Court punishes city of Berkeley for failing to hold public hearing

Shirin Ghaffary/Staff
The Honda sales lot, located on Shattuck Avenue, is slated to become a five-story building with commercial space.

In response to a court order issued this summer, Berkeley City Council is set to rescind a decision it made over a year ago next week that affirmed the city Zoning Adjustments Board’s approval of the construction of two mixed-use and one residential building on Southside.

The Alameda County Superior Court issued a peremptory writ of mandate requiring the city to overturn the resolution approving Berkeley-based real estate development firm Citycentric’s use permit — granted by the zoning board April 22, 2010 and affirmed by the council Sept. 21, 2010 — to build on Shattuck and Parker Avenues.

The court order was issued in response to a petition for a writ of mandate filed by an unincorporated association named Parker Shattuck Neighbors. According to the petition, filed in Alameda County Superior Court in November 2010, the city violated its Zoning Ordinance by failing to hold a public hearing when changes were made to the developer’s use permit.

In April 2010, the zoning board  approved the project without a specific number of affordable condominium units mentioned in the conditions for approval, according to Wendy Cosin, interim planning director for the city.

However, when the council approved the project brought forth by the zoning board in September 2010, the developers clarified that they would include at least seven affordable housing units in the case that all the developments were condominiums, in accordance with California’s density bonus law, which allows developers to build at higher densities than local ordinances permit in exchange for the inclusion of affordable residences.

The court ruled that the council was required to hold a public hearing before making such a modification.

Cosin said the council’s failure to hold a public hearing was an administrative oversight.

“The council doesn’t generally hold new public hearings unless there is a substantive concern regarding a commission’s decision,” Cosin said.

Citycentric co-founder Ali Kashani said the major consequences of this court-ordered rescinding of the approval are delays in construction, which in turn affects the pocketbooks of the developers and future tenants.

“We have been working since June 15 of this year when the judge’s order was received to reprocess this project,” Kashani said. “These delays cost us money, and increased costs for us mean increased cost for future tenants.”

When the council originally approved the project, it denied the developer’s application for a license to serve alcoholic beverages for the restaurant on the ground floors of the two Shattuck buildings, according to Kashani.

Although they were granted restaurant permits, the developers were denied the request for a license to serve beer and wine “due to the absence of restaurant operators with detailed business plans explaining how possible detriment associated with these activities would be avoided,” according to a City Council agenda item.

“We wanted to have the flexibility of having a restaurant on the ground floors,” Kashani said. “They denied our first request and told us to come back when we knew more about what exactly will be going on in the buildings.”

According to Citycentric’s website, the housing development, which is projected to cost $60 million and originally predicted to be completed by 2012, will include a total 156 dwelling units, 188 parking spaces and 23,200 square feet of retail space.