1 Jacob, Melinda Subject: FW: Impact of 2211 Harold Way on Berkeley City College -----Original Message----- From: Barbara Rydlander [mailto:[email protected]] Sent: Wednesday, September 30, 2015 10:19 AM To: Zoning Adjustments Board (ZAB) <[email protected]>; City Clerk <[email protected]> Cc: Burns, Anne M <[email protected]> Subject: Impact of 2211 Harold Way on Berkeley City College To members of ZAB, City Council, Design Review Committee Yesterday I received a copy of the attorney's letter sent to your office re impact of the proposed project at 2211 Harold Way on the students and staff at BUSD. This detailed response to the concerns on the several thousands of students and staff at BUSD was impressive in terms of unanswered problems with the EIR particularly with respect to the demolition phase, specifically noise, air quality, toxic fallout, and pollution due to increased traffic from auto as well as large construction vehicles. The parking issue for staff, pedestrian safety, increase in sewage demands by the expected residents in this proposal made it very clear to me that these very same problems equally impact the thousands of students as well as staff and faculty at Berkeley CIty College. The College will be next door to this project and will most certainly face identical problems in terms of noise, emissions pollution,and toxic fallout especially during the demolition phase. I addition, the parking garage used by staff and students may not be available to those who are not able to use public transit. Most important is the loss of classroom space currently used by a growing student population in the annex at 2211 Harold Way. Has Berkeley City College been advised of this proposal? I encountered a fellow colleague, a tenured faculty, this past week and she told me that she had heard nothing about the project. Many of the same students who have attended Berkeley High School will be the same ones who may be attending the College. A number of these students may suffer from asthma or other pulmonary conditions that make them more vulnerable to air-particle pollution. The problems of instruction delivery as well as finding quiet places to study or to take exams will most certainly have a detrimental impact on both students and faculty. I urge the committees involved to consider this population and the vital role that this institution serves in our community before signing off on the approval process. Please make an effort to get more information on the impact on Berkeley City College. Sincerely, Barbara Rydlander Retired instructor for 35 years at Berkeley City College Sent from my iPad
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Jacob, Melinda
Subject: FW: Impact of 2211 Harold Way on Berkeley City College
Dear Members of the Zoning Adjustments Board, I am writing to express my wholehearted support of the 2211 Harold Way project as it is currently proposed. As the former Deputy Director of the Berkeley Public Library (2007-2013), a Berkeley resident of several decades and a frequent user of the downtown area's services, I see new housing in downtown, and the residents it would bring in, as a very important element of the solution to the problems facing our downtown district. Our downtown needs more people coming to it, using the business and services (like the Central Library), not fewer. The project is transit-savvy, attractive in its design, and in alignment with the Downtown Area Plan. In short, it is a big step in the right direction for the center of our city, and the community as a whole. Thank you for considering my fulsome endorsement of the 2211 Harold Way project. Douglas Smith Byron Street
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Jacob, Melinda
From: Zoning Adjustments Board (ZAB)Subject: FW: 2211 Harold Way - Please move forward with this project!
Dear Board members I am 70 years old, still working full time and want to grow old in Berkeley. To do this, I need affordable housing. It is shameful that Berkeley is behind the times on building affordable housing for all of us baby boomers who have contributed so much over the years, and want to age in place. Do the right thing, please Rosemary Ehat, Licensed Marriage Family Therapist p.s. Since I am still working I can easily afford my rent controlled rent payment , but if I can't work I will be living on $900.00 a month! Could you do that? Dear Zoning Adjustments Board members, I urge you to approve Use Permit #13-10000010 for the 2211 Harold Way Project. Berkeley citizens have now voted twice for a denser, more vibrant Downtown with taller buildings that contribute significant community benefits. 2211 Harold Way is an incredibly beneficial project that has been through an extraordinary amount of public process. It's time to move this project forward. The Bay Area is currently experiencing an unprecedented housing crisis. One of the ways to help ease that crisis is to build more housing close to jobs, transit, and amenities. 2211 Harold Way would do just that by placing 302 housing units in the heart of Downtown Berkeley. 2211 Harold Way would encourage alternatives to automobile use and would be LEED Gold certified or equivalent, thus fulfilling the vision of Berkeley voters for a greener Downtown. These are enormous benefits, not only for the Berkeley community, but for global sustainability. 2211 Harold Way would potentially contribute $6 million in in-lieu fees to the City's affordable housing fund. The sooner this project is completed, the sooner the City can use those funds to create permanently affordable housing. Berkeley's Downtown Streets and Open Space Improvement Plan (SOSIP) envisions changes that will make Berkeley's streets and sidewalks safer and more enjoyable for people on foot and on bicycles. Not only would 2211 Harold Way dramatically improve the streetscape along Harold Way itself, it would contribute almost $500,000 in SOSIP fees. It has been nearly five years since Berkeley voters passed 2010 Measure R. It is past time to fully live up to the vision of Berkeley citizens and get denser housing built Downtown. Consistent with the will of Berkeley voters and Staff's recommendation, I strongly urge you to act swiftly to approve Use Permit #13-10000010. Rosemary Ehat, LMFT 6239 College Ave, Ste 302 Oakland, CA, 94618 510-869-4445
I'm under 40 and I support the development of housing near downtown Berkeley BART. I'm a reluctant Berkeley resident, but Temescal is too expensive, so surrounded by graybeards in West Berkeley.
Affordable housing is the key issue to me. Anything that can be done to increase the housing supply while adding money into the affordable housing trust should be done. It'd be nice not to have watch another exodus of friends leave the bay
area due to housing costs. I would make the tower taller if anything.
Thank you for your service. It is a thankless task to have your evening hijacked by the self righteous aging hippies of Berkeley.
All the bests,
Matt Smith | Planning & Development Digital Realty | 4 Embarcadero Center, Suite 3200 | SF, CA, 94111 Direct 415.848.9292 | Cell 415.652.2391 [email protected]
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Jacob, Melinda
From: Zoning Adjustments Board (ZAB)Subject: FW: 2211 Harold Way
RE: Potential Violation of Berkeley Municipal Code Section 23.B.24.030 by the Rhoades Planning Group associated with the permitting of the 2211 Harold Way Project (Administrative Use Permit #13-10000010 and related permits) Dear Sir/Madam: Please consider this a formal complaint and request to investigate the potential non-compliance of the Rhoades Planning Group, applicants for the 2211 Harold Way Project for failing to meet the requirements of Berkeley Municipal Code 23B.24.030. This code section requires that:
A. Applications for Permits shall be made in writing on those forms provided by the Zoning Officer. The Zoning Officer may require supporting materials as part of the application, including, but not limited to, studies, reports, statements, photographs, plans, drawings, renderings, models, material samples and other items necessary to describe the existing situation and the proposed project. All material submitted becomes the property of the City, may be distributed to the public, and shall be made available for public inspection. The applicant shall be responsible for the accuracy and completeness of all application information submitted to the City.
Although parties have expressed concerns about the accuracy and completeness of the applicant’s submissions throughout the process, of particular concern, and the subject of this complaint, is the July 28th Pro Forma submitted by the Rhoades Planning Group.
This Pro Forma was the only economic analysis submitted by the applicant, and relied on by the Landmarks Preservation Commission at its August 13, 2015 meeting, to prove the applicant’s contention that only its proposal, as compared to two other alternatives (a Preservation and Contextual alternative) was economically feasible. This same Pro Forma was also submitted to the Zoning Adjustment Board for its pending use in determining the amount of “Significant Community Benefits” required of the project at its September 30th meeting. As discussed below, there are material inaccuracies, omissions, and inconsistent use of data by the applicant that call into question both the “accuracy and completeness” of the Pro Forma as required by the Berkeley Municipal Code. These infirmities relate primarily to information that should have been readily known and available to the applicant, particularly an applicant such as the Rhoades Planning Group which has extensive knowledge and experience in the Berkeley planning process. This letter does not address other concerns with the Pro Forma, such as forecasts of rent levels, upon which reasonable parties may disagree. The following are specific inaccuracies and omissions identified in the Pro Forma. Significantly Inflated Land Costs The Rhoades Planning Group, in its July 28th Pro Forma lists land costs at $40 million but provided no justification for this number. Published reports in Berkeleyside and the San Francisco Business Journal1 list the purchase price at $20 million for 92,000 square feet or $217 per square foot. The official and readily available tax assessment and Alameda County government records list the total cost as $19.6 million.2 Instead, the Rhoades Planning Group listed land “costs” at $40 million. Although the Rhoades Group’s July 28th submission clearly listed the $40 million as a “Cost” it now appears even they now disavow the $40 million figure as the actual cost of the land stating;
The model provided is one which assumes a higher land basis based on the value at the completion of construction and not at the original purchase price, for the purpose of the requested comparison.3
“Cost” is not the same as “Value.” Essentially the Rhoades Group is conflating “profits” with “costs” now conceding that Harold Way’s profits are at least $46 million (a $20 million increase in land value PLUS the $26 million in profits claimed by the applicant in its Pro Forma. As of today, the Rhoades Planning Group has not revised its Pro Forma to reflect a corrected number.
1 Berkeleyside (November 28, 2012);San Francisco Business Times (Nov, 28, 2012) http://www.bizjournals.com/sanfrancisco/blog/real-estate/2012/11/los-angeles-investor-buys-berkeley.html 2 The relevant parcels are 2060 Allston A (57-2027-6) comprising the Hinks Building with Shattuck Cinemas Theatres, retail store fronts along Shattuck Avenue and basement assessed at $14,349,853 and 2070 Allston (57-2027-7) the Postal Annex assessed at $5,288,902. The third parcel on the block, 2060 Allston C (57-2027-8) is not part of the Harold Way Project and consists of the Shattuck Hotel Allston Way and hotel rooms on floors two and above in the Shattuck Hotel extension along Shattuck Avenue. 3 Rhoades Planning Group Response to Comments (ZAB Attachment 7, Sept, 30, 2015 Agenda, p.3)
Even the $20 million figure itself is suspect as it refers to the entire property purchased by the applicant instead of only the portion associated with the Harold Way Project. The Harold Way Draft EIR identifies the Harold Way “project site” as 34,800 square feet, taking up only about 1/3 of the 92,000 square feet purchased.4 It appears that the $20 million purchase price may also include the entire commercial frontage along Shattuck Avenue (from Starbucks to Yogurt Land) comprising 13,912 square feet of prime commercial real estate.5 The applicant has neither; 1) adjusted downward the $20 million purchase price or 2) included in its Pro Forma the offsetting revenues from this portion of the property. Inconsistent Use of Commercial Rent Levels In determining the level of community benefits the applicant claims the project would provide, the Rhoades Planning Group states that each square foot of potential commercial space lost to provide a community benefit is valued at $4.50 per square foot per month.6 Yet, in its July 28th Pro Forma used to determine the level of profits, and hence potential revenues available for community benefits, the applicant uses a significantly lower figure of $2.65 per square foot. Part of this difference may be attributable to different rent levels for the commercial space assigned for retail versus theater uses. However, even using the lowest rental level considered for the theater space ($2.04 per square foot)7 the total rental revenues used in the Pro Forma result in a rental rate for the non-theater portion below $4.50. Omission of Parking Revenues As noted above the Berkeley Municipal Code requires that the applicant is responsible for the “completeness” of its application. Despite Harold Way being designed for 177 parking spaces, the Rhoades Planning Group did not include any revenues from these spaces in its July 28th Pro Forma. This is surprising, and unsupportable, since the number of parking spaces associated with the project is clearly listed on the first page of the application and in the agenda item summary for every City meeting. In its discussion of transportation benefits from the project, the applicant clearly states that these spaces are provided as “unbundled” (i.e. rented separately and not part of the apartment rental) yet fails to include any revenue from these spaces. Even after being asked directly at the September 10, 2015 ZAB meeting if parking revenues were
4 2211 Harold Way Draft EIR, p. ES-1 5 As the Harold Way Draft EIR stated; “Below the hotel rooms along Shattuck Avenue is a row of commercial storefronts that are part of the project site” (Draft EIR, p. ES-1). This includes the entire existing commercial frontage along Shattuck Avenue from Starbucks to Yogurt Land (Harold Way Project Plans, Landmark Preservation Commission, August 13, 2015 meeting http://www.ci.berkeley.ca.us/uploadedFiles/Planning_and_Development/Level_3_-_LPC/2015-08-13_LPC_ATT2_2211%20Harold_Project%20Plans.pdf) 6 In describing the lost rental revenue from construction of a privately-owned public space (POPOs), Harold Way calculated “The cost of the POPOS to the developer is equal to 1,872 square feet of leasable commercial space, as well as 1,800 square feet of leasable residential floor area that are displaced on the second floor to add height to the POPOS. With anticipated commercial rents of approximately $4.50 per square foot per month, and residential rents at $5.10 per square foot per month, the project forgoes approximately $331,578 per year of rents in order to provide this public open space, totaling $6,631,560 over 20 years. (Rhoades Planning Group Documentation of Significant Community Benefits (October 20, 2014), p. 32. 7 Berkeley Draft Conditions of Approval (COA) Sept. 10, 2015
considered in the Pro Forma, Rhoades Planning Group neither responded to ZAB’s request nor updated its Pro Forma. 8 The amount of potential project revenues, not reflected in the Pro Forma could easily be in the range of $300,000 per year at rental rate of $150/month.9 Conclusion and Recommended Relief A cornerstone of the public’s faith in the democratic process in general, and the Berkeley planning process in particular, rests on both decision-makers and the public having “accurate and complete” information upon which to make an informed decision. The material omissions outlined above, potentially in the multi-million dollar range, have a significant effect on evaluating the project’s overall profitability, and hence the level of associated community benefits and feasibility of alternatives. Under the methodology utilized by the Rhoades Planning Group, each additional dollar of net revenue increases the project’s value by over $23. Thus even relatively small omissions, such as parking revenues, can affect the overall value of the project by almost $7 million. Accordingly, we are concerned that the City of Berkeley cannot rely on these numbers until the above concerns, at a minimum are addressed. It is therefore requested that;
• The City Attorney and/or Berkeley Planning Department investigate the applicant’s compliance with the requirements of Berkeley Municipal Code Section 23B.24.030.
• Further City action on, or consideration of the project, be deferred until compliance is
achieved. Finally, please be notified that we will be filing a Public Records Act request regarding how the City has responded to previous cases of inaccurate or incomplete permit applications. We would hope that the same level of review will be applied to the Harold Way Project as is applied to other applicants. Sincerely, /s/ James Hendry James Hendry ATTACHMENT: The Rhoades Planning Group July 28th Pro Forma can be accessed at http://www.ci.berkeley.ca.us/uploadedFiles/Planning_and_Development/Level_3_-_ZAB/2015-08-27_ZAB_ATT3_2211%20Harold_Pro%20Forma%20Memorandum.pdf
8 Rhoades Planning Group Response to Comments (ZAB Attachment 7, Sept, 30, 2015 Agenda, p.3) 9 $150/month for 12 months for 177 spaces equals $318,000 in additional revenue. AECOM, consultants to the City of Berkeley for the Downtown Area Plan estimated parking costs at $120 month in 2011.
We are writing on behalf of the Berkeley Unified School District (~~BUSD") to expressconcerns regarding the proposed 2211 Harold Way Project (°Project"). Specifically,after careful review of the Draft Conditions of Approval for the Project (°DraftCOA's"), we believe the Project as proposed will have potentially significant impactson the health, welfare and safety of BUSD students, teachers and facilities. For thereasons detailed below, we respectfully ask that the Zoning Adjustments Board(°ZAB") take the following actions at its Special Meeting tomorrow evening: (1)postpone approval of the Draft COA's; (2) direct Planning staff to engage the BUSDFacilities Department and Berkeley High School Safety Committee to craftconditions of approval that adequately mitigate the impacts of the Project; and (3)adopt revised COA's as part of the Project approval that reflect adequate mitigationof school-related impacts.
I. Factual Background
As you may be aware, BUSD has previously expressed concerns regarding theproposed Project throughout the planning process. As outlined in a memorandumto the ZAB on June 22, 2015, the BUSD Board of Education (~~BUSD Board")specifically expressed concerns regarding unstudied and unmitigated impacts of theProject on over 3,500 BUSD students and hundreds of teachers and staff thatattend and work on the nearby Berkeley High School and Washington ElementarySchool campuses. The BUSD Board urged that the Planning staff reconsider, reviseand recirculate the EIR to address these impacts and to incorporate documented
DEDICATION
WISDOM ~. 4,, _~~s5: c
KNOW-HOW ~' V
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Honorable Members of the City of Berkeley Zoning Adjustments Board
Department of Planning ~ DevelopmentSeptember 29, 2015Page 2
input from BUSD stakeholders before certifying the EIR. Despite BUSD's position, the EIR was
certified without adequate study and/or imposition of mitigations to address the wide-ranging
school-related impacts resulting from the Project.
BUSD is equally concerned with the procedural processes followed in certifying the EIR for the
Project and in preparing the Draft COA's. Our firm represents school districts throughout
California, and we can state unequivocally that it is standard practice for local public agencies
with planning authority (i.e., cities/towns, counties and school districts) to collaborate on the
location of proposed projects, as well as the impacts of these projects on the surrounding
community. Here, we understand that in response to BUSD's verbal and written commentary
on the impacts of the proposed Project, City representatives have assured BUSD that its
concerns are being heard but not addressed because BUSD's concerns can be addressed at a
future time within the planning process.
For example, although the BUSD Board and the Berkeley High School Safety Committee asked
that the EIR be reconsidered to study and designate specific mitigations for school-related
impacts resulting from the Project, the City contended that those concerns could be addressed
in the COA's. However, the Draft COA's provide only cursory mention of potential impacts and
set forth loose and, in some instances, seemingly unenforceable conditions to address these
impacts. As a result, these conditions remain inadequate to address BUSD's concerns. Given
the procedural posture of the Project, BUSD is now in a position where there is no future
opportunity to address the stated impacts of the Project on its students, teachers and facilities.
Rather, these concerns must be addressed in the Draft COA's.
ITa lJnmitic~ated Impacts of the Proiect
We have reviewed the latest version of the Draft COA's and find that they are insufficient to
address the impacts resulting from the Project. There are approximately ten (10) references to
Berkeley High School - clustered mostly in the conditions related to noise and construction-
related activities. However, all of these references are connected to conditions that are vague
and/or inadequately address the underlying impacts.
Specifically, we believe that neither the EIR nor the Draft COA's adequately study or impose
mitigation and/or conditions to address potentially significant impacts on BUSD students,
teachers and facilities including, but not limited to, the following:
Noisy Proposed conditions are limited to addressing the need for quiet on
testing dates, rather than affirmatively imposing mitigation measures
to offset construction noise in classrooms where noise levels riseabove the interior decibel threshold (45 dBA) for schools. Inaddition, there appears to be no study of or imposition of conditions
or mitigation measures to address post-construction noise inclassrooms resulting from increased vehicular traffic adjacent toBerkeley High School.
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Honorable Members of the City of Berkeley Zoning Adjustments BoardDepartment of Planning &DevelopmentSeptember 29, 2015Page 3
Air ua9ity Proposed conditions fail to address several significant air qualityimpacts resulting from the Project, including: (1) high levels ofgenerated indoor and outdoor dust and debris from demolition ofexisting structures, excavation of land for construction of footingsand foundation for the proposed Project, and construction of an 18-story mixed use structure; (2) construction vehicle and equipmentingress and egress routes and related emissions generated byconstruction ve{iicles and equipment and movement of severalthousand tons of construction and construction-related materials.
°Traffic ~ongesti~n While the proposed conditions state where construction staging will
ar~cl safety not occur, it does not state exactly where the Project will be staged.This omission frustrates any effort to craft a plan for effective trafficmanagement and bicycle and pedestrian safety adjacent to BerkeleyHigh School where thousands of students and teachers access thecampus daily. Proposed conditions are likewise inadequate becausethey are premised upon: (i) limiting traffic on Milvia only, rather thancomprehensively studying and mitigating school access issues causedby traffic congestion on other streets students must travel to get toMilvia within the 1500-foot school safety zone. (See Cal. Pen. Code,section 626 (c)(Z) (B) [defining safe school zone].); (ii) usingstandard 'flag persons" on the congested streets during construction,
but without staggering street closures on more than one accessstreet to permit students to get to school safely and on time; and (iii)identifying contact persons for future problems, but withoutidentifying timely and effective redress procedures for identifiedproblems. Finally, the Project EIR's failure to adequately studyadditional traffic within the Berkeley High School and WashingtonElementary School traffic corridors necessarily means that the DraftCOA's are likewise inadequate to address resulting and increasedtraffic congestion.
Sewage ~ervi~e BUSD has documented concerns regarding the impact of the Project
aracl Capacity on the existing water and sewer systems. Berkeley High Schoolroutinely experiences sewage back-ups on campus due to the strainsplaced on the existing system without the additional burden of amixed use development with 300 dwelling units. Neither the EIR northe Draft COA's provide adequate discussion of how the Project willimpact the existing system or impose any resulting mitigations orconditions to address these impacts.
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Honorable Members of the City of Berkeley Zoning Adjustments BoardDepartment of Planning &DevelopmentSeptember 29, 2015Page 4
l°~ach~r Par6cing Proposed conditions fail to address the impact of the Project onteacher parking. As it stands, teacher parking for 3.200 student highschool is already at a premium. Once the Project is completed, amixed use development with 300 dwelling units and parking for 170
vehicles is bound to increase traffic in and around the Berkeley HighSchool area, and impact availability of off-street parking. Lack ofparking can be a significant drawback to BUSD teachers and staff,and any increased impact on the same resulting from the Projectmust be addressed. It is in the best interest of BUSD and the City as
a whole to cultivate a community that can attract and maintain highly
qualified teaching professionals to preserve Berkeley's excellenteducational reputation.
These concerns have been raised many times -both by the BUSD Board and the Berkeley High
School Safety Committee. Now is the time for the City and the ZAB to stand by the
commitment to address these concerns by crafting specific and tangible conditions that are
clear and enforceable.
To address the repeated concerns raised by BUSD, we urge that the ZAB:
(a) Postpone approval of the Draft COA's; and
(b) Direct Planning staff to work with the District on an expedited basis to revise
sections of the Draft COA's to address the impacts set forth above; and
(c) Adopt as part of the Project approval revised COA's that incorporate specific and
enforceable conditions that address the noise, air quality, traffic, parking andsewage service impacts on BUSD students, teachers and facilities.
BUSD staff and Berkeley High School Safety Committee members stand ready to meet and
confer on these issues immediately such that the item can come back to the ZAB for action in
the very near future.
We note for the record that BUSD is not ~~opposing" the Project. Rather, the above-requested
actions illustrate BUSD's continuing attempt to work collaboratively and diligently with the City
and the ZAB to ensure that the impacts of the Project, while in construction and oncecompleted, are properly mitigated and will not impact the health, welfare and safety of BUSD
students and teachers, as well as the facilities and community they occupy daily. We are
hopeful that a mutually agreeable and expeditious process will ensure to help meet these
objectives.
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Honorable Members of the City of Berkeley Zoning Adjustments BoardDepartment of Planning &DevelopmentSeptember 29, 2015Page 5
Please feel free to contact our office should you have any questions.
Best regards,
DANNIS WOLIVER KELLEY
Clarissa R. Canady
cc: Berkeley Unified School District Governing BoardDr. Donald Evans, Berkeley Unified School District SuperintendentTimothy White, Berkeley Unified School District Executive Director of FacilitiesBerkeley High School Safety Committee
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Jacob, Melinda
From: Chris Lee-Egan <[email protected]>Sent: Wednesday, September 30, 2015 7:51 AMTo: Zoning Adjustments Board (ZAB)Subject: Please support 2211 Harold Way!
Please do not let the opposition, which has tried to use every dirty trick in the book, to derail this project. Not
only does Harold Way provide significant new housing stock in the area, but it is consistent with the downtown
area plan, which the vast majority of Berkeley residents voted to support twice, once in its initial form, and once
more to reject its modification into something unrecognizable. Moreover, 2211 Harold Way promises to
contribute significant funds to the affordable housing fund, a fund that is so empty that I've learned that city
council members are contemplating taking a loan against it just to be able fund new affordable housing.
Please do the right thing!
Chris Lee-Egan
1130 Hopkins St
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Jacob, Melinda
From: Zoning Adjustments Board (ZAB)Subject: FW: Letter to ZAB, Commissions, & Council on 2211-Harold Way Project
Subject: Letter to ZAB, Commissions, & Council on 2211-Harold Way Project
Dear Zoning Adjustment Board Members, Mayor Bates and City Council, DRC Commissioners and Citizens: Re: the 2211-Harold Way Project The proposed 2211 Harold Way Project continues with unresolved problems and new issues. The amount of public reports, documentation and public responses is enormous for 2211 Harold Way Project. Buried in the hundreds of pages are pieces of critical information that need repeating and resolution in the consideration of rejection or approval at each step/stage of decision making of this Harold Way Project. Most disappointing is the age and usefulness of some of the reports that are being used for this project and are outdated. Some of the important issues that continue to be of great concern are: Transportation The June 18, 2014 letter from Alameda County Transportation Commission projected exceeding the 100 peak hour P.M. (evening) car trips per day and calls for analysis of traffic impact by the Harold Way Project to include bike, pedestrian and transit and car to extend to Dwight and University and freeway not just the immediate downtown vicinity. In the report prepared for the applicant by IBI Group Report, the applicant projected 90 car trips per day with no substantiating evidence thereby avoiding freeway and main through traffic corridor analysis. The Transportation Analysis by IBI Group Report is limited to only the immediate intersections as noted and excludes Dwight and University. The P.M. peak analysis of traffic begins at 4:00 pm and excludes peak traffic from Berkeley High School (BHS) approximately 3300 students at the end of the school day which is approximately 3:20 pm. The Transit Analysis in this same report projects that impact on BART and AC transit will be minimal with maximum increased BART ridership of (7-!) southbound passengers during a.m. PEAK Hour and (6-!) northbound passengers in the PM peak hour. The projected occupancy of 2211-Harold Way by the applicant is 500 people, 800 - 1200 occupants was projected by a ZAB member on August 27, 2015. The building has been presented as "green-transit" oriented building with occupants using public transit instead of cars and yet only 7 of the 500 occupants are expected to use BART to go to work during the am peak transit hour and therefore have minimal impact on a system that is known to be overloaded. This IBI-Transit Analysis assumption collides with target-market audience of techies from San Francisco to flock to this project.
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Plus, the assumption that empty-nesters will also be attracted to 2211-Harold Way contradicts with the 2015 - 2023 Housing Elements report analysis which states that empty nesters prefer to age-in-place (to live & age in their current single family residence). This analysis also contradicts with the presentation of Harold Way Project as a "green-transit" oriented building project with at least the majority of travels by car with 90 P.M. (evening) trips versus 6 public transit trips per P.M.(evening). That leaves 400 occupants staying home, biking or walking and not using public transit. [See Transit Analysis page from IBI report <Transit Analysis DEIR IBI Group Report.pdf>] Wind Analysis Wind and Comfort Analysis in Appendix F by Donald Ballanti, Consulting Meteorologist, 1434 Scott Street, El Cerrito, CA 94530,--(510) 234-6087--for Abe Leider at Rincon Consultants, addresses wind and comfort levels for pedestrians at the ground level using the original tower with the 120 foot width. The narrow tower width (as per the Downtown Area Plan) is to minimize wind tunnels and acceleration. This report is out of date and incorrect for this project building as it is proposed with tower widths far exceeding the width as noted in the report. Additionally, there is no wind analysis for the rooftop deck. An analysis which may make a rooftop deck at that height unusable. Rooftop fire pits and other sources of flame come into question with wind (tunneling and in high open spaces), and excludes the potential public resource impact of severe drought (impacting firefighting and community water resources). While much has been made of parking entrance and exits in other projects presented to DRC and ZAB and where upon some projects were required to change locations and occasionally to add another entrance or exit, the single entrance/exit to the underground parking in 2211 Harold Way Project plan has never been addressed. In documents from the applicant's project plans, parking exits are projected as a 50%/50% split between cars turning east or west out of the driveway during peak traffic hours. Turning right/west during peak am sends traffic toward Berkeley High School. The traffic patterns and mitigation for traffic after occupancy need further study. The driveway is also across from the Main Public Library which is already a very narrow street area. The cumulative impact of the proposed Harold Way Project and the other Downtown developments also requires further traffic study. While it is the belief that concentrated housing at transportation hubs will encourage transit use, the increased density population focuses and forces negative density impact issues on all local elements. Additionally, high-rise buildings cause greater pollution with a bigger carbon footprint than lower and midsize buildings. And, finally high-rise buildings create greater pollution than vehicles. Such so-called "smart growth" has mainly been a successful model for speculative investing, and high-rise buildings bring bigger profits for investors and corporate landlords. The rest of the inconvenient truths on climate and water-issues and infrastructure issues have been addressed in previous letters and by others. Finally, what should be foremost in your consideration of this and all new residential projects is whether they address Berkeley's most urgent need—for inclusionary low income, family, affordable housing built to rigorous zero net energy standards. As ABAG announced last month, Berkeley is well ahead of its quota for market rate and luxury housing and shamefully behind in providing new affordable units. The state will require zero net energy for new residential construction in fewer than five years. Rather than allowing for-profit developers to take up our available sites before these higher standards go into effect, Berkeley should be advancing these standards and applying them now, in light of the damage we are already seeing in California as a consequence of global climate change. The 2211 Harold Way Project plans serve neither our need for affordable housing nor for the
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more rigorous energy conservation and efficiency standards that Berkeley residents expect our city government to require. Respectfully, Adolfo Cabral 834 Channing Way District 2
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Jacob, Melinda
From: Zoning Adjustments Board (ZAB)Subject: FW: NO ON HAROLD WAY!!!!!!
We are writing on behalf of the Berkeley Unified School District (~~BUSD") to expressconcerns regarding the proposed 2211 Harold Way Project (°Project"). Specifically,after careful review of the Draft Conditions of Approval for the Project (°DraftCOA's"), we believe the Project as proposed will have potentially significant impactson the health, welfare and safety of BUSD students, teachers and facilities. For thereasons detailed below, we respectfully ask that the Zoning Adjustments Board(°ZAB") take the following actions at its Special Meeting tomorrow evening: (1)postpone approval of the Draft COA's; (2) direct Planning staff to engage the BUSDFacilities Department and Berkeley High School Safety Committee to craftconditions of approval that adequately mitigate the impacts of the Project; and (3)adopt revised COA's as part of the Project approval that reflect adequate mitigationof school-related impacts.
I. Factual Background
As you may be aware, BUSD has previously expressed concerns regarding theproposed Project throughout the planning process. As outlined in a memorandumto the ZAB on June 22, 2015, the BUSD Board of Education (~~BUSD Board")specifically expressed concerns regarding unstudied and unmitigated impacts of theProject on over 3,500 BUSD students and hundreds of teachers and staff thatattend and work on the nearby Berkeley High School and Washington ElementarySchool campuses. The BUSD Board urged that the Planning staff reconsider, reviseand recirculate the EIR to address these impacts and to incorporate documented
DEDICATION
WISDOM ~. 4,, _~~s5: c
KNOW-HOW ~' V
DWK SE 815488v1
Honorable Members of the City of Berkeley Zoning Adjustments Board
Department of Planning ~ DevelopmentSeptember 29, 2015Page 2
input from BUSD stakeholders before certifying the EIR. Despite BUSD's position, the EIR was
certified without adequate study and/or imposition of mitigations to address the wide-ranging
school-related impacts resulting from the Project.
BUSD is equally concerned with the procedural processes followed in certifying the EIR for the
Project and in preparing the Draft COA's. Our firm represents school districts throughout
California, and we can state unequivocally that it is standard practice for local public agencies
with planning authority (i.e., cities/towns, counties and school districts) to collaborate on the
location of proposed projects, as well as the impacts of these projects on the surrounding
community. Here, we understand that in response to BUSD's verbal and written commentary
on the impacts of the proposed Project, City representatives have assured BUSD that its
concerns are being heard but not addressed because BUSD's concerns can be addressed at a
future time within the planning process.
For example, although the BUSD Board and the Berkeley High School Safety Committee asked
that the EIR be reconsidered to study and designate specific mitigations for school-related
impacts resulting from the Project, the City contended that those concerns could be addressed
in the COA's. However, the Draft COA's provide only cursory mention of potential impacts and
set forth loose and, in some instances, seemingly unenforceable conditions to address these
impacts. As a result, these conditions remain inadequate to address BUSD's concerns. Given
the procedural posture of the Project, BUSD is now in a position where there is no future
opportunity to address the stated impacts of the Project on its students, teachers and facilities.
Rather, these concerns must be addressed in the Draft COA's.
ITa lJnmitic~ated Impacts of the Proiect
We have reviewed the latest version of the Draft COA's and find that they are insufficient to
address the impacts resulting from the Project. There are approximately ten (10) references to
Berkeley High School - clustered mostly in the conditions related to noise and construction-
related activities. However, all of these references are connected to conditions that are vague
and/or inadequately address the underlying impacts.
Specifically, we believe that neither the EIR nor the Draft COA's adequately study or impose
mitigation and/or conditions to address potentially significant impacts on BUSD students,
teachers and facilities including, but not limited to, the following:
Noisy Proposed conditions are limited to addressing the need for quiet on
testing dates, rather than affirmatively imposing mitigation measures
to offset construction noise in classrooms where noise levels riseabove the interior decibel threshold (45 dBA) for schools. Inaddition, there appears to be no study of or imposition of conditions
or mitigation measures to address post-construction noise inclassrooms resulting from increased vehicular traffic adjacent toBerkeley High School.
DWK SF 815488v1
Honorable Members of the City of Berkeley Zoning Adjustments BoardDepartment of Planning &DevelopmentSeptember 29, 2015Page 3
Air ua9ity Proposed conditions fail to address several significant air qualityimpacts resulting from the Project, including: (1) high levels ofgenerated indoor and outdoor dust and debris from demolition ofexisting structures, excavation of land for construction of footingsand foundation for the proposed Project, and construction of an 18-story mixed use structure; (2) construction vehicle and equipmentingress and egress routes and related emissions generated byconstruction ve{iicles and equipment and movement of severalthousand tons of construction and construction-related materials.
°Traffic ~ongesti~n While the proposed conditions state where construction staging will
ar~cl safety not occur, it does not state exactly where the Project will be staged.This omission frustrates any effort to craft a plan for effective trafficmanagement and bicycle and pedestrian safety adjacent to BerkeleyHigh School where thousands of students and teachers access thecampus daily. Proposed conditions are likewise inadequate becausethey are premised upon: (i) limiting traffic on Milvia only, rather thancomprehensively studying and mitigating school access issues causedby traffic congestion on other streets students must travel to get toMilvia within the 1500-foot school safety zone. (See Cal. Pen. Code,section 626 (c)(Z) (B) [defining safe school zone].); (ii) usingstandard 'flag persons" on the congested streets during construction,
but without staggering street closures on more than one accessstreet to permit students to get to school safely and on time; and (iii)identifying contact persons for future problems, but withoutidentifying timely and effective redress procedures for identifiedproblems. Finally, the Project EIR's failure to adequately studyadditional traffic within the Berkeley High School and WashingtonElementary School traffic corridors necessarily means that the DraftCOA's are likewise inadequate to address resulting and increasedtraffic congestion.
Sewage ~ervi~e BUSD has documented concerns regarding the impact of the Project
aracl Capacity on the existing water and sewer systems. Berkeley High Schoolroutinely experiences sewage back-ups on campus due to the strainsplaced on the existing system without the additional burden of amixed use development with 300 dwelling units. Neither the EIR northe Draft COA's provide adequate discussion of how the Project willimpact the existing system or impose any resulting mitigations orconditions to address these impacts.
DWK SF 815488v1
Honorable Members of the City of Berkeley Zoning Adjustments BoardDepartment of Planning &DevelopmentSeptember 29, 2015Page 4
l°~ach~r Par6cing Proposed conditions fail to address the impact of the Project onteacher parking. As it stands, teacher parking for 3.200 student highschool is already at a premium. Once the Project is completed, amixed use development with 300 dwelling units and parking for 170
vehicles is bound to increase traffic in and around the Berkeley HighSchool area, and impact availability of off-street parking. Lack ofparking can be a significant drawback to BUSD teachers and staff,and any increased impact on the same resulting from the Projectmust be addressed. It is in the best interest of BUSD and the City as
a whole to cultivate a community that can attract and maintain highly
qualified teaching professionals to preserve Berkeley's excellenteducational reputation.
These concerns have been raised many times -both by the BUSD Board and the Berkeley High
School Safety Committee. Now is the time for the City and the ZAB to stand by the
commitment to address these concerns by crafting specific and tangible conditions that are
clear and enforceable.
To address the repeated concerns raised by BUSD, we urge that the ZAB:
(a) Postpone approval of the Draft COA's; and
(b) Direct Planning staff to work with the District on an expedited basis to revise
sections of the Draft COA's to address the impacts set forth above; and
(c) Adopt as part of the Project approval revised COA's that incorporate specific and
enforceable conditions that address the noise, air quality, traffic, parking andsewage service impacts on BUSD students, teachers and facilities.
BUSD staff and Berkeley High School Safety Committee members stand ready to meet and
confer on these issues immediately such that the item can come back to the ZAB for action in
the very near future.
We note for the record that BUSD is not ~~opposing" the Project. Rather, the above-requested
actions illustrate BUSD's continuing attempt to work collaboratively and diligently with the City
and the ZAB to ensure that the impacts of the Project, while in construction and oncecompleted, are properly mitigated and will not impact the health, welfare and safety of BUSD
students and teachers, as well as the facilities and community they occupy daily. We are
hopeful that a mutually agreeable and expeditious process will ensure to help meet these
objectives.
DWK SF 815488v1
Honorable Members of the City of Berkeley Zoning Adjustments BoardDepartment of Planning &DevelopmentSeptember 29, 2015Page 5
Please feel free to contact our office should you have any questions.
Best regards,
DANNIS WOLIVER KELLEY
Clarissa R. Canady
cc: Berkeley Unified School District Governing BoardDr. Donald Evans, Berkeley Unified School District SuperintendentTimothy White, Berkeley Unified School District Executive Director of FacilitiesBerkeley High School Safety Committee
DV✓K SF 815488v1
1
Jacob, Melinda
From: Zoning Adjustments Board (ZAB)Subject: FW: Document for the ZAB hearingAttachments: ZAB.cwk (WP).pdf; sfbay_county_print.pdf
The full document with details is attached and will be provided at the meeting on Wed. Sept 30th. Zoning Adjustments Board September 29, 2015 Land Use Planning (Zoning) Division Permit Service Center, 2120 Milvia Street, Berkeley, CA 94704, To Zoning Adjustment Board Members. Prakash Pinto (Chair), Denise Pinkston (Vice Chair), Igor Tregub, Shoshana O’Keefe, Sophie Hahn, Steven Donaldson, Savlan Hauser, Richard Christiani, George Williams
In opposition to the approval of 2211 Harold Way, I would like to submit this critique of the Harold Way proposal for the special hearing on September 30, 2015. There are four main problems which are discussed in detail below. Bold is my doing.
Summary: 1. Report from The Economic Review of 2211 Harold Way on Community Benefits by Economic and Planning Systems states that the theater complex as constituted by Rhoades et al will require a subsidy of $1.35 million from the city of Berkeley into perpetuity.
2. The 2211 Harold Way project proposed by Rhoades et al violate provisions of Measure R passed in 2010. a. Measure R states that "new buildings must not be higher than 180'." b. Measure R states that policies should "help make Berkeley one of the greenest cities in the United States.” Plans for 2211 include only the hope that residents will use public transpiration and bicycles, and will need few parking spaces for cars, There is no planning for increasing public transit capacity, or the examining characteristic of the labor force to see if they work nearby and would live in 2211 housing.
3. Outside consultants relied solely on information provided by Mr. Rhoades and company. They did not do independent studies of the project.
a. Reports from Tipping Structural Engineers regarding the basement cinema construction under the Shattuck Hotel were based on documents provided by Rhoades and company, and did not involve an actual inspection of the site. Who is liable if there is an earthquake failure? b. The Conditional GREENTrip Certification for the Residences at Berkeley Plaza is based on Rhoades et al data and is inaccurate.
4. The ZAB Planning Staff Report of Sept 30, 2015 contradicts itself.
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2211 Harold Way housing does not meet ABAG requirment to “expand housing opportunities in Berkeley to meet the needs of all groups at a range of prices and rents.” Margot Smith, Dr.P.H. 1300 A Shattuck Ave Berkeley, CA 94709 510-486-8010 [email protected]
Zoning Adjustments Board September 29, 2015Land Use Planning (Zoning) Division Permit Service Center, 2120 Milvia Street, Berkeley, CA 94704,
To Zoning Adjustment Board Members. Prakash Pinto (Chair), Denise Pinkston (Vice Chair), Igor Tregub, Shoshana O’Keefe, Sophie Hahn, Steven Donaldson, Savlan Hauser, Richard Christiani, George Williams
I would like to submit this critique of the 2211 Harold Way proposal for the special hearing on September 30, 2015. There are four main problems which are discussed in detail below. Bold is my doing.
Summary:1. Report from The Economic Review of 2211 Harold Way on Community
Benefits by Economic and Planning Systems states that the theater complex as constituted by Rhoades et al will require a subsidy of $1.35 million from the city of Berkeley into perpetuity.
2. The 2211 Harold Way project proposed by Rhoades et al violate provisions of Measure R passed in 2010.
a. Measure R states that "new buildings must not be higher than 180'."b. Measure R states that policies should "help make Berkeley one of the
greenest cities in the United States.” Plans for 2211 include only the hope that residents will use public transpiration and bicycles, and will need few parking spaces for cars, There is no planning for increasing public transit capacity, or examining characteristic of the labor force to see if they work nearby and would live in 2211 housing.
3. Outside consultants relied solely on information provided by Mr. Rhoades and company. They did not do independent studies of the project.
a. Reports from Tipping Structural Engineers regarding the basement cinema construction under the Shattuck Hotel were based on documents provided by Rhoades and company, and did not involve an actual inspection of the site. Who is liable if there isbearthquake failure?
b. The Conditional GREENTrip Certification for the Residences at Berkeley Plaza is based on Rhoades et al data and is inaccurate.
1
4. The ZAB Planning Staff Report of Sept 30, 2015 contradicts itself.2211 Harold Way housing does not meet ABAG requirment to “expand housing opportunities in Berkeley to meet the needs of all groups at a range of prices and rents.”
Details of Critique of the Applicants documentation:
1. Report from The Economic Review of 2211 Harold Way Community Benefits by Economic and Planning Systems states that the theater complex as constituted by Rhoades et al will require a subsidy of $1.35 million from the city of Berkele into perpetuity.
The review states on page 6 "The applicant's memorandum concerning community benefits presents a financial feasibility analysis who indicates that the anticipated market rate rent from the theater does not justify the investment in theater development…The city would need to subsidize the theater by …$525,000 a year…These analytical assumptions reduce the estimated community benefits by 33%, 43% and 76%…(figure 3)."
The ZAB Staff Report: from the list of community benefits, page 18--"Movie Theater Complex: $17.85 Million. Construction of the ten movie theater complex, an arts and culture benefit, is estimated to cost$16.5 million. In addition, an estimated rent subsidy of $1.35 million is required; this number captures the rent subsidy for the first 20 years of operation, but would be necessary in perpetuity.
The Berkeley Community already benefits from the presence of the Shattuck Cinemas and they now do not require subsidy. So how do the theaters become a community benefit after 2211 Harold way is built, requiring a subsidy of $1.35 million from the city of Berkele into perpetuity?
2. The 2211 Harold Way project proposed by Rhoades et al violate provisions of Measure R passed in 2010.
a. Measure R states that "new buildings must not be higher than 180'."
Measure R: Shall the City of Berkeley adopt policies to revitalize the downtown and help make Berkeley one of the greenest cities in the United States by meeting our climate action goals; concentrating housing, jobs and cultural destinations near transit, shops and amenities; preserving historic resources; enhancing open space; promoting green buildings; and calling for 2 residential buildings and 1 hotel no taller than our
2
existing 180 foot buildings and 2 smaller office buildings up to 120 feet?
According to the ZAB staff report of Sept 30, 2115, they agree that the"Administrative Use Permit to allow mechanical penthouse, elevator equipment and other projections to exceed maximum building height, under BMC Section 23E.04.020.C"
Therefore, Measure R is violated.
b. Measure R states that policies should "help make Berkeley one of the greenest cities in the United States.” Plans for 2211 include only the hope that residents will use public transpiration and bicycles, and will need few parking spaces for cars, but does not provide data.
The ZAB staff report of Sept 30, 2115, states Land Use: Consistent with DAP Goal LU-1 (including Policies LU-1.1 and LU-1.3), the Project will include residential, commercial and cinema uses that allow people who live, work and learn in Downtown to meet daily needs on foot.
However, according to the US Census, 2013, the average time to work for Berkeley residents is 26.9 minutes. They are not working in Downtown Berkeley.
Page 22: Consistent with DAP Goal AC-4, the Project will promote transit as an efficient and attractive choice through its location and through its TDM Plan and other associated Conditions of Approval
This is wishful thinking at best. Staff did not provide data on local transportation and the need for increased capacity of our already crowded public transit system, given an additional 500 + passengers.
2. Outside consultants did not do independent studies of the project but relied solely on information provided by Mr. Rhoades and company.
a. Report from The Economic Review of 2211 Harold Way Community Benefits by Economic and Planning Systems states:
"The review relies on the applicant's characterization of the baseline project….The review considers real estate development costs presented by the applicant…but does not include any original cost estimation work." And "The Review does not include a movie theater market analysis" by the consultant.
3
In other words, the consultant reported what the client wanted to hear.
b. Report from the Conditional GREENTrip Certification for the Residences at Berkeley Plaza.:
"Based on information provided by the consultant, Rhoades Planning Group, The Residences at Berkeley Plaza meets the GreenTRIP certification standards for the Urban Center Place type."
The information provided to GreenTRIP by Rhoades was that there are 12,931 jobs within 1/2 mile of the project. However, there is no information on how many of these jobs pay sufficient wages to rent their apartments.
Acccording to the U.S.Census, 2013,The per capita income of Berkeley residents in 2013 was $41,308.The median family income in 2013 was $111,733.Median earnings for workers (dollars) $31,882Median earnings for male full-time, year-round workers (dollars) $68,097 Median earnings for female full-time, year-round workers) $59,619
According to Economic and Planning Systems who consulted with the project, rents at 2211 Harold Way will range from $51,875 to $155,000 a year, depending on the floor and the view. So the location and proximity to transportation for Berkeley workers who do not earn this income is immaterial.
The ZAB staff report of Sept 30, 2115, states, page 23" Housing and Community Health and Services: Consistent with DAP Goals HC-1 andHC-3, the Project will encourage Downtown as a thriving, livable, diverse residential neighborhood with a mix of supportive uses, and play a significant role in meeting Berkeley’s continuing need for additional housing."
Because of the low incomes of Berkeley workers, the high rents asked by the developer and the low expectations of the need for transportation, the project does not fulfill the diverse residential neighborhood housing need for Berkeley people. These apartments will be filled by transients and high income newcomers.
c. Report from Tipping Structural Engineers regarding the basement cinema construction under the Shattuck Hotel was based on documents provided by Rhoades and company, and did not involve an actual inspection of the site.
4
Quote from the Tipping report: "As detailed below, after studying the proposed development plans and various reports documenting existing conditions at the site, we conclude that the proposed construction of the basement cinema spaces are structurally feasible…."
Attached is a map of earthquake prone areas of the East Bay. It seems to me it would be wise for engineers to actually view the project and not rely on second hand reports. Who would be liable if it failed in an earthquake? Tipping? Rhoades? The City of Berkeley?
Staff Report, Sept 30 2015, Page 17: makes assumptions about seismic safety:
"Proposed changes to the retail strip and basement under the Shattuck Hotel (which is not owned by the project proponent) include the creation of a new cinema lobby on the ground floor and adding two theaters in the basement. There would be three major components to the associated structural work…
"Seismically strengthen the area affected by the new construction and the retail strip under the Shattuck Hotel. This would require the addition of four concrete shear walls that would extend from the basement to the underside of the second floor. This work would not seismically strengthen the entire building, but only the area directly affected by the new construction. This structural work would not be visible from the exterior of the building. It should be noted that the proposed new building’s foundation system would be integrated with and would complement the existing Shattuck Hotel foundation system where it may come in contact."
"The project team includes Telmaon Engineering (Civil Engineer), Olmm Consulting Engineers (Structural Engineer), and Tipping Structural Engineers, as well as Andrew Ball of Suffolk Construction, who have consulted on and reviewed project plans and preliminary structural and geotechnical investigations to ensure construction feasibility and construction technique."
Staff notes that the area was not inspected but relied on reports from Rhoads, et. al.
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3. The ZAB Planning Staff Report of Sept 30, 2015 contradicts itself.
On page 14, " Building heights in the vicinity range from two to three-stories (portions of the Dharma College complex on Harold Way and U.S. Post Office along Kittredge Street) to the 12-story 2140–2144 Shattuck Avenue Chamber of Commerce Building (173 feet) and 14-story 2150 Shattuck Avenue First Savings/Great Western Building (180 feet). The adjacent Shattuck Hotel is five stories in height, not including the basement. Most buildings around the project site are in the two-to five-story range."
III.Project DescriptionThe proposed project is an 18-story mixed-use development located in Downtown Berkeley. The main project components include:• 302 dwelling units• A10-theater cinema• Approximately 10,877 square feet of ground-floor commercial (retail and restaurant) space,and• A 177-space3-level underground parking garage with 74 bicycle parking spaces
The building is clearly out of scale with its neighboring structures which are two to five stories in height..
“In order to approve these Use Permits, the Board must findthat a proposed use or structure must:1. Be compatible with the purposes of the District; and2. Be compatible with the surrounding uses andbuildings”
page 22 "Streets and Open Space: Consistent DAP Goal OS-1, the Project will enhance public open spaces and streets to benefit pedestrians, improve Downtown’s livability, and foster an exceptional sense of place."
No justification for this conclusion is presented by staff.
“The Project would further General Plan Policy H-19–Regional Housing Needs by including housing to help the City attain the fair share housing goal established by ABAG’s Regional Housing Needs Determination for Berkeley. The project would advance the objectives and policies of the City’s Housing Element, including Objective 1, that
6
Berkeley residents should have access to quality housing at a range of prices and rents, and Objective 3, that new housing should be developed to expand housing opportunities in Berkeley to meet the needs of all groups.”
2211 Harold Way housing does not expand housing opportunities in Berkeley to meet the needs of “all groups at a range of prices and rents.”Rents are affordable for people with yearly income of at least $155,625 to $465,000, assuming that housing is one third of their earnings.
ABAG’s Regional Housing Needs Determination for Berkeley were made by an organization that is not overseen by any elected body and is not responsible to any constituency. ABAG directors are not elected, and do not suffer the consequences of their poor judgement. There is no imperative to enact their determinations.
Despite the objections of many Berkeley residents, the City of Berkeey Planning staff determined that "the project is consistent with Findings noted in Section 23E.68.090.B.2" and should be approved. This is an opinion and should not be a part of the staff report.
Very Truly Yours,
Margot Smith, Dr.P.H.1300 A Shattuck AveBerkeley, CA [email protected]
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Data Sources:Califonia Seismic Safety Commission, California Geological Survey, Governor's Office of Emergency Services, and United States Geological Survey, April, 2003, Earthquake Shaking Potential for California, California Seismic Safety Commission Publication No. 03-02.Major roads from Thomas Brothers Maps, Inc., 2000, 2001. Shaded relief from U.S. Geological Survey 30 meter DEMs.
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Earthquake Shaking Potential for the San Francisco Bay RegionSTATE OF CALIFORNIA - GRAY DAVIS, GOVERNOR
CountiesSummer, 2003
This map shows the relative intensity of ground shaking and damage in the San Francisco Bay Region from anticipated future earthquakes.
Important messages about earthquakes for the Bay Area:
Earthquakes have produced over $55 billion in losses in California since 1971. The next large earthquake may produce even greater losses, especially if it affects a major urban area. If the Northridge or Loma Prieta earthquakes had occurred closer to a major population center, fatalities would have been much higher.
A large earthquake in or near the Bay Area will disrupt the economy of the entire State and much of the nation. Effective disaster planning by State and local agencies, and by private businesses, can dramatically reduce losses and speed recovery. (For information go to www.oes.ca.govor www.seismic.ca.gov)
Current building codes will reduce damage but their objective is life safety, not continued operation of the facility.
After a large earthquake, residents and businesses may be isolated from basic police, fire, and emergency support for a period ranging from several hours to a few days. Citizens must be prepared to survive safely on their own, and to aid others, until outside help arrives. (For information go to www.oes.ca.gov)
Maps of the shaking intensity after the next major earthquake will be available within minutes on the Internet. The maps available at http://www.cisn.org/shakemap, a cooperative effort of OES, CGS, USGS, Caltech and UC Berkeley, will help identify the areas most seriously affected and will guide emergency crews to the most damaged regions.
1
September 29, 2015
TO: Berkeley Zoning Adjustment Board
RE: Agenda Item #1 – 2211 Harold Way Project
I am writing in opposition to approving the above project at the ZAB meeting of September 30, 2015 as
critical and Council-mandated work associated with assessing the community benefits of the project has
not been completed. If a more complete independent analysis not available at the time of ZAB’s
meeting, I urge that consideration of the project be delayed.
Context of significant community benefits
The Downtown Plan calls for and the citizens of Berkeley expect city staff and consultants and the
Zoning Adjustment Board to carefully consider each project that exceeds by-right approval in the
Downtown and to assess significant benefits for each one in proportion to its added value. In support of
the Downtown Plan, the City Council resolution from June, 2015 reiterates that “applicants shall provide
an estimate of the cost of the proposed benefits or fee package” in order for the City to independently
evaluate whether the benefits package “is adequate in proportion to the value of the additional height “
Under the Council resolution, each project’s financial information is to be reviewed by an independent
consultant.
Consultant analysis
The analysis submitted by the consultant retained for this project focuses almost entirely on
mathematical calculation of the benefits offered by the applicant with only a very cursory assessment of
overall project costs and revenues. Before ZAB considers approving the project, additional questions
should be addressed by an independent analysis to evaluate whether the benefits package is adequate
in proportion to the value of the additional height (section B of Council resolution 67.172). These
areas of required inquiry are focused in three areas:
Calculation of value of rents for floors above 75 feet. The figures provided by the applicant
appear to include only the units themselves, and not common areas to be used by tenants.
Costs as submitted by the applicant are overstated by an estimated $30 million:
o Land costs for the project are vastly overstated. The applicant paid $20 million for the
property, even including the landmarked portions of the Shattuck Hotel, which are not
part of this project. The applicant indicates that the $40 million figure in its submission
represents the value of the land once the project is complete, not the cost to it of the
land. This figure needs to be closely examined.
o The theater costs assume that the applicant would not otherwise build anything in that
part of the property. What is needed is an assessment of the net difference between the
cost (less revenues) of the theater versus the cost (less revenues) of general retail. This is
the maximum portion of the theater costs that can be reasonably claimed as either a
mitigation or community benefit.
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o The figure for rents of $4.13 per square foot for the theaters differs from the
$3.50/square foot used by Rhodes Group in its October, 2014 submission. Also, the
applicant has agreed that the City will pay only half of the rent if the theaters revert to
City management, implying that they have included the lower figure in their calculations
and continue to find the project to be viable. An independent analysis should assess the
profit margin of the project assuming the lower rents.
o The applicant’s submission indicates that it is providing a benefit to Habitot of $350,000
but it’s expense figures show $1,250,000 as an expense for Habitot, overstating the
project’s costs by $900,000.
o A 36% operating costs has been used for all tenant types, even though retail and parking
typically incur few costs per square foot of operation.
On the other hand, revenues are set by the applicant understate or are missing some
significant revenue streams and in some instances contradict each other, leading to
underestimation of a minimum of $1.5 million in revenues:
o Assumed revenues from non-theater retail use a figure of only $2.65 per square foot while
the rent subsidy for theaters is based on the applicant’s claim that the theater space could
otherwise bring in $4.13 per square foot.
o Revenues from parking are not included.
The net result is that the project is likely to earn a much larger likely profit than shown by the
applicant, even assuming inclusion of the Project Labor Agreement and the movie theaters.
Guidance from the Council on use of funds
As pointed out by the City Manager in an email on July 11, 2015 in response to a letter from Ellen
Widess (followed by a letter from Anna de Leon), the Council’s resolution is advisory and ZAB retains
authority to set benefits. At the same time, while not directed to include housing, as seen in Option A,
affordable housing “that exceeds the existing requirements” and PLAs were set as Council’s highest
priority and conform to community values expressed at many meetings. While this project’s was
exempted from the higher nexus fee for affordable housing adopted by the Council last month, the
nexus study further supports that more in affordable housing is justified by the impact that market rate
housing has on the need for affordable housing.
Thank you for your consideration.
Sincerely,
Kathryn Harrison
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Jacob, Melinda
From: Zoning Adjustments Board (ZAB)Subject: FW: Additional comments transportation Re: Open letter to Boards, Commissions, Council
STATEMENT OF BHS SAFETY COMMITTEE CO-CHAIR ENID CAMPS IN
OPPOSITION TO APPROVAL OF COAS FOR THE 2211 HAROLD WAY PROJECT
(SEPTEMBER 29, 2015)
As a Berkeley High School (BHS) parent and Co-Chair of the BHS Safety Committee I urge the
ZAB to reject the Conditions of Approval for 2211 Harold Way related to BHS and
Washington Elementary School.
The City’s COAs for the 2211 Harold Way Project not only are insufficient to protect student
health, safety, and welfare, they arguably permit the City to evade State standards designed to
ensure a productive learning environment for students.
For example, as more fully set forth below, the COA ignores compliance with the 45 dBA daily
threshold for interior noise at schools, and instead sets the noise threshold at 65 dBA, but only
on specific school-wide test days, and only for exterior noise.
Although the City has produced a COA document after meeting with BUSD representatives, that
document was not timely prepared, and in any event, did not satisfactorily resolve or even
address the majority of issues the BUSD and the BHS Safety Committee raised in numerous
written communications to the ZAB about the 2211 Harold Way Project impacts.
I also request that the ZAB require the City to meet promptly with BUSD and the BHS Safety
Committee to craft enforceable Project mitigations that clearly and on their face ensure that:
(1) Students can hear one another and the teacher in their classrooms on a daily basis both during
and after the construction of 2211 Harold Way;
(2) Students, including those with asthma, can breathe without difficulty or ill health effects in
their classrooms both during and after the construction of 2211 Harold Way;
(3) Students can safely and reliably get to school on time and access the schools’ main entrances,
whether they walk, bike, bus, scooter, or drive to school both during and after construction;
(4) Students can use the school bathrooms and the athletic fields reliably without a regular
shutdown caused by sewage overflow on lines that already are at maximum capacity but stand to
be further burdened by the Project’s 302 units; and that
(5) BHS is provided with no-cost options for teacher and staff parking nearby (whether in the
form of street permit parking, or spaces in other soon-to-be-built city parking structures, etc.)
recognizing that teacher retention will be a major problem if low-salaried teachers need to
compete with hundreds of new Harold Way residents and their visitors for already scarce parking
near BHS.
Unfortunately, the City’s present COAs fail at every level to reasonably mitigate Project impacts
on Berkeley High students, teachers, and facilities. The COAs should be replaced with specific
and enforceable mitigation measures for the reasons that follow.
2
THE CITY’S COAS FAIL TO MITIGATE THE PROJECT IMPACTS ON BHS
The City’s Plan to deal with Project impacts on Berkeley High School are primarily set forth in
Conditions 12-14, and 35-36. These conditions are vague, inadequate, and virtually
unenforceable as to BUSD, or non-existent with respect to the issues that BUSD and the BHS
Safety Committee identified in their detailed oppositions to EIR certification: noise, air quality,
traffic congestion, sewage, and teaching parking.
For example:
Condition 13 and 36, Construction Noise: This City once again relies on a boilerplate
recitation of general measures for urban areas (e.g., the Municipal Code’s 7:00 a.m. to
6:00-7:00 p.m. construction time) which do not protect BHS classrooms. The City’s
position has not changed even though both the BHS Safety Committee and the School
District have pointed out numerous times that a 7:00 a.m. to 7:00 p.m. construction
schedule is exactly the opposite of a provision that helps the school in any way.
Most egregiously, the only BHS-specific noise condition ignores the 45 dBA
INTERIOR noise threshold (or lower) set for schools, and asks this ZAB to essentially
waive the City’s compliance with established noise thresholds for schools. Indeed,
rather, than set up a daily monitoring system for interior noise at or below 45 dBA so that
students can hear their teachers and one another in classrooms, the City’s COA instead
sets the noise threshold at 65 dBA, but only on specific school-wide test days, and
only for exterior noise.
Moreover, sound barriers, acoustic tiles, sound-rated windows, acoustical calking and the
like for noise reduction in BHS classrooms and facilities facing Allston and Milvia are
not considered, even though the EIR notes construction noise levels for the Project of 71
dBA at 500 feet (Appendix A, p. 156) when the school is 400 feet away, and that such
“special building construction techniques” may be required to “reduce interior noise
levels to the 45 dBA Ldn or lower.” (See EIR, Appendix A, p. 149.)
Conditions 14 and 35, Meetings and Construction Plan information: The City
apparently believes it is adequate if BHS simply has notice of construction activities, and
a seat at the table to raise its concerns about noise, air quality, etc. However, there is no
true enforcement of conditions available to the school.
The developer does not have a duty to mitigate safety or environmental problems, to
mitigate problems within a specific time frame, or to halt construction while mitigation
measures are considered or put in place, no matter how egregious the school impact
might be in the: (a) 16 classrooms in the M building, 12 of which have windows that
open over Milvia for climate control; (b) classes and other school activities in the
school’s D building which houses Administration offices on the first floor along Milvia
and the library, media center/computer rooms and three classrooms on the second floor
along Milvia; (c) classrooms and other school activities in the D building which also
fronts Allston to Kittredge; or (d) the E building which houses the gym, dance studio,
and the pool.
3
Condition 37, Transportation Construction Plan: This plan says only that the City
will “restrict” construction-related “truck and equipment traffic and staging from using
“segments of” Milvia street, Allston Way, MLK and Channing that are “adjacent to”
BHS. (It leaves out any “restriction” on Kittredge street which intersects with Milvia
right near the school’s main entry way and its one major drop off zone.)
Condition 37 means virtually nothing with respect to BHS and is not enforceable. The
word “restrict” does not mean prohibit. It might mean the City has restricted 2 trucks out
of 100 from using roads “adjacent to” BHS. Adjacent means next to BHS, but it does not
necessarily mean trucks are prohibited from being on Kittredge and Allston right next to
Milvia and therefore potentially very disruptive to the BHS classrooms. In contrast, an
enforceable condition would be specific as to distance and placement of trucks, cranes,
materials, and equipment. For example, the COAs could prohibit all construction-related
equipment, trucks, vehicles, etc. on any street between Harold Way and BHS, and on any
part of MLK within 1500 feet of BHS or Washington Elementary school. The point is
that without a “prohibition” for construction-related equipment, trucks, vehicles, and
materials, at a certain distance from BHS, this condition does absolutely nothing. That
the COA adds “Adherence to the approved plan shall be required as part of grading and
building permits,” is meaningless in light of the prior language. There is no meaningful
enforcement of a vague condition.
Condition 38, Flag persons: Any road closures from Harold Way can exacerbate an
already dangerous traffic situation around the school. Obviously, new traffic
impediments on Allston and Kittredge will form extremely hazardous traffic bottlenecks
for the 3200 students trying to get to or from the school. Having a flag person on the
street to wave through a few cars at a time does not diminish the problem, or the hazard
for pedestrians, bicyclers, or scooters trying to use the same roadway en route to
school. New traffic safety measures such as well-placed and clearly designated
midblock/flashing beacon cross walks are also needed, as well as a known staging and
street traffic and pedestrian routing plan.
Enforceability: At the end of the day, the City’s COA for Harold Way are not
enforceable to the District because they are based upon assessments far outside of the
District’s control and based upon a “reasonableness” determination by the City and
developer. The District, for example, can complain to the compliance officer who can
institute “reasonable measures to correct the problem” whatever he thinks that
is. Moreover, it appears that the City/Developer is permitted to make a “cost/benefit”
analysis as part of its own reasonableness determination. What is reasonable from the
developer’s commercial perspective in terms of dollars (50 cases of asthma? four months
of lost classroom time? a tax payer’s lawsuit?) may clearly not be what is “reasonable”
from the School District’s perspective, or consistent with the District’s duty of care to its
students in class and to and from school. The District and its school-focused team should
be placed in a position to make the “reasonableness” determination for all school-related
matters.
Missing: The District and the Safety Committee repeatedly have asked for, but have not
received, a set, clearly described, and enforceable staging plan for the Harold Way
4
construction. Staging and road closures will effect noise, traffic safety, and air quality
concerns at the school. This is not a matter to be left to another day, and another agency,
with discretion to disregard the school’s safety concerns. In addition, among other
things, there are no BHS-specific permit conditions for:
o noise and traffic after construction. (This is the case even though the EIR,
Appendix A, pp. 146-149 notes significant post-construction noise for the area; and that “The California Building Code and the City of Berkeley require project-
specific acoustical analyses to achieve interior noise levels of 45 dBA Ldn or
lower in residential units exposed to exterior noise levels greater than 60 DBA
Ldn;)”
o air quality before or after construction (active air monitors for air quality in
classrooms and at the rooftop, updated and remodeled HVAC systems for BHS to
address p.m. loads that are not accounted for in current systems; portable air
quality devices when needed in classrooms, etc.);
o teacher parking;
o sewage.
There also is no mention of developer fees to the School District as a result of the Harold Way
Project that sits in two school zones.
These are all examples of significant omissions.
THE ZAB SHOULD NOT APPROVE THE COAS FOR 2211 HAROLD WAYAND
SHOULD REQUIRE SITE-SPECIFIC STUDIES AND MITIGATIONS FOR BUSD
FACILITIES
As the City acknowledges in its Staff Report on this Project (pp. 30-31) for the September 30,
2015 ZAB meeting, the City and the Developer have been on notice about the salient impacts of
2211 Harold Way on Berkeley schools since the comment period on the Draft EIR commenced:
“The City received a number of public comments on the Draft EIR expressing concerns
about potential construction and operational project impacts to Berkeley High School
(BHS), which is 400 feet west of the site beyond several intervening buildings . . . . On
June 25, 2015, the Berkeley Unified School District (BUSD) submitted a letter to the City
reiterating the concerns generally expressed by others during the Draft EIR comment period. At
the ZAB hearing that evening the ZAB certified the Final EIR but also directed staff to work with
BHS representatives directly to discuss the mitigation program and develop additional conditions
of approval if necessary to address BHS’s specific concerns.”
My recent letter to the ZAB in August 2015 again raised the infirmities of the City’s approach to Project
impacts on BHS.
Nonetheless, the City has essentially neglected to address all school concerns. In addition,
because the City did not study Project impacts on BUSD schools as part of the EIR as legally
required, the City does not have the baseline measurements relevant to such things as classroom
noise and air quality at BHS (e.g. the limits of the BHS HVAC system to handle construction-
5
related air particulate and diesel fumes) that would otherwise be available to support narrowly-
tailored and potentially less expensive mitigations.
BHS is the City’s only public high school, with over 3200 students who must attend school each
day. Students are a vulnerable population and cannot simply avoid Project impacts such as
classroom noise, poor air quality, and safety hazards by not coming to school.
I therefore respectfully request that: (1) The ZAB not approve the COAS; (2) The ZAB rescind
its EIR certification of the 2211 Harold Way Project on the basis of an incomplete and critically
deficient Project EIR with respect to BHS and Washington Elementary Schools; (3) The ZAB
mandate that the 2211 Harold Way Project EIR be promptly revised and reconsidered with input
from BUSD and the Safety Committee so that it includes studies and baseline measurements for
the Project' school zone impacts in terms of traffic, noise, pollution, sewage, and foreseeable
structural requirements such as parking for staff and faculty; and (4) The ZAB mandate the City
meet with BUSD and the BHS Safety Committee to establish appropriate, detailed, and
enforceable Project mitigations with respect to BUSD schools and students.
This can be done quickly and responsibly so that neither student safety nor education excellence
in Berkeley will be compromised by the 2211 Harold Way Project.
Respectfully submitted,
Enid Camps,
Co-Chair BHS Safety Committee
1
Jacob, Melinda
From: Zoning Adjustments Board (ZAB)Subject: FW: 2211 Harold Way - theater analysis - Rhoades Response Memo problems - unfinished
Subject: Harold Way Project should not be approved
I'm writing to ask that my comments be included in tomorrow's packet if possible.
Sent from my iPhone
September 29, 2015
Zoning Adjustment Board
2134 Martin Luther King Jr.Way
Berkeley California 94704
Re: Need to indefinitely postpone approval of 2211 Harold Way et al.
To the Zoning Adjustment Board:
According to a recent op-ed piece in Berkeleyside, thirty or so meetings held over the past
several years by the city council, several commissions and this Board have agendized the 2211
Harold Way proposal. The author seemed to feel that this number was rather steep, and that this
and similar projects should be more-rapidly approved, given voters’ endorsement of the
Downtown Plan and Measure R. While the issue of the public’s being mislead into approving
these documents is as old as democracy itself, numerous citizen activists have forwarded logical,
cogent and persuasive arguments at these meetings in their attempts to get these civic bodies to
see reason. Often, they have succeeded. Hence, the perceived ‘delay’.
These citizens’ arguments against the only-option Harold Way proposal are by now well-known
to all Board members, and have been easily disposed of by most. I will not reiterate them, but
rather remind you of some of my own:
A legal allowance to build several towers of up to 180’ downtown is not a command to
build;
Given the enormous effort behind the construction of each of them, and therefore the
enormous errors that could be built into each, insistence that the harbinger project at
Harold Way pass the strictest muster in the face of facts—and an aversion to them by the
gung-ho Planning and Development Department--has been almost criminally lacking;
2211 Harold Way and its followers, if built, will likely yield an entirely different
Berkeley—gentrified, exclusive, physically resembling so many others--and barely the
historically rare and consequential city it has been.
Sincerely,
Phil Allen
1733 San Pablo Ave.
Berkeley CA 94702
September 29,2015Sent to City of Berkeley Land Use Planning Division via e.mail: [email protected]
Re: Proposed 2211 Harold Way Project, Use Permit #13-10000010
.Dear Chairman Pinto and Members of the Zoning Adjustments Board (ZAB),
-If ZAB follows the current staff recommendation to approve Permit Application # 13-10000010, it maybe poised to approve a permit which materially misrepresents the actual 2211 Harold Way Projectactivity being proposed. At question is whether the Project involves a demolition, as defmed by BMC23F.04.01O, of the historic Shattuck Hotel building, which would require demolition permit review bythe Landmarks Preservation Commission (LPC), including proper public notice, a public hearing, andpermit approval, per Berkeley Municipal Code (BMC) 3.24.200 (see attachment #1).
The "Shattuck HotellHink's Building Complex," (historic Shattuck Hotel building) comprised of theoriginal 1909 California Mission Style structure and the subsequent 1912, 1913, 1926, and 1957additions, was designated a City of Berkeley Landmark on November 9, 1987. The LPC, in its Noticeof Decision, specifically included the 1957 addition in the designation, against the expressed desire ofthe then property owner/applicant. The Landmarks Preservation Ordinance (LPO) does notaccommodate a process of delisting a designated Landmark or any portion thereof. Furthermore, the1957 addition remains interconnected with other parts of the structure, not "closed off' as anticipated bythe then property owner*. For the purpose of compliance with provisions of the LPO (BMC 3.24.010 -3.24.390), any proposed changes must be considered collectively, not parsed out to portions ofthestructure as defmed by age, style, or condominium ownership.
The two Project Permit Applications filed and received by the City of Berkeley on February 27,2013(see attachment #2), do not accurately reflect the status of the landmarked building, which encompassesan entire central block of Downtown Berkeley:
1. Use Permit #13-10000010, includes a filing for demolition of the 1957 "Postal Annex building" as asingular building, citing BMC 23C.08.050, a demolition provision requiring that non-residentialbuildings over 40 years old be forwarded to LPC for possible landmark initiation (1957 addition isalready part of the designated landmark) before ZAB consideration, and,
2. Use Permit #13-40000002, citing "LPC," & "Permits 1 and 2" appearing to be simply a "ProjectFee Maintenance" form and does not delineate any specific LPC duty or responsibility relating todemolition or removal of any of the additions to the Shattuck Hotel building.
It is important to understand that Permit Application #13-10000010 inaccurately segments the 1957addition (Postal Annex, including other office rentals) into a stand-alone structure, separate from thewhole of the landmarked Shattuck HotellHink's Building Complex, so as to be singly subject todemolition provisions under BMC 23C.08.050, rather than the LPO. This segmentation has created, todate, a process that deflects and ignores an obligation to fully consider the required level of LPC andZABreview.
2
Under BMC 23.F.04.01O, a building or enclosed structure, including a designated landmark, is to beconsidered demolished if, within any continuous 12 month period, 50% or more of the enclosingexterior walls and 50% or more of the roof are removed. Notably, due to the filing of Permit Application# 13-100000 10, neither the Applicant, nor the City Planning Department, nor the Environmental ImpactReport (EIR) has provided an analysis of what proportions of the roof and exterior walls of the entirelandmarked Shattuck HotellHink's Building Complex are proposed to be removed. It is a very complexbuilding, and at this time, it is advisable that an impartial professional be retained to measure andconsider all the many enclosing exterior walls of the building so as to determine what percentage is, infact, proposed to be removed for the 2211 Harold Way Project in order to be in full compliance with theBMC.
Furthermore, ifthe 2211 Harold Way Project involves a demolition, ZAB must fmd, per BMC23C.08.050, that "the demolition will not be materially detrimental to the commercial needs and publicinterest of any affected neighborhood or the City." ,
Both the concerned public and the decision makers (ZAB, LPC, and City Council) deserve a processcorrection and factual information before any final permits might be granted for the proposed Project.The sloppy review process has seemed wanton to sacrifice one of Berkeley's most central, prominentcultural and architectural resources. It is also stunning that there appears to be a disregard for thedetrimental effect that 4 years of construction would have upon the recently renovated Shattuck Hotel'sbusiness, and, then, ultimately, the visitor's long-term loss of light and view and unique sense of place,let alone the potential threat to their life and, safety.
It is one thing to have an opinion, it is another to "do the math" and be certain that all are abiding by thelaw. Thus, we urge ZAB to pause in its deliberation of Use Permit # 13-100000 10 filed for the proposed2211 Harold Way Project.
* Please note attachment #3, page taken from the condominium property ownership agreement"Declaration of Covenants Conditions and Restrictions of Berkeley Center," recorded in AlamedaCounty, June 14, 1996. The full document, not attached here, delineates how the building isinterconnected. The shaded area on the attached page illustrates how the proposed Project buildingremoval appears to comprise at least 50% of the roof area. .
Sincerely,
Jeff Kahn1806 Walnut Street #6
Jill Korte, former member of LPC2136 Grant Street
Lesley Emmington Jones, former member ofLPC195 TheUplands
JoAnn B. Price, an original framer of LPO1056 Overlook Road
3
Attachments1. City of Berkeley, BMC 3.24.200, with added underline for emphasis2. City of Berkeley, Zoning Project Application Form, with relevant single page
Permit Application #13-10000010 and Permit Application #13-400000023. Declaration of Covenants Conditions and Restrictions of Berkeley Center, Alameda County
Recorder's Office, June 14, 1996, single page "Area Calculation Plans, Level 3"
DEVELOPER PROFITS FROM THE HAROLD WAY PROJECT WILL BE $89 TO $145 MILLION EVEN AFTER
THE COST OF THE PROJECT LABOR AGREEMENT (PLA) AND THEATER. THE ONLY “OUT-OF-POCKET”
COST IMPOSED BY ZAB ON THE DEVELOPER IS A PROPOSED $350,000 PAYMENT TO HABITOT. THIS
DOES NOT MEET THE “SIGNIFICANT COMMUNITY BENEFIT” STANDARD REQUIRED IN THE
DOWNTOWN PLAN
In order to determine that the amount of “significant community benefits” that the Harold Way Project
should provide it is necessary to conduct a thorough independent analysis of its potential profits in
order that such profits can be fairly shared with the community. The Berkeley City Council’s guidance1
in Resolution 67,172 was that all applicants, even those predating June 25, 2015, must show that “the
total value of benefits must bear a reasonable relationship to the value generated by the project” and
that ZAB “will independently evaluate ”whether the benefits package is adequate in proportion to the
value in height.”
To date, despite repeated requests throughout the process, ZAB has not developed an independent pro
forma of potential profits for the Harold Way Project. Compounding this problem has been the
developer’s lack of clarity in the project’s financials which continually appear to overstate costs and
understate revenues. This includes, for example, overstating land costs, using higher rental rates to
calculate claimed benefits while providing lower rates to calculate profits, and completely omitting
various project revenue sources (such as parking) from their analyses.
To remedy this shortfall, and to better inform both the public and ZAB, a revised Pro Forma for Harold
Way has been developed and is attached to this letter. It takes as its starting point the same format
used by the Rhoades Planning Group2, representing the project developer, in its July 28, 2015 Pro
Forma, but then revises it to more accurately reflect actual costs and revenues. These revisions use
numbers provided by the Rhoades Group itself in previous submittals to the City of Berkeley, or from
economic studies prepared for the Berkeley City Council, primarily by the City’s consultants, AECOM that
are also part of ZAB’s September 30th agenda package.
Incorporating these more accurate and realistic numbers results in a revised Pro Forma that concludes;
Profits from the PROPOSED Harold Way Project would be at least $89 million;
This profit would be realized immediately upon the sale of the building once constructed;
11 As noted by the City Manager and City Attorney, the Resolution is advisory only and ZAB retains full discretion to determine its own level of significant community benefits 2 Submitted to ZAB and included as ATTACHMENT 3 on ZAB’s 08-27-15 Agenda
2
The $89 million profit is 3 times the amount of profit estimated by the Rhoades Group;
Profits from the Harold Way Project could be as high as $141 million if the Project were to
charge rent at the high-end of the Berkeley market as it is likely to do;
For an initial total investment of $173 million (most of which will be financed with short-term
construction financing), the developer could sell Harold Way for somewhere between $263
million to $318 million, representing a return on investment of 50% to 83% within the next 2
to 3 years.
In exchange for this level of profits, ZAB’s current proposal does not seem adequate as;
All of these profits remain available to the developer even AFTER including the total cost of
both the Project Labor Agreement (PLA) and claimed amount for theater
construction/operation.
The developer benefits from the PLA due to improved labor relations and a better built,
higher-quality building; and
Retention of the theaters is primarily mitigating a harm, rather than providing a new benefit.
The only “out of pocket” obligation proposed by ZAB on the developer appears to be a $350,000
payment to Habitot. Even this payment;
Is mitigating a problem caused by the project rather than providing an additional benefit; and
May not be sufficient to ensure Habitot’s ability to relocate.
Based on the revised Pro Forma, the proposed level of community benefits could be significantly
increased (perhaps by at least $10 to $20 million) while still ensuring an adequate return on investment
to the project developer.
As previously noted, it is the Zoning Adjustment Board which retains full discretion to develop and
assign the level of community benefits the Harold Way project should provide. Nothing inResolution ;
67,172 supersedes this authority.
Therefore, it is requested that ZAB defer consideration of project approval until it can fully and
independently determine the expected level of profits from the Harold Way Project and, if it decides to
approve the project, significantly expand the amount of benefits to correspond to expected profit levels.
Sincerely,
James Hendry
3
Harold Way Profits with Rents Comparable to Existing Projects ($ million)
4
REVISED HAROLD WAY PRO FORMA
(At Residential Rental Level of $5.25 per Square Foot)
PROJECT COSTS RHOADES PLANNING CORRECTED
Land $40,000,000 $12,000,000
Construction $126,230,000 $126,230,000
Soft Costs $20,196,800 $20,196,800
Plan check/SOSIP/EBMUD $9,000,000 $9,000,000
In-Lieu Housing Fee $6,040,000 $6,040,000
Community Benefit $1,250,000 $ 350,000
TOTAL COST $202,716,800 $173,816,800
Residential Income $14,175,000 $14,175,000
View Premium 8-12 $126,448
View Premium 9-13 $130,080
Retail Income $1,026,777 $568,890
Theater Income Included in retail $691,560
Parking Income $0 $318,600
INCOME BEFORE EXPENSES $15,201,777 $16,010,578
Less Estimated Expenses -$5,472,640 -$4,803,173
TOTAL INCOME $9,729,137 $11,207,405
RETURN ON COST 4.80% 6.45%
VALUE OF BUILDING $ 228,920,884 $ 263,703,648
PROFIT $ 26,204,077 $ 89,886,848
1
REVISED PRO FORMA FOR HAROLD WAY
SUMMARY -- HAROLD WAY WILL GENERATE AT LEAST AN ESTIMATED $89 MILLION IN PROFITS, OVER THREE TIMES THE $26 MILLION CLAIMED BY THE APPLICANT
This Pro Forma of the Harold Way Project assesses its economic feasibility. It takes as its starting point
the same format used by the Rhoades Planning Group1, representing the project developer, in its July
28, 2015 Pro Forma, but then revises it to more accurately reflect actual costs and revenues. These
revisions use numbers provided by the Rhoades Group itself in previous submittals to the City of
Berkeley, or from economic studies prepared for the Berkeley City Council, primarily by the City’s
consultants, AECOM.
Incorporating these more accurate and realistic numbers results in a revised Pro Forma that concludes;
Profits from the PROPOSED Harold Way Project would be $89 million;
This profit would be realized immediately upon the sale of the building once
constructed;
The $89 million profit is 3 times the amount of profit estimated by the Rhoades
Group;
Profits from the Harold Way Project could be as high as $141 million if the
Project were to charge rent at the high-end of the Berkeley market as it is likely
to do;
For an initial total investment of $173 million (most of which will be financed
with short-term construction financing), the developer could sell Harold Way
for somewhere between $263 million to $318 million, representing a return on
investment of 50% to 83% within the next 2 to 3 years.
All of these profits remain available to the developer even AFTER including the
total cost of both the Project Labor Agreement (PLA) and claimed amount for
theater construction/operation; and
As currently proposed by ZAB, the remaining “significant community benefits”
required of Harold Way are less than ½ of 1% of expected profits.2
1 Submitted to ZAB and included as ATTACHMENT 3 on ZAB’s 08-27-15 Agenda 2 Based on a proposed $350,000 payment to Habitot divided by the low-end profit estimate of $86 million.
2
PROBLEMS WITH THE RHOADES GROUP PRO FORMA
Major reasons for the difference between this Pro Forma and the one prepared by the Rhoades Group
occur because the Rhoades Group:
Overstates the Project’s land costs by a factor of at least two;
Uses estimates of retail revenues significantly below those used by the Rhoades Group to
determine community benefits in other submissions to Berkeley;
Fails to include the effects of the “view premium” for tall buildings as determined by the
Berkeley City Council;
Ignores parking revenues from the project; and
Overstates operating expenses.
Each of these differences is discussed below. To ensure accuracy, conservative numbers were used to
purposely understate the likely amount of profit.
3
LAND COSTS RHOADES PLANNING CORRECTED DIFFERENCE
$40 million $12 million $28 million LESS
Rhoades Planning lists land costs at $40 million but provides no justification for this number. Published
reports in Berkeleyside and the San Francisco Business Journal3 list the purchase price at $20 million for
92,000 square feet or $217 per square foot. Tax assessment records and Alameda County government
records list the total cost as $19.6 million.4 The $217 per square foot cost is already at the high end of
land prices for downtown real estate as determined by AECOM, the city’s economic consultant on the
Downtown Area Plan.5
Although the Rhoades Group’s July 28th submission clearly listed the $40 million as a “Cost” it now
appears even they now disavow the $40 million figure as the actual cost of the land stating;
The model provided is one which assumes a higher land basis based on the value at the completion of construction and not at the original purchase price, for the purpose of the requested comparison.6
“Cost” is not the same as “Value.” Essentially the Rhoades Group is now conceding that Harold Way’s
profits are at least $46 million (a $20 million increase in land value PLUS the $26 million in profits
claimed by the applicant.)
OTHER RENTAL INCOME
RHOADES PLANNING CORRECTED DIFFERENCE
$0 million $665,000/year $665,000 MORE
Only about 1/3 to ½ of the parcel’s $20 million purchase price can be attributed to the Harold Way
project itself.7 As Joseph Penner, the project developer noted; “We bought everything but the hotel.”8
As the Harold Way Draft EIR stated; “Below the hotel rooms along Shattuck Avenue is a row of
commercial storefronts that are part of the project site” 9 This includes the entire existing commercial
frontage along Shattuck Avenue from Starbucks to Yogurt Land (13,912 square feet of retail space.)10
3 Berkeleyside (November 28, 2012);San Francisco Business Times (Nov, 28, 2012) http://www.bizjournals.com/sanfrancisco/blog/real-estate/2012/11/los-angeles-investor-buys-berkeley.html 4 The relevant parcels are 2060 Allston A (57-2027-6) comprising the Hinks Building with Shattuck Cinemas Theatres, retail store fronts along Shattuck Avenue and basement assessed at $14,349,853 and 2070 Allston (57-2027-7) the Postal Annex assessed at $5,288,902. The third parcel on the block, 2060 Allston C (57-2027-8) is not part of the Harold Way Project and consists of the Shattuck Hotel Allston Way and hotel rooms on floors two and above in the Shattuck Hotel extension along Shattuck Avenue. 5 AECOM Memorandum (September 27, 2011) assumed a value of $125 square foot but noted that “properties have sold for significantly higher in Berkeley (p. 5).” “The Downtown Berkeley Development Feasibility Report found land prices in Berkeley ranged from $80 to $200 per square foot (p. 6).” 6 Rhoades Planning Group Response to Comments (ZAB Attachment 7, Sept, 30, 2015 Agenda, p.3) 7 The Harold Way Draft EIR identifies the Harold Way “project site” as 34,800 square feet, taking up only about 1/3
of the 92,000 square feet purchased. (Draft EIR, p. ES-1) 8 Berkeleyside, October 28, 2012
Although listed in the Draft EIR as part of the project site, the estimated yearly rental income of
$665,000 (using the Rhoades Group’s estimates)11 is not included in the Harold Way Pro Forma. The
equivalent purchase price associated with this revenue stream alone (again using the Rhoades Group’s
methodology) would be over $12 million. 12 This would leave only $8 million of the $20 million purchase
price to be assigned to the Harold Way project.
Based on the above, and consistent with our admonition to use conservative numbers to purposely
understate profits, a corrected figure of $12 million (150% of the $8 million) is assigned to Harold Way
and $8 million of the purchase price to the Shattuck commercial storefronts. This assigns roughly 2/3rd
of the purchase price to Harold Way even though the project itself (according to the EIR) uses only 1/3rd
of the land.13 It also excludes from consideration all of the revenue associated with the commercial
frontage on Shattuck Avenue that was also purchased.
RHOADES PLANNING CORRECTED DIFFERENCE
CONSTRUCTION $126 million NOT REVIEWED
N/A SOFT COSTS $ 20 million
PLANS/SOSIP/EBMUD $ 9 million
As a starting point, it should be noted that the applicant’s cost estimates already include both:
The total cost of the Project Labor Agreement (PLA); and
The total cost of building the theater space, rather than the net cost of building the theater
over and above the cost of any other constructed use.
Thus, estimated profits to the developer as calculated in this analysis already assume that the
developer is recovering the cost of both the PLA and the theaters. Profit estimates as shown in this
analysis are after the recovery of these costs.
As to the total amount of these costs and their reasonableness, absent a more detailed review of
construction costs and plans, these numbers were neither reviewed nor revised. City Staff should review
the accuracy of the Planning costs, SOSIP, and EBMUD components.
9 Draft EIR, p. ES-1 10 Harold Way Project Plans, Landmark Preservation Commission, August 13, 2015 meeting http://www.ci.berkeley.ca.us/uploadedFiles/Planning_and_Development/Level_3_-_LPC/2015-08-13_LPC_ATT2_2211%20Harold_Project%20Plans.pdf 11 The Rhoades Group has provided two estimates of commercial rental rates in previous filings - $3.50 per square foot for commercial space along Shattuck Avenue and $4.50 for retail space within Harold Way. This analysis uses the mid-point of $4.00 per square foot. 12 Gross rents less costs ($0.90 per square foot) and then capitalized consistent with the Rhoades Group’s methodology. . 13 This is approximately $345 per square foot for the portion of the land assigned to Harold Way, significantly above the reported price for the entire property of $217 per square foot.
The Berkeley City Council, in response to a proposal from Mayor Bates and Councilmember Capitelli
(Bates-Capitelli proposal), requested AECOM to calculate the “view premium” or the additional rent that
a renter would be willing to pay for the enhanced view of living in apartment units above 75 feet.
AECOM presented a range of view premiums from $0.13 to $0.64 net16 per square foot above 75 feet.
Despite it being the tallest residential building in Berkeley, the Rhoades Group did not include any view
premium adjustment in their rental calculations. The Rhoades Group’s community benefits calculations
before the Landmark s Preservation Commission for example, assumed that rent at the lowest floors
would be the same as the imputed rent levels for the entire building. 17
To replicate the different values proposed in the Bates-Capitelli proposal, additional rent in the amount
of $0.15 per square foot for rentals on Floors 8 to 12, and a $0.25 per square foot for rentals on floors
13 to 18 should be added to the rental calculation. Again, these lower numbers are purposefully chosen
to understate potential profits.
This increases revenue by $256,528 per year.
RETAIL REVENUES (INCLUDES THEATER)
RHOADES PLANNING CORRECTED DIFFERENCE
$1,026,7770 $1,260,450
$233,673 MORE
In its July 28th Pro Forma, Rhoades Planning uses an average rental rate of $2.65 per square foot for
determining rental revenues from the 32,176 square feet of retail space (10,535 sq. ft. of retail space
and 21,641 sq. ft. of theater space.)
The figure for retail space is significantly lower than the $4.50 per square foot estimate used by Rhoades
Planning to determine the lost revenues of design changes made as part of its claimed community
benefits package.18
Since the July 28th Pro Forma, it appears the size of the theater space has now increased to 28,250
square feet and that rents for the theater might be set at the current rate of $2.04 per square foot.19
16 After expenses have been deducted. 17 At the time $5.10 per square foot since adjusted upward to $5.25. 18 In describing the lost rental revenue from construction of a privately-owned public space (POPOs), Harold Way
calculated “The cost of the POPOS to the developer is equal to 1,872 square feet of leasable commercial space, as well as 1,800 square feet of leasable residential floor area that are displaced on the second floor to add height to the POPOS. With anticipated commercial rents of approximately $4.50 per square foot per month, and residential rents at $5.10 per square foot per month, the project forgoes approximately $331,578 per year of rents in order to provide this public open space, totaling $6,631,560 over 20 years. (Rhoades Planning Group Documentation of Significant Community Benefits (October 20, 2014), p. 32.
8
Assigning Rhoades Planning Group’s own numbers of $4.50 per square foot for the 10,535 square feet of
retail space and $2.04 per square foot for the theater space results in total retail revenues of
$1,260,450. This is $233,673 more than calculated by the Rhoades Group.
PARKING INCOME RHOADES PLANNING CORRECTED DIFFERENCE
$0 $318,600 $318,600 MORE
Despite Harold Way being designed for 177 parking spaces, Rhoades Planning did not include any
revenues from these spaces. Even after being asked directly at the September 10, 2015 ZAB meeting if
parking revenues were considered in the Pro Forma, Rhoades Planning Group neither responded to
ZAB’s request nor updated its Pro Forma. 20
Based on a rental rate of $150/month21 downtown parking), this provides an additional $318,600 in
yearly revenues.
ESTIMATED EXPENSES RHOADES PLANNING CORRECTED DIFFERENCE $5,472,640 $4,803,173 $669,466 LESS
The Rhoades Group estimates expenses for the Harold Way Project at 36% of revenues. A more
appropriate figure is 30%.
AECOM the City’s consultants relied on by the City Council, estimated operating expenses for tall
buildings comparable to Harold Way at only 27.5% of expenses in the Downtown Area Plan, and as 30%
of expenses in their 2015 presentation to the Berkeley City Council.
Furthermore, as noted in AECOM’s 2015 presentation to the Berkeley City Council;
High-rise buildings are able to obtain operational efficiencies that result in lower operating expenses and higher revenues.
Third, as Mark Rhoades stated in Berkeleyside22, the use of union-labor should result in a better
constructed, easier to maintain building.
It will result in a much better building…a building whose systems work because of the union labor that will be putting it together.
Fourth, Rhoades Planning assigns the 36% expense factor to all revenue sources, not just for the
residential rental components. The expenses associated with serving retail customers, and for parking
revenues should be less than the cost of maintaining residences.23
Rhoades Planning Group Response to Comments (ZAB Attachment 7, Sept, 30, 2015 Agenda, p.3) 21 In 2011, AECOM estimated downtown parking costs at $120/month. 22 Berkeleyside October 31, 2014
9
CONCLUSIONS – PROFITS OF $89.9 TO $144.5 MILLION ARE LIKELY FROM HAROLD WAY
Revising the Harold Way Pro Forma to be consistent with assumptions used by both the Berkeley City
Council and the Rhoades Planning Group significantly changes the overall profitability of the Harold Way
Project as shown below.
VALUE OF BUILDING RHOADES PLANNING CORRECTED
$228.9 Million $263.7 Million
The increased estimated value of the Harold Way Project is due almost entirely to 1) accurately
accounting for all of the project’s various revenue streams; and 2) accounting for the lower cost of the
project ( $176.8 million versus a claimed cost of $202.7 million), reflecting the significant overstatement
in land costs ($40 vs. $12 million) used by the Rhoades Group.24
The $263.7 million figure represents the price at which a developer could sell a completed building once
occupancy occurs. In other words, it represents the amount of profit a developer could walk away with
without ever having to actually manage or operate the building.
PROFIT RHOADES PLANNING CORRECTED
$26.2 Million $89.9 Million
Overall profits of $89.9 million rely on the conservative assumptions used in this analysis.
This is three times the estimate arrived at by the Rhoades Planning Group.
PROFIT AT DIFFERENT RENT LEVELS
RHOADES PLANNING CORRECTED
$26.2 Million $112.5 Million $144.5 Million
As discussed above, the Rhoades Group assumes rents for Harold Way at the mid-point ($5.25 per
square foot) of current rents for new Downtown apartments. Given the “luxury” status of the Harold
Way project, profits from Harold Way could be as high as $112.5 to $144.5 million if Harold Way were to
charge rents toward the higher end of the current rental market ($5.75 to $6.48).
23 For example, Rhoades Planning Group estimated the costs associated with retail spaces at $0.90 per square foot (“triple net”) which is only 20% of their expected rental rate of $4.50 per square foot. 24 The only other change to project costs was to reduce the level of claimed “community benefits” form $1,250,000 in the July 28th Pro Forma to a lower $350,000 payment to Habitot as proposed in ZAB’s September 30th Agenda.
10
HAROLD WAY PROFITS AND RETURN AT COMPARABLE RENT LEVELS
VALUE OF BUILDING $ 263,703,648 $ 286,383,649 $ 318,402,473
PROFIT $ 89,886,848 $ 112,566,849 $ 144,585,673
RETURN ON INVESTMENT (SIMPLE)
50% 65% 83%
As noted above, these profits could be realized as soon as the building is developed and ready for
occupancy. Thus, for an initial total investment (most of which will be financed with short-term
construction financing) of $173 million, the developer could sell Harold Way for somewhere between
$263 million to $318 million. This represents a simple return on investment from 50% to 83%.
In the highest rent case, the developer could sell the building upon completion for almost double (83%)
what it cost to construct.
COMMUNITY BENEFITS
RHOADES PLANNING CORRECTED
$0.35 Million $ ??? AS % OF PROFIT ½ of 1% % ???
The profit level of $89.9 million exists even after taking into account the costs of the Project Labor
Agreement (PLA) and theater costs, all of which are reflected in the underlying cost of the building.
The only additional “out-of-pocket” community benefit currently being proposed is $350,000 for the
Habitot Children’s Museum or less than ½ of 1% of expected profits even after the PLA and theater
costs.
RETURN ON COST RHOADES PLANNING CORRECTED DIFFERENCE
4.80% 6.45% 1.65%
“Return on Cost” is the expected yearly profit divided by the total cost of the project. This increases
from 4.8% to 6.34% under the Revised Pro Forma. It could be as high as 7.79% under the higher rent
scenarios examined in Appendix 1.
This is significantly above the expected return on cost for comparable projects.
11
In July 2015, AECOM, consultants to the Berkeley City Council stated that a 3.5% capitalization rate was
sufficient noting that:
Current cap rates for multi-family Class A complexes range from 3.5% to 6.5%. Because Downtown Berkeley benefits from strong student demand in a land-constrained market, a 3.5% capitalization rate is utilized in this analysis.
Integra Realty Resources’ 2015 Real Estate Value Trends analysis, based on extensive data gathering and
collection, found that the capitalization rate for the Oakland, California area was only 4.25% for Class A
multi-family complexes. Integra Realty Resources further noted that the Oakland area was in the
“expansionary phase of the real estate market”, characterized by “decreasing vacancy rates, high
absorption [of units coming on the market]”and “medium/high rental rate growth “all of which are
indicators of increased profits.
12
REVISED HAROLD WAY PRO FORMA
(At Residential Rental Level of $5.25 per Square Foot)
PROJECT COSTS RHOADES PLANNING CORRECTED
Land $40,000,000 $12,000,000
Construction $126,230,000 $126,230,000
Soft Costs $20,196,800 $20,196,800
Plan check/SOSIP/EBMUD $9,000,000 $9,000,000
In-Lieu Housing Fee $6,040,000 $6,040,000
Community Benefit $1,250,000 $ 350,000
TOTAL COST $202,716,800 $173,816,800
Residential Income $14,175,000 $14,175,000
View Premium 8-12 $126,448
View Premium 9-13 $130,080
Retail Income $1,026,777 $568,890
Theater Income Included in retail $691,560
Parking Income $0 $318,600
INCOME BEFORE EXPENSES $15,201,777 $16,010,578
Less Estimated Expenses -$5,472,640 -$4,803,173
TOTAL INCOME $9,729,137 $11,207,405
RETURN ON COST 4.80% 6.45%
VALUE OF BUILDING $ 228,920,884 $ 263,703,648
PROFIT $ 26,204,077 $ 89,886,848
1
Jacob, Melinda
From: Zoning Adjustments Board (ZAB)Subject: FW: UNFINISHED BUSINESS: Significant Community Benefits Analysis Still Inadequate
Subject: UNFINISHED BUSINESS: Significant Community Benefits Analysis Still Inadequate
Dear Commissioners,
Your analysis of what might constitute significant community benefits for the project proposed for 2211 Harold Way continues to be woefully inadequate. I know this because I stayed to the bitter end of your last meeting, and the commissioners were in complete disarray as to what dollar amount was being discussed, how it is supposed to be calculated, and how much purview the Zoning Adjustment Board has over how any benefits are to be allocated. Please finish this conversation before approving any permits. There's no way you can make a decision about the project at your next meeting without first getting a clear statement together about the methodology you're following, pursuant to the code specification that the limited number of buildings to be granted extra-height variances must provide significant community benefits in return for their marginal excess profits. Commissioner Pinkston in particular said that she'd been "told" that the council had mandated--not just suggested, but mandated--that this particular project would be allowed to substitute a minimal cash payment for any other form of benefits. Who told her that, and why? What's so special about this one? You need to clarify this.
What did the council pass? An "ordinance"? A "resolution"? A "suggestion"? This must be clearly articulated before going forward, or you'll open the ZAB up to charges of undue influence. And the rest of the commissioners had very different ideas about how any benefits, in whatever amount, should be allocated, with no obvious standard for making the decision. Do you believe that this particular applicant is entitled to a bargain basement price for his extra stories, despite the obvious economic loss to the city because it displaces thriving cultural enterprises, notably the theaters?
Some commissioners seemed to be confused about whether repairing damage to such enterprises done by the project should be considered a benefit or just a mitigation. This needs to be settled before moving forward. If you don't first agree on a fair and transparent method for making this decision, you'll be opening the city up to lawsuits galore from subsequent applicants who will want the same deal. And that would
2
not be only for the five buildings mentioned in the plan, but others as well, if the decision methodology can be shown to be inequitable.
Please get this situation cleaned up before granting permits. Take the time to make your chosen method public before you apply it, so interested citizens (and subsequent potential applicants as well) have adequate opportunity to comment on whether they think it's fair.
Elisabeth Peters O'Malley 2910 Ashby, Berkeley 94705 510-845-8433 [email protected]
September 29, 2015 Zoning Adjustments Board City of Berkeley The Required Seismic Hazard Investigation for 2211 Harold Is Still Absent Dear Members of the Board: A Seismic Hazard Investigation is required prior to approval of a project in a liquefaction hazard zone. The 2211 Harold Way site is in a liquefaction zone (see Exhibit A). Applicants checked "no" when asked if the project was in a liquefaction zone on the original application, and then signed it "under penalty of perjury" (see exhibit B), and failed to perform the state-mandated Investigation. A false representation on the application should not enable applicants to forgo a mandatory safety-related Investigation. The State of California passed the Seismic Hazards Mapping Act of 1990, requiring cities and counties to regulate certain development projects within “seismic hazard zones”, which include liquefaction zones, until the geologic and soil conditions of the site are investigated. The Investigation is required prior to approval of a project in a seismic hazard zone (see Exhibit C, cover and page 12 of California Geological Survey Special Publication 117.) On September 23, the Rhoades Planning Group submitted a memorandum to you, "Responses to Zoning Adjustments Board Discussion on September 10," which refers on page 4 to questions from the public about structural and soil conditions at the project site. In this document Mr. Rhoades states that these issues were reviewed extensively in the project EIR and the Geotechnical Feasibility Report included in the EIR. The Geotechnical Feasibility Report of January 25, 2013 by ENGEO Inc. clearly states that it is valid only for two years from the date of issuance. It has expired. Furthermore, it was prepared for an earlier version of the project, one that lacked the underground theaters and one where the Shattuck Hotel and the new project were not connected. It studied only the soil conditions under the new project – not the soil conditions under the Hotel, and referred to the Hotel as an "adjacent structure." Yet if the project is built, the Hotel and the project will be connected. Even though the Report is for an earlier project where the project and the Hotel were separate buildings, the Report is riddled with suggestions that "adjacent structures" might be damaged by the excavations for the project. It refers to "liquefaction potential", "'rocking' of the superstructure" [the new project] in the event of an earthquake, "vibration" from pile driving and demolition. The Report says that relatively poor quality fill was typically placed in historic creek alignments in Berkeley, and that the fill may contain weak and compressible soils, debris and/or loose, liquefiable soils. The Report states on page 11 that it must not be reused without the written authorization of ENGEO, and that ENGEO is required to evaluate the document’s applicability under new circumstances, including the passage of time. Thus ENGEO authorized use of its Report only for the time period between January 25, 2013 and January 24, 2015, and only for the project that was before them at the time.
While the EIR alludes vaguely to efforts to retain the structural integrity of the Hotel, it specifies on page 103 of Appendix A in the draft EIR, under description of the project: "3. Seismically strengthen the area affected by the new construction and the retail strip under the Shattuck Hotel. This would require the addition of four concrete shear walls that would extend from the basement to the underside of the second floor. This work would not seismically strengthen the entire building, but only the area directly affected by the new construction" (emphasis added.) With his September 23 memorandum, Mr. Rhoades included a letter from structural engineer Steven Tipping of Tipping Associates, dated September 16. It said in part, "We further noted from our review of the original 1910 Shattuck Hotel structural drawings, that the foundations of that building, some of which are located over the original creek bed, are founded roughly 15 feet below grade, and appear to have performed adequately without noticeable signs of settlement over the life of that structure." Is Mr. Tipping suggesting that because the un-retrofitted, 105-year old foundations have performed adequately to date, there is no problem? We haven't had the Big One on the Hayward Fault – yet. These foundations are in a liquefaction hazard zone. The reason to be concerned about possible weak and compressible soils at this location is because of the potential for a major earthquake! The three documents referred to by Mr. Rhoades in his memorandum, the project EIR, the expired Geotechnical Feasibility Report and the minimally informative letter from Mr. Tipping provide nothing to assuage my concern about probable hazards to human life when a major earthquake occurs. As I explained in my letter of September 8 to this Board, the entire building at this site was on the Inventory of Potentially Hazardous Buildings of the Unreinforced Masonry (URM) Ordinance in 1991. (This is entirely separate from the liquefaction matter.) The building was converted to three commercial condominiums in 1996, with the bizarre choice to define Unit A as the movie theaters, which had been extensively retrofitted, and the storefronts on Shattuck, including their basements and foundations. Much of the foundation of the 1910 part of the Hotel is therefore included in this condominium. After the condo conversion, Unit A was somehow removed from the URM list, and not required to undergo retrofit repair. We live in earthquake country, with a major seismic event on the Hayward Fault reportedly overdue. I believe this project, if built, would render the oldest part of the Hotel a disaster waiting to happen. It would not be logical or prudent to defy state law and let a false statement on the application allow the applicants to evade their responsibility to perform a Seismic Hazard Investigation prior to approval of the project. Sincerely, Gale Garcia
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ELEA
NO
R
WH
ITNEY
WILLOW
MIRAMONTE
HARVARD
ASHBY
FORE
ST
REGAL
NEI
LSO
N
SUMMIT
DWIGHT
DURANT
PARK
ASHBY
MAR
TIN LU
THER
KING
J
MARIN
EL PASEO
I80 West
FOREST
BERRYMAN
FAIRLAWN
CAPISTR
ANO
HILGARD
DERBY
MARYLAND
CRAGMONT
ASHBY
VINE
DWIGHT
KAINS
I80 West
CARLETON
OXFO
RD
ASHBY
ALCATRAZ
SUMMITCRESTON
PARK
MILLER
STUART
MABEL
RUSSELL
REG
ENT
CALIFORNIA
4TH
CURTIS
WEST
MARIN
CRAGMONT
CALIFO
RN
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GR
IZZLY PEAK
SEAWALL
SPR
UC
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CU
RTIS
MC
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CU
RTIS
HALKIN
ARCADE
LINCOLN
LA VEREDA
MILVIA
WOODHAVEN
ARC
H
CARL
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A
HARRISON
I80 West
KEELER
BANCROFT
GLENDALE
LINCOLN
CRAG
MO
NT
PRINCE
PAGE
CAM
PUS
ROSE
UNIVERSITY
WARD
EASTER
SPRU
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STOD
DARD
GRIZZLY PEAK
THE
ALAM
EDA
POTTER
I80 West
SUNS
ET
WILDCAT CANYON
CO
VER
T
WEBSTER
FULTO
N
FRANCISCO
THE ALAM
EDA
MO
SSW
OO
D
SACR
AMEN
TO
ACTO
N
ACTO
N
BERRYMAN
HAR
PER
WEBSTER
MENDOCINO
PER
ALTA
THE ALAMEDA
KEIT
H
PIEDM
ON
T
ACTO
N
WEST
HILL
MABEL
RUSSELL
BENVEN
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WALN
UT
PIEDMONT
POPLAR
JOSEPH
INE
CLAR
EMO
NT
VIRGINIA
EASTSHORE
LOS ANGELES
LA LOM
A
5TH
BUENA VISTA
ARLI
NGTO
N
TWAIN
FOR
EST
HILLEG
ASS
EUC
LID
HAWTHORNE
DWIGHT
EUCLID
ACTO
N
CEDAR
SANTA BARBARA
CLAR
EMONT
PARKSIDE
FRESN
O
PIEDM
ON
T
BERKELEY
VIRGINIA
PRINCE
LERO
Y
CEDAR
STERLING
ACTO
N
ADDISON
CHANNING
COLU
SA
BON
ITA
HALKIN
3RD
PARK
VALLEY
HEARST
EDITH
ACACIA
TWAIN
CONTRA COSTA
PRINCE
ORCHARD
VINCENTE
ALVARADO
POPLAR
SCEN
IC
SANTA BARBARA
THOUSAND OAKS
HASTE
HOPKINS
HEN
RY
LA LOM
A
UNIVERSITY
STANTON
MC GEE
SHATTU
CK
BANCROFT
PARKER
CRAGMONT
PINE
CRAGMONT
LAUREL
DO
HR
SHO
RT
DELM
AR
HOPK
INS
FRONTAG
E
HEARST
LE CONTE
DELAWARE
PANORAMIC
MILLER
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INDI
AN R
OCK
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IRAD
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ELMW
OO
D
PIEDM
ON
T
BYRO
N
POPPY
KEELER
WOOLSEY
BANCROFT
CR
AGM
ON
T
SHATTU
CK
STUART
9TH
LATHAM
GILMAN ROSE
ARLINGTO
N
5TH
DEAKIN
OREGON
EUC
LID
CO
LUSA
ARC
H
WALLAC
E
ROSE
KEEL
ER
UNIVERSITY
LA LOMA
WAR
RIN
G
HEN
RY
DAN
A
REG
AL
EASTER
Derby Creek
Derby Creek
Derby Creek
Environmental Constraints
File: env_cnstrt_E_20040302.mxdLast updated: March 2, 2004
Prepared by the City of Berkeley Planning and Development Department
The City of Berkeley makes no representations about the suitability of the information contained inthese maps. All maps are provided "as is" without warranty, either express or implied of any kind.The City of Berkeley hereby disclaims all warranties and conditions with regard to this information,including all implied warranties and conditions of merchantability, fitness for a particular purpose,the quality of the material, title or non-infringement. In no event shall the City of Berkeley be liablefor any special, indirect, incidental or consequential damages or any other damages whatsoever,including but not limited to loss of use, data or profits, under any contract, tort, strict liability or otherlegal or equitable theory arising out of or in connection with the use or performance of informationavailable from this map.
This map may contain technical inaccuracies or typographical errors. Changes are periodicallyadded to the information herein. The City of Berkeley may make improvements and/or changesin the document(s) and/or the program(s) described herein at any time.
Enlargement of section of the City of Berkeley Environmental Constraints Map, showing the Shat-tuck Hotel parcel. Pale green indicates a liquefaction zone
Close-up of the Shattuck Hotel parcel from the City of Berkeley Environmental Constraints Map. Pale green indi-cates a seismic liquefaction zone.
Exhibit A
SPECIAL PUBLICATION 117
GUIDELINES FOR EVALUATING AND MITIGATING
SEISMIC HAZARDS IN CALIFORNIA
Adopted March 13, 1997 by the State Mining and Geology Board in Accordance with the Seismic Hazards Mapping Act of 1990
Copies of these Guidelines, California’s Seismic Hazards Mapping Act, and other related information are available on the World Wide Web at
Copies also are available for purchase from the Public Information Offices of the California Geological Survey.
CALIFORNIA GEOLOGICAL SURVEY’S PUBLIC INFORMATION OFFICES: Southern California Regional Office 655 South Hope Street, Suite 700 Los Angeles, CA 90017-3231 (213) 239-0878
Publications and Information Office 801 K Street, MS 14-33 Sacramento, CA 95814-3532 (916) 445-5716
Bay Area Regional Office 185 Berry Street, Suite 210 San Francisco, CA 94107-1728 (415) 904-7707
Exhibit C
12
For hospitals, public schools, and essential service buildings, more stringent requirements are prescribed by the California Building Code (CCR Title 24). For such structures, the requirements of the Seismic Hazards Mapping Act are intended to complement the CCR Title 24 requirements. Criteria for Project Approval The State’s minimum criteria required for project approval within zones of required investigation are defined in CCR Title 14, Section 3724, from which the following has been excerpted:
"The following specific criteria for project approval shall apply within seismic hazard zones and shall be used by affected lead agencies in complying with the provisions of the Act:
(a) A project shall be approved only when the nature and severity of the seismic hazards at the site
have been evaluated in a geotechnical report and appropriate mitigation measures have been proposed.
(b) The geotechnical report shall be prepared by a registered civil engineer or certified
engineering geologist, having competence in the field of seismic hazard evaluation and mitigation. The geotechnical report shall contain site-specific evaluations of the seismic hazard affecting the project, and shall identify portions of the project site containing seismic hazards. The report shall also identify any known off-site seismic hazards that could adversely affect the site in the event of an earthquake. The contents of the geotechnical report shall include, but shall not be limited to, the following:
(1) Project description.
(2) A description of the geologic and geotechnical conditions at the site, including an
appropriate site location map.
(3) Evaluation of site-specific seismic hazards based on geological and geotechnical conditions, in accordance with current standards of practice.
(4) Recommendations for appropriate mitigation measures as required in Section 3724(a),
above.
(5) Name of report preparer(s), and signature(s) of a certified engineering geologist and/or registered civil engineer, having competence in the field of seismic hazard evaluation and mitigation.
(c) Prior to approving the project, the lead agency shall independently review the geotechnical
report to determine the adequacy of the hazard evaluation and proposed mitigation measures and to determine the requirements of Section 3724(a), above, are satisfied. Such reviews shall be conducted by a certified engineering geologist or registered civil engineer, having competence in the field of seismic hazard evaluation and mitigation."
Lead agencies can have other, more stringent criteria for project approval. The State Mining and Geology Board recommends that the official professional Registration or Certification Number and license expiration date of each report preparer be included in the signature block of the report. In
1
Jacob, Melinda
From: Zoning Adjustments Board (ZAB)Subject: FW: 221 Harold Way
From: Zoning Adjustments Board (ZAB)Subject: FW: Comments for the Sept. 30 meeting about the Harold Way ProjectAttachments: Comments to ZAB about Harold Way.docx
Subject: Comments for the Sept. 30 meeting about the Harold Way Project
Dear ZAB Commissioners,
Today I received a notice that had been posted to the Live Oak - Cordinices Creek Neighborhood Association’s
site. Since this Notice began with an egregious error in its headline I read the entire thing to find out what the
authors were trying to accomplish.
Like so many political communications in our country right now this Notice is filled with unsupported
assumptions and contradictions along with appeals to emotion rather than reason. I finally reached the point
where I had to comment on the initial error, the assumptions, the contradictions, and the many questions I had
as I read. Here is the Notice as a Word document along with my questions and comments highlighted in
yellow:
Although the construction phase of the Harold Way project will inconvenience me significantly (I park on
Harold Way frequently when I go to the YMCA) I still support the project that has been brought to you. When
young couples are paying more than $2,000/month for small 1 bedroom apartments at the foot of University
Avenue we need more housing here in Berkeley. Unless we really want to turn Berkeley into upper middle class
enclave with minimal diversity we need more housing.
The only sane way to get more affordable housing is to also build “market rate” housing. Our City does not
have the funds to build “affordable housing” by itself. Our financial obligations to our current residents and
employees, as well as to former employees, use up our City’s income without leaving a significant reserve.
Thank you for the time and energy you are generously devoting to our City!
Jenny Wenk
2316 Eunice Street
Berkeley, CA 94708
P. S. In case there is a problem with opening the Word document here is the text.
Berkeley Zoning Board to Hold Hearing on Berkeley Skyscraper* September 30th
The Berkeley Zoning Adjustment Board (ZAB) is holding a special hearing on the 18 story apartment building proposed for 2211 Harold Way on Wednesday, September 30th at 7:00 pm, Berkeley City Council Chambers, 2134 MLK Jr Way - 2nd floor. It is very important for Berkeley residents to express their views at this every ZAB meeting.
2
Developers (one who builds on land or alters the use of an existing building for some new purpose) and the City cCouncil are putting heavy (needs verification since no evidence they are quoting any ZAB member) pressure on the Zoning Adjustment Board to approve the Harold Way high-rise project. Note that Zoning Adjustment Board members are appointed by the City Council, and six of the nine members are connected to the real estate and development industry. (Zoning law is best understood by people who deal with it regularly. Most Berkeley residents have very little comprehension of the complexities of Zoning.) If there is to be a suit appealing their decision, the case for the suit must be presented to the ZAB beforehand. (Why is this sentence necessary? Is a suit being actively planned? Haven’t the majority of Berkeley voters made it extremely clear that they want more housing density in downtown near the transit corridors?)
Many (An unfounded assertion in this context. No surveys are cited. No percentages are suggested.) Berkeley residents think (furthers the unfounded assertion) that this tall building is the wrong design, the wrong size, and in the wrong place. It increases Berkeley density, traffic, water and infrastructure usage, and is not environmentally sound.(What evidence of this assertion?) It is located within the Berkeley High School student zone. (Why is this a problem? Does it present a danger to the high school students? Or do the high school students present a danger to the residents? What evidence of either danger?) The building includes few parking places, (Restricting residential parking has been part of the City’s Zoning Code for years. Do the protesters wish to reverse this part of the Code?) the developers hoping that people will use our already overcrowded public transportation system (Does the writer really prefer people to drive to work?) and will not drive on our already overcrowded (Implies that every street in Berkeley is constantly full of cars bumper to bumper. No evidence to support this assertion.) streets. Berkeley residents have many questions about the validity of the Environmental Impact Report. (What EIR has been unquestioned in the last 20 years? Was it an EIR about a project in Berkeley?)
Berkeley citizens want every new Berkeley building to be green, energy efficient and in-scale, as when they voted on Measure R in 2010. At 2211 Harold Way, the very successful Shattuck Cinemas that bring business to downtown Berkeley restaurants will be replaced with smaller theaters. (Are all of the theatres at Shattuck Cinemas filled for every showing now?) The historic view from the UCB Campanile designed by John Galen Howard, founder of the College of Environental Design and a gift of Jane Sather in 1914 would be blocked by this multi-story apartment building. (That view has largely been blocked by the growth of trees on and off the campus for most of the last 60 years. The view they are citing was already gone by the time I was a student on the campus in the early 1960’s.)
* Skyscraper as defined by Wikipedia: “A skyscraper is a tall, continuously habitable building of over 40 floors, mostly designed for office, commercial and residential uses”
1
Jacob, Melinda
From: Zoning Adjustments Board (ZAB)Subject: FW: APPROVE Use Permit #13-10000010
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