Bowman v. City of Berkeley

• Decision Date: 20 September 2004
• Docket Number: No. A103980.,A103980.
• Citation: 18 Cal.Rptr.3d 814,122 Cal.App.4th 572
• Court: California Court of Appeals Court of Appeals
• Parties: Marie BOWMAN et al., Plaintiffs and Appellants, v. CITY OF BERKELEY, Defendant and Respondent; Affordable Housing Associates, Real Party in Interest.

18 Cal.Rptr.3d 814

122 Cal.App.4th 572

Marie BOWMAN et al., Plaintiffs and Appellants, v. CITY OF BERKELEY, Defendant and Respondent;

Affordable Housing Associates, Real Party in Interest.

No. A103980.

Court of Appeal, First District, Division 4.

September 20, 2004.

CERTIFIED FOR PARTIAL PUBLICATION.^*

Rehearing Denied October 14, 2004.

Brandt-Hawley Law Group, Susan Brandt-Hawley, Glen Ellen, Paige J. Swartley, for Appellants.

Richard Pettler, Berkeley Architectural Heritage Association, for Amicus Curiae on behalf of Appellants.

Manuela Albuquerque, City Attorney, Zach Cowan, Berkeley, Deputy City Attorney, for Respondent, City of Berkeley.

Shute, Mihaly & Weinberger, Ellen J. Garber, Marc B. Mihaly, Jenny K. Harbine, San Francisco, for Real Party in Interest, Affordable Housing Associates.

Goldfarb & Lipman, Richard A. Judd, Rafael Mandelman, for Sierra Club Amicus Curiae on behalf of Defendant and Respondent and Real Party in Interest.

KAY, P.J.

Marie Bowman et al., as individuals and on behalf of Neighbors for Sensible Development for 2517 Sacramento Street (collectively the Neighbors), appeal from the judgment denying their petition for writ of mandate to overturn the resolution of the City of Berkeley (the City) authorizing Affordable Housing Associates (the Developer) to construct a housing complex for senior citizens (the Project). The Neighbors contend that the City erred under the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.)¹ in adopting a mitigated negative declaration for the Project rather than preparing an environmental impact report (EIR), because there is substantial evidence that the Project may have significant environmental effects in the areas of aesthetics and hazardous materials. The Neighbors argue further that the City improperly calculated the density bonus to which Project is entitled under Government Code section 65915, and that the City's zoning ordinance prohibits the number of parking spaces approved for the Project.

The principal issue is whether opinions that the building is too large to be aesthetically compatible with its surroundings constitute substantial evidence supporting a fair argument that the Project will have a significant effect on the environment. Based primarily on the Project's environmental context, and the fact that the Project has undergone an extensive design review process to mitigate its visual impact, we hold that there is no environmentally significant aesthetic effect that requires an EIR in this instance. The Neighbors' other objections to the Project's approval also lack merit. Accordingly, we affirm the judgment denying their petition.

I. BACKGROUND

The Project, known as "Outback Senior Homes," is to be built on the northeast corner of Sacramento and Blake Streets in Berkeley, currently occupied by a vacant one-story building that had been a clothing store. Sacramento Street is a divided four-lane road and "one of Berkeley's most heavily used thoroughfares." A two-story apartment building stands to the north along Sacramento Street, and there are single-family homes to the east along Blake Street and the west across Sacramento. The property is a .41-acre lot at the Sacramento-Blake corner, with a strip along the eastern edge extending out to Dwight Way on the north, behind the adjacent apartment building. The lot is zoned South Area Commercial (C-SA), a designation that allows for a mixed-use, residential and commercial development.

The Project involves demolition of the existing building and construction of a mixed-use facility with retail space, 40 dwelling units—39 for low-income seniors and one for a building manager—and 18 parking spaces. The building will be four stories tall along Sacramento, with retail space on the first floor, and three stories tall along Blake, with common areas on the first floor. The residential units are on the upper floors, and include five units on the fourth story along Sacramento. The Project has undergone numerous design changes since it was originally proposed.

The Developer's application to the City for the Project permit was completed in November 2001. The application envisioned a three-story building with 38 units of affordable senior housing, commercial space on the first floor, and 13 parking spaces. The Developer indicated that it had approached people in the neighborhood in 1999 with a proposal for a four-story mixed-use building with housing for mixed-income families, but they had expressed serious concerns with the size of the Project and did not support a four-story building. In response to those concerns, the Developer decided after purchasing the Project site in 2000 to lower the structure to three stories, and to develop the property for low-income seniors. The Developer submitted that the Project would improve the lot's appearance, replacing gated parking lots and a graffiti scarred building of "no apparent architectural value" with a structure "designed to reflect both the commercial streetscape on Sacramento and the residential environment on Blake Street."

Members of the public and the City's Design Review Committee (DRC) expressed their views on the design of the Project at a preliminary DRC hearing on November 15, 2001. The Developer submitted revised drawings on December 7, 2001, showing alternative elevations along Sacramento Street. When the Project was previewed to the City's Zoning Administration Board (ZAB) on December 13, 2001, the Developer indicated that it had changed the Project's design to address the DRC's comments. Under the revised plans, the building was stepped down to two stories near appellant Helene Hunter's residence on Blake, causing a loss of several units; additional units were added in a fourth story along Sacramento Street, for a net gain of three units. The Developer advised that the extra units were required to cover additional construction costs entailed by the new design. The Developer asked for "clear direction" from the ZAB on the new design and received positive responses from board members. Drawings for the new design were submitted on January 11, 2002.

On January 24, 2002, the City issued a proposed mitigated negative declaration for the Project, with measures listed to mitigate potentially significant impacts in the areas of noise, air quality, and geology/soils during construction, and in traffic into and out of the property. The attached environmental initial study concluded that the Project would have no impacts in the areas of aesthetics or hazardous materials.

The Project was briefly previewed for a second time to the ZAB on January 24, 2002. The Project architect went over the new design, which included a "hipped" rather than flat roof to reduce the building's perceived height. The architect noted that the building was now terraced down to two stories next to Hunter's home, and that the terracing increased the construction costs. The Project came before the DRC again on February 7, 2002. Members of the public again appeared and offered their comments. A majority of the DRC approved of the elevation and step down along Blake Street to the east, but did not support a fourth story along the full length of Sacramento.

The Project came before the ZAB for approval on February 14, 2002. The City staff reported that a use permit was required to enable the Project's dimensions to exceed limitations in the zoning ordinance, including: height (four stories and an average height of 47.5 feet along Sacramento Street, where a maximum of three stories and an average height of 36 feet were allowed); parking (12 spaces where 13 were required); lot coverage (64% where 45% was allowed); and setbacks (less than the required minimums for front, side and rear yards). Staff recommended that the ZAB approve the permit and adopt a mitigated negative declaration under CEQA, with a finding that there was no substantial evidence that the Project, as mitigated, would have a significant effect on the environment.

The ZAB received numerous objections to the Project, including a 20-page single-spaced "Citizens' Report" from the "Neighbors for Sensible Development." This memorandum argued that an EIR was required because the Project would have potentially significant impacts in the areas of aesthetics, hazardous materials, hydrology and water quality, land use and planning, noise, population and housing, public services, and transportation and traffic. The memorandum also asserted among other things that the Project violated various provisions of the Berkeley Municipal Code (hereafter Ordinance), and that the City was incorrectly calculating the state density bonus for the Project. Petitions were lodged stating among other things: that there was no urgent need for affordable senior housing in Berkeley; that the Project site would be better used as a commercial facility; that the Project would have insufficient parking; that the Project would block sunlight to adjacent properties; that the Project would be out of scale with surrounding buildings; and that the Project would "open the door" to "even larger [developments] because of this precedent."

At the February 14, 2002, ZAB meeting, the Developer's architect reported that the Project could be redesigned to include an additional parking space, and to eliminate two units on the fourth floor; a two-bedroom unit could be split into two studio units, and the total number of residential units would be decreased from 41 to 40. After hearing speakers for and against the Project, and requiring additional design modifications, the ZAB voted unanimously to approve the use permit and adopt the mitigated negative declaration. The modifications, as described in City staff memoranda, "created a larger set-back on the north side, to avoid shadowing the courtyard at the disabled housing project next door," "shifted certain units away from the Sacramento Street and north property lines,...