Please contact Michelle at: mp45@pacbell.net for future updates
The neighbor's who we are supporting in their legal efforts to get the student coop - The Chateau to be a better neighbor, will be going to Small Claims Court in the City of Berkeley, located at 2000 Center Street. They would very much appreciate your further support by showing up at court.
It's important for the courts to know that we care about our City and quality of life. The residents of Berkeley have regrettably filed this lawsuit as the City has failed to implement its' own ordinances. I'd like to strongly encourage you to attend the above court hearing.
Regards,
Marie
There should be an update on this important case by October, 2004.
Thank you, Elaine Garber - attorney for Affordable Housing Associates, for the quote, "All urban projects get out of jail for free". This succinctly describes what the approval of the senior housing project is at 2517 Sacramento Street, and precisely shows the City's intent to grant favors to the developer. Okay - it was taken out of context from the argument meant to show that this proposed development is not a "get out of jail for free" card. It did, however, make me wonder if this comment may have been an unintentional slip, a tinge of conscience in the midst of the kickbacks, bullying, and public manipulation to get the tenacious opposing side to back-off and let the City and AHA "do their thing".
The appellant in this case, Neighbors for Sensible Development, argued a solid case and demonstrated a strong showing in the courtroom. Seats on both sides of the courtroom were packed with people who strongly oppose the Affordable Housing Associates' project as the City of Berkeley approved it. It is ironic these ranks were populated by disabled residents, senior citizen neighbors of every ethnic background and shade of coloring, and young and middle-aged supporters and litigant participants of Neighbors for Sensible Development. If this project promises to be such a benefit to the community, why would the overwhelming show of support be for the side of the appellant? To be sure, AHA had a sprinkling of staff members there, their attorney and the City of Berkeley's attorney, but the clear majority of attendees were there to support the residents of this primarily low-income, minority, single-storied dwelling neighborhood that is being threatened with the out-of-scale, excessively dense residential development that has received substantial waivers as to the number of off-street parking spaces, variances to maximize lot coverage, and unit sizes that squeak past HUD's regulations for subsidized unit size by a mere 2 square feet per unit.
If this development had the wellbeing of low-income seniors in mind, then why are 40 units being crammed into a lot intended for eight? There is substantial evidence that the ground contains hazardous wastes that must be cleaned to assure the health and safety of residents. If the health, safety and domestic well being of future residents were at the heart of the motivation to develop, and not - as is suspiciously evident, the potential profits emanating from the completion of this project, why would a lawsuit need to be filed in order to get the City of Berkeley and the developer to comply with Federal, State and City laws?
The heart of the lawsuit, and the argument heard by the three-judge panel on July 20th in the San Francisco Appellate court, is a demand that the letter of CEQA be followed. It is an effort to force the City of Berkeley and Affordable Housing Associates to conduct a formal EIR, warranted for many reasons. The project is substantially out of scale with the surrounding neighborhood, the proposed density concentration greatly exceeds that allowed in the zoning code for this area, and the Phase 1 and Phase 2 environmental investigations revealed excessive levels of petrochemical wastes are present that are proven carcinogens. Contrary to the assertions of the opposing side, this property is not an infill project, and it is not on a transit corridor as defined by the City.
The Mitigated Negative Declaration (MND) fails to acknowledge the existence of the proximate gas station, the vast structural disparity between the proposed project and the buildings in the surrounding region, and the fact that existing parking is already so scarce on Sacramento Street, that Berkeley ordinances prohibit parking variances for off-street parking in new projects constructed on this street. The role of the DRC is to discuss superficial architectural details, and not to analyze variances to City Ordinances, Phase 1 and Phase 2 findings, concentrations and cumulative impacts, and escalating parking and traffic difficulties resulting from proposed developments. Zoning is a separate department and hearings for these issues are the purview of zoning; independent from DRC discussions.
Even if Berkeley's MND for this project had been carried out objectively, and discussed the concerns over which Neighbors for Sensible Development are now suing, it does not carry the legal authority to force project alternatives that would be compatible with the neighborhood. CEQA, through the mandate of the public Environmental Impact Report process, provides the legal framework to define alternatives and to settle on suitable project solutions.
The City and AHA argued that further review is unnecessary because the extensive Design Review Process and the Mitigated Negative Declaration exempt them from conducting an EIR. There are several flaws with this argument.
First, the Design Review Process does not need to be conducted publicly; the requirements are set by the locality, and are not necessarily unbiased and fair to the affected neighborhood. Without the checks and balances invoked by CEQA, a municipality has no oversight. This leaves the unacceptable opportunity for City governments to break their own ordinances with impunity.
Second, the findings of the Design Review Process, local and discretionary, cannot replace CEQA, state law and the superseding legal authority. CEQA defines the conditions under which an EIR must be performed. CEQA is invoked when a development is substantially out of scale with the surrounding environment, when the added impacts of traffic, noise and parking from a project substantially degrade the quality of life, and when there is evidence that hazardous waste is present on a site that needs to be remediated prior to construction. Neighbors for Sensible Development have met their burden of proof indicating the necessity of conducting a formal EIR. An EIR requires public notice and input prior to concluding the study. The findings are published as public information and are readily available for public scrutiny. These findings force the remediation of polluted sites prior to construction and the implementation of mitigated development plans that will be compatible with the surrounding environment.
Third, it was evident, from the tone of AHA's attorney's argument, that the applicability of CEQA is a subjective determination dependent on whether or not the location of a proposed development, no matter how offensive to the community or imposing on the surrounding environment, is in a rural or urban environment. Such a line of reasoning, remaining unchallenged, will create a double standard of CEQA protections for the suburban and rural well-off and for poor inner city residents. It is primarily the poor who end up living in the less desirable and more crowded inner cities, while those with the financial means escape to the more open expanses of the city hills, outlying suburbs and countryside to make their homes.
This case is extremely significant for a number of reasons, but the most important is challenging the assumption on the part of the City of Berkeley and Affordable Housing Associates that because a property is in an urban area, the residents in the surrounding neighborhood have no right to determine the direction that future development will take. Over the past half-decade, a number of laws have been passed as "urgency measures" to dismantle the democratic process with regard to development in urban areas, erode the letter and intent of CEQA protections, and give increasingly generous monetary rewards and privilege to developers that amount to "All urban projects get out of jail for free."
If Neighbors for Sensible Development win, and CEQA is invoked, the protections enjoyed by all Californians will remain intact. If the decision goes against this group, city residents will lose control over their urban environment, and their say over how to shape their future. Increasingly - particularly as open space is lost, historic buildings are razed, densities increase, and the urban environment becomes a less tolerable and viable place to live, the division between economic classes will be distinguished by those who have the means to live in rural areas with the full protection of CEQA, with a say in the future of their neighborhoods, and those who are trapped in the city, stripped of CEQA's legal protections and denied control over the shape of their environment into the future.
Dear Neighbors and Friends of Neighbors for Sensible Development (NSD),
The court date for our appellate challenge to the proposed 40-unit Outback project was on Tuesday, July 20, 2004.
It's important for the Court to know that we care about our environment/City. We are inviting you to join us in what we hope will be a precedent setting case for the residents of Berkeley and the State of California--Improving our Quality of Life.
Neighbors of this legally contested, proposed high density, "affordable" development have been subjected to the development company's use of this property as its private dumping ground. The importance of enforcing CEQA for the protection of the future, low-income residents is underscored by the contents of these images captured by Robert C. Baum, Co-Captain, Blake & California Neighborhood Assciation.
After clicking this link to view the photos, note in particular the sealed blue drums, large abandoned vehicles, dryers, refrigerators and water heaters. The site is now being cleaned up, after these photos were sent to City Hall, accompanied by a strong complaint, but the contents of the drums, petroleum leakage and other potential toxic wastes have remained unmonitored for well over a year.
If enacted, not only will the recommendations of the regional housing elements become moot, but it will nearly assure that controversial housing projects will be built if they meet the "affordability" standard. The Bay Area mean income is substantially high enough that housing projects excluded from this bill will be minimal. The state level appeal superseding local decisions is guaranteed to every "affordable housing developer". The costs will be paid by the California taxpayers, not by the developer who is already substantially benefacted by federal, state and local monies. In light of the planning policies and aggressive approval strategies practiced by Oakland's and Berkeley's planning departments, does it really seem as though a further strengthening of the developers' hand is warranted?
SB 744, authored by D-Senator, Joseph Dunn, will further decrease residents' rights to conrol the course of development in their neighborhoods. Affordable housing project developers will have the right to appeal to a special state committee to override municipal planning department decisions. Not only is the likelihood that contoversial projects will be approved over local opposition, but your tax dollars will fund developer appeals.
It is important for local organizations and the City of Berkeley to oppose this bill. Please ask our City Council to oppose this bill. We should also support and ask our City Council to support the more reasonable approaches that inhere in AB 2980 and AB 2702.
Detailed information is available at www.cacities.org and/or www.leginfo.ca.gov.
In response to a January 30th Priority Focus article on SB 744, a number of cities have contacted the League to find out whether it is too late to send an opposition letter on the measure. The answer: ABSOLUTELY NOT! Although League staff was working to compile as many opposition letters as possible before the bill moved from the Senate to the Assembly on January 26th, we still need opposition letters. SB 744 is currently at the Assembly desk awaiting referral to committee, and we anticipate that the bill's next move will be to either the Assembly Local Government or Assembly Housing and Community Development Committee.
It still remains imperative that local officials remind state legislators of the importance of local democracy, particularly where land use decisions are concerned. With the fight against SB 744 now in the Assembly, cities are strongly urged to send an opposition letter on SB 744 to:
Visit the advocacy section on the League's website to find your representative, and a sample letter is available at www.cacities.org/hced.
Copy the Chair and members of the Assembly Housing and Community Development Committee and the Chair and members of the Assembly Local Government Committee. Addresses are available at www.cacities.org/hced.
Copy the League of California Cities, attn: Dan Carrigg
The League would especially like to thank the following cities that have already taken a position in opposition to SB 744: Adelanto, Alameda, Alhambra, Apple Valley, Arcadia, Arcata, Arroyo Grande, Barstow, Belmont, Brea, Burlingame, Campbell, Chino Hills, Claremont, Clovis, Coalinga, Concord, Coronado, Cotati, Daly City, Davis, El Cajon, Elk Grove, Encinitas, Fairfield, Fortuna, Fremont, Gardena, Grass Valley, Grover Beach, Hanford, Hermosa Beach, La Quinta, Lafayette, Lake Forest, Lakeport, Lakewood, Lawndale, Lincoln, Merced, Mission Viejo, Moorpark, Moreno Valley, Murrieta, Napa, Oakley, Ontario, Norwalk, Palm Desert, Palo Alto, Paradise, Pasadena, Pomona, Portola Valley, Redding, Roseville, Saratoga, San Bernardino, San Luis Obispo, San Pablo, Santa Clara, Santa Maria, St. Helena, Signal Hill, Sunnyvale, Torrance, Walnut, Windsor, Yuba City, League of California Cities Orange County Division and City/County Association of Governments of San Mateo County. If you have taken a position on SB 744 and are not listed here, please fax or email a copy of your letter to Jessica Mullan with the League.
Late last week Assembly Member Simon Salinas, Chair of the Assembly Local Government Committee, introduced AB 2980, a League sponsored bill which would grant regulatory relief from state Department of Housing reviews of local housing elements for those communities which commit to hit a targeted production level of affordable housing.
In brief, the measure would authorize Òproduction-based certificationÓ and reward communities with a return of their local control if they commit to build at least 15% of their share of low and very low income housing over their five-year housing element cycle. This measure is similar to last' years AB 980 (Salinas), which was delayed in the Assembly while a task force of stakeholder groups attempted to negotiate reforms to the housing element law.