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Appendix
Appendix available as a supplemental file at www.jtlu.org/index.php/jtlu/rt/suppFiles/1405/0.

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International Journal of
Environmental Research
and Public Health
Review
Impacts of Autonomous Vehicles on Greenhouse Gas
Emissions—Positive or Negative?
Moneim Massar 1, Imran Reza 1
, Syed Masiur Rahman 2,*
, Sheikh Muhammad Habib Abdullah 3
,
Arshad Jamal 1
and Fahad Saleh Al-Ismail 2,4,5
/gid00030/gid00035/gid00032/gid00030/gid00038/gid00001/gid00033/gid00042/gid00045/gid00001 /gid00048/gid00043/gid00031/gid00028/gid00047/gid00032/gid00046 Citation: Massar, M.; Reza, I.;
Rahman, S.M.; Abdullah, S.M.H.;
Jamal, A.; Al-Ismail, F.S. Impacts of
Autonomous Vehicles on Greenhouse
Gas Emissions—Positive or
Negative?. Int. J. Environ. Res. Public
Health 2021, 18, 5567.
https://doi.org/10.3390/ijerph18115567
Academic Editor: Farooq Sher
Received: 9 March 2021
Accepted: 29 April 2021
Published: 23 May 2021
Publisher’s Note: MDPI stays neutral
with regard to jurisdictional claims in
published maps and institutional affil-
iations.

Copyright: © 2021 by the authors.

Licensee MDPI, Basel, Switzerland.

This article is an open access article
distributed under the terms and
conditions of the Creative Commons
Attribution (CC BY) license (https://
creativecommons.org/licenses/by/

4.0/).
1 Department of Civil & Environmental Engineering, College of Engineering and Applied Engineering, King Fahd University of Petroleum & Minerals, Dhahran 31261, Saudi Arabia; [email protected] (M.M.); [email protected] (I.R.); [email protected] (A.J.) 2 Center for Environment & Water, Research Institute, King Fahd University of Petroleum & Minerals, Dhahran 31261, Saudi Arabia; [email protected]
3 Department of Civil Engineering, Bangladesh University of Engineering & Technology, Dhaka 1000, Bangladesh; [email protected]
4 K.A. CARE Energy Research and Innovation Center (ERIC), King Fahd University of Petroleum & Minerals, Dhahran 31261, Saudi Arabia
5 Department of Electrical Engineering, King Fahd University of Petroleum & Minerals, Dhahran 31261, Saudi Arabia
* Correspondence: [email protected]; Tel.: +966-13-860-2991 Abstract:

The potential effects of autonomous vehicles (AVs) on greenhouse gas (GHG) emissions are uncertain, although numerous studies have been conducted to evaluate the impact. This paper aims to synthesize and review all the literature regarding the topic in a systematic manner to eliminate the bias and provide an overall insight, while incorporating some statistical analysis to provide an interval estimate of these studies. This paper addressed the effect of the positive and negative impacts reported in the literature in two categories of AVs: partial automation and full automation.

The positive impacts represented in AVs’ possibility to reduce GHG emission can be attributed to some factors, including eco-driving, eco traffic signal, platooning, and less hunting for parking. The increase in vehicle mile travel (VMT) due to (i) modal shift to AVs by captive passengers, including elderly and disabled people and (ii) easier travel compared to other modes will contribute to raising the GHG emissions. The result shows that eco-driving and platooning have the most significant contribution to reducing GHG emissions by 35%. On the other side, easier travel and faster travel significantly contribute to the increase of GHG emissions by 41.24%. Study findings reveal that the positive emission changes may not be realized at a lower AV penetration rate, where the maximum emission reduction might take place within 60–80% of AV penetration into the network.

Keywords: autonomous vehicle; GHG; emission; COVID-19; CLD; energy consumption; VMT

1. Introduction
According to the United Nations Framework on Climate Change Convention, the transportation sector was responsible for 27% of US greenhouse gas (GHG) emissions in 2010 [1]. GHGs are one of the leading causes of the greenhouse effect worldwide [2]. They serve as artificial heat-trapping agents within the earth’s atmosphere. From the perspective of road transportation, fuel sources such as diesel, natural gas, and gasoline produce different GHGs in the form of byproducts. Gaseous emissions resulting from burning these energy sources include methane (CH 4), carbon dioxide (CO 2) and nitrous oxide (N 2O), which can last in the planet’s atmosphere for several decades, causing continuous global warming [3]. These unregulated GHGs emissions disturb the natural gas cycles governing the planet and pose a significant threat to various flora and fauna types [4]. In European countries, the transport sector was responsible for 30.5% of GHG emissions and 12% con- tribution of GHG emissions from road transport in 2014 [ 5]. Another study conducted Int. J. Environ. Res. Public Health 2021, 18, 5567. https://doi.org/10.3390/ijerph18115567 https://www.mdpi.com/journal/ijerph

Int. J. Environ. Res. Public Health 2021, 18, 5567 2 of 23 in China by Liu et al. predicted that the transport sector alone would account for 84.7% GHG emission by the year 2040 [ 6]. Rising concerns about the negative environmental externalities of road transportation activity and development have urged governments worldwide to assess transportation projects’ environmental impacts before implemen- tation. The modern automobile industry trend is to move towards the development of autonomous cars [7]. Multiple considerations are driving this change, including but not limited to improved safety, greater productivity, less fuel consumption and reduced traffic congestion [8,9]. Autonomous vehicles (AVs), also known as driverless or self-driving vehicles, are those vehicles that can operate without driver control the steering, accelerate or brake; the automation ranges from 0: no automation to 5: fully automated [10].

Existing literature on connected and autonomous vehicles mostly addresses their potential impact on the likelihood of traffic safety, travel behavior and congestion, as well as energy use. The effects of partially to fully automated vehicles on traffic performance and greenhouse gas emissions are still obscure. There are many uncertainties prevailing around the actual operation of fully automated vehicles. The Information Handling Services (IHS) Automotive experts reported that it is expected to happen by 2030. HIS estimates also suggest that globally the number of fully automated vehicles (AVs) in operation will be around 21 million in 2035 [
11]. Another study reported that connected vehicles would strike the 250 million mark by 2020 [12]; a quarter of a billion cars in operation. A previous study also predicted that fully AVs be offered for auction before 2020 [13]. A projection is that AVs will dominate 20–40% of vehicle market share by 2030; however, it is believed that full-scale transition to AVs is likely to happen in stages over the coming few decades [14].

AVs are mainly equipped with contemporary car technologies, allowing computers to help in various driving operations and reduce human involvement to varying degrees.

With rapid advances in communication, autonomous, and car technologies that have far- reaching effects on the transportation sector, it is critical to understand these technologies’ role in achieving sustainable urban mobility goals. This involves the safe and smooth operation of people and goods movement in an environmentally friendly manner. The carbon emission rate from each transport mode is significantly influenced by an array of factors, like the type of fuel, vehicle type, and age, etc. Many studies investigated the impacts of the widespread adoption of AV technology [
15,16]. The impacts considered
air pollutants, including GHG emissions. AVs’ introduction may contribute to increased ridesharing, traffic flow smoothing, platooning, efficient driving, efficient routing, eco traffic signal, and less hunting for parking [
17–21]. As a result, the energy consumption
will be less, contributing to the reduction of GHG emissions. A number of previous studies have investigated the role of AVs in improving transport sustainability by compressing energy use and GHG emissions. For example, one such estimation for the full automation developed by Wadud et al. considering the shared-vehicle scenario was based on the “Strong Responses” [ 22]. According to this concept, the maximum energy savings through car-sharing, eco-driving, right-sizing, and platooning are wholly neutralized by maximum energy increases from new user groups and higher speeds. In their study, Greenblatt and Shaheen explored the GHG reduction benefits of driverless taxis in the US and claimed that the deployment of each such taxi in the country would cause than 87–94% fewer emissions per vehicle-km trip by the year 2030 [
23]. The authors also stated that each
deployed driverless taxi in the same year would also cause a 63–82% reduction in GHG emissions than traditional fuel-driven and hybrid electric vehicles. Such reduction would primarily result from variations in three aspects: higher vehicle-km/vehicle/per-year increased fuel efficiency due to re-designed lighter/smaller vehicle sizes, less air friction, and reductions in GHG emissions through electricity consumption. On the other hand, AV may generate increased trips due to faster and more comfortable driving and new trips by captive passengers, such as elderly and disabled individuals [24].

Tomás et al. investigated the GHG implications of three different AV penetration rates (10, 20, and 30%) along an urban freeway corridor in the city of Porto, Portugal [25]. Au- thors used vehicle-specific power (VSP) and EEA-33 (environmental emergencies member

Int. J. Environ. Res. Public Health 2021, 18, 5567 3 of 23 countries) methodologies coupled with the VISSIM traffic model. It was noted that AVs yielded statistically low emission benefits at the corridor level at penetration rates less than 30%. In their study, Stasinopoulos et al. adopted a system dynamics approach and developed a stock and flow model to examine the GHG impacts of vehicle automation in various scenarios [
26]. The study reported that emissions benefits of the transition to AVs might be negated by the inefficient use of AVs and induced demand. In another study, Wang et al. compared the fuel-cycle GHG emissions of AVs and vehicle electrification using an activity-based travel demand model for the Hamilton and Greater area [27]. It was concluded that full-scale induction of AVs would result in higher vehicle kilometers traveled, and hence, more GHG emissions are expected (2.5%). On the other hand, vehicle electrification may reduce vehicle emission intensities by approximately 11% and regional GHG emissions by over 5%. Hong and Zimmerman predicted that AVs can reduce GHG emissions by 20% compared to no-AV conditions in the year 2040, even under the worst- case scenario if vehicle automation provoked increased personal use with 85% vehicle fleet electrification [
28]. A study conducted by Liu et al. also suggested that high AVs penetration rates in the long-term (by the year 2045) under optimistic scenarios will lead to a net reduction of GHG emissions [29].

This paper develops a landscape of multi-faceted issues related to GHG emissions from AV adoption at different levels by reviewing, synthesizing, analyzing, and comparing contrast research studies. While comparing the GHG emissions from AVs to its counterpart, fossil fuel vehicles (FFV) may have different attribute levels (e.g., gasoline-powered, eclectic, hydrogen-powered), this review study is only limited to the realm that both AVs and FFVs are only operated on fossil fuels. The study provides a causality analysis of GHG emissions from AVs from a holistic point of view. The primary objective of using a causal loop diagram (CLD) in our study is to understand the factors that can critically affect how the adoption of AVs may bring energy and GHG emission benefits to the transportation sector. CLD is used to see how these factors interact and influence the emission benefits of adopting AVs in the transport industry. Another section addressed the dynamics of GHG emissions during a global pandemic, focusing on travel behavior and how the individual vehicle ownership model may change in favor of adopting AVs.

The remainder of this paper is structured as below. Section 2 provides an overview of the study methodology. Section 3 presents a description of the causes of GHG reduction by AVs, while the possible causes of the increase of GHG emission by adopting AVs are discussed in Section 4. Section 5 illustrates the changes in GHG emission at different AV penetration levels. Section 6 covers a discussion of the relationship between energy consumption and GHG emission; two sub-sections of Section 6 shed light on the causal loops of GHG emission from AVs from a system perspective and changed travel behavior during a global pandemic, respectively. Finally, Section7 summarizes the study findings with concluding remarks.

2. Methodology
The systematic review has a formal protocol describing the strategy proposed for conducting the examination, identifying questions and methods employed to carry out the analysis [30]. The review process used in this study comprises three steps:

1. Planning: Defining the research issue, setting the criteria, identifying the limitation and development of the overall protocol.

2. Execution: Selection of research in database, categorizing useful references and bibli- ography, abstract of published manuscript.

3. Analysis: Summarizing the selected articles and classifying it to fit the proposed protocol.

Various guidelines could manifest a systematic literature review. One of the popular methods is demonstrated by Kitchenham and Charters, a process that entails a number of tasks, including establishing a review protocol, identifying and selecting primary studies, extracting and synthesizing data, and finally, reporting study findings [31]. This paper focused on a systematic keyword search in the topic section of literature databases from

Int. J. Environ. Res. Public Health 2021, 18, 5567 4 of 23 disparate sources and repositories. The articles were searched for based on specific terms such as “autonomous vehicles,”; “self-driving car,” and “driverless car” appeared in the title, keywords, and abstract in the journal database. However, care was taken to single out the articles which were not focused on autonomous driving related to extensive appli- cations, testing, and research in robotics, underwater vehicles, unmanned aerial vehicles, etc. The effects of AV-generated GHG emissions are explicitly investigated to achieve an overall classification to identify current gaps in the scientific literature in the realm of AV- related publications for roads, traffic studies related to commuting. The year of publication timeline and number of citations were taken out of the equation in selecting the articles to maximize the number for consideration. Articles found in different databases were also identified for eliminating duplication. The flowchart presented ( Figure 1) illustrates the methodology deployed in this study.

Figure 1. Methodology plan.

Int. J. Environ. Res. Public Health 2021, 18, 5567 5 of 23

3. Causes of Reduction in GHG Emissions
This section provides a brief explanation of potential factors that are expected to reduce lower GHG emissions due to vehicle automation. Two types of vehicle automation strategies are considered, i.e., partial automation and full automation.

3.1. Easy Parking
Guccione and Holland identified that drivers looking for parking are responsible for about one-third of traffic in the city [32]. From the fuel efficiency point of view, a vehicle searching for parking leads to a double threat. Being on the road consumes extra fuel for itself; the additional traffic makes the other vehicle suffer by staying more on-road and ending up using undue fuel. Roadside parking maneuver also has an important share in cities carbon emission system [33]. Shoup added to the literature with an estimation of 2–11% of total emission in a CBD being caused by parking hunt [34]. Easy parking refers to parking spaces’ availability through communication technologies that allow vehicles and infrastructure to exchange information, resulting in accurate parking information. In another study, Brown et al. estimated up to 5% of emissions in an average passenger car is attributed to the search for parking. Fully automated vehicles can achieve a 5–11% emission reduction from reduced circulation for parking in the cities [35]. Moriarty and Wang also estimated that parking space could be drastically reduced, and vehicles searching for parking could be cut down by 80% with shared ownership of AVs [ 10]. During peak traffic hours when congestion is high and off-peak travel periods, when most parking spaces may be occupied, the same reduction may occur. Partially automated vehicles would also minimize emissions due to improved ability to locate available parking spaces correctly; however, the projected savings could be lower, considering the lack of automatic implementation. In general, the easy parking feature of vehicle automation is expected to reduce GHG emissions depending upon various other factors, due to minimum vehicle idling and searching for suitable parking locations.

3.2. Eco-Driving
Eco-driving refers to efficient driving through maximizing speed and acceleration operating profiles. Eco-driving is often referred to as “Hypermiling,” and is nothing but a set of driving skills practiced by enthusiastic drivers to push the fuel economy’s limit by minimizing braking-acceleration cycles, as braking causes a waste of energy [ 15,36].

CAV technologies have the ability to leverage and extend such efficient driving benefits by enabling vehicles to incorporate eco-driving automatically. CAVs can coordinate with other vehicles with smarter communication capability to make integrated driving decisions that would optimize overall traffic flow conditions and support the entire driving platoon. Barth and Boriboonsoms deployed a traffic simulation model to determine the emission effects of coordinated eco-driving [15]. The coordinated eco-driving system takes advantage of a virtual traffic management center to monitor vehicles’ speed and acceleration characteristics.

They simulated a mixed fleet of vehicles on Southern California highways and estimated that carbon dioxide emissions reduction within a range of 10–20% could be achieved by eco- driving on congested highways. However, it has been noted that the reduction of emission starts to disappear as traffic approaches free flow. In a similar study, Barth demonstrated that a coordinated eco-driving system would minimize emissions by 5–10% in heavily congested road traffic [15]. Li and Gao conducted a series of micro-simulation modeling studies to investigate speed synchronization impacts in a connected environment [ 37].

Their primary objective was to establish an optimal control strategy to optimize fleet-level average fuel economy in a connected vehicle environment. The findings suggested that reducing 10% of GHG emissions could be achieved in such an arrangement.

Two research projects conducted at the Virginia Tech Transportation Institute esti- mated potential emissions impacts of vehicle-to-vehicle (V2V) communication and coordi- nation [19,38]. The proposed method involved complex optimization models integrating road-characteristics, information of the lead vehicle, vehicle acceleration portfolio, and

Int. J. Environ. Res. Public Health 2021, 18, 5567 6 of 23 microscopic fuel consumption models to produce a fuel optimal speed profile for vehicles in the network. Optimal driving cycles may reduce energy consumption by 35–50% under oversaturated conditions if these conditions exist at all in reality [ 39]. It is well known that frequent stops and accelerations/decelerations operations contribute to significant fuel consumption. The eco-driving attribute of AVs facilitates smooth vehicle navigation through the network, due to smart communication with other vehicles, as well as highway infrastructure, which in turn lowers the GHG emissions.

3.3. Eco Traffic Signal
AVs can communicate with infrastructure on their own, particularly with traffic sig- nals at intersections. This communication offers information to vehicles, which helps them change their driving pattern, thereby minimizing the number of stops at the intersection referred to as the eco traffic signal system. Li and Gao investigated optimal signal control strategies for fuel economy in a connected vehicle environment and showed that gaso- line vehicles could achieve 10% emission reduction via such strategies [ 37]. Rakha et al. estimated potential emission impacts of vehicle-to-vehicle communication and signal co- ordination, and it turned out to be 8–23% emission savings depending on the vehicles’ traveling attributes [19,40].

The potential to reduce fuel consumption and GHG emission at the intersection is very high, as vehicles traveling near intersections at lower speeds tend to consume more fuel [41]. Yelchuru and Waller adopted micro-simulation models to estimate vehicle emissions under connected eco-traffic signal timing and the associated optimal signal timing plans [42]. According to the study, under a fully connected protocol, 2–6% emission reduction can be achieved in an average passenger vehicle. Zimmerman et al. compared traffic patterns before and after a user information system was introduced at different signalized intersections in Phoenix, Arizona [43]. The empirical data reported that the delay was reduced by 6.2%, resulting in a 1.8% emission reduction using vehicle speed profile and energy consumption correlation. As mentioned, signalized intersections in urban areas have the huge potential to reduce GHG emissions at the network level. AVs are equipped with different sophisticated sensors for communication with roadway surroundings that can guide the drivers/vehicles to adjust the driving patterns, minimize stops and speed variance. All these factors will reduce fuel consumption and hence vehicular emissions.

3.4. Collision Avoidance
Human error accounts for more than 90% of accidents [44,45]. Collision avoidance systems in AVs are designed to provide necessary information ahead of time to the vehicle by means of well-designed vehicle mount sensors to avoid collisions. The sensors track nearby vehicles and objects to warn the system of preemptive maneuvers. In addition to the obvious individual advantages of accident avoidance, the system provides collective fuel- saving and environmental benefits by eliminating the chance of traffic congestion that might have arisen at a vehicle crash scene. According to Schrank et al., nationwide, 1.9% of GHG emission by the light duty vehicle (LDV) fleet was produced, due to the traffic congestion created at the accident spot [ 46]. Najm et al. integrated forward collision warning and adaptive cruise control functions to develop the ACAS for LDV applications [ 47]. The development of ACAS was based on an operational field test of 10 vehicle fleets driven by 66 drivers among diverse age and gender groups. The ACAS system has the potential to prevent about 10% of all rear-end crashes, which is expected to bring some indirect emission benefits. The collision avoidance attribute of both partial and full automation will reduce the GHG emissions, by preventing and minimizing jams and traffic congestion causing traffic accidents.

3.5. Platooning
The vehicle platooning concept refers to the practice of multiple vehicles trailing closely enough to minimize aerodynamic drag to save energy and reduce vehicle emissions.

Int. J. Environ. Res. Public Health 2021, 18, 5567 7 of 23 Vehicle platooning can be safely and successfully implemented by leveraging automation and connectivity technologies. This strategy is particularly attractive considering that a significant portion of fuel consumption is attributed to confronting aerodynamic resistance while driving. Kasseris estimated that aerodynamic drag accounted for 50–75% of the tractive energy requirements for driving on a highway [48]. The shape of the vehicles in the convoy, distance headway, and order of the vehicles are the variables responsible for drag reduction in platooning. Since platooning advantage is more applicable to the vehicles in the middle of the pack, average fuel saving increases with the number of vehicles in the platoon. For two sedan cars running 1 m apart, the average reduction in drag has been estimated to be 10% [49]. Drag reductions ranging from 20% to 60% have been reported for platoons consisting of mixed vehicle types [50,51]. For a 3-truck platoon of freight trucks, Tsugawa has reported a 10% reduction in energy consumption at 80 km/h, with a 20 m gap between trucks; the reduction could reach up to 15% at 5 m gap [52]. The assumption that 50% tractive energy is used to overcome drag resistance could be combined to the advantage of vehicle platooning, which may yield an overwhelming 22.5–27.5% emission reduction. Zabat et al. also examined the potential of emission reduction in vehicle platooning through experiments done in a series of wind tunnels, along with numeric simulations using a passenger van [53]. They found that the average emission reduction per vehicle ranges from 10% to 30%, depending on the vehicles’ space in the platoon, number of vehicles, and other variables. Another study confirmed that when 15 vehicles are driving 6–8 m apart, they may achieve optimum fuel saving in the platoon, however, such a gap is extremely unsafe for conventional human-driven cars, but entirely within the capacities of autonomous vehicles [54]. It may be argued from the present literature that AVs vehicle platooning will lead to lower GHG transport emissions, primarily due to drag reduction and lower speed fluctuations.

3.6. Vehicle Right-Sizing
Automation technologies have the potential to scale down the size of automobiles without compromising safety [22]. A significant improvement in fuel efficiency could be achieved by vehicle downsizing. The LDVs are designed to run on US roads with the least capacity of holding four passengers [22,55]. However, the average occupancy of these LDVs is only 1.67 in 2009 [56]. Once individual trip requirements are fulfilled, vehicle right-sizing can significantly reduce the average energy intensity. The vehicle size appropriation works best when it is coupled with car-sharing or carpooling. A fleet of shared AVs could easily supply the right-sized vehicle to meet passenger demand and discourage over-designed cars from being under-used [57]. MacKenzie et al. tested multiple conflicting influences on vehicle weight in terms of technological changes and functional improvement [ 58].

They indicated that progress in energy efficiency technology had been counterbalanced by increasing vehicle size and vehicle content. In particular, their study revealed that, for an average 2011 model car in the U.S., the safety-related features accounted for a total of

7.7% of the car’s weight, and dislodging them could result in a 5.5% reduction in emission.

In general, a reduction of 20% in vehicular weight is attributed to a 20% increase in fuel efficiency [59]. The engine power required and amount of fuel consumed during a trip are proportional to the size of a vehicle. With AVs technologies in practice, manufacturers can scale down the vehicle sizes, leading to substantial energy and GHG emission benefits.

3.7. Congestion Mitigation and Efficient Routing
As intermittent traffic experiences frequent stop-and-go and idling conditions, a car driving through heavy traffic will use more fuel, thus emitting more GHG than uncongested traffic. AVs will have the ability to coordinate with other vehicles and infrastructures (V2V and V2I) at the intersection, to improve the traffic flow and reduce the crash frequency that will result in less energy use and less GHG emission [ 22]. Bigazzi and Clifton’s study indicated that internal combustion engines (ICEs) fail to maintain fuel efficiency in slow-moving traffic at a speed of 30 miles per hour or lower [60]. In contrast, Gas electric

Int. J. Environ. Res. Public Health 2021, 18, 5567 8 of 23 hybrid vehicles are less sensitive to speed variations and retain fuel efficiency roughly at 20 mph. Though vehicles with different powertrain respond differently to congestion, an AV essentially powered by electricity has a higher potential of reducing GHS.

V2I technology available in AVs could also reroute cars within the road network in case of an unexpected influx of traffic into the grid network generated from a sports/entertainment event [61]. A fully developed city’s infrastructure is capable of receiving data from vehicles, anticipating traffic flows, and route vehicles with preference and faster routes given to emergency responders and school buses most efficiently [62]. Smart vehicle communication characteristics of AVs can give early warnings of traffic incidents and unanticipated traffic ahead. This will allow the vehicles to take optimal routes and smoothly flow through the network, and hence lower GHG emissions are released into the atmosphere.

3.8. Carpooling
The occupancy rate is a key factor for GHG emissions associated with existing car travel. Fewer passengers per vehicle will result in more vehicles running on the road than required, and this will result in emissions increasing by several folds. For instance, only 11% of Americans carpool to work, and a staggering average of 113.6 million people make solo trips to and from work daily [63]. AVs have the potential to emerge as a new paradigm of business model to leverage the benefit of ridesharing, which would bring about a modal shift from individually owned vehicles to shared mobility services. Such changes are expected to reduce transportation GHGs significantly. AVs will also provide the option of carpooling and ridesharing that can lower GHGs emissions by reducing the auto-ownership, and travel through other less convenient transport modes.

3.9. Traffic Law Adherence
Iglinksi and Babiak believe that autonomous vehicles will more strictly adhere to traffic laws as compared to the human driver, due to their integrated onboard programming logic [64]. AVs will be more likely to travel at posted speed limits designed to cater to optimal fuel efficiency, reducing GHGs considerably. Similarly, AVs will also strictly comply with traffic signals and thus reducing the nuisance and congestion created by human traffic.

GHG reduction at different levels of vehicle automation reported in the literature are listed in Table 1.

Table 1. Reduction of GHG emission at different levels of vehicle automation.

Study Level of Automation Cause of Reduction in GHG Results Condition Stephens (2016) [17]
Partial Automation
Driver profile and Traffic flow
calming
0–10%
0–5%
During peak hours
During non-peak hours
Full Automation 10–21%
5–11%
During peak hours
During non-peak hours
Barth and Boriboonsomsin
(2009) [15]
Full Automation Eco-driving
10–20%
nearly 0%
Congested highway traffic.

Free flow
Xia et al. (2013) [65] 5–10% Under congested city traffic Li and Gao (2013) [37] 10% Under congested city traffic
Rakha (2012) [40] 8–23% Under different speed, congestion level and design characteristics
Yelchuru (2014) [42]
Partial automation Eco-traffic signal timing
V2i/i2v communication

1.8–2% City driving
Full Automation 2–6% City driving
Schrank et al. (2012) [46] Partial Automation
Collision avoidance
0–0.95%
City driving
Stephens (2016) [17] Full Automation 0–1.9%

Int. J. Environ. Res. Public Health 2021, 18, 5567 9 of 23 Table 1. Cont.

Study Level of Automation Cause of Reduction in GHG Results Condition Stephens (2016) [17] Partial Automation
Platooning
0–12.5% During peak hours
Schito (2012) [50]
Full Automation

12.5–25% During non-peak hours

22.5–27.5% During non-peak hours
Zabat et al. (1995) [53]
10% to 30% During peak hours
20–25% During non-peak hours
Wadud et al. (2016) [22] 3% to 25% During non-peak hours Wadud et al. (2016) [22]
Full Automation Vehicle/powertrain resizing
45%– No condition mentioned
Burns et al. (2013) [66] roughly 50%
Shoup (2006) [34] Full Automation
Less Hunting for Parking
2–11%
During city drivingBrown et al. (2014) [35] Full Automation 5–11% Barth (2009) [15] Partial Automation 2–5%
Brown et al. (2014) [35] Full Automation Increase in Ridesharing Roughly 12% During city driving Stephens (2016) [17]
Partial Automation
Faster travel
0–10% During peak hours
Full Automation 10–40% During non-peak hours
Haan et al. (2007) [67] Full Automation 20–40% During non-peak hours Brown et al. (2014) [35]
Full Automation 0–40% During non-peak hours
Partial Automation 0–10% During non-peak hours
Stephens (2016) [17] Partial Automation
Easier travel
4–13% No condition mentioned
Stephens (2016) [17] Full Automation 30–156% Living farther Childress et al. (2015) [68] Full Automation 3.6–19.6% Capacity will increase and value of travel time cost will reduce
Gucwa (2014) [69] Partial Automation 4–8%
Living farther
Brown et al. (2014) [35] Full Automation 50%
MacKenzie et al.
(2014) [58] Partial Automation 4–13%
Stephens (2016) [17] Full Automation Increased Travel by Underserved Populations 2–40%
Elderly and disabled would
travel as much as drivers
without medical conditions
MacKenzie et al.
(2014) [58] Partial Automation
Mode Shift from Walking,
Transit and Regional Air
2–10%
No condition mentionedHarper et al. (2016) [70] Partial Automation Up to 12% Brown et al. (2014) [35] Full Automation Up to 40%
Fagnant and Kockelman
(2014) [71] Full Automation Increased empty
miles travelled 5% to 11% On city driving

4. Causes of Increase in GHG Emissions
This section reviews some of the predominant factors that may increase GHG emis- sions due to vehicle automation. The impact of two-vehicle automation strategies, i.e., partial automation and full automation, will be discussed.

4.1. Easier Travel
Easier travel involves reaching destinations more quickly due to capacity increases and fewer crashes, and lower travel costs. Travel may be faster and more reliable if crashes and congestion are reduced, and travel demand may increase. Capacity would effectively increase by less congestion and fewer crash delays, which could also trigger increased travel.

Using activity-based travel model-generated scenarios, Childress et al. analyzed possible changes in travel patterns in the Puget Sound region [68]. These evaluated scenarios were comprised of a 30% increase in roadway capacity, resulting in a 3.6% increase in emissions, and a 35% reduction for the highest-income households in the perceived value of travel

Int. J. Environ. Res. Public Health 2021, 18, 5567 10 of 23 time cost. In a different scenario, assuming everyone owned an automated vehicle (no shared one), which resulted in a 30% increase in roadway capacity and 50% less parking costs, along with a 19.6% increase in emissions. People may be more likely to drive in automated vehicles under congested conditions. Easier travel means that more and more people will be attracted to use AVs, especially during traffic congestion situations. Greater demand and increase in road capacity will ultimately lead to increased vehicular emissions.

4.2. Faster Travel
CAVs will be able to navigate and respond more quickly than human drivers with the state-of-the-art communication technology available onboard; it follows that AVs will be able to ride more safely at higher speeds than human drivers. AVs are expected to leverage V2V and V2I networks that communicate charted courses seamlessly to raise the speed limits on freeways [62]. To ensure a safe driving environment that accounts for operator reaction time, vehicle design, and road limitations, speed limits were initially imposed in the US, later changed at the federal level to minimize fuel consumption [ 32].

Therefore, an increase in fuel consumption is expected for increasing speed limits across the country due to AVs [ 22]. Considering driver’s value of time analysis, Wadud et al. analyzed the possible repercussions of increased highway travel speeds due to automa- tion technologies [
22]. A typical car’s speed-fuel consumption relationship was used to conclude that GHG emission of the highway could increase by 20–40% [72]. According to Brown et al., the increase in highway fuel use could be as high as 40% or more as a result of faster travel [73]. Brown et al. focused on travelers’ time budgets based on Schafer et al.’s observation that different societies display the same willingness to travel [ 35,74]. They hypothesized that if people could travel faster, they might prefer to live further away from their regular destinations, only to promote urban sprawl. Ultimately, this might trigger a possible increase in emissions by 50%. The onboard vehicle communication and sensing technologies of AVs will require a higher posted speed limit at the network level. It is established that faster travel is accompanied by greater fuel consumption, and hence the rate of GHG emissions.

4.3. Increased Travel by Underserved Populations
Although access to mobility services to the disabled and people at dotage rendered by the AVs seems beneficial for society, it is likely to increase overall VMT. Due to the lack of adequate data on why some population groups travel less than others, it is difficult to forecast future travel patterns of those who are currently underserved. MacKenzie et al. observed from the 2014 National Household Travel Survey data that VMT for adults over 62 years old is much lower than the 42 years old group [ 58]. Fully automated vehicles could fulfill this travel demand. They estimated that increased travel could raise emissions by 2–10%. Harper et al. assumed that non-drivers would travel as much as drivers in each age group aged between 19–64; drivers with medical conditions are also expected to have similar travel patterns as drivers without medical conditions within each age group [
70]. Dividing the sample population into three distinct groups of non-drivers 19 and older, elderly drivers without a medical condition, and drivers 19 and older with a medical condition, it was estimated that the underserved could increase emissions up to 12% by using fully automated vehicles. Examining data from the 2009 NHTS and the 2003 Bureau of Transportation Statistics publication “Freedom to Travel,” Brown et al. estimated a 40% increase in GHG emission, If all age segments traveled close to the top decile in each segment [35]. The fact that AVs can be used by non-drivers, people without driving licenses or people with special needs will increase the road user population and hence the daily number of vehicle trips. However, although it may have several positive prospects, GHGs are expected to increase.

Int. J. Environ. Res. Public Health 2021, 18, 5567 11 of 23

4.4. Mode Shift
The theory of travel behavior implies that the preference to use one mode over another is influenced by several variables, including, but not limited to, socio-economic status, age, gas price, urban form, and transportation options availability. Metropolitan Area Planning Council (MAPC) conducted a study in the Boston area, in which researchers found that those who use transit passes daily, or weekly, would replace transportation network companies for transit frequently. Frequent transit users are more likely to be willing to sacrifice the service in favor of a ride-sharing opportunity, even at a large difference in cost or forfeiting the money they already paid to avail the service [ 75]. A ride in a
driver-less, fully autonomous vehicle will likely be cheaper [76,77]. New mobility services, and eventually autonomous vehicles, on the contrary, could increase ridership by solving the first-mile/last-mile problem and serving as a complement to mass transportation, thereby increasing GHG emissions. Shifting a staggering 56.5 billion miles (according to the National Transit Database for 2013) to vehicle-miles constitutes an increase in emissions of 2.0%. If it is assumed to be in city travel only, it accounts for an increase of 3.7% in city emission. Considering the change from air transport, an estimated 79.8 billion passenger miles traveled over domestic flights of less than 500 miles. Shifting all of these passenger-mile to non-shared vehicle-mile AVs in a possible scenario reflects a rise of 2.9% in emissions. However, this condition is projected to increase emissions only on highways.

With AVs in operation at relatively lower journey costs than other transport modes, more and more people will be inclined to use AVs, which will also lead to high GHG emissions.

4.5. Increased Empty Miles Traveled
AVs have not been extensively studied for potential changes in vehicle travel without a passenger. A vehicle owner could send his driverless AV to pick up family members or send nearby locations beforehand to minimize wait time. An agent-based model of self-driving vehicles moving in a square grid representing an imperial city was used by Fagnant and Kockelman to investigate the travel patterns of users of a shared fleet of self- driving vehicles [71]. With some predefined available data from 2009 NHTS, they examined scenarios with varying trip generation rates, level of network congestion, neighborhood size and vehicle relocation strategies. Finally, the study concluded that almost 11 conventional vehicles could be replaced by a self-driving vehicle with an increase of 5–11% in emission for vehicle repositioning. Vehicle idling while waiting for the passengers’ pick up from their destinations is the main source of increased vehicle miles traveled and resulting emissions.

4.6. Land Use Change
Since individuals are liberated from the pressure of being behind the wheel and can use the time for work or recreation instead, there is a likelihood that they can accept longer commutes. For example, Cervero and Murakami observed data from 370 urbanized areas in the U.S. They deployed structural equation modeling to determine the relationship of population density with VMT per capita and found that an increase in population density leads to a decrease in per capita VMT [ 78]. When it comes to urban form, they pointed out a vital issue: traditionally, societies have been more reluctant to relocate residential roads or emphasize keeping the roads in the first place when built [ 79]. These findings
indicate that if the introduction of AVs increases the pressure of growth in suburban areas, an increase in GHG emissions could result as people are concentrated in areas that facilitate more auto travel. Access of AVs to remote and sub-urban areas will encourage the public to opt for longer commutes and frequent travel, which will ultimately cause increased vehicular emissions at the network level.

5. Change in GHG Emissions at Different A V Penetration Levels This section investigates changes in emissions at different AV penetration levels using integrated traffic microsimulation and emission models. With better operating efficiency and improved powertrain technology, AVs are expected to yield overall emission benefits.

Int. J. Environ. Res. Public Health 2021, 18, 5567 12 of 23 Stogios et al. designed a study to evaluate the potential impacts that AVs could offer under varying scenarios [80]. Under interrupted and uninterrupted traffic flow conditions, high and low traffic conditions were evaluated. This study integrated the use of VISSIM microscopic software with the MOVES emission model to assess vehicular emissions. Eight inbuilt car-following and two lane-changing parameters present within the VISSIM model are investigated, representing AV driving behavior. The high traffic volume is reflected by an increase of 50% increase of the demand, while low traffic volume is produced by reducing the demand by 50%. A set of simulations is completed in the VISSIM model with 10%, 30%, 50%, 70%, and 90% of AVs penetration rate to investigate the changes in emission from the base condition. The study revealed that headway time has the highest impact on emissions and average delay than other parameters. Maximum headway time representing a cautious driving behavior resulted in a 31% increase in overall emissions, while a shorter headway time resembling aggressive driving behavior reduces the emission by 10%. The growing penetration of AVs into the network within high-traffic conditions results in minor incremental changes in emission factors and the number of stops per vehicle. In contrast, aggressive AVs reduce the average number of stops and emissions with increased market penetration. The AV penetration rate results, however, are not as evident under low traffic conditions. That is to conclude from the study that AVs will offer the maximum benefits under congested traffic conditions.

Olia et al. deployed the PARAMICS microsimulation framework integrated with CMEM emission model to measure the vehicle emission at different market penetration of connected autonomous vehicles [
81]. The CMEM model is capable of continuously
estimating gas emissions and fuel consumption at the microscopic level. The emission and fuel consumption in the CMEM model vary based on vehicle type, age, fuel system, and emission control technology. The vehicles in this model were divided into three categories, unfamiliar non-connected, familiar non-connected and CVs to produce emission factors for CO2, CO, NOx and HC. The results showed that with a gradual increase of CVs market penetration, the emission factors decreased. The maximum emission benefit could be realized at 50% CV penetration, where the GHG emission is reduced by 30% from the base condition.

Another study by Conlon and Lin attempted to quantify the changes in CO2 emission as the AVs are gradually penetrated into a congested urban road network [ 82]. SUMO traffic microsimulation and Newton-based greenhouse gas model (NGM) emission model were integrated to estimate the emission for different AV penetration, ranging from 0% to 100% into the network with an interval of 10%. At an AV penetration rate lower than 30%, the total CO 2 emission had increased from the baseline of 0% AVs. The increase of total emission is explained by the difficulty in the interaction between human-driven vehicles (HDVs) and AVs. As the AVs penetration rate gradually increased, the study network started to realize the benefit of AVs in traffic operation, travel speed, and emission reduction. However, the emission reduction remained plateaued between a wide range of 40% to 90% AV penetration. Finally, at full AV penetration with no heterogeneity, the network was found to yield a maximum reduction of CO2 emission of 4.08% from the base condition. The changes in emission at different AV penetration levels from different studies could be compared for better understanding (Figure 2). Existing literature in this regard suggests that noticeable emission benefits of AVs at the network level can be achieved at penetration rates ranging between 30% and 50%.

Int. J. Environ. Res. Public Health 2021, 18, 5567 13 of 23 Figure 2. Emission changes by AV penetration [80–82].

6. Energy Consumption and GHG Emission
In recent years, the transportation sector has become the top GHG emitter surpassing electricity generation in the U.S. It accounted for approximately 28.5% of total atmospheric emissions in the country and continued to be the rapidly growing emissions source of any energy-related sector [83,84]. The global share of GHG from transportation is estimated to be around 24% of all emissions [85]. Passenger cars are accountable for 75% and 60% of transportation emissions worldwide and in the U.S., respectively [84,85]. The emergence of AVs can bring numerous energy and emission benefits, due to homogeneous traffic flows, lower highway congestion, lighter and smart vehicles shaped to minimize air resistance, minimum vehicle idling, the need for less powerful engines, etc. This would further enhance fuel efficiency and reduce emissions.

Similarly, shorter time spent searching for nearby parking and reduced needs for construction, operation, and maintenance of parking infrastructures could also bring various environmental benefits. Furthermore, the prospects that AVs serving passengers’ demand for performing various activities will be larger than traditional vehicles cannot be excluded. Under such circumstances, larger vehicle sizes may somehow limit fuel efficiency gains. However, shared AVs may be programmed to continuously drive rather than looking for parking in the city’s downtown until the next call for a ride, thus generating more emissions. This issue may be partially mitigated by programming the AVs to drive themselves outside of the downtown of an urban area where parking is free or relatively cheaper. However, this extra travel will lead to more energy consumption, creating more traffic congestion and subsequently producing more vehicular emissions.

In the literature, numerous studies have discussed the prospects of fuel energy saving through vehicle automation. For example, Wu et al. reported that the deployment of a fuel economy optimization system could offer the automated systems or human drivers with essential guidance about optimal deceleration/acceleration profiles, taking into account vehicle current speed and acceleration, as well as other information such as headway spac-

Int. J. Environ. Res. Public Health 2021, 18, 5567 14 of 23 ing, signs, and traffic lights [86]. The authors conducted a driving simulator experiment in an urban setting through a network of signalized intersections and noted a nearly 31% reduction in fuel consumption for drivers using the system. Likewise, Khondaker and Kattan reported that a variable speed limit control algorithm resulted in approximately 16% fuel savings compared to an uncontrolled scenario [87]. The proposed control system integrated real-time intelligence about individual driver behavior (like the level of compli- ance with the established speed limits, acceleration/deceleration) in the situation of 100% connected vehicles (CVs) environment. However, fuel savings were only marginal at a pen- etration rate of CVs below 50%. In their study, Li et al. demonstrated that under automated car-following scenarios, the application of a pulse-and-gliding (PnG) controller could offer up to 20% savings in fuel compared to a conventional linear-quadratic (LQ)-based con- troller [88]. Other field tests and simulation studies have also shown that various types of adaptive cruise controller (ACC) and cooperative adaptive cruise controller (CACC) vehicle control algorithms could significantly reduce fuel energy consumption [89–92].

Zohdy and Rakha designed a controller equipped with CACC that can guide the optimum course of vehicles in the context of the urban road intersections network [93]. The study compared the fuel consumption for their system with various intersection geometries, and noted that on average, 11%, 45%, and 33% fuel saving were obtained compared to conventional intersection control approaches of a roundabout all-way-stop and traffic signal, respectively. In their studies, Kamalanathsharma, and Rakha; Asadi and Vahidi, and Ala et al. reported that the CACC that uses vehicles to infrastructure (V2I) communication to optimize vehicle trajectories in the vicinity could lead to a reduction in a fuel energy saving of about 47%, 30%, and 19%, respectively [
94–96]. A recent study conducted by
Manzie et al. also reported that a road-vehicle environment where vehicles can exchange traffic flow information via inter-vehicle communication and sensors could achieve about 15–25% savings in fuel consumptions [ 97]. They further stated that this number could reach as high as 33%, depending on the amount and quality of traffic information that they can process and exchange.

Similarly, in another study, Wang et al. observed that a higher penetration rate of intelligent vehicles equipped with a longitudinal vehicle controller was associated with lower NOx emissions in a congested platoon [98]. Bose and Ioannou reported that a fleet containing only 10% ACC-equipped vehicles could lower NOx emissions by 1.5% CO and CO2 emissions by up to 60% [99]. Choi and Bae examined the CO2 emissions profiles for manual and CVs under lane changing operations [ 100]. The study found that CVs can lead to 7.1% less CO2 emission, while lane change can maneuver faster to a slower lane.

Likewise, lane change operations for CVs from a slower to a faster lane were associated with around 11.8% CO2 emissions benefits. Fagnant and Kockelman conducted a larger- scale agent-based study. They replicated a mid-sized city scenario where nearly 3.5% of the total trips on a given day are undertaken by shared AVs [71].

These researchers observed that autonomous vehicles could have a significant positive effect on reducing various pollutants (i.e., SO 2, CO, NOx, volatile organic compounds (VOC), PM10, and GHG). VOCs and CO emissions were reduced the most, mainly due to the lower frequency of the vehicle’s cold start. Effects on the particulate matter with a diameter less than 10 mm (PM10) and GHG were comparatively insignificant due to the need for additional trips that shared vehicles have to make to pick up and drop off passengers from different locations. However, it is worth mentioning that this simulation study was limited by the assumptions that automated vehicles in the fleet are not essentially powered by electricity, hybrid-electric, or running on alternative fuel and passengers would not make trips more frequently. The long-term effect of automated vehicle-related emission reduction could realize a very optimistic level, as indicated in a study by Greenblatt and Saxena that estimated the emission of shared electric autonomous taxis. The study found that the GHG reduction per vehicle per mile in 2030 could be 87–94% less than the emissions of gasoline-based internal combustion vehicles in 2014 and 63–82% less compared to hybrid-electric vehicle emissions in 2030 [101].

Int. J. Environ. Res. Public Health 2021, 18, 5567 15 of 23 Brown et al. also predicted considerable energy-saving up to 91% per automated vehicle in 2030 in a framework that accounted for the highest impact of energy-saving factors (e.g., efficient travel, electrification and optimized vehicle weight) and increased energy use (e.g., increased travel distance by dependent traveler) [35]. However, the factors and to what extent they will offer emission benefit in the future remains an open question.

As a result, the trade-off between energy savings and increased energy use from automated vehicles might fluctuate substantially.

Few studies have also argued that the benefit in emission reduction by AVs could be fully offset by increased travel, due to lower costs involved in travelling. A study by Taiebat et al.used microeconomic modeling and applied econometric techniques to analyze the travel and energy impacts of CAVs with respect to the price of fuel and travel time [102].

While increased fuel economy in CAVs reduces the amount of energy required per mile traveled, it also decreases the cost of travel, encouraging additional travel and leading to an energy “rebound effect.” The elasticities of VMT demand with respect to fuel and time costs were estimated using the developed microeconomic model under income and time constraints. The forecasted travel demand for a typical household was estimated to increase by 2–47%. Numerous plausible scenarios involving changes in fuel economy and time costs resulted in an overall increase in energy consumption. In higher-income quantiles, backfire is more likely as the reduction in time cost is less appreciated in this class, only to offset the energy savings from CAVs. On average, a 38% reduction in time costs completely offsets a 20% increase in fuel economy provided by CAVs. Numerous researchers have also pointed out that the higher penetration of automated vehicles may actually increase the vehicle fleet number and contribute to the rise of GHGs in the environment [ 103]. The burgeoning number of automated on-demand mobility or ride-hailing services may lead to an enlargement of the number of vehicles in the fleet, increased VMTs and road congestion, and thereby increased fuel consumption and GHG emissions.

Synthesizing the result of all the previous studies, some charts could be developed to better understand and visualize the results of the level of GHG decrease or increase. The first graph (Figure3) shows the factors that will increase emissions, while others are for the factors that will reduce the emission (Figure 4). In the last chart, Figure 5 demonstrates the result ranges for all research studies.

Figure 3. Average contribution of the causes on GHG emission reduction.

Int. J. Environ. Res. Public Health 2021, 18, 5567 16 of 23 Figure 4. Average contribution of the causes on GHG emission increase.

Figure 5. Interval estimates of different studies on full AV effects on GHG emission.

6.1. Causal Loop Diagram (CLD) of the AV’s Effect on GHG Emission In transport studies, system dynamics have been applied, as the feedback and connec- tions provided by these models are useful for defining interactions of variables within the transport system. Shepherd provided a review of the different system dynamics modeling approaches used in transport systems [ 104]. In his study, he mentioned that the causal loop diagram (CLD) is the primary technique used to analyze the qualitative relationships between various aspects of the system within system dynamics modeling. CLD is a helpful tool to explore possible sources of dissent to strategies, synergies, and repercussions within the system. Such prospects will then help identify potential problem statements that can be addressed by quantitative modeling. A CLD illustrates how important variables of the system interrelate with each other by using text, arrows and symbols. Arrow running from the “cause” to the “effect” with a polarity represents the interaction between two variables, known as a causal connection. A positive polarity indicates that deviations in the “causal” variable would result in deviations in the “effect” variable in the same direction, assuming all other influences remain constant in the system. Similarly, a negative arrow shows that

Int. J. Environ. Res. Public Health 2021, 18, 5567 17 of 23 changes in one variable cause the other to change in the opposite direction, given that all other conditions are fixed.

The feedback loops created by the causal relationship are termed as balancing (B) or reinforcing (R) based on the polarity sign, which represents positive or negative feedbacks, respectively within the system [105].

A CLD is developed based on the literature to depict the interactions of different root causes and variables with the GHG emissions from AVs (Figure6). The CLD starts with the gradual penetration or increased market share of AVs within the transportation system.

This system dynamic model assumes that both the non-AVs and AVs use fossil fuel for power generation. Since the AVs are fuel-efficient, there is a substantial chance that the demand for AVs increases, with all its benefits in terms of traffic safety, operation, and management. However, since the AVs are expected to offer several benefits to the transport system, the introductory retail price of it might be some fold higher than the conventional non-AVs. A higher retail price of AV will impart a negative effect on AV’s market share.

Figure 6. Causal Loop Diagram of the influence of fuel-efficient AVs on GHG emissions (inspired by [106,107]).

Nevertheless, the increase in population and social pressure to purchase AVs will positively affect the AV’s penetration rate to the market. In this context, it is predicted that the number of cars in the city will increase as the population increases, causing road congestion as well. Congestion reduces the efficiency of automobile engines, contributing to increased fuel consumption and leading to higher rates of pollution [107]. An increased market share of fuel-efficient AVs will reduce the fuel demand as a whole. The reduced fuel demand initiates a balancing loop; a shortfall of demand will push the fuel price to increase and increase travel cost per mile, only to be balanced by less miles traveled. The price of gasoline is a wiggle that can play either in favor or against AVs. As observed today, gasoline prices have not prevented the ownership and use of fossil fuel vehicles (FFV) in general, but if prices go up, FFV use could fall as people move to more affordable choices, given the limited nature of petrol resources. However, an increase in the cost/miles travel will observe fuel-efficient AVs’ marginal utility as people will enjoy the added benefit by buying an additional AV unit.

A reinforcing loop will also generate fuel demand. In the event of increased demand, energy consumption will also escalate, giving rise to vehicle emission or GHG emission.

Implementing pollution reduction policies that cause environmental degradation should be balanced in this loop, though there is a delay in this cycle that prevents it from performing

Int. J. Environ. Res. Public Health 2021, 18, 5567 18 of 23 as planned. The mounting pressure on policy regulation to control the environmental degradation will possibly deter the growing AV production. More capital is expected to be invested within the automobile industry to make the AVs more fuel-efficient.

6.2. AVs Potential Impact on Reducing GHG Emission during a Global Pandemic On 30 January 2020, the World Health Organization (WHO) announced the respiratory coronavirus disease outbreak 2019 (COVID-19) and subsequently, on 13 March, declared a global pandemic. While government policies in most countries reduced mobility, travel also declined in response to the number of local cases in the respective country. This shows how people adapted their travel behavior depending on the level of information available on the outbreak. Not only did people restrict their travel, but destinations were often avoided that had more infected cases. The automotive and transport industries are closely observing how consumer behavior changes will impact AV technologies in key aspects of the economy and daily life, given that numerous changes have been imposed upon people’s daily lives due to the global COVID-19 pandemic.

COVID-19 is overhauling the consumer’s perceptions towards public transit in ways that are likely to support AV technology in the longer run. As the pandemic has spread across the world, people have generally remained home, either by choice or by local direc- tives. Hence, transit ridership has declined substantially, barring essential and emergency support workers. Major cities like New York, Washington, D.C., and San Francisco of the US have seen the ridership plummeted by a staggering 70–90% in August 2020 compared to the same time in the previous year [108]. While the decrease in ridership is attributed to home-based work, the closure of educational institutes, and local travel bans, consumers have become more interested in personal motor vehicle ownership than ever before. While the potential car customer might be putting new purchases on hold, McKinsey’s recent survey reported that “20 percent of people in the United States who do not possess a vehicle under their name, now considering buying one” [ 108]. This group mainly includes people who live in cities and rely on public transportation for mobility. While the customer demands for new and used cars may have temporarily postponed adopting AV systems in the consumer sector, the COVID-19 pandemic per se warranted the important role of AV in day-to-day business and, most importantly, to deal with the risks posed by COVID-19.

Over the past decade, the automotive industry has had to adapt to changing attitudes to mobility, with global car ownership predicted to peak in 2034 before beginning its decline.

However, with many still reluctant to use public transport due to the risk of infection, the prospect of owning a car may seem more inviting in the context of the unprecedented COVID-19 pandemic. This change in attitudes towards mobility is already evident in the adoption of micro-mobility solutions, while some have predicted that autonomous vehicles, capable of driving with some to no human input, may see an acceleration in terms of development, deployment and public interest. With industrial activity forced to slow down, flight and car journeys decreasing, greenhouse gas emissions around the world have plummeted. Consumers will get used to these changes, which is likely to see an increase in the adoption of autonomous vehicles in the future. These new vehicles are meant to be fuel-efficient, affordable, clean and green and a natural feature in smart cities and interactive communities—and will forever change the future of mobility. One of the key barriers to autonomous vehicle rollout is public perception, with a 2018 survey by OpenText revealing that 52% of consumers would not buy a driverless car. However, the COVID-19 pandemic may have contributed to changing attitudes. When weighing up the risk of COVID-19 infection presented by public transport or shared mobility, it is possible that the public will look more favorably on driverless cars. The current pandemic has had a significant impact on transport demand and mode, with a shift away from shared mobility, and in particular public transport, because of worries over public health.

Int. J. Environ. Res. Public Health 2021, 18, 5567 19 of 23

7. Conclusions
Net effects of vehicle automation on emissions across a variety of illustrative exam- ples show that automation could theoretically reduce GHG emissions and energy usage plausibly by almost half—or double-fold—depending on the implications that would come to the fore [22]. It is believed that reductions in GHG emissions through AVs’ adoption will be negated to an unascertained extent, mainly due to increased car travel, facilitated by other factors such as lower perceived travel time and costs per km/trip, probable loss of public transport patronage, and possible increases in car ownership. Thus, it is quite possible that AVs could be more energy-efficient, thereby reducing the GHG by functional unit-basis as per-passenger-mile (ppm); however, the overall gain related to transportation GHG emissions could be swamped by a surge in increased vehicle miles traveled (VMT).

The effect of AV adoption on consumer travel patterns could be more pronounced from environmental aspects rather than technical attributes. While it is challenging to accurately estimate the behavioral fronts to AV adoption, a more tangible consideration of the relationship between different AV adoption models and anticipated travel behavior is vital for estimating AVs’ environmental impacts. It may be argued from the discussion presented herein that if AVs are deployed within less approbatory areas or if the road transportation sector is continued to be dominated by privately owned vehicles, it is likely that AVs may escalate the transport-related GHG emissions. Hence, adoption tendencies like vehicle ownership models are also expected to largely influence whether AVs will decrease or increase the overall VMT as well as the subsequent GHG emissions. Few studies have indicated that the positive emission changes may not be realized at lower AV penetration rate, where the maximum emission reduction might take place within the 60–80% AV penetration rate.

Impacts of autonomous vehicles on GHG emission are highly dependent on contin- uous technological development and evolution, market reaction, and regulatory actions, making it challenging to confidently predict the overall benefits expected to deliver by AVs to the transportation systems in terms of GHG emission. With long-term land-use adjustments, the role of policy, welfare and equity yet to be explored and the potential effects of AVs remain unknown; it is unlikely that we can anticipate long-term effects on GHG emission with certainty. Moreover, the overwhelming COVID-19 global pandemic has also posed challenges to some of the well-perceived mode choice models, which may force the policymaker to adopt suitable mobility alternatives that ensure public health and safety. Therefore, it is of paramount importance to develop appropriate methodologies, tools, and techniques to better understand the impact of GHG emissions for AV adoption at different levels by harnessing an appropriate system approach.

Author Contributions: Conceptualization, M.M. and S.M.R.; methodology, M.M. and S.M.R.; writing—original draft preparation, M.M., I.R. and S.M.R.; writing—review and editing, S.M.H.A., A.J. and F.S.A.-I.; visualization, I.R., A.J. and S.M.R.; supervision, S.M.R. and F.S.A.-I.; project administration, S.M.R. All authors have read and agreed to the published version of the manuscript.

Funding: This research received no external funding.

Institutional Review Board Statement: Not Applicable.

Informed Consent Statement: Not Applicable.

Acknowledgments: The authors would like to gratefully acknowledge the support of King Fahd University of Petroleum & Minerals (KFUPM) in conducting this research.

Conflicts of Interest: The authors declare no conflict of interest.

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Kate Harrison
Vice Mayor, District 4
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7140 ● TDD: (510) 981-6903 ● Fax: (510) 981-6903 E-Mail:

[email protected]

CONSENT CALENDAR
October 11, 2022
To: Honorable Mayor and Members of the City Council
From: Councilmember Harrison (Author) and Councilmember Hahn (Co-sponsor) Subject: Adopt an Ordinance Adding Chapter 13.09 to the Berkeley Municipal Code Prohibiting Discriminatory Reports to Law Enforcement

RECOMMENDATION

1. Adopt an Ordinance Amending Chapter 13.09 to the Berkeley Municipal Code Prohibiting Discriminatory Reports to Law Enforcement.

2. Refer to the City Manager to report to Council within twelve months with anonymized data and information regarding discriminatory reports to law enforcement.

CURRENT SITUATION, EFFECTS, AND RATIONALE FOR RECOMMENDATION As the City of Berkeley addresses disparate policing outcomes, it is critical to consider potential bias stemming from community-initiated calls for service. Over the past year, there have been numerous high-profile instances, including in the Bay Area, of people allegedly calling law enforcement on innocent people on purely discriminatory grounds.

It is likely that numerous additional instances go unreported each year. Such incidents cause serious harm to the person falsely accused of a crime, contribute to defamation, cause anxiety and distrust among people of color and other people, and put an unnecessary strain on law enforcement officers responding to frivolous and false calls.

Berkeley is not immune to such discriminatory calls and therefore it is the public interest to explicitly expand existing laws regarding false police reports such that it is explicitly unlawful to engage in such behavior and that any aggrieved person may seek restitution through civil means.

POLICY COMMITTEE RECOMMENDATION
On September 19, 2022, the Public Safety Committee adopted the following action:

M/S/C (Taplin/Kesarwani) to approve the item with a positive recommendation. Vote: All Ayes

16

Adopt an Ordinance Adding Chapter 13.09 to the Berkeley Municipal Code Prohibiting Discriminatory Reports to Law Enforcement
2 BACKGROUND
This Ordinance is modelled upon the City and County of San Francisco’s recently unanimously adopted 2020 Caution Against Racially and Exploitative Non-Emergencies (CAREN) Act. A similar bill also passed in the State of Virginia.1 These laws were passed in the wake of the global protest movement in response to the murder of George Floyd, which highlighted discriminatory calls to law enforcement, including notable incidents in New York City’s Central Park and Oakland’s Lake Merritt.2 In addition to causing serious harm to the person(s) falsely accused of a crime, anxiety and distrust among people of color and other groups, such incidents put an unnecessary strain on law enforcement officers responding to frivolous and false calls.

However, this ordinance is not intended to discourage individuals from contacting law enforcement when they are facing real danger or desire to report a crime.

The Berkeley Police Review Commission’s 2017 “To Achieve Fairness and Impartiality:

Report and Recommendations” cited a number of anecdotal reports from community members alleging discriminatory calls for law enforcement service, including:
 A racially-mixed family was having pizza at Bobby G’s on University. Another diner called police saying that the mixed couple were “abusing their child by drinking beer and wine in front of their child.” Two police cars arrived with lights flashing. The owner attested that the family were regulars, and were minding their own business watching a football game. Police interrogated the African American father for one hour in a hallway at the restaurant.  An African American man, a security guard in uniform with a licensed gun, was talking with a Caucasian female on the corner of Bonar and Allston Way after a ceremony at the Berkeley Youth Association. A Caucasian man drove by, parked the car, got out and started videotaping the couple. The African American man asked the driver to stop videotaping. The man answered that it was his right to do so and started making statements such as “don’t bring a gun into my neighborhood.” After a heated back-and-forth, the driver called the police.

Eight cars arrived. The lead officer reviewed the credentials of the African-American man, was satisfied and departed. One of the remaining officers stayed and continue to ask the same questions for another 15 minutes. The African American security guard registered that he felt he was “unduly questioned” and was being “badgered.”  The owners of “44 Restaurant and Lounge” lodged a complaint with NAACP and police.

During happy hour to 8p.m.the guests that frequent the bar are a racially mixed crowd. After 8p.m.the guests are predominantly African American. After a minor complaint to police from a resident, the police parked a car with lights off across the street from the establishment for a period of four months. “44” has no history of rowdiness or spillover from bar patrons onto the 1 Ebrahimji, Alisha, and Amanda Jackson, “San Francisco's 'CAREN Act,' Making Racially Biased 911 Calls Illegal, Is One Step Closer to Becoming a Law,” CNN, October 21, 2020, www.cnn.com/2020/10/20/us/caren-act-911-san-francisco-board-passes-first-read-trnd/index.html. 2 Nir, Sarah Maslin, “How 2 Lives Collided in Central Park, Rattling the Nation,” The New York Times, June 14, 2020, www.nytimes.com/2020/06/14/nyregion/central-park-amy-cooper-christian- racism.html; Fearnow, Benjamin, “A Black Family's Sunday Barbecue Was Interrupted after a Woman Called out Their Charcoal Grill and Phoned the Cops,” Newsweek, May 10, 2018, www.newsweek.com/lake-merritt-bbq-barbecue-video-oakland-racist-charcoal-east-bay-black-family- 919355.

Adopt an Ordinance Adding Chapter 13.09 to the Berkeley Municipal Code Prohibiting Discriminatory Reports to Law Enforcement
3 sidewalk or the street. The bar down the street, Nick’s Lounge, has spillover into the street almost every night. The owners of “44” and the NAACP observed there is no police presence at Nick’s.3
The Berkeley Police Review Commission’s 2017 report was not exhaustive and it is likely that there were numerous additional unreported incidents involving individuals contacting law enforcement to report innocuous behavior as suspicious, or to falsely report alleged criminal behavior, for what appear to be solely discriminatory reasons.

Berkeley Police Department staff also cited biased calls for service as a potential factor is racially disparate policing outcomes during the Mayor’s Fair and Impartial Working Group meetings. The intent of this ordinance and referral is to prohibit and daylight these incidents, and to provide an avenue for restitution through the court system.

The misuse of law enforcement by members of the public to discriminate against others is intolerable. Creating a civil cause of action for damages will also discourage this type of behavior and provide a tangible compensation for victims.

Berkeley Municipal Code 13.08 already prohibits persons from knowingly reporting or causing to be reported:
“any false or fictitious request for protection or assistance, or any false or fictitious information indicating that a crime has been or is about to be committed, or to knowingly cause the Police Department to respond to any such false or fictitious report, or to request any assistance or investigation in connection with or as a result of any such false or fictitious report or false or fictitious information.”
This ordinance expands the scope of this existing law to explicitly prohibit false or frivolous reports involving individuals who contact law enforcement to report innocuous behavior as suspicious, or to falsely report alleged criminal behavior, for what appear to be solely discriminatory reasons. Discriminatory calls are defined as those that are made on the basis of a person’s actual or perceived race, color, ancestry, ethnicity, national origin, place of birth, sex, age, religion, creed, disability, sexual orientation, gender identity, weight, or height, and with the intent to do any of the following:
(1) Infringe upon the person’s rights under either the California Constitution or the United States Constitution;
(2) Discriminate against the person;
(3) Cause the person to feel harassed, humiliated, or embarrassed; (4) Cause the person to be expelled from a place in which the person is lawfully located; (5) Damage the person’s reputation or standing within the community; or (6) Damage the person’s financial, economic, consumer, or business prospects or interests.

In addition, any aggrieved person may enforce the provisions of this ordinance by means of a civil action, including special, general and punitive damages. 3 Berkeley Police Review Commission, “To Achieve Fairness and Impartiality: Report and Recommendations from the Berkeley Police Review Commission,” November 15, 2017, https://www.cityofberkeley.info/uploadedFiles/Police_Review_Commission/Level_3_- _General/FAIR%20%20IMPARTIAL%20POLICING%20REPORT%20final.pdf

Adopt an Ordinance Adding Chapter 13.09 to the Berkeley Municipal Code Prohibiting Discriminatory Reports to Law Enforcement
4 FINANCIAL IMPLICATIONS
Staff time will be necessary to implement and enforce this ordinance. However, this ordinance already in part tracks existing law and practices regarding false police reports.

ENVIRONMENTAL SUSTAINABILITY
No immediately identifiable environmental impact.

CONTACT
Councilmember Kate Harrison
[email protected] | 510-981-7140
ATTACHMENTS:

1. Ordinance

1 ORDINANCE NO. -N.S.

ADDING A NEW CHAPTER 13.09 TO THE BERKELEY MUNICIPAL CODE

PROHIBITING DISCRIMINATORY REPORTS TO LAW ENFORCEMENT
BE IT ORDAINED by the Council of the City of Berkeley as follows:

Section 1. The Berkeley Municipal Code Chapter 13.09 is added to read as follows:

Chapter 13.09
Discriminatory Reports to Law Enforcement
Sections:

13.09.010 Findings and Purpose.

13.09.020 Discriminatory Reports to Law Enforcement Prohibited.

13.09.030 Civil Cause of Action.

13.09.040 Undertaking for the General Welfare.

13.09.050 Severability.

2 13.09.010 Findings and Purpose.

The Council finds and expressly declares as follows:

A. There have been numerous incidents across the country involving individuals contacting law enforcement to report innocuous behavior as suspicious, or to falsely report alleged criminal behavior, for what appear to be solely discriminatory reasons.

Discriminatory law enforcement reports against people of color for racially motivated reasons are common enough that many people of color have experienced one or more incident of being contacted by law enforcement when engaging in normal day- to-day activities. These incidents cause serious harm to the person falsely accused of a crime, cause anxiety and distrust among people of color, and put an unnecessary strain on law enforcement officers responding to frivolous and false calls.

B. The misuse of law enforcement by members of the public to discriminate against others should not be tolerated and the City should take action to stop such behavior in every way possible. Creating a means for people who suffer this kind of discrimination to seek redress from those who have targeted them through a civil cause of action for damages will discourage this type of behavior and provide a tangible way for these victims to be compensated for this wrong.

C. This ordinance is not intended to discourage individuals from contacting law enforcement when they are facing real danger or desire to report a crime. It will allow individuals who have been reported to law enforcement for unfair and unnecessary reasons to seek justice and restitution, and will motivate people who contact law enforcement to consider the reasons they are making the report.

13.09.020 Discriminatory Reports to Law Enforcement Prohibited. (a) It shall be unlawful to knowingly make a false or frivolous call to police to cause a peace officer to arrive at a location to contact a person, with the primary intent to do any of the following on the basis of the person’s actual or perceived race, color, ancestry, ethnicity, national origin, place of birth, sex, age, religion, creed, disability, sexual orientation, gender identity, weight, or height:
(1) Infringe upon the person’s rights under either the California Constitution or the United States Constitution;
(2) Discriminate against the person;
(3) Cause the person to feel harassed, humiliated, or embarrassed; (4) Cause the person to be expelled from a place in which the person is lawfully located; (5) Damage the person’s reputation or standing within the community; or (6) Damage the person’s financial, economic, consumer, or business prospects or interests.

13.09.030 Civil Cause of Action.
(a) Any aggrieved person may enforce the provisions of this Section by means of a civil action.

3 (1) A person found to have violated Section 13.09.020 (a) in a cause of action under subsection (a) shall be liable to the aggrieved person for special and general damages, but in no case less than $1,000 plus attorneys’ fees and the costs of the action. In addition, punitive damages may be awarded in a proper case. (2) Nothing in this Section shall preclude any person from seeking any other remedies, penalties, or procedures provided by law.

13.09.040 Undertaking for the General Welfare.

In enacting and implementing this ordinance, the City is assuming an undertaking only to promote the general welfare. It is not assuming, nor is it imposing on its officers and employees, an obligation for breach of which it is liable in money damages to any person who claims that such breach proximately caused injury.

13.09.050 Severability.

If any section, subsection, sentence, clause, phrase, or word of this Chapter, or any application thereof to any person or circumstance, is held to be invalid or unconstitutional by a decision of a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions or applications of this Chapter. The Council of the City of Berkeley hereby declares that it would have passed this Chapter and each and every section, subsection, sentence, clause, phrase, and word not declared invalid or unconstitutional without regard to whether any other portion of this Chapter or application thereof would be subsequently declared invalid or unconstitutional.

Section 2. Copies of this Ordinance shall be posted for two days prior to adoption in the display case located near the walkway in front of the Maudelle Shirek Building, 2134 Martin Luther King Jr. Way. Within 15 days of adoption, copies of this Ordinance shall be filed at each branch of the Berkeley Public Library and the title shall be published in a newspaper of general circulation.

Kate Harrison
Vice Mayor, District 4
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7140 ● TDD: (510) 981-6903 ● Fax: (510) 644-1174 E-Mail: [email protected]

CONSENT CALENDAR
October 11, 2022
To: Honorable Mayor and Members of the City Council
From: Vice Mayor Harrison
Subject: Referral to the November 2022 AAO #1 Budget Process for $50,000 in Additional Traffic Calming at MLK and Addison

RECOMMENDATION
Referral to the November 2022 AAO1 Budget Process for $50,000 in additional traffic calming at MLK and Addison.

CURRENT SITUATION, EFFECTS, AND RATIONALE FOR RECOMMENDATION In 2022, the City of Berkeley installed a median and RRFB at the intersection of Martin Luther King Jr. Way (MLK) and Addison Street as a key feature of converting Addison Street into a Bike Boulevard. A few weeks after installation was completed, a driver tragically collided with a senior couple while they were crossing MLK on Addison.1 The City of Berkeley is committed to an equity-focused, data-driven effort to eliminate traffic deaths and severe injury collisions by 20282 and has described how it is going to achieve this in the 2017 Bicycle, 2019 Vision Zero Action, and 2020 Pedestrian Plans.

Despite these documents and recent efforts to enhance pedestrian and bike infrastructure in the City, traffic violence remains a serious issue. According to the Berkeley Police Department, 2021 was deadliest year for road users in Berkeley since at least 1984. In 2021 alone, 433 collisions resulted in injuries—a 37% increase from 2020.3
The MLK and Addison intersection is of critical citywide importance for thousands of Berkeley residents. This intersection serves as an important corridor for seniors, elementary, middle, high school and college students, shoppers, those accessing government services, and inhabitants of existing and new housing. This referral 1 Emilie Raguso, “Major injuries after driver strikes older married couple in Berkeley crosswalk,” Bekeleyside, July 10, 2022, https://www.berkeleyside.org/2022/07/10/driver-strikes-older-married- couple-berkeley-crosswalk-major-injuries.
2 Berkeley Vision Zero Plan, https://berkeleyca.gov/your-government/our-work/adopted-plans/vision-zero- action-plan.
3 Emilie Raguso, “8 people died in Berkeley crashes in 2021, overall collisions were up 34%,” Berkeleyside, February 25, 2022, https://www.berkeleyside.org/2022/02/25/berkeley-traffic-collisions- fatalities-up-2021-police-data.

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Referral to the November 2022 AAO #1 Budget Process for $50,000 in Additional Traffic Calming at MLK and Addison

CONSENT CALENDAR
October 11, 2022
recommends that $50,000 in additional traffic calming at MLK and Addison be added to the November 2022 AAO #1 budget process.

BACKGROUND
The United States, including Berkeley, has relied almost exclusively on driver “education” for decades to make streets safer, while peer countries in Europe and Asia have invested in physical infrastructure to boost safety. Traffic fatalities in the United States rose to just under 43,000 in 2021,4 while fatalities in Europe have dramatically decreased.5 Likewise, deaths on Berkeley’s roads are at a 37 year high.6 Americans are not more prone to making mistakes than their counterparts. The City of Berkeley understands this well and has been undertaking serious efforts to improve the safety of roadways through infrastructure improvements.

At the same time, the climate crisis continues to worsen. Drought, wildfire, extreme weather and heat, and sea-level rise are occurring. 7 Given an estimated 60% of Berkeley’s emissions come from transportation, the City has committed to decreasing reliance on polluting private motor vehicle by improving bike and pedestrian infrastructure.

According to the 2017 Bicycle Plan, a four beacon RRFB, like the one installed at MLK and Addison, can raise vehicle yielding compliance to 88%.8 Yet, this requires pedestrians and cyclists to always remember to hit the button. At MLK and Addison, despite being a designated bike boulevard, cyclists must dismount, walk onto the sidewalk, hit the button, move off the sidewalk, and resume biking and could choose to remain on the bike and cross without activating the flashing beacons. For pedestrians, we were reminded from the horrible collision on July 9, 2022, that the median and flashing beacons can be insufficient at protecting vulnerable road users from bodily harm.

There are many additional intersection treatments detailed in the 2017 Bicycle Plan that can improve safety for all road users. For instance, to ensure RRFB activation, the city could install pedestrian and cyclist detection systems, the latter of which is commonly used throughout the city already. Witnesses report that the RRFB was not activated by the pedestrians who were hit when crossing this intersection. A speed table or raised crosswalks could also further slow cars—these have been shown to reduce vehicle/pedestrian crashes by 45%, however staff note that Council policy discourages 4 National Highway Traffic Safety Administration, “Newly Released Estimates Show Traffic Fatalities Reached a 16-Year High in 2021,” https://www.nhtsa.gov/press-releases/early-estimate-2021-traffic- fatalities.
5 Frank Jacobs, “U.S. road deaths far outnumber those in Europe. Why?,” Big Think, June 1, 2022, https://bigthink.com/strange-maps/road-deaths-us-eu/.
6 Emilie Raguso, February 25, 2022.
7 City of Berkeley, Climate Action Plan, https://berkeleyca.gov/sites/default/files/2022-01/Berkeley- Climate-Action-Plan.pdf
8 Berkeley Bicycle Facility Design Toolbox, https://berkeleyca.gov/sites/default/files/2022-01/Berkeley- Bicycle-Plan-2017_AppendixF_Facility%20Design%20Toolbox.pdf.

Referral to the November 2022 AAO #1 Budget Process for $50,000 in Additional Traffic Calming at MLK and Addison

CONSENT CALENDAR
October 11, 2022
speed tables on arterials, emergency response routes, and bus routes.9 In addition, the RRFB could be converted into a pedestrian hybrid beacon requiring motorists to make a complete stop. This item does not specific treatments but defers to staff’s expertise to determine the highest impact treatments. It is vital and in the public interest that the City finds the right policy solutions so future tragic collisions at the MLK and Addison intersection can be avoided.

FISCAL IMPACTS OF RECOMMENDATION
$50,000 for traffic safety improvements at the intersection of Martin Luther King Jr. Way and Addison Street.

ENVIRONMENTAL SUSTAINABILITY
Transportation accounts for a substantial portion of Berkeley’s total emissions. The City is committed to increasing the modal share of walking and biking to reduce vehicle miles traveled.

CONTACT PERSON
Vice Mayor Kate Harrison, (510) 981-7140
9 Ibid.

Kate Harrison
Vice Mayor, District 4
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7140 ● TDD: (510) 981-6903 ● Fax: (510) 644-1174 E-Mail: [email protected]

CONSENT CALENDAR
October 11, 2022
To: Honorable Mayor and Members of the City Council
From: Vice Mayor Harrison
Subject: Referral to the Transportation and Infrastructure Commission and City Manager to Consider and Make Recommendations Regarding the Policy of Deploying Rectangular Rapid Flashing Beacons and Other Treatments at Dangerous or High-Collision Pedestrian and Bicycle Intersections

RECOMMENDATION
Referral to the Transportation and Infrastructure Commission and City Manager to consider and make recommendations regarding the policy of deploying Rectangular Rapid Flashing Beacon (RRFB) and other treatments at dangerous or high-collision pedestrian and bicycle intersections.

CURRENT SITUATION, EFFECTS, AND RATIONALE FOR RECOMMENDATION The City of Berkeley is committed to an equity-focused, data-driven effort to eliminate traffic deaths and severe injury collisions by 20281 and has described how it is going to achieve this in the 2017 Bicycle, 2019 Vision Zero Action, and 2020 Pedestrian Plans.

Despite these documents and recent efforts to enhance pedestrian and bike infrastructure in the City, traffic violence remains a serious issue. According to the Berkeley Police Department, 2021 was deadliest year for road users in Berkeley since at least 1984. In 2021 alone, 433 collisions resulted in injuries—a 37% increase from 2020.2
As part of bike and pedestrian implementation plans, staff have begun installing RRFB at various dangerous intersections, likely resulting in relative safety improvements.

Such intersections connect various neighborhoods, and are corridors for seniors, students, shoppers, those accessing government services, and inhabitants of existing and new housing. However, recent tragic incidents, the advent of the City’s vision zero plan, and ongoing efforts to revise the Bike Plan should prompt the City to consider whether more passive treatments are appropriate for the most dangerous intersections. 1 Berkeley Vision Zero Plan, https://berkeleyca.gov/your-government/our-work/adopted-plans/vision-zero- action-plan.
2 Emilie Raguso, “8 people died in Berkeley crashes in 2021, overall collisions were up 34%,” Berkeleyside, February 25, 2022, https://www.berkeleyside.org/2022/02/25/berkeley-traffic-collisions- fatalities-up-2021-police-data.

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Referral to the Transportation and Infrastructure Commission and City Manager to Consider and Make Recommendations Regarding the Policy of Deploying Rectangular Rapid Flashing Beacons and Other Treatments at Dangerous or High- Collision Pedestrian and Bicycle Intersections

CONSENT CALENDAR
October 11, 2022
This referral asks the newly established Transportation and Infrastructure Commission and the City Manager to consider and make recommendations regarding RRFB and other traffic safety treatments impacting pedestrians and bicyclists at high-collision intersections.

BACKGROUND
The United States, including Berkeley, has relied almost exclusively on driver “education” for decades to make streets safer, while peer countries in Europe and Asia have invested in physical infrastructure to boost safety. Traffic fatalities in the United States rose to just under 43,000 in 2021,3 while fatalities in Europe have dramatically decreased.4 Likewise, deaths on Berkeley’s roads are at a 37 year high.5 Americans are not more prone to making mistakes than their counterparts. The City of Berkeley understands this well and has been undertaking serious efforts to improve the safety of roadways through infrastructure improvements.

According to the 2017 Bicycle Plan, a four beacon RRFB, like the one installed at MLK and Addison, can raise vehicle yielding compliance to 88%.6 Yet, this raises the question about the remaining times when there is not yielding compliance, and the fact that RRFB requires pedestrians and cyclists to always remember to hit the button. Is 88% compliance acceptable in a Vision Zero City? We were reminded from the horrible collision on July 9, 2022, that the median and flashing beacons can be insufficient at protecting vulnerable road users from bodily harm.

There are many additional intersection treatments detailed in the 2017 Bicycle Plan that can improve safety for all road users. For instance, to ensure RRFB activation, the city could install pedestrian and cyclist detection systems, the latter of which is commonly used throughout the city already. A speed table or raised crosswalks could also further slow cars—these have been shown to reduce vehicle/pedestrian crashes by 45%.7 In addition, the RRFB could be converted into a pedestrian hybrid beacon requiring motorists to make a complete stop.

This referral does not favor any treatment. Rather it asks its newly established Transportation and Infrastructure Commission and City staff to as appropriate consider and make recommendations about the appropriateness of various options in light of recent trends and best practices. This is particularly important as the City is updating its 3 National Highway Traffic Safety Administration, “Newly Released Estimates Show Traffic Fatalities Reached a 16-Year High in 2021,” https://www.nhtsa.gov/press-releases/early-estimate-2021-traffic- fatalities.
4 Frank Jacobs, “U.S. road deaths far outnumber those in Europe. Why?,” Big Think, June 1, 2022, https://bigthink.com/strange-maps/road-deaths-us-eu/.
5 Emilie Raguso, February 25, 2022.
6 Berkeley Bicycle Facility Design Toolbox, https://berkeleyca.gov/sites/default/files/2022-01/Berkeley- Bicycle-Plan-2017_AppendixF_Facility%20Design%20Toolbox.pdf. 7 Ibid.

Referral to the Transportation and Infrastructure Commission and City Manager to Consider and Make Recommendations Regarding the Policy of Deploying Rectangular Rapid Flashing Beacons and Other Treatments at Dangerous or High- Collision Pedestrian and Bicycle Intersections

CONSENT CALENDAR
October 11, 2022
now five-year-old Bike Plan and has a numerous dangerous bike boulevard and pedestrian intersections similar to MLK and Addison. At the same time, pedestrian and bicycle traffic has increased and is expected to increase in coming years and the Council placed a significant bond on the ballot to fund affordable housing and infrastructure, including various bicycle and pedestrian upgrades. It is vital and in the public interest that the City finds the right policy solutions so future tragic collisions can be avoided.

FISCAL IMPACTS OF RECOMMENDATION
Staff time will be needed to develop recommendations to improve traffic safety policy at the high-collision intersections.

ENVIRONMENTAL SUSTAINABILITY
Transportation accounts for a significant portion of Berkeley’s total emissions. The City is committed to increasing the modal share of walking and biking to reduce vehicle miles traveled.

CONTACT PERSON
Vice Mayor Kate Harrison, (510) 981-7140

Councilmember Sophie Hahn
City of Berkeley, District 5
1 CONSENT CALENDAR
October 11, 2022
To: Honorable Mayor and Members of the City Council
From: Councilmember Hahn (Author)
Mayor Jesse Arreguín (Co-Sponsor)
Subject: Land Acknowledgement Recognizing Berkeley as the Ancestral, Unceded Home of the Ohlone people.

RECOMMENDATION

1. Adopt the Land Acknowledgement Statement Resolution recognizing that Berkeley is the ancestral, unceded home of the Ohlone people.

2. Display the Land Acknowledgement in writing at all in-person or online Regular meetings of the City Council and read the Acknowledgement at the first Regular meeting of each month in which Regular City Council meetings are held.

3. Recommend to all Berkeley Commissions, Committees, Boards, and other elected and appointed City entities to consider inclusion of the Land Acknowledgement in meeting practices and direct the City Manager to convey a copy of this Item and Resolution to all such entities for reference.

4. Direct the City Manager to post the Land Acknowledgement or a prominent link to the Acknowledgement on the home page of the City’s website and to create a webpage dedicated to Ohlone history and culture.

5. Now and in the future, consider additional more substantive reparative and restorative actions, including but not limited to those described under the heading “Actions/Alternatives Considered.”

SUMMARY
Acknowledging that the City of Berkeley rests upon the ancestral lands of the Chochenyo speaking Lisjan Ohlone people brings attention to their centuries of resistance to colonial violence and reminds our City and community of the need to take concrete restorative actions.

The settlers of California, primarily Europeans seeking religious converts, agricultural land and economic opportunity during the gold rush, committed one of the most egregious genocides in history. Settlers murdered 80 percent of Indigenous people in the state from

19

2 1846 to 1873 through massacre by state-directed militias, enslavement in mining and agricultural production, displacement causing starvation, and compulsory assimilation.1 Land acknowledgment is a traditional custom that dates back centuries in many Native nations and communities. Today, land acknowledgments are used by Native Peoples and non-Natives to recognize Indigenous Peoples who are the original stewards of the lands on which we now live.2 To begin public meetings, dozens of localities across the United States including Denver (CO), Portland (OR), and Phoenix (AZ) now share official land acknowledgements. Many public agencies, including the National Park Service, the National Aeronautics and Space Administration (NASA), read these acknowledgements as well. The practice has been common for nearly a decade in Canada, New Zealand, and Australia.3
Locally, many public and public-facing private institutions have also adopted land acknowledgement statements including UC Berkeley, Mills College, Chabot Las Positas Community College District, California College of the Arts, UCSF, Stanford, and recently, Berkeley’s Rent Stabilization Board.

However impactful these statements may be, it’s important to consider that land acknowledgements have been criticized as appropriating the Indigenous practice of acknowledging the ancestral roots of land without taking concrete action against ongoing oppression.4 According to University of Oklahoma Professor of Native American Cultural Studies Dustin Tahmahkera, “To acknowledge Indigenous homelands and to return those lands are related, but the former alone allows for rhetoric without further action.”5 Dr. Duke Redbird, an Elder of the Saugeen First Nation in Ontario recently noted that Canada has invited non-Indigenous territories such as Prince Edward Island into the government’s confederation, giving them lawmaker representation in parliament, while excluding millions of Indigenous people from the same opportunity:6 1 Madley, B. (2016). An American Genocide. The United States and the California Indian Catastrophe.

Yale University Press. Print. p. 10, 12. Note: approximately, one in ten of these 125,000 deaths were the result of direct violence, often perpetuated by volunteer militias. Others resulted indirectly through displacement and disease.
2 Smithsonian National Museum of the American Indian, Honoring Original Indigenous Inhabitants: Land Acknowledgment. Web.
3 Dewey, C. (2021). Growing Number of Cities Weigh Tribal ‘Land Acknowledgements.’ Pew Research Trust. Web.
4 Kaur, H. (2021). Land acknowledgments are often an empty gesture, some Indigenous people say.

CNN. Web.
5 Wood, G. (2021). ‘Land Acknowledgments’ Are Just Moral Exhibitionism. The Atlantic. Web. 6 Museum of Toronto (2020). Ask an Elder: What do Land Acknowledgements represent? Web.

3 To get up in government and give a land acknowledgement without even inviting us into confederation, we were left out. What is the land acknowledgement supposed to represent? Give us a feeling that we should be grateful? Grateful for what? Naomi Bob, an Indigenous Youth Wellness Project Coordinator with the Snaw'naw'as and Nanoose First Nation, shared his perspective:7
I’m seeing land acknowledgements done in a way that is tokenizing and minimizes responsibility and our history… It’s really easy to list off your host nations you found off of a google search but I want to hear how you as an individual have ended up on their land and I want to hear about the work you’re doing to reconcile responsibilities you have inherited . . .

One of the leading advocacy groups for land acknowledgement, the Native Governance Center, acknowledges this issue of “optical allyship,” asking that local governments and community groups craft land acknowledgements that go beyond a mere statement, by providing research on the history of Indigenous peoples and offering concrete actions to support them. The organization’s Guide to Indigenous Land Acknowledgement states “every moment spent agonizing over land acknowledgement wording is time that could be used to actually support indigenous people… an apology or an acknowledgement is one thing, but what are you going to do next?”8
At an April 2022 Berkeley Rent Stabilization Board meeting Lisjan Ohlone Chairperson Corrina Gould spoke in support of their land acknowledgment and emphasized that we must acknowledge not only the past but also the future. She stressed that land acknowledgements are “a way to create goals together so there is an ongoing partnership taking care of the lands, and waters, and places that we live.” 9 The City of Berkeley should honor this intention and use this resolution and the Land Acknowledgement practice as a first step to bring attention to these histories and as a foundation for further concrete actions.

This item asks for the Land Acknowledgement to be formally adopted, displayed, and spoken by the City Council at the start of proceedings, and asks other appointed and elected governmental bodies in Berkeley to consider adopting similar Land 7 CFSC Video (2020). Why are land acknowledgments important? Naomi Bob - Indigenous Voices on Reconciliation. Web.
8 Native Governance Center (2019), quoting Dr. Kate Beane of the Falandreau Santee Dakota and Muskogee Creek as well as Robert Larson of the Sioux Indian Community. A Guide to Indigenous Land Acknowledgement. Web.
9 City of Berkeley (2022). Berkeley Rent Board Adopts Land Acknowledgement Statement. Web.

4 Acknowledgement practices. More importantly, it is intended to serve as a starting point for further restorative and reparative work our City and community must engage in, not as an end in and of itself.

BACKGROUND
The United States, the State of California, and the City of Berkeley came into being through the deliberate and sustained genocide of Indigenous people, and modern forms of this colonial violence continue to this day both here in Berkeley and across the country and globe. This history is often obscured or erased. Schools for decades have failed to teach the truth about this legacy, replacing hard and ugly facts with a variety of convenient myths and misrepresentations. Surviving Native Americans endured forced reeducation at boarding schools that suppressed oral history transmission, and fear of violence and murder drove many to hide their Indigenous ancestry, further eroding culture and memory.10 But Lisjan Ohlone and other Native American people found ways to survive this murderous and cultural genocide, and many are with us today.

To contextualize this painful history, honor the Indigenous people who have survived and resisted this violence, and chart a new path forward for our community, this item briefly recounts elements of this history to understand the present.

The Ohlone are a group of around 50 separate tribes, who for 10,000 years lived on ancestral lands that spanned the coast of what is now known as San Francisco through Monterey Bay to the lower Salinas Valley.11 There were eight different nations in the Bay Area alone, including the Lisjan; many came to adopt the term Ohlone in solidarity with other nations to push back against the Spanish colonizers’ blanket name of “Costanoan.”12
The territory xučyun (Huchiun), extending from what is now known as the Berkeley Hills to the Bay Shore from West Oakland to El Cerrito, is the home territory of the Chochenyo speaking Ohlone people. The cities of Alameda, Berkeley, Emeryville, El Cerrito, and most of Oakland were created on this ancestral territory.

Nearly 310,000 Indigenous people across the region lived in what is now called California, speaking as many as 100 languages.13
Spain began colonizing these lands in 1769, establishing military forts and religious “mission” outposts across the region, including Mission San Jose in Freemont and 10 Madley, B. (2016). Ibid. p. 10.
11 UC Berkeley, n.d. Berkeley sits in the territory of xučyun. Web. 12 Gould, Corrina. (2021). Berkeley’s Ohlone History. Peralta Community Garden. Web. 13 Madley, B. (2016). Ibid. p. 23.

5 Mission Dolores in San Francisco, that enslaved the ancestors of some modern-day Berkeley and East Bay Ohlone people.14 15Spain used slavery, rape, and torture of Indigenous people to secure silver mines to compete against colonial powers like Russia and Britain and “spiritually conquer” the region in the name of Catholicism.16 In this period, Spain claimed ownership of the land and granted use rights to some ranchers and farmers.17
In 1818, the Spanish soldier Luis Peralta petitioned the Spanish authorities to be granted 48,000 acres extending from modern day San Leandro Creek to El Cerrito. This area, encapsulating modern day Berkeley, was known as “Rancho San Antonio.” Two of Peralta’s four sons, Domingo and Vicente (for which streets are named today), administered the territory for nearly two decades, through the transfer of the region to Mexico from Spain. Ranching appropriated and destroyed native landscapes and diverted streams for irrigation at great cost to native peoples, some of whom found ways to survive amid ongoing Spanish oppression.18
Following Mexican independence in 1821, the new Mexican government granted private land rights to individual “ranchos” through the Missions: these land grant settlers began occupying prime agricultural lands across the state, but remained less than 20 percent of California’s population – the remainder being Native American.19 The Peralta family soon had company in the form of other landed “aristocratic” families, which replaced the missionary friars as the most powerful people across the region.20 Amid the 1850’s Gold Rush, U.S. soldiers victorious over Mexico and other squatters began to make legal claims to the Peralta lands. Federal judges of the California Land Commission in 1851, not well prepared for their tasks, attempted to resolve these numerous land disputes, but the Peraltas were overwhelmed by lawyers’ bills and property taxes, eventually selling off much of their lands to pay their debts.21 Meanwhile the violent occupation of settlers as well as the spread of European diseases like smallpox reduced the Indigenous population to only 150,000 people by the time the United States had taken legal control of what is now California in 1846, during the Mexican-American war.22
14 Novan, K. (2021). California Agriculture: Dimensions and Issues, 2nd Edition: Chapter 3, California’s Evolving Landscape. University of California: Giannini Foundation of Agricultural Economics. Web. p. 59. 15 Gould, Corrina. (2021). Ibid.
16 Novan, K. (2021). Ibid. p. 59.
17 Madley, B. (2016). Ibid. p. 27 - 38.
18 Wollenberg, C. (2008). Berkeley: A City in History. Chapter One: First Settlers. UC Press. p. 8. Web. 19 Novan, K. (2021). Ibid. p. 60. / Lindsay, B.C. (2012), p. 131 20 Wollenberg, C. (2008). Ibid. P. 8
21 Wollenberg, C. (2008). Ibid. P. 14
22 Madley, B. (2016). Ibid. p. 3, 12

6 So began the era of more affirmative, state-sponsored genocide that led US Indian Affairs Commissioner John Collier to declare in 1935 that “The world’s annals contain few comparable instances of swift depopulation— practically, of racial massacre—at the hands of a conquering race.”23 Brenden C. Lindsay, Associate Professor of History at Sacramento State and author of Murder State: California’s Native American Genocide, concludes that “northern California’s Native population faced a genocidal assault perhaps unrivaled in North America in terms of its ferocity, bloodiness, and loss of human life,” this violence was executed through state-sponsored and state-tolerated violence, enslavement, and displacement.24
It was just not just a select few who engaged in this violence. European settlers flooding into Northern California in search of gold came with a manufactured fear of Indigenous people, due to repetitive, sensationalized, and false storytelling in newspapers and other reports. Deaths from disease, natural causes, and even suicide were attributed to Indigenous people while actual violence by Indigenous people against settlers was quite rare. For example, contrary to popular myths, only 115 of nearly 90,000 new settlers were killed in conflicts with Indigenous people during the 1840s.25 This manufactured fear, which translated into hatred, provided pretext for California Governors John 23 Madley, B.
24 Lindsay, B.C. (2012) Murder State: California’s Native American Genocide, 1846-1873. University of Nebraska Press. Print. p. 177
25 Lindsay, B.C. (2012). Ibid. p. 9, 23, 31, 39, 120.

7 McDougal and Peter Burnett to legally sanction volunteer militias tasked with pushing Indigenous people off farming and ranching lands in the most economically efficient way possible: massacre.26 Justifying this genocide with slurs like “digger,” Indigenous people were equated with animals for the purpose of literally hunting them with guns.27 Many Indigenous people were enslaved for labor as well. Prominent State Senators and ranchers during California’s early years pushed the Governor to create reservations where Indigenous people could be used for hard labor but kept separate from whites.

Legislation was also passed echoing legislation in southern States to reduce Indigenous people to non-legal entities who could be legally enslaved.28 If Indigenous people were found drunk on Sundays, they were arrested and enslaved: the Los Angeles Star reported one instance where a jail door fell down because the cell was so crowded with imprisoned native people.29 These and similar atrocities precipitated the unsuccessful pan-Indigenous “Garra Revolt” during the 1850s.

This enslavement also went hand in hand with displacement from ranching, which led to extreme poverty and starvation, with many Indigenous people desperate for work to survive. Ranching throughout California depended on the labor of enslaved Indigenous people as quests for gold by settlers drained the labor force.30 Ranchers hunted deer and elk that competed for food with their cows and horses, devastating wild herds.

Domesticated animals like cows, pigs, and sheep ate thousands of acres of plants Indigenous people depended on for food.31 This environmental devastation drove some Indigenous people such as the Paiutes to attack cows and horses (though even this tactic of survival was exaggerated by settlers, who often attributed the natural deaths of domesticated animals to Indigenous people).32 In an ironic twist, Indigenous peoples who killed domesticated animals tended to receive more in reservation funding, as this act of resistance created heavy costs for the ranchos.

The legal system, disguised with the veneer of “democratic will,” barred Indigenous people from testifying in court against settlers: in practice, legalizing their murder.33 The Treaty of Guadalupe-Hidalgo, which ended the Mexican-American War, was violated as California took Indigenous affairs, a federal responsibility, into local hands following 26 Lindsay, B.C. (2012). Ibid. p. 151, 170.
27 Lindsay, B.C. (2012). Ibid. p. 133, 185
28 Lindsay, B.C. (2012). Ibid. p. 146-148
29 Lindsay, B.C. (2012). Ibid. p. 23, 153
30 Lindsay, B.C. (2012). Ibid. p. 31, 136, 153
31 Lindsay, B.C. (2012). Ibid. p. 176, 181, 183, 186
32 Lindsay, B.C. (2012). Ibid. p. 17, 136, 186
33 Lindsay, B.C. (2012). Ibid. p. 27, 28, 132, 168,

8 statehood.34 For its part, however, the federal government reimbursed the cost of volunteer militias with millions in funding, effectively bankrolling massacre. It also issued a decree allowing soldiers from the Mexican-American war to claim up to 160 acres of land in California as a bounty, another factor in the demise of Ranchos and the establishment of “land rights” - to land that was stolen once from Indigenous peoples and a second time from the “owners” of formerly Spanish and later Mexican Ranchos.

The Sogorea Te’ Land Trust is an urban Indigenous women-led land trust based in the Bay Area that facilitates the return of Indigenous land to Indigenous people. The Trust’s website includes a short history of the Lisjan Ohlone, which parallels the history recounted in other sources.
“The Lisjan people have lived in the territory of Huchiun since the beginning of time. For thousands of years, hundreds of generations, the Lisjan Ohlone people have lived on the land that is now known as the East Bay in the San Francisco Bay Area. We did not own the land, we belonged to it. Generation after generation, we have cultivated reciprocal relationships with the plants and animals we share this place with, and developed beautiful and powerful cultural practices that keep us in balance.

The Confederated Villages of Lisjan are one of many Ohlone nations, each with its own geography and history. Our tribes, cultures and languages are as diverse as the ecosystems we live within. When the Spanish invaded in the late 1700s, in their ignorance they called us Costanoan, people of the coast. In the 1960s and 70s, inspired by the Black Power and American Indian Movements, we organized and renamed ourselves Ohlone. The different nations of Ohlone people are connected but have different territories and languages. The Confederated Villages of Lisjan speak the language Chochenyo.

The Lisjan are made up of the six nations that were directly enslaved at Mission San Jose in Fremont, CA and Mission Dolores in San Francisco, CA: Lisjan (Ohlone), Karkin (Ohlone), Bay Miwok, Plains Miwok, Delta Yokut and Napian (Patwin). Our territory includes 5 Bay Area counties; Alameda, Contra Costa, Solano, Napa and San Joaquin, and we are directly tied to the “Indian Town” census of the 1920s and the Verona Band.

The colonization of this land began with the reign of terror inflicted by Spanish soldiers and missionaries who sought to convert all Indigenous people into Catholic subjects of Spain and steal their land. The Missions were plantations, built by slave 34 Lindsay, B.C. (2012). Ibid. p. 28, 140-143

9 labor and sustained through brutal physical violence and extractive land practices.

The Spanish brought deadly diseases, invasive species, and Christian ideology, based on human dominion of the natural world, causing devastating consequences for the Lisjan people and all living beings we have shared the land with.

After a brief but harrowing Mexican rancho period, Lisjan survivors faced extermination policies by the United States that aimed to eliminate California Indians entirely. In a climate of virulent racial discrimination and state-sponsored vigilante killings, most Lisjan families survived by isolating themselves and concealing their identities. Cultural and spiritual traditions were forced into dormancy or secrecy, and much knowledge perished with the passing of generations.

Despite these concerted efforts to erase our history and identity, the Lisjan community forms a diverse and vibrant constellation of tribes and families. Utilizing a wide array of survival strategies to navigate a profoundly altered 21st century world, we continue to revitalize our cultural practices and uphold our responsibilities to protect and care for our ancestral homeland.

We have survived over two centuries of genocide and colonization during the Spanish, Mexican and American eras. Today, we continue to inhabit our ancestral homeland, fight for our sacred sites and revitalize our cultural practices.”35 Despite the incredible strength it has taken to survive the repeated onslaughts of slavery, disease, environmental destruction, land appropriation, and state-sponsored physical and cultural genocide, centuries of trauma from colonization manifest themselves in ongoing struggles for Indigenous People in California and beyond. The nearly two million Indigenous people living under U.S. jurisdiction suffer the highest rate of poverty of any racial group—almost twice the national average. Rates of suicide, alcoholism, gang membership, and sexual abuse are also far higher than that of the non-Indigenous population, with challenges particularly acute on reservations.36 By restoring sovereignty and land to Indigenous people, with negotiated environmental protections and meaningful economic opportunity, is one way to help repair deeply scarred communities.

As Standing Rock and other pipeline opposition campaigns have shown, Indigenous peoples living under U.S. jurisdiction continue to stand up against pipelines, oil extraction, 35 Sogorea Te’ Land Trust, Lisjan (Ohlone) History & Territory. Web. 36 Riley, N.S. (2016). One Way to Help Native Americans: Property Rights. The Atlantic. Web.

10 and other desecrations that destroy their limited lands and poison communities with cancer and polluted water. The petroleum industry has demolished sacred sites and confronts individuals who resist with rubber bullets, attack dogs, and other war-like practices.37 While Indigenous People are anything but a monolith, this common cause against extraction, pollution and desecration unites many. As Dallas Goldtooth of the Dakota Nation and Indigenous Environmental Network has described:
[Resistance] resonates across the diaspora of Indigenous Peoples. This is a critical moment we find ourselves in on this planet, not just in the sense for addressing climate change, but also a sense for social justice, a sense of just overall justice for all species. Indigenous Peoples tend to be, and rightfully are, on the frontline of those fights and those struggles. That’s encapsulated by this idea of us rising together.

This connection even extends internationally, as the state of California plays an outsized role in the extraction and destruction of Indigenous homelands in the Amazon as well. In turn, the deforestation of the Amazon destroys moisture distribution that contains wildfires across North America, and California in particular.38 A recent investigation demonstrated that California consumes more oil extracted from the Western Amazon than any other region on earth, refining it for airports, Amazon, PepsiCo and COSTCO.39 In another example of the enduring nexus between our State and community and forces of destruction to Indigenous lands, a federal investigation found the largest animal production company in the world, JBS, has been implicated in the continued deforestation of the Amazon as well as the torture and murder of Indigenous people of the Amazon.40 41 Several of Europe’s largest supermarket chains have responded by banning JBS beef products, acknowledging that animal feed crops and animal grazing drives 80 percent of Amazon deforestation.42 43 Through our consumption here in Berkeley, we literally fuel practices that continue to destroy Indigenous People and the lands on which they survive. 37 Bunten, A.C. (2017). Indigenous Resistance: The Big Picture behind Pipeline Protests. Cultural Survival. Web.
38 Lazard, O. (2020). One Answer to California’s Fires Lies in the Amazon. Carnegie Europe. Web. 39 Amazon Watch. Linked Fates: How California’s Oil Imports Affect the Future of the Amazon Rainforest.

Web.
40 Mano, A. (2021). Brazil's JBS bought 301,000 cattle from 'irregular' farms in the Amazon, audit finds.

Reuters. Web.
41 Phillips, D. (2020). Brazilian meat companies linked to farmer charged with 'massacre' in Amazon. The Guardian. Web.
42 Spring, J. and Deutsch, A. (2021). European supermarkets stop selling Brazil beef over deforestation links. Reuters. Web.
43 Butler, R. (2009). Controlling the Ranching Boom that Threatens the Amazon. Yale School of the Environment. Web.

11 With knowledge of these connections between the meat we eat and petroleum we consume to continued oppression of Indigenous People and desecration of their lands, we should consider actions like the boycotts undertaken in European countries.

Thoughtfully acknowledging our own history and current aspirations for local and other Indigenous Peoples prior to public deliberation offers hope for more permanent and meaningful restorative action in Berkeley as well as statewide, nationally, and across the globe.

REVIEW OF EXISTING PLANS PROGRAMS, POLICIES, AND LAWS
The City of Berkeley has a legacy of acknowledging the oppression and genocide of Indigenous people and taking concrete steps to support their struggle against institutions that grew out of setter-colonialist ideology as well as oppressive actions that persist today.

In 1992, Berkeley became the first city in the United States to rename as Indigenous Peoples’ Day the federal holiday formerly recognized as Columbus Day. This action motivated changes to BUSD’s history curriculum and undermined a long-standing revisionist history that European colonizer Christopher Columbus was a hero instead of a violent leader whose arrival led to the murder, enslavement, rape, and disease-related deaths of millions of Indigenous People.44 Since then, nearly 130 cities nationwide and 20 states have acknowledged this day of recognition as well.

In 2000, the City of Berkeley officially designated the West Berkeley Shellmound, one of 425 ceremonial burial mounds that ringed San Francisco Bay to honor ancestors, as a landmark. The site is also recognized by the State of California and is eligible for listing on the National Register of Historic Places, meaning it meets all of the criteria for such listing.

In 2020, the National Trust for Historic Preservation designated the Berkeley Shellmound and Village Site one of the 11 Most Endangered Historic Places in the United States.45 Regarding the significance of the Shellmound and Village historic district, the “Shellmound - Ohlone Heritage Site and Sacred Ground” website documents that:
“For thousands of years, the people of this original village on the East Bay shore thrived on the abundant resources of land and sea, developing a sophisticated maritime culture. Towering over the village was a great mound, estimated to have been at least 20 feet high and hundreds of feet long, one of the largest of the 425 44 Associated Press (1992). In Berkeley, Day for Columbus Is Renamed. New York Times. Web. 45 Dinkelspiel, F. (2020). West Berkeley Shellmound is now considered one of the U.S.’s 11 most endangered historic places. Berkeleyside. Web.

12 shellmound funerary monuments that once lined the shores of San Francisco Bay.

These mounds are older than the pyramids in Egypt and most of the major cities in the world.

Archaeologists have long recognized the importance of the West Berkeley Shellmound site, also known as the “West Berkeley Site,” or CA-ALA-307. The site has been determined eligible for listing on the National Register of Historic Places under all four criteria, and is listed on the California Register of Historical Resources.

Archaeological evidence from the West Berkeley Site has fundamentally shaped understandings of the early human history of the San Francisco Bay Area, and ongoing research continues to enrich and reinterpret an amazing historical narrative.

Eminent UC Berkeley archaeologist Kent Lightfoot describes the West Berkeley Site as a fishing village where “an active port was maintained over hundreds of years,” with dozens of tule balsa canoes going out on fishing and hunting expeditions, or ferrying people and goods across the Bay. Large nets were used to catch fish such as sturgeon, salmon, thresher sharks, jacksmelt and surfperch. Hunters pursued antelope, deer, tule elk, dolphins, porpoises, otters, sea birds and other quarry, cooking their catch in underground ovens and hearths.

A unique 40-foot long oval-shaped building at the site is thought to have functioned as a center for ceremonies, dances and special meetings. Charmstones, abalone pendants and other ritual items have been recovered from the site. Hundreds of human burials have been recorded, as well as ritual burials of coyotes and a California condor.”46
In May of 2009, the City Council adopted a resolution recognizing and endorsing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), a statement of values denouncing forced assimilation, land removal, violent exploitation, cultural genocide, and other actions abridging Indigenous People’s right to self-determination.47 In 2015, the Council later delivered a letter to the UN Secretary General and US Ambassador to the UN urging this declaration to be adopted as a convention, which would be legally binding.

In January of 2016, the City Council adopted a resolution formally recognizing the Ohlone Peoples as the original inhabitants of Berkeley and referred to the Berkeley Shellmound landmark.48 The latter affirmed the City’s commitment to the “defense of Indigenous rights, 46 Shellmound – Ohlone Heritage Site and Sacred Grounds. Web. 47 United Nations General Assembly (2007). United Nations Declaration on the Rights of Indigenous Peoples. Web.
48 Berkeley Resolution No. 67,352-N.S. Recognizing the Ohlone Peoples. Web.

13 culture, and dignity” as an official value, committing that “free, prior, and informed consent of the Ohlone and other Indigenous people should be integral to any alteration planning for the Berkeley Shellmound sacred site...”49 The success of this measure underscores how Indigenous groups including Ohlone members and conservation activists have organized in spreading awareness throughout the community about their homeland and sacred sites in Berkeley and the Bay Area.

In January 2018, Council adopted a policy changing Berkeley's City Limits signs to read "Welcome to Berkeley - Ohlone Territory." In October 2018, the City Council took further action and adopted a similar measure replacing all existing Welcome to Berkeley signs to signs including "Ohlone Territory." As part of their deliberations, the City Council decided that in addition to recognizing the Ohlone People through signage, there was a need for more learning opportunities to add historical context, including a special Council session on Ohlone history and culture, a webpage on the City of Berkeley website linking to cultural and historic information, and inviting representatives of the Ohlone to speak at a City Council meeting.

On June 9, 2020 the City Council passed an item to paint the words “Black Lives Matter” and “Ohlone Territory” on streets adjacent to Berkeley’s City Hall.

At its January 20, 2022 meeting, the Berkeley Rent Board unanimously voted to adopt a land acknowledgement statement to be read out loud at all future board and committee meetings.50
In the spirit of continuing to demonstrate and deepen the City of Berkeley’s commitment to recognition and inclusion of the Ohlone People we bring the proposal for an official land acknowledgment forward, including consideration of concrete actions that may follow from public deliberation.

ACTIONS/ALTERNATIVES CONSIDERED:

The City of Berkeley should consult with Lisjan Ohlone leadership regarding any decisions related to restorative, reparative, or other supportive actions. Some actions the City may wish to consult on include:
49 Berkeley Resolution No. 67,353-N.S. Honor Berkeley Shellmound Indigenous Sacred Site, UC Berkeley Return Ancestral Remains to Ohlone Peoples. Web. 50City of Berkeley (2022). Berkeley Rent Board Adopts Land Acknowledgement Statement. Web.

14 Create Easements and/or Return City land: The Sogorea Te’ Land Trust and the City of Oakland on September 8, 2022 announced a visionary, historic plan to return approximately five acres of land owned by the City to Indigenous stewardship.

The Oakland City Council will hold hearings to consider conveying the site, known as Sequoia Point, to the Sogorea Te’ Land Trust, and the East Bay Ohlone tribe, Confederated Villages of Lisjan Nation. The City would grant a cultural conservation easement in perpetuity to the Land Trust, allowing the Land Trust to immediately use the land for natural resource restoration, cultural practices, public education, and to plan for additional future uses.

What started out with a casual conversation between Oakland Mayor Libby Schaaf and tribal Chairperson Corrina Gould in 2018, grew into a partnership between the City and the Land Trust to begin to address the historic harms of Oakland’s founding.

In the short term, the easement would allow the Land Trust to immediately begin tending to the land, gather Native plants and foods, clean up the area, and perform environmental and natural habitat restoration. The long-term vision of this project is to create a thriving, beautiful, ceremonial gathering place and structure where Indigenous people and their guests can come together and share cultural information and celebrations. “I am committed to returning land to Indigenous stewardship, to offer some redress for past injustices to Native people,” said Mayor Schaaf. “I hope the work we are doing in Oakland with the Sogorea Te’ Land Trust can serve as a model for other cities working to return Indigenous land to the Indigenous community we stole it from.” In recognition of this historic moment, tribal Chairperson Corrina Gould said, “This agreement will restore our access to this important area, allowing a return of our sacred relationship with our ancestral lands in the hills. The easement allows us to begin to heal the land and heal the scars that have been created by colonization for the next generations.”51
Berkeley should consider this or similar actions to return land to Ohlone ownership and/or stewardship.
51 Sogorea Te' Land Trust and City of Oakland Announce Plan to Return Land to Indigenous Stewardship.

Web.

15 Local Support for Land Transfers: As part of the land acknowledgement process, the City of Berkeley might consider encouraging residents to donate land to indigenous stakeholders such as the Sogorea Te’ Land Trust that partners with dozens of local food justice and environmental groups to protect our shared environment.52 The Council could recognize donations of land or actions taken by community members to donate land through wills. The City could also partner to distribute information on the Sogorea Te’ Land Trust and include information about the Trust on its website, including a guide to these types of donations produced by the Sustainable Economies Law Center, a copy of which is attached.53 54
Local support for Voluntary Land Taxes: The City of Berkeley may consider further means to encourage residents to donate Indigenous causes through payment of voluntary land taxes, “Shuumi,” that support the return of Indigenous land to Indigenous people.55 The Sogorea Te’ Land Trust, located in the East Bay, has such a program, and a similar program allows residents of the Humboldt Bay region to pay a voluntary tax to the Wiyot people. In Seattle, nearly 4,300 residents have signed up to pay the Duwamish Tribe symbolic rent.56
Support for Statewide Indigenous Land Sovereignty: The City of Berkeley may continue its consideration of support letters, resolutions, and education campaigns that highlight exploitation of ancestral Indigenous people and lands.

Future efforts could support action to return land or pay restitution to Indigenous people.

Returning land to Indigenous sovereignty or using restitution funds for Indigenous-led sustainability initiatives acknowledges the leading role that the securing of land had in the genocide of Indigenous people across the region.57
Berkeley further may consider statements of support for giving Indigenous people sovereignty over national and local parks, acknowledging the acts of violence and genocide that drove them from these locations. Precedent exists in New Zealand and Australia. 52 Sogorea Te’ Land Trust. Return the Land / Land Return. Web. 53 Sustainable Economies Law Center. Options for Transferring Land. Web. 54 Note: for lands outside this region, individuals can often find information on donations by searching “Tribal Historic Preservation Officer” along with the name of the nation they wish to give to. 55 Sogorea Te’ Land Trust. Shuumi Land Tax. Web.
56 Singh, M. (2019). Native American 'land taxes': a step on the roadmap for reparations. The Guardian.

Web.
57 Lindsay, B.C. (2012) Murder State: California’s Native American Genocide, 1846-1873. University of Nebraska Press. Print. P. 147- 186.

16 Indigenous communities are already stakeholders in park management, with a century of experience managing the layers of bureaucracy involved in managing these lands.58

CONSULTATION/OUTREACH OVERVIEW AND RESULTS
Much like the process the Rent Stabilization Board pursued, the wording and intentions behind this land acknowledgement were developed in close consultation with Ohlone representatives. Academic and Native American sources underly the brief historical overview.

RATIONALE FOR RECOMMENDATION
The City of Berkeley has a moral obligation to acknowledge local and broader atrocities against Indigenous people, and continued injustices. The regular repetition of the Land Acknowledgement, coupled with opportunities for deeper learning, will serve as a constant reminder of our responsibilities, and open the door to further restorative actions by the City and members of the community.

IMPLEMENTATION, ADMINISTRATION & ENFORCEMENT
Very little staff time or expense is needed to carry out the requirements of this referral. For Zoom meetings, a written version of the Acknowledgement will need to be prepared for screening prior to Council meetings, and the Agenda Committee will need to add the reading of the Acknowledgement to the Ceremonial Agenda of the first Regular City Council meeting of each month. For in-person meetings, a poster-sized version of the Land Acknowledgement should be produced for display in a prominent location in the Council chambers. This likely can be accomplished for under $100.

Staff will further need to convey a copy of this item and resolution to the secretaries and chairs of each appointed or elected body in Berkeley, with a note that the City Council has requested such bodies to consider incorporating the acknowledgement into their meeting practices.

Posting the Land Acknowledgement on the City’s website homepage and completing the new Ohlone history webpage is a limited expense and should be completed as quickly as possible. Other jurisdictions and organizations that practice the reading of Land Acknowledgements often also include pages about the history of local Indigenous People on their websites. These can serve as examples. Consultation with Lisjan Ohlone representatives is central to ensuring what is posted is complete and accurate. 58 Treuer, D. (2021). Return the National Parks to the Tribes. The Atlantic. Web.

17 ENVIRONMENTAL SUSTAINABILITY
This resolution raises awareness of how genocide and exploitation of land and other natural resources intersects with climate change, wildfire, food insecurity, and other major challenges our community – and planet - face. It will also raise awareness of the local conservation and environmental work of the Ohlone people.

FISCAL IMPACT
See Section in Implementation, Administration, and Enforcement for a description of de minimus associated costs.

OUTCOMES & EVALUATION
The City Council should partner with the Ohlone to develop and carry out more substantive acts of education, partnership, and restitution. This will prevent the land acknowledgement statement from becoming a mere “check-box of optical allyship.”

CONTACT PERSON
Councilmember Sophie Hahn, [email protected]; 510-682-5905 Attachments

1. Land Acknowledgement Statement

2. Land Acknowledgement Resolution

3. Sustainable Economies Law Center Options for Transferring Land – A Brief Guide

18 ATTACHMENT 1
Land Acknowledgement Statement
The City of Berkeley recognizes that the community we live in was built on the territory of xučyun (Huchiun (Hooch-yoon)), the ancestral and unceded land of the Chochenyo (Cho-chen-yo)-speaking Ohlone (Oh-low-nee) people, the ancestors and descendants of the sovereign Verona Band of Alameda County. This land was and continues to be of great importance to all of the Ohlone Tribes and descendants of the Verona Band. As we begin our meeting tonight, we acknowledge and honor the original inhabitants of Berkeley, the documented 5,000-year history of a vibrant community at the West Berkeley Shellmound, and the Ohlone people who continue to reside in the East Bay.

We recognize that Berkeley’s residents have and continue to benefit from the use and occupation of this unceded stolen land since the City of Berkeley’s incorporation in 1878. As stewards of the laws regulating the City of Berkeley, it is not only vital that we recognize the history of this land, but also recognize that the Ohlone people are present members of Berkeley and other East Bay communities today. The City of Berkeley will continue to build relationships with the Lisjan Tribe and to create meaningful actions that uphold the intention of this land acknowledgement.

19 ATTACHMENT 2 - RESOLUTION
RESOLUTION #####-N.S.

RECOGNIZING THAT BERKELEY IS THE ANCESTRAL, UNCEDED HOME OF THE

OHLONE PEOPLE AND ADOPTING AN OFFICIAL CITY OF BERKELEY LAND

ACKNOWLEDGEMENT AND PRACTICES
WHEREAS Acknowledging that the City of Berkeley rests upon the ancestral lands of the Chochenyo speaking Lisjan Ohlone people brings attention to their centuries of resistance to colonial violence and reminds our City and community of the need to take concrete restorative actions; and
WHEREAS Land acknowledgment is a traditional custom that dates back centuries in many Native nations and communities, land acknowledgments continue to be used by Native Peoples and non-Natives to recognize Indigenous Peoples who are the original stewards of the lands on which we now live; and
WHEREAS To begin public meetings, localities across the United States including Denver (CO), Portland (OR), and Phoenix (AZ) now share official land acknowledgements as well as many public agencies, including the National Park Service, the National Aeronautics and Space Administration (NASA); and
WHEREAS Many public and public-facing private institutions have also adopted land acknowledgement statements including UC Berkeley, Mills College, Chabot Las Positas Community College District, California College of the Arts, UCSF, Stanford, and recently, Berkeley’s Rent Stabilization Board; and
WHEREAS One of the leading advocacy groups for land acknowledgement, the Native Governance Center, asks that land acknowledgements go beyond a mere statement, by providing research on the history of indigenous peoples and offering concrete actions to support them; and
WHEREAS The settlers of California, primarily Europeans seeking religious converts, agricultural land, and economic opportunity during the gold rush committed one of the most egregious genocides in history, murdering 80 percent of Indigenous people in the state from 1846 to 1873 through massacre by state-directed militias, enslavement in mining and agricultural production, displacement causing starvation, and compulsory assimilation; and

20 WHEREAS The Lisjan people have lived in the territory of Huchiun, the land that is now known as the East Bay in the San Francisco Bay Area, since the beginning of time and for thousands of years and hundreds of generations; and WHEREAS the Lisjan people did not own the land, they belonged to it, and generation after generation they have cultivated reciprocal relationships with plants and animals and developed beautiful and powerful cultural practices that keep us in balance; and WHEREAS The Confederated Villages of Lisjan are one of many Ohlone nations, each with its own geography and history, whose tribes, cultures and languages are as diverse as the ecosystems we live within; and
WHEREAS The Lisjan are made up of the six nations that were directly enslaved at Mission San Jose in Fremont, CA and Mission Dolores in San Francisco, CA: Lisjan (Ohlone), Karkin (Ohlone), Bay Miwok, Plains Miwok, Delta Yokut and Napian (Patwin); and
WHEREAS The colonization of the land where Berkeley is located began with the reign of terror inflicted by Spanish soldiers and missionaries who sought to convert all Indigenous people into Catholic subjects of Spain and steal their land; and WHEREAS The Missions were plantations, built by slave labor and sustained through brutal physical violence and extractive land practices, and the Spanish also brought deadly diseases, invasive species, and Christian ideology based on human dominion of the natural world, causing devastating consequences for the Lisjan people and all living beings they shared the land with; and
WHEREAS After a brief but harrowing Mexican rancho period, Lisjan survivors faced extermination policies by the United States that aimed to eliminate California Indians entirely; and
WHEREAS In a climate of virulent racial discrimination and state-sponsored vigilante killings, most Lisjan families survived by isolating themselves and concealing their identities, and cultural and spiritual traditions were forced into dormancy or secrecy resulting in much knowledge perishing with the passing of generations; and WHEREAS Despite these concerted efforts to erase Lisjan history and identity, the Lisjan community forms a diverse and vibrant constellation of tribes and families that utilizes a wide array of survival strategies to navigate a profoundly altered 21st century

21 world, and the Lisjan continue to revitalize their cultural practices and uphold their responsibilities to protect and care for their ancestral homeland; and WHEREAS Having survived over two centuries of genocide and colonization during the Spanish, Mexican and American eras, the Lisjan continue to inhabit their ancestral homeland, fight for their sacred sites, and revitalize their cultural practices; and WHEREAS The City of Berkeley has a legacy of acknowledging the oppression and genocide of Indigenous people and taking both symbolic and concrete steps to support their struggle against institutions that grew out of setter-colonialist ideology as well as steps to address oppressive actions that persist today; and
WHEREAS In 1992, Berkeley became the first city in the United States to rename as Indigenous Peoples’ Day the federal holiday formerly recognized as Columbus Day, which motivated changes to BUSD’s history curriculum and undermined a long-standing revisionist history that European colonizer Christopher Columbus was a hero instead of a violent leader whose arrival led to the murder, enslavement, rape, and disease-related deaths of millions of Indigenous People; and
WHEREAS In 2000, the City of Berkeley officially designated the West Berkeley Shellmound, one of 425 ceremonial burial mounds that ringed San Francisco Bay to honor ancestors, as an official Landmark, and the site is also recognized by the State of California and is eligible for listing on the National Register of Historic Places, meaning it meets all of the criteria for such listing; and
WHEREAS In 2020, the National Trust for Historic Preservation designated the Berkeley Shellmound and Village Site one of the 11 Most Endangered Historic Places in the United States; and
WHEREAS In May of 2009, the City Council adopted a resolution recognizing and endorsing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), a statement of values denouncing forced assimilation, land removal, violent exploitation, cultural genocide, and other actions abridging Indigenous People’s right to self- determination and in 2015 the Council delivered a letter to the UN Secretary General and US Ambassador to the UN urging this declaration to be adopted as a convention, which would be legally binding; and
WHEREAS In January of 2016, the City Council adopted a resolution formally recognizing the Ohlone Peoples as the original inhabitants of Berkeley and affirmed the City’s commitment to the “defense of Indigenous rights, culture, and dignity” as an official value,

22 committing that “free, prior, and informed consent of the Ohlone and other Indigenous people should be integral to any alteration planning for the Berkeley Shellmound sacred site...”; and
WHEREAS In January 2018, the City Council adopted a policy changing Berkeley's City Limits signs to read "Welcome to Berkeley - Ohlone Territory" and in October 2018, the City Council took further action and adopted a similar measure replacing all existing Welcome to Berkeley signs to signs including "Ohlone Territory;" and WHEREAS During deliberations to recognize the Ohlone on City Limit Signs, the City Council decided that in addition to recognizing the Ohlone People through signage, there was a need for more learning opportunities to add historical context, including a special Council session on Ohlone history and culture, a webpage on the City of Berkeley website linking to cultural and historic information, and inviting representatives of the Ohlone to speak at a City Council meeting; and
WHEREAS On June 9, 2020 the City Council passed an item to paint the words “Black Lives Matter” and “Ohlone Territory” on streets adjacent to Berkeley’s City Hall; and WHEREAS At its January 20, 2022 meeting, the Berkeley Rent Board unanimously voted to adopt a land acknowledgement statement to be read out loud at all future board and committee meetings, providing an important example for the City to follow.

NOW THEREFORE, BE IT RESOLVED In the spirit of continuing to demonstrate and deepen the City of Berkeley’s recognition, inclusion, restitution, and repair towards the Lisjan Ohlone, whose ancestral home lies where the City of Berkeley is located, and who have survived centuries of cultural, physical, and environment genocide at the hands of Spanish, Mexican, and American colonists, the Council of the City of Berkeley hereby adopts the following Land Acknowledgement:

The City of Berkeley recognizes that the community we live in was built on the territory of xučyun (Huchiun (Hooch-yoon)), the ancestral and unceded land of the Chochenyo (Cho-chen-yo)-speaking Ohlone (Oh-low-nee) people, the ancestors and descendants of the sovereign Verona Band of Alameda County.

This land was and continues to be of great importance to all of the Ohlone Tribes and descendants of the Verona Band. As we begin our meeting tonight, we acknowledge and honor the original inhabitants of Berkeley, the documented 5,000-year history of a vibrant community at the West Berkeley Shellmound, and the Ohlone people who continue to reside in the East Bay. We recognize that Berkeley’s residents have and continue to benefit from the use and occupation of

23 this unceded stolen land since the City of Berkeley’s incorporation in 1878. As stewards of the laws regulating the City of Berkeley, it is not only vital that we recognize the history of this land, but also recognize that the Ohlone people are present members of Berkeley and other East Bay communities today. The City of Berkeley will continue to build relationships with the Lisjan Tribe and to create meaningful actions that uphold the intention of this land acknowledgement.

BE IT FURTHER RESOLVED That the Land Acknowledgement shall be displayed in writing at all Regular Meetings of the Berkeley City Council and shall be read out loud during the Ceremonial portion of the first Regular City Council Meeting of each month.

1 OPTIONS FOR TRANSFERRING LAND

A BRIEF GUIDE

This short guide summarizes various options for landowners interested in transferring land to another person, group, or community. Landowners who are particularly interested in transferring ownership to nonprofit land trusts, indigenous tribes, and community-based organizations will find this guide most useful.

Because we have written this guide with landowners in mind, we also provide a brief consideration of the advantages and disadvantages of each option from that perspective. Having said that, we think it is essential that landowners consider their own goals as well as the goals and needs of the party or community to whom they would like to transfer land.

Four key questions to consider as you read through this guide focus on the financial and use needs of the parties.

1. What are the financial needs of the transferring party?

2. What are the financial needs of the receiving party?

3. What are the use needs of the transferring party after the transfer?

4. What are the use needs of the receiving party after the transfer?

The land transfer mechanisms covered in this guide include:
• Full Value Sale
• Charitable (Bargain) Sale
• Full Donation
• Donation of a Remainder Interest
• Revocable Transfer on Death (Lady Bird Deed)
• Donation by Bequest
• Sale or Donation of an Easement

In any situation, we strongly recommend that you seek individualized tax, legal, and estate planning advice to determine which of these options is best suited to your circumstances. Laws vary from state to state, so having appropriate counsel where the land is located is critical.

2 Full Value Sale
This is likely the kind of transfer of ownership that most people are familiar with. In this scenario, the landowner sells to the buyer at a price determined by a third-party appraisal. The buyer pays the full value and receives title to the property. For many people, including nonprofits and other community-based organizations, a full value sale is not an affordable option. However, there are ways to make this option more affordable by delaying payment in two ways.

1. Installment Sale: An installment sale allows the buyer to make payments over several years at intervals and amounts that are agreeable to both parties. The landowner would retain title to the property until the final payment. The parties could agree to provide the buyer with use of the land at any point during the payment period, including at the first payment or after payment has been made in full.

2. Seller Financing: Alternatively, the landowner could provide seller financing, meaning that title immediately transfers to buyer, and in exchange, the landowner gets a promissory note in which the buyer promises to pay the landowner over time, with or without interest. A deed of trust is recorded on the property to secure payment of the promissory note.

Advantages of this option:
• Fee simple ownership of land gives the buyer the greatest ability to fulfill their mission and ensure secure tenure over the long term.

Disadvantages of this option:
• The landowner will have to pay income tax on the capital gain if the land has appreciated in value since it was originally purchased. • This is the least financially feasible option for buyers, particularly nonprofit organizations with a limited budget and limited capacity to raise capital. • An installment sale may limit the buyer’s uses of the land until the transfer is complete.

3 Charitable (Bargain) Sale
A charitable, or bargain, sale occurs when the landowner sells land to a tax-exempt nonprofit organization for less than market value. This kind of sale makes the land more affordable to the buying nonprofit, and can offer tax deduction benefits to the selling landowner. The parties can also use the Installment Sale or Seller Financing options discussed above in this situation as well, if affordability is still a concern for the nonprofit buying the land.

Advantages of this option:
• The difference between full market value and the sale price can qualify the landowner for an income tax deduction and capital gains tax reduction for that portion of the value. This can offset the income taxes and capital gains taxes the landowner will incur from the sale of the property, after reducing ordinary income.
• If the land has significantly increased in value since the seller purchased it, this option can offset a large amount of the resulting capital gains liability for the increased value.
• The nonprofit buyer will be more likely to afford the purchase price of the land.

Disadvantages of this option:
• The landowner does not realize the full income from the market value of the property.
• This may not be the best strategy if the landowner would otherwise qualify for public benefits in the next several years. Recently transferred assets like land can negatively impact eligibility for benefits.

4 Full Donation
This is the simplest way to transfer land to another party and is the most affordable option for receiving nonprofits or community-based organizations to advance their mission to protect, preserve, and steward land in the long term.

Advantages of this option:
• Fee simple donation to an eligible tax-exempt organization would give the landowner the greatest immediate income tax benefits, sometimes for the full appraised value of the land, in addition to relief from property taxes, and potential estate tax benefits.
• The receiving party would not require financing in order to receive the land. • The land would be immediately available to the receiving party.

Disadvantages of this option:
• The landowner does not realize the full income from the market value of the property.
• This may not be the best strategy if the landowner would otherwise qualify for public benefits in the next several years. Recently transferred assets like land can negatively impact eligibility for benefits.

5 Donation of a Remainder Interest
If the landowner would like to donate the land to an eligible tax-exempt nonprofit organization but retain the ability to live on the land during their, or their family members’, lifetime, they can donate what is called a “remainder interest” in the land while retaining what is called a “life estate.”

Advantages of this option:
• Full transfer to the receiving party will occur immediately upon the landowner’s death. Upon the landowner’s, or their designated family members’, death, this kind of transfer avoids the expense and delay of probate. • The landowner may be able to receive an immediate income tax deduction for the value of the property that was donated (determined by an appraisal). • This may be a good option for landowners who receive public benefits. The state can make a claim for repayment of these benefits against an estate and place a lien on property after death. However, because donating a remainder interest is irrevocable, the property will not be part of the estate at death. • The land will not be subject to capital gains tax on appreciated value. • The property will not be part of the donor’s taxable estate, where the donor (and/or the donor’s spouse) are the only life tenants.

Disadvantages of this option:
• The landowner will need to pay the property taxes on the land while retaining use of the property.
• The landowner does not realize the full income from the market value of the property.
• The receiving party would not require financing in order to receive the land. • Without another agreement, the land will not be immediately available for use by the receiving party.

6 Revocable Transfer on Death Deed (Lady Bird Deed)
Lady Bird Deeds, which are only available in some states, are similar to deeds described above that create a life estate and donate a remainder interest, except that Lady Bird Deeds are revocable, meaning that the landowner can, during their lifetime, revoke the transfer. This gives more control to the landowner, but can put the receiving party in an uncertain position. Lady Bird Deeds are available in California until 2021, unless legislation is introduced to extend the law.

Advantages of this option:
• Transfer of title will occur immediately upon the landowner’s death, so the donation will not be subject to the expense and delay of probate. • The land donation will not be subject to capital gains tax on appreciated value. • The landowner can revoke the deed at any time during their lifetime.

Disadvantages of this option:
• Because the deed is revocable, the landowner does not receive an income tax deduction available with other land donations.
• Without another agreement, the land will not be immediately available to the receiving party.
• The receiving party would not require financing in order to receive the land. • This kind of transfer does not provide reliable certainty to the receiving party since the transfer can be revoked during the landowner’s lifetime.

7 Donation by Will or Living Trust (Bequest)
A landowner can donate land in a will or through a revocable living trust. Both strategies allow the landowner to retain full use of the land during their lifetime.

Advantages of this option:
• Reduces estate or inheritance taxes.
• Can be changed or revoked at any time during landowner’s lifetime. • The receiving party would not require financing in order to receive the land.

Disadvantages of this option:
• The landowner will still be responsible for paying property taxes for the entire property during their lifetime.
• Without another agreement, the land will not be immediately available to the receiving party.

8 Agricultural, Conservation, or Cultural Easement Donation An easement is an agreement between the landowner and a third party that affects the landowner’s rights on the land covered by the easement. Easements are generally recorded on the deed of the property and are therefore permanent. Conservation, agricultural, and cultural easements are specific kinds of agreements that can be entered into with eligible organizations or tribes that can also qualify as a charitable contribution if donated by the landowner.
• A conservation easement permanently restricts uses on the land that interfere with the ecological conservation of that land.
• An agricultural easement permanently protects farmland by setting limitations on the use of the land.
• A cultural easement, available in some states, grants indigenous communities certain access rights to lands for continuing and preserving cultural heritage.

Easements can be sold or donated. The party holding the easement cannot also be the party that holds title to the land.

Advantages of this option:
• The landowner can retain ownership of the land and convey the land to their heirs.
• If the easement meets IRS criteria, the landowner may be able to deduct the value of any donated portion of the easement up to 50% of their adjusted gross income, or 100% if they are a farmer, for up to 15 years. • Affirmative easements (those requiring certain uses) can increase the value of the easement and reduce the overall value of the land, making it more affordable if the easement is sold instead of donated
• In addition to an income tax deduction, the easement may reduce property taxes and estate taxes.

Disadvantages of this option:
• Easements do not convey an ownership interest in the land to the party holding the easement. This may not align with the intent of either or both parties. • Easements can be expensive to enforce, thus creating a financial liability for the easement-holding party.
• Easements, alone, do not preserve long-term affordability of land, because an easement only reduces the relative market value of the land, but does not immunize the land value from increasing through speculation and other market forces.

Office of the City Manager
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: http://www.CityofBerkeley.info/Manager

PUBLIC HEARING
October 11, 2022
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Jordan Klein, Director, Planning and Development Department Subject: Referral Response: Amendments to the Zoning Ordinance to clarify and streamline the permit process for Amusement Device Arcades

RECOMMENDATION
Conduct a public hearing and, upon conclusion, adopt the first reading of Zoning Ordinance amendments to provide consistency for the incidental use of Amusement Devices and regulate Amusement Device Arcades as Commercial Recreation Centers.

SUMMARY
This report presents Zoning Ordinance amendments recommended to improve consistency between the Title 23 Zoning definitions of Amusement Devices, Amusement Device Arcades (Arcades) and Incidental Use1, and apply the permit structure for Commercial Recreation Centers to Amusement Device Arcades.

FISCAL IMPACTS OF RECOMMENDATION
Zoning Ordinance amendments will have minimal financial impacts on the City. Permit fees compensate the City for review expenses. In addition, zoning changes are expected to reduce barriers and costs to those interested in operating Amusement Devices, which could have an economic benefit to the City. 1 BMC Chapter 23.502.020 Defined Terms:

Amusement Device: Any machine or device which may be operated for use as a game, contest or amusement upon the insertion of a coin, slug or token in any slot or receptacle attached to such machine or connected therewith, which does not contain a payoff device for the return of slugs, money, coins, checks, tokens or merchandise.

Amusement Device Arcade: A type of commercial recreation center which contains six or more amusement devices. An amusement device arcade is a type of commercial recreation center irrespective of whether the amusement devices are the principal commercial activity of the establishment.

Use, Incidental: A use of a lot and/or building that is secondary to the principal permitted use, but that by nature could be independent. An incidental use shall not exceed 25 percent of the floor area of the primary use, and if it consists of the commercial sales of a different line of products or services than the primary use, such incidental use may not generate gross receipts in excess of 33 percent of the gross receipts generated by the primary use.

20

Referral Response: Amendments to Zoning Ordinance PUBLIC HEARING for Amusement Device Arcades OCTOBER 11, 2022

CURRENT SITUATION AND ITS EFFECTS
Commercial Recreation Centers (CRC) are non-theater establishments where recreation facilities are offered or amusement devices are provided as a principal commercial activity. In 2018, City Council adopted a tiered permitting structure for CRCs. Tables 1 and 2 show the distinct thresholds established per General Plan designation, which coincide with various zoning districts according to purpose and intensity.

Table 1: Avenue Commercial Permit Threshold for CRCs
Size Threshold (square feet) Permit Required2
Under 5,000 ZC
5,000 - 10,000 AUP
Over 10,000 UP(PH)
*Outdoor uses require UP(PH)
Table 2: Neighborhood Commercial Permit Threshold for CRCs Size Threshold (square feet) Permit Required
Under 3,000 AUP
Over 3,000 UP(PH)
*Outdoor uses require UP(PH)
Arcades are defined by the BMC as a type of CRC, yet they are regulated separately; in some districts they are prohibited, and in others they require a Use Permit regardless of the proposed establishment's square footage. The proposed Zoning Ordinance amendments are presented in this report and fall under two categories:

1. Regulate Arcades as Commercial Recreation Centers

2. Modify Regulations Allowing Amusement Devices Incidental to a Permitted Use To read more about each recommendation presented below, please see the Planning Commission Report (Attachments 2 and 3).

1. Regulate Arcades as Commercial Recreation Centers
Proposed amendments outlined in this category will allow Arcades to be regulated as Commercial Recreation Centers (CRCs).
2 Zoning Certificate (ZC) | Administrative Use Permit (AUP) | Use Permit, Public Hearing (UP(PH))

Referral Response: Amendments to Zoning Ordinance PUBLIC HEARING for Amusement Device Arcades OCTOBER 11, 2022

Rationale: The CRC permitting structure adopted by City Council in December 2018 as part of the Small Business Support Package is clear, easy to understand and is appropriate for Arcades, and so should be used for Arcades as well. Arcades are currently defined as a type of CRC, but are listed separately in Use Tables and have different permit requirements. Regulating Arcades as CRCs will reduce redundancy and discrepancies in the BMC.

● Modify Arcades in the Allowed Use Table - Table 23.204-1 to refer to the CRC permitting structure to be regulated as CRC use. Figure 1 shows the modification of Amusement Arcade in the allowed use table for Commercial Zoning Districts. Figure 2 shows the current CRC regulations that Arcades will be folded into under each District.

Figure 1. Summary of Proposed Amendments to regulate Arcades as CRCs COMMERCIAL DISTRICTSZC = Zoning Certificate
AUP = Administrative Use Permit
UP(PH) = Use Permit
NP = Not Permitted
-- = Permitted with AUP, see
Error!
Reference source not found.(B)
[#] = Table Note Permit
Requirement
* Use-Specific Regulations Apply

C-C C-U C-N C-E C-NS C-SA C-T C-SO C-DMU C-W C-AC

USE-SPECIFIC

REGULATIONS
Food and Alcohol Service, Lodging, Entertainment, and Assembly Uses Adult-oriented Business UP(PH)* UP(PH)* NP NP NP NP NP NP UP(PH)* UP(PH)* NP Error! Reference
source not
found..A
See Error! Reference source not found..A
Amusement Device Arcade UP(PH)* UP(PH)* NP NP NP UP(PH)* NP NP UP(PH)* UP(PH)* UP(PH) Error! Reference
source not
found..B
Bar/Cocktail Lounge/Tavern UP(PH)* UP(PH)* UP(PH)* – NP UP(PH)* UP(PH)* NP UP(PH)* UP(PH)* UP(PH) Error! Reference
source not
found..B.3; Error!
Reference source
not found..B.2;
Error! Reference
source not found.

Commercial Recreation Center See Error! Reference source not found..A Figure 2. Existing CRC Regulations
Districts CRC
Size Thresholds (sq. ft.) Permit Required
Neighborhood Commercial
C-N
C-E
C-NS
C-SA
C-SO
C-AC
Under 3,000
Over 3,000
AUP
UP(PH)

Referral Response: Amendments to Zoning Ordinance PUBLIC HEARING for Amusement Device Arcades OCTOBER 11, 2022

Avenue Commercial
C-C
C-U
C-T
C-W
C-DMU
Under 5,000
5,000-10,000
Over 10,000
ZC
AUP
UP(PH)
Manufacturing District
M Prohibited
MM Prohibited

MU-LI AUP
MU-R Prohibited
● Remove Special Provisions preventing Amusement Device Arcades from locating within a radius of 600 feet of any primary or secondary school (as seen below).

23.302.070 B. Amusement Arcades

1. Distances from Schools. An Amusement Device Arcade may not be established within a radius of six hundred (600) feet of any primary or secondary school.)
Rationale: This provision was established in the 1990s to prevent Amusement Device Arcades from establishing too close to primary and secondary schools. However, the advancement of technology has brought gaming opportunities to people’s households and fingertips through computers, gaming consoles, mobile phones, and other portable devices, and in that context the provision is no longer relevant.

2. Modify Regulations Allowing Amusement Devices Incidental to a Permitted Use
Amendments will allow incidental use of Amusement Devices in up to 25 percent of the net floor area of the primary use with a zoning certificate.

Rationale: Arcades are currently defined as having six or more Amusement Devices. Incidental Use is defined as not exceeding 25 percent of the primary use.

Current regulations allow up to three Amusement Devices incidental to an established use with either an AUP or a UP(PH), depending on the district.

Proposed amendments close the gap between Arcades, the incidental use of Amusement Devices, and the definition of incidental use by changing the definition of Amusement Devices incidental to an establish use to not exceeding 25 percent of the primary use. Amendments also reduce permit levels for incidental uses to align with CRCs and to maintain consistency across BMC regulations. Proposed amendments are listed below and summarized by Figure 3.

Referral Response: Amendments to Zoning Ordinance PUBLIC HEARING for Amusement Device Arcades OCTOBER 11, 2022

● Change the maximum number of Amusement Devices allowed as an incidental use from three devices to up to 25 percent of total net floor area of the primary use.
● Amend the definition of Arcade from CRC containing six or more Amusement Devices to CRC with Amusement Devices in more than 25 percent of net floor area of the primary use.
● Reduce the level of discretion for Amusement Devices as an incidental use from an Administrative Use Permit (AUP) to a Zoning Certificate (ZC) for Avenue Commercial and Manufacturing Districts.
● Remove permitting discretion for Amusement Devices as an incidental use from a Use Permit with a Public Hearing (UP(PH)) to a Zoning Certificate (ZC) for Neighborhood Commercial Districts.

Figure 3. Summary of Current and Proposed Regulations for Amusement Devices Incidental to and a Primary Use
Current Proposed
Districts Up to 3
Amusement
Devices allowed
as an incidental
Use
Up to 25 Percent
of Primary Use
Amusement
Devices allowed
as an incidental
Use
Neighborhood Commercial

C-N UP(PH) ZC

C-E UP(PH) ZC

C-NS UP(PH) ZC

C-SA UP(PH) ZC

C-SO UP(PH) ZC
Avenue Commercial
C-1 AUP ZC

C-T AUP ZC

C-W AUP ZC

C-DMU AUP ZC
Manufacturing Districts
M Prohibited Prohibited
MM Prohibited Prohibited

MU-LI AUP ZC
MU-R* AUP ZC
* MU-R Allows Amusement Devices as incidental use only and prohibits arcades

Referral Response: Amendments to Zoning Ordinance PUBLIC HEARING for Amusement Device Arcades OCTOBER 11, 2022

BACKGROUND
The Berkeley Municipal Code (BMC) currently prohibits Arcades in the Elmwood Commercial (C-E) district. On June 25, 2019, the City Council adopted a referral authored by Councilmember Droste, seeking consideration of levels of discretion for Arcades in the C-E District, recommending that they be re-examined and relaxed (Attachment 4).

On October 7, 2020, Staff shared research and findings associated with the business support referral with the Planning Commission. The staff analysis of this referral identified issues with the existing permit requirements for Arcades throughout commercial and manufacturing districts in Berkeley. The Commission asked staff to proposed amendments based on the recommendations discussed. On February 3, 2021, Staff returned to the Planning Commission and presented Zoning Ordinance amendments concerning the regulation of Amusement Device Arcades and Amusement Devices.

Commissioner Wiblin motioned to recommend that City Council adopt staff’s recommendation, and Commissioner Krpata seconded the motion. The Planning Commission unanimously voted to recommend that City Council adopt staff’s recommendation (M/S: Wiblin/Krpata; Ayes: Commissioners Beach, Ghosh, Hauser, Kapla, Krpata, Lacey, Schildt, Vincent, and Wiblin; Noes: None; Abstain: None; Absent:

None). Amendments presented here reflect a more comprehensive response to Council’s referral.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
There are currently no Arcade businesses in the City of Berkeley. The proposed ordinance will reduce the zoning barriers for operators to locate within the City and can thereby reduce the travel distance and vehicle miles traveled of residents and community members to access Arcades.

RATIONALE FOR RECOMMENDATION
As retail continues to shift towards online platforms, business models are evolving to provide activity-based experiences that attract customers. Existing thresholds for CRCs were adopted by City Council as recently as 2019 to provide a clear permitting structure for such businesses. CRC regulations also provide the flexibility requested by Council’s referral while also providing opportunities for the surrounding community to weigh in during the permitting process. Extending the same clear permitting path to Arcades, by defining them as CRCs, allowing incidental amusement devices and improving consistency throughout the BMC, improves opportunities for businesses to adapt and provide activity-based experiences.

Referral Response: Amendments to Zoning Ordinance PUBLIC HEARING for Amusement Device Arcades OCTOBER 11, 2022

ALTERNATIVE ACTIONS CONSIDERED
Council could take no action, in which case the Zoning Ordinance would retain existing regulations for Amusement Devices and Arcades.

CONTACT PERSON
Robert Rivera, Senior Planner, Land Use Planning Division, [email protected] Steven Buckley, Land Use Planning Manager, Land Use Planning Division, (510) 981- 7411
Attachments:
1: Draft Ordinance
2: Planning Commission Staff Report (without attachments) – Oct. 7, 2020 3: Planning Commission Meeting Minutes – Oct. 7, 2020
4: Zoning Ordinance Modification for Elmwood Commercial Districts (Councilmember Droste, 6/25/19)
5: Public Hearing Notice

ORDINANCE NO. -N.S.

AMENDING BERKELEY MUNICIPAL CODE SECTIONS 23.302.070, 23.204.020,

23.206.020 AND 23.502.020 TO MODIFY THE DEFINITION OF AMUSEMENT DEVICE

ARCADES AND MODIFY PERMIT REQUIREMENTS FOR AMUSEMENT ARCADES IN

THE COMMERCIAL ZONING DISTRICT AND WHEN INCIDENTAL TO A PERMITTED USE
BE IT ORDAINED by the Council of the City of Berkeley as follows:

Section 1. That Berkeley Municipal Code Section 23.302.070 B. Amusement Devices Arcade is amended as follows:

Section 23.302.070 Use-Specific Regulations
B. Amusement Devices Arcade.

1. Distance from Schools. An Amusement device arcade may not be established within a radius of 600 feet of a primary or secondary school.

Incidental Use. Table 23.302-5 shows permits required and maximum number of amusement devices allowed as an incidental use in the non-residential districts.

Amusement Devices up to 25 percent of total net floor area of the primary use are allowed as an incidental use with a Zoning Certificate. Amusement Devices are prohibited in the M Manufacturing District and MM Mixed Manufacturing District.

Table 23.302-5. PERMIT REQUIREMENTS FOR AMUSTMENT DEVICES AS

INDCIDENTIAL USES

DISTRICT PERMIT

REQUIRED MAXIMUM NUMBER
C-C, C-U, C-N, C-T, C-W AUP 3
C-E, C-NS, C-SA, C-SO UP(PH) 3
MU-LI AUP 3
MU-R AUP3M,MM Not Permitted

Section 2. That the line named Amusement Device Arcade in Table 23.204-1, Allowed Uses in Commercial Districts, within Berkeley Municipal Code Section 23.204.020, Allowed Land Uses, is amended as follows:

Section 23.204.020 Allowed Land Uses - Table 23.204-1, Allowed Uses in Commercial Districts
See Error! Reference source not found..A
Amusement Device Arcade
UP(PH)* UP(PH)* NP NP
NP
UP(PH)* NP NP UP(PH)* UP(PH)* UP(PH)
Error! Reference
source not found..B
Section 3. That the line named Amusement Device Arcade in Table 23.206-1, Allowed Uses in the Manufacturing Districts, within Berkeley Municipal Code Section 23.206.020 Allowed Land Uses and Permit Requirements is amended as follows:

Chapter 23.206.020 Allowed Land Uses - Table 23.206-1, Allowed Uses in the Manufacturing Districts
Amusement Device
Arcade NP NP ZC AUP ZC AUP
Error!
Reference
source not
found..B
Section 4. That Berkeley Municipal Code Section 23.502.020.A.17 definition of “Amusement Device Arcade” is amended as follows:

Chapter 23.502.020 Defined Terms
A. “A” Terms…

17. Amusement Device Arcade. A type of commercial recreation center which contains six or more amusement devices in more than 25 percent of the net floor area of the primary use. An amusement device arcade is a type of commercial recreation center irrespective of whether the amusement devices are the principal commercial activity of the establishment.

Section 5. Copies of this Ordinance shall be posted for two days prior to adoption in the display case located near the walkway in front of the Maudelle Shirek Building, 2134 Martin Luther King Jr. Way. Within 15 days of adoption, copies of this Ordinance shall be filed at each branch of the Berkeley Public Library and the title shall be published in a newspaper of general circulation.

Planning and Development Department
Land Use Planning Division

STAFF REPORT
DATE: October 7, 2020
TO: Members of the Planning Commission
FROM: Paola Boylan, Assistant Planner
Katrina Lapira, Assistant Planner
SUBJECT: Business Support Zoning Amendment Referrals – Amusement Device Arcades and Arts District Overlay Expansion

RECOMMENDATION
Staff recommends that the Planning Commission discuss proposed modifications, provide feedback, and request staff draft Zoning Ordinance amendments for Planning Commission consideration.

BACKGROUND
City Council has referred to the Planning Commission five referrals that support Berkeley businesses and bolster Berkeley’s commercial districts. These referrals range in scope from broad suggestions to targeted requests, but share the common goal of expediting service expansion for existing businesses and reducing barriers to entry for new businesses. This report analyzes and provides recommendations for two referrals:

1. Zoning Ordinance Modification for Elmwood Commercial Districts (Councilmember Droste, 6/25/19)

2. Expanding the Downtown Arts District (Mayor Bates, 10/18/16)

DISCUSSION
The overarching goal of these referrals is to provide the flexibility needed by businesses to adapt to a changing marketplace. This section provides an overview of each referral item addressed, existing conditions, staff’s analysis, and proposed modifications and recommendations for discussion.

Amusement Device Arcades
Item 9
Planning Commission
October 7, 2020

Attachment 2

Business Support Zoning Amendment Referrals
The Berkeley Municipal Code (BMC) currently prohibits Amusement Device Arcades 1 (Arcades) in the Elmwood Commercial district (C-E district). In June of 2019, City Council referred to the Planning Commission consideration of levels of discretion for Arcades in the C-E district, recommending that they be re-examined and relaxed (See Link 1). Table 1 shows the permit specifications and thresholds recommended for the C-E district by the referral.

Table 1: Permit Threshold Suggested for Arcades by the Referral for the Elmwood Commercial District
Size Threshold (square feet) Permit Required2
Under 3,000 ZC
Over 3,000 AUP
For a more comprehensive review of this referral, staff reviewed proposed thresholds and existing permit requirements for Arcades throughout all commercial and manufacturing districts in Berkeley. Findings, proposed modifications, and rationale are presented below.

1. Arcades as Commercial Recreation Centers
3 ● Remove Arcades from Uses Permitted Tables and instead recognize and regulate the Use as a Commercial Recreation Center. (Modify Uses Permitted Tables in zones C- 1, C-N, C-E, C -NS, C-SA, C-T, C-SO, C -W, C- DMU, and MU-R Districts)
Rationale: As retail continues to shift towards online platforms, business models are evolving to provide activity-based experiences that attract customers. Commercial Recreation Centers (CRC) are non-theater establishments, where recreation facilities are offered or amusement devices are provided as a principal commercial activity. Providing clear guidance on establishing such businesses is one way the City has supported emerging 1Amusement Device: Any machine or device which may be operated for use as a game, contest or amusement upon the insertion of a coin, slug or token in any slot or receptacle attached to such machine or connected therewith, which does not contain a payoff device for the return of slugs, money, coins, checks, tokens or merchandise.

Amusement Device Arcade: An establishment which contains six (6) or more Amusement Devices. An Amusement Device Arcade is a Commercial Recreation Center irrespective of whether such machines are the principal commercial activity of an establishment.
2 ZC – Zoning Certificate | AUP – Administrative Use Permit | UP(PH) – Use Permit (Public Hearing) 3Commercial Recreation Center: Any establishment other than a theater at which recreation facilities are offered or amusement devices provided to the public as a principal commercial activity of such establishment.

This may include, but is not limited to, bingo parlors, bowling alleys, skating rinks, billiard or pool halls, miniature golf courses and amusement device arcades.

Item 9
Planning Commission
October 7, 2020

Business Support Zoning Amendment Referrals
business models. In 2018, City Council adopted updated regulations that set thoroughly researched and studied thresholds for CRCs. Updates provided a simpler permitting process to CRCs by establishing a tiered permitting structure that requires lower levels of discretion for smaller businesses, thereby reducing start
-up costs and shortening permitting timelines. Tables 2 and 3 show the distinct thresholds established per General Plan designation, which coincide with various zoning districts according to purpose and intensity.

Table 2: Avenue Commercial Permit Threshold for CRCs
Size Threshold (square feet) Permit Required
Under 5,000 ZC
5,000 - 10,000 AUP
Over 10,000 UP(PH)
*Outdoor uses require UP(PH)
Table 3: Neighborhood Commercial Permit Threshold for CRCs Size Threshold (square feet) Permit Required
Under 3,000 AUP
Over 3,000 UP(PH)
*Outdoor uses require UP(PH)
In contrast to the rational permitting delineated for CRCs in the tables above, Arcades are defined by the BMC as a type of CRC, yet they are regulated separately—
in some districts they are prohibited, in others they require a UP(PH) regardless of the proposed establishment's square footage. The defined terms for these two categories overlap significantly and reference each other. CRC regulations provide the flexibility requested in this referral, while continuing to provide safeguards for the surrounding community. In addition, CRC regulations provide a clear path to establishing businesses that offe r activity based experiences . Staff’s proposed modifications would extend the same path to Arcades. Therefore, staff recommends recognizing and regulating Arcades as CRCs.
● Remove Special Provisions preventing Amusement Device Arcades from locating within a radius of 600 feet of any primary or secondary school. (BMC Section 23E.16.050)
Rationale: Special Provisions
4 were set in place in the 1990s to prevent
Amusement Device Arcades from establishing too close to primary and 4Special Provisions - No Amusement Device Arcade shall be established within a radius of six hundred (600) feet of any primary or secondary school. This applies to all districts and permits.

Item 9
Planning Commission
October 7, 2020

Business Support Zoning Amendment Referrals
secondary schools. However, in the 21st century, the advancement of technology has brought gaming opportunities to people’s households and fingertips through computers, gaming consoles, and cell phones among other devices. The City of Berkeley is among one of two cities with this restriction , and of the two, it is twice as strict by requiring a 600 ft. radius versus 300 ft. (City of San Diego) (See Attachment 3). Removing this requirement is not of concern to the Berkeley Police Department and will provide a smooth transition to recognizing Arcades as CRCs.

2. Amusement Devices Incidental to a Permitted Use
● Change the maximum number of Amusement Devices allowed as an incidental use to a permitted use from three to five. (Modify Uses Permitted Tables in zones C-1,C-N, C-E, C-NS, C-SA, C-T, C-SO, C-W, C-DMU, MU-LI, and MU-R Districts)
Rationale: Current regulations allow up-to three Amusement Devices incidental to an established use with either an AUP or a UP(PH), depending on the district.

At the same time, Arcades are defined as establishments with six or more Amusement Devices - creating an arbitrary gap between the two use types.

Therefore, staff recommends allowing up to five Amusement Devices as an incidental use to a permitted use, which would provide consistency throughout the Zoning Ordinance and set a threshold similar to our neighboring City of Albany (See Attachment 3).
● Revise the level of discretion for Amusement Devices as an incidental use to a permitted use from an Administrative Use Permit (AUP) to a Zoning Certificate (ZC). (Modify Uses Permitted Tables in zones C-1, C-T, C- W, C
-DMU, MU-LI, and MU-R Districts)
(See discussion below)
● Revise the level of discretion for Amusement Devices as an incidental use to a permitted use from a Use Permit Public Hearing (UP(PH)) to a Zoning Certificate (ZC). (Modify Uses Permitted Tables in zones C-N, C-E, C- NS, C-SA, and C-SO Districts)
Rationale: Current regulations require businesses in Berkeley to obtain an AUP or UP(PH), depending on the district, to add a limited number of Amusement Devices as an incidental use. In a time when emerging business models focus on creating activity-based experiences for customers, Amusement Devices can provide an attractive service to patrons. The proposed modification would lower levels of discretion for up to five devices to a ZC, bringing Berkeley into alignment with other cities in order to retain and attract existing and new businesses (See Attachment 3).

Downtown Arts District Overlay
Established in 2000, the purpose of the Downtown Arts District Overlay (ADO) is to create a core of cultural activities, retail, and other commercial uses that generate pedestrian Item 9
Planning Commission
October 7, 2020

Business Support Zoning Amendment Referrals
vitality in the downtown to encourage a broader economic revitalization of the area. Since that time, several theater arts, fine dining, and related uses have become established or expanded in the area. In 2016, City Council asked the Planning Commission to explore expanding the existing physical boundaries of the ADO to include all buildings with street frontage along Addison Street from Martin Luther King (MLK) Way through Oxford Street and portions along University Avenue, Shattuck Avenue, and Center Street (See Link 2 and Figure 1).

Figure 1. Arts District Overlay
Source: Expanding the Downtown Arts District (Mayor Bates, 10/18/16) Staff reviewed the overlay boundaries and allowable uses to propose recommendations that meet the purposes of the ADO and the underlying zoning districts. Findings, recommendations, and rationale are presented below.

1. Maintain the existing boundaries of the ADO.

Rationale: Staff’s proposal to maintain the existing boundaries takes into consideration the role of the ADO as a development tool, the pattern of existing uses, and development constraints in the areas within the referral’s proposed expanded boundary.

The Downtown Mixed-Use (C-DMU) District underlies the ADO. The primary zoning distinction between the C-DMU and the ADO is the regulation placed on ground floor uses. Currently, the ADO requires an AUP for ground floor office uses and Food Service Establishments focused on offsite consumption. The C-DMU requires a ZC for these same uses. The proposed expansion would incorporate more of the C-DMU, and given the existing provisions, would create legally non- Item 9
Planning Commission
October 7, 2020

Business Support Zoning Amendment Referrals
conforming uses in existing ground floor spaces with office uses and take-out only Food Service Establishments.

Expansion from Milvia Street to MLK Way - The area along Addison Street, from Milvia Street to MLK Way, is primarily built out, with new mixed-use developments and existing office buildings that support small residential and food service uses .

Along this stretch, about 50% of the ground floor street frontage is dedicated office space. Under the ground floor restrictions of the ADO, these office spaces would be subject to AUP requirements if a new tenant were to require a change in use to the previously described food service or office use. Given the limitations of existing spaces, this proposal may create an unnecessary burden.

Expansion from Shattuck to Oxford and along University Avenue - The referral’s proposed boundary expansion includes new cultural institutions like the UC Theatre Music Hall and the Berkeley Arts Museum and Pacific Film Archive (BAMPFA). However, a number of parcels along Addison Street, from Shattuck to Oxford Street, are owned by the University of California (UC) and are thus not subject to the City’s zoning regulations. In addition, the referral’s proposed expanded area includes several historic landmarks that already require additional review as part of the development process, shown in the figure below in orange.

Added ground floor requirements imposed by the ADO could further complicate and deter the redevelopment of these historical lots. For these reasons, expanding the ADO to include this stretch of University Avenue and Addison Street would be ineffective in guiding development in this area.

Figure 2. Addison Street - UC Owned Parcels and Historic Landmarks Historic Landmarks
UC Owned
UC Owned
Item 9
Planning Commission
October 7, 2020

Business Support Zoning Amendment Referrals

2. Remove the provision requiring an Administrative Use Permit (AUP) for Food Service Establishments that primarily provide food for offsite consumption in the Downtown Arts District Overlay (Modify BMC Sections 23E.68.030 and 23E.68.040)
Rationale: Food Service Establishments in the C-DMU are regulated by a tiered permitting system based on gross square footage. As previously mentioned, the ADO places additional restrictions on Food Service Establishments. These restrictions could create barriers to prospective businesses and are also incompatible with the model under which current businesses are operating, as a result of the COVID-19 pandemic. Restaurants have shifted towards take-away models to keep afloat during the public health crisis, regardless of whether their previous primary focus was to be a sit- down or take-away establishment.

Removing the additional restriction and treating all Food Service Establishments consistently throughout the C-DMU accommodates the ever-changing nature of the food service industry and simplifies the review process for prospective businesses.
5 3. Explore programmatic incentives adopted by other cities to encourage more art- and culture-focused establishments to locate within the existing ADO.

Rationale: There is little distinction between provisions in the ADO and the C-DMU in the Zoning Ordinance. To encourage the location of cultural institutions and supportive services within the ADO, a variety of programmatic incentives could be explored for adoption in the future. The City of Oakland published a report that outlines strategies used by other jurisdictions across the country to strengthen arts and cultural districts. Land Use Planning staff will share this report with Berkeley’s Office of Economic Development and will support efforts to bolster the ADO through these types of strategies in the future (See Link 3).

NEXT STEPS
Based on the Planning Commission’s feedback, staff will draft Zoning Ordinance amendments for Planning Commission’s consideration.

ATTACHMENTS

1. Planning Commission Staff Report (without attachments) - July 1, 2020

2. Planning Commission Meeting Minutes - July 1, 2020

3. Matrix of Arcade Regulations
LINKS
5 In 2018, the zoning ordinance was amended and largely removed the distinction among food service uses. This regulation is anomalous.

Item 9
Planning Commission
October 7, 2020

Business Support Zoning Amendment Referrals

1. Zoning Ordinance Modification for Elmwood Commercial Districts (Councilmember Droste, 6/25/19) -
https://www.cityofberkeley.info/Clerk/City_Council/2019/06_June/Documents/2019- 06- 25_Item_37_Zoning_Ordinance_Modification.aspx

2. Expanding the Downtown Arts District (Mayor Bates, 10/18/16) - https://www.cityofberkeley.info/Clerk/City_Council/2016/10_Oct/Documents/2016- 10- 18_Item_24_Expanding_the_Downtown_Arts.aspx

3. City of Oakland - Arts and Culture Research Compilation (2017) - https://cao- 94612.s3.amazonaws.com/documents/Art-Culture-Best-Practices-and-Case- Studies-March-2017.pdf
Item 9
Planning Commission
October 7, 2020

Planning Commission

FINAL MINUTES OF THE REGULAR PLANNING COMMISSION MEETING October 7, 2020
The meeting was called to order at 7:03 p.m.

Location: Virtual meeting via Zoom

1. ROLL CALL:

Commissioners Present: Benjamin Beach, Robb Kapla, Shane Krpata, Steve Martinot, Christine Schildt, Jeff Vincent, Brad Wiblin, and Rob Wrenn.

Commissioners Absent: Mary Kay Lacey (excused absence).

Staff Present: Secretary Alene Pearson, Katrina Lapira, and Paola Boylan.

2. ORDER OF AGENDA: No changes.

3. PUBLIC COMMENT PERIOD: 1

4. PLANNING STAFF REPORT:
 None
Informatio
n Items:
 None
Communication
s:
 None
Late Communications:

See agenda for links.
 Supplemental Packet One
 Supplemental Packet Two
 Supplemental Packet Three

5. CHAIR
REPORT:
 None

6. COMMITT
EE REPORT: Reports by Commission committees or liaisons. In addition to the items below, additional matters may be reported at the meeting.

Attachment 3

 None

7. APPROVAL OF MINUTES:

Motion/Second/Carried (Wrenn/Beach) to approve the Planning Commission Meeting Minutes from September 30, 2020 with amendments to lines 60 and 68.

Ayes: Beach, Kapla, Krpata, Schildt, Vincent, Wrenn, and Wiblin. Noes: None. Abstain:

Martinot. Absent: Lacey. (8-0-0-1)

FUTURE AGENDA ITEMS AND OTHER PLANNING-RELATED EVENTS:
 None

AGENDA ITEMS

9. Discussion: Business Support Zoning Amendment Referrals – Amusement Device Arcades and Arts District Overlay
Staff shared research and findings associated with the two businesses support referrals described above with the Planning Commission. After staff’s presentation, the Commission asked staff to propose amendments based on the recommendations discussed.

Public Comments: 0
Members in the public in attendance: 2
Public Speakers: 1 speakers
Length of the meeting: 1 hours and 13 minutes

Lori Droste
Councilmember, District 8

CONSENT CALENDAR
June 25, 2019
To: Honorable Mayor and Members of the City Council
From: Councilmember Droste, Mayor Arreguin, Councilmember Harrison, and Councilmember Wengraf
Item Description: Zoning Ordinance Modification for Elmwood Commercial District

RECOMMENDATION
Refer to the Planning Commission to amend Chapter 23E.44, C-E Elmwood Commercial District Provisions to allow for amusement device arcades with a Tier 2 Administrative Use Permit (for spaces >3,000 Sq. Ft.) and a Zoning Certificate (for spaces < 3,000 Sq. Ft.). Proposed ordinance language for changes to Table 23E.44.030 are attached.

FISCAL IMPACTS OF THE RECOMMENDATION
Potential tax revenue from newly permitted commercial uses.

CURRENT SITUATION AND ITS EFFECTS
This zoning modification is a Strategic Plan Priority Project, advancing our goal to foster a dynamic, sustainable, and locally-based economy. Currently, amusement device arcades” are prohibited uses in the Elmwood Commercial District.

BACKGROUND
Under current City codes, no amusement device arcades are permitted in the Elmwood Commercial Corridor. As the nature of retail and commercial uses changes and adapts to present day consumer habits and environments, so too should City code. Given recent commercial vacancies in the Elmwood Commercial District, now is an opportune time to re- examine commercial uses.

Recently, an established, local, family-owned business has expressed interest in opening a ‘vintage’ inspired arcade in the Elmwood. Upon review of our zoning code, the interested party saw that such use is currently prohibited. The proposed changes would allow for inventive businesses such as this one to open. The proposed changes take the size of the business storefront into consideration - arcades operating under 3,000 square feet would be allowed a

Attachment 4Page 20 of 39

zoning certificate. Occupants of larger spaces (over 3,000 square feet) would need a Tier 2 Administrative Use Permit, which allows for public notice and feedback.

This ordinance change would only apply to the Elmwood Commercial District. C-1 and CDMU commercial districts, per Table 23E.36.030 and Table 23E.68.030 require a UP (PH) for an amusement device arcade (unless they are within 600 ft. of a primary or secondary school, in which case they are prohibited). For all other Commercial Districts, the use is, and will remain, prohibited.

ENVIRONMENTAL SUSTAINABILITY

RATIONALE FOR RECOMMENDATION

ALTERNATIVE ACTIONS CONSIDERED

CONTACT PERSON
Councilmember Lori Droste 510-981-7180

Chapter 23E.44
C-E Elmwood Commercial District Provisions
Sections:
23E.44.010 Applicability of Regulations
23E.44.020 Purposes
23E.44.030 Uses Permitted
23E.44.040 Special Provisions -- Numerical Limitations 23E.44.050 Construction of New Floor Area, Conversions of Existing Buildings -- Requirements for Use Permits
23E.44.060 Use Limitations*
23E.44.070 Development Standards
23E.44.080 Parking -- Number of Spaces
23E.44.090 Findings
23E.44.010 Applicability of Regulations
The regulations in this chapter shall apply in all C-E Districts. In addition, general provisions in Sub-title 23C shall apply. (Ord. 6478-NS § 4 (part), 1999)
23E.44.020 Purposes
The purposes of the Elmwood Commercial (C-E) Districts are to:

A. Implement the Master Plan’s designation for a community commercial district in this area.

B. To maintain a scale and balance of retail goods and services in the district to compatibly serve the everyday needs of surrounding neighborhoods by:

1. Providing locations for retail goods and service establishments to serve surrounding neighborhoods;

2. Preventing development which exceeds the amount and intensity of use that is compatible with adjacent residential neighborhoods;

3. Limiting the space occupied by businesses that generate high traffic and/or parking demands;

4. Controlling the proliferation of establishments which, if not limited, might expand to displace establishments needed to serve surrounding neighborhoods; and

5. Permitting other uses which serve this objective.

C. To ensure that new buildings, alterations and additions to existing buildings harmonize with their surroundings. (Ord. 6478-NS § 4 (part), 1999)
23E.44.030 Uses Permitted
A. The following table sets forth the permits required for each listed item. Each use or structure shall be subject to either a Zoning Certificate (ZC), an Administrative Use Permit (AUP), a Use Permit approved after a public hearing (UP(PH)) or is prohibited.

Table 23E.44.030
Use and Required Permits
Use Classificat
ion
Special Requirements (if any)
Retail Sales
All Retail Sales Uses, except those
listed below
ZC* As defined in Sub-title F, except otherwise listed (does not include Video Rental Stores).

Alcoholic Beverage Retail Sales,
including liquor stores and wine shops
UP(PH) Includes sale for off-site consumption at restaurants Department Stores ZC*
Over 3,000 s.f. Prohibited

Drugstores ZC* A new or expanded Drugstore is prohibited if it is over 5000 square feet in Gross Floor Area, and within 1000
feet of any property containing an existing Drugstore,
as measured by a straight line from the nearest point
of the property line of the parcel on which the
Drugstore is proposed to the nearest point of the
property line of the parcel on which the nearest
Drugstore is located.

Firearm/Munitions Businesses UP(PH) Prohibited on any property devoted to residential use Pawn Shops, including Auction Houses Prohibited
Pet Stores, including Sales and
Grooming of Animals
UP(PH) Does not include boarding of animals
Smoke Shops UP(PH) Prohibited if within 1,400 feet of a school or public park
Personal and Household Services
All Personal/Household Services,
except those listed below
ZC* As defined in Sub-title F, except those otherwise listed (does not include Massage).

Laundromats UP(PH)
Veterinary Clinics, including Pet
Hospitals
UP(PH)
Video Tape/Disk Rental Stores AUP
Offices

Financial Services, Retail (Banks) UP(PH)
Insurance Agents, Title Companies,
Real Estate Agents, Travel Agents
ZC* When located on the ground floor adjacent to a street frontage, storefront windows required to include a
window display or to be transparent and provide
pedestrian viewing a minimum of 10 feet into the
storefront area
Medical Practitioners Prohibited Including Holistic Health and Mental Health Practitioners
Non-Chartered Financial Institutions Prohibited
Other Professionals and Government,
Institutions, Utilities
AUP When located on the ground floor adjacent to a street frontage, storefront windows required to include a
window display or to be transparent and provide
pedestrian viewing a minimum of 10 feet into the
storefront area
Food and Alcohol Service, Lodging, Entertainment and Assembly Uses Adult-oriented Businesses Prohibited
Alcoholic Beverage Service UP(PH) Service of alcoholic beverages allowed only as incidental to food service in Food Service
Establishments
Alcoholic Beverage Service of beer and
wine incidental to seated food service
ZC For on-site consumption only
Amusement Device Arcades
Under 3,000 s.f.

Over 3,000 s.f.

Prohibited
ZC
AUP - tier
2

Commercial Recreation Center
Under 3,000 s.f. AUP
Over 3,000 s.f. UP(PH)
Outdoor use requires UP(PH)
Dance, Exercise, Martial Arts and Music
Studios
AUP
Entertainment Establishments,
including Nightclubs
Prohibited
Food Service Establishments AUP Food Service Establishments must provide public notification of decision (NOD) within a 300-foot radius of the subject property.

Group Class Instruction for Business,
Vocational or Other Purposes
AUP
Gyms and Health Clubs AUP
Hotels, Tourist, including Inns, Bed and
Breakfasts and Hostels
UP(PH)
Motels, Tourist Prohibited
Theaters UP(PH) Including Motion Pictures and Stage Performance Automobile and Other Vehicle Oriented Uses
Automobile Parts Stores ZC* Excluding service of auto parts Automobile Repair and Service,
including Parts Service
Prohibited

Automobile Sales and Rentals Prohibited
Automobile Washes, Mechanical or
Self-Service
Prohibited
Automobile Wrecking Establishments Prohibited
Gasoline/Automobile Fuel Stations Prohibited
Motorcycle Stores, including Sales
and/or Service
Prohibited
Recreational Vehicle and Trailers Sales
and Rental, including Boats
Prohibited
Tire Sales/Service Stores Prohibited
Parking, Outdoor and Exterior Service Window Uses
Activities or Storage Outside of a
building

Not abutting R-District AUP
When abutting R-District UP(PH)
Automatic Teller Machines (exterior and
when part of a Retail Financial Service)
UP(PH)
Drive-in Uses Prohibited Providing service to customers in their cars. See definition in Sub-title F
Parking Lots UP(PH)
Recycling Redemption Centers AUP

Outdoor Cafe Seating
When seating not abutting R-District ZC
When seating abutting R-District AUP
Combination Commercial/Residential Uses
Live/Work Units
Not requiring a UP under Chapter
23E.20
ZC
Requiring a UP under Chapter
23E.20
UP(PH)
Mixed Use Developments
(Residential/Commercial)
UP(PH) Subject to the standards under Section 23E.44.070.E Uses Incidental to a Permitted Use
Amusement Devices (up to three) UP(PH)
Food or Beverage for Immediate
Consumption
UP(PH) Treated as Food Service Establishment and subject to numerical limitations in Table 23E.44.040. Incidental
Food and Beverage for Immediate Consumption off
the premises is permitted as an Accessory Use of a
Food Product Store.

Live Entertainment
Unamplified ZC
Amplified Prohibited
Manufacturing Uses UP(PH)

Storage of Goods (over 25% of gross
floor area)
AUP
Wholesale Activities UP(PH)
Six or fewer persons ZC
Seven or more persons AUP
New Construction UP(PH)
Uses Permitted in Residential Districts
Accessory Dwelling Unit in compliance
with Section 23C.24.050
ZC
Accessory Dwelling Unit that does not
comply with requirements under
Section 23C.24.050
AUP Subject to making applicable findings in Section
23C.24.070
Accessory Uses and Structures Per R-3
District
See Table 23D.36.030
Accessory Buildings and Structures
with Urban Agriculture
ZC 23C.26, 23D.08.010, 23D.08.020, 23D.08.050, and
23D.08.060
Child Care Centers UP(PH)
Clubs, Lodges UP(PH)
Community Centers UP(PH)
Dwelling Units, subject to R-3
Standards
UP(PH) Standards may be modified under Section
23E.44.070.F
Group Living Accommodations, subject
to R-3 Standards
UP(PH) Standards may be modified under Section
23E.44.070.F

Hospitals Prohibited
Hotels, Residential, including Single
Room Occupancy (SRO) Hotels
UP(PH)
Libraries UP(PH) Subject to parking requirements under Section 23E.44.080
Nursing Homes UP(PH) Subject to parking requirements under Section 23E.44.080
Parks and Playgrounds ZC
Public Safety and Emergency Services UP(PH)
Religious Assembly Uses UP(PH)
Schools, Public or Private UP(PH)
Senior Congregate Housing
Six or fewer persons ZC
Seven or more persons AUP
New Construction UP(PH)
Changes of use from an existing dwelling unit
Miscellaneous Uses
Automatic Teller Machines Prohibited When not a part of a Retail Financial Service Cafeteria, Employee or Residential UP(PH)
Cemeteries, Crematories, Mausoleums Prohibited

Columbaria AUP Allowed with a ZC if incidental to a Community and Institutional Use, limited to 400 niches, no more than
5% of the subject property area, and located within
the main building
Circus or Carnival UP(PH)
Commercial Excavation UP(PH) Including earth, gravel, minerals, or other building materials including drilling for, or removal of, oil or natural gas
Dry Cleaning and Laundry Plants Prohibited
Emergency Shelter
Up to 25 beds ZC
More than 25 beds UP(PH)
See Chapter 23C.10.

Kennels or Pet Boarding Prohibited
Laboratories, Testing Prohibited
Mortuaries Prohibited
Public Utility Substations, Tanks UP(PH)
Radio, Television or Audio/Sound
Recording and/or Broadcast Studios
UP(PH)
Warehouses or Storage including Mini-
storage Warehouses
Prohibited
Wireless Telecommunications Facilities

Microcell Facilities, Modifications to
Existing Sites, and Additions to
Existing Sites When the Site Is Not
Adjacent to a Residential District
AUP Subject to the requirements and findings of Section 23C.17.100
All Other Telecommunication
Facilities
UP(PH) Subject to the requirements and findings of Section 23C.17.100
Urban Agriculture 23C.26
Low-Impact Urban Agriculture (LIUA) ZC
High-Impact Urban Agriculture
(HIUA)
AUP
Legend:

ZC – Zoning Certificate
AUP – Administrative Use Permit
UP(PH) – Use Permit, public hearing
required
Prohibited – Use not permitted
*Change of Use of floor area over 2,000 sq. ft. shall require an AUP.

B. Any Use not listed that is compatible with the purposes of the C-E District shall be permitted subject to securing an Administrative Use Permit. Any Use that is not compatible with the purposes of the C-E District shall be prohibited.

C. The initial establishment, or change, of use of floor area of an existing non-residential building, or portion of building, shall be subject to the following permit requirements as listed in the legend of Table 23E.44.030. (Ord. 7635-NS § 7, 2019: Ord. 7620-NS § 13, 2018; Ord. 7599-NS § 22, 2018; Ord. 7513-NS § 1, 2016; Ord. 7425-NS § 8, 2015; Ord. 7354-NS § 4, 2014; Ord. 7322-NS § 7, 2013; Ord. 7204-NS § 5, 2011; Ord. 7191-NS § 5, 2011: Ord. 7155-NS § 11, 2010; Ord. 7129-NS § 11, 2010; Ord. 6671-NS § 7, 2002: Ord. 6669-NS § 1, 2001: Ord. 6644-NS § 2, 2001: Ord. 6478-NS § 4 (part), 1999)

23E.44.040 Special Provisions -- Numerical Limitations
A. Uses subject to numerical limitations as set forth in Table 23E.44.040 shall also be subject to the requirements of Section 23E.44.030. No such limitation may be exceeded unless the Board issues an Administrative Use Permit and makes the findings under Section 23E.44.090.C.

Table 23E.44.040
Numerical Limitations
Use Number Limit Size (sq. ft.) Type of Permit
Art/Craft Shops, Gift/Novelty Shops,
Jewelry/Watch Shops
No limit 1,500 Zoning Certificate
Bookstores, Periodical Stands No limit 2,000 Zoning Certificate Food Service Establishments: 25
Photocopy Stores, Printing, Fax, Magnetic Disk
Reproduction Services
No limit 1,000 Zoning Certificate
(Ord. 7635-NS § 8, 2019: Ord. 7513-NS § 2, 2016: Ord. 7191-NS § 6, 2011: Ord. 6478-NS § 4 (part), 1999) 23E.44.050 Construction of New Floor Area, Conversions of Existing Buildings -- Requirements for Use Permits
A. No new gross floor area shall be created unless a Use Permit is obtained. Creation of new floor area includes construction of new buildings or Accessory Buildings; additions to existing buildings; or the installation of new floor or Mezzanine levels within or onto existing buildings.

B. Existing buildings used for commercial activities shall not be converted, unless an Administrative Use Permit is obtained. (Ord. 6478-NS § 4 (part), 1999)
23E.44.060 Use Limitations*
A. No Commercial Use shall operate except between the hours of 7:00 a.m. and 11:00 p.m., unless a Use Permit is obtained and is in accordance with Section 23E.16.010.

B. Any Use which is incidental to the primary use of a building or property shall be subject to the permit requirements identified in the Uses Incidental to a Permitted Use heading, in Table 23E.44.030, except as below:

1. Any food service use shall be subject to the limitations in Table 23E.44.040 and shall not be considered as an Incidental Use for this District except when an accessory use to a Food Product Store.

C. Any activity or Use which occurs outside of a building shall be subject to the permit requirements identified in the Parking, Outdoor and Exterior Window Uses heading in Table 23E.44.030.

D. Adult-oriented Businesses, Amusement Device Arcades, and Non-Chartered Financial Institutions are not permitted in this District. Alcoholic Beverage Sales or Service Uses and Live/Work Uses shall be subject to the requirements of Chapters 23E.16 and 23E.20, in addition to the requirements of this District and below:

1. On-premises service or consumption of alcoholic beverages shall be permitted only as incidental consumption with meals in food service establishments. (Ord. 7513-NS § 3, 2016:

Ord. 7425-NS § 9, 2015: Ord. 7191-NS § 7, 2011; Ord. 6478-NS § 4 (part), 1999) *Specific text which previously amended this section on September 26, 2006 was repealed November 2006 as stated in the sunset provision (§ 22) of Ordinance 6,948-N.S. 23E.44.070 Development Standards
A. The FAR shall not exceed eight-tenths (.8) for an Interior or Through Lot and the FAR shall not exceed one for a Corner Lot.

B. The height for a Main Building shall not exceed the following limits and shall satisfy the following requirements:

Use Type Height (ft.) Stories (number)
All 28 2*
*Except that basement level devoted exclusively to parking shall not be counted as a story C. No yards for Main Buildings, Accessory Buildings, or Accessory Structures shall be required, except as set forth below:

1. Subject to obtaining a revocable encroachment permit from the City Council, bay windows and balconies 11 feet or more above the sidewalk grade may extend three feet into a street right-of-way, provided, that, not more than 60% of the length of a building elevation shall extend beyond the property line.

D. When the subject lot is adjacent to an abutting or confronting lot in a residential zone, the requirements of Section 23E.04.050and 23E.04.060 shall apply, for additional yard and building feature requirements, respectively and as below:

1. No food service establishment shall have any openings other than fixed windows and required fire exits within 50 feet of a residential zone. In addition, no food service establishments shall have any live entertainment other than unamplified background music.

E. Any Mixed Use building (residential and commercial) shall satisfy all of the standards and requirements of this District, except that the off-street parking and Usable Open Space requirements for the Residential Use portion shall be as set forth in the R-3 District requirements; provided, however, that the Board in its discretion may issue a Use Permit to modify the off-street parking and Usable Open Space requirements where it finds such modification promotes any of the general purposes set forth in Section 23E.44.090.B.

F. Exclusive Residential Uses shall be subject to the building site area, yard, coverage and parking requirements of the R-3 District standards and the height limit set forth in Section 23D.36.070.B. Other requirements are set forth below:

1. Each Dwelling Unit shall have Usable Open Space of at least 40 square feet with no dimension less than six feet;

2. No Residential Use shall be located on the ground floor within 20 feet of a property line along College or Ashby Avenue. (Ord. 6478-NS § 4 (part), 1999) 23E.44.080 Parking -- Number of Spaces
A. All parking shall be provided in accordance with the requirements of this section and Chapter 23E.28, except as set forth in this section.

B. The district minimum standard parking requirement for commercial floor area is two spaces per 1,000 square feet of gross floor area. This standard shall not apply to spaces less than 6,000 square feet, where no parking standard exists.

C. Construction which results in the creation of 6,000 or more square feet of commercial gross floor space shall be required to provide Off-street Parking Spaces at the minimum ratio of two spaces per 1,000 square feet of gross floor area of commercial space and in accordance with the requirements of Chapter 23E.28.

D. Any construction which results in the creation of 10,000 square feet of new or additional commercial gross floor space shall satisfy the loading space requirements of Chapter 23E.32. (Ord. 6856-NS § 13 (part), 2005:

Ord. 6478-NS § 4 (part), 1999)
23E.44.090 Findings
A. In order to approve any Use Permit under this chapter, the Zoning Officer or Board must make the finding required by Section 23B.32.040. The Zoning Officer or Board must also make the findings required by the following paragraphs of this section to the extent applicable:

B. A proposed use or structure must do all of the following:

1. Encourage and maintain the present street frontage and pedestrian orientation of the District;

2. Be compatible in design and character with the commercial District and the adjacent residential neighborhoods;

3. Be compatible with the purposes set forth in Section 23E.44.020 and the existing character of the District.

In addition, a finding also shall be made that such action and its effects will not:

4. Interfere with the continuity of retail or compatible service facilities at the ground level;

5. Interrupt a continuous wall of building facades;

6. Generate traffic and parking demand beyond the capacity of the commercial District or significantly increase impacts on adjacent residential neighborhoods;

7. Result in domination of this District by one type of use;

8. Generate objectionable odors nor excessive levels of noise.

C. 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)

Attachment 5
NOTICE OF PUBLIC HEARING – BERKELEY CITY COUNCIL

PUBLIC PARTICIPATION BY REMOTE VIDEO ONLY
Zoning Ordinance Amendments modifying the definition of Amusement Device Arcades and modifying permit
requirements for Amusement Device Arcades in the
Commercial Zoning District and as an incidental use to
maintain consistency throughout the BMC.

The Department of Planning and Development is proposing to amend the Zoning Ordinance to regulate Amusement Device Arcades as Commercial Recreation Centers in the Commercial Zoning District, as well as modify regulations for Amusement Device Arcades when incidental to a permitted use for consistency throughout the Berkeley Municipal Code.

The hearing will be held on, October 11, 2022 at 6:00 p.m. The hearing will be held via videoconference pursuant to Government Code Section 54953(e) and the state declared emergency.

A copy of the agenda material for this hearing will be available on the City’s website at www.CityofBerkeley.info as of September 29, 2022. Once posted, the agenda for this meeting will include a link for public participation using Zoom video technology.

For further information, please contact Robert Rivera, Senior Planner, Department of Planning and Development at [email protected].

Written comments should be mailed directly to the City Clerk, 2180 Milvia Street, Berkeley, CA 94704, or emailed to [email protected] in order to ensure delivery to all Councilmembers and inclusion in the agenda packet.

Communications to the Berkeley City Council are public record and will become part of the City’s electronic records, which are accessible through the City’s website. Please note: e-mail addresses, names, addresses, and other contact information are not required, but if included in any communication to the City Council, will become part of the public record. If you do not want your e-mail address or any other contact information to be made public, you may deliver communications via U.S. Postal Service.

If you do not want your contact information included in the public record, please do not include that information in your communication. Please contact the City Clerk at 981- 6900 or [email protected] for further information.

Published: September 30, 2022 – The Berkeley Voice
Per California Government Code Sections 65856(a) and 65090. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Attachment 5
I hereby certify that the Notice for this Public Hearing of the Berkeley City Council was posted at the display case located near the walkway in front of the Maudelle Shirek Building, 2134 Martin Luther King Jr. Way, as well as on the City’s website, on September 29, 2022.
__________________________________
Mark Numainville, City Clerk

Office of the City Manager
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: http://www.CityofBerkeley.info/Manager

PUBLIC HEARING
October 11, 2022
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Jordan Klein, Director, Planning & Development Department Subject: ZAB Appeal: 2018 Blake Street, Use Permit #ZP2021-0095

RECOMMENDATION
Conduct a public hearing and, upon conclusion, adopt a Resolution affirming the Zoning Adjustments Board (ZAB) decision to approve Use Permit #ZP2021-0095 to construct a six-story, multi-family residential building with 12 units (including two Low-Income units), and dismiss the appeal.

FISCAL IMPACTS OF RECOMMENDATION
None.

CURRENT SITUATION AND ITS EFFECTS
On June 3, 2021, Huan Fang submitted an application for Use Permit #ZP2021-0095 to construct a six-story, multi-family residential building with 12 units.

On March 16, 2022, the application was deemed complete.

On May 26, 2022, the ZAB conducted a public hearing for the use permit application.

After hearing public comments and holding discussion, the ZAB approved the use permit by a vote of 8-0-0-1 (Yes: Duffy, Kahn, O’ Keefe, Olson, Sanderson, Thompson, Vincent, Tregub; No: None; Abstain: None; Absent: Kim).

On June 7, 2022, staff issued the ZAB Notice of Decision.

On June 21, 2022, the City Clerk received an appeal filing from John De Domenico, resident at 2020½ Blake Street.

On September 22, 2022, staff posted the public hearing notice at the site and three nearby locations, and mailed notices to property owners and occupants within 300 feet of the project site, and to all registered neighborhood groups that cover this area. The Council must conduct a public hearing to resolve the appeal.

21

ZAB Appeal: 2018 Blake Street PUBLIC HEARING
Use Permit #ZP2021-0095 October 11, 2022

BACKGROUND
The immediate environs of the project site consist of one-story commercial/industrial buildings on parcels to the north; one- and two-story, single- and multi-family dwellings on parcels to the west, immediately east (R-4 Multi-Family Residential District) and to the south (R-2A, Restricted Multi-Family Residential District); and one- and two-story commercial buildings (C-AC, Adeline Corridor Commercial District) on parcels beyond the R-4 district, further east of the site. The parcel across the street and to the northeast at 2029 Blake Street (C-AC) is occupied by a recently-constructed, five-story, 82-unit, mixed-use building. Use permits for other large projects were approved within the past two years on the same block: a six-story, 113-unit, community care facility for seniors at 2000 Dwight Way, and a seven-story, 155-unit, multi-family building at 2015 Blake.

The proposed project would involve the removal of remnants of a single-family dwelling and accessory structure that were damaged by fire in 2019, and ordered to be demolished after being deemed unsafe and an immediate threat to health and safety by the City Building Official. In its place, the project proposes to construct a residential building of six stories and 64 feet, 6 inches in height and 12 dwelling units.

The project is eligible for a density bonus under Government Code Section 65915, by including two Low-income units (25 percent of the base project), and qualifies for a 50 percent density bonus, or four bonus units, resulting in a 12-unit density bonus project, with waivers of the side and rear yard setbacks minimums and the lot coverage maximum. The project is also compliant with all applicable, objective general plan and zoning standards, and was approved without reductions to project’s density, pursuant to the State Housing Accountability Act (HAA), Government Code Section 65589.5(j)1 (see further discussion of the HAA in Appeal Issue 1, below).

For additional project background, please see Attachment 3, the ZAB staff report for this project.

RATIONALE FOR RECOMMENDATION
The issues raised in the appellant’s letter and staff’s responses follow. For the sake of brevity, the appeal issues are not re-stated in their entirety. Please refer to the attached appeal letter (Attachment 2) for the full text.

Issue 1: The appellants assert that the six-story building would be taller than existing buildings on nearby properties on its block (which are generally one- and two- story development), and would be incompatible with the land uses, 1 The Housing Accountability Act (HAA), Government Code Section 65589.5(j), requires that when a proposed housing development complies with the applicable, objective general plan and zoning standards, but a local agency proposes to deny the project or approve it only if the density is reduced, the agency must base its decision on written findings supported by substantial evidence that the development would have a specific adverse impact on public health or safety unless disapproved, or approved at a lower density; and there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact, other than the disapproval, or approval at a lower density.

ZAB Appeal: 2018 Blake Street PUBLIC HEARING
Use Permit #ZP2021-0095 October 11, 2022

architectural design and scale of neighboring properties on the south side of Blake street. Shadow impacts from the project on dwellings to west, east and northeast are not reasonable, and can be avoided. These impacts from the project would be detrimental and injurious to property and improvements of adjacent properties, the surrounding area, neighborhood and to the general welfare of the city. Neighbors were told at the ZAB hearing that the decision was already made and was irreversible.

Response 1: As a residential building with 12 dwelling units, 200 square feet of usable open space per unit, and six stories/65 feet of height, that shares a city block with the C-AC Adeline Corridor Commercial District, the proposed project is consistent with the purposes of the R-4 Multi-Family Residential District and adjacent land uses. The R-4 District provides for relatively high-density residential development; housing for persons who desire both convenience of location and a reasonable amount of usable open space; and protection of adjacent properties from unreasonable obstruction of light and air. The R-2A Restricted Multiple-Family Residential District, which borders the south side of the project site, encourages similar types of development – medium-density residential areas characterized by small multiple-family and garden-type apartment structures with a maximum of open space. Projects have been approved by the City in the past two years in the R-4 District, on sites across Blake Street (on the north side) that are much larger in scope than the 2018 Blake project – a six-story, 113-unit, community care facility for seniors at 2000 Dwight Way, and a seven-story, 155-unit, multi-family building at 2015 Blake. As discussed in the staff report, the ZAB was able to make findings for non-detriment, noting that the project would be consistent with the trend of increasing density in the neighborhood.

Though the Berkeley Municipal Code (BMC) requires findings of general non-detriment2 for approval of discretionary permits, and each zoning district has district purposes to guide development, non-detriment findings are not objective standards and cannot provide a basis for denial or reduction in density for a housing project, due to protections provided by the State Housing Accountability Act (HAA). Pursuant to Government Code Section 65589.5(j) the City cannot deny or reduce the density of a housing development that is compliant with objective standards, unless it can meet the strict finding of specific adverse impact on public health or safety – a level of impact which the State Department of Housing and Community Development considers to be rare.3 Analyses of the compatibility of architectural design, building massing and scale, 2 The findings for approval of use permits, sometimes referred to as “general non-detriment findings” are described in BMC Section 23.406.040(E)(1) Findings for Approval:
“To approve a Use Permit, the ZAB shall find that the proposed project or use:
(a) Will not be detrimental to the health, safety, peace, morals, comfort, or general welfare of persons residing or visiting in the area or neighborhood of the proposed use; and (b) Will not be detrimental or injurious to property and improvements of the adjacent properties, the surrounding area or neighborhood, or to the general welfare of the City.” 3 Housing Accountability Act Technical Assistance Advisory (Government Code Section 65589.5), p. 20; State Department of Housing and Community Development.

ZAB Appeal: 2018 Blake Street PUBLIC HEARING
Use Permit #ZP2021-0095 October 11, 2022

and shadow impact on the surrounding neighborhood are only provided in the staff report for public interest and informational purposes. Additionally, the project is a residential development in a residential district, and is not subject to design review. The ZAB determined that the project is compliant with all applicable, objective general plan and zoning standards and that the findings to deny or reduce the project could not be made, and approved the project with direction to the applicant to refine and enhance the building design at Final Design Review before the DRC.

In accordance with Section 65589.5(j)(3) of the HAA, compliance with State Density Bonus waiver and concession provisions is consistent with the ZAB’s determination of project compliance with objective standards.4 Pursuant to Government Code Section 65915 State Density Bonus, in exchange for providing affordable units on site, a project is entitled to density bonus units, as well as modifications to zoning standards that can expand the building’s massing, in the form of waivers and concessions to accommodate the full density bonus project on the site. Waivers of the side and rear setbacks, and lot coverage, were requested for the project. As discussed in the ZAB staff report, the requested waivers were granted because findings of specific adverse impact5 to health and safety could not be made. No waivers for height were requested, and no concessions were requested. In the R-4 District where the project site is located, the proposed building of six stories and 65 feet is allowed by right in the base project (the objective standards-compliant project, before the density bonus is added) and no additional height permit or waiver is required.6
In summary, the ZAB was able to make the findings for non-detriment to approve the project. Additionally, State laws for housing developments that were established to facilitate the production of new housing, such as the HAA and State Density Bonus, impose limitations to local discretion over project entitlements, and allow projects to have larger building envelopes than would be permissible through the base district zoning standards, in the interest of constructing more housing in the immediate future.

Issue 2: The appellants assert that several neighbors within 300 feet of the project site attest that they did not receive notice of the proposed development or notice 4 Section 65589.5(j)(3) in the HAA provides that a request for a density bonus “shall not constitute a valid basis on which to find a proposed housing development project is inconsistent, not in compliance, or not in conformity, with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision specified in this subdivision.”
5 A “specific, adverse impact” means “a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete”. This definition is also used for applying HAA findings. 6 The City has determined that the “protections afforded by the HAA and the definition of a base project for density bonus calculations apply to a housing development project up to and including the maximum development allowed with use permits and/or administrative use permits.” (Housing Accountability Act & Density Bonus – Objective Standards Memorandum, August 2, 2021; Land Use Planning Division) Therefore, the use permits to extend the district height limit to 65’ and six stories and to allow rooftop elements to exceed height limits are included in the Base Project for the purpose of determining compliance with objective standards.

ZAB Appeal: 2018 Blake Street PUBLIC HEARING
Use Permit #ZP2021-0095 October 11, 2022

of the ZAB public hearing. Neighbors were told they would receive a direct link to the hearing and did not. The email address for the ZAB hearing notice was incorrect. Neighbors feel they were denied meaningful opportunity to comment and denied the right to be involved in the planning and development process.

Response 2: City staff followed public noticing protocols that were in place at the time of each noticing period. The permit application was submitted to the Land Use Planning Division on June 3, 2021.7 On June 10, 2021, the City mailed a Notice of Received Application to property owners and occupants within 300 feet of the project site and to interested neighborhood organizations, and posted a notice at the project site. The notices contained weblinks to the application materials, a permit status webpage, and the email addresses for the applicant and project planner. A mailing list was generated for the postcard mailings that day.

On May 11, 2022, in accordance with BMC Section 23.404.040 Public Notice, and in preparation for the ZAB hearing scheduled for May 26, 2022, the City mailed public hearing notices to property owners and occupants within 300 feet of the project site and to interested neighborhood organizations, and posted notices within the neighborhood in three locations – on the project site and at two other locations near the project site.

The notices contained weblinks to the ZAB agenda, the hearing materials, application materials, and email addresses for the project planner and the ZAB secretary. The online ZAB agenda contained the direct live link to attend the public hearing.

A new mailing list was generated for the ZAB hearing notices, per Land Use Planning Division policy that a new list should be generated if a previous list is six months or older, and notices were sent out that day. Any differences between the two mailing lists are expected because address assignments can change over the course of time due to new addresses or the deletion of existing addresses. Occasionally also, the City’s Parcel Notifier software can temporarily malfunction and cause some inaccuracies in the generation of mailing lists. A software malfunction could have been the cause of some neighbors not receiving a notice.

The ZAB public hearing notice listed email addresses for the project planner and for the ZAB Secretary using a new email suffix, [email protected], because the new City website was launched at the end of April 2022, and with the launch, new email suffixes for all City email addresses were implemented. Preliminary testing of the new suffix indicated that it was working properly for City staff. For instance, the new email address for the project planner was working properly.

On May 26, 2022, the day of the hearing, staff was notified through an email from one of the project site neighbors that the [email protected] address was returning an email 7 The Pre-Application Yellow Poster and Neighborhood Outreach components of the land use application submittal requirements were temporarily suspended at the time of the application submittal due to City emergency health orders. The suspension was lifted on July 1, 2021.

ZAB Appeal: 2018 Blake Street PUBLIC HEARING
Use Permit #ZP2021-0095 October 11, 2022

delivery failure notice. It was too late to resend or repost physical hearing notices, but staff immediately corrected the email address in the online ZAB agenda to list the old address – [email protected], which was still working.

Staff followed all noticing procedures and immediately corrected errors when alerted to them, and despite some technical trouble that may have occurred with the mailing list generation and ZAB email address, members of the public were able to reach staff and the applicants with comments, and were able to attend the public hearing to express their concerns. Staff received a total of eight comment letters from the public during the course of project review, and several neighbors spoke at the project’s hearing.

ENVIRONMENTAL SUSTAINABILITY
The project approved by the ZAB is in compliance with all applicable State and local environmental requirements, would be located in a transit-rich area, and would be built and operated according to current codes for energy conservation, waste reduction, low toxicity, and other factors.

ALTERNATIVE ACTIONS CONSIDERED
Pursuant to BMC Section 23.410.040(G), the Council may (1) continue the public hearing, (2) reverse, affirm, or modify the ZAB’s decision, or (3) remand the matter to the ZAB.

Action Deadline:

Pursuant to BMC Section 23.410.040(I), if the disposition of the appeal has not been determined within 30 days from the date the public hearing was closed by the Council (not including Council recess), then the decision of the Board shall be deemed affirmed and the appeal shall be deemed denied.

CONTACT PERSONS
Jordan Klein, Director, Planning & Development Department, (510) 981-7534 Steven Buckley, Land Use Planning Manager, (510) 981-7411 Sharon Gong, Project Planner, (510) 981-7429
Attachments:

1. Draft Resolution
 Exhibit A: Findings and Conditions
 Exhibit B: Project Plans, received March 23, 2022

2. Appeal Letter, dated received June 21, 2022

3. May 26, 2022 ZAB Hearing Staff Report

4. Index to Administrative Record

5. Administrative Record

6. Public Hearing Notice

RESOLUTION NO. ##,###-N.S.

AFFIRMING THE ZONING ADJUSTMENTS BOARD APPROVAL OF USE PERMIT #ZP2021-0095 TO CONSTRUCT A SIX-STORY, MULTI-FAMILY RESIDENTIAL BUILDING WITH 12 UNITS (INCLUDING TWO LOW-INCOME UNITS), AND DISMISS THE APPEAL.

WHEREAS, on June 3, 2021, Huan Fang (“applicant”), submitted an application for Use Permit #ZP2021-0095 to construct a six-story, multi-family residential building with 12 units, including two Low-Income units (“project”); and
WHEREAS, on March 16, 2022, staff deemed this application complete and determined that the project is categorically exempt from the California Environmental Quality Act (“CEQA”) under Section 15332 of the CEQA Guidelines (“In-Fill Development Projects”); and
WHEREAS, on May 11, 2022, staff mailed and posted a Notice of Public Hearing for the project at the site and two nearby locations, and mailed notices to property owners and occupants within 300 feet of the project site, and to all registered neighborhood groups that cover this area; and
WHEREAS, on May 26, 2022, the Zoning Adjustments Board (ZAB) conducted a public hearing for the Use Permit. After hearing public comments and holding discussion, the ZAB approved the Use Permit by a vote of 8-0-0-1 (Yes: Duffy, Kahn, O’ Keefe, Olson, Sanderson, Thompson, Vincent, Tregub; No: None; Abstain: None; Absent: Kim); and WHEREAS, on June 7, 2022, staff issued the notice of the ZAB decision; and WHEREAS, on June 21, 2022, the City Clerk received an appeal filing of the ZAB decision from John De Domenico, resident at 2020 ½ Blake Street; and WHEREAS, on or before September 22, 2022, staff mailed and posted a Notice of Public Hearing at the site and two nearby locations, and mailed notices to property owners and occupants within 300 feet of the project site, and to all registered neighborhood groups that cover this area; and
WHEREAS, on October 6, 2022, the Council held a public hearing to consider the ZAB’s decision, and in the opinion of this Council, the facts stated in, or ascertainable from the public record, including the staff report and comments made at the public hearing, warrant approving the project.

NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Berkeley that the City Council hereby adopts the findings made by the ZAB in Exhibit A to affirm the decision of the ZAB to approve Use Permit #ZP2021-0095, adopts the conditions of approval in Exhibit A, adopts the project plans in Exhibit B, and dismisses the appeal.

Exhibits
A: Findings and Conditions
B: Project Plans, received March 23, 2022

A t t a c h m e n t 1 , Exhibit a
F i n d i n g s a n d C o n d i t i o n s
OCTOBER 6, 2022
1947 Center Street, Berkeley, CA 94704 Tel: 510.981.7410 TDD: 510.981.7474 Fax: 510.981.7420 E-mail: [email protected]
2018 Blake Street
Use Permit #ZP2021-0095 to construct a six-story, multi-family residential building with 12 units (including two Low-Income units).

PERMITS REQUIRED
 Use Permit under Berkeley Municipal Code (BMC) Section 23.202.020(A) to construct a multifamily residential building
 Use Permit under BMC Section 23.202.110(E)(2) to construct a main building that exceeds 35 feet in average height and three stories, up to 65 feet and six stories  Administrative Use Permit under BMC Section 23.304.050(A) to construct rooftop projections, such as mechanical appurtenances or architectural elements which exceed the maximum height limit for the district.

CONCESSIONS/ WAIVERS UNDER GOVERNMENT CODE SECTION 65915-65918  No concessions
 Waiver of BMC Section 23.202.110(E)(1) to reduce minimum side setback (above the 2nd floor) and rear yard setback (above the 3rd floor)
 Waiver of BMC Section 23.202.110(E)(2) to exceed lot coverage I. CEQA FINDINGS

1. The project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA, Public Resources Code §21000, et seq. and California Code of Regulations, §15000, et seq.) pursuant to §15332 (“In-Fill Development Projects”).

The project meets all of the requirements of this exemption, as follows:

A. The project is consistent with the applicable General Plan designation and policies, and with the applicable zoning designation and regulations.

B. The project occurs within the Berkeley City limits on a project site of no more than five acres, and is surrounded by urban uses.

C. The parcels within the project site have previously been developed and have no value as habitat for endangered, rare or threatened species.

D. The project would not result in any significant effects relating to traffic, noise, air quality or water quality. The Traffic Impact Analysis prepared for the project was reviewed by the City Transportation Division which concurred with the findings of less than significant impacts. City Standard Conditions would address potential impacts related to traffic, noise, air quality, and water quality.

E. The site can be adequately served by all required utilities and public services.

2. Furthermore, none of the exceptions in CEQA Guidelines Section 15300.2 apply, as follows:
(a) the site is not located in an environmentally sensitive area, (b) there are no cumulative impacts, (c) there are no significant effects, (d) the project is not located near a scenic highway, (e) the project site is not located on a hazardous waste site pursuant to Government Code Section 65962.5, and (f) the project would not affect any historical resource.

2018 BLAKE STREET - USE PERMIT #ZP2021-0095 FINDINGS & CONDITIONS October 6, 2022 Page 2 of 17
File:

II. DENSITY BONUS FINDINGS

1. Pursuant to Government Code Section 65915, the City Council finds that:

A. Under the City’s methodology for implementing density bonuses, the “base project” consists of 8 units;
B. The project will provide two Low-Income qualifying units in the eight-unit “base project”, as more fully set forth in Conditions 48 to 52;
C. The project is entitled to a density increase of 50 percent over the otherwise maximum allowable residential density under the Zoning Ordinance and General Plan Land Use Element, under the requirements of Government Code Section 65915(b) and (f). This equates to a density bonus of four units above the Base Project, for a total of 12 units.

2. In accordance with Government Code Section 65915(e) the City Council hereby grants the following waivers:

A. Waiver of BMC Section 23.202.110(E)(1) to reduce minimum side setback (above the 2nd floor) and rear yard setback (above the 3rd floor)
B. Waiver of BMC Section 23.202.110(E)(2) to exceed lot coverage These waivers are required because State law requires the City to modify development standards as necessary to accommodate these density bonus units, and because the City Council hereby finds that the density bonus units can best be accommodated by granting these waivers.

3. In accordance with Government Code Section 65915(e), in order to allow construction of the proposed project with the density permitted under State law, the City Council finds approval of waivers is required 1) construct the proposed project at the density permitted under State law; 2) approval of requested waivers would not have a specific adverse impact upon public health and safety, or the physical environment, or on any real property listed in the California Register of Historical Resources; and 3) approval of the requested waivers would not be contrary to State or Federal law.

III. FINDINGS FOR APPROVAL

4. The Housing Accountability Act, Government Code Section 65589.5(j) requires that when a proposed housing development complies with applicable, objective general plan and zoning standards, a local agency may not deny the project or approve it with reduced density unless the agency makes written findings supported by substantial evidence that:

A. The development would have a specific adverse impact on public health or safety unless disapproved or approved at a lower density; and
B. There is no feasible method to satisfactorily mitigate or avoid the specific adverse impact, other than the disapproval or approval at a lower density.

Because the Base Project would comply with applicable, objective general plan and zoning standards, §65589.5(j) does apply to this project. No significant, quantifiable, direct and unavoidable impacts, based on objective, identified written public health or safety standards, polices, or conditions, have been identified. The project includes construction of 12 dwelling units.

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5. As required by Section 23.406.040(E)(1) of the BMC, the project, under the circumstances of this particular case existing at the time at which the application is granted, would not be detrimental to the health, safety, peace, morals, comfort, and general welfare of the persons residing or working in the neighborhood of such proposed use or be detrimental or injurious to property and improvements of the adjacent properties, the surrounding area or neighborhood, or to the general welfare of the City because:

A. The project is consistent with all applicable R-4 District standards and qualifies for waivers of the listed district standards granted pursuant to State Density Bonus, Government Code, Section 65915;
B. The project follows a trend of increasing density in the neighborhood, including the recently- constructed, five-story, mixed-use building at 2029 Blake Street, the approved use permit for a six-story, community care facility for seniors at 2000 Dwight Way, and the approved use permit for a seven-story, multi-family building at 2015 Blake. The proposed project will provide new housing in a location with easy access to public transit and nearby commercial services and stores, and will fulfill the purpose of the R-4 Multi-Family Residential District by providing high-density residential development with sufficient usable open space at a convenient location for desirable services.

C. Shadow impact on adjacent dwellings to the west, east, and northeast will result from the new building, especially from the additional height above the district limits, which will cast shadows in the affected directions further than if the project were limited to the base district height standards. However, the shadow impacts on any one adjacent property will occur during limited hours and times of the year. Furthermore, shadow impacts on adjacent dwellings are difficult to avoid given the lot widths, height and building-to-building separations permitted in the R-4 district. Therefore, the shadow impacts are found to be reasonable and non-detrimental.

D. The project is subject to the City’s standard conditions of approval regarding construction noise and air quality, waste diversion, toxics, and stormwater requirements, thereby ensuring the project would not be detrimental to the health, safety, peace, morals, comfort or general welfare of persons residing or working in the area or neighborhood of such proposed use or be detrimental or injurious to property and improvements of the adjacent properties, the surrounding area or neighborhood or to the general welfare of the City.

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IV. STANDARD CONDITIONS OF APPROVAL FOR ALL PROJECTS
The following conditions, as well as all other applicable provisions of the Zoning Ordinance, apply to this Permit:

1. Conditions and Shall be Printed on Plans
The conditions of this Permit shall be printed on the second sheet of each plan set submitted for a building permit pursuant to this Use Permit, under the title ‘Use Permit Conditions.’ Additional sheets may also be used if the second sheet is not of sufficient size to list all of the conditions.

The sheet(s) containing the conditions shall be of the same size as those sheets containing the construction drawings; 8-1/2” by 11” sheets are not acceptable.

2. Compliance Required (BMC Section 23.102.050)
All land uses and structures in Berkeley must comply with the Zoning Ordinance and all applicable City ordinances and regulations. Compliance with the Zoning Ordinance does not relieve an applicant from requirements to comply with other federal, state, and City regulations that also apply to the property.

3. Approval Limited to Proposed Project and Replacement of Existing Uses (BMC Sections

23.404.060.B.1 and 2)
A. This Permit authorizes only the proposed project described in the application. In no way does an approval authorize other uses, structures or activities not included in the project description.

B. When the City approves a new use that replaces an existing use, any prior approval of the existing use becomes null and void when permits for the new use are exercised (e.g., building permit or business license issued). To reestablish the previously existing use, an applicant must obtain all permits required by the Zoning Ordinance for the use.

4. Conformance to Approved Plans (BMC Section 23.404.060.B.4) All work performed under an approved permit shall be in compliance with the approved plans and any conditions of approval.

5. Exercise and Expiration of Permits (BMC Section 23.404.060.C) A. A permit authorizing a land use is exercised when both a valid City business license is issued (if required) and the land use is established on the property.

B. A permit authorizing construction is exercised when both a valid City building permit (if required) is issued and construction has lawfully begun.

C. The Zoning Officer may declare a permit lapsed if it is not exercised within one year of its issuance, except if the applicant has applied for a building permit or has made a substantial good faith effort to obtain a building permit and begin construction. The Zoning Officer may declare a permit lapsed only after 14 days written notice to the applicant. A determination that a permit has lapsed may be appealed to the ZAB in accordance with Chapter 23.410 (Appeals and Certification).

D. A permit declared lapsed shall be void and of no further force and effect. To establish the use or structure authorized by the lapsed permit, an applicant must apply for and receive City approval of a new permit.

6. Permit Remains Effective for Vacant Property (BMC Section 23.404.060.D)