APPEAL OF ZONING ADJUSTMENTS BOARD " APPROVAL OF USE PERMIT #99-1000011 2to create a park recreational playing fields and skatepark and construct a field house at fifth and Harrison.
February 22, 2000
(ALSO SEE....RESOLUTION NO. 60,421-N.S.)
Adopt a resolution affirming the Zoning Adjustments Board's decision to approve a Use Permit under Section 23E.80.030F to create a park, recreational playing fields and a skate board park, and to construct a field house.
Options for Action
Pursuant to Section 23B.32.050 of Ordinance No. 6478-N.S., the Zoning Ordinance of the City of Berkeley, provides that the attached appeal from a decision by the Zoning Adjustments Board maybe disposed by any of the following three Council actions:
1. Refer the matter back to the Zoning Adjustments Board for a new public hearing. (Council must specify issues that the Board is directed to investigate and reconsider. A new decision may be appealed in the normal manner unless otherwise directed by Council. If 90 days pass and the Board has made no subsequent decision, then the original decision and the original appeal of that decision shall be placed back on the Council agenda in the same manner as a new decision and appeal.)
2. If the facts as stated in the application, the Notice of Appeal, the written statement of the Zoning Adjustments Board, and other papers do not warrant further hearing, the Council may affirm the decision of the Board and dismiss the appeal.
3. If said facts warrant further hearing, the Council shall set the matter for hearing as required by the Zoning Ordinance.
1. Date appeal first appeared on Council agenda: February 22, 2000
2. If none of the three actions shown above is taken by March 23, 2000 (30 days from the date the appeal first appears on the agenda), the decision of the Zoning Adjustments Board is deemed affirmed.
3. A public hearing must commence within 60 days of the date of the vote to hold a hearing is taken.
4. If a public hearing is held, the appeal must be disposed of within 30 days from the date the public hearing is closed or the decision of the Zoning Adjustments Board is deemed affirmed.
Background and Application
The 6.4-acre site, which the City is purchasing from the University of California, encompasses two blocks bounded by Fifth Street on the east, Harrison Street on the south, the Southern Pacific Railroad tracks on the west and Codornices Creek and the City of Albany's soccer fields to the north. The vacated one-block segment of Fourth Street crosses the site.
The 278,784 sq. ft. site is vacant except for the 5,433 sq. ft. Harrison House homeless shelter and three temporary structures used as offices and three smaller portable structures. The U.C. Associated Students conduct a recycling operation on the site and an equipment rental business uses the site; in addition, a contractor has been using the site as contractor's yard. The site serves as an informal parking and storage lot for these businesses.
The project consists of improvements, to the site to create a City park including two turfed and lighted playing fields, a new two-story field house, and an 18,000 sq. ft. skateboard park. There may be an occasional food concession. Additionally, a parking lot for 20 cars is proposed at the southwest corner of the site. Included in the project are flood control improvements to Codornices Creek and relocation of three portable buildings that are part of the homeless shelter to make room for the playing fields. Clean fill is currently being brought in and will cover the site.
On April 28, 1998, the City Council amended the West Berkeley Plan and Zoning Ordinance to allow outdoor recreational uses in a new Outdoor Recreation Subzone that includes the Harrison Street site. The Council also approved a Mitigated Negative Declaration based on an Initial Environmental Study that evaluated the environmental effects of changing the Plan's policies as well as environmental issues related to the-specific project that is also the subject of the current application.
The City Council on December 7, 1999 approved an additional Mitigated Negative Declaration and Mitigation Monitoring Program for the subject project based on an Initial Study for the Codornices Creek Schematic Plan and Harrison Street Playing Fields and the Codornices Creek Improvement Project. The Council took action in conjunction with its adoption of an ordinance to authorize purchase of the project site from the University of California.
Pursuant to the Zoning Ordinance amendment, which requires approval of a Use Permit to establish a park or outdoor recreation facility in the new West Berkeley Subzone, on January 13, 2000, the ZAB approved a Use Permit for the proposed Harrison Street facility under Section 23E.80.030F of the Zoning Ordinance. The Board also adopted a Mitigated Negative Declaration based on the same Environmental Initial Study considered by the Council when it authorized the purchase of the site. The Mitigated Negative Declaration identified project features that had already been implemented or have been incorporated into the project design pursuant to the Mitigation Monitoring Program adopted by the Council in 1998 as well as additional measures the City and other agencies will be undertaking to reduce the project's possible impacts to reduce conflicts between the recreation facility and the surrounding industrial uses.
These measures include preparation of a Storm Water Pollution Prevention Plan for the site and cooperation with the State Department of Toxic Substances Control in preparing a Voluntary Cleanup Program to conduct any necessary remediation. Another measure previously identified by the Council is the requirement that parents of children participating in groups that use the new playfields as well as adult participants sign a Disclosure form regarding the industrial nature of the surrounding area and the potential for heavy traffic, noises, and odors.
In addition to requiring implementation of mitigation measures, the Board imposed additional conditions such as a requirement to post the Disclosure Form that is identified as a Mitigation Measure in the Negative Declaration previously approved by the Council. (See Environmental Determination below.) Other measures to be undertaken by the City and other agencies include creation of an Environmental Contingency Fund to defray City costs to respond to complaints and investigate improved environmental technologies.
Summary of Testimony at January 13, 2000, Meeting
Two members of the public, including the appellant, L A Wood and Staff from the Department of Parks and Waterfront, testified at the January 13, 2000 hearing.
Noting that he had already submitted two letters to the Board regarding the project, Mr. Wood said that he had been misquoted on page 5 of the Staff Report to the ZAB. He said that a ballpark in an industrial zone was an "extreme" change in zoning which., if approved, should not be without purposeful mitigation. He criticized the proposed planning of trees along the freeway edge as a meaningless mitigation and said the proposal to monitor air quality after the fields are created was an "absurd" mitigation. He added that the possibility of doing a soils evaluation was destroyed once the earth filling and grading process began, showing that the whole review process is a "sham".
Mr. Wood proposed four mitigation measures:
1. Monitoring and assessment of air quality before the project;
2,, Posting a Proposition 65 sign on the gates to the site to alert people to potential health risks;
3. A risk disclosure statement identifying the health impacts of airborne contaminants, which are a greater problem than odor;
4. Establishment of an Air Quality Enterprise Zone to limit air pollution emissions from new businesses and to provide incentives to existing buildings to reduce emissions.
In response to Board questions, Mr. Wood said he was very familiar with all the health information in the environmental documents and the staff report and its attachments. He explained that he was misquoted because contrary to the Staff report, which said he wanted trees to be an air pollution buffer, he believed that trees should not be used as an air pollution buffer because they would not address the problem and might create more problems. (This mistake in the staff report seems to be built into the zoning process and not unique to this use permit. Berkeleycitizen)
Nathan French 2254 Etna Street identified himself as a City employee who was testifying as a private citizen, representing the Friends of Berkeley Skate Parks, an organization formed about four years ago as a grassroots, non-profit organization. He said that his group recognized that the choice of site for the skate park was not ideal but felt that the location did have some advantages:
1) The park will be lighted at night, while lighting would not be tolerated in a more residential area;
2) The park will balance and compliment the industrial area around it;
3) Children will be able to use the park afternoons and on weekends when businesses are closed; 4) A sea of green will grow around the homeless shelter, making it a more pleasant place;
5) The park will be a place for employees of businesses to eat and relax; 6) The park plan includes restoration of Codornices Creek so it can run freely.
He also noted that a survey conducted by the Association of Sports Fields Users found that 80% of youth could not participate in sports activities because there are not enough playing fields and this will help provide a place for them. If the park is not developed, some industry will buy the property and there will be only industry in this area. Mr. French noted that there are other playing fields in Berkeley that are located on busy traffic corridors where the air quality is not ideal either. In response to Board questions he also said that he had no objections to signing a waiver before using the facility.
Lisa Caronna, Director of Parks and Waterfront, told the Board that the concept of the waiver came from the West Berkeley Plan amendment. Answering questions from Board members she said that most of the park users are members of groups that already sign waivers and that the disclosure notice could be added to the forms used. She also said that there had already been soil testing and more than thirty borings had been evaluated.
Board Discussion at January 13, 2000 Meeting
The Board questioned staff about the mitigation measures that would be incorporated as conditions and the possibility of posting a sign under Proposition 65 as proposed. Acting Deputy Director of Planning Vivian Kahn said that the posting of signs in compliance with Proposition 65 was regulated by the State and that the City could not impose higher standards for air quality and require posting under that requirement.
Ms. Carleton asked if the conditions of approval included limiting users to those who have signed waivers after reading the disclosure. Ms. Kahn explained that the condition to which she was referring was intended to restate one of the Mitigation Measures approved by the Council. She suggested that the Conditions be reworded to include the specific mitigation measures approved by the Council as proposed in Condition 24 proposed in the Staff Report.
Boardmember Carolyn Weinberger (second by Peterson) moved approval of the Mitigated Negative Declaration and the Use Permit as recommended by Staff recommendation with an additional condition requiring posting of appropriate signage with the disclosure information.
The motion was approved by a vote of 6-2-0 with one member absent. (Aye: Carleton, Duff, Gartner, Issel, Peterson, Weinberger; No: Blake, Poschman; Absent: Freeman).
Mr. Wood's letter of appeal states that Staff has filed to make a case for the proposed use of the site as a recreation facility or to provide adequate mitigations. He asserts that the City needs "to undertake a more thorough evaluation of this project and its use permit" and requests the Council to consider a variety of issues, policies, and mitigations that are summarized below.
1. Air quality. Appellant asserts that the air quality analysis and mitigations are inadequate. His specific points include: additional air quality evaluation should not be postponed until after the park is in use, new evidence was presented during the public review of the use permit that asthma and chronic respiratory ailments are disproportionately higher in West Berkeley than in other areas, impacts from diesel emissions and the City's Transfer Station were not addressed, and that the tree planting plan is not an effective mitigation.
Staff Response In order to justify environmental review in addition to the two Negative Declarations described above, the appellant must point to substantial evidence of either:
(1) substantial changes in the project which will require major revisions of the previous negative declaration due to new significant environmental effects or a substantial increase in the severity of previously identified significant effects;
(2) substantial changes in the circumstances under which the project is undertaken which result in new significant environmental effects or a substantial increase in the severity of previously identified significant effects; or
(3) new information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous Negative Declaration was adopted, and which shows that the project will have one or more significant effects not discussed in the previous negative declaration or significant effects previously examined will be substantially more severe than shown in the previous Negative Declaration.
The appellant and others raised most of the same concerns about the affect of air quality on people using the playing fields at the time the Planning Commission and City Council were considering the proposed amendments to West Berkeley Plan and zoning to designate the site for public recreational use. These issues were discussed again when the Council voted in December to authorize purchase of the site. The appellant has not shown the existence of either changes in the project or the circumstances, and has not provided any new information that was not previously available to show that there are new impacts associated with the project for any of the reasons stated above. Thus, the appeal lacks merit.
The Mitigated Negative Declaration that the Board adopted is based on the Environmental Initial Study that the Council received in 1999, which relied on documentation including a study performed by Acurex Environmental Corporation in 1997. The City hired Accurex to prepare an Ambient Air Pollution and Health Risk Report in response to a request from the Community Environmental Advisory Commission. The objective of the Accurex investigation was to "estimate potential health risks associated with exposure to air pollution in the vicinity of the lower Harrison Street Site." As a result of that study, which did consider potential impacts from the Transfer Station, railroad and diesel engines, Accurex concluded that the site could be used for the proposed recreation facility without significant health risk to the users.
As Mr. Wood notes in his appeal, the City's Health Officer, Dr. Poki Namkung, reviewed the Accurex study and noted two changes that have occurred since the study was completed in 1997, which she believed might warrant additional investigation. These are the increase in traffic on I-80 at Gilman Street and Cal EPA's proposed reduction in health standards related to particulate matter. She also expressed the view that health levels measured in the Acurex Study have been associated with increased health risks for persons with prior respiratory problems.
In response to Dr. Namkung's recommendation, which was in a memorandum written in October, 1999, the Council decided to require additional testing for particulates, not as a mitigation for a potential significant impact, but rather in an effort to provide more detailed information to future users of the site. Depending upon the results of the monitoring, the City could suggest restrictions , such as not using the field during high pollution days or advising parents of children with respiratory problems that they may not wish to use the site.
2. Land Use. Appellant states that approval of the playing fields is a poor land use decision that will create conflicts between business and park users in the future. He says that the Use Permit should require the City to control or improve the air quality on the site and proposes creation of an Air Quality Enterprise Zone (AQEZ) to insure future environmental quality at the park. He also states the proposed disclosure form is inadequate because it does not address possible chronic health impacts associated with toxic airborne contaminants.
The decision to allow a recreational facility in the Mixed-Use/Light Industrial District was made by the City Council on April 28, 1998 when it approved the amendment to the West Berkeley Plan and Zoning Ordinance. Moreover, at the time the Council made these legislative decisions, it understood that the actions would allow development of a recreational facility on the Harrison site.
Mr. Wood's proposal for an Air Quality Enterprise Zone was previously presented to the Planning Commission and to Council. While the Council may choose to undertake such a program at some time in the future, the Board does not have the authority to establish such a program and it is not, therefore, germane to this appeal. At this time, there is no evidence that those who use the site do risk greater exposure to contaminants than persons who live, work, attend school, or drive through West Berkeley and, therefore, additional disclosure is not necessary. As explained above, the City is proposing to conduct additional air quality monitoring and, depending upon the results, could notify persons using the field of any potential health risk and suggest restrictions
3. Soils and Groundwater Investigation: Appellant states that a groundwater evaluation is needed, especially because creek restoration is included as part of the project. He asserts that the City asked the State Department of Toxic Substances Control (DTSC) to oversee environmental investigations because the State agency would not require further investigation of groundwater.
Staff Response The City's Toxics Management Division (TMD) and Ogden Environmental Corp have evaluated the risks to users of this ball field with respect to the existing soils and groundwater pollution and have determined there is no significant impact. The TMD and the DTSC have also identified the potential impact to the creek from soils and possible pollutants once the creek restoration program starts. For this reason, TMD proposed a soils management plan (Condition 26) as a requirement to minimize potential impact to the creek.
The City may require higher clean up standards than the state agencies, but City standards are generally consistent with state guidance and procedures. As a state agency, the DTSC has the higher authority to oversee clean ups. In this case, DTSC implemented its authority and the City relinquished lead to the DTSC. The DTSC agreed with the City TMD in requiring a groundwater investigation in connection with statutory requirements related to water quality per se, not because of a potential impact on users of the playing field which requires additional review under CEQA.
4. Public Review Process: The appellant states that the public review process was biased in favor of the City, that speakers in opposition were intimidated by catcalls from the audience and were not given adequate time to speak at the hearing, and that the Zoning staff report incorrectly stated that he was in favor of the project and had suggested that trees be planted as a mitigation to the area's poor air quality.
Staff Response The standard Board procedure limits the time allowed to individual speakers in order to allow the Board to complete its agenda. The Appellant was provided the same amount of time as other members of the public who are not Applicants. In addition, the Board asked questions of both speakers to clarify issues of concern. The Staff acknowledges that the report erroneously stated that the Appellant supported the tree planting mitigation measure and apologizes for this mistake.
The Current Planning Division prepared and circulated for public review a proposed Mitigated Negative Declaration based on the Initial Study that was prepared for this project in the Fall of 1999. The Planning Commission adopted a Mitigated Negative Declaration based on the Initial Study on November 17, 1999 and the City Council adopted the Mitigated Negative Declaration and Monitoring Program on December 7, 1999. Because the Zoning Adjustments Board had discretionary authority over the required Use Permit, it was also required to take action under the California Environmental Quality Act. Before approving the Use Permit, the Board reviewed the Initial Study and considered comments received during public review and at the public hearing and adopted the proposed Negative Declaration.
Mark Rhoades, Current Planning Manager
RESOLUTION NO. 60,421-N.S.
AFFIRMING THE DECISION OF THE ZONING ADJUSTMENTS BOARD TO APPROVE USE PERMIT #99-10000112 TO CREATE A PARK, RECREATIONAL PLAYING FIELDS AND A SKATE PARK AND TO CONSTRUCT A FIELD HOUSE AT FIFTH AND HARRISON STREETS
WHEREAS, on January 13, 2000, the Zoning Adjustments Board voted to approve a Use Permit to create a park, recreational fields and a skate park and to construct a field house at Fifth and Harrison Streets; and
WHEREAS, on February 8, 2000, L A Wood, appealed the Board's decision to the Council citing that
- air quality issues have not been resolved and, in West Berkeley, respiratory ailments are known to plague residents disproportionately;
- locating a park in this area is an "extreme" change in land use and the use permit guidelines should recognize the need to control air quality, perhaps by creation of an Air Quality Enterprise Zone (AQEZ) which would limit new businesses' air pollution emissions and offer incentives for existing businesses to reduce their emissions;
- the City Toxics Management Division (TMD) should supervise evaluation of the project because it will require a groundwater evaluation while the State Department of Toxic Substances Control (DTSC) would not; and
- those opposed to the project were subjected to noisy catcalls from supporters of the project at the Commission and Council hearings to the extent that a number of persons told the appellant they were intimidated from speaking out. In addition, the appellant states that the Zoning staff report incorrectly stated that he was in favor of the project and had suggested that trees be planted as mitigation to the area's poor air quality. Furthermore, only two and one-half minutes were allowed for each speaker at the Zoning Adjustments Board hearing on the project; and
WHEREAS, a Mitigated Negative Declaration and a Mitigation Monitoring program, ensuring that there would be no significant environmental impacts from the project, were adopted by the City Council on December 7, 1999; and
WHEREAS, on February 22, 2000, the record of proceedings before the Zoning Adjustments Board and the letter submitted by L A Wood, the appellant, have been considered and reviewed by this Council.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the matter of the decision of the Zoning Adjustments Board in approving the Use Permit as hereinabove set forth is affirmed.
The foregoing Resolution was adopted by the Berkeley City Council on February 22, 2000 by the following vote:
Ayes: Councilmembers Breland, Maio, Olds, Shirek Spring and Mayor Dean.
Abstain: Councilmember Worthington.
Absent: Councilmembers Armstrong and Woolley (absent from room)