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Solimar Research

Insight: What Berkeley Case Tells Us About SB 35

William Fulton on
Sep 16, 2018

So, the City of Berkeley has shown that it’s possible to poke a hole in SB 35. And it’s a good case to examine in assessing whether Sen. Scott Wiener’s controversial law, passed last year, will help to build more housing or will instead force cities to be more creative in getting around the law.

Back in April, Blake-Griggs Properties became the first developer in the state to seek by-right approval for a project under the new law, which allows developers to end-run discretionary approval processes under certain circumstances. And at first glance, the proposed 260-unit housing project would seem to be a perfect candidate for the SB 35 treatment: The parcel is currently a parking lot – in fact, the parking lot for the famed Spenger’s Fresh Fish Grotto across the street. Half the units were set aside for low-income residents, as required by SB 35. And three other housing projects have been approved or built recently on the same block, which is essentially the intersection of University and Fourth in West Berkeley.

As we reported last week, on September 4, Berkeley Planning Director Timothy Burroughs wrote a letter to the developers of 1900 Fourth Street making a variety of arguments why the project should go through the regular city approval process. These arguments are of varying quality – among other things, the letter suggests that Berkeley’s status as a charter city protects it from SB 35 even though SB 35 expressly applies to charter cities – but the one that might prove powerful to cities around the state is the idea that 1900 Fourth Street is part of a city-designated historic landmark.

We’ll get to the details in a minute, but there is an important larger point to make: As with so many things in California planning, SB 35 looks simple on the surface but is actually pretty complicated and qualifying a project under the law requires a developer to hit a bullseye on a wide range of issues. In particular, Section 3 of the law (now Section 65913.4 of the Government Code) contains an enormously long list of requirements and exceptions, ranging from requiring the project to be at least two-thirds residential to conforming with local planning and zoning to not being in the coastal zone or situation on a wetland or prime farmland.

And that the development would not “require the demolition of a historic structure that was placed on a national, state, or local historic register.”

The critical portion of Berkeley’s letter says that 1900 Fourth Street does not qualify for SB 35 because it is located inside the boundaries of the West Berkeley Shellmound, a three-square block area that is designated as Berkeley city historic landmark no. 227.

Now, the West Berkeley Shellmound area isn’t exactly an historic structure. After all, the location of the proposed project is a parking lot. But the area is the location of a onetime mound, 30 feet high and 100 feet long, around which native people lived for thousands of years before Berkeley was developed. The mound included shells from shellfish, among other things. Native tribes have placed a high priority on protecting the shellmound area.

And the Shellmound area is hardly pristine. The mound itself was demolished almost a century ago. The area is adjacent to I-80 and railroad tracks run through the middle of it.

In his letter to the developer, Burroughs notes that a native burial ground was located in the vicinity and part of the shellmound may still exist under the ground. That’s the “historic structure” that could be harmed by construction of the project.

The shellmound historic area is strictly circumscribed, and neither the three other residential projects recently developed on the same block nor the Spenger’s property itself are included within it. (Though the Spenger’s building is Berkeley historic landmark no. 209.)

Burroughs goes out of his way to say that “designated City landmarks may be developed (and many have been).” But, apparently, only after “the City’s usual development review process.”

In the letter – which reads more like is was written by a city attorney than a planning director – Burroughs also claims the project’s traffic impacts don’t meet the performance standards required in the West Berkeley commercial zoning districts and the project, while it devotes half of its units to low-income housing, does not provide for very-low-income housing as required by the city’s affordable housing mitigation fee ordinance. The city also argued that historic preservation is a core municipal function of a charter city and therefore is protected by the state constitution, meaning SB 35 can’t override that power.

The Berkeley SB 35 controversy highlights a variety of weaknesses in the California planning system – most especially the backwards way that local approval processes, driven by the California Environmental Quality Act, go about identifying the state of environmental and cultural resources.

The old joke is that thanks to CEQA we only know about the resources we just destroyed – because we are only required to find and analyze them when a developer comes along. The city’s argument regarding the shellmound is, essentially, that part of it still might be down there but nobody knows because nobody’s ever looked. That’s an argument for more comprehensive resources assessment at the plan level – which rarely happens.

But it also shows how historic landmarks – and other requirements contained within SB 35 – might make it more difficult than you might thank to qualify projects for SB 35 approval. After all, the very places where we want housing to go are often the most historic places in town – infill locations near railroad traks. Besides the Shellmound area and Spenger’s, there are 328 other historic landmarks in Berkeley. And, in Berkeley and elsewhere, perhaps more to come – because of SB 35.

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