Response to the new
Planning Staff Report and Findings and Conditions for
prepared
for the March 8, 2007 ZAB meeting
by Elmwood neighbors
March
6, 2007
We are writing in
response to new issues and claims made in the most recent Planning Staff Report
and Findings and Conditions for
a)
Staff does not mention that the peak
period for the parking demands of the large restaurant would coincide with the
time of day that many residents return from work. Thus, residents will have to
compete for parking with arriving restaurant patrons and may not even be able
to park near their own homes. It should be noted that with expanded
Daylight Savings Time, there will be children playing outside later in the day,
and they will be exposed to greater risks due to the increased traffic.
b)
The Staff Report uses a model for parking
availability that does not apply to the Elmwood. As a result, it comes to
incorrect conclusions about future parking demand in the Elmwood commercial
neighborhood. In fact, the model on pages 8-9 does not even accurately
represent current demand, which we demonstrate, below, with a merchant survey.
Staff calculations are
based on the Institute of Transportation Engineers (ITE) Parking Generation
Manual, 3rd edition, 2004. In a
technical paper about policies and practices in Bay Area cities, Bill Hurrell
of Wilbur Smith Associates refers to page 6 of the ITE Manual, offering
this cautionary note on applying its findings:
“It is ITE’s intention that this resource will be
updated over time and be used as “an informational report – NOT a manual, recommended practice, or
standard.” (italics in original)
Mr.
Hurrell continues,
“Also note that ITE describes the number of
case study sites, the range of parking demands surveyed, and the precision of
the results of the data (referred to as the coefficient of variation and the
standard deviation). A more accurate parking demand would have a high number of
case study sites, a lower range of demands, a smaller coefficient of variation
(closer to 0 percent) and a lower standard deviation (less dispersion of
data).”
www.mtc.ca.gov/planning/smart_growth/parking_study/January07/Existing_Parking_Policies_Technical_Paper.pdf
A survey of business
peak periods and parking concerns in the Elmwood, conducted by psychologist and
First, weekend parking
demand is different from weekday demand. The weekday peak period for business
in the retail shops is not mid-afternoon, as Staff alleges. On weekdays, business peaks for retail stores
from 5:00 PM to closing – usually after 6:00 PM – because this is when many
people get off from work and visit the Elmwood. This time period coincides with
the already crowded evening commute on College and Ashby. As a rule, people eat
dinner at an earlier hour on weekdays, so customers arriving for a 5:00 PM
drink and/or a 6:00 PM dinner at the proposed restaurant would exacerbate the
congestion and gridlock as they compete with retail store shoppers for
parking. Note that current restaurant
owners express frustration that their customers get discouraged when searching
for parking at the dinner hour.
Moreover, on weekends,
the parking demands of restaurants, shops, and the Elmwood Theatre, which has
both matinee and evening shows, may significantly overlap. High parking demand
is continuous. It is necessary that there be available parking before showtimes
at the Elmwood Theatre, so that moviegoers don’t have to scramble frantically
for parking in order to get to the theater before their film begins.
Theater-goers already
complain about scarcity of parking,
and if parking availability diminishes due to the proposed restaurant, the
Elmwood Theatre could lose business.
In brief, parking is
already in high demand, and traffic is congested in the Elmwood District. The
proposed restaurant will make this situation much worse.
c)
Staff does not even address the health
problems that could result from more cars and delivery vehicles in the
neighborhood. An increase in exhaust particulate matter will have deleterious
health consequences for Elmwood residents.
It can, for example, raise the risk of cardiovascular disease in
postmenopausal women. This hazard is sufficient by itself to trigger an Initial
CEQA Study.
d)
It is unreasonable to grant a permit
before knowing in detail which kinds of businesses will occupy the building and
how many people they will accommodate. In the case of a restaurant, for example,
a maximum seating estimate is essential for predictive assessment of the
restaurant’s environmental impact. Yet, this has not been provided by the
developer.
Of the three
restaurants listed as prospective tenants by the developer, Home and Nopa have
entrees priced in the $17-$22 range. This price does not include appetizers,
additional courses, drinks, coffee, appetizers, tax, or tip. It is reasonable
to conclude that an average meal would cost from $35-$50 per person in these
establishments. Walk-in traffic in this
neighborhood tends to patronize less expensive restaurants. Thus, the proposed restaurant will have to
draw the bulk of its patronage from outside the neighborhood. People who are
willing to pay such a relatively expensive price for a meal typically travel by
car, rather than using public transportation.
Hence, the proposed restaurant is likely to significantly worsen traffic
problems in the neighborhood.
Analogous
considerations apply to other proposed businesses in the development, in
particular, the proposed health facilities.
For instance, a yoga studio would be likely to attract more walk-in
patronage than would an expensive health club.
On page 10 of the
Staff Report, neighborhood concern about the size of the restaurant is misrepresented.
It is not just the square footage, but the number of people to be accommodated
that will impact the neighborhood. On
the Kitchen Democracy website, a proposed number of tables for the restaurant was given. The number
of chairs might be more accurate as a method of estimating maximum occupancy,
since tables can be of many sizes and seat varying numbers of people. But the number of chairs may not be an
accurate representation of maximum occupancy in the bar and lounge, where
sofas, benches, and bar seating may be available. Additionally, the Staff Report does not take
into account how many people may occupy the sidewalk seating area of the
restaurant. Therefore, the Staff
Report’s reliance on a comparison with seating at King Yen or Shen Hua in order
to estimate the maximum occupancy of the proposed restaurant is likely to
underestimate that capacity. What is
lacking here, but essential, is a specification by the developer of the maximum
occupancy of the restaurant. Regulating
that maximum would be far more effective than the minimal mitigations offered
by Staff, which will be discussed in the following section.
e)
On page 9 of the Staff Report, “New
Conditions for Approval Related to Parking” are provided. These are
ineffective, band-aid remedies to a serious problem, as we show below.
Employees who get off
work after midnight may be more likely to drive than take public transit, even
if free transit passes are offered. They will not be able to connect to BART
and some bus lines. They also may have safety concerns at either end of their
commutes.
Some workers will come
to work late enough in the day to park in neighborhood permit zones without
consequence. There is no way to enforce an agreement that they will park
farther than a quarter mile away; it’s probably not even legal. These employees
could argue that the law is treating them differently than workers of other
businesses.
The early morning
deliveries will have to be made well before the lunch rush. So while Staff
specifies that deliveries will be made before noon, in fact, they are most
likely to overlap the clogged morning rush hour. The Alameda County Congestion
Management Agency has graded this segment of
Staff’s red zone
argument is a red herring. The Staff Report recommends removal of the red curbs
at College and Ashby in order to provide more parking. Squeezing a few more parking spaces into the
neighborhood in this way is inadvisable, and it is unlikely to be approved by
Transportation Planning. Of the eight
red zones near the intersection of College and Ashby, six contain bus stops,
fire hydrants, and/or banks of newspaper vending machines. The remaining two,
located on the NW and SE corners of College, serve a variety of essential
purposes. College Avenue near Ashby is a one-lane street in both directions,
except at the intersection, where the red zones provide extra lanes for right
and left turning vehicles. This keeps traffic from backing up even more than it
already does. Furthermore, in this parking-challenged neighborhood, red zones
may provide the only available space for emergency vehicles to park.
In discussing the
above conditions on page 6, item F, of the Findings and Conditions, Staff makes
the following conflicting statements (italics ours):
“As noted within the
staff report, the full service restaurant would generate peak demand during
off-peak hours in the District. Recognizing that the District is in short supply of parking spaces without regard of
time of day, due to the densely populated residential and commercial uses,
several conditions of approval have been recommended for this project including
a requirement for payment of subsidies of parking passes for all employees."
However,
this parking subsidy is not listed on the Conditions for Approval in the Staff
Report; employees are only subsidized for the use of public transit. Moreover,
the Staff acknowledgement of a “short supply of parking without regard of time
of day” correctly recognizes that this neighborhood is already strained with
traffic beyond capacity. Therefore, there is never a truly “off-peak” time in
the Elmwood.
f)
Zoning Ordinance 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." Mr. Gordon’s application
clearly fails to satisfy this requirement, and the Staff’s own words,
quoted above, demonstrate how scare parking already is.
If the developer’s plans to install a large restaurant – larger than any
other in the Elmwood – are carried out, this will clearly exacerbate the
traffic congestion and parking problems to well beyond capacity.
2. Alcohol Sales.
On March 5, we
obtained new information about current liquor sales in the Elmwood. The only other full-service restaurant with a
bar in the Elmwood is Shen-Hua, and its owner, Edward Chu, informed us that
about 15% of his gross sales come from alcoholic beverages. As Mr. Chu explained, his restaurant’s focus
is dining, not drinking. Liquor is
consumed at Shen Hua only in the context of eating a meal, in keeping with Section
23E.44.060 of the Zoning Ordinance, which specifies that “On premise service or
consumption of alcoholic beverages shall be permitted only as incidental
consumption with meals in food service establishments.”
However, on page 16 of Findings and Conditions,
Staff permits the gross sale of alcoholic beverages by the proposed new
restaurant/bar to equal the restaurant’s gross sales of food, thereby allowing
a 50-50 alcohol-food split. Far
exceeding Shen-Hua’s reasonable 15% of gross sales income, the Staff Report
proposes to enable the creation of a major alcohol-provider in the Elmwood. It
also grants this alcohol provider permission to remain open later at night than
Shen-Hua is open, both on weekdays and weekends.
Heightening neighborhood concern is the fact
that the use permit recommended by Staff on page 8 of the Staff Report now
proposes to install, not only a bar, but a separate “bar and lounge.” Most disturbingly, language on pages 10-11 of
the Staff Report explicitly uncouples food service from the sale of alcohol,
since it provides no control at all over hard liquor sales by the
restaurant. This is an additional
violation of Section 23E.44.060 of the Zoning Ordinance. The Staff Report specifies that Mr. Gordon’s
proposed restaurant will be granted a license to serve “distilled spirits” –
i.e. hard liquor – as well as beer and wine, but then specifies
restrictions only for the sale of beer and wine and not for hard liquor:
“The Applicant has
committed to the following restrictions on alcohol sales with the proposed
restaurant:
…
B. The sale or service of beer and wine shall only be from the restaurant menu,
at the prices listed on the menu,
and with the purchase of prepared meal(s).”
The
same omission of regulation of hard liquor sales is repeated on page 17 of the
Report’s “Finding and Conditions.”
Serving hard liquor
without food increases the likelihood of drunk driving, public intoxication,
noise, and alcohol-related assaults. Many assaults against women are fueled by
alcohol-influenced behavior. The
inclusion of this bar and lounge will substantially alter the character of this
neighborhood.
Staff continues on
page 11 of the Staff Report:
“Staff notified the
Police Department of the application for alcohol service in conjunction with a
full-service restaurant. In a memo dated
December 13, 2006, the Berkeley Police Department indicated that the proposed
sale and service of alcohol in connection with a full-service restaurant would
not be expected to add crime in the area.”
However,
the Berkeley Police Department has stated that it is willing to support the use
permit only on the condition that “The current hours of operation shall be in
line with other similar businesses in the area and not be extended without
requesting additional Police input.” The
developer’s proposal does not heed this recommendation. Currently, no full-service restaurant in the
Elmwood – including Shen Hua, the only restaurant in the neighborhood that has
a bar – stays open as late as the developer’s proposed restaurant would stay
open. So this change would extend the hours in which hard liquor is sold in the
neighborhood. Another change would be that hard liquor could be served without
a meal. As noted in the neighborhood
petition, “the [proposed] bar would be open every day until late at night,
contributing to drunkenness, rowdiness, and noise.”
3.
CEQA and the impact on the neighborhood
On page 14 of the
Staff Report, Staff alleges that the proposed project qualifies for a Class 1
Categorical Exemption from CEQA, because there would be no increase in the
square footage of the existing building. However, at the top of page 12, Staff
notes that the conversion of Wright’s Garage into a restaurant “increases the
District’s commercial square footage by 6.75%.”
It is not relevant that the former use was nonconforming. This increase still amounts to an expansion
of use, which may not even be counting the sidewalk seating area. The sidewalk seating also is a new and
expanded use. On page 12 of the Staff Report,
Staff goes on to discuss “the approximately 7% increase in commercial square
footage.” The increase may come from the creation of a mezzanine and/or an
expansion of the building towards the back, as well as the sidewalk seating
area. On page 6 of the Findings and
Conditions, the Staff also says that the project would “add about 13,775 square
feet of ‘new’ commercial space to the District.” Therefore the argument that the proposed
project is Categorically Exempt from CEQA fails.
Furthermore, the
details provided earlier in this document and the survey in the Appendix show that
there will be significant and cumulative impacts on the neighborhood and
environment, which Staff has failed to note or address. For a detailed analysis
of other prospective significant and cumulative impacts of the restaurant on
the neighborhood and environment, see the communication to ZAB from
These impacts will
change the neighborhood character. The Elmwood, which was established by 1910
as a traditional streetcar neighborhood, is valued today for its charm and family
life. The proposed oversized restaurant and bar and lounge will degrade the
quality of life in the neighborhood.
Berkeley Municipal
Code Section 23E.44.090, Findings for the Elmwood Commercial District, Part C,
states:
“In order for a Use
Permit under Section 23E.44.040.A, for an exception to exceed a numerical
limitation for a use, to be granted the following finding must be made: The
exception shall result in the positive enhancement of the purposes of the
District, as evidenced by neighborhood resident and merchant support and
marketing surveys or other information indicating probable substantial
patronage by surrounding residents. (Ord. 6478-NS § 4 (part), 1999)”
Such a finding cannot
be made.
In conclusion,
implementation of the developer’s restaurant and bar plans would violate
multiple regulations in the Berkeley Zoning Ordinance and also go against CEQA
Guidelines, which could potentially open the City up to litigation. Finally, the large restaurant and bar would
have an irreversible negative impact on this neighborhood, which is valued not
just by its residents, but also by its visitors. Therefore, the developer’s
application for a Use Permit should be denied.
APPENDIX
Survey of
Merchants in the Elmwood
Twenty-four businesses
were visited and queried. These were the
questions to which respondents replied:
1.
On weekdays, at what hours of the day is
your store busiest? And on weekends?
2.
Is it difficult for your customers to
find parking in this neighborhood? How
do weekdays and weekends compare? Is it
more difficult to find parking in the evening than it is during the day?
Everyone queried
answered the questions, except for one person, who had only recently become a
manager and did not wish to have her opinions reported. Not surprisingly, two major restaurants,
Filippo’s and La Mediterranee, reported that evenings are their busiest time.
All but one (Sangri-La Treasures) of the remaining 21 businesses reported that
their peak hours are in the late afternoon and evening.
The strong consensus
among respondents was that their customers find parking in this neighborhood
difficult and that this is a serious problem for their businesses. Almost all of them reported that the parking
problem becomes more difficult in the late afternoon and remains difficult or
even worsens in the evening. Two
respondents from stores on the northwest side of College reported that the City
parking lot behind their stores is busiest in the evening. Additionally, many respondents singled out
weekends as the most problematic time for parking.
These are statements
from the respondents:
Slash
clothing store owner and manager Julie Harleman: “We are
busiest 2:00-5:00 PM and all day on the weekend. Some nights we’re here ‘til 7:30, even though
we officially close at 7:00. Parking is
difficult anytime after 4:00 PM…. I tell our customers to come up Telegraph and
park in the neighborhoods.”
Elmwood
Village Shoes owner Mark Freeberg: “At no time is there not a
parking problem here.
You see people parking in the neighborhoods at night, because they can’t
find parking.”
Filippo’s
restaurant manager: “Parking is bad, worse on weekends…. Some customers give
up. Forget it, we’re not going to drive around for thirty minutes looking for a
parking spot ”
Ozzie’s
Soda Fountain owner Victoria Carter: “Parking is very
difficult weekdays and weekends, any time of day or early evening…. Does parking get easier in the evening? Oh no, because the restaurants and theater
open up. One night I drove back here to
attend a Merchant neighborhood meeting.
I came at 6:30 and couldn’t find a parking spot. That’s typical, it starts about 6:00 PM…. The rent is so high
here. We cannot do this much longer.”
Basic
Bird owner Claudia Moudry: “Our busiest time is 3:00
to 6:00 when school is in session…. Weekends and Sunday, we’re busy all day
long…. There is more parking in the morning.
In the evening, more residents are home, and that makes parking more
difficult…. Our customers have trouble
parking all the time. That is the
biggest complaint we get…. The parking
lot in back is always full in the evening, weekdays and weekends by 6:30.”
Elmwood
Theater ticket-seller: “People coming here do have
serious problems with parking.” The
theater manager confirmed her observation and added, “When a film is popular,
many people wander the streets nearby looking for parking.”
La
Tour Salon employee: “In the morning, parking is OK, but
not in the afternoon. It’s difficult in
the evening, too.”
Global
Exchange employee: “It doesn’t much slow down later in
the day. On weekdays people come here
after work, like from Alta Bates.”
Mrs.
Dalloway’s Bookstore owner Ann Leyhe: “We are busiest from
3:00 ‘til 6:00. We are busy in the
evening until we close at 9:00....
Thursday, Friday, Saturday are the busiest
times in the neighborhood overall, because of the restaurants and [Elmwood]
theater… Parking is available in the parking lot [behind the store] until it
gets dark.”
Sweet
Dreams toy store
manager Harry Bolles: ”The busiest time of the day
is late afternoon… We’re busy from 11:00 until noon and then 4:00 to 6:00 PM….
If you’re vigilant, you can probably find a place in a couple of blocks. Weekends are worse.”
Far
Leaves a tea shop employee Ben Jarrett: “It’s busy in
our store and on this street [
Elmwood
Stationers employee: “The store closes at 6:30. Around 6:30, there is a pick-up in
neighborhood activity, because people are starting to go to the
restaurants. The other day we came back here
for dinner and it was very busy, it was even raining. Parking is always a problem.”
Elements
clothing store manager Katy Bybel: “Parking is difficult,
but not a deterrent.… It’s worse on weekends; Saturday night is bad. We have a lot of evening traffic. Weekdays are unpredictable.”
La
Mediterranee restaurant employee Harry Tanielian: “Parking
is difficult; it gets out of hand. Weekends are worse, but weekdays can be bad,
too. We lose customers. You go around the block ten times, and if you
don’t find a place you give up.”
A.G.
Ferrari Foods general manager Fran Thomas: “12:00 to 3:00 are
the busiest hours, 6:00 to 8:00 is also busy … weekends are very busy…. Parking is definitely a problem – all the
merchants agree.”
La
Foot shoe store manager: “The parking situation is
best in the morning and probably gets worse as the day goes on. Our business is pretty steady during the
day. Weekdays and weekends are busy, but
Saturday is our busiest day.”
Lora’s
Closet manager Amber Isherwood: “Not much difference between weekends and
weekdays. Up ‘til 6:00, there is really
bad traffic…. The parking lot [behind the store] fills up every evening,
including on weekends.”
Papyrus
paper store manager Philip Rivera: “The parking is very difficult … On Sunday
it’s OK, but on weekdays and Saturday, it’s very difficult to park, pretty much
all day long.”
Sangri-La
Treasures employee Tenzing Lama: “I can’t really say when
it’s busiest here. I have a parking
permit. For customers, it’s pretty hard
to get parking, usually all day.”
Elmwood
Hardware owner Tad Laird: “The busiest time is lunch
time and about closing time (5:30 PM)…. On weekends? Depends on the weather…. Parking around here
is much easier in the day than in the evening…. Traffic on College and Ashby is
at a virtual standstill, especially in the early evening, but even at other
times. The traffic is absolutely
abhorrent here. People are willing to
come to a restaurant, but not for routine needs, such as hardware.”
Bill’s
Trading Post co-owner Janet Dunlap: “10:00 to 11:00 and 5:00
to 6:00 are the busiest hours. Saturday is our busiest day…. Sometimes we get a
big rush after people get off work. After 3:00 o’clock on weekdays usually the
streets are clogged…. Parking does not
get easier in the evening. That’s more true on
Sundays. People leave their cars in the metered spaces.”
Elmwood
Nail Salon employee: “Our busiest time is 4:00 to
6:00. We are busier on the weekend. Parking is OK in the AM, but difficult after
that – all day.”
C
& C Cleaners owner and
manager Phillip Kim: “We’re busiest early in the morning and after 5:00 in the
afternoon. Parking is bad all day long, but especially after 5:00. People come after work – they come here. Weekdays are crazy, from morning until night
there is no parking, and when there is a game [at UC], traffic backs up all the
way to the campus.”