Issues
THE 1301 OXFORD STREET PROJECT
[Issues as of April 9, 2001]
Overview
On Monday, March 5, 2001, the City of Berkeley Landmarks Preservation Commission (LPC) voted to deny the Alteration Permit for the proposed Beth El project. In rejecting the current proposal, the LPC stated that the proposed plan would destroy the historical importance of this landmarked site, that it does not respect either the "special character" of the site or its value as open space, and that the plan does not adequately protect the Codornices Creek corridor. In addition, the LPC, by majority vote, found that the city-approved Final Environmental Impact Report was inadequate.
Three days later, on Thursday, March 8, five members of the Zoning Adjustments Board (ZAB) followed the line laid out by City staff, completely dismissing these LPC concerns and recommendations and voting to approve the Use Permit for the project. The plan that was approved was minimally modified, with the parking lot/roadway area moved slightly to the north so that technically it is off the culverted creek corridor and building size was reduced by six percent. (This is the same plan for which the LPC denied a permit on Monday.)
One ZAB member voting against the project, Dave Blake, commented before the vote that the bias and problems surrounding the approval of this project were astounding. "The project has been approved," said Blake, "because of who it is, not what it is."
Both decisions are now being appealed to the City Council. Congregation Beth El will appeal the LPC decision, while the Live Oak Codornices Creek Neighborhood Association (LOCCNA) and numerous other organizations will appeal the ZAB decision.
While LOCCNA and others would welcome Beth El on the site, there is broad agreement that it must be with a different plan. LOCCNA, numerous other organizations and scores of individual citizens have suggested reasonable alternatives to the proposed plan, but these suggestions have simply been ignored. In fact, despite their rhetorical pronouncements, the synagogue's leaders have for two years now resolutely refused to even discuss their plans with opponents, much less respond by offering modifications.
We care passionately about the environment as well as about our landmarks and our quality of life. As a result, we have dedicated months of volunteer time and effort to explore, propose and pursue alternatives that would lead to a consensus plan and to responsible development on this site. We have filed Proposition 13 and CALFED fund applications and discussed possibilities for acquisition of the land on the northern portion of the site, to name just a few of our efforts -- all in an effort to provide constructive alternatives that will allow both Congregation Beth El and Berkeley to benefit. In short, we have actively sought out constructive alternatives, rather than just sitting back and saying to the developer, "you can't develop here."
Our concerns are shared by many. The petitions we have circulated now have more than 2,300 petition signatures, and our position in support of the creek and in opposition to the massive proposed development has the support of a host of organizations.
Summary of Issues Concerning the Proposed 1301 Oxford St. Project:
The project is too large for the site. The maze of buildings is too massive and sprawling. The proposed structure, running the full length of the site, covers nearly half the buildable area of this park-like site, and is incompatible with the surrounding residential community.
The "new" plan approved by ZAB is only cosmetically different from Congregation Beth El's original proposal, and doesn't address the fundamental landmarks, ecological, and parking problems with the plan.
The project is not merely a relocation of an existing facility. It is instead a major expansion. The plan approved by ZAB does not provide adequate on-site parking even for Congregation Beth El's current membership, much less for the expanded operations planned for the new complex.
The developer's assertion that there must be a trade-off between providing adequate on-site parking and protecting the creek corridor is false.
The plan approved by ZAB has absolutely no "teeth" with respect to the future daylighting the culverted section of Codornices Creek, and is therefore meaningless from a creek daylighting or restoration perspective.
Water quality, creek bank stability, and steelhead habitat are all still at risk in the approved plan.
At least one mature Live Oak, and perhaps more, would almost certainly be killed if the approved plan is carried out. This is illegal under Berkeley law, which specifically protects Live Oaks.
The historical importance of this officially landmarked site will be destroyed by this project as approved. The City is allowing the destruction of a site it has declared an historical landmark.
The mitigations approved in the Use Permit fail to address most neighborhood concerns. They also are totally ineffective, since they are neither measurable nor enforceable. Under state law, such mitigations are inadequate to cure negative impacts.
The ZAB has taken a radically new path, breaking with a long-standing tradition of respect for and protection of our creeks and our historic sites in general and this site in particular.
The process surrounding approval of the EIR and the Use Permit has been so biased as to undermine even the appearance of democratic citizen government. In disregarding the need for thorough study of neighborhood and environmental impacts, it has set an unacceptable, unconscionable precedent.
More detailed LOCCNA positions on the proposed Congregation Beth El development at 1301 Oxford St., Berkeley:
1. The project is too large for the site. The maze of buildings is too massive and sprawling. The proposed structure, running the full length of the site, covers nearly half the buildable area of this park-like site, and is incompatible with the surrounding residential community.
Anyone seeking to understand the issues motivating opposition to the current development proposal for 1301 Oxford St. should begin by visiting the site. "Story poles" erected by the applicant delineate the perimeter and height of the planned structure; colored ribbons mark off the driveway and parking areas. With substantially more than 30,000 square feet of floor area, it is by any standard a huge building. This was a major concern noted by the Landmarks Preservation Commission (LPC) in its denial of the alteration permit on March 5. LPC recommended to the Zoning Adjustments Board (ZAB) that it seek a new project design. Reducing the size of the building would allow for on-site parking on the south portion of the property (as surface, underground, or a combination of surface and covered parking), thus fully protecting the northern corridor, and Codornices Creek, from development and ecological degradation.
2. The "new" plan approved by ZAB is only cosmetically different from Congregation Beth El's original proposal, and doesn't address the fundamental landmarks, ecological, and parking problems with the plan.
The building needs to be reduced in size and sprawl; usage of the facility needs to be limited; critical additional research on the historical aspects of the site needs to be conducted; the "open space" character of the site needs to be protected; and the whole north corridor needs to be protected in order to ensure creek daylighting possibilities.
3. The project is not merely a relocation of an existing facility. It is instead a major expansion. The plan approved by ZAB does not provide adequate on-site parking even for Congregation Beth El's current membership, much less for the expanded operations planned for the new complex.
The proposed development does not meet the parking demands for Beth El's current membership of 600 families, most of whom do not live within what is commonly considered walking distance to the new site. It certainly will not meet the greater parking demands resulting from the congregation's projected growth to at least 750 families, occupying a multiple use building twice the size of its old facility, with activities planned from morning till night throughout the week. Testimony before the ZAB indicates the congregation may operate from 7 am until 11 pm seven days a week (confirmed by Beth El's Harry Pollack), and intends to expand activities significantly beyond current levels (confirmed by current Beth El members).
4. The developer's assertion that there must be a trade-off between providing adequate on-site parking and protecting the creek corridor is false.
It is possible to do both. The current plan provides parking at the expense of the creek corridor, the result of an unnecessary choice between parking and open space. The problem is actually caused by the inappropriate size of the proposed complex and the developer's unwillingness to change the building's design in any way. Other local facilities have acknowledged the parking requirements associated with their activities Ð The First Unitarian Church of Berkeley in Kensington, for example, which provides more than 200 spaces for a congregation smaller than Beth El's. Covered parking below a building is a viable option, as St. John's Presbyterian Church on College Ave. demonstrates. The proponents of the 1301 Oxford project are being unreasonable when they insist, without supporting evidence, that they cannot provide underground parking. A project planned just to the west, on Cedar at Shattuck, will according to one ZAB member incorporate 80 spaces of underground parking.
Project proponents also argue that any plan to daylight the creek would make development on the site impossible, citing a study by creeks expert Ann Riley. This is incorrect. A daylighting plan utilizing a 2:1 slope for the creek banks, which is a reasonable, stable slope, will allow for placement of a substantial building on the balance of the site.
5. The plan approved by ZAB has absolutely no "teeth" with respect to the future daylighting the culverted section of Codornices Creek, and is therefore meaningless from a creek daylighting or restoration perspective.
This has been confirmed by our environmental attorneys, who see the plan as nothing more than smoke and mirrors, an attempt at misdirection that will allow the synagogue's leaders to side-step any real compromise in the project design.
6. Water quality, creek bank stability, and steelhead habitat are all still at risk in the approved plan.
The plan does nothing to remove barriers to fish migration to the excellent steelhead habitat just upstream from the 1301 Oxford site, nor does it resolve the oft-cited downstream habitat degradation associated with Congregation Beth El's (CBE's) proposal. Creek restoration experts, fisheries experts and environmental organizations concur in their concern over the tremendous ecological detriment of this plan.
7. At least one mature Live Oak, and perhaps more, would almost certainly be killed if the approved plan is carried out. This is illegal under Berkeley law, which specifically protects Live Oaks.
The approved plan calls for "moving" a mature Live Oak, an action that according to the California Live Oak Foundation and numerous arborists is near-certain death for the tree. For this reason, the City of Berkeley has never before allowed the moving of a Live Oak; to do so would violate the City's moratorium on the removal or destruction of these trees. It is a measure of the influence of the project's proponents that the ZAB voted to approve such as move as part of the permit.
8. The historical importance of this officially landmarked site will be destroyed by this project as approved. The City is allowing the destruction of a site it has declared an historical landmark.
In fact, the proposed design obliterates several key elements of the site: the location of the Byrne house, the landmarked gardens, and the full Codornices Creek corridor. On Monday, March 5, 2001, the Landmarks Preservation Commission, the city body charged with the responsibility of protecting Berkeley's landmarks, voted to deny the alteration permit required for this project. In its rejection, the LPC stated that the project as designed destroys the "special character" and "open space" of this site, which led to its landmarked status in the first place.
9. The mitigations approved in the Use Permit fail to address most neighborhood concerns. They also are totally ineffective, since they are neither measurable nor enforceable. Under state law, such mitigations are inadequate to cure negative impacts.
Dozens of Berkeley residents testified to serious impacts this project would generate and submitted numerous proposals for workable alternatives and mitigations. The ZAB, guided by city staff, almost completely ignored the testimony and proposals. In fact, few of the negative impacts of the proposed project were even discussed before the ZAB vote. The few proposed conditions that were discussed were watered down to the point of almost disappearing completely. As approved by ZAB, the project is essentially the one originally proposed by CBE. In addition, the amount of city staff time that would be required to truly enforce the few approved mitigations for this one project would be substantial and costly, probably necessitating hiring a new full-time position. This is not likely to happen, with the result that even the few mitigations required in the ZAB permit will not be enforced.
10. The ZAB has taken a radically new path, breaking with a long-standing tradition of respect for and protection of our creeks and our historic sites in general and this site in particular.
LOCCNA is hardly alone in demanding that the Byrne site and the riparian corridor surroundingCodornices Creek be protected. The City, and every board and commission that has considered this site in past years, has taken the same position. The city's Landmarks Preservation Commission recommended a similar limitation on March 5, 2001, in its denial of the alteration permit. The current ZAB, acting at the behest of city staff, is the only city body to have broken with this long-standing pattern of acting to protect Codornices Creek and the Byrne site. The ZAB and city staff also are breaking new ground by racing ahead to approve a project with an unprecedented number of as-yet-unanswered questions. Why the urgency in this case, when in so many other instances city officials have demanded diligent study of potential impacts?
11. The process surrounding approval of the EIR and the Use Permit has been so biased as to undermine even the appearance of democratic citizen government. In disregarding the need for thorough study of neighborhood and environmental impacts, it has set an unacceptable, unconscionable precedent.
Examples of failures in the process include:
a. Failure to consider the project in an objective light, based on true detriment to the neighborhood. CBE sought, and with the help of city staff got, an inadequate Environmental Impact Report that understated or ignored every significant negative impact the proposed project would have. This document was certified with the help of misleading assertions by the planning staff that certification would not bind the ZAB in its final determination of project merits. It was subsequently used repeatedly to support statements and decisions made concerning the Use Permit. The LPC voted on March 5, 2001 that the Final EIR was inadequate with respect to its analysis of historic resources and alternatives. The city's flouting of state law and city ordinance and pattern of ignoring community input sets a very dangerous precedent for community participation and input in decision-making. If unchallenged, this will affect the livability and environmental integrity of our neighborhoods.
b. Failure to present or discuss a reasonable range of alternatives to the current project design, despite the neighborhood's repeated requests for discussion of such alternatives and despite a requirement in state law that such alternatives be presented. The obvious and reasonable alternative to the current design--a reduced-scale building with on-site parking on the south portion of the property or parking beneath the building and full protection of the Codornices Creek corridor on the north portionÑhas consistently been dismissed or ignored by the developer and City staff.
c. Failure to provide accurate, objective parking comparison analyses for the determination of on-site parking requirements. City and CBE analyses used flawed data and analytic processes, a point made repeatedly not only by community members but by several ZAB members as well.
d. Failure to acknowledge the landmarks importance of the site, and to acknowledge the validity of LPC concerns, decisions, and recommendations about the project design, despite the LPC's position as a Responsible Agency for the project. The City staff completely dismissed the LPC's concerns and recommendations about the project, as stated by LPC commissioners in their denial of the alteration permit on March 5, 2001.
e. Failure to ensure that necessary and relevant information was provided to commissions, the neighborhood, and the Berkeley community in a timely manner. Both city staff and the applicant failed to provide the Landmarks Preservation Commission with full site and building plans, and elevations, despite their being requested to do so by the LPC for more than six months. (LPC still did not have full and updated plan drawings for review at the March 5, 2001 meeting.) Story poles for the project were not erected until mid-February of 2001, less than one month before the final use permit decision, and to this day are incomplete, reportedly because construction equipment could not operate on the unstable fill in portions of the property. On March 6, 2001, community members, all Berkeley residents, were denied access to the 1301 Oxford project files, as required under the Public Records Act, despite the required ten days' notice that was given to the City. There has been a consistent pattern: Community members were consistently given copies of Staff Reports and other relevant materials at the last minute, and ZAB members were then told in public hearings that they had heard "no response" about these materials from the community.