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Item #12

Planning and Development Department Land Use Planning Division

STAFF REPORT

DATE: May 14, 2008 TO: Members of the Planning Commission FROM: Alex Amoroso, Principal Planner

Claudine Asbagh, Assistant Planner SUBJECT: West Berkeley Increased Flexibility Introduction During the original meeting concerning changes to West Berkeley Zoning, the Planning Commission expressed concern over public notification and involvement. Further concerns were raised over the breadth of changes proposed and lack the lack of clarity. As a result of the feedback received, staff is now engaging in a multi-step public process (over a series of several meetings) in an effort to develop improvements to the West Berkeley Zoning. Some steps already taken including: Conducting a Planning Commission tour of West Berkeley on 3/1/08; Carrying out ongoing discussions with West Berkeley Artisans and Industrial

Companies (WEIBAC), the West Berkeley Business Association (WBBA), as well as various representatives from the development community.

This PC agenda item provides new information collected since the tour and adds to the base for consideration of the W.B Zoning. The staff report has been broken into four parts:

1. Brief synopsis from the Office of Economic Development (OED): Market/Jobs Assessment

2. What’s working in West Berkeley? 3. What’s not working? 4. Review of List of Obstacles

2120 Milvia Street, Berkeley, CA 94704 Tel: 510.981.7410 TDD: 510.981.6903 Fax: 510.981.7420 E-mail: [email protected]

West Berkeley Increased Flexibility Item # 12 May 14, 2008

Discussion OED Market/Jobs Assessment Initial examination of data shows decreases in manufacturing and retail trade employment figures with modest increases within service sector employment. These trends contradict the growth projections made in the West Berkeley Area Plan. OED staff are currently analyzing the relationship of job change and land use development pattern and will return to Planning Commission at an upcoming meeting with completed analysis. What’s working in WB? It’s clear that certain characteristics of West Berkeley work well, and in an effort to present a realistic and complete picture of West Berkeley to the Planning Commission, staff has gathered information demonstrating these positive aspects. To that end, we have included a list of approximately 300 businesses representing the “small manufacturers” that have managed to thrive within the area (see attachment # 1 sent by Rick Auerbach from WEBAIC). Other studies coming to P.C. soon: Arts Commission Report; and Green Business Report by Raquel Pinderhughes (available at http://bss.sfsu.edu/raquelrp/).

What’s not working? - Identification of Obstacles While there are positive things taking place in West Berkeley, there are also many

obstacles to development. Staff has compiled a working list of development obstacles identified from several resources:

6/13/06 Council referral 3/1/08 PC tour Planning Staff 3/26/08 memorandum Other communications (e.g. Norheim and Yost communication, 3/1/08)

The initial list has been included in this report as Attachment #2, and will be added to as we continue through our public process. We've taken comments from multiple sources and represented them in table format identifying: The obstacle name The source (i.e. who suggested the issue) And a brief description (from source)

As the project progresses, additional columns will be added to the list. This tool will be used to track progress, refine the W.B. project, and as a historical reference for the project. Review of List of Obstacles Staff has attempted to group the various items on the list into broader categories related to zoning issues: Problems with Special Provision Sections—Manufacturing/Warehouse/Wholesale

uses, and Arts and Crafts uses

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Problems with other use categories Conversion/Split Zoning Development Standards Definitions of Industrial Uses Application/Approval Process

We would like the Planning Commission to review and comment on the list. Additionally, PC will need to evaluate what can and should be addressed from the list based on the constraints of the project objectives (i.e. staying within the policies and goals of the West Berkeley Plan). Next Step PC meeting further discussion and analysis of data/Incorporate comments from

today’s meeting Clarify and refine list of obstacles

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Attachments: 1. West Berkeley Companies 2. Development Obstacles in West Berkeley 3. 3/26 Planning Staff Memo

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Attachment #1 West Berkeley

Manufacturing - 103 Companies Adams and Chittenden Scientific Glass Alliance Graphics All Power Labs All Repair Machine Shop Apex Co. Artworks Foundry Barrett Woodworking Berkeley Asphalt Co Berkeley Forge & Tool Inc Berkeley Mills Bob McGee's Machining Bo Ro Sham Body Time Cal Shakes Set Shop Cari Borja Clothing Cats Pajamas Inc Chris/Vicente Woodwork Clara Beau Jewerly Clearflow Valve Coe Studios Davlin Coatings D.G.H. Outfitters Dole Blacksmithing Dorothy Bauer Designs Dr Shen's Chinese Herbs East Bay Sign Co Inc Ed Jones Engraving Edward Koehn Co El Cerrito Woodworking Electro Coatings EPPCO Femtochrome Research Flying Colors Fox Howlett Industries Ghanbari Design Giacomo Furniture Gilman Screen Printing Goldberg Woodworking Grateful Body Graysix Company Greene Designs Gu Sports Harder Thomas Hawkins Hawkins Co Heartwood Woodworking Hill Production Machinery Holophane Corporation

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Hooven & Hooven Porcelain Hurth Recycled Handbags Inlite Corporation John Barclay Woodwork Jetco Motors John L Staton Co Inc Kinetics Kirby Cabinetry Kirschner Design Inc L Brown Fabricators Laboratory Glass Apparatus Libaire Leather Libby Laboratories Lighting Systems Inc Mascot International McEwen Lighting Medina Cycles/Wrench Science Meyer Sound Laboratories Morrison Ohara Motive Products National Starch & Chemical Oliver Precision Pacific Steel Casting Company Panache Lighting Pedco Pieces Clothing The Polymer Technology Group Poly Seal Industries Powis Parker Inc Precision Technical Coating Primal Screen Quasimodo Metal Works SF Cotton/Bryn Walker S & S Enterprises Sunrise Sewing Co II Sven Design Inc Sweeney Furniture Swerve Tabs Tomorrow Teranova & Nectarine/Saunders Terminal Manufacturing Co The Shipyard The Wooden Duck Thomas Pedemonte Tienson Engraving & Mfg Timeworks Inc Tofu Yu Vital Signs

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WRE/Colortech Welding Equipment Service Wheelskins Inc Wild Blue Indigo Wilson Glass Woodware Worrell Industries Inc Zazou Food Processing/Manufacturing - 33 Companies Acme Bread Co Div II Adams Point Winery Belfiore Cheese Blessings Alive Foods Bubi's Catering California Rose Catering Cheese Cake City Inc Cultured A Donkey & Goat Winery Figaro Gelato Fra' Mani Handcrafted Salum Glass Onion Catering Grapeleaf Cellars Hudson Fish Inter-Mountain Trading Judys Candy Company Karmic Health Kavanaugh Coffee The Lunch Truck La Bonne Cuisine Catering Metropolis Baking Co Pacific Bay Coffee Pyramid Brewery Robbert Boggs Winery Rubbisow Sargent Wine Co Scharffenberger Chocolates Spring Wind Herb Co Takara Sake USA Inc Travelin Joe Espresso Trumer Brauerei Uncommon Grounds Vital Vittles June Taylor

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Recycling/Material Recovery Enterprise - 9 Companies ABC Diaper Service A.C.C.R.C All Import Auto Salvage Community Conservation Centers Compax Ecology Center Recycling Program JM Recycling NeoMicro Urban Ore Printing - 22 Companies Autumn Press Brandes Printing Co Berkeley Giclee Cantoo Consolidated Printers Inc G Bear Prints Indian Rock Imagesetting Inkworks Press Krishna Printing Light Waves Imaging Light Room Mercurio Bros Printing Milkfred Press New Leaf Press Paulson Press Paper Monkey Press Peter Koch Letterpress Printing Photolab Printing By Design Inc Savoir Print Siemons Mailing Service Tulip Industrial/Construction/Automotive Supply -18 Companies A & R Supply Airgas ALPA Parts Ashby Lumber Co Ashby Plumbing & Heating Sup Atlas Welding Supply Berkeley Asphalt Berkeley Cement Bowlin Epuipment Co

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Carquest Grainger Import Tile Irrigation Equipment Co Janco Airless Center MacBeath Hardwood NESCO Northwestern Equip & Supply Co The Tile Shop Truitt & White Automobile Repair/Restoration - 42 Companies Allied Automotive Avenue Towing Baron Von Frier Bavarian Professionals Bay Motor Wrecking Berkeley Performance Motorcycle Berkeley Smog Test Only Ctr Berkeley Yamaha Charlie's Garage Classic Auto Body Cycle Tow All Import Auto Salvage D & L Engines David Brothers Auto Don's Tire Service,Inc East Bay Tow Epifani Motors Europa Auto Body German Auto Salvage Grandma's Garage Groom's Sportscar Service Hasselgren Racing H & B BMW Husteads Ignition Systems Inc Jaguar Service Karmakanix Laurence Anderson Co. Mejias Auto Moran Motorsport Mobility Systems Motor Pro Garage

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Oceanworks Beyond Repair Oliveria Engineering Patrick Ottis Co Porsche Repair Rox Automotive Saab Replay Skelton Ferrari Smog Shop Toyota Berkley Unitech Foreign Auto Walsh Brothers Independent Volvo Warehousing/Wholesale Trade - 38 CompaniesA Mano Trading Co Berkeley Rep Warehouse Berkeley Outlet Biofuel Oasis Cartridge World Harrington Industrial Plastics IDS Courier Kermit Lynch Wines Kiss That Frog Inc Laura & Kirin Liquid Distribution Group Millennium Productions Nina Designs Nirvana Nancy McKay Design & Trading Co. Nolo Press North Atlantic Books Odwalla Pacific Coast Chemicals Pacific West Chemical Peachpit Press Slater Marinoff Small Press Distribution Inc Stonehouse Ca Olive Oil Sumiko Ten Speed Press TomTom Two Star Dog Vik Distributors Inc Wilderness Press Paper Plus warehouse

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Peaceable Kingdom Press Pedal Express Palm Press Primary Concepts Publisher's Group West Scandanavian Designs Trans-Link Corp TWP Inc. Laboratory - 13 Companies Aerosol Dynamics Bayer Corporation Berkeley Advanced Biomaterials Berkeley Research Co. Curtis & Tompkins Ltd Kaiser Labs Plexikkon Polyplus Battery Co Sentinel Biosciences (Roche) Xoma Limited Curtis & Tompkins Bear Engineering Bay Glass Research Contractors - 41 CompaniesA Nelson Construction Aarvak's Heating & Air Conditioning Inc. Advanced Home Energy Alter Systems Bay Area Retrofit Brende & Lamb Tree Care Borrego Solar Caldwell-Roland Roofing CBS Outdoor Cerridono Heating & Cooling Community Energy Services Corporation Coots Construction Crown Heating & Sheet Metal Earth Milieu Electric Eco Construction Ehret Plumbing & Heating Erikson Electric Final Cut Construction The Floor Show Fryer Construction Garden Architecture Goetz Construction Gring Pest Control

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Hathaway Dinwiddie Construction Holland & Harley Construction J & D Glass & Sash L.J. Kruse Plumbing Levitch Associates Live Oak Structural Mallot & Peterson Roofing McCutcheon Construction Nelson Construction O.C Jones & Company Professional Tree Care Co. Quantum Construction Richard Flowers Construction Solarcity Siteworks Landscape Stephen Williams Landscaping Sun Light & Power Tilt Solar V & W Patio Door & Window Walter Mork Sheet Metal Zanderbuilt

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Development Obstacles in West Berkeley- DRAFT Item #12--Attachment 2

Obstacle identified Source Description (From Source)

Within scope of flexibility project?

(y / n) Fix now?

1 Demolition of M/W/W Space (M)

Maio/Capitelli referral Industrial space cannot be demolished in the M district even if it is replaced my an equivalent amount of space for the same use, as is allowed in the MULI and MM.

2 Demolition of M/W/W Space (M): Replacement of Mfg. Use with Laboratory Use in M districts

3/1 tour: Eric Taylor (4th St. testing lab) AND Bruce Godfrey (Curtis & Tomkins)

Manufacturing space cannot be converted to laboratory use (considered an "other industrial" use in the Zoning Ordinance) without replacing the square footage of the manufacturing space.

3 M/W/W Space Protections: Implementation difficulties

3/26 Projects Staff Memo

Requirements for replacement of protected industrial uses are especially cumbersome, difficult to apply consistently, exclude "other industrial uses", including uses that directly support manufacturing. In the MU-R, this restriction appears in the "Findings" section of the district regulations, but not in the actual regulations. It is therefore easy for applicants and staff to overlook this restriction.

Maio/Capitelli referral

3/1 tour: John Curl (Sawtooth building)

Norheim/Yost Other uses cannot occupy spaces that have been used for "protected uses," even if it is another "protected use" that wants to occupy the space.

The Zoning Ordinance has two categories of protected uses: manufacturing, wholesale, and warehouse uses; and arts/crafts uses. A manufacturing/warehouse use cannot be changed (1) to an arts and crafts use, or (2) in some districts, to any other type of protected use, without replacing the space elsewhere.

Problems with Special Provisions: (1)Manufacturing, warehouse, and wholesale uses; (2) arts & crafts.

Protected Use and M/W/W Space Restrictions: Lack of interchangeability from one protected use to another (M/MM/MULI)

4

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6 Protected Use Categories 3/26 Projects Staff Memo

Other than protecting art/craft studios, there is no apparent reason to categorize protected uses into two categories especially since Arts/Crafts uses in category 2 can be changed to other uses in category 2 that have no apparent common theme (e.g., dance studio to child care).

7 Uses Permitted: Childcare in MULI and MU-R districts

3/27/08 ZAB to PC memo

MULI does not permit new childcare facilities, but existing ones are classified as 'protected uses' and the WB plan recommend that childcare uses be permitted in this area. ZAB has granted variances, but a UP would be more reasonable and cause less delay.

8 Uses Permitted: Food Service restrictions


Few, if any, existing food service uses in West Berkeley are “primarily designed to serve workers in West Berkeley” and rely on a larger client base. Service of goods made on site is also rare. There are no clear standards or definition to assist staff and the ZAB in determining whether a food service use has been designed to serve workers in West Berkeley.

9 Uses Permitted: Mini-Storage (M)

Maio/Capitelli referral Only the M district allows mini-storage uses. The use takes up precious space that could be provided by other jurisdictions nearby.

10 Uses Permitted: Residential/Mixed Use

Norheim/Yost Residential Uses created within a mixed-use project is an obstacle to maintaining M/W/W space. While M/W/W allows a variety of flexibility with a space, residential use does not.

11 Uses Permitted: Ability to establish uses that are in keeping with "green building practice"

3/1 tour: Paul Alvala (Realtor)

Defining "Green-building uses" as recycling/solar manufacturing /etc. or merely businesses that follow green practices (ex: on-site coffee shop to reduce travel time).

12 Uses Permitted: Insufficient office space allowances (especially for green businesses) in MULI

3/1 tour: Gary Gerber (Sun Light and Power)

Office space restrictions make running a business inefficient and that modern businesses, especially green businesses, need more office space.

Problems with Other Use Categories

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13 Conversion: Controls on division of space within buildings

Norheim/Yost The ZO for WB discourages large spaces from being divided into multiple smaller ones. The requirement for a UP and a PH is equivalent to a six month delay.

14 Conversion: Approval provisions for conversion (division of space) (M/MM/MULI Districts)

Maio/Capitelli referral. Table 23.E.72.050, which specifies the types of approval necessary to divide larger buildings into small spaces, has confusing language and overly strict approval processes.

15 Conversion: Sharing of space Norheim/Yost The Permit Services Center rejects a new business license when records show an existing business in the space. However, many professionals, craftsmen or other businesses want to share their space with a compatible business through a sublease or other arrangement.

16 Parcels with Split Zoning 3/26 Projects Staff Memo

1) Allowing high-demand commercial zoning in the same tenant space as lower-demand industrial zoning “tempts” tenants to misrepresent their plans for the use of the space in order to obtain permits, and subsequently violate the conditions of those permits. 2) It is difficult for staff to keep track of which portions of the building have been approved for commercial uses, and which are industrial activities that are ancillary to those commercial uses.

17 Multi-Parcel and/or Large-scale projects

Debra Sanderson Large, multi-parcel property owners have difficulty developing campus-type projects, or projects with more density, due to several zoning restrictions including: split zoning (creates an invisible boundary through the parcels); floor area ratios required for individual parcels do not reflect open space proposed for the overall project; story/height limits don't allow volume needed to build densely and efficiently.

Conversion / Split Zoning

Development Standards

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18 Parking: Parking Waivers (M) 3/26 Projects Staff Memo

In 2005, the City Council added Sections 23E.28.130 and 140 to allow commercial parking waivers, however, these new provisions were not applied to the M districts. Waiver for parking standards requires a Variance. This restriction has made reuse of properties difficult.

19 Height/Story Limit 3/26 Projects Staff Memo

Heights of stories vary. The maximum height in feet, not the number of stories, controls height and bulk of a building. Although limiting the number of stories limits the intensity of use on the site (since a story represents usable floor space), floor area ratio limits are a more precise method for achieving this. The M districts did not have a floor area limit until 1999. Now that such a limit has been added, limiting the number of stories no longer appears to serve a useful purpose.

20 Height/Story Limit: Height Limit conflicts with maximum number of stories


Section 23E.72.070 states "the height for a main building for any permitted use shall not exceed 45 feet or three stories" in the M district. Relates to Row 22.

21 Setbacks: Setbacks to residential uses (M and MM)


While it is important to prevent residential uses from unduly encroaching upon manufacturing districts, the requirement seems to be overly rigid since it does not acknowledge that in some cases an M or MM zoned property may be developed with a long-term use that will be compatible with residential uses.

22 Setbacks: Dwelling Units within 150 feet of a manufacturing district / Use.


An applicant proposed construction of four new dwelling units at 2437 Sixth Street, 143' from the Manufacturing District. Current Zoning Ordinance requires a 150-foot separation. ZAB has no way to modify this restriction on a case-by-case basis, except by approving a Variance.

23 Lot Size: Square footage restrictions on lot sizes (M/MM)

Maio/Capitelli referral In the M and MM districts, lot sizes are restricted to a minimum of 40,000 s.f. which can inhibit smaller developers/manufacturers from developing smaller properties.

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24 Definitions: Definitions of Industrial Uses


Recently there have been several proposed uses that did not meet the definitions, but which seemed generally consistent with the intent of the West Berkeley Plan in that they did not attract many customers to the site, involved relatively low-skill, high-paying jobs, and required large, open spaces with good truck access for shipping. Many of these uses have been similar to manufacturing as defined above, except that they refurbished or repaired existing equipment rather than manufacturing new equipment. Relates to Row 8.

25 Definitions: SIC Classification system is out of date

Norheim/Yost The "use" categories (retail, manufacturing, etc) are defined by the Standard Industrial Classification (SIC) manual, which stopped being issued in 1987. In 1997, the federal government substituted the SIC with a new North American Industry Classification System (NAICS) that reflects new industries (i.e. information technology and internet retail).

26 Definitions: Antiquated definitions hinder new, cleaner technologies

Michael & Steven Goldin,

In previous years, "office use" and "manufacturing" or "other industrial uses" were distinctly different land uses with different land use implications. Newer technologies make large portions of "manufacturing" spaces look and behave like traditional "offices." Outmoded definitions make it difficult to establish many of the newer, computer-oriented operations in industrial areas.

27 Ellis Act and elimination of rent controlled dwelling units (R3)


ZAB refused an application to demolish two existing residential buildings containing a total of 5 units to build a 15 unit condo project. ZAB could not make the findings required to approve the project under 23C.080.030 (E) and (F) because the dwelling units were occupied and subject to rent control.

28 Approval Process: Inadequate infrastructure / cost to update

3/1 tour: Chris Barlow (Wareham Dev.)

Speaker commented that infrastructure updates (road improvements and utility requirements) are a greater barrier to development than the permitting process.

29 Approval Process: Timing / responsiveness to approval process

3/1 tour: Eric Taylor (4th St. testing lab)

Definitions of Industrial Uses

Miscellaneous

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Attachment 3 May 14, 2008

Planning and Development Department Land Use Planning Division

MEMORANDUM

DATE: March 26, 2008 TO: Members of the Planning Commission FROM: Aaron Sage, AICP, Senior Planner Jordan Harrison, Associate Planner SUBJECT: West Berkeley Flexibility – Existing Zoning Issues Recommendation Consider the issues discussed herein and determine whether any action (e.g., Zoning amendments) should be taken to address these issues. Such action would presumably be incorporated into other West Berkeley flexibility work. Summary The Planning Commission is currently considering how to accommodate certain large-scale development projects in West Berkeley in a manner that is consistent with the West Berkeley Plan. In addition to these larger projects, many smaller projects also encounter several barriers in the existing West Berkeley zoning regulations. In many cases, these projects appear to be non-detrimental and non-controversial, and consistent with the West Berkeley Plan and the purposes of the applicable zoning district, but they are not allowed due to strict regulations related the following:

• Industrial Space Protections • Other Protected Uses (Artists, Child Care, etc.) • Food Service • Parcels with Split Zoning • Parking Waivers • Height/Story Limit • Setback from M and MM Districts to Residential Uses • Definitions of Industrial Uses

2120 Milvia Street, Berkeley, CA 94704 Tel: 510.981.7410 TDD: 510.981.6903 Fax: 510.981.7420 E-mail: [email protected]

West Berkeley Flexibility – Existing Zoning Issues Item 13, Attachment 2 March 26, 2008

Discussion/Background 1. Industrial Space Protections

Summary of Existing Regulations: • MM District: No ground-level M/W/W1 space may be removed unless replaced in

the West Berkeley Plan area (23E.76.040.E). Properties with at least 25% of total space devoted to M/W/W must maintain that percentage.

• MU-LI District: In buildings with at least 33% of total space devoted to M/W/W, no

more than 25% of M/W/W space may be removed or converted to other uses unless (1) the space is replaced in Berkeley; (2) the space is demonstrated to be infeasible for continued M/W/W use; or (3) mitigation payments are made to fund replacement space. Up to 25% of M/W/W space may be removed or converted to other uses with an Administrative Use Permit, and above requirements do not apply (23E.80.045). Furthermore, up to 25% of M/W/W space may be changed to other uses that are an “integral part of” an M/W/W use, without a Use Permit.

• MU-R District: Use Permit required for removal of any M/W/W space; mitigation

payment required for removal of more than 25% of M/W/W space (23E.80.090.E).

Issues: • The main goal of these regulations is to preserve existing M/W/W uses and

attract new ones, due to their ability to provide relatively high-wage jobs to Berkeley residents without college degrees. While the regulations may help to preserve some existing M/W/W uses by lowering rents and preventing incompatible uses from being established nearby, many M/W/W uses have nevertheless relocated or gone out of business due to other factors beyond the City’s control (e.g., inability to expand at current location, low-cost overseas labor), and few new M/W/W uses have been established, resulting in a large volume of vacant M/W/W space in the West Berkeley Plan area.

• New uses that do not meet the strict definition of M/W/W, but may otherwise be

desirable and consistent with West Berkeley Plan goals, are discouraged or prohibited because the definition of M/W/W is too narrow (see “Definitions” below for further info).

• The Zoning Ordinance has no definition of “warehouse,” leaving staff to wrestle

with whether certain uses such as contractors and general storage qualify as warehouses.

1 Manufacturing/Warehouse/Wholesale (also includes “Material Recovery Enterprise,” e.g., Urban Ore, in the MU-LI District)

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• The protections for M/W/W are difficult and time-consuming for staff to administer, because every time a new use is proposed, staff must research the property’s permit history to determine if the space in question was last used for M/W/W. This is particularly true of older, multi-tenant buildings where City records as to which uses have been established for the various spaces are vague.

• The language of 23E.80.045 is especially cumbersome and difficult to interpret. • In the MU-R, this restriction appears in the findings but not in the actual

regulations. It is therefore easy for applicants and staff to overlook this restriction. Examples:

709 Jones (MU-LI): • Description: Demolish light industrial buildings at rear, construct new 2,771

sq. ft. building with 2 live/work units and 3 parking spaces, and convert front building to live/work unit, on 4,900 sq. ft. lot.

• Issues: Applicant had to prepare feasibility study to show existing buildings

could not be used for light industrial uses (due to low ceilings, inadequate structural and electrical systems, and other factors); this requirement delayed Use Permit process by about 6 months; there was no opposition.

• Contact: Carol Benioff, [email protected] 1456 Fourth St. (MU-LI): • Description: Change use of approximately 33 percent of existing 7,700 square

foot warehouse to a testing laboratory. • Issues: Applicant wanted to establish larger laboratory (>33 percent of

warehouse), but was not able/willing to pay mitigation fees for loss of warehouse space; fees are currently about $75 per square foot, which would probably make the project infeasible.

• Contact: Eric Taylor, 649-9016, [email protected]

2. Other Protected Uses (Artists, Child Care, etc.)

Summary of Existing Regulations: In the MU-LI and MU-R Districts, art/craft studios, art galleries, fine arts rehearsal and performance spaces (e.g. dance, music and theater), child care centers, and day care homes in place as of July 6, 1989 are classified as “protected uses.”

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Art/craft studios are listed in category 1, and the other uses are in category 2. No change of use from one category to another, or from a protected use to a non-protected use, is permitted unless new space is provided in the West Berkeley Plan area for the existing protected use category. Issues: The requirement to provide replacement space for the existing protected use category when changing to another protected use category, or to a non-protected use, effectively ensures that there be no net loss in the amount of space in either protected use category. However, other than protecting art/craft studios, there is no apparent basis for the arrangement of the two categories, since uses in category 2 can be changed to other uses in category 2 that have no apparent common theme (e.g., dance studio to child care). If the City’s intent was to provide a greater level of protection for art/craft studios, then it seems that replacement of category 2 uses should either not be required, or there should be some standard for determining when it is required (e.g., if the total number of a certain type of protected use would drop below a certain threshold). If art/craft studios are not in need of greater protection than the category 2 uses, then the City should consider allowing changes between categories without replacement space. For example, changing from an art/craft studio (category 1) to a dance studio (category 2) seems appropriate in that art-oriented space would be maintained, but this change is effectively prohibited because new art/craft space must be created to allow the change of use.

3. Food Service

Summary of Existing Regulations: • MU-LI District: Food service uses may not be established or expanded unless

they are “primarily designed to serve workers in West Berkeley and not to attract a citywide or regional clientele”. In addition, the proposed food service must either (1) be more than 750 feet from the nearest food service use or (2) consist substantially of “goods made on site” (23E.80.090.F)2.

• MU-R District: Food service uses may not be established or expanded unless

they (1) are “primarily designed to serve workers in West Berkeley and not to

2 Because virtually all restaurants offer a “good” (i.e., meal) that is “made on site” (i.e., prepared or cooked), virtually all restaurants could make this finding, and it is not entirely clear what the purpose of the finding is. One possible interpretation is that meals must include products which are processed from raw materials to edible food on the site, such as baking bread or manufacturing chocolate, and not merely processed elsewhere, brought to the site and cooked and/or mixed with other ingredients to form a meal. However, the ZAB has not used this interpretation on several recently approved restaurants (e.g. Café Clem, 2703 Seventh St., Café M, 1799-F Fourth St.), but instead considered the meals to be goods made on site. Whichever interpretation is deemed more appropriate, staff recommends a text amendment to clarify the intent of this language.

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attract a citywide or regional clientele…and are not within 750 feet of another food service use” or (2) consist substantially of “goods made on site” (23E.84.090.F).

Issues: • Few, if any, existing food service uses in West Berkeley are “primarily designed

to serve workers in West Berkeley” and rely on a larger client base. Service of goods made on site is also rare. The regulations therefore have the effect of prohibiting the expansion of several existing successful West Berkeley restaurants (see examples below).

• There are no clear standards or definition to assist staff and the ZAB in

determining whether a food service use has been designed to serve workers in West Berkeley. Even if this could be determined, it seems that changes in the client base after initial approval of the use would be difficult to prevent through City enforcement action.

Examples:

1328 Sixth Street (MU-LI): • Description: Mexican restaurant Picante has expressed interest in expanding

into two adjacent buildings that it owns. • Issues: Because restaurant does not cater primarily to workers in West

Berkeley, it cannot meet the above findings and expansion would not be permitted. In addition, part of the space where restaurant would like to expand is protected industrial space (formerly wholesale), so this may also be an obstacle to the expansion.

• Contact: Jim Maser, 710-1666, [email protected] 900 Grayson Street (MU-R): • Description: Existing restaurant has requested a Use Permit to expand its

hours of operation to allow dinner (currently the restaurant is only open for breakfast and lunch). The expanded hours are subject to the findings of Section 23E.84.090.F.

• Issues: Because the restaurant does not cater primarily to workers in West

Berkeley, and is located within 750 feet of another food service use, the expansion cannot be approved unless the City finds that the use “consists substantially of goods made on site.” See footnote 2 for further information. Neighborhood appears to support expansion even though it would attract clients who do not work in the area.

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mailto:[email protected]


• Contact: Chris Saulnier, 415-867-0155, [email protected]

4. Parcels with Split Zoning

Summary of Existing Regulations: There are several buildings in West Berkeley which are located within two or more zoning districts. Typically the arrangement is to have a portion of the building zoned C-W, allowing retail, food service, and other more profitable uses, and the remainder zoned MU-LI, limited primarily to manufacturing, warehousing, and other similar industrial uses, and prohibiting most retail and food service uses. Issues: The goals of this approach are to discourage the conversion of industrial land and buildings to more profitable commercial uses, and to prevent the encroachment of incompatible commercial activities into industrial areas. While these goals may be worthwhile, from a practical standpoint the split zoning approach raise several problems. First, allowing high-demand commercial zoning in the same tenant space as lower-demand industrial zoning “tempts” tenants to misrepresent their plans for the use of the space in order to obtain permits, and subsequently violate the conditions of those permits. Prospective tenants will often agree to conduct only “storage” or “distribution” activities in the MU-LI portion of a split tenant space in order to obtain a permit, but over time will begin to use this portion for retail space. Because such changes are not visible from the exterior and do not usually generate citizen complaints, enforcement of this split zoning would require a dedicated monitoring program with periodic, unscheduled inspections and severe penalties for non-compliance (in order to outweigh the substantial economic advantages of violating the zoning boundary). A second problem is that it is much more difficult for staff to keep track of which portions of the building have been approved for commercial uses, and which are industrial activities that are ancillary to those commercial uses. Thus new inquiries or permit applications for split zoning buildings tend to generate considerable staff research in order to give prospective tenants an accurate response, without adequate fees to cover staff’s time. Examples:

795 Potter/834 Anthony (C-W/MU-LI): • Description: Large multi-tenant building with north half located in MU-LI

District and south half in C-W. Most tenant spaces have north and south entraces and are located in both districts. A gymnastics school was proposed

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for 795 Potter. Although school would have been allowed in C-W with a Use Permit, it was prohibited in the MU-LI. Application was withdrawn.

• Issues: Applicant was not interested in reducing size of school to fit within C-

W portion of space. Staff had indicated that a wall would be required to separate the space into C-W and MU-LI portions in order to ensure enforcement of the zoning boundary.

• Contact: Larry Haydon, Wood Properties, 526-6008,

[email protected] 1717 and 1799 Fourth Street (C-W/MU-LI): • Description: These two multi-tenant buildings straddle the C-W and MU-LI

districts. • Contact: Drew Brothers, 527-7101 920 Heinz (C-W/MU-LI): • Description: The West Berkeley Bowl, a two-story grocery store and

warehouse with a total area of about 91,000 square feet, was approved with most of the building located in the C-W District and the remainder in the MU-LI District. The C-W portion was re-zoned from MU-LI, with a new zoning boundary based on a store design that had a two-story retail portion entirely in the C-W and a two-story warehouse entirely in the MU-LI. After approval of the project, the applicants learned that having retail on the second floor would not be feasible, and so they needed to expand the retail on the first floor into the MU-LI and move some of the warehouse space to the second floor in the C-W.

• Issues: The retail expansion fit within the MU-LI limits on food stores, but the

warehouse in the C-W was problematic because the C-W District prohibits warehousing unless it is ancillary to on-site retail. The only solution to this dilemma was to require that the warehouse portion in the C-W District be used only for goods intended to be sold on the site, not for the other Berkeley Bowl location. However, allowing warehouse in the C-W portion without such a restriction would have been more consistent with the goals of the West Berkeley Plan to promote industrial activities. An amendment to allow this kind of flexibility should be considered.

• Contact: Jarrell Conner, Kava Massih Architects, 644-1920,

[email protected]

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5. Waiving parking, height (stories) requirements Summary of Existing Regulations: • Parking: In 2005, the City Council added Sections 23E.28.130 and 140 to allow

commercial parking waivers when certain findings could be met. However, because these new provisions were not applied to the M districts, if a new use is unable to meet the parking requirement applicable to that use, a parking Variance is required.

• Height: The M Districts specify both a maximum height in feet, and a maximum

number of stories. Even if a project meets the maximum height in feet, and the maximum floor area ratio, it is not permitted to exceed the maximum number of stories except with a Variance.

Issues: • Parking: The Council did not allow parking waivers in the M districts because it

feared this would encourage further commercial gentrification and loss of industrial and other protected uses. The parking restrictions were seen as a necessary protection against the loss of protected uses.

• Height: Because the height of each story can vary, it is the maximum height in

feet, and not the number of stories, that controls the actual height and bulk of the building. Although limiting the number of stories limits the intensity of use on the site (since a story represents usable floor space), floor area ratio limits are a more precise method for achieving this. The M districts did not have a floor area limit until 1999. Now that such a limit has been added, limiting the number of stories no longer appears to serve a useful purpose.

Examples:

Parking – 2332 Fifth Street (MU-R): • Description: Convert 5,455 s.f. of light industrial space to office; sought AUP

to waive 11 parking spaces (although code requires a Variance). • Issue: Application was submitted based on the incorrect assumption that

parking requirement could be waived with an AUP rather than a Variance; application was withdrawn due to unlikelihood of obtaining Variance.

• Contact: Michael Goldin, [email protected]

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Height – 1120 Second Street (M): • Description: Proposal by Public Storage to demolish three existing one-story

mini-storage buildings totaling 28,070 square feet and replace them with a new four story 95,771 square foot mini-storage building

• Issues: Project required Variance due to four-story height (maximum of three

stories allowed) • Contact: Blythe Wilson, Architect, 707-765-1660, [email protected]

6. Setback from M and MM Districts to Residential Uses

Summary of Existing Regulations: In the MU-R District, a setback of 150 feet is required from any property zoned M or MM to any new residential use (Section 23E.84.060.F). The requirement applies regardless of whether the actual manufacturing use is set back more than 150 feet, and the code does not allow this requirement to be modified except with a Variance. Issues: While it is important to prevent residential uses from unduly encroaching upon manufacturing districts, the requirement seems to be overly rigid since it does not acknowledge that in some cases an M or MM zoned property may be developed with a long-term use that will not be incompatible with residential uses (see example below) Allowing the ZAB to determine on a case-by-case basis whether the setback should be required, with specific findings that can be made to reduce the setback, seems like an appropriate level of flexibility that protects industrial districts while promoting housing development.

Examples:

2437 Sixth Street (MU-R): • Description: Demolish existing laboratory/office buildings and construct 4

dwelling units; included Variance to allow setback of 143 feet from adjacent MM District (150 feet required).

• Issue: The Bayer campus at 800 Dwight Way is zoned MM and is located

within 150 feet of the project. However, the development agreement for the Bayer campus requires a setback that would prevent any building from being constructed within 150 feet of the project. The ZAB therefore granted the requested Variance, and requested that the Planning Commission consider an amendment to allow greater flexibility in this requirement.

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• Contact: Hoss Azimi, 812-5758, [email protected] 7. Definitions

Summary of Existing Regulations: Given the difficulty of converting M/W/W space to other uses, the definitions of M/W/W become very important since the permit process is considerably easier if it can be determined that a proposed use is an M/W/W use. The code does not define warehouse. Section 23F.04.010 defines “Wholesale Use “ as follows:

“A Business Activity use of a lot and/or building of any good, article, material or substance for the purpose of resale. Any use defined as conducting Wholesale Trade under BMC Section 9.04.150 shall be a Wholesale Use for this chapter.” Section 9.04.150 further defines a wholesale use as “a sale of goods, wares or merchandise for the purpose of resale in the regular course of business.”

Section 23F.04.010 defines “manufacturing use” as follows:

“Primarily engaged in the mechanical or the chemical transformation of materials or substances into new products. Manufacturing activities include, but are not limited to, assembly, baking, brewing, fabrication, milling, processing, refining, smelting and treatment and any other uses determined by the Zoning Officer.” The definition also sites the Standard Industrial Classification (SIC) system (now the North American Industrial Classification System or NAICS) as the basis for determining if a use qualifies as manufacturing.

Issues: Recently there have been several proposed uses that did not meet the above definitions, but which seemed generally consistent with the intent of the West Berkeley Plan in that they did not attract many customers to the site, involved relatively low-skill, high-paying jobs, and required large, open spaces with good truck access for shipping. Many of these uses have been similar to manufacturing as defined above, except that they refurbished or repaired existing equipment rather than manufacturing new equipment.

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Examples:

1331 Eighth Street (MU-LI): • Description: This site is developed with a large (about 15,000 sq. ft.) building

that was last used for manufacturing. The owner obtained a permit to convert the space into smaller tenant spaces, but given the established manufacturing use all new tenants have to be engaged in M/W/W uses, or they may seek an AUP to convert less than 25% of the entire building to other uses. One of the spaces was purchased by a video production company that represented itself to staff as a warehousing and distribution use. However, upon review of the proposed floor plans it appeared that some of the space would be used for professional video editing, mastering, and similar activities. The use was therefore a hybrid of professional, creative, “white-collar” activities and more traditional “blue-collar” activities such as product storage and distribution. Staff informed the owner that only the warehousing and distribution activities could be allowed unless an AUP were obtained for the other components of the business.

• Issues: This case illustrates some of the tensions between traditional

industrial zoning definitions and modern business practices. Particularly for small start-up businesses, there is high demand for spaces which allow storage, distribution and light industrial activities, but also creative, office-type activities. It is often difficult to precisely delineate the proportions of these two types of activity in a business, and these proportions may change over time as the business grows. Staff recommends that the Planning Commission investigate this issue and determine if new definitions based more on performance standards rather than lists of allowable uses should be developed.

• Contact: Sean Frame, 528-3302, [email protected] 1050 Parker Street (MU-LI): • Description/Issues: This project involved a vacant building where the last

legal use was storage for Fantasy Records’ media and filmmaking establishment. Staff concluded, and the Council agreed, that storage uses that are ancillary to the media operation are not protected as warehouse space. However, staff believes that having this issue clearly addressed in the Zoning Ordinance would be beneficial.

1198 Tenth Street (MU-LI): • Description: This project involves a building last used as light manufacturing

(electronics assembly), and therefore subject to the MU-LI industrial use

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protections (Section 23E.80.045). A hardwood flooring contractor would like to use the building for a variety of activities, mainly storage of flooring and tools for off-site contracting work, as well as wholesale distribution of flooring to other contractors.

• Issues: Although the use appears to be generally consistent with the

purposes of the district, it does not appear to meet any of the M/W/W definitions, and therefore a Use Permit with replacement of the existing space or mitigation fees would be required. A definition of “warehouse” would be helpful in reviewing proposals such as this.

• Contact: Avi Atid, 684-6855

Conclusion and Next Steps Consider the issues discussed herein and determine whether any action (e.g., Zoning amendments) should be taken to address these issues. Such action would presumably be incorporated into other West Berkeley flexibility work.

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