– All Piedmont zones could be permitted to have multifamily housing or other use changes based on a new interpretation of Piedmont laws. –

The new interpretation of Piedmont’s Charter and Zoning law language presents a departure from  70+ years of Piedmont zoning history replaced by a controversial interpretation of the City Charter and opens the door to zoning changes without voter approval.  The Charter states: “No zone shall be reduced or enlarged and no zones reclassified unless a majority of the voters voting upon the same shall vote in favor thereof..”

The proposal to allow multifamily housing to be built in Piedmont’s commercial areas through a Conditional Use Permit is on the  City  Council’s Consent Agenda at the upcoming December 2, 2013 meeting.  Hesitantly, the Council okayed a first reading of the zoning ordinance on a 4-0 vote November 18.  Swift final approval of the zoning ordinance is being urged by staff at the December 2 meeting.  

Piedmonters appear largely unaware of staff’s controversial interpretation of the City Charter language. 

The  staff interpretation could ultimately impact all of Piedmont by permitting multifamily housing or other uses through Conditional Use Permits approved by the City Council rather than the voters. (Multifamily housing consists of  two or more housing units on a single parcel, not including a second unit.)

According to Planning Director Kate Black, adding multifamily housing in Commercial Zone D has been discussed for years. The interpretation of allowing the Council to decide on zoning changes rather than voters has only come to public attention in recent weeks.  On September 30, a Planning Commission workshop on the zoning changes was held in the Police Department Emergency Operations Center.  The meeting was not recorded or broadcast on KCOM. Details of the zoning proposal were not made readily available prior to the meeting.  Subsequently, on October 14, at the end of a 7-hour Planning Commission meeting the matter was taken up around midnight and the Commission voted to recommend approval by the City Council.

Black bases her recommended zoning changes on the General Plan Housing Element approved by the City Council in 2011 and her concern that the State of California might act against Piedmont for not implementing the approved plan required to be updated every 7 years.

Black noted that the State is interested in Piedmont’s Charter and “wants to get rid of language requiring single family housing.” Black said the State continues to ask, “Is the Charter a barrier to housing?”  She verified that recent property sales show single family housing is the highest and best use of Piedmont property and the Charter is not a barrier to housing. 

At the November 18 Council meeting, two new temporary consultants, Acting City Attorney Michelle Kenyon and Deputy City Attorney Judith Robbins voiced their opinion that changing from single family residential to multifamily residential was not a zoning /reclassification change because “residential is residential,” nor was going from commercial to mixed use a reclassification if only individual properties were allowed changes conducted under a Conditional Use Permit process.

Staff noted allowing parcel by parcel multifamily residential changes per a Conditional Use Permit process within Zone D Commercial or even single family zones did not constitute a reclassification of a zone because multifamily residential was being permitted on an individual property basis rather than by a total zone reclassification.

Black pointed to single family dwelling permitted within a zone as allowance for multifamily housing/apartments.  She said it was a way to increase housing density.  “All properties can be changed, and this applies to all uses,” according to Black.

The Planning Commission had requested different regulations,  such as setbacks and lot coverage, for the Civic Center and Grand Avenue areas. Black stated this could be done in the future without a reclassification, although the regulations would need to be approved in a future phase.  Immediate approval of the proposed zoning change, would not provide separate regulations for these two commercial areas.

Two members of the Council wanted the matter to go to voters.

During the November 18, meeting, Council members had various reactions to the proposed zoning change.  Council member Jeff Wieler felt the approach was “sliding down a slippery slope” and said,  “I think it should go to the voters, if it is changing the character of the City.” He noted zones have characteristics and citizens should be asked before changes are made.  He advocated a reserve fund for housing litigation to maintain his beloved Piedmont.  

Council member Garrett Keating likewise indicated he thought the change required a Piedmont vote under the reclassification section of the City Charter.

After questioning the staff, Council member Robert McBain deferred to staff recommendations and advice, but he wondered if people would ask, “How did this happen?”  Referring to future Council and Planning Commission review of projects, he noted people should not be concerned as the ordinance did not withdraw the processes for applications.

Mayor John Chiang accepted the staff proposal, as not making a zoning change.  Vice Mayor Margaret Fujioka was absent.

Use changes would be individually based property rights . 

Zone C is Piedmont’s multifamily zone. Under the proposal for Zone D Commercial, the multifamily zone would expand using an “individual” Conditional Use Permit.

City Administrator Geoff Grote stated that Conditional Use Permit changes in other zones permitting multifamily dwellings or commercial development, although possible would be “improbable.”  Acknowledging the State’s oversight of Piedmont’s zoning, he encouraged the Council to “fight the State on another occasion.”

Under recent laws and precedent, a Conditional Permit Permit is considered permanent running with the property and can only be revoked based on  permit violation.

Local architect John Malick urged the Council to act quickly to encourage commercial development. He had devised a survey showing how Lake Shore and Grand Avenues in Oakland and College Avenue in Berkeley had developed their streets to serve their communities. He felt combining commercial and multifamily could make projects financially feasible. 

See the following PCA article on the City Charter and voter’s rights.

http://www.piedmontcivic.org/2013/11/29/zoning-changes-what-are-piedmont-voter-rights/

– Piedmont appears headed for significant zoning changes without voter approval. – 

Consent Calendar approval of zoning changes –

After little public involvement, zoning changes have been placed on the Monday, December 2, Council Consent Agenda to approve zoning changes to take effect within weeks on January 1, 2014.  When items are placed on the Consent Agenda, public input is considered complete.

At its November 18, 2013 meeting, the City Council voted 4-0 (Councilmember Margaret Fujioka absent) to allow multifamily housing to be located in Piedmont’s commercial areas without voter approval as recommended by the Planning Department and Planning Commission through a Conditional Use Permit (CUP) rather than seeking approval by Piedmont voters, as specified in the City Charter.

City Charter requirements – 

The City Charter states that voters decide zoning changes under SECTION 9.02 ZONING SYSTEM:

“The City of Piedmont is primarily a residential city, and the City Council shall have power to establish a zoning system within the City as may in its judgement be most beneficial. The Council may classify and reclassify the zones established, but no existing zones shall be reduced or enlarged with respect to size or area, and no zones shall be reclassified without submitting the question to a vote at a general or special election. No zone shall be reduced or enlarged and no zones reclassified unless a majority of the voters voting upon the same shall vote in favor thereof; provided that any property owner which is zoned for uses other than or in addition to a single family dwelling may be voluntarily rezoned by the owners thereof filing a written document executed by all of the owners thereof under penalty of perjury stating that the only use on such property shall be a single-family dwelling, and such rezoning shall not require a vote of the electors as set forth above. ” City Charter .  Emphasis added.

The Charter defines zoning classifications by their uses.  A change of use by Conditional Use Permit or otherwise has been considered a reclassification based on the City Charter language. 

Piedmont’s 5 zones are described and classified as follows:

Zone A – Single family residential

Zone B – Public facilities (including parks)

Zone C – Multifamily density housing

Zone D – Commercial

Zone E – Single family residential estate

All Piedmont zones allow single family residential use,  including the public facilities and commercial zones.

Ballot Measure –

 An option for voter approval was not proposed by staff, yet to satisfy the Charter and the State, the City Council could place the matter on a ballot to change Zone D Commercial to mixed use/ apartment and businesses.  This option would adhere to the traditional interpretation of the Charter language.  Council members Wieler and Keating wanted the voters to decide the matter of zoning.

If the Council approves the zoning change, an interpretation and method of changing zones by CUP in all zones by the  City Council rather than voters will have been set.

At the Council meeting, two new, temporary consultants, Acting City Attorney Michelle Kenyon and Deputy City Attorney Judith Robbins, voiced their opinion that changing from single family residential (allowed in all zones) to multiple housing residential was not a zoning /reclassification change because “residential is residential,” nor was going from commercial to mixed use a reclassification, as each property would be considered individually.  CUP’s are considered permanent and run with the property.

The all “residential is residential” interpretation is a strong departure from historic interpretation and use characteristics of zones,  Charter language, and intent of language in the City Code and Charter.

Based on staff comments, all Piedmont zones (single family, public facilities – parks, and commercial) could be changed by the Council to multifamily residential or other uses without voter approval by using the Conditional Use Permit process.  

Staff report for December 2, 2013 City Council meeting.

Editors’ Note: The Piedmont Civic Association does not support or oppose specific ballot measures.  The Association does advocate for adherence to the Piedmont City Charter.  

The following is the City’s press release:

In a letter to the City Council and City Administrator dated November 19th, Recreation Director Mark Delventhal announced his retirement effective December 27, 2013.

Mr. Delventhal was appointed Recrecation Director by the City Council in May of 1983 and has served for over 30 years in this position. Prior to serving as Recreation Director, Mr. Delventhal served as a Recreation Supervisor and also as a part time employee for a total of fifteen
additional years with the department.

In the letter announcing his retirement, Mr. Delventhal expressed his gratitude to current and previous members of the City Council, the City Administrator, and City staff, especially those at the Recreation Department. On the topic of his years of service in Piedmont, Mr. Delventhal wrote, “… public service in Piedmont is not a job or a duty or a profession, it is a calling, a noble and caring endeavor.”

“The City of Piedmont has benefitted tremendously from Mr. Delventhal’s years as Recreation Director,” said City Administrator Geoffrey L. Grote. “The high quality programs put on over the years by the Recreation Department are a testament to Mark’s dedication to public service and to the residents of this City.”

For further information contact City Clerk John O. Tulloch at (510) 420-3040

What is our legacy?

– Counter to the City Charter, using a Conditional Use Permit process to add apartments rather than securing voter approval opens the door for zoning changes throughout Piedmont. –

At its meeting on Monday, November 18, the City Council will consider a proposal by the City Planning Department to make a significant zoning reclassification in the City without voter approval. 

The Piedmont City Charter, the backbone of Piedmont’s existence as a City, would be circumvented by allowing multifamily apartments in Commercial Zone D without voter approval. The zoning change by ordinance would provide a mechanism called a Conditional Use Permit (CUP) to allow the apartments.  All apartments granted a Conditional Use Permit in Zone D would be considered permanent.  The zone reclassification from Commercial to Mixed Use runs counter to the City Charter, which stipulates only voters can reclassify zones.  The Council approved General Plan and Housing Element language is relied upon by staff to preempt voter rights.

Why Piedmonters might be concerned? 

Rather than the voters deciding, the Council will have set in place an established mechanism and precedent that could allow uses in all Piedmont zones to be changed by Council amendment of the City Code. Public property, including parks and single family residential properties, could potentially be impacted by a simple code/ordinance change rather than the Charter required voter enactment.

The currently allowed uses in Zone D are commercial or single family residential. There is no property right to build multifamily apartments in the zone.   The City Charter states:

“The Council may classify and reclassify the zones established, but no existing zones shall be reduced or enlarged with respect to size or area, and no zones shall be reclassified without submitting the question to a vote at a general or special election. No zone shall be reduced or enlarged and no zones reclassified unless a majority of the voters voting upon the same shall vote in favor thereof;”  City Charter 

Recently, during hearings on constructing sports fields in Blair Park, some proponents including a council member threatened opponents of the project with low-income housing in the park if the sports complex failed. Under the CUP mechanism if established as precedent, the now restricted use of public property could be changed through the City code rather than by the voters in order to allow construction of an apartment complex in the park or on other public properties.

The same Charter bypass principle would apply to single family residential zones. By changing the zoning code and allowing apartment buildings per CUP in the residential zones, the Council would bypass the Charter and thwart voters’ right to decide.

Both the Planning Department staff and the City’s consultant expressed concern about taking the zoning change to the voters. 

The CUP process is an attempt to avoid a voter say in zoning changes knowing the addition of multiple family residential to the current single family residential requirement in the zone might not be approved by voters.

“The Charter requires a citywide vote for zoning map changes, which constrains the development of a variety of housing types, particularly high-density multi-family housing.” 

Miller further advises that, “… it is unlikely that voters would approve the rezoning of land from single-family to multi-family use.”  Barry Miller, Piedmont’s Zoning Consultant advised the City

An example of Piedmonters voting on Charter required issues is the February 2014 Election ballot measure on employee pension funding and borrowing money at currently reduced interest rates to pay down a part of the City’s pension obligation. The issue of the proposed zoning change, however, did not come up in time to be placed on the same ballot.

The staff proposal using the CUP process relies on Council approved plans rather than a Charter compliant public vote to achieve the goal of increased housing density in Piedmont, particularly for low income and affordable housing units.

Depending upon the conditions for allowing apartments in zone D commercial, Piedmont voters might not oppose a zoning change, despite the minimum density requirement of 12 dwelling units per net acre.  However, in a neighborhood such as the Civic Center already impacted with parking and traffic, apartments might be a concern.

If the City Council approves the zoning /code change, only legal action by property owners or voters could enforce the City Charter.

The zoning change scheduled as a first reading of 140 pages of alterations to Piedmont’s Chapter 17 of the City code presents a reading challenge to citizens and the Council.  To read the staff report and actual language in the ordinance go to:

http://www.ci.piedmont.ca.us/html/govern/staffreports/2013-11-18/712_1st.pdf

– All Piedmonters are invited on group bike tour –

At the City’s October 30 community workshop on walking and biking in Piedmont, interest was expressed in a bike tour of Piedmont’s conditions for bicyclists. An informal bicycle tour of Piedmont on Sunday, November 17 will give citizens a chance to evaluate several routes in our city.  The City’s consultant for the bike/pedestrian  plan, Niko Letunic, will be bicycling with the group to listen to citizen suggestions. Also bicycling with the group will be Dave Campbell, the advocacy director for the East Bay Bicycle Coalition and Tim Rood of the Piedmont CONNECT Green Transportation interest group.

On Tuesday, November 12, the Planning Commission will hold a hearing on conditions for pedestrians and cyclists in Piedmont. Citizens are encouraged to attend and express their needs and concerns about walking and biking in our City. The meeting starts at 5 p.m. in the City Hall Council Chambers (120 Vista Avenue).

Piedmont’s Pedestrian and Bicycle Master Plan (PBMP) consultant, Niko Letunic, has prepared a draft “existing conditions” paper, identifying and assessing most of Piedmont walking, public transit and bicycle routes.  The Piedmont Planning Commission will review the consultant’s work, provide direction and take additional input from the public.   Existing Conditions Draft Paper. Existing Conditions Draft Map.

Agenda item 4. PEDESTRIAN AND BICYCLE MASTER PLAN

The City’s consultant for the Pedestrian and Bicycle Master Plan (PBMB) will provide a summary of the needs assessment comments from the October 30, 2013 Community Workshop, a summary of the results to date of the on-line survey, and a report on the walk/bike audits at Piedmont schools as part of the Safe Routes to School component of the plan.  Additional comments from the public are welcome.

Take Piedmont’s online pedestrians and bicycles survey here for a chance to win a $25 gift certificate at Mulberry’s Market. 

The next phase of the PBMP will be the assessment of Piedmont’s walking and biking needs, challenges and opportunities.

The full November 12 Planning Commission agenda can be viewed here.

– Proposed changes in zoning to be considered by the City Council –

To increase low-income and affordable housing in Piedmont, apartments above businesses and smaller lot sizes have been proposed by the Planning Department.  The Planning Commission has made a recommendation to the City Council to approve changes in  Zone D Commercial and Zone A Single Family Residential.  

Uses in Zone D, the commercial zone, would change from business and single family residential to business, single family residential and multi-family apartments (Mixed Use).

The illustration provided by the planning staff in Zone D places multi-family apartment development above the Shell station at the corner of Wildwood and Grand Avenues. The ACE hardware store and nearby homes on Grand Avenue would fall into the newly reclassified zone permitting multi-family apartments above stores with a minimum density of 12 units per net acre.  The commercial properties in the Civic Center (the service station, two banks, and Mulberry’s Market) could likewise be developed with apartments above them.

– Voters or City Council authorized to make decisions on zone uses as proposed for the commercial Zone D ? –

Piedmont’s voter enacted City Charter states:

“The Council may classify and reclassify the zones established, but no existing zones shall be reduced or enlarged with respect to size or area, and no zones shall be reclassified without submitting the question to a vote at a general or special election. No zone shall be reduced or enlarged and no zones reclassified unless a majority of the voters voting upon the same shall vote in favor thereof;”

Former Piedmont Deputy City Attorney Linda C. Roodhouse noted:

June 7th, 2012

“I was the deputy City Attorney for Piedmont for many years and advised the planning department. I was also the City Attorney in Orinda for 11 years, until 2006. In both cities, I had a major role in the creation of new zoning codes. In Piedmont, the boundaries of a zone and the general land use within the zone are subject to voter approval. The City Council decides the specific rules and regulations within any zone, but the rules and regulations must be consistent with the charter description of authorized uses in a zone.”  Emphasis added

Barry Miller, Piedmont’s Zoning Consultant advised the City:

– Required lot size to be reduced in single family residential Zone A –

Properties in Zone A Single Family Residential could be entitled to lot size and street frontage reductions.  The proposal for the single family residential Zone A would allow lots to be reduced in size to 8,000 square feet and 60 foot street frontage from the current 10,000 square feet and 90 foot street frontage requirement.  Reductions would be determined by a lot averaging system based on lot dimensions within 500 feet of the subject property.  Historically, when appropriate, variances for lot sizes have been granted by the Planning Commission.

“Purposes: 1) to eliminate a perceived need to obtain a variance to build a single-family residence on a lot with fewer than 10,000 square feet; and 2) to remove unnecessary and archaic language” [referencing the notation of Charter requirements.] Planning staff explanation.

City Council member Keating recently wrote to PCA:

“First, changing the minimum lot size in a zone does not constitute rezoning, which would require a vote of the community. For example, Zone A is still residential although lots size requirements are being eliminated. And lot sizes are “archaic” as staff suggest – median lot size in Zone A is 6500 sq ft so most lots are below the 10,000 ft standard.”

– Environmental impacts not examined –

To implement the zoning change, the planning staff recommended and the Planning Commission approved a Negative Declaration as compliance with the California Environmental Quality Act (CEQA). The Negative Declaration relieves the City from further evaluation of any potential traffic, financial requirements, safety or other impacts of the proposed zoning changes. Although impacts can be examined, the Planning Commission did not undertake a detailed examination of potential impacts such as funding for services, infrastructure, traffic, safety, noise, etc.

 

“the proposed action to approve the amendments is exempt from CEQA because it can be seen with certainty that there is no possibility that the ordinance may have a significant effect on the environment, under CEQA Guidelines”  Kate Black, City Planner – October 14, 2013

Additional housing units such as apartments would not add to the School Support Tax base as parcels are taxed $2,406 per year regardless of the number of housing units.

The major principle of Piedmont zoning has been preservation of the single-family residential character of the City.

The Piedmont City Code states:

SEC. 17.3 ESTABLISHMENT OF ZONES
17.3.1: Purpose. It is the purpose of this Chapter to provide for specified zones and uses therein and to prescribe the character of construction within the City, in accordance with the City Charter. The zoning system of the City consists of two parts:
(a) The City Charter, which contains the zoning policy and requirements for voter approval of zone classification changes.
(b) Chapter 17 of the City Code. (Ord. No. 488 N.S., 10/87) 17.3.2: Intent, Establishment of Zones. In order to (1) maintain the City of Piedmont as primarily a single-family residential city, (2) to designate, regulate, and restrict the location and use of all buildings and land, (3) to promote the public interest, health, comfort, economy and convenience, and (4) to preserve the public peace, safety, morals, order, and the public welfare, the City of Piedmont is divided into five zones as follows…:

The matter is tentatively scheduled to be considered by the City Council in November.

Planning Staff report October 14, 2013

Planning Staff report of September 30, 2013 with ordinance language. 

Smart Phone App Rates Product Toxicity –

At a public event on breast cancer awareness, sponsored by the Piedmont League of Women Voters and Piedmont CONNECT on Monday, Oct. 28 at the Piedmont Center for the Arts, the audience learned the latest technique to find out what chemicals are in everyday products — from household cleaners to cosmetics —and how unsafe or safe they are for our health. A smart-phone app — “Think Dirty” — reads barcodes for more than 12,000 products, lists their ingredients and rates their toxicity on a scale of 1 to 10. Users can scan a product and immediately learn if it is “clean” or “dirty,” and if deemed “dirty,” find similar and safe alternatives.

Dr. Connie Engle, Science and Education Manager, and Nancy Buermeyer, Senior Policy Analyst, both from the San Francisco-based Breast Cancer Fund, discussed what everyone can do to prevent exposure to known carcinogens in our lives.   “We want to take action to prevent breast cancer,” said Dr. Engle, “not just wear pink ribbons. Through legislation, advocacy and education, we want to eliminate or reduce exposure to harmful chemicals in our environment that contribute to breast cancer.”

On a “virtual tour” through a typical household, Dr. Engle pointed out the toxics in our kitchens, living rooms, bathrooms and personal care products and recommended alternative products. In the kitchen, she said bisphenol A (BPA) is found in food can linings and polycarbonates in plastic.  Her recommendations: use only glass or ceramic containers in microwaves, never plastic; eat organic and/or locally grown foods; buy cleaning products that disclose their ingredients or make your own with baking soda, castile soap and vinegar; use stainless steel or cast iron pots.

In the living room and bedroom, flame retardant chemicals known to cause cancer are being phased out, but unfortunately, she said are being replaced by products that are equally harmful. She recommended natural materials, such as wool or cotton. For personal care products, she said there is a bill in Congress to phase out the worst ingredients, but she recommended “go simple,” use the fewest ingredients possible and avoid synthetic fragrances.  She also pointed out the potential risks of radiation from medical and dental procedures and recommended asking your doctor/dentist about the need for each test they suggest.

Nancy Buermeyer, who spends much of her time in Washington, DC and recently testified before the Senate Environment & Public Works Committee, noted that chemicals in the U.S. are either not regulated at all or are regulated by a “hodgepodge of agencies.”   While there has been a 40 percent increase in breast cancer in a generation, she said the 1976 Toxic Substance Control Act  (TSCA) has not been updated in 37 years, and 62,000 out of 84,000 chemicals are not regulated at all. There is public pressure to amend TSCA, she said, as 28 states want it amended, and large retailers, such as Walmart and Target, are taking action to list ingredients on their products and to score their safety.  Unfortunately, she said, a proposed federal law to replace TSCA, the Chemical Safety Improvement Act, is worse than the existing law.

What You Can Do  

According to both speakers:

• use your buying power (try the “Think Dirty” phone app)

• engage locally to educate others, support needed legislation, and talk to decision makers

• make sure schools do not use pesticides.

Dr. Engle concluded, “Scientific studies of health impacts of chemicals can take 30 to 50 years.  So if it looks like a carcinogen or an endocrine disrupter, it probably is a carcinogen or endocrine disrupter, and you shouldn’t use it.”

For more information, visit the www.breastcancerfund.org website.