Top of Marin Stewardship
with a concern for open space...
Top of Marin Stewardship
with a concern for open space...
How to find information from the city of Berkeley
What follows is an ultra-superficial overview of some state laws that apply to the PLTS sale and potential development
Opening Meeting Laws
The Brown Act, beginning at California Government Code section 54950, requires meetings of legislative bodies of local public agencies to be open and public. In fact, the California Constitution states “[t]he people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.” (Cal. Const. art I, section 3(b)(2)).
As it relates to our issue, any board, commission, or council discussion of the PLTS site must be done in an open meeting. If not, the city officials are breaking the law.
There are limited exceptions to the open meeting law. In certain situations, the body may meet in a closed session, at which the public is not allowed. For our purposes the exception that could apply is if we threaten to sue. Many times people get excited and make this assertion when they sense the city is in opposition to their interests and that statement can be used to get into closed session. We do not want this to happen so we must resist saying anything like this. Merely retaining counsel is not enough to use this exception. The statement must serious enough for the city attorney to actually believe there is a threat of litigation on the basis of “existing facts and circumstances.”
Public Records Act
The Public Records Act (“PRA”), beginning at California Government Code section 6450, was enacted to provide access to information that enables the public to monitor the functioning of their government. The PRA favors disclosure, and a refusal to disclose information must be justified by the enumerated exemptions within the PRA. The courts have consistently held that any exemption must be narrowly construed.
Requests can be made orally or in writing, in person or by phone. But in my experience, even in Berkeley, staff does not know this and they usually ask for it in writing. That is not a big deal and I usually just go along with it and not argue. We need not, however, state the purpose for our request.
This is a useful tool for us. For instance, anyone can ask the city if there are any permit applications for 2750-2770 Marin. If so, they must disclose this to us and they generally have a 10-day response period.
Overview of the Development Process
What follows is a very elementary overview of the planning process California cities must follow. It is provided here for general informational purposes so that we all know how local government functions. It is not in any way intended as legal advice, and citations to court decisions and state law have been eliminated to make the text more readable. Later submittals will provide summary review of Berkeley’s General Plan and Zoning Laws.
The General Plan
A city’s General Plan (“GP”), available online at the City of Berkeley’s website, is in effect the constitution for development within the city. It embodies fundamental land use and planning decisions and governs the direction of future land use. Any land use action must be consistent with the GP, such as a zoning ordinance, tentative map, developer agreement, or any local decision affecting land use and development; if it is not consistent, it is invalid.
A GP consists of seven mandated elements: land use, circulation, housing, conservation, open space, noise, and safety, and any additional elements a city chooses to adopt. Many, if not all, overlap in some fashion; it is an integrated document. Without it, land use decisions would be made in a vacuum.
The land use element identifies the proposed general distribution and intensity of uses of the land for housing, business, industry, open space, natural resources, public facilities, waste disposal sites, and other categories of public and private uses. This is the central element and serves as the framework for the entire GP and guides development policies. It directly relates to all the other elements and is the most frequently used resource for development.
The circulation element generally identifies existing and proposed major thoroughfares and transportation routes. This element contains maps and standards for operation of traffic (called “LOS”, meaning level of service which relates to congestion and/or fluidity of traffic flow).
The housing element identifies and analyzes existing and projected housing needs. Among other things, it contains quantified objectives and programs for the preservation, improvement, and development of housing. The housing element must comply with elaborate state law requirements and this element has been described as one of vital statewide importance because every family deserves decent housing and a suitable living environment. Cities are required to perform an inventory of land suitable for residential development. This element must be reviewed at least every 5 years in order to evaluate the progress made toward its goals. This revision schedule is unique to the GP as the other elements need be reviewed only when warranted by changed circumstances.
The conservation element addresses identification, conservation, development, and use of natural resources including water, forests, soils, waterways, wildlife, and mineral deposits. Among others, this element considers flood control, water and air pollution, erosion, and endangered species. The primary focus is on natural resources.
The open space element is the plan for the preservation and conservation of open space land. “Open space” includes land in its natural state and that used for outdoor recreation. State law mandates a detailed planning effort for open space comparable to the superior requirements for the housing element. An open space zoning ordinance is required which must identify, among other things, large-lot zones, and special overlay requirements for hazard areas. This element also contains an inventory of all open space property, whether privately or publicly owned. The primary purpose is to assure that cities recognize that open space land is limited and a valuable resource that must be conserved wherever possible. This serves as protection against building permits, subdivision maps, and open space zoning ordinances that are inconsistent with the open space plan.
The noise element identifies and appraises noise problems in the community. Projected noise use levels provide guidance for establishing a pattern of land uses in the land use element intended to reduce the exposure of residents to excessive noise. Possible solutions to noise problems may involve sound barriers, restricting operating hours for stationary noise generators, protective building design, and location of new roadways.
The safety element establishes policies and programs to protect the community from risks associated with seismic, geologic, flood, and wildfire hazards. Seismic and other geologic hazards, such as landslides, must me mapped, and issues such as emergency evacuation routes and water supply for fire-fighting must be addressed. The safety element is the major tool for identifying hazards that need be considered in preparing the land use element (among others) and is considered before making land use decisions.
Summing up, a GP must not only be internally consistent among and within each element, it must be vertically consistent with other land use and development actions. One caveat to the vertical consistency requirements: Charter cities, with certain exceptions, are exempt from the requirement that zoning be consistent with the GP, unless the charter itself, or a local ordinance, adopts a consistency rule. It appears that Berkeley, a charter city, has adopted a consistency rule in Chapter 23A.04.030(A)(1) where it states that one purpose of the Zoning Ordinance is to implement the policies of the GP.
Overview of Zoning Law
What follows is a general summary of the more common aspects of Zoning Law in California. It is abbreviated and provided for informational purposes and is not intended as legal advice.
Zoning in General
Zoning is the division of a city into districts. Zoning regulations address (1) structural and architectural design of buildings and (2) prescribe the use to which buildings in designated districts may be put. Zoning regulations are related to the public welfare such as maintaining the character of residential neighborhoods.
A variance is a permit issued to a landowner to build a structure not otherwise permitted under the current zoning regulations. Its issuance is based on facts that show the owner would suffer unique hardship because the particular parcel is different from others due its size, shape, topography, location or surroundings. It is typically used where the owner cannot use their property as others in the zoning district can use theirs and thus creates a confiscatory result, i.e. a taking of private property without compensation. Variances may not be granted to authorize a use that is not otherwise authorized by the zoning regulations. Instead, they are granted to allow deviations from regulations on physical standards such as lot sizes, floor area ratios for buildings, and off-street parking requirements.
Considerations for issuance include the adverse effect to the public or other residents within the vicinity; consistency with the general plan and zoning regulations; the hardship to the applicant; and it must not grant a special privilege inconsistent with the limitations on other nearby properties.
Conditional Use Permit
A conditional use permit (“CUP”) provides flexibility within the strict terms of a zone. There are uses allowed by the CUP process that otherwise are not permitted as a matter of right within the zone. Because the decision to allow a CUP affects the quality of life of everyone in the proposed use, there are procedural hoops attached to its issuance.
When there is a change in zoning laws, some uses that were once allowed become nonconforming to the new zoning laws – these are termed nonconforming uses. Unless the nonconforming use constitutes a nuisance, they are typically allowed to continue, usually with an amortization period, but it is the objective of zoning to eliminate nonconforming uses, so they are generally not allowed to increase or intensify the use.
Conditional zoning describes a zoning change that permits use of a particular property subject to conditions not generally applicable to land similarly zoned. This is not a variance, but a rezone, where the landowner applies to have their property rezoned for a different use. One example is where a zone is single-family residential and the landowner applies to have the density increased to multi-family residential.
Procedures for Land Development
City of Berkeley’s website culled from the Municipal Code (BMC). Section 23D.16.030 states the permitted uses for an R1 zone, which covers the PLTS site. Permitted uses require a use permit under Section 23B.32. Further provisions apply because it is on a hillside (R1H) and they are found in Sections 23E.96 and 23E.96.070. But if the buyer wants to develop luxury condos or any other such non-permitted use, they would need a zoning change. This request and application must go before the Zoning Adjustment Board (ZAB), as required in Section 23B.44.030. The applicable standards for issuance are found in Section 23B.44.
California Environmental Quality Act
The following is an abbreviated, simple summary of the California Environmental Quality Act (“CEQA”). It is not intended as legal advice and citations to state statutes and other laws have been omitted. If greater detail is required a planner or a land use attorney should be consulted.
CEQA applies to public agency decisions to approve projects that could have adverse impacts on the environment. It is a process that identifies potential environmental effects of proposed activities; ways that environmental damage can be avoided or significantly reduced; ways to prevent significant, avoidable environmental damages by requiring changes in projects, either by adoption of alternatives or imposition of mitigation measures; and, requires disclosure to the public why a project was approved if that project would have significant environmental impacts.
The first step in a CEQA analysis is determining whether a proposal is subject to CEQA. If it is determined that it is not, the agency files a notice of exemption. If CEQA does apply, either an environmental impact report (“EIR”) or a negative declaration is prepared (the latter is described below under Initial Study). Some projects are categorically exempt from CEQA compliance because they have been previously determined by a state agency that there is no significant environmental impact. These categorical exemptions, however, are not absolute, and there are exceptions to the exemptions.
CEQA applies to discretionary projects. A project is discretionary if the agency exercises its judgment in deciding to approve or disapprove the proposal, as opposed to situations where the determination merely involves compliance with law. A project for the purposes of CEQA is that which causes either a direct physical change in the environment, or a reasonably foreseeable indirect change to the environment, and involves, among others, issuance of a permit, license, certificate or other entitlement for use by public agencies. CEQA compliance must occur before project approval.
Physical changes to the environment include consideration of land, air, water, minerals, flora, fauna, noise, and objects of historical or aesthetic significance, both within and beyond the project area. In light of this, even activities that would normally trigger limited environmental review, such as development proposals consistent with planning and zoning law, may implicate a more exacting environmental review if any of the above-mentioned physical changes to the environment are present.
Initial Study – Determining if an EIR is Necessary
When the project is not exempt, the agency prepares an initial study, which is a preliminary analysis to determine if an EIR is required, or if a negative declaration will be adequate. A negative declaration is a written statement that an EIR is not necessary because it is determined that there will be no significant impact on the environment, or that any impact can be mitigated. Mere conclusions, however, are not enough. A negative declaration should include detailed explanations of impact areas that must be studied, and the evidence used to conclude that and EIR is not warranted. An EIR is necessary if it can be fairly argued on the basis of substantial evidence that the project may have a significant environmental impact. Substantial evidence is enough relevant information and reasonable inference from the facts. Argument, speculation, unsubstantiated opinion, social or economic impacts unrelated to physical changes to the environment do not constitute substantial evidence.
Preparation of an EIR
An EIR begins by determining scope. A notice of preparation of an EIR goes out describing the project and soliciting comments on its scope. It goes out to various agencies and usually the public. Written responses are usually due 30 after receipt of notice. Agencies may also hold scope meetings with agencies and the public.
After the scope is determined, a draft EIR is prepared, usually by the applicant’s consultant, but the agency must independently review, evaluate, and exercise judgment over the document. The draft EIR is circulated to the public and other agencies for review and comment (response time-limits range from 30 – 60 days). After receiving comments, the agency must prepare responses to significant issues raised, sometimes resulting in a revised EIR.
A final EIR contains the draft EIR, the comments received for that document, and the responses of the agency.
Contents of an EIR
A complete EIR contains a table of contents; project description; summary of the proposed actions and their consequences; environmental setting; evaluation of environmental impacts; water supply assessment; significant environmental effects of the proposed project; effects found not to be significant; mitigation measures; cumulative impacts; alternatives to the proposed action; inconsistencies with applicable plans; a discussion of growth-inducing impacts of the proposed action; and, organizations and persons consulted.
After an EIR is complete an agency decides whether to approve a project. Approval should not be granted if there are feasible alternatives or mitigation measures that would substantially lessen the significant environmental impacts of the project. CEQA itself does not provide independent authority to require mitigation measures as project conditions. The agency must instead rely on existing laws or their discretionary authority to require mitigation.
Statement of Overriding Consideration
CEQA does not prevent agencies from approving projects that damage the environment. If the agency determines there are social, economic or other considerations to grant approval, the decision-making body must adopt a Statement of Overriding Considerations. This document specifies the overriding considerations that led to the approval of the project and why these considerations are superior in importance to the damage to the environment.
Mitigation Monitoring and Reporting Programs
When a project is approved after CEQA analysis subject to mitigation measures in an EIR, or in a mitigated negative declaration, the agency must impose a monitoring and reporting program to ensure implementation.