlier than younger people, according to the NIH (www.nia.nih.gov/health/publication/good-nights-sleep).  However, the solar access studies provided by the developer reveal that the east side of Stuart Pratt will be heavily shadowed up to 9AM in the morning, and potentially up to 11AM in the morning.  This deprives the east-facing senior residents of direct light from dawn until 9AM or 11AM; around 11AM and 12PM the sun will be directly overhead, so the east-facing seniors will get very little direct sunlight ever.  The low-income seniors have less money to relocate and are less mobile, and have less money to hire lawyer or represent themselves than non-low income and non-senior people, so they cannot remedy this drastic reduction of solar access on their own; they are counting on the city’s protective policies such as Goal LU-7 and Policy LU-7.1, and on the Zoning Adjustments Board to downzone 2024 Durant or otherwise limit the building height to three stories.  The city should grant none of the height extension permits, nor any of the permits waiving or altering set back and step down requirements, as clearly all specific DAP policy is aimed at protecting the seniors and the residential neighbors from undue development pressures and from new buildings over three stories tall encroaching upon the residential neighborhood.

Note that the DAP is concerned with minimizing shade to residential properties:

“The Core Area is not near residential areas and tall buildings will not shade or crowd surrounding residential neighborhoods.”  (p. LU-3)

Note that by upzoning 2024 Durant from R-4 to C-DMU, at the request of the property owner, the city has violated this principle of minimizing shade. This is especially egregious given that 2024 Durant was  ordered to be downzoned to R-3 in the draft DAP for a maximum height of three stories.  The six-to-eight story elevation currently under consideration will drastically interfere with the seniors’ solar access. Note that 75% of the Stuart Pratt residents on the east-facing side of the building live in studio apartments where their only source of light and natural ventilation is an east-facing balcony window/door.

The DAP considers availability of sunshine and quiet as factors in the livability of residents.  Note that upzoning 2024 Durant will drastically reduce the amount of sunshine the seniors will receive in the vital dawn to afternoon hours, and the proposed dorm may be expected to increase noise via traffic to the dorm and student gatherings (many neighborhoods including the Clark Kerr neighbors have complained about noise from student parties and residences).

“The livability of a district also depends on the general availability of sunshine and relative quiet, factors that can be maintained through regulation and mindful design.” (p.LU-1)

2024 Durant’s six-to-eight-story elevation for a private student dorm is not compatible with the low-income senior home next door, where the vast majority of the seniors facing 2024 Durant have only one window for natural light and ventilation; they will be in shadow from dawn to at least 9AM, potentially to 11AM, and will receive a sliver of direct sunlight for a slender portion of the day if at all; they’ll likely keep their windows and curtains closed to maintain their privacy from the students next door and to keep out student noise, which will block their only source of natural lighting and ventilation.

Traffic and parking—there is already a severe lack of parking in the neighborhood, and increased traffic will increase safety risks to the seniors as well as to bicyclists on the Channing bicycle avenue

Parking in the neighborhood is already very, very difficult to find.  An influx of 200 students, even with 35 parking spaces, will significantly impact parking in the neighborhood, as we anticipate much more parking demand in the neighborhood for friends, family, and food service deliverers visiting the students in the proposed dorm.  Also, this will greatly increase the traffic, and increase double parking, and there will be cars going into the dorm’s parking garage at all hours, which will make it more dangerous for the seniors to walk around the neighborhood.  Channing has parking only on one side of the street, as it is a bicycle avenue, so much of the increased traffic and double parking due to the 200 additional dorm residents will likely be on Durant, by people looking for more parking, right next door to the low-income senior home, and any increased traffic and double parking on Channing will make the street much more dangerous for bicyclists using the Channing bicycle avenue. The increased traffic and parking demand will also make it harder for friends and family to visit the seniors, or pick them up to take them to routine appointments (to the doctor, to go shopping, etc.), as the senior home does not have parking for visitors.

Having 200 more dorm residents right next to the Channing bicycle avenue on one side and the low-income senior home on the other side poses a danger both to the bicyclists and the seniors due to increased traffic and double parking.  This also violates the following bicycle-promoting goals of the DAP:

GOAL AC-1: IMPROVE OPTIONS THAT INCREASE ACCESS TO DOWNTOWN ON FOOT, BY BICYCLE, AND VIA TRANSIT. MAKE LIVING, WORKING, AND VISITING DOWNTOWN AS CAR-FREE AS POSSIBLE.

GOAL AC-5: MAINTAIN AND ENHANCE SAFE, ATTRACTIVE AND CONVENIENT BICYCLE
CIRCULATION WITHIN DOWNTOWN, AND TO AND FROM SURROUNDING AREAS, FOR PEOPLE OF ALL AGES AND ABILITIES. PROMOTE BICYCLING DOWNTOWN.

The residential streets Durant and Channing are not adequate for the increased parking and traffic demands of 200 additional dorm residents, and the city needs to downzone 2024 Durant and 2025 Channing to keep the neighborhood safe, to protect the scale and character of the neighborhood, and to protect the neighborhood from development pressures in accordance with Goal LU-7 and Policy LU-7.1, which would also serve to protect bicyclists using the Channing bicycle avenue and preserve car-free bicycle access to downtown.

There are many residential neighborhood protection statements in the DAP and in staff reports that are violated by the upzoning of 2024 Durant

Note that the Downtown Area Plan in several areas states the need to protect the residential neighborhood, including the statements:

“GOAL LU-7: MAINTAIN THE EXISTING SCALE AND CHARACTER OF RESIDENTIAL- ONLY AREAS.

Policy LU-7.1: Neighborhood Protections.

Seek to reduce development pressures in residential-only areas, to promote the preservation and rehabilitation of older structures – and to conserve the scale of their historic fabric (see

Policy HD-1.5).

a) Maintain the R-2A zoning designation and downzone R-4 areas to R-3 (as shown in Figure LU-1), except for the north side of Dwight Way east of Shattuck Avenue.”

“Residential Neighborhoods. Few opportunity sites exist in residential-only areas, but when development does occur, it will be subject to residential zoning. Many residents have expressed their desire to maintain the scale and character of these residential areas. To reduce development pressures that could result in inappropriate development, Plan policies call for downzoning the southwest portion of the Downtown Area from R-4 to R-3.”
Staff mention  neighborhood protections based on Berkeley Downtown Area Plan Advisory Committee discussions and Planning Commission process:

Downtown Area Plan (DAP) 2012 and Implementation Measures (March 6, 2012)

“Several Zoning Map changes are recommended (see Attachment 5 for the proposed changes and Attachment 9 for background), based on previous DAPAC discussions
and the recent Planning Commission process. Rezone from R-4 to R-3 the parcels located within the southwest corner of the DAP, generally bordered by MLK Jr. Way, Dwight Way, Allston Street and Milvia Street, with three half-blocks extending east of Milvia towards Shattuck. This rezone protects the medium density residential nature of the area, and allows
transition to the lower density area west of the downtown, consistent with policy goals outlined during the DAPAC and Commission review process.”

http://www.ci.berkeley.ca.us/uploadedFiles/Clerk/Level_3_-_City_Council/2012/03Mar/2012-03-06%20Item%2014%20Downtown%20Area%20Plan(1).pdf

There are several affordable housing protection statements in the DAP that are negatively impacted by the upzoning of 2024 Durant

“GOAL LU-3: CULTIVATE DOWNTOWN AS AN ATTRACTIVE RESIDENTIAL NEIGHBORHOOD WITH A RANGE OF HOUSING OPPORTUNITIES, AND AN EMPHASIS ON AFFORDABLE HOUSING AND FAMILY HOUSING.”

“Policy LU-3.2: Housing Diversity & Affordability.

Offer diverse housing opportunities for persons of different ages and incomes, households of varying size and the disabled, and give Downtown a significant role in meeting Berkeley’s continuing need for additional housing, especially affordable housing (see Housing and Community Health & Services chapter).”

Note that Stuart Pratt at 2020 Durant is low-income, affordable senior housing, and the 2024 Durant project is not, it is for a private luxury dorm. The city shouldn’t degrade the existing senior housing, and the city should push for 2024 Durant to be a more compatible use next to Stuart Pratt, such as a three-story senior home.

There are several senior protection statements in the DAP that are negatively impacted by the upzoning of 2024 Durant

The DAP includes “GOAL HC-5: DELIVER IN DOWNTOWN EFFECTIVE AND COMPASSIONATE SERVICES FOR SENIORS, PARENTS AND YOUTH, AND PERSONS WITH SPECIAL NEEDS, INCLUDING INDIVIDUALS WHO ARE HOMELESS, HAVE PHYSICAL AND/OR MENTAL DISABILITIES,AND/OR SUFFER FROM SUBSTANCE ABUSE.”

The city should be encouraging senior health and quality of life by appropriately downzoning 2024 Durant to R-3.

“Policy HC-5.3: Senior Services. Serve seniors in Downtown, and encourage their health, safety and welfare.”

Policy HC-5.3 directs the city to encourage the seniors’ health, safety and welfare, such as by appropriate downzoning 2024 Durant to R-3 as Policy LU-7.1 directs and as the city properly downzoned in the DAP draft, not harming their health, well-being, and quality of life by upzoning 2024 Durant to C-DMU.

There is only one exception to Policy LU-7.1, for properties on the north side of Dwight  east of Shattuck

Note that the clear, plain language interpretation of Policy LU-7.1 is that there is only one exception to the policy’s direction to downzone R-4 properties to R-3 zoning: “except for the north side of Dwight Way east of Shattuck Avenue.”  There are not additional exceptions     based on what is pictured in Figure LU-1/Figure LU-1A, the land use map; otherwise, why would the city have included the language “except for the north side of Dwight Way east of Shattuck Avenue”?  The city could have simply written, “Maintain the R-2A zoning designation and downzone R-4 areas to R-3 (as shown in Figure LU-1)” if the city intended for the downzonings to be dictated by what is shown in Figure LU-1. Note that this would not make for a good, workable policy, as the city would then be able to simply draw whatever arbitrary borders they would like in terms of choosing what R-4 properties to downzone or not; it would not be a workable policy statement and would violate California law dictating the contents of General Plans and their required elements for charter and general law cities.

However, with the addition of the “except for the north side of Dwight Way east of Shattuck Avenue” language, it is clear in Policy LU-7.1 that Figure LU-1/Figure LU-1A  is to show the effect of implementing Policy LU-7.1, the downzoning all of the R-4 properties to R-3 zoning, with the single exception for R-4 properties on “the north side of Dwight Way east of Shattuck Avenue.”

Also note that the exception does not refer to the “Maintain the R-2A zoning” language; the properties on the north side of Dwight east of Shattuck were zoned R-4, not R-2A.  It’s clear that the exception applies to R-4 properties.

Also note that while the properties falling under the exception on Dwight are clearly labeled “R-4 to C-SA” in Figure LU-1/ LU-1A, the city did not similarly label the upzonings of 2024 Durant, 2025 Channing, and other R-4 properties as “R-4 to C-DMU.” This is highly misleading and is a material omission as described further below.  The upzonings are not contemplated or discussed anywhere in the entire DAP document, even though the R-4 to R-3 downzonings are mentioned numerous times.

The city misapplied or ignored Goal LU-7, to “maintain the existing scale and character of residential-only neighborhoods”

The city clearly misapplied or ignored Goal LU-7, which is to maintain the existing scale and character of the neighborhood.  Goal LU-7 orders the city to: “MAINTAIN THE EXISTING SCALE AND CHARACTER OF RESIDENTIAL-ONLY AREAS”   Note that Berkeley High and 2024 Durant, both having institutional uses, have traditionally been part of the residential-only R-4 neighborhood, and Berkeley High was downzoned to R-3 in the final DAP, and 2024 Durant was properly downzoned to R-3 in the draft DAP. 2024 Durant has for the last 65 years or so, or at least since 1967, been part of the R-5/R-4/R-3 residential-only neighborhood (it was R-5 in 1967).  Note that they were part of the residential-only neighborhood even though part of the block had commercial properties; Goal LU-7 applies to the neighborhood, not just to entirely residential-only blocks.

Goal LU-7 orders the city to maintain the EXISTING scale and character, that is, the scale and character before the DAP was put into effect. Goal LU-7 isn’t ordering the city to look at the potential building heights before the DAP took effect; otherwise, every property owner in the R-4 neighborhood could claim that they were allowed to build to six stories, so the existing scale of the neighborhood is six stories.  That’s not the case; Goal LU-7 orders to look at the existing scale and character of actual structures in the neighborhood before the new DAP policies take effect.  Note that Goal LU-7 doesn’t apply to historic buildings, but to the neighborhood in general; there is a whole different DAP element for “Historic Preservation and Urban Design.”  Goal LU-7 applies to all of the neighborhood, whether the buildings are historic or not.

Here is a breakdown of the scale and character of the surrounding buildings and the building at 2024 Durant before the DAP went into effect:

 2024 Durant scale and character, before the DAP, for Goal LU-7 purposes

North of 2024 Durant:

2025 Durant–scale: 4 stories

2025 Durant–character: residential (R-4)

East of 2024 Durant:

2352 Shattuck (flat parking lot), scale: 0 stories

2352 Shattuck (flat parking lot), character: commercial (C-SA)

South of 2024 Durant:

2025 Channing (vacant lot), scale: 0 stories

2025 Channing (vacant lot), character: residential (R-4)

West of 2024 Durant:

2020 Durant, scale: 6 stories (equal to approximately five of the proposed 2024 Durant stories)

2020 Durant, character: residential (R-4)

2024 Durant lot:

2024 Durant, scale: 2 stories

2024 Durant, character: residential (R-4)

Summary for 2024 Durant:

Out of four surrounding lots, three (75%) were R-4 residentially zoned, only one was C-SA commercially zoned

Out of the four surrounding lots, the average building height/existing scale is 10 stories/4 properties= 2.5 stories

If you include 2024 Durant, out of five properties, four (80%) are R-4 residentially zoned, only one was C-SA commercially zoned

If you include 2024 Durant, the average building height/existing scale is 12 stories/5 properties = 2.5 stories

So the existing character around 2024 Durant is 75%-80% residentially zoned, and the existing scale is 2.4-2.5 stories.  To follow Goal LU-7, clearly the city to maintain the existing scale and character of the neighborhood needs to properly downzone 2024 Durant to R-3 zoning, as the surrounding scale and character is overwhelmingly under three stories and residential, not six-to-eight stories and commercial-mixed use as under C-DMU.

2025 Channing scale and character, before the DAP, for Goal LU-7 purposes

North of 2025 Channing:

2024 Durant, scale: 2 stories

2024 Durant, character: residential (R-4)

East of  2025 Channing:

2029 Channing, scale: 5 stories

2029 Channing, character: residential (R-4)

South of 2025  Channing:

2036 Channing, scale: 4 stories

2036 Channing, character: residential (R-4)

2020 Channing, scale: 1-to-2 stories

2020 Channing, character: residential (R-4)

West of 2025 Channing:

2023 Channing, scale: 3 stories

2023 Channing, character: residential (R-4)

2025 Channing lot:

2025 Channing scale: 0 stories

2025 Channing character: residential (R-4)

Summary for 2025 Channing

Out of five surrounding lots, all five (100%) were R-4 residential

Out of the five surrounding properties, the average building height/existing scale is 16 stories/5 properties = 3.2 stories

Including 2025 Durant, all six (100%) properties were R-4 residential

Including 2025 Durant, the average building height/existing scale is 16 stories/6 properties = 2.67 stories

So the existing character around 2025 Channing is 100% residentially zoned, and the existing scale is 2.67-3.2  stories.  To follow Goal LU-7, clearly the city to maintain the existing scale and character of the neighborhood needs to properly downzone 2024 Durant to R-3 zoning, as the surrounding scale and character is overwhelmingly three or under stories and entirely residential, not six-to-eight stories and commercial-mixed use as under C-DMU.

Upzoning 2024 Durant and 2025 Channing drastically changes the existing scale and character of the neighborhood in violation of Policy LU-7.1 and Goal LU-7

Upzoning 2024 Durant will clearly and drastically change the existing scale and character of the neighborhood.  The small, quiet, one-to-two-story, residentially-zoned, religiously-used church  building has been an integral part of the residential neighborhood since 1948, 65 years.

The church building is low profile, tree-lined, peaceful, residential, not commercial.  To go from two stories to six or eight and to go from residential zoning to commercial clearly violates Goal LU-7, to maintain the existing scale and character of the neighborhood. The church has always been a small, low-level, tranquil  gateway to the residential neighborhood, and the city should not take such a tranquil entry to the neighborhood and upzone it to a six-to-eight story building. An eight story commercial-mixed use dorm drastically changes the character of the neighborhood, and brings the scale of the commercial Core and Corridor and development pressures impermissibly into the residential-only neighborhood.

Furthermore, the 2024 Durant church building and the 2020 Durant senior home were designed functionally and aesthetically as a pair.  The church was built in 1948, and the church sponsored the construction of the senior home in 1969.  The church subdivided its land for the senior home, the architect was an agent of the church, the senior home was named after the acting pastor of the church Stuart S. Pratt, the church offered social activities to the senior members. The home was run by  Satellite Homes, which was an organization affiliated with the church and the Council of Churches.  The architect, an agent of the church, designed 2020 Durant knowing that the church sponsored 2020 Durant and was going to provide social services for the church.  He designed 75% of the units facing the church as studio apartments with only one window, a balcony window facing the church.  I submit that if he had known the church was going to allow a six-to-eight story building on the church lot, he would have designed the senior studios to have more natural lighting, such as a bathroom window looking into a courtyard or a ventilation shaft with a skylight.

The existing scale and character of the neighborhood includes the church being a low, quiet building affiliated with the senior home, which was built around the scale of the church building (they literally fit together like puzzle pieces), for 43 years since the senior home has been built.  Since the senior home, built around the residential scale of the 2024 Durant church building, has now been downzoned to R-3 and remains residential, so should 2024 Durant.  The city got it right the first time by downzoning 2024 Durant to R-3 in the draft DAP.

[For info on the social services and other relationships between the chruch and the senior home, see the attached images and also the Frederick News Post, November 19, 1968, p.19 http://newspaperarchive.com/frederick-news-post/1968-11-19/page-19%5D

Furthermore, upzoning 2024 Durant, 2025 Channing, and some other R-4 properties changes these blocks from residential-only majority blocks to commercial-majority blocks, clearly changing the scale and character of the neighborhood in an impermissible way, in violation of Goal LU-7 and Policy LU-7.1

The city published misleading information in Figure LU-1A and other parts of the DAP and omitted material information which caused the seniors and neighbors and others to forego their legal right to make public comments against and bring lawsuits against the R-4 to C-DMU upzonings

The seniors, other residential neighbors, and I did not know that 2024 Durant had been upzoned, because of misleading information and material omissions in the DAP.  Figure LU-1A clearly labels that an area has been changed from R-4 to C-SA; it clearly labels certain areas as “R-4 to R-3 (downzone),” and the DAP as a whole uses the terms “downzone,”  “downzoning,”  and “R-4 to R-3” numerous times, and discusses the downzonings and neighborhood protections numerous times.  However, nowhere at all does the DAP use the terms “R-4 to C-DMU,” nowhere does the DAP use the terms  “upzone” or “upzoning” or mention upzoning or reclassification from R-4 to C-DMU, nowhere in the entire document, the only evidence of R-4 upzoning is a clearly labeled section of Figure LU-1A that shows the text “R-4 to C-SA.”  If the DAP has the labels “R-4 to C-SA” and “R-4 to R-3 (downzone),” why did the city omit labels reading “R-4 to C-DMU (upzone)”?  This is a very selective and misleading omission of material information.

Any reasonable person reading the DAP would think that all R-4 properties in the southwest downtown areas were downzoned to R-3, and the C-DMU properties dispayed had always been commercial (while, quite the opposite, 2024 Durant, 2029 Durant, and 2025 Channing, among other properties, had previously been R-4).  So the DAP trumpets the downzonings of R-4 to R-3 and includes that as the centerpiece of an  explicit policy, Policy LU-7.1, and nowhere mentions any upzonings in the text.  Figure LU-1A shows 2024 Durant as C-DMU as if it had always been commercial.  Only later did I and the seniors look at an older zoning map and learn that in fact 2024 Durant had actually been R-4 previously and should have been downzoned also to R-3 like 2020 Durant.  By this time however it was past the 90 days to sue the city regarding the downzoning.

The city should not be able to publish misleading information and omit material facts which mislead the public, as a result of which they lose their ability to sue.  The city policies still are in effect, and ZAB and the city need to apply the zoning policies and laws fairly and equally and downzone 2024 Durant and 2025 Channing to R-3 just as it downzoned 2020 Durant and the rest of the blocks to the west. It is still ZAB’s responsibility to look at this on a case-by-case basis, and clearly all of the DAP’s policies still dictate that 2024 Durant be downzoned or, at the very least, limited through the ZAB’s zoning powers to three stories due to the drastic changes a six-to-eight story building will have on the residential neighborhood and on the seniors. Just as the city listened to the owner’s arguments regarding 2024 Durant’s zoning, we’re asking the city to equally listen to the seniors’ and the residential neighbors’ arguments, especially since the city got it right the first time and downzoned 2024 Durant to R-3 in the draft DAP, and since all relevant policies specifically are designed to protect the residential neighborhood, not to transform the neighborhood into C-DMU zoning.

Buffers and transitions–the Staples parking lot, already zoned as C-DMU, would be perfectly adequate buffer and provide adequate transitions between the Core and Corridor and the residential-only neighborhood–there is no need to upzone 2024 Durant

In terms of buffer zones and transitions between the Core and Corridor and the residential neighborhood, the church property downzoned to R-3 and the parking lot as C-DMU were sufficient buffers for the rest of the neighborhood.  Why do both the Staples parking lot to the east and 2024 Durant need to be buffer zone?  A six story future building at the Staples parking lot to a three story building at 2024 Durant would be sufficient buffer and transition for the senior home and the residential neighborhood.  Policy LU-7.1 does not have an exception allowing upzoning for buildings at the edge of commercial areas; in fact protections are intense at the edge of commercial areas, requiring step downs (see the Downtown Area Design Guidelines) and set backs where C-DMU buildings abut residential buildings.

CEQA Review–the project is not consistent with the General Plan and the Downtown Plan element, and such consistency is required for a project to qualify for the infill exemption, so a full CEQA review is needed.  What will the impacts of the projects be on the seniors and neighbors in terms of shadowing, traffic, parking, noise, etc?

2024 Durant needs full CEQA review.  The infill exemption claimed by the city only applies if “the project is consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations.”  As I’ve mentioned, the DAP is an element of the General Plan, and the upzoning of 2024 Durant is clearly not consistent with Goal LU-7 and Policy LU-7.1, which order the city to maintain the existing scale and character of 2024 Durant and the R-4/R-3 residential neighborhood, and to downzone 2024 Durant and other R-4 properties to R-3 zoning.  Since the upzoning is not consistent with the DAP, the project is not consistent with “the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations” and a full CEQA analysis is needed.

The city needs to comply with CEQA by performing a full CEQA review and analyzing environmental impacts that the city has failed to discuss and analyze, such as the negative impacts on neighbors and the public from noise, increased traffic, increased parking demands, shade impacts and blockage of sunlight to the low-income senior neighbors, other neighbors, and the public/sidewalk, scenic view blockages for the low-income seniors, other neighbors, and the public (a six-to-eight story building will block a scenic view of the Berkeley hills for the low-income seniors, other neighbors, and the public),  cumulative impacts on the neighborhood, potential mitigations, and alternatives.  As described above, there will be obvious impacts and significant changes to the scale and character of the area and on the solar access of the neighbors, parking and traffic impacts, etc.  The city needs to analyze all of these factors and more in a full CEQA review, as we have not been presented with adequate analysis of the effects of a six-to-eight story building in place of a quiet, two story church on the low-income senior home and the neighborhood.

There is a pending Council of Neighborhood Associations lawsuit against the DAP’s Environmental Impact Report—if the EIR is found inadequate, C-DMU zoning will be invalidated, because C-DMU zoning was created by the DAP–the city must wait until after the lawsuit is resolved to issue any C-DMU permits

The Council of Neighborhood Associations has a lawsuit pending against the DAP’s Environmental Impact Report. C-DMU zoning was created by the DAP, so if the DAP’s EIR is found insufficient, the C-DMU zoning will be invalid.  So the ZAB should not issue any C-DMU permits until after the CNA lawsuit is resolved.

There is a potential church buyer for the church building, a church group which wants to use the church for its religious services—the city should facilitate a sale to the church group to preserve a religious and cultural institution in the neighborhood which would enrich the cultural and religious diversity of  the downtown area

Also, note that there is a church group which has expressed interest in buying the 2024 Durant church to use it for its religious services. Keeping a religious use for the 2024 Durant property would be beneficial to the community; ZAB should properly downzone 2024 Durant and encourage the property owner to sell the church to another church group for their religious services.

The 2024 Durant project is of unprecedented or nearly unprecedented size for a residential-only neighborhood

The 2024 Durant portion of the proposed project is nearly unprecedented in size, six-to-eight stories (even the potential six stories of the 2024 Durant project really equal seven stories when compared with Stuart Pratt, as the ceilings are taller). A highrise building on Center street and the Gaia buildings are the only Berkeley buildings I know of which are effectively seven stories or taller, and those are not in residential neighborhoods, and they are not right next to a low-income senior home, a senior home that has existed next to a quiet church since 1969, as is the case with the 2024 Durant/2025 Channing project.

C-DMU zoning is flawed—it doesn’t actually implement the DAP as it states it does, since it doesn’t implement Goal LU-7 and Policy LU-7.1; under California state law, it was invalid when passed because it is based on impermissible conflicts between Policy LU-7.1 and Figure LU-1A

Legally, the C-DMU ordinance is invalid because it states that its purpose is to implement the DAP, but it doesn’t implement Goal LU-7 and Policy LU-7.1, since it upzones 2024 Durant to C-DMU.  It doesn’t actually implement the DAP and is inconsistent with the General Plan’s and the area plan’s policies.  The city should follow the direction of the R-3 and C-DMU ordinance to implement the DAP by implementing Policy LU-7.1 properly and downzoning 2024 Durant.

Furthermore, the DAP and C-DMU ordinance are invalid because the DAP is internally inconsistent, in violation of California state law which applies to charter cities–Land Use Figure LU-1A and Policy LU-7.1 are clearly inconsistent. If a developer, a citizen, or a city staffer were to look to Figure LU-1A for zoning guidance, they would think 2024 Durant, 2029 Durant, 2025 Channing, and some other properties were always commercial and were now reclassified from commercial to C-DMU.  If they looked to Policy LU-7.1 for guidance, they would downzone 2024 Durant , 2029 Durant 2025 Channing, and some other properties to R-3. That is a clear internal inconsistency which makes the DAP and any ordinances based on the inconsistency, such as C-DMU invalid when passed (see the relevant case law, statutes, and state guidelines for General Plans, which apply to charter cities, which forbid such internal inconsistency).  The seniors and neighbors and I would have sued the city regarding this internal inconsistency within 90 days if Figure LU-1A not been so misleadingly labeled, and if the city had not omitted any mention of the terms “upzone” or “upzoning” or “R-4 to C-DMU” in the DAP, whereas the DAP had plenty of mentions of the terms “downzone” “downzoning” and “R-4 to R-3.”  The city should not be able to mislead its citizens and omit material information regarding the fact that some R-4 properties were upzoned to C-DMU and then bar its citizens from gaining redress; the city needs to properly downzone 2024 Durant, 2029 Durant, 2025 Channing, and several other properties to R-3 zoning.

[see: Cal. Gov’t Code § 65700 (West), 66 Cal. Jur. 3d Zoning And Other Land Controls § 255, Garat v. City of Riverside, 2 Cal. App. 4th 259, 285, 3 Cal. Rptr. 2d 504, 519 (1991), State of California General Plan Guidelines (http://opr.ca.gov/docs/General_Plan_Guidelines_2003.pdf), Curtin’s California Land-Use and Planning Law, 1998 edition, p. 18]

Analysis of General Plan Goals and  Policies—the upzoning of 2024 Durant violates many of the General Plan goals and policies

General Plan:

“Goal #1: Preserve Berkeley’s unique character and quality of life.”

[This includes protecting the seniors and the residential neighborhood, as directed by DAP Goal LU-7 and DAP Policy LU-7.1, to preserve the unique character and quality of life in the lower-density R-4/R-3 neighborhood, protecting it from the Core and Corridor development pressures]

Policy LU-1 Community Character

Maintain the character of Berkeley as a special, diverse, unique place to live and work.

[Tearing down a church building, when another church group wants to buy it to use for religious services, decreases the diversity of Berkeley and unique religious and cultural options; upzoning 2024 Durant instead of downzoning it, which will negatively impact the low-income senior home at 2024 Durant, does not maintain the special character of Berkeley for those seniors, but rather degrades the character and their experience of living in Berkeley.]

Policy LU-3 Infill Development

Encourage infill development that is architecturally and environmentally sensitive, embodies principles of sustainable planning and construction, and is compatible with neighboring land uses and architectural design and scale. (Also see Urban Design and Preservation Policies UD-16 through UD-24.)

[2024 Durant’s six-, or potentially eight-story elevation for a private student dorm is not compatible with the low-income senior home next door, where the vast majority of the seniors facing 2024 Durant have only one window for natural light and ventilation; they will be in shadow from dawn to at least 9AM, potentially to 11AM, and will receive a sliver of direct sunlight for a slender portion of the day if at all; they’ll likely keep their windows and curtains closed to maintain their privacy and keep out noise, which will block their only source of natural lighting and ventilation.]

Policy LU-5 Citizen Involvement

Assure the effective participation of Berkeley citizens and others in land use decisions.

[The DAP was filled with misleading information and material omissions regarding Policy LU-7.1 and the R-4 upzonings, and the city should now listen to its citizens and remedy the upzonings.  The neighbors and 2020 Durant were not consulted when 2024 Durant and 2025 Channing were upzoned, and the low-income seniors cannot be expected to keep up with all of the city’s zoning policies when the DAP itself is misleading.]

Policy LU-6 Safe and Attractive Neighborhoods.

Ensure that all residential areas are safe and attractive places to live. (Also see Disaster Preparedness and Safety Policies S-13 through S-16.)

[Tearing down a quiet two-story church building and building a six-to-eight story megadorm decreases the attractiveness of the neighbhorhood; a three-story buiding, as directed by Policy LU-7.1, would be more attractive and compatible in the residential area.]

Policy LU-7 Neighborhood Quality of Life

Preserve and protect the quality of life in Berkeley’s residential areas through careful land use decisions.

Actions:

A. Require that new development be consistent with zoning standards and compatible with the scale, historic character, and surrounding uses in the area.

B. Carefully evaluate and monitor new and existing uses to minimize or eliminate negative impacts on adjacent residential uses.

C. Carefully review and regulate proposals for additional residential development in the Hill Fire Hazard Area and the tsunami, seismic and landslide hazard areas identified in the Disaster Preparedness and Safety Element. (Also see Disaster Preparedness and Safety Policies S-14 and S-16.)

D. Strengthen Zoning Ordinance language to ensure greater protection of solar access to adjacent properties when new projects or additions are proposed.

E. Acquire an analysis of the implications of revising R-1, R-1A, R-2, R-2A, MU-R, and C-N zoning to require a Use Permit and public hearings for projects that exceed 28 feet.

[The city needs to downzone 2024 Durant to R-3, the upzoning to C-DMU is not compatible with the R-4/R-3 neighborhood and the senior home at 2020 Durant]

Analysis of C-DMU ordinance–the 2024 Durant project does not qualify for approval under C-DMU zoning for several reasons, including that the project is not compatible with the surrounding buildings and uses

23B.32.040 Findings for Issuance and Denial and Conditions

A.      The Board may approve an application for a Use Permit, either as submitted or as modified, only upon finding that the establishment, maintenance or operation of the use, or the construction of a building, structure or addition thereto, under the circumstances of the particular case existing at the time at which the application is granted, will not be detrimental to the health, safety, peace, morals, comfort or general welfare of persons residing or working in the area or neighborhood of such proposed use or be detrimental or injurious to property and improvements of the adjacent properties, the surrounding area or neighborhood or to the general welfare of the City.

[In a case-by case analysis, the 2024 Durant dorm project, and 2024 Durant upzoned to C-DMU will be detrimental to to the health, safety, peace, morals, comfort or general welfare of persons residing or working in the area or neighborhood of such proposed use or be detrimental or injurious to property and improvements of the adjacent properties, the surrounding area or neighborhood, as described above, due to blocking the sunlight for the seniors, substantially increasing traffic to 200 student residents, etc.]

23E.68.090 Findings

A.    In order to approve any Use Permit under this Chapter, the Zoning Officer or Board must make the findings required by Section 23B.32.040, as well as the findings required by the following paragraphs of this Section to the extent applicable.

B.    A proposed use or structure must:

1.    Be compatible with the purposes of the District; and

2.    Be compatible with the surrounding uses and buildings.

F.    In order to approve a Use Permit for modification of the setback requirements of 23E.68.070.C, the Board must find that the modified setbacks will not unreasonably limit solar access or create significant increases in wind experienced on the public sidewalk.

[The 2024 Durant project is not compatible with the surrounding uses and buildings for reasons described above.  The project will unreasonably limit solar access to the residents at 2020 Durant.]

Other information

Please note that this is just a condensed version of many of the arguments against the 2024 Durant project, I have submitted many other public comments on this matter to the city for ZAB via Leslie Mendez and Terry Blount.

Thanks,

Stephen Stine

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