March
28, 2007
Re:
Use Permit #06-10000098 for
To
the City Council:
On
behalf of many neighbors and merchants in agreement, we are appealing the March
8, 2007 decision of the Zoning Adjustments Board (ZAB) to approve Use Permit #06-10000098
for the project at
Our
reasons for appeal include, but are not limited to, the following:
The
approval of the Use Permit by ZAB resulted in multiple violations of the
Berkeley Zoning Ordinance. In particular Section 23E.44.020, the Purposes of
the Elmwood Commercial District, prohibits “development which exceeds the
amount and intensity of use that is compatible with adjacent residential
neighborhoods.” This proposed large-scale restaurant and bar/lounge is
incompatible with the adjacent neighborhood and would overwhelm it with
traffic, parking problems, noise, and pollution, among other impacts.
Furthermore, Section 23E.44.090 specifies that a proposal must not "Generate traffic and parking demand beyond the capacity of the
commercial District or significantly increase impacts on adjacent residential
neighborhoods." This project would do both.
Furthermore, it would violate Elmwood business quotas as specified in Section
23E.44.040, and the 5000 sq. ft. restaurant would result in “the domination of
one type of business,” food service, which is prohibited Section 23E.44.090.
The proposed restaurant would also violate the
Elmwood business quota for more than one class without having the required
finding of “neighborhood and merchant support”—a finding that would be
impossible to obtain, given the substantial opposition in the Elmwood.
During
discussion of this issue at the March 8th ZAB meeting, Commission
members mischaracterized and/or misrepresented neighborhood and merchant
support of the proposed project. Many letters of opposition and a petition
against the restaurant with 368 signatures, mostly obtained in the Elmwood, went
unmentioned and were ignored at the March 8th ZAB meeting, and only
the opinions registered as a privately owned and managed website, “Kitchen
Democracy” (KD) were taken into account.
KD is not an accurate neighborhood survey and does not take the place of
one. In fact, Councilmember Wozniak left out crucial information in his
presentation on KD. In particular, he did not disclose the plans for the
separate bar and lounge and that up to 50% of revenue could come from alcohol
service. He did not let voters know that there could be as many as 200-250
customers in the restaurant at any one time. Councilmember Wozniak also wrote,
"I strongly support this project for various reasons." This statement
was removed from the KD site on February 9th, after most of the
votes had already been cast. The KD opinions were submitted to the ZAB without
any acknowledgement that they were solicited as responses to Councilmember
Wozniak’s strong support of the project, rather than spontaneously expressed
views. Finally, residents notified the Planning Department with their
objections and were not told to register them at a private site for
consideration.
The
granting of Use Permits without having more specific information about the
businesses gives special rights to this applicant not given to other Elmwood
merchants. The lack of more specific information does not allow the City to
accurately access the effects on other businesses and the neighborhood, as
required by the Zoning Ordinance. Among other things, the maximum occupancy of
the proposed restaurant should have been specified before a Use Permit was ever
granted, and the public should have been informed of this number. Estimates of
occupancy based on square footage or the number of tables are insufficient to
assess the real impact on the neighborhood. Estimates of 200-250 seats were
given in oral presentation to the merchants, but no City document ever
disclosed this number to the public. A restaurant of this size is way too large
for the Elmwood.
The Planning Department presented a flawed analysis and inaccurate conclusions about parking demand in the Elmwood, and therefore did not recognize the negative impact that this project will have on the Elmwood. In the Notice of Decision, page 2, Staff wrote that the peak time for parking demand for the District’s existing retail establishments is “between 3-4pm Monday to Saturday and 1-2pm on Sunday.” This is false; according to merchants, peak demand is after 5:00 PM on weeknights and all day on weekends. The new restaurant would generate more traffic during that peak demand period. The inadequate and unenforceable remedies offered by Staff and ZAB will not solve the new and enormous parking demand on the Elmwood, which will overwhelm residential streets just as neighbors arrive home from work and as customers come to shop, eat, and see movies at the Elmwood Theatre.
The
intersection at Ashby and Benvenue was the subject of a three-year traffic
mitigation task force, which recorded so many accidents at this location, that
it was classified as one of the city’s worst hot spots. By ignoring this, ZAB could not and did not
adequately address the effect of a large 5000 sq. ft. restaurant and bar/lounge
on traffic and pedestrian safety near the congested Ashby and College
intersection and at the traffic hotspot at Ashby and Benvenue.
A
meaningful discussion of the impact on the Elmwood must take into account that
traffic backs up for blocks on both Ashby and College during rush hour. A large
restaurant will bring in still more traffic and block the passage of buses and
emergency vehicles from the Fire Department on Russell near College, and to and
from Alta Bates Hospital on Ashby.
The
pollution resulting from added traffic for such a large establishment was
completely ignored. Despite some appreciated provisions to deal with the
serious health consequences of restaurant fumes, a more systematic examination
is needed. Even the newest and most effective convective filtration systems
with charcoal filters capture no more than 76% of the carcinogens and
particulate matter that could damage the heart and lungs, as well as the carbon
dioxide emissions, which contribute to greenhouse gases. Due to the sheer size
of this restaurant, there will be considerable toxic emissions affecting both
the Elmwood and the City, as a whole. This is a violation of both the letter
and spirit of
The
Elmwood Theatre, which was saved by the generous contributions of Elmwood
merchants, will not be able to survive in an atmosphere in which customers will
have to struggle to find parking by showtimes. Movie
theatres have specialized parking needs, including the need for patrons to be
able to find parking in a timely way.
The
effect of locating a bar and lounge, open every day until late at night, in a
quiet residential neighborhood was not addressed adequately. The bar and lounge are out of character with
the neighborhood, with its many families with children, and could result in
more noise, crimes against people and property, and drunk driving in the Elmwood.
Furthermore, the Zoning Ordinance Section 23E.44.060 specifically requires that
alcohol service be “incidental” to food service in the Elmwood. A separate bar
and lounge would violate the letter and spirit of the ordinance. While wine and
beer service would have to be ordered from the food menu, hard liquor would not
fall under this restriction. This new restaurant, with separate hard liquor
service, would be allowed to get up to 50% of its income from alcohol. By
contrast, Shen Hua’s bar is
actually a part of the restaurant, and Shen Hua only gets 15% of its income from liquor.
The
question of where smokers will smoke should have been specifically addressed
before a Use Permit is granted. If they are not allowed to smoke in front of
the sidewalk café, which is reasonable for diners, then the smokers will
station themselves in front of adjacent residences and businesses, which is not reasonable for the people who live, work, or shop in
them. That is another reason why a development of this scale is inappropriate
for this residential
and commercial district.
The
hours of operation for the restaurant are substantially longer and later than
those of the only other restaurant in the neighborhood with a bar. Shen Hua is the only comparable
establishment, and it closes earlier, both on weekdays and weekends. Shen Hua closes at 9:30 PM on weeknights (including Sunday) and
10:00 PM on Friday and Saturday. By
contrast, the proposed restaurant would stay open until 10:00 PM on weeknights
and midnight on weekends. Staff is incorrect in using Café Roma for comparison
in terms of hours and impact, since it serves no hard liquor, and there is no
separate bar and lounge. Café Roma is not a full service restaurant; its main
menu consists of coffee drinks, snacks, and light meals. It is not a
destination restaurant.
The
many negative impacts of this project will lower property values in the
Elmwood.
The
public notice was inadequate, given the number of people who will be impacted
by this project. Neighbors who should
have been notified of ZAB hearings reported that they were not notified. Since
neighborhood and merchant support is required by law in order for the granting
of a Use Permit for to exceed a quota, a public survey of should have been
conducted along with notification.
The
conditions for the use permit implementation are vague, inadequate, and
unenforceable, and there is no penalty for their violation, leaving the Elmwood
residents and merchants with no real protection or recourse for the loss of
quality of life.
The Planning Department was incorrect in declaring the project Categorically Exempt under CEQA as an existing structure. Had it done an honest Initial Study, as required by the clear expansion of use, many of the concerns above could have been addressed. The approval of the Use Permit would result in significant and cumulative negative impacts on the Elmwood. An Environmental Impact Report by professionals is necessary for a project of this magnitude that affects so many people in so many ways.
We
will submit additional documents supporting our reasons to deny the Use Permit.
For this moment, it is important to recognize how inappropriate it is to grant
a Use Permit for a restaurant and bar/lounge of this size, adjacent to a
residential neighborhood, and as part of a small-scale commercial district.
We
also request that the City Council Agenda Committee recognize the importance of
an open public hearing, and in so doing, schedule the public hearing on this
issue so that it has a reasonable possibility of being heard before 9:30 PM.
Many people have to go to work or school the next day; some people have to be
home at a reasonable hour to relieve babysitters.
We
look forward to an open and honest discussion of the implications of this
proposed project on the Elmwood. The
decision procedure should take into account the needs and opinions of the
Elmwood neighbors and merchants.
A
response to this document can be sent to The Elmwood Neighborhood Association
(ENA) at 2929 Benvenue,