June 11, 2008              

Critical West Berkeley "Flexibility" Rezoning  Proposals

The most serious threat to the viability of industry and arts since the inception of the West Berkeley Plan was unveiled by City Planning staff in December. This threat was made in the form of "increased flexibility" zoning proposals. If the most radical of these proposals were adopted by the City, existing protective zoning provisions would be removed.

These protective zoning provisions are largely responsible for the viability of industry and the arts in West Berkeley. These businesses, without the protections now in place, would be unfairly forced to compete with "office, retail, laboratory, R & D and high value science oriented development," for all available space.

In contrast to these staff proposals, WEBAIC and local real estate professionals, two years ago, authored a constructive flexibility provision to amend the zoning provisions here in West Berkeley. The City Council unanimously passed a resolution directing the Planning Department to consider implementing our recommendation.

Our proposal for constructive flexibility will facilitate positive development allowing subdivision of large spaces into the smaller spaces that are in greater demand.  Also it will make possible the interchangeability of space between industrial and arts and crafts uses.  Sponsored by Council members Maio and Capitelli, our straightforward proposal was forwarded to the Planning Director, but instead of acting on these stakeholder-proposed changes, staff ignored them for two years while working on their own developer-driven "increased flexibility proposals."
Staff's December proposals laid out two preferred paths toward their goals:  1. Create a Master Use Permit process that would allow any project choosing it to essentially be exempt from all existing zoning standards, including those regulating use and size.  2. Open up the existing zoning's industrial "protected use" categories to accommodate the non-industrial uses.

In stark contrast to the West Berkeley Plan process that created the existing zoning, staff proposals were top-down, fast-tracked, and offered no opportunity for meaningful stakeholder input. Staff's proposals constituted fundamental changes to the Plan's Goals and Policies. Staff acted as if these were just minor adjustments, but in reality these drastic changes would trigger a year-long Environmental Impact Report (EIR) process costing the City hundreds of thousands of dollars. In response to all of these concerns, WEBAIC undertook an effort to democratize the process and bring a more balanced perspective to the substance of the proposals through initiatives in education, collaboration, participation, and negotiation.
As an educational initiative we put together our Forum on the West Berkeley Plan & Sustainability: Economy, Equity, and Environment.  We collaborated with labor, economic justice and environmental organizations as well as neighbors and members of the brokerage community.  We've consistently participated in all relevant Commission meetings, met with Council members and Commissioners, and gave a presentation on industry and arts at the Planning Commission's West Berkeley tour in March.

These WEBAIC initiatives contributed to recent positive changes in the Planning Department's tone and timing:

o WEBAIC has been invited into ongoing negotiations with a newly collaborative Planning manager and staff.  
o Staff moved the WEBAIC/broker constructive flexibility proposals to the top of their to-do list.
o Staff moved the process conclusion date from July 08 to fall and likely into 2009, allowing time for more substantive study.
o Staff has requested WEBAIC help the Department in the delineation of  "what's working" in West Berkeley.
o The most recent Staff report stated: "We heard you [your criticisms], so now we're resetting our thinking and process … [including] carrying out ongoing discussions with WEBAIC," and creating new "Parameters for Project:  1. Maintain West Berkeley Plan Goals and Policies; 2. Avoid Housing in the manufacturing districts; 3. Follow an inclusive process-give us your input; 4. Incorporate feedback and make changes as needed."
These developments on the City's part all appear positive for a more equitable, balanced, and cooperative process.  It is yet to be seen whether they will result in more positive proposals for industry and arts in West Berkeley.  Thus far several specific items that WEBAIC has identified as detrimental to industry and the arts in the early staff proposals haven't been officially rescinded.
WEBAIC will continue to work for a positive outcome for our members and constituency in this process. We'll keep you posted on important developments and critical meetings where your voice could make the difference.  If you'd like to pitch in please get in touch.  Thanks for your support and contact us with any concerns or ideas you have so we can continue to say:  West Berkeley Works!                             

For the full story, please read on-

Part 2  -  In Detail:
"increased flexibility" proposals in relation to the West Berkeley Plan

Planning staff's "increased flexibility" proposals cover a wide range of subjects and initiatives. Together with a former Berkeley Economic Development director and West Berkeley real estate professionals, WEBAIC made proposals for a constructive increased flexibility almost two years ago.  Among other proposals, these included easier subdivision of large spaces and allowing now the now impossible interchangeability of arts and crafts and industrial uses.  Forwarded by City Council to the Planning Director, our proposals languished while companies that WEBAIC is aware of left Berkeley for lack of being able to put an arts/craft use into a space previously used for industry and other companies looking for space gave up because of the difficulty of subdividing large space to accommodate their desired square footage.

WEBAIC, in concert with the same West Berkeley real estate professionals, have recently been meeting with staff and some of our earlier proposals are finally being given serious consideration. These, and some of staff's new proposals posit minor, constructive changes to the zoning and should be moved along quickly. But other staff' proposals would fundamentally alter core goals and policies of the West Berkeley Plan.  In these, staff proposes weakening key zoning mechanisms called for by the Plan to maintain its clearly stated, balanced mix of uses.

Why your voice is needed:

The City understands WEBAIC representatives speak for the concerns of their membership, with these concerns widely held by the larger industrial and artistic community, but the only way to affect policymaker's decisions at such a critical moment is an overwhelming presence and outpouring of concern by those affected by these decisions. There is actual and latent support for our companies and sectors among Planning commissioners, but policymakers always need to be seen as responding to the legitimate, expressed needs of their constituents.  A strong public outpouring can provide them that opportunity.  Also important to remember is that by the public hearing stage, decisions have often already been made in most policymaker's minds and progress is always easier earlier than later.

Heart of the West Berkeley Plan; Industrial and Arts Protections

The key underpinning of the West Berkeley Plan is the maintenance of the mix of uses through zoning.  The Plan provides space for all the various activities, but recognizes that industry and arts require codified protections to ensure their presence so they can provide their significant contributions to Berkeley's economy, equity, culture, and as we now understand, environment.

Only a limited amount of existing art and craft studio space is protected in the present zoning. It appears that this protection would not be weakened or removed by staff proposals.  But staff proposals to increase office and retail and generally upzone West Berkeley would induce greater gentrification, placing more economic pressure on these key but fragile cultural uses and their viability. 

The linchpin of the industrial protections is the Special Provisions/Changes of Use sections of the zoning code.  These essentially state that if a property is or was last in use as a manufacturing, wholesale trade, warehousing, or material recovery (recycling) enterprise, 75% of its square footage must remain dedicated to these uses.  These Special Provisions are the single most important reason that 320 industrial PDRR (production, distribution, repair, reuse\) businesses function today in West Berkeley.  The success of these provisions have also made them the target of Planning staff's proposed changes, which take two separate but related approaches:

The City's proposals (as presently described in released staff reports):

"Increased flexibility" Track 1: The Master Use Permit Process

A Master Use Permit Process is being proposed by staff that can apply to every West Berkeley commercial property.  Originally targeted only at large sites, the written proposals subject all sites (with no minimum square footage) to these provisions.  A development agreeing to go through this process could proceed without complying with any specific zoning limitations on use or size.  The Special Provisions/Changes of Use industrial protections, along with the rest of the zoning, would no longer apply.  The City Council appointees on the Zoning Adjustments would take on the new role of deciding whether a project was consistent with certain broad policy goals and thus deserving approval.

Staff proposes that a developer submitting to the Master Use Permit process would be obliged to provide either space or a cash payment to the City in return for the "increased flexibility". These funds or space would theoretically go toward securing an undefined amount of permanent, affordable space for arts and/or industry.  Leaving aside the "hypothetical" aspect of this proposed “carrot,” this concept is akin to allowing clear-cutting of the ancient North Coast forests to generate funds to preserve a few small specimen groves like Muir Woods. 

The Master Use Permit process's politicization of land use decisions:

The abandoning of traditional zoning mechanisms and standards is a radical step that would potentially leave all development in West Berkeley up to the nine Council-appointed ZAB members, and thus subject to all the financial and political pressures councilmembers, as politicians, are subject to.  Planning professionals, not the Council, now determine whether projects conform to the zoning code.  They are of course subject to political pressure, but their wiggle room in these decisions is fairly closely constrained by permitted/prohibited uses, development standards, etc., in the zoning code.  The Council only officially weighs in when a project that at least arguably fits the zoning is appealed to them.

Under the new Master Use permit process it appears all clear, existing standards would be a thing of the past.  Each development would be subject to all the political and financial pressures the highest bidder could bring to bear and ZAB members (as Council proxies) would only have broad policy goals to guide and constrain them.   Unlike clear zoning standards, broad policy goals are subject to the skillful interpretation that is the stock and trade of City attorneys and staff, and experience has shown that politically favored projects can almost always be justified by this method. This is akin to making land use decisions in Berkeley the way decisions (subject to essentially unconstrained lobbying) are made in the U.S. congress. We see how well that's worked out.  If we want campaign contribution-driven land use decisions then this radical deregulation should be implemented. If we want consistency and a modicum of fair, non-capitalized and politicized land use decisions, this proposal as we now understand it must be rejected. 

"Increased flexibility" Track No.2: Greatly weakened Industrial Zoning Protections

The second "increased flexibility" track comes into play if a project chooses not to proceed under a Master Use Permit.  The project then moves through a standard approval process subject to existing zoning, except staff is proposing "increased flexibility" provisions that will fundamentally alter zoning through changes to:
"Industrial Space Protections, Definitions of Industrial Use, Split Zoning on individual parcels, Permitted Uses, Food Service, Parking Waivers, Height/Story Limits, and changes to Other Protected Uses (Artists,Child Care)"

As previously noted, a few of these proposals are constructive and/or are relatively minor.  Several, such as changes to height/story limits and parking waivers have potential for significant impacts and deserve serious discussion, but their implementation wouldn't fundamentally change the West Berkeley Plan.  Unlike those benign proposals, staff's proposed changes to the Industrial Space Protections, the Definitions of Industrial Use, and Permitted Uses will fundamentally alter the West Berkeley Plan.  Staff reports clarify that these "increased flexibility" proposals are being implemented to accommodate the following uses:

Staff goals for "increased flexibility":

1. "High-valued science-oriented development"      2. "State of the art research and development"  
3. "Laboratory"                4. "Office"                 5. "Retail"

Staff proposes changing:
Industrial Space Protections, Definitions of Industrial Uses, and Permitted Uses by:

A." Changing, updating, the definition of what is "industrial and/or manufacturing"
B. "Reducing the cost of replacing industrial space as presently required"
C. "Providing greater flexibility regarding limitations of amount of office, retail, and replacement requirements."
D. "Expanding the range of permitted uses"

The Green Corridor, Green collar Jobs and Increased Flexibility

Berkeley's Mayor, Tom Bates, recently joined several other East Bay Mayors and UC Berkeley's chancellor to form what is being called the East Bay Green Corridor.  This initially sounds like a great concept but certain key aspects of this proposal appear to be driving the City's "increased flexibility" efforts to undermine existing Berkeley's industrial protections.

The City recently commissioned SFSU Professor Raquel Pinderhughes to write the City of Berkeley's Green Collar Jobs Report. Professor Pinderhughes is a national expert on this subject.  Her report states that green collar businesses (businesses that provide jobs that improve the environment and are manual labor) Yes, she does use this term are growing dynamically ... and "fulfill an urgent need for a new source of living wage jobs for low income residents with barriers to employment."  The Report further states "the most critical need of Berkeley businesses providing green collar jobs is for ...appropriate, affordable space.  Almost all green businesses...with green collar jobs require industrial space.  City planning policies can...help meet this critical need especially by preserving industrial land."  Of the 31 businesses providing green collar jobs in Berkeley, 27 of them depend on West Berkeley's industrial zoning.

At the recent release of this City commissioned report, the Mayor made some interesting comments. In describing these jobs we supposedly value and want to attract, he said "what's the problem if they (these jobs) go to Oakland or Richmond" and "maybe we won't make anything here (in Berkeley) anymore."  As astounding as these comments were on this particular occasion, the more important issue to understand is why they would be made at all.  After significant analysis involving meetings, presentations, and discussions with the Mayor and Berkeley's Economic Development Director, WEBAIC's understanding is that the Mayor, the Planning, and Economic Development Departments perceive West Berkeley's role in the Green Corridor as providing the front office and basic non-production R &D space for British Petroleum/UC's  $500,000,000 biofuels venture and associated spin-offs. This proposed destiny for West Berkeley was clearly stated by Economic Development's Dave Fogerty before the Planning Commission.  This is a, if not the, driving force for "increased flexibility's" push for a significantly expanded office and laboratory sector that can only largely come at the expense of existing protected uses and jobs.  The Mayor's comments reveal that the actual production and green collar job aspect of the Green Corridor would be accommodated outside Berkeley while we would facilitate white-collar office jobs and PhD level research.  These jobs are no doubt valuable, but under "increased flexibility" the City is proposing to trade away true green and blue-collar jobs and companies to get them.  This violates key West Berkeley Plan tenets.
How "increased flexibility" proposals contradict West Berkeley Plan Goals and Policies

The above-described proposed changes to zoning provisions/language together constitute significant changes to the West Berkeley Plan itself.  By allowing the proposed uses to locate in spaces presently reserved for manufacturing, wholesale trade, warehousing, and material recovery enterprises, staff proposals will undoubtedly result in a significant loss of these spaces, companies, and jobs in contradiction to the Plan's stated Goals and Policies.
The Economic Rationale of the Plan States: "Maintaining the economic mix requires active City intervention to support the retention of manufacturing plants. In the absence of supportive land use policy, and other_support for manufacturing, West Berkeley would tend to "de-industrialize" over time,_with manufacturing facilities and jobs moving elsewhere. The Plan's Land Use, Rationale section, states: "If no limits on the conversion of manufacturing space were enforced here (the MULI), widespread displacement of manufacturing would be possible, contrary to the Plan's economic development and land use policy." There are numerous other West Berkeley Plan Goals, Policies, and Rationales that would be violated by implementation of the staff's most extreme "increased flexibility" proposals. Please see the attached addendum for a more complete listing of relevant West Berkeley Plan Goals and Policies). 

The West Berkeley Plan Works! through reasoned protections and mechanisms promoting "constructive flexibility."

Under present zoning provisions, 25% of space now devoted to protected uses can be converted to other permitted uses such as office, lab, R&D, software, etc.  This is equal to at minimum hundreds of thousands of square feet (likely over 1 million) now potentially available for these uses. That is why the Plan states: "The_conversion limitation approach allows change, but regulates its pace and scope." Additionally, a large percentage of commercial land in West Berkeley is already devoted to laboratory space (approximately 10%) with Berkeley being well represented in the biotech and high-tech fields.  City statistics reveal somewhere around 40-50% of West Berkeley industrial zone employment is already non-industrial or arts-related while approximately 40-50% is in industry and arts.  What exists now is in fact the successful, diverse mix of business, employment, and culture envisioned in the Plan.  While other cities around the Bay and across the country are now actively trying to preserve these sectors, The West Berkeley Plan's foresight has created a vital and equitable economy and culture that deserves not to be dismantled, but lauded, appreciated, and encouraged.

West Berkeley Works!

WEBAIC  •  info@webaic.org  •  510-549-3213


            Helps the public understand West Berkeley industries' contributions to the community;

            Helps businesses maintain and increase their contributions to Berkeley's economy and cultural richness, including how to adopt sustainable practices;

            Serves as a liaison between WeBAIC's members, the community, and local government;

            Promotes the development of sustainable industries as envisioned in the West Berkeley Plan.


WEBAIC • West Berkeley Artisans & Industrial Companies
(510) 549-0190 • PO Box 2755, Berkeley CA 94702