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Developer Pressures Berkeley With SB 35

Morris Newman on
Apr 8, 2018

Marking a first for Senate Bill 35, a break-through-the-jams housing statute enacted last year, a homebuilder earlier this month invoked the law to both bypass the California Environmental Quality Act and speed up the approval process for a 260-unit rental complex in Berkeley. Half the units in the 1900 Fourth Street development are reserved for low- to-moderate-income households, far beyond the city’s inclusionary requirement of 13 affordable units. The developer is WBI, a subsidiary of Danville-based Blake Griggs Properties.

Sponsored by State Sen. Scott Wiener (D-San Francisco), SB 35 exempts projects from both CEQA and local land-use laws for projects that meet at least one of two conditions: In communities that have already built required number of affordable units, projects set aside 10 percent of units for low- and moderate-income households (those earning 80 percent of the area or less of area median income (AMI). In cities that have not yet built their “fair share,” 50 percent of the units are to be set aside for the same category of renters. Additionally, construction workers must be paid prevailing wages.

The project is the latest of many that have run the gauntlet of Berkeley land-use politics, local opposition consistently leads to the rejection or down-sizing of both commercial and residential projects. Subjecting conforming projects to CEQA review is par for the course in Berkeley, according to lawyer Jennifer Hernandez, a partner at Holland & Knight who represents the developer.

“There are no ministerial [i.e. by-right] approvals in Berkeley,” she said.

The city required the developer of 1900 Fourth to prepare an EIR, even though the proposed housing conformed to existing ordinances, and did not need to be down-sized or otherwise changed.

Local anti-growth groups latched onto the alleged remnants of Indian artifacts in the soil as the means to bring CEQA into the development dispute. Activist groups like Indians Organizing for a Change claimed construction would disrupt ancient shellmounds, which were funerary towers built by ancestors of the Ohlone Indian Tribe. The remains of more than 300 mounds, some of them 20 feet tall, were built as early as 3700 BC.

After testing the subsurface for shellmound remains, including trenching, the construction site did not overlay any shellmounds, according to Berkeley planning consultant Mark Rhoades, a consultant to the developerThose findings were included in the 2016 draft EIR, although Indian representatives remain unconvinced

Facing the force of SB 35, the city announced on March 8 it was fast-tracking the approval of the development, officially starting the 180-day countdown to approval, as required in the statute. Other components of the project include 27,500-square-feet shopping center with a restaurant, a 7,000-square-foot park, and a 1,300-square-foot community center.

Indian representative Vincent Medina Jr. said he was “surprised and taken aback” by the city’s decision to go forward with the housing. Speaking to Berkeleyside, a local news site, Medina said he found the move “deeply unsettling … that our burial spaces, our sacred sites are not protected or respected by people who want to make a profit on these places.”

Hernandez, for her part, she said she was impressed by the muscle in SB 35: the city has already scheduled meetings involving multiple departments to iron out traffic-circulation and other details necessary for final project approval.

“The clock is ticking and the city has been very cooperative,” she said, referring to the 180-day deadline for project approval required under the new state law.

The use of SB 35 to bypass both CEQA and local ordinances has the potential to become a popular toll for home builders across the state that previously have hit roadblocks of zoning restrictions, hostile neighborhood groups, or both. Technically, SB 35 is applicable to the great majority of California municipalities. According to a SB 35 Statewide Determination Summary, prepared by the California League of Cities, only 13 cities or counties statewide had approved or built their share of affordable units according to the Regional Housing Needs Assessments (RHNA).

“It is not surprising that the (summary) includes nearly every city and county in California,” says the League of Cities report. “Because state formula-generated housing need numbers have always ignored actual market conditions [such as high land costs] restrictive local zoning and the loss of affordable housing funds due to the termination of redevelopment agencies.”

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