AppealZAB

Key Elements of the Appeal

of the Zoning Adjustments Board

Decision of 3/8/01

regarding 1301 Oxford Street

Hand delivered on April 17, 2001

TO THE BERKELEY CITY COUNCIL:

The Alameda Creeks Alliance, Friends of Five Creeks, Live Oak Codornices Creek Neighborhood Association, Urban Creeks Council, Sierra Club, San Francisco Bay Chapter, Center for Biological Diversity, Golden Gate Audubon Society (Conservation Committee), International Rivers Network, Berkeley Community Gardening Collaborative, Eco-City Builders, Berkeley Eco-House and California Oaks Foundation appeal to this Council the decision of the Zoning Adjustments Board ("ZAB") on March 8, 2001, notice of which was mailed on April 4, 2001, approving a use permit, a demolition permit and an administrative permit for a height adjustment, to applicant Harry Pollack and Congregation Beth El for a project at 1301 Oxford Street ("1301 Oxford Project" or "Project"), on the following grounds:

I. Certification of the EIR for the 1301 Oxford Project was an abuse of discretion and violated the California Environmental Quality Act (CEQA) because the EIR does not meet applicable standards in that it:

• • fails to contain an adequate project description, does not adequately and accurately describe the project setting, does not make a full and fair disclosure of reasonably foreseeable uses of the project, including ancillary social uses, and understates impacts of several events;

  • fails to adequately analyze and mitigate impacts on: biological resources including Codornices Creek, fishery resources, water quality and protected oak trees; historical resources, parking, noise, recreation and aesthetics and to consider the impacts of the

  • fails to consider a reasonable range of alternatives, including a reduced-project alternative, and gives insufficient consideration to other alternatives; and

  • fails to adequately respond to comments and suggested mitigations.

II. Approval of the Project violates CEQA because the Project as approved underwent substantial last-minute changes the impacts of which were not fully analyzed, and the Project as approved will have several significant environmental impacts that have not been mitigated.

III. The granting of the use permit for a religious assembly use was an abuse of discretion because the decision that the Project was consistent with R-1 zoning is not supported by the evidence, the ZAB used improper and irrelevant criteria such as the contributions of the applicant to make that determination, the ZAB gave this applicant preferential treatment and numerous procedural irregularities impermissibly tainted the approval process.

IV. The administrative permit for a 35 foot height limit was an abuse of discretion because the size of the building is out of scale with the neighborhood and creates a detriment.

V. The demolition permits should be denied and should be held in abeyance until all of the issues are resolved, and any demolition permit for the small white structure requires a public hearing and an opportunity for public comment on the antiquity of the structure.

Introduction

The property at 1301 Oxford Street is a unique remnant of Berkeley's past. The open portion of Codornices Creek, the oaks and other trees, the site's open character, and the remaining evidence of the site's earlier occupants caused the site to retain landmark status even after the Byrne Mansion was destroyed by fire. Any development at this special site, situated on the most open of Berkeley's creeks, should retain as many of the site's unique features as possible and should not alter the character of the surrounding neighborhood. The 1301 Oxford Project, as approved by the ZAB, does not do that. The proposed building is too large for the site, occupying over half of the buildable area. Because of its size, access and parking have been forced onto the northern third of the property, threatening the Creek and nearby oak trees, something the prior owner, the Chinese Christian Alliance Church, was not given a permit to do. The proposed facility, nearly 33,000 sq ft, and its full calendar of activities, will create significant access and parking demands, particularly on weekends.

The approval process for this project has not been in compliance with state law and local ordinances and procedures. The EIR seriously misstates the extent and nature of the Project and consistently strives to minimize its impacts. It fails to discuss reasonably foreseeable peak uses of the Project, including weekend events outside the regular religious services, and does not provide mitigations for the impacts of those uses. Consequently, its conclusion that there would be no significant adverse impacts from the Project is not based on reliable evidence and is simply wrong. Nor did the EIR provide adequate mitigation measures for impacts that clearly should have been considered significant, such as impacts on Codornices Creek, the oak trees and historical resources. The Project underwent substantial changes in both scope and design following certification of the EIR, to the point that it is impossible to determine the actual impacts of the approved project, or whether key mitigation measures are still feasible.

Approval of the Project by the Council would set environmentally damaging precedents in key areas and would send the message that Berkeley's policies on environmental issues such as creeks, oaks and landmarks may be disregarded when expedient. The EIR and the approval process have been sufficiently flawed and contrary to legal requirements that the Council cannot fix the Project at this late date. Rather, this Council should rescind certification of the EIR and begin the process anew based on a full disclosure of the nature and extent of the Project and its impacts and with a full consideration of alternatives, including a reduced-size alternative to this Project that confines development to the south side of Codornices Creek.

In addition to CEQA errors, the ZAB's findings on the zoning issues are based on incomplete and erroneous information, are not supported by the evidence, and use criteria that are inappropriate for a decision of this nature. The ZAB wrongly concluded that the Project would not cause a detriment to the neighborhood because the full uses for the Project are not detailed in the EIR. The ZAB used irrelevant comparisons to minimize the overwhelming size of the Project, did not consider the applicant's compliance with its existing use permit, and found that the applicant's contributions to the City outweighed any detriment to the neighborhood, overlooking adverse parking and noise impacts, the harm to Codornices Creek and Berryman Path, and the overwhelming size of the Project. However, weighing the "benefits" of a religious use is impermissible. The ZAB found the Project consistent with R-1H zoning as a "religious assembly for local use"although many of the highest-impact uses are regional in character.

The issue here is not whether the applicant congregation has contributed to the larger community; that is simply not a criterion which a public body can consider. Rather, the issues are whether there have been a full and fair disclosure of the impacts of the Project, a good faith attempt to mitigate the impacts of the Project, and a vigorous and equitable enforcement of state environmental laws and city ordinances and policies. Because there has not been, the permits should be denied. The Project may be laudable in the abstract, but this is the wrong site for the Project in its present form. If the applicant is to build a religious assembly on this site, it should be a smaller facility, with adequate access and parking located on the south side of the Creek. This would allow restoration of the entire Creek to be undertaken with a combination of public and private funds to create a truly unique result with less impact on the neighborhood.

For all of the reasons set forth in the appeal, Use Permit #99-10000079 should be denied, along with the demolition permit and the administrative permit for a 35 foot building height. The City Council should direct preparation of a new EIR, with full community participation, which adequately discusses all proposed uses and activities at the site, properly describes significant resources and impacts on those resources, and which considers a reduced intensity alternative with alternative parking and access configurations that minimize impacts to Codornices Creek and permit eventual daylighting. Only then, and after proper design review, can a permit application be acted upon.