Berkeley City Council
July 30, 2024

ZAB Appeal: 2600 Tenth Street PUBLIC HEARING
Administrative Use Permit #ZP2023-0031 JULY 30, 2024

FISCAL IMPACTS OF RECOMMENDATION
None.

BACKGROUND
Recent Permit History for Changes of Use
On May 17, 2019, Wareham Development submitted an Administrative Use Permit (AUP) application (ZP2019-0090) to change the use of 15,584 square feet of Media Production space to Office use on the ground floor.

On May 13, 2021, Wareham Development obtained a Zoning Certificate (ZCBL2021- 0121) to change the use of 19,955 square feet of space (Unit 105 to Unit 109) from Media Production to Research and Development, which was allowed by-right because the change was less than 20,000 square feet1. This Zoning Certificate was later replaced by ZCBL2022-0190 on May 19, 2022 (see below).

On August 25, 2021, Wareham Development revised the AUP Application (ZP2019- 0090) to eliminate the proposed office use and instead change the use of 20,367 square feet of Media Production to Research and Development. The proposed conversion was in addition to the space already converted by-right, and would have resulted in a total of 40,332 square feet of Research and Development space.

On October 13, 2021, staff issued the Notice of Administration Decision to approve the AUP Application (ZP2019-0090) for the change of use to Research and Development.

On November 3, 2021, Alex Wilmer & Sea Wilmer submitted an appeal of the AUP Application (ZP2019-0090) to the Zoning Adjustment Board (ZAB).

On January 13, 2022, the ZAB conducted a public hearing for the appeal of the Zoning Officer’s decision to approve the AUP Application (ZP2019-0090). The ZAB requested clarification on the existing use from the City Attorney, and the hearing was continued to a date uncertain.

On April 28, 2022, the ZAB continued the public hearing for the appeal of the Zoning Officer’s decision to approve the AUP Application (ZP2019-0090). Due to time constraints, the item was continued to a date certain, May 26, 2022.

On May 19, 2022, Wareham Development obtained a Zoning Certificate (ZCBL2022- 0190) to change 19,553 square feet of space (Units 107 to Unit 110) from Media Production to Research and Development use. This Zoning Certificate revised the suites proposed to be converted from Media Production to Research and Development 1 Per BMC 23E.030 Use Permitted in prior Ordinance

ZAB Appeal: 2600 Tenth Street PUBLIC HEARING
Administrative Use Permit #ZP2023-0031 JULY 30, 2024

and replaced the previously approved Zoning Certificate (ZCBL 2021-0121) obtained in May 2021.

On May 25, 2022, Wareham Development withdrew the AUP (ZP2019-0090).

Current Zoning Permit Application Subject to this Appeal (ZP2023-0031) On March 9, 2023 Wareham Development submitted an AUP Application (ZP2023- 0031) to change the use of three tenant spaces (9,750 square feet) from Media Production to Research and Development, resulting in a total of 29,303 square feet of Research and Development space and to create six to nine tenant spaces in the two- story section of the building in the north side abutting Parker Street.

On November 13, 2023 staff issued the Notice of Administration Decision to approve the AUP. The Zoning Officer determined that the proposed project would not be detrimental or contribute to a shortage of industrial spaces in West Berkeley as the established use of the site as of July 6, 1989 was Media Production, which is not a protected Non-Industrial use. Pursuant to Berkeley Municipal Code (BMC) Section

23.406.030(F) Findings for Approval, the Zoning Officer found that the project in AUP application ZP2023-0031, to change the use from Media Production to Research and Development, would be consistent with the purposes of the District, comply with the adopted West Berkeley Plan, and would be supportive of the industrial character of the district (see Attachment 3, packet for the April 25, 2024 ZAB meeting, for those AUP Findings and Conditions).

On December 4, 2023 Rick Auerbach (on behalf of West Berkeley Artisans & Industrial Companies (WEBAIC)), Jed Riffe, Connie Field, Vivian Kleinman, and Jim Lebrecht submitted an appeal of the Zoning Officer’s Decision to approve the AUP Application.

On April 25, 2024, the ZAB conducted a public hearing for the appeal of the Zoning Officer’s decision to approve the AUP Application (ZP2023-0031). After considering the staff report, the administrative record, and hearing comments from staff, the applicant, appellants, and the members of the public, the ZAB approved the appeal and denied the AUP (Motion: Duffy/Second: O’Keefe) a vote of 4-1-0-2-1 (Yes: Duffy, O’Keefe, Sanderson, Gaffney; No: Yung; Abstain: None; Absent: Thompson, Tregub; Recused:

Kahn).

On May 6, 2024 staff issued the Notice of Decision for the ZAB denial which established a 14-day appeal period.

On May 10, 2024 Wareham Development, the Applicant, submitted an appeal of the ZAB decision to deny the AUP to the City Clerk.

On or before July 16, 2024 staff posted the public hearing notice at the site and three nearby locations, and mailed notices to property owners and occupants within 300 feet

ZAB Appeal: 2600 Tenth Street PUBLIC HEARING
Administrative Use Permit #ZP2023-0031 JULY 30, 2024

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.

CURRENT SITUATION AND ITS EFFECTS
Project Scope
The current AUP application proposes to change the use of three tenant spaces (suites 105, 106, and 201) on the first and second floors of the building, totaling 9,750 square feet, from Media Production to Research and Development, and be further divided into no more than nine tenant spaces. The existing building already contains 19,553 square feet of Research and Development space. By changing the use of the three existing tenant spaces, the proposed project would result in a total of 29,303 square feet of Research and Development space in the building.

Pursuant to BMC Section 23.206.020, an AUP is required to establish a Research and Development use that is over 20,000 square feet in gross floor area. A Zoning Certificate (ZCBL2022-0190) to change the use of 19,553 square feet of space from Media Production to Research and Development was obtained in May 2022, which would result in a Research and Development use that is over 20,000 square-foot in gross floor area with this proposal.

Zoning Officer’s Decisions to approve the AUP
In consideration of the proposed land use and the structure that accommodates the use, as required per BMC 23.406.030(F) Findings for Approval, the Zoning Officer found that the change of use from Media Production to Research and Development and creating six to nine tenant spaces in the AUP application ZP2023-0031:
 Would not be detrimental, contribute to a shortage of industrial spaces in West Berkeley, or induce substantial changes of use away from industrial uses; and  Would be consistent with the purposes of the District, compatible with the surrounding uses and buildings, comply with the adopted West Berkeley Plan, and would be supportive of the industrial character of the district (see Exhibit A to the first Resolution for AUP Findings and Conditions, dated November 13, 2023).

The AUP approval was appealed by Non-Applicant individuals who are current building tenants. They argued that the existing use of the building is an Art/Craft Studio use, not Media Production, and thus must be protected, and that the conversion to Research and Development would be detrimental to the general welfare of filmmakers and video artists working at 2600 Tenth Street. They further argue that the proposed Research and Development use does not serve the purposes of the district and does not abide by the West Berkeley Plan goals and policies for the protected arts uses (see Attachment 3, materials for the April 25, 2024 ZAB meeting).

ZAB Appeal: 2600 Tenth Street PUBLIC HEARING
Administrative Use Permit #ZP2023-0031 JULY 30, 2024

ZAB decision to overturn the Zoning Officer’s AUP approval and deny the project At the April 25, 2024 hearing, ZAB members discussed the issues around the established uses, definitions, and impact of the proposed project at 2600 Tenth Street.

The captioner’s record of the ZAB discussion is provided as Attachment 4 to this report.

ZAB decision to uphold the Appeal and deny the AUP were based on the following points:
 Definitions: ZAB stated that there are overlapping aspects of creative work that are included in the definition of Media Production and Art/Craft Studio, and the West Berkeley Plan intended to protect the work of all artists including filmmakers. They noted that because the Art/Craft Studio definition includes filmmakers as individuals engaged in the type of work that require artistic skills, it is considered art and should be protected.
 Stand-alone use: ZAB discussed that the stand-alone use does not mean that it has to be within a stand-alone building and it does not refer to a single occupation on the site. They asserted that because small tenant spaces used for artistic work had to obtain a business license to operate, they can be considered as Art/Craft Studio in that space. ZAB added that these uses are considered free standing in that they are self-contained. In conclusion, ZAB determined that because Art/Craft Studio is an existing long-standing use within the building and is a Protected Non-Industrial Use in the Mixed-Use Light Industrial Zoning District per BMC 23.206.050(B), the Protected Use provisions extend to all of the tenant spaces in the building.

RATIONALE FOR RECOMMENDATION
Selected issues raised in the Appellant’s letter (Attachment 2) and staff’s responses follow. For the sake of brevity, the appeal issues are not re-stated in their entirety.

Issue 1: The Applicant-Appellant asserts that the existing established use meets the Media Production definition, and so is not a Protected Use requiring a Use Permit
Response:

Staff agree with the Applicant-Appellant. The 19,553 square feet previously converted to Research and Development may have included areas previously used for Art/Craft Studio use. However, according to the building’s use history, those art-related uses were not established as of July 6, 1989, and did not exist as single stand-alone uses, nor were they combined with residential use in a live/work unit. Therefore, they are not considered a “Protected Use.” Per the Applicant, the proposed changes to an additional 9,750 square feet would occur in locations that have been specifically used for Media

ZAB Appeal: 2600 Tenth Street PUBLIC HEARING
Administrative Use Permit #ZP2023-0031 JULY 30, 2024

Production, and have been vacated since 2018. These square feet are similarly not considered “Protected Uses.”
Definitions
Media Production and Art/Craft Studio are separately defined non-industrial uses in BMC Section 23.502.020, Defined Terms:
 Art/Craft Studio: “An establishment engaged in the creation of art or crafts that requires artistic skill. Such an establishment may participate in periodic open studios, but otherwise is subject to the applicable zoning district’s requirements for incidental sales of goods made on site. Art/craft studios also include rehearsal spaces not designed for public performances. Examples of individuals typically engaged in this work include woodworkers, potters/ceramicists, costume makers, set designers, stained-glass makers, glassblowers, textile artists and weavers, jewelry makers, painters, fine art printmakers, photographers/filmmakers, leather workers, metal workers, musical instrument makers, model makers, papermakers, installation artists, sculptors, video artists, and other makers of art and crafts that the Zoning Officer determines to be consistent with this definition.

The use of computers in an activity does not by itself prevent its classification as an art/craft studio. This use excludes architectural and landscape services, industrial or graphic design services, computer systems design services, and other commercial activities normally conducted in an office environment.”  Media Production: “Commercial arts and art-related business services including audio and film recording and editing studios and services, film and video production, titling, video and film libraries, special effects production, motion picture and photograph processing, radio and television broadcast, and similar uses.”
Art/Craft Studio is considered a Protected Non-Industrial Use in the MU-LI District (BMC Section 23.206.050(B)(1)2) provided that the use was (a) legally established as of July 6, 1989, and (b) exists as a single stand-alone use or is combined with residential use in a live/work unit. Media Production is not a protected non-industrial use.

The established use of the subject site determines what type of zoning permit is required, and whether the provisions of BMC Section 23.206.050, Protected Uses, apply to the project. Changing from a protected nonindustrial use such as Arts/Crafts Studio to a non-protected use is allowable with either an Administrative Use Permit or a Use Permit, depending on the size (BMC Section 23.206.050(B)(2)), and subject to 2 The full list of protected non-industrial uses per BMC 23.206.050(B): Art/craft studio; art galleries, ancillary to art studios when located in the same building; child care facility, fine arts performance, instruction and rehearsal studios (dance, music theater); theaters, stage performance, but excluding motion picture theaters

ZAB Appeal: 2600 Tenth Street PUBLIC HEARING
Administrative Use Permit #ZP2023-0031 JULY 30, 2024

additional findings for approval that require comparable replacement space to be provided (BMC 23.206.050(B)(4)).

Permitting History
Land Use Division records indicate that, subsequent to the establishment and expansion of the facility, Zoning Certificates for Business Licenses were issued to multiple enterprises leasing space at the Zaentz Center after the July 6, 1989 cut-off date for establishing a protected non-industrial use. These included Media Production and artistic uses such as education film production, film making, motion picture and video services, TV production, writing office, post-production film editing, and television programming. There were also less related uses including computer software design, a health information company, a consulting office, and a general business office for import-export of goods. If there were individual uses that could have been defined as Art/Craft Studio uses within the building prior to July 6, 1989, they did not exist as a single stand-alone use, nor were they combined with residential use in a live/work unit.

Therefore, the existing uses of the building are not protected uses. A listing of the City’s records of businesses licenses issued for the site is summarized here:
 1971: At the time of opening, the building contained three recording studios, a mastering room, offices, and a warehouse. Owner Saul Zaentz then expanded the company into film production known as Fantasy Films.  1980: Construction / opening of Saul Zaentz Media Center, a seven-story addition to the building that housed a film post-production center and a fourth recording studio. The Saul Zaentz Film Center was a commercial arts business service consisting of several recording and editing studios and office spaces for the purpose of producing various forms of media, including music and film.  Prior to July 6, 1989: Prior to the 1989 cut-off date for establishing a Protected Use, records include Zoning Certificates for business licenses for uses such as a record company, a sound studio, offices, a publishing company, a computer software, and a computer word processing company.
 July 6, 1989 and after: After the 1989 cut-off date for establishing a Protected Use, Zoning Certificates for business licenses were issued to multiple enterprises including media production, film making, writing office, and television programming, as well as computer software design, a health information company, a consulting office, and a general business office for import-export of goods (A listing of the City’s records of businesses licenses after this date is provided as Attachment 6).

Staff Analysis
Based on the permit history and the definitions, staff determined that the established use as of July 6, 1989 was Media Production, which is not a protected Non-Industrial

ZAB Appeal: 2600 Tenth Street PUBLIC HEARING
Administrative Use Permit #ZP2023-0031 JULY 30, 2024

use. The long-existing film and video production use of the complex, constructed in phases, is consistent with the current definition of Media Production. Specifically, the Saul Zaentz Film Center was a commercial arts business service consisting of several recording and editing studios and office spaces for the purpose of producing various forms of media, including music and film. Prior to the Film Center use, on-site uses included audio and film recording and editing studios and services, film and video production, titling, video and film libraries, special effects production, motion picture and photograph processing, radio and television broadcast, and similar uses.

An Art/Craft Studio is commonly differentiated from Media Production by the scale and purpose of the establishment, understood to encompass studio spaces for art production and performing art instruction, rehearsal studios, and theatre spaces. Media Production uses, by contrast, are “commercial arts and art-related business services” involving various media types. Although filmmakers may rightfully be considered as artists, that does not in turn establish that spaces used by filmmakers are rightfully defined as Art/Craft Studio. The definition of Media Production explicitly includes ‘commercial arts’ and would encompass the work of filmmakers within the building.

Since the historic uses of the space in question has primarily consisted of audio and film recording, editing studios and services, film and video production, titling, special effects production and motion picture, it is still best identified as Media Production and not considered as a Protected Non-Industrial Art/Craft use by BMC Section 23.206.050(B).

Further, even if the established use as of July 6, 1989 could be characterized as Art/Craft Studio, this did not exist as a single stand-alone use at the site, which is a necessary precondition for a use to be a protected use under BMC 23.206.050(B). As the permitting history for the site reflects, the Zaentz Center has had a number of commercial uses over its history, such as a computer software design business and a business to import and export goods, that cannot be categorized as “Art/Craft Studio” uses.

ZAB’s decision to restrict uses to Art/Craft Studio would deviate from the previously established Media Production use. Pursuant to BMC Section 23.206.050(B), to change a Protected Non-Industrial Use such as the Art/Craft Studio Use to a Non-Protected use such as Media Production[1], an AUP (for less than 5,000 square feet) or a Use Permit (for 5,000 square feet or more) is required. This change of use requires that the space occupied by the existing Art/Craft Studio use will be replaced with a comparable space in the West Berkeley Plan area, which is reserved for use by any protected use in the same category. This would impact the property owner’s ability to continue to use the building for Media Production as the use would be subject to a use permit public hearing and replacement requirements. In this scenario, there would be limitation and additional regulatory requirements to establish a Media Production use, but the use itself would not be prohibited.

ZAB Appeal: 2600 Tenth Street PUBLIC HEARING
Administrative Use Permit #ZP2023-0031 JULY 30, 2024

Issue 2: The Applicant-Appellant refers to Appendix B to the West Berkeley Area Plan which explicitly notes the film, video and record production companies located at the Fantasy Building to be distinct from the identified arts and crafts studios located in West Berkeley.

Response:

Staff agrees with the Applicant-Appellant. The Zoning Ordinance was amended in 1999 to implement the West Berkeley Plan, and included provisions for Protected Uses.

Art/Craft Studio uses were included as Protected Uses provided they were legally established as of July 6, 1989 and were a stand-alone use or combined with residential use, same as the current code requirement. The Subsequent amendments to the West Berkeley Plan in 2011 and the corresponding zoning amendments did not include Media Production as a protected use or alter the Protected Use criteria for Art/Craft Studios.

The West Berkeley Plan’s Appendix B Cultural Resources of West Berkeley refers to West Berkeley as a hub for a strong community of artist and crafts people and identifies some of the studios and worksites of artists and craftspeople. It goes on to state that “in addition to art and craft studios, there are also film, video, and record production companies in West Berkeley, at the Fantasy Building and in other locations.” Therefore, despite the overlap of artistic work in both definitions, the West Berkeley Plan considers two separate categories for Media Production and Art/Craft Studio use. The existing use of the subject building was Media Production3 at the time of West Berkeley Plan implementation in the Zoning Ordinance.

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.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
The project complies with all state and local environmental requirements.

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.
3 Formerly called Radio, Television or Audio/Sound Recording and/or Broadcast Studios

ZAB Appeal: 2600 Tenth Street PUBLIC HEARING
Administrative Use Permit #ZP2023-0031 JULY 30, 2024

CONTACT PERSONS
Jordan Klein, Director, Planning & Development Department, (510) 981-7534 Anne Hersch, Land Use Planning Manager, (510) 981-7411
Nilu Karimzadegan, Senior Planner, (510) 981-7430

1. Draft Resolution
A. Option to Uphold Appeal, Reverse the ZAB Decision, and Approve AUP o Exhibit A: Findings and Conditions, dated November 13, 2023 o Exhibit B: Project Plans, received March 9, 2023
B. Option to Deny Appeal, Affirm the ZAB Decision, and Deny AUP o Exhibit A: ZAB Notice of Decision with Findings for Denial, issued May 6, 2024
o Exhibit B: Project Plans, received March 9, 2023

2. ZAB Decision Appeal Letter, received May 10, 2024

3. ZAB Packet (Staff Report, AUP Appeal Letter, and attachments), dated April 25, 2024

4. Captioner’s Record, ZAB meeting April 25, 2024

5. Appendix B, Cultural Resources of West Berkeley

6. List of approved Zoning Certificates for Business Licenses at the site

7. Index to Administrative Record

8. Administrative Record

9. Public Hearing Notice

Attachment 1, Resolution A
RESOLUTION NO. ##,###-N.S.

UPHOLD THE APPEAL AND REVERSE THE ZONING ADJUSTMENT BOARD DECISION TO DENY ADMINISTRATIVE USE PERMIT #ZP2023-0031 TO CHANGE THE USE OF THREE TENANT SPACES (9,750 SQUARE FEET) FROM MEDIA

PRODUCTION TO RESEARCH AND DEVELOPMENT RESULTING IN A TOTAL OF 29,303 SQUARE FEET OF RESEARCH AND DEVELOPMENT SPACE, AND TO

CREATE SIX TO NINE TENANT SPACES IN A SEVEN-STORY BUILDING ON A 114,998 SQUARE-FOOT LOT.

WHEREAS, on March 9, 2023 Wareham Development (“applicant”) submitted an AUP Application (ZP2023-0031) to change the use of three tenant spaces (9,750 square feet) from Media Production to Research and Development, resulting in a total of 29,303 square feet of Research and Development space and to create six to nine tenant spaces in a seven-story building on a 114,998 square-foot lot; and WHEREAS, on November 13, 2023 staff issued the Notice of Administration Decision to approve the AUP; and
WHEREAS, on December 4, 2023 Rick Auerbach (on behalf of West Berkeley Artisans & Industrial Companies (WEBAIC), Jed Riffe, Connie Field, Vivian Kleinman, and Jim Lebrecht submitted an appeal of the Zoning Officer’s Decision to approve the AUP Application; and
WHEREAS, April 11, 2024, the City mailed public hearing notices to all adjacent property owners and occupants within 300 feet of the subject property, and to interested neighborhood organizations. Staff also posted the Notice of Public Hearing at three locations within the immediate vicinity of the subject site; and WHEREAS, on April 25, 2024, the ZAB conducted a public hearing for the appeal of the Zoning Officer’s decision to approve the AUP Application (ZP2023-0031). After considering the staff report, the administrative record, and hearing comments from staff, the applicant, appellants, and the members of the public, the ZAB approved the appeal and denied the AUP (Motion: Duffy/Second: O’Keefe) a vote of 4-1-0-2-1 (Yes: Duffy, O’Keefe, Sanderson, Gaffney; No: Yung; Abstain: None; Absent: Thompson, Tregub; Recused: Kahn); and
WHEREAS, on May 6, 2024 staff issued the Notice of Decision for the ZAB denial which established a 14-day appeal period; and
WHEREAS, on May 10, 2024 Wareham Development, the Applicant, submitted an appeal of the ZAB decision to deny the AUP to the City Clerk; and WHEREAS, On or before July 16, 2024 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; and

Attachment 1, Resolution A
WHEREAS, on July 30, 2024, 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 reverses the decision made by ZAB to deny Administrative Use Permit #ZP2023-0031; adopts the Findings and Conditions of Approval in Exhibit A; adopts the project plans in Exhibit B; and upholds the appeal.

Exhibits
 Exhibit A: Findings and Conditions
 Exhibit B: Project Plans, received March 9, 2023

Attachment 1
Findings and Condition s
N OVEMBER 1 3 , 2023
1947 Center Street, 2nd Floor, Berkeley, CA 94704 Tel: 510.981.7410 TDD: 510.981.7474 Fax: 510.981.7420 E-mail: [email protected]
2600 Tenth Street
Administrative Use Permit #ZP2023-0031
To change the use of four tenant spaces (9,7
50 square feet) from Media
Production to a Research and Development use, and create up to nine tenant spaces within a seven-story building on a 114, 998 square-feet lot.

PERMITS REQUIRED
• Administrative Use Permit (AUP) pursuant to Berkeley Municipal Code (BMC) Section

23.206.020 to establish a Research and Development use that is over 20,000 square foot in gross floor area.
• Administrative Use Permit pursuant to BMC Section 23.206.030(B)(3)(a) to c reate up to
nine tenant spaces.

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 Section 15301 of the CEQA Guidelines (“Existing Facilities”).

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.

FINDINGS FOR APPROVAL

3. As required by Section 23.406.040(E)(1) of the Zoning Ordinance, 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:
• The subject property is a seven-story building that incudes existing office use, Research and Development, Media Production and childcare. It is located in south west Berkeley on a full city block bounded by Parker Street to the north, Tenth Street to the east, Carleton Street to the south and Ninth Street to the west. The proposed project is a change of use from Media Production to Research and Development use within an existing building in the MU -LI (Mixed Use- Light Industrial) District. The project will convert three existing Media Production tenant spaces totaling 9,750 square feet to create additional space for Research and Development within the building, with no changes to the exterior of the Exhibit A to Attachment 1A

2600 TENTH STREET NOTICE OF ADMINISTRATIVE DECISION - Findings and Conditions

G:\LANDUSE\Projects by Address\Tenth\2600\ZP2023-0031\DOCUMENT FINALS\2023-11-13_APFC__2600 Tenth St.docx building, nor added square footage. The project will conform to the applicable provisions of BMC Section 23.206.080(E) and 23.322.030(C)(2), including floor area ratio, height, and setbacks. Although parking minimums are no longer required under AB 2097 1, ample
on-site parking is currently provided.

In 2022, a zoning certificate was issued to change the use of 19,995 square feet of Media Production to Research and Development for suites 107, 108, 109, and 110 (ZCBL2022- 0121). The project will change an additional 9,750 square feet, comprised of suite numbers 105, 106 and 201.The total area of Research and Development will be 29,745 square feet.
• The immediate surrounding neighborhood includes properties z oned for MU -LI to the north and west, properties zoned MU -R (Mixed Use -Residential) to the south, and properties zoned C -W (West Berkeley Commercial) to the east. Businesses in the immediate vicinity include offices, medical offices, light manufacturing and warehousing, and food service establishments. The project site has a General Plan designation of Manufacturing. This area of Berkeley is characterized by commercial and light industrial activity in close proximity to San Pablo Avenue, easily accessible f or employees and patrons by public transportation or automobile. Therefore, the proposed Research and Development use is consistent with surrounding development and will contribute to the vitality of West Berkeley’s neighborhood.

4. As required by BMC Section 23.206.030(B)(3) for the MULI District, the Zoning Officer finds that the reconfiguration of three existing spaces up to nine is allowable because the reconfiguration will not create or contribute to a shortage of industrial spaces in West Berkeley for spaces of the size being converted, and that the reconfiguration can be reasonably expected to better serve the purposes of the district (BMC 23.206.080 (A)) than leaving the space intact because:
• Both the existing Media Production and proposed Research and Development uses are classified as “Industrial and Heavy Commercial Uses” so there is no change in the industrial nature of activities that can occur onsite. • The additional spaces will potentially allow multiple tenants engaging in research and development activities, with flexibility in the size of individual tenant spaces. • Research and Development is an allowed Land Use and the proposed project is consistent with, and supports implementation of, relevant policies set forth in the adopted West Berkeley Plan in that it will provide additional Research and Development space, keeping with the land use mix set forth in the Plan, and allowing for continued attraction of new and growth of existing business while maintaining the existing character of the area.

1 AB-2097, effective January 1, 2023 , prohibits local jurisdictions from requiring minimum parking for most non- residential uses, including Research and Development.

2600 TENTH STREET NOTICE OF ADMINISTRATIVE DECISION - Findings and Conditions

G:\LANDUSE\Projects by Address\Tenth\2600\ZP2023-0031\DOCUMENT FINALS\2023-11-13_APFC__2600 Tenth St.docx

5. As required by BMC Section 23.206.100 (A), the Zoning Officer finds that the project is:
(1) consistent with the purposes of the District; (2) compatible with the surrounding uses and buildings; (3) Complies with the adopted West Berkeley Plan; and ( 4) Meets any applicable performance standards for off -site impacts. The project is permissible for the following reasons:
• The change of use from Media Production to Research and Development is consistent with the purposes of the MU-LI District because it will support the development of a mixed-use light industrial area for a range of compatible uses, encourage the creation and continuation of well -paid jobs which do not require advanced degrees , and will provide a location for Research and Development while not interfering with light manufacturing uses or the light manufacturing building stock. • The change of use is compatible with the surrounding uses and buildings , as it will not result in any changes to the exterior of the building.
• The change of use is consistent with the West Berkeley Plan because, as noted above, the project will provide a location for Research and Development while not interfering with light manufacturing uses or the light manufacturing building stock, and will thus not induce a change of use in other areas of West Berkeley where manufacturing and warehousing uses occur.
• The Zoning Officer finds that no additional performance standards are applicable to this project. The existing Media Production use conforms to the parking requirements in the District, and the project will not result in the creation of new floor area. Therefore, the project will not exceed the amount and intensity of use that can be served by available traffic capacity and parking supply.

6. As required by BMC Section 23.206.100(B)(2), the Zoning Officer finds that the project:
(a) Is unlikely, under reasonably foreseeable circumstances, to induce a substantial chang
e of use in buildings from manufacturing, wholesale trade, or warehousing uses; and
(b) Is designed in such a manner to be supportive of the industrial character of the district. Such physical compatibility shall include materials used; facade treatments; landscaping; lighting; type, size and placement of awnings, windows, and signs; and all other externally visible aspects of the design of the building and site. The proposed use is to expand the existing Research and Developmental gross floor area and therefore will not induce a substantial change of use in the building from a manufacturing use.

Additionally, no exterior changes will occur due to the proposed project.

2600 TENTH STREET NOTICE OF ADMINISTRATIVE DECISION - Findings and Conditions

G:\LANDUSE\Projects by Address\Tenth\2600\ZP2023-0031\DOCUMENT FINALS\2023-11-13_APFC__2600 Tenth St.docx

STANDARD CONDITIONS

The following conditions, as well as all other applicable provisions of the Berkeley Municipal Code, apply to this Permit:

1. Conditions 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 applican t must apply for and receive City approval of a new permit.

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

2600 TENTH STREET NOTICE OF ADMINISTRATIVE DECISION - Findings and Conditions

G:\LANDUSE\Projects by Address\Tenth\2600\ZP2023-0031\DOCUMENT FINALS\2023-11-13_APFC__2600 Tenth St.docx Once a Permit for a use is exercised and the use is established, the permit authorizing the use remains effective even if the property becomes vacant. The same use as allowed by the original permit may be re-established without obtaining a new permit, except as set forth in Standard Condition #5 above.

7. Permit Modifications (BMC Section 23.404.070)
No change in the use or structure for which this Permit is issued is permitted unless approved by the review authority which originally approved the permit. The Zoning Officer may approve changes to plans approved by the Board, consistent with the Board’s policy adopted on May 24, 1978, which reduce the size of the project.

8. Permit Revocation (BMC Section 23.404.080)
The City may revoke or modify a discretionary permit for completed projects due to: 1) violations of permit requirements; 2) Changes to the approved project; and/or 3) Vacancy for one year or more. However, no lawful residential use can lapse, regardless of the length of time of the vacancy. Proceedings to revoke or modify a permit may be initiated by the Zoning Officer, Zoning Adjustments Board (ZAB), or City Council referral.

9. Indemnification Agreement
The applicant shall hold harmless, defend, and indemnify the City of Berkeley and its officers, agents, and employees against any and all liability, damages, claims, demands, judgments or other losses (including without limitation, attorney’s fees, expert witness and consultant fees and other litigation expenses), referendum or initiative relating to, resulting from or caused by, or alleged to have resulted from, or caused by, any action or approval associated with the project. The indemnity includes without limitation, any legal or administrative challenge, referendum or initiative filed or prosecuted to overturn, set aside, stay or otherwise rescind any or all approvals granted in connection with the Project, any environmental determination made for the project and granting any permit issued in accordance with the project. This indemnity includes, without limitation, payment of all direct and indirect costs associated with any action specifie d herein. Direct and indirect costs shall include, without limitation, any attorney’s fees, expert witness and consultant fees, court costs, and other litigation fees. City shall have the right to select counsel to represent the City at Applicant’s expense in the defense of any action specified in this condition of approval. City shall take reasonable steps to promptly notify the Applicant of any claim, demand, or legal actions that may create a claim for indemnification under these conditions of approval.

ADDITIONAL CONDITIONS IMPOSED BY THE ZONING OFFICER
Pursuant to BMC Section 23.406.030.H.2, the Zoning Officer attaches the following additional conditions to this Permit:

2600 TENTH STREET NOTICE OF ADMINISTRATIVE DECISION - Findings and Conditions

G:\LANDUSE\Projects by Address\Tenth\2600\ZP2023-0031\DOCUMENT FINALS\2023-11-13_APFC__2600 Tenth St.docx Prior to Submittal of Any Building Permit:

10. Project Liaison. The applicant shall include in all building permit plans and post onsite the name and telephone number of an individual empowered to manage construction- related complaints generated from the project. The individual’s name, telephone number, and responsibility for the project shall be posted at the project site for the duration of the project in a location easily visible to the public. The individual shall record all complaints received and actions taken in response, and submit written reports of such complaints and act ions to the project planner on a weekly basis. Please designate the name of this individual below:
□ Project Liaison
Name Phone #

11. The applicant shall file an “Address Assignment Request Application” with the Permit Service Center (1947 Center Street) for any address change or new address associated with this Administrative Use Permit. The new address(es) shall be assigned in accordance with BMC 16.28.030, and entered into the City’s database after the building permit is issued but prior to final inspection

Standard Construction-rel ated Conditions Applicable to all Projects:

12. Construction activity shall be limited to between the hours of 8:00 a.m. and 6:00 p.m. on Monday
through Friday, and between 9:00 a.m. and noon on Saturday. No construction- relat
ed activity shall occur on Sunday or on any Federal Holiday.

13. If underground utilities leading to adjacent properties are uncovered and/or broken, the contractor involved shall immediately notify the Public Works Department and the Building & Safety Division, and carry out any necessary corrective action to their satisfaction.

14. Subject to approval of the Public Works Department, the applicant shall repair any damage to public streets and/or sidewalks by construction vehicles traveling to or from the project site.

15. All piles of debris, soil, sand, or other loose materials shall be covered at night and during rainy weather with plastic at least one- eighth millimeter in thickness and secured to the ground.

16. All active construction areas shall be watered at least twice daily, and all piles of debris, soil, sand or other loose materials shall be watered or covered.

17. Trucks hauling debris, soil, sand, or other loose materials shall be covered or required to maintain at least two feet of board.

18. Public streets shall be swept (preferably with water sweepers) of all visible soil material carried from the site.

19. The applicant shall establish and maintain drainage patterns that do not adversely affect adjacent properties and rights-of-way.

2600 TENTH STREET NOTICE OF ADMINISTRATIVE DECISION - Findings and Conditions

G:\LANDUSE\Projects by Address\Tenth\2600\ZP2023-0031\DOCUMENT FINALS\2023-11-13_APFC__2600 Tenth St.docx

20. The applicant shall ensure that all excavation takes into account surface and subsurface waters and underground streams so as not to adversely affect adjacent properties and rights-of-way.

21. Any construction during the wet season shall require submittal of a soils report with appropriate measures to minimize erosion and landslides, and the developer shall be responsible for following these and any other measures required by the Building and Safety Division and the Public Works Department.

Prior to Issuance of Occupancy Permit or Final Inspection:

22. All construction at the subject property shall substantially conform to the approved Use Permit drawings or to modifications approved by the Zoning Officer.

23. All landscape, site and architectural improvements shall be completed per the attached approved drawings dated March 9, 2023.

At All Times (Operation):

24. All exterior lighting shall be energy efficient where feasible; and shielded and directed downward and away from property lines to prevent excessive glare bey ond the subject property.

25. Noise and exterior lighting shall be controlled so as to prevent verified complaints from the surrounding neighborhood. This shall include noise created by employees working on the premises before or after patrons arrive.

26. Design Review. S
ignage and any other exterior modifications, including but not limited to landscaping and lighting, shall be subject to design review’s review and approval.

27. This permit is subject to review, imposition of additional conditions, or revocation if fac tual
complaint is received by the Zoning Officer that the maintenance or operation of this establishment is violating any of these or other required conditions or is detrimental to the health, safety, peace, morals, comfort or general welfare of persons residing or working in the neighborhood or is detrimental or injurious to property and improvements in the neighborhood or to the general welfare of the City.

28. Transit Subsidy. If 10 or more employees, the business opera tor shall reimburse employees
the maximum non- taxable cost of commuting to and from work on public transportation (e.g., monthly passes) if they so commute, and a notice informing employees of the availability of such subsidy shall be permanently displayed in the employee area.

_____________________________________
Prepar
ed by: Nilu Karimzadegan
For Samantha Updegrave, Zoning Officer

Exhibit B, to Attachment 1A

Attachment 1, Resolution B
RESOLUTION NO. ##,###-N.S.

DENY THE APPEAL AND AFFIRM THE ZONING ADJUSTMENT BOARD DECISION TO DENY ADMINISTRATIVE USE PERMIT #ZP2023-0031 TO CHANGE THE USE OF THREE TENANT SPACES (9,750 SQUARE FEET) FROM MEDIA PRODUCTION TO RESEARCH AND DEVELOPMENT RESULTING IN A TOTAL OF 29,303 SQUARE

FEET OF RESEARCH AND DEVELOPMENT SPACE, AND TO CREATE SIX TO NINE TENANT SPACES IN A SEVEN-STORY BUILDING ON A 114,998 SQUARE-FOOT LOT WHEREAS, on March 9, 2023 Wareham Development (“applicant”) submitted an AUP Application (ZP2023-0031) to change the use of three tenant spaces (9,750 square feet) from Media Production to Research and Development, resulting in a total of 29,303 square feet of Research and Development space and to create six to nine tenant spaces in a seven-story building on a 114,998 square-foot lot; and WHEREAS, on November 13, 2023 staff issued the Notice of Administration Decision to approve the AUP; and
WHEREAS, on December 4, 2023 Rick Auerbach (on behalf of West Berkeley Artisans & Industrial Companies (WEBAIC), Jed Riffe, Connie Field, Vivian Kleinman, and Jim Lebrecht submitted an appeal of the Zoning Officer’s Decision to approve the AUP Application; and
WHEREAS, April 11, 2024, the City mailed public hearing notices to all adjacent property owners and occupants within 300 feet of the subject property, and to interested neighborhood organizations. Staff also posted the Notice of Public Hearing at three locations within the immediate vicinity of the subject site; and WHEREAS, on April 25, 2024, the ZAB conducted a public hearing for the appeal of the Zoning Officer’s decision to approve the AUP Application (ZP2023-0031). After considering the staff report, the administrative record, and hearing comments from staff, the applicant, appellants, and the members of the public, the ZAB approved the appeal and denied the AUP (Motion: Duffy/Second: O’Keefe) a vote of 4-1-0-2-1 (Yes: Duffy, O’Keefe, Sanderson, Gaffney; No: Yung; Abstain: None; Absent: Thompson, Tregub; Recused: Kahn); and
WHEREAS, on May 6, 2024 staff issued the Notice of Decision for the ZAB denial which established a 14-day appeal period; and
WHEREAS, on May 10, 2024 Wareham Development, the Applicant, submitted an appeal of the ZAB decision to deny the AUP to the City Clerk; and WHEREAS, On or before July 16, 2024 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; and

Attachment 1, Resolution B
WHEREAS, on July 30, 2024, 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 ZAB in Exhibit A to affirm the decision made by ZAB, denies Administrative Use Permit #ZP2023-0031; denies the project plans in Exhibit B; and dismisses the appeal.

Exhibits
 Exhibit A: ZAB Notice of Decision with Findings for Denial, issued May 6, 2024  Exhibit B: Project Plans, received March 9, 2023

Z ONIN G

A DJUSTMENT S

B OAR D
Notice of Decision
1947 Center Street, Berkeley, CA 94704 Tel: 510.981.7410 TDD: 510.981.7474 Fax: 510.981.7420 E-ma
il: [email protected]
DATE OF BOARD DECISION: April 25, 2024
DATE NOTICE MAILED: May 6, 2024
APPEAL PERIOD EXPIRATION: May 20, 2024
EFFECTIVE DATE OF PERMIT (Barring Appeal or Certification)1 May 21, 2024 2600 Tenth Street
Administrative Use Permit ZP#2023-0031 to change the use of three tenant spaces (9,750 square feet) from Media Production to Research and Development resulting in a total of 29,745 square feet of Research and Development space, in a seven-story building on a 114,998 square-foot lot.

The Zoning Adjustments Board of the City of Berkeley, after conducting a public hearing, upheld the appeal and DENIED the following permits:
• Administrative Use Permit pursuant to Berkeley Municipal Code (BMC) Section 23.206.020 to establish a Research and Development use that is over 20,000 square foot in gross floor area. • Administrative Use Permit pursuant to BMC Section 23.206.030(B)(3)(a) to create six to nine tenant spaces.

ZONING: MU-LI -
Mixed-Use Light Industrial District
APPLICANT: Lisa Vogel, Wareham Development
PROPERTY OWNER: 2600 Tenth Street, LLC
APPELLANTS: Rick Auerbach (WEBAIC). Jed Riffe, Connie Field, Viv ian Kleinman, a nd Jim
Lebrecht
ENVIRONMENTAL REVIEW STATUS: Categ
orically exempt under the California Environmental
Quality Act Guidelines, Section 15301 of the CEQA Guidelines (“Existing Facilities”). 1 Pursuant to BMC Section 23. 410.050(C), the City Council may certify any ZAB decision for review during the 14- day appeal period after the notice of the ZAB’s decision is issued. Certification has the same effect as an appeal.

However, BMC Section 1.04.070 suspends or “tolls” the Council’s deadline to certify when the Council is on recess.

Thus, in cases where the 14-day appeal period is scheduled to end during a Council recess, the certification deadline is extended past the end of the recess for the remainder of the appeal period. In cases where the appeal period begins during a Council recess, the certification deadline is extended until 14 days after the first Council meeting after the recess. Extension of the certification deadline has no effect on the appeal deadline.

Exhibit A to Attachment 1B

ZONING ADJUSTMENTS BOARD 2600 TENTH STREET
April 25, 2024 Page 2 of 4

G:\LANDUSE\Projects by Address\Tenth\2600\ZP2023-0031\5-FINAL PUBLIC REPORTS + ATTACHMENTS

FINDINGS FOR DENIAL ARE ATTACHED TO THIS NOTICE
Yes No Abstain Absent Recused

DUFFY X

KAHN X
O’KEEFE X

SANDERSON X

THOMPSON X

GAFFNEY X
Yung X

TREGUB X
BOARD VOTE: 4 1 2 1

ATTEST:

Claudia Garcia, Zoning Adjustments Board
Secretary

PUBLICATION OF NOTICE:

Pursuant to BMC Section 23. 404.050, this notice shall be mailed to the applicant at the mailing address stated in the application and to any person who requests such notification by filing a written request with the Zoning Officer on or before the date of the Board action. This notice shall also be filed with the City Clerk. In addition, the notice shall be forwarded to the Zoning Adjustments Board and to the Main Library. The notice shall also be posted at a bulletin board at the Zoning Counter. The City Clerk shall make the notice available to interested members of the Council and the public.

FURTHER INFORMATION:

Questions about the project should be directed to the project planner, Nilu Karimzadegan, at (510) 981-7430 or [email protected]. Al l project application materials, including full-size plans, may be viewed online at:
https://aca.cityofberkeley.info/CitizenAccess/Welcome.aspx. or in the Permit Service Center at the Zoning Counter at 1947 Center Street, Third Floor, during normal office hours.

ZONING ADJUSTMENTS BOARD 2600 TENTH STREET
April 25, 2024 Page 3 of 4

G:\LANDUSE\Projects by Address\Tenth\2600\ZP2023-0031\5-FINAL PUBLIC REPORTS + ATTACHMENTS TO APPEAL THIS DECISION (see Section 23.410 of the Berkeley Municipal Code):

To appeal a decision of the Zoning Adjustments Board to the City Council you must:

1. S ubmit a letter clearly and concisely setting forth the grounds for the appeal to the City Clerk, located at 2180 Milvia Street, 1st Floor, Berkeley. The City Clerk’s telephone number is (510) 981-6900.

2. Submit the required appeal fee (checks and money orders payable to “City of Berkeley”):

A. The fee for persons other than the applicant is $1500. This fee may be reduced to $500 if the appeal is signed by persons who lease or own at least 50 percent of the parcels or dwelling units within 300 feet of the project site, or at least 25 such persons (not including dependent children), whichever is less.

B. The fee for all appeals by Applicants is $5,520.

3. The appeal must be received prior to 5:00 p.m. on the "APPEAL PERIOD EXPIRATION" date shown on page 1 ( if the close of the appeal period falls on a weekend or holiday, then the appeal period expires the following business day).

If no appeal is received, the permit will be issued on the first business day following expiration of the appeal period, and the project may proceed at that time.

ZONING ADJUSTMENTS BOARD 2600 TENTH STREET
April 25, 2024 Page 4 of 4

G:\LANDUSE\Projects by Address\Tenth\2600\ZP2023-0031\5-FINAL PUBLIC REPORTS + ATTACHMENTS NOTICE CONCERNING YOUR LEGAL RIGHTS:

If you object to this decision, the following requirements and restrictions apply:

1. If you challenge this decision in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the Zoning Adjustments Board at, or prior to, the public hearing.

2. You must appeal to the City Council within fourteen (14) days after the Notice of Decision of the action of the Zoning Adjustments Board is mailed. It is your obligation to notify the Land Use Planning Division in writing of your desire to receive a Notice of Decision when it is completed.

3. Pursuant to Code of Civil Procedure Section 1094.6(b) and Government Code Section 65009(c)(1), no lawsuit challenging a City Council decision, as defined by Code of Civil Procedure Section 1094.6(e), regarding a use permit, variance or other permit may be filed more than ninety (90) days after the date the decision becomes final, as defined in Code of Civil Procedure Section 1094.6(b). Any lawsuit not filed within that ninety (90) day period will be barred.

4. Pursuant to Government Code Section 66020(d)(1), notice is hereby given to the applicant that the 90- day protest period for any fees, dedications, reservations, or other exactions included in any permit approval begins upon final action by the City, and that any challenge must be filed within this 90-day period.

5. If you believe that this decision or any condition attached to it denies you any reasonable economic use of the subject property, was not sufficiently related to a legitimate public purpose, was not sufficiently proportional to any impact of the project, or for any other reason constitutes a “taking” of property for public use without just compensation under the California or United States Constitutions, your appeal of this decision must include the follow ing information:

A. That this belief is a basis of your appeal.

B. Why you believe that the decision or condition constitutes a "taking" of property as set forth above.

C. All evidence and argument in support of your belief that the decision or condition constitutes a “taking” as set forth above.

If you do not do so, you will waive any legal right to claim that your property has been taken, both before the City Council and in court.

Attachment 1
Findings for denial
A PRIL 25, 2024

1947 Center Street, 2nd Floor, Berkeley, CA 94704 Tel: 510.981.7410 TDD: 510.981.7474 Fax: 510.981.7420 E-mail: [email protected]
2600 Tenth Street

Administrative Use Permit ZP#2023-0031 to change the use of three tenant spaces (9,750 square feet) from Media Production to Research and Development resulting in a total of 29,745 square feet of Research and Development space, in a seven-story building on a 114,998 square-foot lot.

FINDINGS FOR DENIAL

1. As required by Berkeley Municipal Code (BMC) Section 23.406.040(E)(1) , Findings for Approval, the Zoning Adjustments Board finds that the project, under the circumstances of this particular case existing at the time at which the application is granted, will be detrimental to the health, safety, peace, morals, comfort, and general welfare of the persons residing or worki ng 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:

• The building was developed as a film, video, and record production company. There are overlapping aspects of creative work that are included in the definition of Media Production and Arts/Crafts Studio, and the West Berkeley Plan intended to protect the work of all artists including film makers. The Arts/Crafts Studio definition includes filmmakers as an example of individuals engaged in the creation of arts or crafts that require artistic skill. Film makers are part of the creative community in Berkeley, their work is considered arts and should be protected.
• Stand-alone use does not mean that it has to be within a stand- alone building and it does not refer to a single occupation on the site. These artistic and creative work spaces are small tenant spaces that had to obtain a business license to operate as Arts/Crafts Studio in that space. These uses are considered free standing in that they are self - contained. It is essential for the creative community to cluster and to be collaborative in their work as individual artists.
• Because Art/Craft Studio is an existing a long -standing use within the building and is a protected non-industrial use in the Mixed-Use - Light Industrial Zoning District per BMC

23.206.050(B), the protected use provisions extend to all of the tenant spaces in the building.

Exhibit B, to Attachment 1B

Attachment 2

Z ONING

A DJUSTMENT S
B OARD
Staff Report
1947 Center Street, Berkeley, CA 94704 Tel: 510.981.7410 TDD: 510.981.7474 Fax: 510.981.7420 E-mail: [email protected]

FOR BOARD ACTION
APRIL 25, 2024
2600 Tenth Street
Appeal of the Zoning Officer’s Decision to approve Administrative Use Permit (AUP) ZP#2023-0031 to change the use of three tenant spaces (9,750 square feet) from Media Production to Research and Development resulting in a total of 29,745 square feet of Research and Development space , in a seven-story building on a 114,998 square-foot lot.

I. Background
A. Land Use Designations:
• General Plan: M - Manufacturing
• Zoning: MU-LI - Mixed-Use Light Industrial District
B. Zoning Permits Required:
• Administrative Use Permit pursuant to Berkeley Municipal Code (BMC) Section

23.206.020 to establish a Research and Development use that is over 20,000 square foot in gross floor area.
• Administrative Use Permit pursuant to BMC Section 23.206.030(B)(3)(a) to create six to nine tenant spaces.

C. CEQA Recommendation: It
is staff’s recommendation that the project is c ategorically exempt pursuant to Section 15301 of the CEQA Guidelines (“Existing Facilities”).

A. Parties Involved:
• Applicant Lisa Vogel, Wareham Development
• Property Owner 2600 Tenth Street, LLC
• Appellants Rick Auerbach (WEBAIC), Jed Riffe, Connie Field, Vivian Kleinman, Jim Lebrecht
ITEM #4
ZAB 2024-04-25

Attachment 3

ZONING ADJUSTMENTS BOARD 2600 TENTH STREET
April 25, 2024 Page 2 of 15
Figure 1: Vicinity Map
Legend:

Zoning Districts
MU-LI:

Mixed Use – Light Industrial District
MU-R: Mixed Use – Residential District
C-W: West Berkeley Commercial District
Figure 2: Site Plan
Project Site
and
Appellants

ITEM #4
ZAB 2024-04-25

ZONING ADJUSTMENTS BOARD 2600 TENTH STREET
April 25, 2024 Page 3 of 15
Figure 3: Floor Plans
Project Area/Second Floor
Project Area/First Floor
ITEM #4
ZAB 2024-04-25

ZONING ADJUSTMENTS BOARD 2600 TENTH STREET
April 25, 2024 Page 4 of 15
Table 1: Land Use Information
Location Existing Use Zoning District General Plan
Designation
Subject Property Office, Media Production, and
Child Care MU-LI (Mixed Use-
Light Industrial)
District
M (Manufacturing) Surrounding
Properties
North Light Manufacturing and
Warehouse
South Light Industrial and Commercial
Uses, various
Mixed-Use
Residential (MU-R)
East Medical Office (Kaiser) West Berkeley
Commercial (C-W)
West Offices, Media Production MU-LI
Table 2: Special Characteristics
Characteristic Applies to
Project? Explanation
Affordable Child Care Fee for
qualifying non-residential projects
(Per Resolution 66,618-N.S.)
No
This fee applies to projects with net new 7,500 square feet of non-resi dential floor area. The project is a change of use from Media Production to Research and
Development. Therefore, this fee does not apply.

Affordable Housing Fee for
qualifying non-residential projects
(Per Resolution 66,617-N.S.)
Affordable / Inclusionary Housing
Requirements (BMC 23.328) No
The project is not a housing development project, as
defined in BMC 23.328.020 because it does not include
the construction of any residential units. Therefore, the inclusionary housing provisions do not apply.

Alcohol Sales/Service No This project does not involve alcohol sales/services.

Creeks No No creek or culvert, as defined by BMC Chapter 17.08, exists on or within 30’ of the site.

Density Bonus No This project is not a density bonus project.

Historic Resources No The project does not propose the demolition or substantial alteration of a building over 40 years old.

Housing Accountability Act (HAA)
(Gov’t Code Section 65589.5(j))
No
A “housing development project” is defined as a project that is: residential units only, a mixed-use project with at least two-thirds of the square-footage, or for transitional or supportive housing.

The project is a change of use from Media Production to a Research and Development use and would not create
new dwelling units, therefore, HAA and the Housing Crisis Act are not applicable.

Housing Crisis Act of 2019 (SB330)
Oak Trees No There are no coast live oak trees on or abutting the project site.

Rent Controlled Units No There are no rent controlled units on the subject site.

Residential Preferred Parking
(RPP) No The project site is not located in a zone of the Residential Preferred Parking program.

Seismic Hazards (SHMA) No
This property is located within an area susceptible to a liquefaction, but not to earthquakes and landslides, as shown on the State Seismic Hazard Zones Map, however,
the the project is a change of use, and no new floor area is proposed and any alterations to the interior resulting from dividing tenant spaces would not exceed 50 percent ITEM #4
ZAB 2024-04-25

ZONING ADJUSTMENTS BOARD 2600 TENTH STREET
April 25, 2024 Page 5 of 15
of the value of the structure or 50 percent of the existing floor area.

Soil/Groundwater Contamination No
The project site is not on the Cortese List. The project site is located within the City’s Environmental Management
Area; however, no ground disturbance or site
improvements are proposed. Standard Conditions of
Approval related to hazardous materials would apply.

Transit Yes
The project site is one block west of the San Pablo
Avenue transit corridor, and is approximately 1 mile
southeast of the Berkeley Amtrak station. The site is
adjacent to the bike boulevard on Ninth Street and the
bikeway on Parker Street, which connect to transitways
with access to the greater region. The property is located within 5 minutes of the AC Transit #79 and 604 Bus
Routes.

Table 3: Project Chronology
Date Action
March 9, 2023 Application submitted
April 10, 2023 Application deemed incomplete
April 20, 2023 Resubmittal of application material
May 19, 2023 Application deemed complete
November 13, 2023 Notice of Administrative Decision issued December 4, 2023 Appeal letter received
April 11, 2024 Public hearing notices mailed/posted
April 25, 2024 ZAB appeal hearing
II. Project Setting
A. Neighborhood/Area Description: The subject property is located on the northwest corner of Tenth and Parker Street s, on
e block south of Dwight Way and one block west of San
Pablo Avenue. This area includes office and light industrial/warehousing uses including medical offices to the east ( Kaiser Medical outpatient facility) , light manufacturing and warehousing to the north, and offices to the west. The subject property is located 1.6 miles northwest of the Ashby Station BART station, 1 .1-mile southeast of the Berkeley Amtrak station, and is served by several AC Transit bus routes that operate on San Pablo Avenue and Dwight Way. There are several bike boulevards within one and two blocks of Tenth Street and Channing Way.

B. Site Conditions: The project site is a rect
angular 114,998 square foot corner lot, consisting
of the one-block area bounded by Park Street to the north, Tenth Street to the east, Carleton Street to the south, and Ninth Street to the west. The parcel is currently developed with one building totaling 117,316 square feet: the two-story structure formerly occupied by the Saul Zaentz Media Center, and a seven-story addition for media production, office uses, as well as a child care center, and is served by a 105- space surface parking lot with vehicular access from Ninth and Tenth Streets. The building has pedestrian access via an interior ITEM #4
ZAB 2024-04-25

ZONING ADJUSTMENTS BOARD 2600 TENTH STREET
April 25, 2024 Page 6 of 15
landscaped plaza. The current uses at the site include a child care center, Media Production and Research and Development.

III. Project Description
The project scope w
ould change the use of three tenant spaces (suites 105, 106, and 201), totaling 9,750 square feet, from Media Production to Research and Development, and be further divided into up to nine tenant spaces. The existing building has approximately 19,995 square feet of Research and Development space, by changing the use of the three existing tenant spaces the proposed project would result in a total of 29,745 square feet of Research and Development space in the building. No changes to the exterior of the building, nor added square footage are proposed.

IV. Community Discussion
A. Neighbor/Community Concerns: Prior to submitting the application to the City, the applicant installed the ye
llow application posters in April 2023.

B. Project Background: A previous version of this application was submitted in May 2019
requesting a change of use of four existing tenant spaces on the first and second floors, totaling 20,367 square feet, from Media Production to Research and Development. The Zoning Officer’s decision to approve the project was appealed by Alex Wilmer & Sea Wilmer to the Zoning Adjustment Board (ZAB) in November 2021.

At their January 2022 meeting, the ZAB requested that the Planning Department obtain an opinion from the City Attorney regarding the “protect
ed use” status of spaces in the building,
including identifying the existing use as either Media Production or Art/Craft Studio. At that time, ZAB continued the item to a later date.

After consulting with the City Attorney’s office, t he item was placed back on the ZAB
calendar for the April 28, 2022 hearing; however, it was continued to the next ZAB meeting due to time constraints. Subsequently, the applicant withdrew the Administrative Use Permit application before the continuation hearing date, and instead obtained a Zoning Certificate (#ZCBL2022-0121) to change 19,555 square feet of area to Research and Development , which was within the size range allowed by-right.

C. Zoning Officer’s Decision to Approve: The Zoning Officer determined that the propos ed
scope in ZP2023- 0031 would not be detrimental or contribute to a shortage of industrial spaces in West Berkeley. The project would be consistent with the purposes of the District, compatible with the surrounding uses and buildings , c omply with th e adopted West Berkeley Plan, meet any applicable performance standards , would not induce substantial changes of use away from industrial uses, and would be supportive of the industrial character of the district.

D. Appeal: The appeal of the Administrative Use
Permit decision was filed on December 4,
2023 by Rick Auerbach ( on behalf of West Berkeley Artisans & Industrial Companies (WEBAIC)), Jed Riffe, Connie Field, Vivian Kleinman, and Jim Lebrecht. (See Attachment 4)
ITEM #4
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E. Public Notice: On April 11, 2024, t
he City mailed public hearing notices to all adjacent
property owners and occupants within 300 feet of the subject property, and to interested neighborhood organizations . Staff also posted the Notice of Public Hearing at three locations within the immediate vicinity of the subject site. At the time of this writing, Staff has not received any communications, aside from the appeal letter, regarding this project.

V. Appeal Points and Analysis
The appellant raised six main issues in their appeal. For the sake of brevity, these are not re-stated in their entirety. Please refer to the appeal letter for the full text . The summary of the issues raised in the appellants’ letter and staff’s responses are as follows.

Appeal Point #1: The Appellants believe that
the designation of the existing use as Media
Production is incorrect and that this use ought to be treated as an Art/Craft Studio use subject to the provisions of BMC Section 23.206.050(B) for Protected Non-Industrial Use in the MU-LI and MU-R Districts.

Background:

Definitions. Media Production and Art/Craft Studio are separately defined non-indus trial
uses in BMC Section 23.502.020, Defined Terms.
“Media Production: Commercial arts and art -related business services including audio and film recording and editing studios and services, film and video production, titling, video and film libraries, special effects production, motion picture and photograph processing, radio and television broadcast, and similar uses.” “Art/Craft Studio: An es
tablishment engaged in the creation of art or crafts that requires artistic skill. Such an establishment may participate in periodic open studios, but otherwise is subject to the applicable zoning district’s requirements for incidental sales of goods made on site. Art/craft studios also include rehearsal spaces not designed for public performances. Examples of individuals typically engaged in this work include woodworkers, potters/ceramicists, costume makers, set designers, stained-glass makers, glassblowers, textile artists and weavers, jewelry makers, painters, fine art printmakers, photographers/filmmakers, leather workers, metal workers, musical instrument makers, model makers, papermakers, installation artists, sculptors, video artists, and other makers of art and crafts that the Zoning Officer determines to be consistent with this definition. The use of computers in an activity does not by itself prevent its classification as an art/craft studio. This use excludes architectural and landscape services, industrial or graphic design services, computer systems design services, and other commercial activities normally conducted in an office environment.”
ITEM #4
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Art/Craft Studio is considered a Protected Non- Industrial Use in the MU -LI District (BMC Section 23.206.050(B)(1)1) provided that the use was (a) legally established as of July 6, 1989, and (b) exists as a single stand- alone use or is combined with residential use in a live/work unit. Media Production is not a protected use.

Permitted Uses.

The e stablished use of the subject site determines what type of zoning permit is required, and whether the provisions of BMC Sect
ion 23.206.050, Protected Uses,
apply to the project.

Changing from a protected nonindustrial use such
as Arts/Crafts Studio to a non-
protected use is allowable with either an Administrative Use Permit or a Use Permit, depending on the size (BMC Section 23.206.0 50(B)(2)), and subject to additional findings for approval that require comparable replacement space to be provided (BMC 23.206.050(B)(4)).

Evidence:

Established Use. Staff evaluated the permit history (summarized below) , and determined that the established use as of July 6, 1989 was Media Production.

Site History. At th
e time of construction and opening in 1971, the building at 2600 Tenth Street contained three recording studios (one with a separate entrance built specifically for Creedence Clearwater Revival), a mastering room, offices, and a warehouse. Owner Saul Zaentz then expanded the company into film production known as Fantasy Films. The success launched another expansion of the company, and construction of a seven- story addition to the recording studios on the subject site. Known as the Saul Zaentz Media Center, the new facility opened in 1980 and housed a film post-production center and a fourth recording studio.

Thus, the long-existing film and video produc
tion use of the complex, constructed in
phases, is consistent with the current definition of Media Production. This use was previously known as Radio, Television or Audio/Sound Recording and/or Broadcast Studios: Commercial arts and art- related business services including audio and film recording and editing studios and services, film and video production, titling, video and film libraries, special effects production, motion picture and photograph processing, radio and television broadcast, and similar uses.

Specifically, the Saul Zaentz Film Center was a commercial arts business service consisting of several recording and editing studios and office spaces for the purpose of producing various forms of media, including music and film.

An Art/Craft Studio is commonly differentiated from Media Production by the scale and purpose of the establishment, understood to encompass studio spaces for art producti
on and performing art instruction, rehearsal studios , and theatre spaces. 1 The full list of protected non-industrial uses per BMC 23.206.050(B): Art/craft studio; art galleries, ancillary to art studios when located in the same building; child care facility, fine arts performance, instruction and rehearsal studios (dance, music theater); theaters, stage performance, but excluding motion picture theaters ITEM #4
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Media Production uses, by contrast, are “commercial arts and art -related business services” involving various media types.

Land Use Division records indicate that, subsequent to the establishment and
expansion of the Media Production use in 1971 and 1980, zoning certificate business licenses were issued to multiple enterprises leasing space from the Center starting around 1998, after the 1989 cut-off date for establishing a protec ted use. These included media production and artistic uses such as film making, writing office, and television programming, as well as less related uses including computer software design, a health information company, a consulting office, and a general business office for import-export of goods. Further, existing Art/Craft Studio uses that are or have been located in the building have not existed as a single stand -alone use, or been combined with residential use in a live/work unit . Therefore, the existing uses of the building are not protected use.

Conclusion:

The existing film production use most accurately meets the Media Production definition. Furthermore, even if the existing uses were considered an Art /Craft Studio, it still would not be a protected nonindustrial use because it was not t he established use of July 6, 1989, and since a number of other commercial uses have shared the building with the existing use, it would not have been a single stand-alone use. Because Media Production is not a protected non-industrial use, the provisions in BMC 23.206.050(B) are not applicable to the project. An Administrative Use Permit to establish a Research and Development use that would have a total area that exceeds 20,000 square feet, per BMC 23.206.020 Allowed Land Uses, is the correct permit pathway.

Appeal Point #2: App
ellants note that the City’s Planning Staff Reports such as the 2008 Variance Staff Report, considers the recording, mixing , and screening studios as a “Protected Use” in the MU-LI District whereas the most recent staff report ( AUP ZP2023- 0031 Findings and Conditions) describes the same use as a non-protected industrial use.

Background:

Variance #07-1000013
2, approved in March 2008, allowed for conversion of 9,961 square feet of office and storage space on the ground floor to a child care center for up to 100 children and conversion of 31 parking spaces in the northwest corner of the parking lot to 7,500 square feet of outdoor play area. The Findings and Conditions identified the existing use as Media Production and refer to it as a protected use.

The subject Administrative Use Permit under appeal would a llow the change of use
of three tenant spaces, totaling 9,750 square feet , from Media Production to Research and Development use, and create up to nine new tenant spaces . The Findings and Conditions do not refer to Media Production as a protected use, would allow a change of use more than 5,000 square feet with an AUP, and do not include the findings required to change a protected nonindustrial use to a non-protected use. (Attachment 1)
ITEM #4
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Evidence:
2008 Review. The previous variance application authorized the conversion of established office uses and storage space to a child care center. Sinc e child care
was not an allowed use in the MU-LI, a Variance was required to establish that use on the site. That permit was not in any way related to a change of use from Media Production or Arts /Crafts Studio to another use. While the analysis refer s to the Media Production uses elsewhere in the building as a protected use, it is in error.

Media Production was not the subject of the permit, and the mis -identification as a protected use had no bearing on the outcome of the variance decision. It cannot be considered a binding determination for future projects which must be evaluated based on the facts and requirements applicable at the time a decision is made on an application

2. Change of Use: As discussed in-depth in Section V.A. Appeal Point #1 of this report,
per BMC Section 23.206.050(B)(1), Media Production is not listed as a protected industrial use and may be changed to Research and Development per BMC Section

23.209.020(A), Allowed Land Uses and Permit Requirements. Also, as noted above, even if the existing use could be considered an Art/Craft Studio , it would not be considered a protected use because it was not established as of July 6, 1989 and is not a standalone use (or combined with residential uses) because a number of other commercial enterprises that were clearly not Art/Craft Studios have shared the building with artistic uses. For these reasons, the existing use of 2600 Tenth Street is not a protected use. The change of use from Media Production to Research and Development is not subject to the permit requirements and additional findings for changing a protected nonindustrial use to another use per BMC Table 23.206-9. An Administrative Use Permit to convert 9,750 square feet, resulting in a total of 29,745 square feet total Research and Development, is the correct permit pathway subject to the required findings for non- detriment, tenant space reconfiguration, and Manufacturing Districts only.

Conclusion
The existing use is still
best identified as M edia Production and not considered as a protected nonindustrial use by BMC Section 23.206.050(B). An erroneous reference in prior documents cannot supersede the applicable requirements and definitions present in the Zoning Ordinance, BMC Title 23. Per BMC Section 23.406.040(E)(4), required findings shall be made based on the circumstances existing at the time a decision is made on the application.

Appeal Point #3: Appellants believe that th
e proposed project would be detrimental to the
general welfare of those working at 2600 Tenth Street because the conversion of Media Production to Research and Development diminishes the opportunities for filmmakers and 2 BMC Sections 23.406.030(F)(4) and 23.406.040(E)(4) Findings for Approval state that the “required findings shall be made based on the circumstances existing at the time a decision is made on the application.” ITEM #4
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video artists to collaborate on projects and limits their economic and cultural contributions to the general welfare of the City.

Background:

Per BMC Sect
ions 23.406.030(F)(1) and 23.406.040(E)(1), Findings for Approval , the review authority 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 working 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.

Per BMC Sections 23.406.030(F)(3) and 23.406.040(E)(3), when acting on a project the review authority must consider the proposed land use and the structure or addition that accommodates the use.

Evidence:

The proposed project includes a change of use from Media Production to Research and Development within an existing building in the MU -LI District and would be a t a
location that is planned for mixed- use light industrial development. Per BMC Section

23.206.020, this use is allowed in the MU -LI zoning district with an AUP. The project would convert three existing Media Production tenant spaces with no changes to the exterior of the building, nor added square footage. The project will conform to the applicable provisions of BMC Section 23.206.080(E) Development Standards and

23.322.030(C)(2) Parking and Loading, including floor area ratio, height, and setbacks.

Although parking minimums are no longer required under AB 2097 3, ample on- site
parking is currently provided.

The immediate surrounding neighborhood includes properties zoned for MU -LI to the north and west, properties zoned MU -R (Mixed Use -Residential) to the south, and properties zoned C -W (West Berkeley Commercial) to the east. Businesses in t he immediate vicinity include offices, medical offices, light manufacturing and warehousing, and food service establishments. The project site has a General Plan designation of Manufacturing. This area of Berkeley is characterized by commercial and light industrial activity in close proximity to San Pablo Avenue, easily accessible for employees and patrons by public transportation or automobile. The proposed

Research and Development use is consistent with surrounding development and will contribute to the vitality of the West Berkeley neighborhood.

Conclusion:
3 AB-2097, effective January 1, 2023, prohibits local jurisdictions from requiring minimum parking for most non-res idential uses, including Research and Development.

ITEM #4
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April 25, 2024 Page 12 of 15
Considering the proposed Research and Development use and the structure that would accommodate the use, the location, site, and building are suitable for Research and Development, and would not be detri
mental to the welfare of persons working in
the area.

Appeal Point #4: The
appellants contend that the change of use does not better serve the purposes of the district as required by BMC Section 23.206.030(B ), Tenant Space Reconfiguration.

Background:

To approve an AUP to create between six to nine tenant spaces in the MU -LI, the review authority must find that they would not create or contribute to a shortage of industrial spaces in West Berkeley for the spaces being converted and either (a) the reconfiguration can be reasonably expected to better serve the purposes of the district than leaving the space intact, or (b) the reconfiguration would create spaces which could cross -subsidize larger industrial spaces.

Evidence:

The findings referenc
ed are only required for the tenant space configuration, and do not apply to changes of use.

Conclusion:

Since this provision is not applicable to the appeal point about change of use, no additional analysis is required.

Appeal Point #5: The
appellants contend that the change of use is not consistent with the following two MU-LI District purposes: encourage development of a mixed- use light industrial area for a range of compatible uses; and encourage the creation and continuation of well-paid jobs which do not require advanced degrees . They state that there is plenty of space already dedicated to Research and Development in Berkeley while there is not enough for artist and film makers, and that most Research and Development jobs require advanced degrees.

Background:

Pursuant to BMC Section 23.206.100(A)(1) Permit Findings for All Manufacturing Districts), the review authority must find that the project is compatible with the purposes of the district in which it is located. There are ten purposes for MU-LI listed in BMC Section 23.206.080(A) District Purposes, including the two cited above. Research and Development (R &D) is defined as:
“An establishment engaged in the following activities: 1) industrial, biological or scientific research; and/or 2) product or process design, development, prototyping, ITEM #4
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or testing. This may include labs, offices, warehousing, and light manufacturing functions as part of the overall Research and Development use.” Evidence:

Terminology. Throughout the Zoning Ordinance (BMC Title 23), there are a mix of
mandatory and discretionary terms used to differentiate between what is required and advisory4. Both of the purposes raised in the appeal are written as advisory and not required for every project, however, staff maintains that the proposed project is consistent with both of these district purposes.

Research and Development. MU-LI
District Purpose (BMC Sect ion 23.206.080(A)(2)):

Encourage development of a mixed-use light industrial area for a range of compatible uses.

Research and Development Use is classified in the Allowed Land Uses Table (BMC 23.206- 1) as an Industrial and Heavy Commercial Use. By definition, Research and Development is comprised of a combination of uses that may include labs, offices, warehousing, and light manufacturing functions. Research and Development uses are present in a variety of industries – including bio-tech and areas of innovative – and encompass a wide range of related activities. The flexibility to create up to nine tenant spaces would allow for multiple Research and Development tenants that can adjust their tenant space size to meet their needs, including renting smaller spaces or expansions, as needed. Media Production is also classified as an Industrial and Heavy Commercial Use, and the proposed project would remain in the same category of the existing use. Therefore, Research and Development would be a compatible use within a mixed-use light-industrial area, the potential for a variety of tenant spaces increases the viability of a range of businesses, and the proposed project satisfies this district purpose.

District Purpose. MU-LI D
istrict Purpose (BMC Section 23.206.080(A)(4)): Encourage the creation and continuation of well -paid jobs which do not require advanced degrees. While this purpose primarily relates to traditional manufacturing jobs, as noted throughout the West Berkeley Plan, it also recognizes that uses such as Research and Development (referred to as “Advanced Services” in the plan) create technical positions that may require higher levels of education as well as clerical and service positions. The variety and flexibility of tenant spaces also creates more opportunity for clerical and support services. The proposed project would not displace a manufacturing use.

Findings shall consider the proposed land use and the structure or addition that accommodates the use.

Conclusion:

Research and Devel
opment is classified as an Industrial and Heavy Commercial Use, encompasses a wide range of activities, and would be compatible with a range of uses that are allowed and located within the MU -LI District. The flexibility provided for additional tenant spaces would allow a variety of Research and Development tenants. The use would create technical positions that may require higher levels of education as well as clerical and 4 BMC Section 23.104.030(L) Mandatory and Discretionary Terms. The words "shall," "will," "must," and "is" are always mandatory. The words "may" and "should" are advisory and discretionary terms.

ITEM #4
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April 25, 2024 Page 14 of 15
service positions. The variety and flexibility of tenant spaces would create additional opportunities. The proposed project would not displace a manufacturing use.

As previously noted, the review authority must base their decision on the required findings in the Title 23 and must consider the proposed land use and the structure or addition that accommodates the use. They may not deny or approve a project based on speculation, unsubstantiated opinions, or the level of support or opposition of various parties regarding its potential economic or social impacts.

Appeal Point # 6: Appellants believe that the proposed project does not abide by the W est
Berkeley Plan goals and policies for the protected arts uses and actively works in contradiction to tho se goals and policies. In particular, the appellants believe that Goal 7 (Economic Development) and West Berkeley Plan Appendices – Appendix B-Cultural Resources of West Berkeley, are not supported by the proposed project.

Background:

The West Berkeley Plan5 was adopted in 1993 and the Zoning Ordinance amendments to implement the plan were adopted in 1999. In 2011, Chapter 1 Land Use, Section 7 Land Use Regulations of the West Berkeley Plan – for Adoption in Principle of the plan was amended to reflect changes in permitted and prohibited uses and special situations and regulations. Major changes included: Research and Development was added to the MU-LI district’s permitted uses tables, conversion to Arts/Crafts were allowed within protected industrial spaces, and conversion to Research and Development was allowed to be in Wholesale Trade and Warehouse protected spaces (all subject to the requirements and limitations in the zoning ordinance).

1. Chapter 2 Economic Development6
a. Goal 77: Protect small businesses, particularly arts and crafts businesses, so that they can flourish in West Berkeley.
i. Policy 7a: Use available mechanisms, including zoning, property purchase assistance, and direct City assistance to artists, to assure that artists and craftspeople remain a viable part of the West Berkeley community.
b. General Implementation Strategies, Ordinances, Regulation, and Policy Development – Arts and Crafts Review
8:
i. Review the functioning of the arts and crafts Ordinance, and develop recommendations about how it can be implemented.
ii. Goal and Policies Implemented: Goal 7, Policy 7a
Evidence:

Distinct Uses. Medi
a Production and Art/Craft Studio are two distinct uses. Appendix B - Cultural Resources of West Berkeley 9 of the plan identifies some of the studios and 5 West Berkeley Plan: https://berkeleyca.gov/your-government/our-work/adopted-plans/west-berkeley-plan 6 West Berkeley Plan, page 59-94
7 West Berkeley Plan, page 87
8 West Berkeley Plan, page 92
9 West Berkeley Plan, page 221
ITEM #4
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worksites of artists and craftspeople, including the Kawneer Building, Nexus Institute, and Kala Institute. It goes on to state that, “in addition to art and craft studios, there is also film, video, and record production companies in West Berkeley, at the Fantasy Building.” West Berkeley Plan Implementation. The Zoning Ordinance was amended in 1999 to im
plement the West Berkeley Plan, and included provisions for protected use. Art/Craft Studio uses were included as protected uses provided they were legally established as of July 6, 1989 and were a stand- alone use or combined with residential use, same as the current code requirement. The existing use of the subject building was Media Production10 at the time of West Berkeley Plan implementation in the Zoning Ordinance. Neither West Berkeley Plan Goal 7 and Policy 7a have been amended to include Media Production as a protected use, nor the criteria for Art/Craft Studios has changed in this plan.

Subsequent Amendments. The Subsequent amendments to the West Berkeley Plan in 2011 and corresponding zoning amendments did not alter the prot ected use criteria for
Art/Craft Studios. They did address changes of use from manufacturing and industrial uses to other uses. These changes allowed protected spaces, including Warehouse, Wholesale Trade, Manufacturing, and Material Recovery Enterprises, to be converted to Arts/Craft Studio uses.

Conclusion:

The appellant’s argument in this point is based on the incorr ect premise that the building is
subject to the protections for Art/Craft Studio uses. As explained in Appeal Point # 1 and above, the existing use is Media Production and any current Art/Craft Studio uses would not meet the criteria for a protected nonindustrial use. The proposed project would not be counter to the goal, policy, or implementation strategy raised in the appeal.

VI. Recommendation
Because the project is consistent with the Zoning Ordinance and General Plan, and would have minimal impact on surrounding properties, staff recommends that the Zoning Adjustments Board uphold the Zoning Officer decision and APPROVE Administrative Use Permit #ZP2023-0081 pursuant to Section 23.406.040 and subject to the attached Findings and Conditions (Attachment 1), and DISMISS the Appeal.

Attachments:

1. Findings and Conditions, November 13, 2023

2. Project Plans, received March 9, 2023

3. Notice of Administrative Decision, dated November 13, 2023

4. Appeal Letter, received December 4, 2023

5. Notice of Public Hearing, dated April 11, 2024
Staff Planner: Ni
lu Karimzadegan, (510) 981-7430, [email protected] 10 Formerly called Radio, Television or Audio/Sound Recording and/or Broadcast Studios ITEM #4
ZAB 2024-04-25

A t t a c h m e n t1
F i n d i n g s a n d C o n d i t i o ns
N O V E M B E R 13 , 2 0 2 3
1947 Center Street, 2nd Floor, Berkeley, CA 94704 Tel: 510.981.7410 TDD: 510.981.7474 Fax: 510.981.7420 E-mail: [email protected]
2600 Tenth Street
Administrative Use Permit #ZP2023-0031
To change the use of four tenant spaces (9,750 square feet) from Media Production to a Research and Development use, and create up to nine tenant spaces within a seven-story building on a 114, 998 square-feet lot.

PERMITS REQUIRED
• Administrative Use Permit (AUP) pursuant to Berkeley Municipal Code (BMC) Section

23.206.020 to establish a Research and Development use that is over 20,000 square foot in gross floor area.
• Administrative Use Permit pursuant to BMC Section 23.206.030(B)(3)(a) to create up to nine tenant spaces.

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 Section 15301 of the CEQA Guidelines (“Existing Facilities”).

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 pr oject 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.

FINDINGS FOR APPROVAL

3. As required by Section 23.406.040(E)(1) of the Zoning Ordinance, 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:
• The subject property is a seven-story building that incudes existing office use, Research and Development, Media Production and childcare. It is located in south west Berkeley on a full city block bounded by Parker Street to the north, Tenth Street to the east, Carleton Street to the south and Ninth Street to the west. The proposed project is a change of use from Media Production to Research and D evelopment use within an existing building in the MU -LI (Mixed Use -Light Industrial) District. The project will convert three existing Media Production tenant spaces totaling 9,750 square feet to create additional space for Research and Development within the building, with no changes to the exterior of the ITEM #4 - ATTACHMENT 1
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2600 TENTH STREET NOTICE OF ADMINISTRATIVE DECISION - Findings and Conditions

G:\LANDUSE\Projects by Address \Tenth\2600\ZP2023-0031\5-FINAL PUBLIC REPORTS + ATTACHMENTS \2023-11-13_APFC__2600 Tenth St.docx
building, nor added square footage. The project will conform to the applicable provisions of BMC Section 23.206.080(E) and 23.322.030(C)(2), including floor area ratio, height, and setbacks. Although parking minimums are no longer required under AB 20971, ample on-site parking is currently provided.

In 2022, a zoning certificate was issued to change the use of 19,995 square feet of Media Production to Research and Development for suites 107, 108, 109, and 110 (ZCBL2022- 0121). The project will change an additional 9,750 square feet, comprised of suite numbers 105, 106 and 201.The total area of Research and Development will be 29,745 square feet.
• The immediate surrounding neighborhood includes properties z oned for MU -LI to the north and west, properties zoned MU -R (Mixed Use -Residential) to the south, and properties zoned C -W (West Berkeley Commercial) to the east. Businesses in the immediate vicinity include offices, medical offices, light manufacturing an d warehousing, and food service establishments. The project site has a General Plan designation of Manufacturing. This area of Berkeley is characterized by commercial and light industrial activity in close proximity to San Pablo Avenue, easily accessible f or employees and patrons by public transportation or automobile. Therefore, the proposed Research and Development use is consistent with surrounding development and will contribute to the vitality of West Berkeley’s neighborhood.

4. As required by BMC Section 23.206.030(B)(3) for the MULI District, the Zoning Officer finds that the reconfiguration of three existing spaces up to nine is allowable because the reconfiguration will not create or contribute to a shortage of industrial spaces in West Berkeley for spaces of the size being converted, and that the reconfiguration can be reasonably expected to better serve the purposes of the district (BMC 23.206.080 (A)) than leaving the space intact because:
• Both the existing Media Production and proposed Research and Development uses are classified as “Industrial and Heavy Commercial Uses” so there is no change in the industrial nature of activities that can occur onsite. • The additional spaces will potentially allow multiple tenants engaging in research and development activities, with flexibility in the size of individual tenant spaces. • Research and Development is an allowed Land Use and the proposed project is consistent with, and supports implementation of, relevant policies set forth in the adopted West Berkeley Plan in that it will provide additional Research and Development space, keeping with the land use mix set forth in the Plan, and allowing for continued attraction of new and growth of existing business while maintaining the existing character of the area.

1 AB-2097, effective January 1, 2023, prohibits local jurisdictions from requiring minimum parking for most non - residential uses, including Research and Development.

ITEM #4 - ATTACHMENT 1
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2600 TENTH STREET NOTICE OF ADMINISTRATIVE DECISION - Findings and Conditions

G:\LANDUSE\Projects by Address \Tenth\2600\ZP2023-0031\5-FINAL PUBLIC REPORTS + ATTACHMENTS \2023-11-13_APFC__2600 Tenth St.docx

5. As required by BMC Section 23.206.100 (A), the Zoning Officer finds that the project is:
(1) consistent with the purposes of the District; (2) compatible with the surrounding uses and buildings; (3) Complies with the adopted West Berkeley Plan; and ( 4) Meets any applicable performance standards for off -site impacts. The project is permissible for the following reasons:
• The change of use from Media Production to Research and Development is consistent with the purposes of the MU-LI District because it will support the development of a mixed-use light industrial area for a range of compatible uses, encourage the creation and continuation of well -paid jobs which do not require advanced degrees , and will provide a location for Research and Development while not interfering with light manufacturing uses or the light manufacturing building stock. • The change of use is compatible with the surrounding uses and buildings , as it will not result in any changes to the exterior of the building.
• The change of use is consistent with the West Berkeley Plan because, as noted above, the project will provide a location for Research and Development while not interfering with light manufacturing uses or the light manufacturing building stock, and will thus not induce a change of use in other areas of West Berkeley where manufacturing and warehousing uses occur.
• The Zoning Officer finds that no additional performance standards are applicable to this project. The existing Media Production use conforms to the parking requirements in the District, and the project will not result in the creation of new floor area. Therefore, the project will not exceed the amount and intensity of use that can be served by available traffic capacity and parking supply.

6. As required by BMC Section 23.206.100(B)(2), the Zoning Officer finds that the project:
(a) Is unlikely, under reasonably foreseeable circumstances, to induce a substantial change of use in buildings from manufacturing, wholesale trade, or warehousing uses; and
(b) Is designed in such a manner to be supportive of the industrial character of the district. Such physical compatibility shall include materials used; facade treatments; landscaping; lighting; type, size and placement of awnings, windows, and signs; and all other externally visible aspects of the design of the building and site. The proposed use is to expand the existing Research and Developmental gross floor area and therefore will not induce a substantial change of use in the building from a manufacturing use.

Additionally, no exterior changes will occur due to the proposed project.

ITEM #4 - ATTACHMENT 1
ZAB 2024-04-25

2600 TENTH STREET NOTICE OF ADMINISTRATIVE DECISION - Findings and Conditions

G:\LANDUSE\Projects by Address \Tenth\2600\ZP2023-0031\5-FINAL PUBLIC REPORTS + ATTACHMENTS \2023-11-13_APFC__2600 Tenth St.docx

STANDARD CONDITIONS
The following conditions, as well as all other applicable provisions of the Berkeley Municipal Code, apply to this Permit:

1. Conditions 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 applican t must apply for and receive City approval of a new permit.

ITEM #4 - ATTACHMENT 1
ZAB 2024-04-25

2600 TENTH STREET NOTICE OF ADMINISTRATIVE DECISION - Findings and Conditions

G:\LANDUSE\Projects by Address \Tenth\2600\ZP2023-0031\5-FINAL PUBLIC REPORTS + ATTACHMENTS \2023-11-13_APFC__2600 Tenth St.docx

6. Permit Remains Effective for Vacant Property (BMC Section 23.404.060.D) Once a Permit for a use is exercised and the use is established, the permit authorizing the use remains effective even if t he property becomes vacant. The same use as allowed by the original permit may be re-established without obtaining a new permit, except as set forth in Standard Condition #5 above.

7. Permit Modifications (BMC Section 23.404.070)
No change in the use or structure for which this Permit is issued is permitted unless approved by the review authority which originally approved the permit. The Zoning Officer may approve changes to plans approved by the Board, consistent with the Board’s policy adopted on May 24, 1978, which reduce the size of the project.

8. Permit Revocation (BMC Section 23.404.080)
The City may revoke or modify a discretionary permit for completed projects due to: 1) violations of permit requirements; 2) Changes to the approved project; and/or 3) Vacancy for one year or more. However, no lawful residential use can lapse, regardless of the length of time of the vacancy. Proceedings to revoke or modify a permit may be initiated by the Zoning Officer, Zoning Adjustments Board (ZAB), or City Council referral.

9. Indemnification Agreement
The applicant shall hold harmless, defend, and indemnify the City of Berkeley and its officers, agents, and employees against any and all liability, damages, claims, demands, judgments or other losses (including without limitation, attorney’s fees, expert witness and consultant fees and other litigation expenses), referendum or initiative relating to, resulting from or caused by, or alleged to have resulted from, or caused by, any action or app roval associated with the project. The indemnity includes without limitation, any legal or administrative challenge, referendum or initiative filed or prosecuted to overturn, set aside, stay or otherwise rescind any or all approvals granted in connection with the Project, any environmental determination made for the project and granting any permit issued in accordance with the project. This indemnity includes, without limitation, payment of all direct and indirect costs associated with any action specifie d herein. Direct and indirect costs shall include, without limitation, any attorney’s fees, expert witness and consultant fees, court costs, and other litigation fees. City shall have the right to select counsel to represent the City at Applicant’s expen se in the defense of any action specified in this condition of approval. City shall take reasonable steps to promptly notify the Applicant of any claim, demand, or legal actions that may create a claim for indemnification under these conditions of approval.

ADDITIONAL CONDITIONS IMPOSED BY THE ZONING OFFICER
Pursuant to BMC Section 23.406.030.H.2, the Zoning Officer attaches the following additional conditions to this Permit:

ITEM #4 - ATTACHMENT 1
ZAB 2024-04-25

2600 TENTH STREET NOTICE OF ADMINISTRATIVE DECISION - Findings and Conditions

G:\LANDUSE\Projects by Address \Tenth\2600\ZP2023-0031\5-FINAL PUBLIC REPORTS + ATTACHMENTS \2023-11-13_APFC__2600 Tenth St.docx
Prior to Submittal of Any Building Permit:

10. Project Liaison. The applicant shall include in all building permit plans and post onsite the name and telephone number of an individual empowered to manage construction -related complaints generated from the project. The individual’s name, telephone number, and responsibility for the project shall be posted at the project site for the duration of the project in a location easily visible to the public. The individual shall record all complaints received and actions taken in response, and submit written reports of such complaints and act ions to the project planner on a weekly basis. Please designate the name of this individual below:
□ Project Liaison
Name Phone #

11. The applicant shall file an “Address Assignment Request Application” with the Permit Service Center (1947 Center Street) for any address change or new address associated with this Administrative Use Permit. The new address(es) shall be assigned in accordance with BMC 16.28.030, and entered into the City’s database after the building permit is issued but prior to final inspection
Standard Construction-related Conditions Applicable to all Projects:

12. Construction activity shall be limited to between the hours of 8:00 a.m. and 6:00 p.m. on Monday through Friday, and between 9:00 a.m. and noon on Satu rday. No construction- related activity shall occur on Sunday or on any Federal Holiday.

13. If underground utilities leading to adjacent properties are uncovered and/or broken, the contractor involved shall immediately notify the Public Works Department and the Building & Safety Division, and carry out any necessary corrective action to their satisfaction.

14. Subject to approval of the Public Works Department, the applicant shall repair any damage to public streets and/or sidewalks by construction vehicles trav eling to or from the project site.

15. All piles of debris, soil, sand, or other loose materials shall be covered at night and during rainy weather with plastic at least one -eighth millimeter in thickness and secured to the ground.

16. All active construction ar eas shall be watered at least twice daily, and all piles of debris, soil, sand or other loose materials shall be watered or covered.

17. Trucks hauling debris, soil, sand, or other loose materials shall be covered or required to maintain at least two feet of board.

18. Public streets shall be swept (preferably with water sweepers) of all visible soil material carried from the site.

19. The applicant shall establish and maintain drainage patterns that do not adversely affect adjacent properties and rights-of-way.

ITEM #4 - ATTACHMENT 1
ZAB 2024-04-25

2600 TENTH STREET NOTICE OF ADMINISTRATIVE DECISION - Findings and Conditions

G:\LANDUSE\Projects by Address \Tenth\2600\ZP2023-0031\5-FINAL PUBLIC REPORTS + ATTACHMENTS \2023-11-13_APFC__2600 Tenth St.docx

20. The applicant shall ensure that all excavation takes into account surface and subsurface waters and underground streams so as not to adversely affect adjacent properties and rights-of-way.

21. Any construction during the wet season shall require submittal of a soils report with appropriate measures to minimize erosion and landslides, and the developer shall be responsible for following these and any other measures required by the Building and Safety Division and the Public Works Department.

Prior to Issuance of Occupancy Permit or Final Inspection:

22. All construction at the subject property shall substantially conform to the approved Use Permit drawings or to modifications approved by the Zoning Officer.

23. All landscape, site and architectural improvements shall be completed per the attached approved drawings dated March 9, 2023.

At All Times (Operation):

24. All exterior lighting shall be energy efficient where feasible; and shielded and directed downward and away from property lines to prevent excessive glare bey ond the subject property.

25. Noise and exterior lighting shall be controlled so as to prevent verified complaints from the surrounding neighborhood. This shall include noise created by employees working on the premises before or after patrons arrive.

26. Design Review. Signage and any other exterior modifications, including but not limited to landscaping and lighting, shall be subject to design review’s review and approval.

27. This permit is subject to review, imposition of additional conditions, or revocation if factual complaint is received by the Zoning Officer that the maintenance or operation of this establishment is violating any of these or other required conditions or is detrimental to the health, safety, peace, morals, comfort or general welfare of persons residing or working in the neighborhood or is detrimental or injurious to property and improvements in the neighborhood or to the general welfare of the City.

28. Transit Subsidy. If 10 or more employees, the business operator shall reimburse employees the maximum non-taxable cost of commuting to and from work on public transportation (e.g., monthly passes) if they so commute, and a notice informing employees of the availability of such subsidy shall be permanently displayed in the employee area. _____________________________________
Prepared by: Nilu Karimzadegan
For Samantha Updegrave, Zoning Officer
ITEM #4 - ATTACHMENT 1
ZAB 2024-04-25

ITEM #4 - ATTACHMENT 2
ZAB 2024-04-25

ITEM #4 - ATTACHMENT 2
ZAB 2024-04-25

N otice o f
A dministrativ e
D ecisio n
1947 Center Street, 2nd Floor, Berkeley, CA 94704 Tel: 510.981.7410 TDD: 510.981.6903 Fax: 510.981.7420 E-mail: [email protected]
2600 Tenth Street
Administrative Use Permit #ZP2023-0031
To change the use of four tenant spaces (9,750 square feet) from Media Production to a Research and Development use, and create up to nine tenant spaces within a seven-story building on a 114, 998 square-feet lot.

ZONING OFFICER DECISION: The Zoning Officer of the City of Berkeley has APPROVED the following permits pursuant to Berkeley Municipal Code (BMC) Section 23.406.030(F), and based on the attached findings and conditions (attachment 1) and plans (attachment 2):
• Administrative Use Permit (AUP) pursuant to Berkeley Municipal Code (BMC) Section 23.206.020 to establish a Research and Development use that is over 20,000 square foot in gross floor area. • Administrative Use Permit pursuant to BMC Section 23.206.030(B)(3)(a) to create up to nine tenant spaces.

DATE NOTICE IS ISSUED: November 13, 2023
APPEAL PERIOD: November 14, 2023 to December 4, 2023
ATTACHMENTS:

1. Findings and Conditions

2. Project Plans, dated received March 9, 2023
FOR FURTHER INFORMATION:

All application materials for this project are available online at:
https://aca.cityofberkeley.info/CitizenAccess/Welcome.aspx. Questions about the project should be directed to the project planner, Nilu Karimzadegan at (510) 981-7430 or [email protected].

PUBLIC NOTICE, PURSUANT TO BMC SECTION 23.404.040(A):

This Notice of Administrative Decision was:

1. Forwarded to the Zoning Adjustments Board and sent to the Main Library;

2. Posted at
three visible locations in the vicinity of the subject property and at a bulletin board at the Zoning counter.

3. Mailed to neighborhood and community organizations for which the project falls within their expressed area of interest, as set forth in BMC Section 23.404.040(E);

4. Mailed to owners and residents of properties abutting and confronting the subject property.

The validity of the proceedings, however, shall not be affected by the failure of any such property owner, occupant or neighborhood or community organization to receive such mailed notice.

ITEM #4 - ATTACHMENT 3
ZAB 2024-04-25

2600 TENTH STREET NOTICE OF ADMINISTRATIVE DECISION

TO APPEAL THIS DECISION, PURSUANT TO BMC CHAPTER 23.410:

To appeal this decision, you must:

1. Submit a letter clearly and concisely setting forth the grounds for the appeal, along with the required fee (se e
below) to the Zoning Officer, at the Permit Service Center, 1947 Center Street, 3rd Floor, Berkeley.

2. The appeal and required fee (see below) must be received prior to 2:00 p.m. on the last day of the appeal period shown above (if the close of the appeal period falls on a weekend or holiday, then the appeal period expires the following business day).

3. Submit the required fee to the Permit Service Center (see above; checks and money orders must be payable to ‘City of Berkeley’):

A. The basic fee for appeals of a Zoning Officer decision to the Zoning Adjustments Board is $5 00. This fee may be reduced to $200 if the appeal is signed by persons who lease or own at least 35 percent of the parcels or dwelling units within 300 feet of the project site, or at least 20 such persons (not including dependent children), whichever is less.

B. The fee for appeals of affordable housing projects (defined as projects which provide 50 percent or more affordable units for households earning 80 percent or less of Area Median Income) is $500, which may not be reduced.

C. The fee for all appeals by Applicants is $3,680.

If an appeal is filed, the Zoning Officer shall set the matter for consideration by the Zoning Adjustments Board. An appeal stays the issuance and exercise of the AUP until a decision is rendered or the appeal is withdrawn. If no appeal is received, the permit will be issued on the first business day following expiration of the appeal period, and the project may proceed at that time.

NOTICE CONCERNING YOUR LEGAL RIGHTS:

If you object to this decision, the following requirements and restrictions apply:

1. If you challenge this decision in court, you may be limited to raising only those issues you or someone else raised in an appeal of the decision.

2. You
must appeal to the Zoning Adjustments Board within twenty (20) days after the Notice of Decision of the action of the Zoning Officer is mailed. It is your obligation to notify the Land Use Planning Division in writing of your desire to receive a Notice of Decision when it is completed.

3. Pursuant to Code of Civil Procedure Section 1094.6(b) and Government Code Section 65009(c)(1), no lawsuit challenging a City decision, as defined by Code of Civil Procedure Section 1094.6(e), regar ding a use permit, variance or other permit may be filed more than ninety (90) days after the date the decision becomes final, as defined in Code of Civil Procedure Section 1094.6(b). Any lawsuit not filed within that ninety (90) day period will be barred.

4. Pursuant to Government Code Section 66020(d)(1), notice is hereby given to the applicant that the 90-day protest period for any fees, dedications, reservations, or other exactions included in any permit approval begins upon final action by the City, and that any challenge must be filed within this 90-day period.

5. If you believe that this decision or any condition attached to it denies you any reasonable economic use of the subject property, was not sufficiently related to a legitimate public purpose, was not sufficiently proportional to any impact of the project, or for any other reason constitutes a “taking” of property for public use without just compensation under the California or United States Constitutions, your appeal of this decision must include the following information:

A. That this belief is a basis of your appeal.

B. Why you believe that the decision or condition constitutes a "taking" of property as set forth above.

C. All evidence and argument in support of your belief that the decision or condition constitutes a “taking” as set forth above.

If you do not do so, you will waive any legal right to claim that your property has been taken, both before the City and in court.

ITEM #4 - ATTACHMENT 3
ZAB 2024-04-25

Attachment 1
Findings and Condition s
N OVEMBER 1 3 , 2023

1947 Center Street, 2nd Floor, Berkeley, CA 94704 Tel: 510.981.7410 TDD: 510.981.7474 Fax: 510.981.7420 E-mail: [email protected]
2600 Tenth Street

Administrative Use Permit #ZP2023-0031

To change the use of four tenant spaces (9,750 square feet) from Media Production to a Research and Development use, and create up to nine tenant spaces within a seven-story building on a 114, 998 square-feet lot.

PERMITS REQUIRED
• Administrative Use Permit (AUP) pursuant to Berkeley Municipal Code (BMC) Section

23.206.020 to establish a Research and Development use that is over 20,000 square foot in gross floor area.
• A dmi
nistrative Use Permit pursuant to BMC Section 23.206.030(B)(3)(a) to create up to nine tenant spaces.

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 Section 15301 of the CEQA Guidelines (“Existing Facilities”).

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.

FINDINGS FOR APPROVAL

3. As required by Section 23.406.040(E)(1) of the Zoning Ordinance, 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:
• The subject property is a seven-story building that incudes existing office use, Research and Development, Media Production and childcare. It is located in south west Berkeley on a full city block bounded by Parker Street to the north, Tenth Street to the east, Carleton Street to the south and Ninth Street to the west. The proposed project is a change of use from Media Production to Research and Development use within an existing building in the MU -LI (Mixed Use- Light Industrial) District. The project will convert three existing Media Production tenant spaces totaling 9,750 square feet to create additional space for Research and Development within the building, with no changes to the exterior of the ITEM #4 - ATTACHMENT 3
ZAB 2024-04-25

2600 TENTH STREET NOTICE OF ADMINISTRATIVE DECISION - Findings and Conditions

G:\LANDUSE\Projects by Address\Tenth\2600\ZP2023-0031\DOCUMENT FINALS\2023-11-13_APFC__2600 Tenth St.docx building, nor added square footage. The project will conform to the applicable provisions of BMC Section 23.206.080(E) and 23.322.030(C)(2), including floor area ratio, height, and setbacks. Although parking minimums are no longer required under AB 2097 1, ample
on-site parking is currently provided.

In 2022, a zoning certificate was issued to change the use of 19,995 square feet of Media Production to Research and Development for suites 107, 108, 109, and 110 (ZCBL2022- 0121). The project will change an additional 9,750 square feet, comprised of suite numbers 105, 106 and 201.The total area of Research and Development will be 29,745 square feet.
• The immediate surrounding neighborhood includes properties z oned for MU -LI to the north and west, properties zoned MU -R (Mixed Use -Residential) to the south, and properties zoned C -W (West Berkeley Commercial) to the east. Businesses in the immediate vicinity include offices, medical offices, light manufacturing and warehousing, and food service establishments. The project site has a General Plan designation of Manufacturing. This area of Berkeley is characterized by commercial and light industrial activity in close proximity to San Pablo Avenue, easily accessible f or employees and patrons by public transportation or automobile. Therefore, the proposed Research and Development use is consistent with surrounding development and will contribute to the vitality of West Berkeley’s neighborhood.

4. As required by BMC Section 23.206.030(B)(3) for the MULI District, the Zoning Officer finds that the reconfiguration of three existing spaces up to nine is allowable because the reconfiguration will not create or contribute to a shortage of industrial spaces in West Berkeley for spaces of the size being converted, and that the reconfiguration can be reasonably expected to better serve the purposes of the district (BMC 23.206.080 (A)) than leaving the space intact because:
• Both the existing Media Production and proposed Research and Development uses are classified as “Industrial and Heavy Commercial Uses” so there is no change in the industrial nature of activities that can occur onsite. • The additional spaces will potentially allow multiple tenants engaging in research and development activities, with flexibility in the size of individual tenant spaces. • Research and Development is an allowed Land Use and the proposed project is consistent with, and supports implementation of, relevant policies set forth in the adopted West Berkeley Plan in that it will provide additional Research and Development space, keeping with the land use mix set forth in the Plan, and allowing for continued attraction of new and growth of existing business while maintaining the existing character of the area.

1 AB-2097, effective January 1, 2023 , prohibits local jurisdictions from requiring minimum parking for most non- residential uses, including Research and Development.

ITEM #4 - ATTACHMENT 3
ZAB 2024-04-25

2600 TENTH STREET NOTICE OF ADMINISTRATIVE DECISION - Findings and Conditions

G:\LANDUSE\Projects by Address\Tenth\2600\ZP2023-0031\DOCUMENT FINALS\2023-11-13_APFC__2600 Tenth St.docx

5. As required by BMC Section 23.206.100 (A), the Zoning Officer finds that the project is:
(1) consistent with the purposes of the District; (2) compatible with the surrounding uses and buildings; (3) Complies with the adopted West Berkeley Plan; and ( 4) Meets any applicable performance standards for off -site impacts. The project is permissible for the following reasons:
• The change of use from Media Production to Research and Development is consistent with the purposes of the MU-LI District because it will support the development of a mixed-use light industrial area for a range of compatible uses, encourage the creation and continuation of well -paid jobs which do not require advanced degrees , and will provide a location for Research and Development while not interfering with light manufacturing uses or the light manufacturing building stock. • The change of use is compatible with the surrounding uses and buildings , as it will not result in any changes to the exterior of the building.
• The change of use is consistent with the West Berkeley Plan because, as noted above, the project will provide a location for Research and Development while not interfering with light manufacturing uses or the light manufacturing building stock, and will thus not induce a change of use in other areas of West Berkeley where manufacturing and warehousing uses occur.
• The Zoning Officer finds that no additional performance standards are applicable to this project. The existing Media Production use conforms to the parking requirements in the District, and the project will not result in the creation of new floor area. Therefore, the project will not exceed the amount and intensity of use that can be served by available traffic capacity and parking supply.

6. As required by BMC Section 23.206.100(B)(2), the Zoning Officer finds that the project:
(a) Is
unlikely, under reasonably foreseeable circumstances, to induce a substantial change of use in buildings from manufacturing, wholesale trade, or warehousing uses; and
(b) Is
designed in such a manner to be supportive of the industrial character of the district. Such physical compatibility shall include materials used; facade treatments; landscaping; lighting; type, size and placement of awnings, windows, and signs; and all other externally visible aspects of the design of the building and site. The proposed use is to expand the existing Research and Developmental gross floor area and therefore will not induce a substantial change of use in the building from a manufacturing use.

Additionally, no exterior changes will occur due to the proposed project.

ITEM #4 - ATTACHMENT 3
ZAB 2024-04-25

2600 TENTH STREET NOTICE OF ADMINISTRATIVE DECISION - Findings and Conditions

G:\LANDUSE\Projects by Address\Tenth\2600\ZP2023-0031\DOCUMENT FINALS\2023-11-13_APFC__2600 Tenth St.docx

STANDARD CONDITIONS

The following conditions, as well as all other applicable provisions of the Berkeley Municipal Code, apply to this Permit:

1. Conditions 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 applican t must apply for and receive City approval of a new permit.

6. Permit Remains Effective for Vacant Property (BMC Section 23.404.060.D) ITEM #4 - ATTACHMENT 3
ZAB 2024-04-25

2600 TENTH STREET NOTICE OF ADMINISTRATIVE DECISION - Findings and Conditions

G:\LANDUSE\Projects by Address\Tenth\2600\ZP2023-0031\DOCUMENT FINALS\2023-11-13_APFC__2600 Tenth St.docx Once a Permit for a use is exercised and the use is established, the permit authorizing the use remains effective even if the property becomes vacant. The same use as allowed by the original permit may be re-established without obtaining a new permit, except as set forth in Standard Condition #5 above.

7. Permit Modifications (BMC Section 23.404.070)
No change in the use or structure for which this Permit is issued is permitted unless approved by the review authority which originally approved the permit. The Zoning Officer may approve changes to plans approved by the Board, consistent with the Board’s policy adopted on May 24, 1978, which reduce the size of the project.

8. Permit Revocation (BMC Section 23.404.080)
The City may revoke or modify a discretionary permit for completed projects due to: 1) violations of permit requirements; 2) Changes to the approved project; and/or 3) Vacancy for one year or more. However, no lawful residential use can lapse, regardless of the length of time of the vacancy. Proceedings to revoke or modify a permit may be initiated by the Zoning Officer, Zoning Adjustments Board (ZAB), or City Council referral.

9. Indemnification Agreement
The applicant shall hold harmless, defend, and indemnify the City of Berkeley and its officers, agents, and employees against any and all liability, damages, claims, demands, judgments or other losses (including without limitation, attorney’s fees, expert witness and consultant fees and other litigation expenses), referendum or initiative relating to, resulting from or caused by, or alleged to have resulted from, or caused by, any action or approval associated with the project. The indemnity includes without limitation, any legal or administrative challenge, referendum or initiative filed or prosecuted to overturn, set aside, stay or otherwise rescind any or all approvals granted in connection with the Project, any environmental determination made for the project and granting any permit issued in accordance with the project. This indemnity includes, without limitation, payment of all direct and indirect costs associated with any action specifie d herein. Direct and indirect costs shall include, without limitation, any attorney’s fees, expert witness and consultant fees, court costs, and other litigation fees. City shall have the right to select counsel to represent the City at Applicant’s expense in the defense of any action specified in this condition of approval. City shall take reasonable steps to promptly notify the Applicant of any claim, demand, or legal actions that may create a claim for indemnification under these conditions of approval.

ADDITIONAL CONDITIONS IMPOSED BY THE ZONING OFFICER
Pursuant to BMC Section 23.406.030.H.2, the Zoning Officer attaches the following additional conditions to this Permit:

ITEM #4 - ATTACHMENT 3
ZAB 2024-04-25

2600 TENTH STREET NOTICE OF ADMINISTRATIVE DECISION - Findings and Conditions

G:\LANDUSE\Projects by Address\Tenth\2600\ZP2023-0031\DOCUMENT FINALS\2023-11-13_APFC__2600 Tenth St.docx Prior to Submittal of Any Building Permit:

10. Project Liaison. The applicant shall include in all building permit plans and post onsite the name and telephone number of an individual empowered to manage construction- related complaints generated from the project. The individual’s name, telephone number, and responsibility for the project shall be posted at the project site for the duration of the project in a location easily visible to the public. The individual shall record all complaints received and actions taken in response, and submit written reports of such complaints and act ions to the project planner on a weekly basis. Please designate the name of this individual below:
□ Project Liaison
Name Phone #

11. The applicant shall file an “Address Assignment Request Application” with the Permit Service Center (1947 Center Street) for any address change or new address associated with this Administrative Use Permit. The new address(es) shall be assigned in accordance with BMC 16.28.030, and entered into the City’s database after the building permit is issued but prior to final inspection

Standard Construction-related Conditions Applicable to all Projects:

12. Construction activity shall be limited to between the hours of 8:00 a.m. and 6:00 p.m. on Monday through Friday, and between 9:00 a.m. and noon on Saturday. No construction- relat
ed activity shall occur on Sunday or on any Federal Holiday.

13. If underground utilities leading to adjacent properties are uncovered and/or broken, the contractor involved shall immediately notify the Public Works Department and the Building & Safety Division, and carry out any necessary corrective action to their satisfaction.

14. Subject to approval of the Public Works Department, the applicant shall repair any damage to public streets and/or sidewalks by construction vehicles traveling to or from the project site.

15. All piles of debris, soil, sand, or other loose materials shall be covered at night and during rainy weather with plastic at least one- eighth millimeter in thickness and secured to the ground.

16. All active construction areas shall be watered at least twice daily, and all piles of debris, soil, sand or other loose materials shall be watered or covered.

17. Trucks hauling debris, soil, sand, or other loose materials shall be covered or required to maintain at least two feet of board.

18. Public streets shall be swept (preferably with water sweepers) of all visible soil material carried from the site.

19. The applicant shall establish and maintain drainage patterns that do not adversely affect adjacent properties and rights-of-way.

ITEM #4 - ATTACHMENT 3
ZAB 2024-04-25

2600 TENTH STREET NOTICE OF ADMINISTRATIVE DECISION - Findings and Conditions

G:\LANDUSE\Projects by Address\Tenth\2600\ZP2023-0031\DOCUMENT FINALS\2023-11-13_APFC__2600 Tenth St.docx

20. The applicant shall ensure that all excavation takes into account surface and subsurface waters and underground streams so as not to adversely affect adjacent properties and rights-of-way.

21. Any construction during the wet season shall require submittal of a soils report with appropriate measures to minimize erosion and landslides, and the developer shall be responsible for following these and any other measures required by the Building and Safety Division and the Public Works Department.

Prior to Issuance of Occupancy Permit or Final Inspection:

22. All construction at the subject property shall substantially conform to the approved Use Permit drawings or to modifications approved by the Zoning Officer.

23. All landscape, site and architectural improvements shall be completed per the attached approved drawings dated March 9, 2023.

At All Times (Operation):

24. All exterior lighting shall be energy efficient where feasible; and shielded and directed downward and away from property lines to prevent excessive glare bey ond the subject property.

25. Noise and exterior lighting shall be controlled so as to prevent verified complaints from the surrounding neighborhood. This shall include noise created by employees working on the premises before or after patrons arrive.

26. Design Review. Signage and any other exterior modifications, including but not limited to landscaping and lighting, shall be subject to design review’s review and approval.

27. This permit is subject to review, imposition of additional conditions, or revocation if factual complaint is received by the Zoning Officer that the maintenance or operation of this establishment is violating any of these or other required conditions or is detrimental to the health, safety, peace, morals, comfort or general welfare of persons residing or working in the neighborhood or is detrimental or injurious to property and improvements in the neighborhood or to the general welfare of the City.

28. Transit Subsidy. If 10 or more employees, the business operator shall reimburse employees the maximum non- taxable cost of commuting to and from work on public transportation (e.g., monthly passes) if they so commute, and a notice informing employees of the availability of such subsidy shall be permanently displayed in the employee area.

_____________________________________
Prepar
ed by: Nilu Karimzadegan
For Samantha Updegrave, Zoning Officer
ITEM #4 - ATTACHMENT 3
ZAB 2024-04-25

ITEM #4 - ATTACHMENT 3
ZAB 2024-04-25

ITEM #4 - ATTACHMENT 3
ZAB 2024-04-25

ITEM #4 - ATTACHMENT 4
ZAB 2024-04-25

ITEM #4 - ATTACHMENT 4
ZAB 2024-04-25

ITEM #4 - ATTACHMENT 4
ZAB 2024-04-25

ITEM #4 - ATTACHMENT 4
ZAB 2024-04-25

ITEM #4 - ATTACHMENT 4
ZAB 2024-04-25

ITEM #4 - ATTACHMENT 4
ZAB 2024-04-25

Z ONIN G

A D J U S T M E N T S

B O A R D
N o t i c e o f P u b l i c H e a r i ng
Land Use Planning Division
1947 Center Street, Second Floor, Berkeley, CA 94704 Tel: 510.981.7410 TDD: 510.981.7474 Fax: 510.981.7420 E-mail: [email protected]
2600 Tenth Street
Appeal of the Zoning Officer decision to approve the Administrative Use Permit #ZP2023-0031 to change the use of three tenant spaces (9,750 square feet) from Media Production to a Research and Development resulting in a total of 29,745 square feet of Research and Development space, and create up to nine tenant spaces within a seven-story building on a 114,998 square-foot lot.

The Zoning Adjustments Board of the City of Berkeley will hold a public hearing on the above matter, pursuant to Zoning Ordinance, Section 23.404.050 (Public Hearings and Decisions) When: Thursday, April 25, 2024, 7:00 pm
Where: Berkeley Unified School District meeting room , 1231 Addison Street , (wheelchair accessible) with remote/hybrid option (via Zoom).

Please visit: https://berkeleyca.gov/your-government/boards-commissions/zoning- adjustments-board and click on the hearing date to access the most up-to-date meeting information, or call the Land Use Planning division (510) 981-7410.

PUBLIC ADVISORY: THIS MEETING WILL BE CONDUCTED IN A HYBRID MODEL WITH BOTH

IN-PERSON ATTENDANCE AND VIRTUAL PARTICIPATION AVAILABLE FOR MEMBERS OF THE PUBLIC.

For in-person attendees, face coverings or masks that cover both the nose and mouth are encouraged. If you’re feeling sick, please do not attend the meeting in-person as a public health precaution.

Currently, there are no physical distancing requirements in place by the State of California or the Local Health Officer for an indoor event similar to a Commission meeting. However, all attendees are requested to be respectful of the personal space of other attendees. An area of the public seating area will be designated as “distanced seating” to accommodate persons that need to distance for personal health reasons.

A. Land Use Designations:
• General Plan: General Plan: M - Manufacturing
• Zoning: Zoning: MU-LI - Mixed-Use Light Industrial District ITEM #4 - ATTACHMENT 5
ZAB 2024-04-25

2600 TENTH STREET NOTICE OF PUBLIC HEARING

G:\LANDUSE\Projects by Address\Durant\2538\ZP2022-0097\DOCUMENT FINALS B. Zoning Permits Required:
• Administrative Use Permit pursuant to Berkeley Municipal Code (BMC) Section

23.206.020 to establish a Research and Development use that is over 20,000 square foot in gross floor area.
• Administrative Use Permit pursuant to BMC Section 23.206.030(B)(3)(a) to create up to nine tenant spaces.

C. CEQA Recommendation: Categorically exempt pursuant to Section 153 301 of the CEQA Guidelines (“Existing Facilities”).

D. Parties Involved:
• Applicant Lisa Vogel, Wareham Development
• Property Owner 2600 Tenth Street, LLC
• Appellant Rick Auerbach (WEBAIC), Jed Riffe, Connie Field, Vivian Kleinman, Jim Lebrecht
ITEM #4 - ATTACHMENT 5
ZAB 2024-04-25

2600 TENTH STREET NOTICE OF PUBLIC HEARING

G:\LANDUSE\Projects by Address\Durant\2538\ZP2022-0097\DOCUMENT FINALS Further Information:

All application materials are available online at:
https://aca.cityofberkeley.info/CitizenAccess/Welcome.aspx.

The Zoning Adjustments Board final agenda and staff reports will be available online 6 days prior to this meeting at: https://berkeleyca.gov/your-government/boards-commissions/zoning-adjustments- board.

Questions about the project should be directed to the project planner, Nilu Karimzadegan, at (510) 981- 7430 or NKarimzadegan@@berkeleyca.gov.

Written comments or a request for a Notice of Decision should be directed to the Zoning Adjustments Board Secretary at [email protected].

Communication Disclaimer:

Communications to Berkeley boards, commissions or committees are public record and will become part of the City’s electronic records, which are accessible through the Ci ty’s website. Please note: e- mail addresses, names, addresses, and other contact information are not required, but if included in any communication to a City board, commission or committee, 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 or in person to the secretary of the relevant board, commission or committee. 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 secretary to the relevant board, commission or committee for further information.

Written Comments, Communications, and Reports:

Written comments must be directed to the ZAB Secretary at the Land Use Planning Division (Attn: ZAB Secretary), or via e-mail to: [email protected]. All materials will be made available via the Zoning Adjustments Board Agenda page online at this address: https://berkeleyca.gov/your- government/boards-commissions/zoning-adjustments-board
All persons are welcome to attend the hearing and will be given an opportunity to address the Board.

Comments may be made verbally at the public hearing and/or in writing before the hearing. The Board may limit the time granted to each speaker.

Correspondence received by 5:00 PM, eight days before this public hearing, will be provided with the agenda materials provided to the Board. Note that if you submit a hard copy document of more than 10 pages, or in color, or with photos, you must provide 15 copies. Correspondence received after this deadline will be conveyed to the Board in the following manner:
• Correspondence received by 5:00 PM two days before this public hearing, will be conveyed to the Board in a Supplemental Communications and Reports, which is released around noon one day before the public hearing; or
• Correspondence received after 5:00 PM two days before this public hearing will be saved in the project administrative record.

ITEM #4 - ATTACHMENT 5
ZAB 2024-04-25

2600 TENTH STREET NOTICE OF PUBLIC HEARING

G:\LANDUSE\Projects by Address\Durant\2538\ZP2022-0097\DOCUMENT FINALS Accessibility Information / ADA Disclaimer:

To request a disability-related accommodation(s) to participate in the meeting, including auxiliary aids or services, please contact the Disability Services specialist at 981-6342 (V) or 981-6345 (TDD) at least three business days before the meeting date.

SB 343 Disclaimer:

Any writings or documents provided to a majority of the Commission regarding any item on this agenda will be made available to the public. Please contact the Land Use Planning Division ([email protected]) to request hard-copies or electronic copies.

Notice Concerning Your Legal Rights:

If you object to a decision by the Zoning Adjustments Board regarding a land use permit project, the following requirements and restrictions apply:

1. If you challenge the decision of the City in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice.

2. You must appeal to the City Council within 14 days after the Notice of Decision of the action of the Zoning Adjustments Board is mailed. It is your obligation to notify the Land Use Planning Division in writing of your desire to receive a Notice of Decision when it is completed.

3. Pursuant to Code of Civil Procedure Section 1094.6(b) and Government Code Section 65009(c)(1), no lawsuit challenging a City Council decision, a s defined by Code of Civil Procedure Section 1094.6(e), regarding a use permit, variance or other permit may be filed more than 90 days after the date the decision becomes final, as defined in Code of Civil Procedure Section 1094.6(b). Any lawsuit not filed within that 90-day period will be barred.

4. Pursuant to Government Code Section 66020(d)(1), notice is hereby given to the applicant that the 90-day protest period for any fees, dedications, reservations, or other exactions included in any permit approval begins upon final action by the City, and that any challenge must be filed within this 90-day period.

5. If you believe that this decision or any condition attached to it denies you any reasonable economic use of the subject property, was not sufficiently related to a legitimate public purpose, was not sufficiently proportional to any impact of the project, or for any other reason constitutes a “taking” of property for public use without just compensation under the California or United States Constitutions, the following requirements apply:
a. That this belief is a basis of your appeal.
b. Why you believe that the decision or condition constitutes a "taking" of property as set forth above.
c. All evidence and argument in support of your belief that the decision or cond ition constitutes a “taking” as set forth above. If you do not do so, you will waive any legal right to claim that your property has been taken, both before the City Council and in court.

ITEM #4 - ATTACHMENT 5
ZAB 2024-04-25

3457 Arlington Avenue, Ste. 104
Riverside, California 92506
951-779-0787 (V)
www.QuickCaption.com
>> Vice Chair Gaffney: ALL RIGHT, HI, EVERYONE.

I WOULD LIKE TO CALL TO ORDER THE BERKELEY ZONING ADJUSTMENTS BOARD MEETING.

THIS MEETING WILL BE CONDUCTED IN HYBRID WITH VIRTUAL AND IN- PERSON ATTENDANCE.

FOR IN-PERSON FACE COVERINGS ARE ENCOURAGED.

THEY WILL BE PROVIDED BY THE CITY.

MEMBERS OF STAFF, PUBLIC ARE ENCOURAGED TO USE MASKS.

CURRENTLY THERE ARE NO PHYSICAL DISTANCING REQUIREMENTS IN PLACE

BY THE STATE OF CALIFORNIA OR THE LOCAL HEALTH OFFICER FOR AN

INDOOR EVENT SIMILAR TO A COMMISSION MEETING, HOWEVER ALL ARE

ASKED TO BE RESPECTFUL AND THERE IS DISTANCE SEATING FOR THOSE WHO NEED TO BE DISTANCED FOR MEDICAL REASONS.

LIVE CAPTIONED WEBCASTS ARE AVAILABLE AND VIDEO STREAM AT THE LINK ON YOUR PACKET, OR AGENDA.

TO ACCESS REMOTELY, JOIN FROM PC, MAC, ANDROID OR DEVICE, USE THE URL.

Attachment 4

IF YOU DO NOT WISH FOR YOUR NAME TO APPEAR ON THE SCREEN, CLICK ON THE DROP-DOWN MENU AND RENAME YOURSELF TO BE ANONYMOUS.

TO REQUEST TO SPEAK USE THE RAISE HAND ICON.

TO JOIN BY PHONE, CALL THE NUMBER ON THE AGENDA AND ENTERING THE WEBINAR ID.

IF YOU WISH TO SPEAK ON THE PHONE PLEASE PRESS *9 AND WAIT TO BE ACKNOWLEDGED.

THIS MEETING IS BEING RECORDED.

PUBLIC TESTIMONY GUIDELINES, THIS MEETING WILL BE CONDUCTED IN ACCORDANCE WITH THE BROWN ACT, 54953.

ANY MEMBERS OF THE PUBLIC MAY ATTEND THE MEETING.

THE CHAIR MAY LIMIT THE AMOUNT OF SPEAKERS AND LENGTH OF TIME.

TO SPEAK AT A PUBLIC HEARING, PLEASE SUBMIT A SPEAKER CARD TO STAFF AS EARLY AS POSSIBLE.

IF YOU HAVEN'T DONE THAT ALREADY, THAT'S WHAT THESE CARDS ARE.

THANK YOU FOR GETTING THESE CARDS IN ON TIME.

AT THE START OF THE MEETING, THE CHAIR MAY REARRANGE THE AGENDA

OR PLACE ADDITIONAL AGENDA ITEMS ON THE CONSENT CALENDAR, SO

IT'S IMPORTANT TO BE PRESENT AT THE START OF THE MEETING TO AVOID LOSING THE CHANCE TO SPEAK TO AN ITEM.

THE BOARD ENCOURAGES THE PUBLIC TO SUBMIT COMMENTS IN WRITING IN ADVANCE OF THE MEETING.

NOW WE WILL MOVE ONTO EX PARTE DISCLOSURES AND ROLL CALL.

I WILL HAVE STAFF DO THAT NOW.

>> THANK YOU, WHEN I CALL YOUR NAME, PLEASE LET ME KNOW WHETHER YOU ARE PRESENT AND REPORT ANY EX PARTE COMMUNICATION.

VICE CHAIR PERSON GAFFNEY?
>> Vice Chair Gaffney: PRESENT, NO EX PARTE?
>> COMMISSIONER O'KEEFE?
>> S. O'Keefe: PRESENT, NO EX PARTE.
>> COMMISSIONER KAHN?
>> C. Kahn: VERY DELIGHTED TO BE PRESENT, NO EX PARTE, BUT I WILL BE RECUSING MYSELF FROM THE [ INDISCERNIBLE ] PROJECT. >> FROM 2600 TENTH STREET?
>> C. Kahn: YES.
>> THANK YOU, COMMISSIONER YUNG?
>> B. Yung: PRESENT, NO EX PARTE.
>> COMMISSIONER SANDERSON?
>> D. Sanderson: PRESENT, NO EX PARTE.
>> AND COMMISSIONER TREGUB IS LATE.
>> Vice Chair Gaffney: HE WILL BE HERE BUT LATE.

NOW TO MOVE ONTO PUBLIC COMMENT ON NON-AGENDA ITEMS.

IF YOU ARE SPEAKING ON 1788 FOURTH, 1600 TENTH STREET OR 1817 CARLETON STREET, DO NOT SPEAK RIGHT NOW.

WE HAVE ONE IN-PERSON CARD.

AND IF YOU HAVE ANYONE ONLINE RAISE YOUR HAND NOW AND I WILL GET TO YOU AFTER I'M DONE WITH THE IN-PERSON CARDS.

SO YEAH, BETSY MORRIS?

YOU HAVE TWO MINUTES.
>> YOU TELL ME, THAT SOUNDS BETTER.

GOOD EVENING, AND THANK YOU VERY MUCH FOR HAVING HYBRID MEETINGS AND I'M ABLE TO COME IN PERSON.

I'M BETSY MORRIS, HERE AS A PRIVATE CITIZEN AND RETIRED ECONOMIC

DEVELOPMENT PLANNER AND RESEARCHER, WHO RECENTLY LEARNED SOME

INFORMATION THAT I THINK WILL BE IMPORTANT TO YOU AS YOU DELIBERATE OVER THE NEXT FEW YEARS.

THAT INFORMATION FIRST IS THAT THERE'S CURRENTLY A GLUT,

ACCORDING TO THE SAN FRANCISCO BUSINESS JOURNAL, BUSINESS TIMES, I HAVE A COUPLE SOURCES.

THERE'S A GLUT, 20% VACANCY RATE FOR LIFE SCIENCES BUILDINGS. A

HUGE FAD OF BUILDING THEM ON SPEC WITH THE ASSUMPTION YOU BUILD

THE BUILDINGS, KICK OUT NEW TENANTS, AND NEW TENANTS WILL APPEAR.

THIS IS RELEVANT, I THINK, BECAUSE THE 20% RATE DOES NOT INCLUDE 11 MORE BUILDINGS COMING ONLINE JUST IN THE EAST BAY.

I THINK FOUR OR FIVE ARE HERE IN WEST BERKELEY.

WHICH I STILL CLAIM TO LIVE IN WEST BERKELEY HEIGHTS, ON SACRAMENTO STREET.

BUT THIS IS WHERE I CUT MY TEETH.

THIS IS WHERE I GOT MY COMMUNITY EDUCATION AND I STILL YEARN FOR THE DAYS WHEN I LIVED BELOW SAN PABLO AVENUE.

GREAT NEIGHBORS.

SO THE OTHER ITEM I STILL HAVE A LITTLE TIME TO SHARE ON IS THIS.

CURRENT MODELS FOR UNDERSTANDING SEA RISING, WHICH WE HAVE BEEN

SOMEWHAT EXEMPT FROM HERE IN THE BAY AREA BUT IS EXPECTED TO INCREASE OVER THE NEXT DECADES. THE CURRENT SEA LEVEL ENTERING

THE BAY, RISING, FLOODS, KING TIDES, THINGS LIKE THAT, PUSH GROUND WATER UP.

AND OUR WEST BERK RY, IN FACT, THE WHOLE EAST BAY AND OTHER PARTS AROUND THE BAY ARE FULL OF TOXINS. HEAVY METAL AND VOLATILE CHEMICALS.

THAT THE ASSUMPTION IS THEY WILL SIT IN PLACE IF WE JUST CAP THEM OR SCRAPE THEM.

BUT THE TRUTH IS, THESE CHANGES IN THE HYDROLOGY HAVE BEEN -- THE MODEL HAS BEEN DOCUMENTED.

I INVITE YOU TO LOOK AT THE RESEARCH, DR. HERALD AT U.C.

BERKELEY.

SHE PUBLISHED ARTICLES AND HAS SOME GREAT DIAGRAMS.

YOU ARE CONSIDERING REQUESTS FOR HIGHER HEIGHT LIMITS, THERE'S TWO.

THAT TOXINS WILL MOVE AS THE GROUND WATER RISES, SOUNDS LIKE YOU KNOW ABOUT THIS.

I JUST LEARNED ABOUT IF.

IT.

THEY WILL MOVE, THEY ARE GOING TO MOVE.

THEY HAVE ALREADY MOVED UPSTREAM AWAY FROM THE BAY, BUT I THINK IT'S IMPORTANT TO ALWAYS ASK WHAT IS THE HEIGHT OF THE BUILDING?

WHAT IS THE WEIGHT OF THE BUILDING, WHEN YOU START ADDING MORE STORIES AND WHAT IS THE COMPRESSION FACTOR.

BECAUSE THE CURRENT DOCUMENTATION, THE ANALYSIS HAS NOT BEEN DONE, IN TERMS OF EIR'S.

BUT A NUMBER OF EXPERTS AND EIR AUTHORS SAY THIS NEEDS A LOT MORE ANALYSIS AND ATTENTION.

BUT THEY WEREN'T PAID TO GIVE IT SO THEY DIDN'T.

I ENCOURAGE YOU TO LOOK MORE DEEPLY INTO THAT.

I'M NOT OPPOSED TO DEVELOPMENT, BUT IT DOES RAIN ON BUILD HIGHER AND HEAVIER.

PLEASE SHARE THAT AND I WILL BE GLAD TO SHARE SOURCES WITH YOU AFTERWARDS.
>> Vice Chair Gaffney: THANK, BETSY.

THAT'S ALL FOR IN-PERSON.

WE HAVE ONE PERSON ONLINE, KELLY HAMMARGREN.

I DON'T KNOW IF I CAN RECOGNIZE HER OR NOT.

I DON'T HAVE THAT OPTION.

ONE SECOND, KELLY, WE ARE GOING TO RECOGNIZE YOU.

PERFECT.

YOU SHOULD BE ABLE TO TALK NOW.
>> OKAY, THANK YOU.

CAN YOU HEAR ME OKAY?

>> Vice Chair Gaffney: YES, WE CAN HEAR YOU GREAT.
>> OKAY, SO I LOOKED AND THE EMAIL THAT I SENT, MAYBE I SENT IT TOO LATE.

I SENT IT YESTERDAY, BRINGING BACK THE NATIVE GARDENS TOUR.

I DON'T SEE THAT POSTED.

I HOPE CITY STAFF CAN FORWARD THAT TO YOU.

BECAUSE ON MAY 4th AND 5th IS THE BRINGING BACK THE NATIVES GARDEN TOUR.

AND ON THE 4th, ERIN DEAN WHOM SOME OF YOU KNOW FROM HER

APPEARANCES AT ZAB AND DRC WILL HAVE -- HER GARDEN IS ON THE TOUR.

AND AT HER HOUSE WE WILL ALSO HAVE DEMONSTRATION OF HOW TO MAKE EXISTING WINDOWS BIRD SAFE.

AND SHE HAS PUT TOGETHER ALL KINDS OF EXAMPLES OF FILMS ANNACOPIAN BLINDS.

I HOPE YOU WILL REGISTER BRINGING BACK THE NATIVE GARDENS TOUR.

IT'S COMPLETELY FREE.

IT'S VERY EXCITING.

AND THERE'S ALSO A VIDEO THAT I REALLY ENCOURAGE YOU TO WATCH IF YOU HAVE NOT DONE SO.

DOUGLAS TALAMAY, ENTOMOLOGIST FROM THE EAST COAST HAS A VIDEO USING PHOTOS OF OUR NATIVE BIRDS AND BUTTERFLIES.

AND TALKS ABOUT THE IMPORTANCE OF NATIVE PLANTS. AND IF YOU ARE

NOT SOMEONE INTO NATIVE PLANTS NOW, I THINK YOU WOULD BE AFTER

YOU WATCH DOUGLAS TALAMAY AND THAT'S PROBABLY THE MOST IMPORTANT THING YOU COULD DO, BESIDES GOING OUT AND ENJOYING GARDENS.

I ALSO PUT THE LINK IN THE EMAIL THAT I SENT FOR CALSCAPE.

THE YOUTUBE CHANNEL FOR BRINGING BACK THE GARDENS. IT'S VERY EXCITING.

YOU KNOW, WHEN WE ARE DOING LANDSCAPING FOR THE BUILDINGS, WE

REALLY CAN DO SO MUCH MORE FOR OUR ENVIRONMENT AND HABITAT AND ECOSYSTEMS. AND FOR THE SURVIVAL OF BIRDS AND BUTTERFLIES AND BEES, IF WE USE NATIVE PLANTS.

SO I JUST ENCOURAGE EVERY SINGLE ONE OF YOU TO TAKE ADVANTAGE OF THE FREE TOURS AND SEE HOW EXCITING NATIVE PLANT GARDENS CAN BE.

AND ALSO, JUST TO GET A BETTER GRASP OF WHY WE TALK ABOUT THIS AT MEETING AFTER MEETING.

THANK YOU.
>> Vice Chair Gaffney: THANK YOU SO MUCH, KELLY.

ALL RIGHT.

IT LOOKS LIKE THERE'S ANOTHER HAND.
>> C. Kahn: I JUST WANT TO THANK YOU FOR MAKING US AWARE OF THAT, KELLY.

I JUST TEXTED MY WIFE AND HOPE TO SEE YOU THERE.

THANK YOU.
>> Chair Duffy: WONDERFUL.
--
>> Vice Chair Gaffney: WONDERFUL.

LOOKS LIKE WE HAVE ONE MORE HAND UP.

YOU SHOULD BE UNMUTED OR ALLOWED TO TALK NOW.

SAID, ARE YOU ABLE TO UNMUTE?
LOOKS LIKE YOU ARE STILL MUTED.

SAID, ARE YOU THERE?
TRY TO SEE IF THERE'S AN UNMUTE BUTTON.

IF THERE IS NOT, WE CAN --
ARE YOU THERE?
ALL RIGHT, WELL WE CAN ALWAYS TRY TO COME BACK TO YOU.

WE WOULD LOVE TO HEAR FROM YOU THOUGH, SO IF YOU ARE ABLE TO UNMUTE, THAT WOULD BE GREAT.

YOU ARE STILL MUTED.
>> HELLO?
>> Vice Chair Gaffney: THERE WE GO, WE CAN HEAR YOU, WONDERFUL.

GO AHEAD, YOU HAVE THREE MINUTES.
>> OKAY, I'M JUST LISTENING TO YOU GUYS AND THANK YOU.

I HAVE NOTHING TO SAY, JUST WATCHING THE PROGRAM, OKAY. >> Vice Chair Gaffney: WONDERFUL, THAT'S GREAT.

WE ARE HAPPY TO HAVE YOU HERE.

ALL RIGHT.

THANK YOU SO MUCH.

WE ALL NEEDED THAT A BIT.

ALL RIGHT.
>> THANKS FOR TUNING IN, FOLKS.

>> Vice Chair Gaffney: THAT LOOKS LIKE THAT IS IT FOR ANY COMMENT ON NON-AGENDA MATTERS.

I'M GOING TO SUGGEST AN AGENDA CHANGE, WE DON'T REALLY HAVE A

QUORUM BECAUSE COMMISSIONER KAHN NEEDS TO RECUSE HIMSELF FROM TENTH STREET.

THE SECOND AND THIRD ITEM ARE GOING TO STAY AS-IS, BUT I WILL SWITCH AROUND THE FOURTH AND FIFTH ITEM.

ITEM 5, WHICH IS 1817 B CARLETON STREET WILL NOW GO BEFORE TENTH STREET.

AND WE WILL GET A QUORUM BEFORE THAT HAPPENS.

SO THE NEW AGENDA, I WILL READ IT OVER JUST TO MAKE SURE WE KNOW.

ITEM #1, THE CONSENT CALENDAR THAT WE ARE ABOUT TO BE VOTING ON, THAT'S THE APPROVAL OF ACTION MINUTES FROM MARCH 28th 2024.

ITEM #2 IS 1788 FOURTH STREET, AND ITEM 3 IS REQUEST FOR LEAVE OF ABSENCE FOR JANET TAM FROM THE DESIGN REVIEW COMMITTEE.

THOSE ARE ON THE CONSENT CALENDAR AND THOSE WON'T HAVE A HEARING IF THEY STAY ON THE CONSENT CALENDAR.

ON ACTION WE WILL HAVE CARLETON STREET GO FIRST.

AFTER THAT WE WILL HAVE 2600 TENTH STREET GO AFTER THAT.

SO THOSE ARE MY PROPOSED CHANGES.

WE ARE NOW GOING TO MOVE OVER TO THE CONSENT CALENDAR, ITEMS #1 --

>> CHAIR GAFFNEY, I JUST WANT TO CHECK, THE AGENDA CHANGE YOU PROPOSED MAKES SENSE.

I WANT TO CHECK, I SEE THERE ARE CHILDREN IN THE AUDIENCE AND I

WONDER WHICH PROJECT THEY ARE WITH, IF THEY JUST GOT MOVED TO THE LATER THING WE SHOULD CONSIDER THAT.

CAN WE FIND OUT?
>> Vice Chair Gaffney: CARLETON.
>> S. O'Keefe: THE ONE THAT IS NOW FIRST?
>> Vice Chair Gaffney: YES.

THANK YOU, COMMISSIONER O'KEEFE.

LOVE TO ACCOMMODATE WHEN WE CAN.

WE WILL VOTE ON THE CONSENT CALENDAR, APPROVAL OF ACTION MINUTES, FOURTH STREET AND LEAVE OF ABSENCE FOR JANET TAM.

WE HAVE NO COMMUNICATIONS RIGHT NOW IN PERSON ON THOSE.

IF YOU DO HAVE ANY COMMUNICATIONS ONLINE, NOW IS YOUR TIME TO RAISE YOUR HAND.

SO PLEASE RAISE YOUR HAND IF YOU HAVE ANYTHING TO SAY ON THE ITEMS ON THE CONSENT CALENDAR THAT I JUST LISTED.

I AM SEEING NONE RIGHT NOW.

ALL RIGHT, SO, WOULD ANYONE ENTERTAIN A MOTION?
>> D. Sanderson: I MOVE APPROVAL OF THE CONSENT CALENDAR. >> C. Kahn: SECOND.
>> Vice Chair Gaffney: BEAUTIFUL.

WE ARE NOW GOING TO TAKE A ROLL CALL VOTE.

>> THANK YOU.

I HAVE A MOTION FROM COMMISSIONER SANDERSON AND SECOND FROM COMMISSIONER KAHN TO APPROVE THE CONSENT CALENDAR.

WHEN I CALL YOUR NAME PLEASE STATE YOUR VOTE.

VICE CHAIR PERSON GAFFNEY, OR CHAIRPERSON GAFFNEY?
>> YES.
>> COMMISSIONER O'KEEFE?
>> S. O'Keefe: CAN YOU COME BACK TO ME, I JUST RECEIVED THE MINUTES NOW, I JUST WANT TO READ THEM BEFORE I VOTE.
>> SURE I WILL START FROM THE BOTTOM.

COMMISSIONER SANDERSON?
>> D. Sanderson: YES.
>> COMMISSIONER YUNG?
>> B. Yung: YES.
>> COMMISSIONER MATTHEWS?
>> Vice Chair Gaffney: SORRY, HE IS ABSENT.
>> Clerk: MY APOLOGIES.

COMMISSIONER O'KEEFE?
>> S. O'Keefe: RIGHT, NOT MANY PEOPLE.

YEAH, THESE LOOK FINE.

YES.
>> Clerk: THANK YOU.
>> Vice Chair Gaffney: ALL RIGHT, WONDERFUL.

THE MOTION PASSES THEN.

WE WILL NOW MOVE ON TO THE ACTION CALENDAR.

WE WILL BE DOING 1817-B CARLETON STREET FIRST.
>> Clerk: SORRY, CHAIRPERSON GAFFNEY, I MISSED COMMISSIONER KAHN.

I WAS TOO EAGER TO CLOSE THAT OUT.

I'M SO EXCITED.

COMMISSIONER KAHN?
>> C. Kahn: I WASN'T PRESENT AT THAT MEETING BUT MY

UNDERSTANDING FROM THE CITY ATTORNEY IS I CAN STILL VOTE ON THE ITEM.

AND IT'S NECESSARY TONIGHT BECAUSE WITHOUT THAT VOTE IT WON'T PASS.

SO I WILL VOTE YES.
>> Clerk: THANK YOU.
>> Vice Chair Gaffney: WONDERFUL.

NOW THE MOTION OFFICIALLY PASSES.

NOW WE WILL OFFICIALLY MOVE ON TO THE ACTION CALENDAR.

FIRST UP WILL BE CARLETON STREET.

AND WE WILL START FIRST WITH A STAFF PRESENTATION.
>> WAQAR SHAH: ARE YOU ABLE TO HEAR ME?
>> Vice Chair Gaffney: YES.
>> ARE YOU ALSO ABLE TO SEE MY PRESENTATION?
>> Waqar Shah: HOW ABOUT NOW?
>> Vice Chair Gaffney: YES, IT IS.

>> Waqar Shah: WONDERFUL, WILL BEGIN.

I WILL BEGIN.

I'M WAQAR AND I'M PRESENTING THE SUBJECT VARIANCE APPLICATION BEFORE YOU.

FOR THE AGENDA, I WANT TO START OFF BY INFORMING STAFF

RECOMMENDS DENIAL OF THE VARIANCE AS ALL THE REQUIRED VARIANCE FINDINGS ARE NOT MADE.

WE WILL STEP IN THE PROJECT DESCRIPTION, R-2 DEVELOPMENT

STANDARDS, EXISTING DEVELOPMENT AND THE PROPOSED PROJECT AND ITS COMPLIANCE WITH THE R-2 DISTRICT DEVELOPMENT STANDARDS, THE REQUIRED VARIANCE AND RELEVANT FINDINGS FOR DENIAL.

AND WE WILL ALSO DISCUSS THE PENDING MIDDLE HOUSING ZONING

AMENDMENTS AND ZONING ADJUSTMENT BOARD RECOMMENDATION AND THE REASONING BEHIND.

THE PROJECT WOULD CONSTRUCT A 494 SQUARE FOOT THIRD STORY ADDITION OVER 28 FEET IN AVERAGE HEIGHT, THAT EXCEEDS THE

ALLOWABLE LOT COVERAGE AND ENCROACHES IN THE REQUIRED THIRD STORY SIDE SETBACK.

I ALSO WANTED TO MAKE A CORRECTION IN THE STAFF REPORT WHERE I MENTION THE TOTAL NUMBER OF BEDROOMS ON THE LOT WERE MISCOUNTED.

NOW THE TOTAL NUMBER OF BEDROOMS IS 12 ON THE LOT.

SO FOR MORE CONTEXT ABOUT THE PROJECT.

THE PROJECT SITE IS LOCATED IN SOUTH BERKELEY, WEST OF CARLETON

STREET AND MARTIN LUTHER KING JUNIOR WAY INTERSECTION AND ONE BLOCK FROM DERBY FIELD PARK, SOUTHEAST OF THE PROJECT SITE.

THE AREA IS CHARACTERIZED AS RESIDENTIAL AND COMPRISED 1-3 STORY, SINGLE STORY AND MULTI-FAMILY DWELLINGS. THE LOT IS DEVELOPED WITH THREE TWO-STORY SINGLE FAMILY DWELLING UNITS.

SHOWN HERE IS THE EXISTING CONDITION OF THE RESIDENCE FROM A NORTH FACING VIEW.

IN THE R-2 ZONING DISTRICT SOME DEVELOPMENT STANDARDS ARE BASED ON THE NUMBER OF STORIES IN THE MAIN BUILDING.

THE ADDITION OF A THIRD STORY ON SITE REDUCES LOT COVERAGE FROM 30 TO 45 SET AND WHILE THE REQUIRED SETBACK FOR THE FIRST AND SECOND STORIES IS FOUR FEET AS SHOWN IN TABLE 43.202.6 IT MUST BE SAT BACK FROM THE INTERIOR SIDE LOT LINE.

SO THE CURRENT LOT WAS FULLY DEVELOPED WITHIN APPLICABLE R-2 ZONING STANDARDS IN COMPLIANCE WITH THE APPROVED USE PERMIT.

IN 2015 ZAB APPROVED THE DEMOLITION OF THE EXISTING SINGLE

FAMILY DWELLING AND ACCESSORY STRUCTURE AND CONSTRUCTED THREE NEW TWO-STORY SINGLE FAMILY DWELLING UNITS. EACH WITH INDIVIDUAL PARKING SPACES, TOTALING THREE.

THE SAME DEVELOPMENT STANDARDS THAT WERE APPLIED THEN STILL APPLY NOW.

THE PROJECT NOW PROPOSES TO CONSTRUCT A 494 SQUARE FOOT THIRD STORY ADDITION TO AN EXISTING TWO-STORY SINGLE FAMILY DWELLING.

THE ADDITION OF A THIRD STORY ON THE LIGHT WOULD CREATE NON

CONFORMITIES TO THE LOT COVERAGE AND SIDE SETBACK AS NOTED IN THE SUPPLEMENTAL TABLES.

VARIANCES WOULD BE REQUIRED TO EXCEED THE MAXIMUM LOT COVERAGE AND ENCROACH IN THE SIDE SETBACKS PER THE R-2 DEVELOPMENT STANDARDS.

SO AS I'VE MENTIONED THE PROJECT REQUIRES TWO VARIANCES TO DEVIATE FROM THE R-2 DEVELOPMENT STANDARDS.

THE DOCUMENTATION SUBMITTED WAS ANALYZED AND STAFF CONCLUDES ALL OF THE FINDINGS CAN NOT BE MADE.

AND RECOMMENDS DENIAL OF THE VARIANCES FROM LOT COVERAGE AND SIDE SETBACK FOR A THIRD STORY RESIDENTIAL BUILDING.

I WILL GO FURTHER INTO THE FINDINGS THAT CANNOT BE MADE.

FOR THE FIRST FINDING, THERE ARE NO EXCEPTIONAL CIRCUMSTANCES

APPLYING TO THE PROPERTY WHICH DO NOT GENERALLY APPLY IN THE SAME DISTRICT.

THE EXISTING DEVELOPMENT THAT WAS APPROVED BY ZAB IN JULY 2015

COMPLIED AND MET THE MINIMUM SIDE SETBACK WITH TWO STORY BUILDINGS. THE SAME APPLIES TODAY SO HAVING A FULLY BUILT-

OUTSIDE THAT MEETS CURRENT ZONING STANDARDS IS NOT AN
EXCEPTIONAL CIRCUMSTANCE.

FOR THE SECOND FINDING, THE VARIANCE IS NOT NECESSARY TO PRESERVE A SUBSTANTIAL PROPERTY RIGHT.

THE CURRENT SITE WAS DEVELOPED AS A RESIDENTIAL USE THAT

MAXIMIZES THE ALLOWED DENSITY, DEVELOPED IN CONFORMANCE TO LOT

COVERAGE AND SETBACKS AND MEETS THE APPLICABLE DEVELOPMENT STANDARDS FOR THE R-2 ZONING DISTRICT.

EXCEEDING THE ALLOWABLE STANDARDS IS NOT A PROPERTY RIGHT.

AND FOR THE FIFTH FINDING, THE VARIANCE WILL NOT PROMOTE THE

MUNICIPAL HEALTH, WELFARE, AND SAFETY AND BENEFIT THE CITY AS A WHOLE.

THE LOT WAS FULLY DEVELOPED TO COMPLY WITH THE LEGALLY

ESTABLISHED REQUIREMENTS FOR THE EXISTING TWO-STORY RESIDENTIAL DEVELOPMENT.

EXCEEDING THE DEVELOPMENT STANDARDS FOR A THREE STORY

RESIDENTIAL DEVELOPMENT WOULD BE GRANT A SPECIAL PRIVILEGE THAT IS NOT AVAILABLE TO OTHER PROPERTIES WITHIN THE SAME DISTRICT.

SO TO TRANSITION, I'M GOING TO BE DISCUSSING THE PENDING MIDDLE HOUSING CHANGES.

AND I WANTED TO TAKE A MOMENT TO BASICALLY DISCUSS UNDER PROGRAM 29 OF THE HOUSING ELEMENT, THE CITY IS PURSUING AMENDMENTS TO

SIMPLIFY AND STREAMLINE HOUSING DEVELOPMENT COMMONLY THROUGH THE MIDDLE HOUSING POLICY.

STAFF DRAFTED CHANGES AND IS PREPARING REVISIONS BASED ON THE PLANNING COMMISSION'S RECOMMENDATION RECEIVED FEBRUARY 7th THIS YEAR.

AND SOME OF THE CHANGES MAY IMPACT A VARIETY OF DEVELOPMENT STANDARDS IN THE R-2 DISTRICT.

AND THE ZONING AMENDMENTS ARE NOT YET SCHEDULED FOR CITY COUNCIL CONSIDERATION.

ESSENTIALLY, LAND USE DECISIONS MUST BE BASED ON THE FACTS THAT

ARE TRUE AT THE TIME OF THE DECISION AND CANNOT BE BASED ON THE SPECULATION OF FUTURE ZONING CODE AMENDMENTS.

IN CONCLUSION, BASED ON THE PROJECT'S INCONSISTENCY WITH THE

VARIANCE FINDINGS OF THE ZONING ORDINANCE, STAFF RECOMMENDS THE ZONING ADJUSTMENT BOARD TO DENY A VARIANCE FOR 1817-B CARLETON STREET.

THAT'S THE END OF MY PRESENTATION AND I'M AVAILABLE FOR FURTHER QUESTIONS.
>> Vice Chair Gaffney: WONDERFUL, THANK YOU SO MUCH.

DOES ANYONE ON THE COMMISSION HAVE ANY QUESTIONS FOR STAFF? LOOKS LIKE WE ARE ALL GOOD AS OF RIGHT NOW.

SO RIGHT NOW WE WILL HAVE A FIVE-MINUTE PRESENTATION FROM THE APPLICANT.
>> HELLO, MY NAME IS JOHN NEWTON.

SO I DESIGNED THE THREE HOUSES ON THIS CARLETON LOT IN 2015.

AND I'VE BEEN HAPPY TO SEE THE THREE FAMILY THAT'S HAVE LIVED THERE TOGETHER.

AS A HOUSE DESIGNER IT'S HARD TO PREDICT WHO WILL EVENTUALLY LIVE IN THE HOUSE THAT'S BEING DESIGNED.

BUT HOUSES ARE MEANT TO CHANGE AS NEEDED TO ADAPT TO THE

SPECIFIC FAMILY, NOT TO MENTION THE HOUSE MUST ADAPT TO CHANGES IN WORK AND LIFESTYLE PATTERNS. THE HOUSE WAS DESIGNED BEFORE COVID HIT.

ALL THE HOME OFFICES AND THAT SORT OF THING.

IN THE CASE OF TEF AND JAMIE, THEY HAVE THREE KIDS YOU SEE HERE.

THEY ARE ALSO PROFESSIONALS AND WORK FROM HOME SO THEY NEED MORE SPACE THAN I ORIGINALLY DESIGNED.

IT'S ALSO IMPORTANT TO ALLOW FAMILIES TO STAY IN PLACE WITH THE

NEIGHBORS THEY HAVE GROWN TO APPRECIATE, RATHER THAN FORCING THEM TO MOVE IF THEY NEED AN EXTRA BEDROOM.

IT'S A BENEFIT TO THE SOCIAL FABRIC TO ALLOW PEOPLE TO STAY IN THEIR HOUSE AS LONG AS POSSIBLE.

I JUST WANTED TO POINT OUT THE ADDITION IS NOT PARTICULARLY LARGE.

AND WE HAVE SUPPORT FROM THE OTHER NEIGHBORS BOTH ON THE PROPERTY AND THE IMMEDIATE NEIGHBORHOOD.

WE ARE ALSO NOT INCREASING THE FOOTPRINT OR THE LOT COVERAGE, IT'S JUST THE MERE FACT THAT R-2 REQUIRES LESS LOT COVERAGE IF YOU GO WITH A THIRD STORY.

I'M ACTUALLY PART OF THE PEOPLE GIVING SOME INPUT ON THE MIDDLE HOUSING CODE AND I'M TRACKING IT VERY CLOSELY.

SO IF AND WHEN IT IS APPROVED, THE LOT COVERAGE WILL GO UP TO 60%.

SO FROM 35 TO 60 IS HUGE.

THE SIDE SETBACK IS ALSO GOING TO GO TO FOUR FEET.

SO THE PROJECT WILL BE COMPLIANT AT SOME POINT IN THE FUTURE.

WE STILL NEED THE HEIGHT A.U.P.

SO THAT'S PART OF OUR PROJECT NOW TOO.

WE DID SUBMIT THIS IN OCTOBER OF LAST YEAR.

WE DON'T KNOW WHEN THE NEW CODE WILL BE APPROVED OR EXACTLY WHAT IS GOING TO BE APPROVED.

SO WE ARE HOPING YOU WILL SUPPORT US NOW IN GETTING THE VARIANCE.
>> Vice Chair Gaffney: WONDERFUL.

THANK YOU.

OKAY, YOU HAVE, LET'S SEE, WE DON'T -- WE WILL GIVE YOU TWO AND A HALF.

WE WILL SPLIT THE TIME EVENLY.
>> GOOD EVENING, MY NAME IS TEFERA, WITH MY WIFE, MY THREE

CHILDREN, WE ARE THE FAMILY OUR ARCHITECT JUST DESCRIBED A FEW MOMENTS AGO.

WE APPRECIATE THE OPPORTUNITY TO TALK ABOUT THE PERMIT HERE.

A COUPLE POINTS.

WE MOVED IN 2017 AS A FAMILY OF THREE, AND NOW WE ARE A FAMILY

OF FIVE, INCLUDING ALL THE CIRCUMSTANCES YOU ALL EXPERIENCED

WITH THE PANDEMIC, WE NOW WORK PREDOMINANTLY FROM HOME AND WE HAVE MORE CHILDREN AND WE NEED MORE SPACE.

THE PICTURES THAT YOU SAW ABOUT THE LOT DON'T EXACTLY GIVE YOU A SENSE OF HOW SMALL THE LOT FOR THE PARTICULAR HOUSE IS.

THERE'S NO OTHER DIRECTION TO INCREASE SPACE IN THE HOUSE, EXCEPT UP.

WE HAVE A SOUL PATCH OF A FRONT YARD THAT WOULDN'T ACCOMMODATE SPACE AND WE REALLY DON'T HAVE A REAR AREA TO BUILD.

WORKING WITH THE ARCHITECT THIS WAS THE LEAST CHALLENGING WAY TO

OFFER OUR FAMILY THE SPACE WE THINK WE NEED TO STAY IN THE COMMUNITY.

REGARDING RIGHTS AS FAR AS HOMEOWNERS, OUR POSITION IS REALLY ABOUT OUR DESIRE TO STAY IN THE COMMUNITY.

HOW DISRUPTIVE TRYING TO CHANGE HOMES TO FIND A LARGER HOME WOULD BE FOR US.

AND ALSO, AS YOU ALL KNOW, ENTERING A MARKET NOW WHERE INTEREST

RATES HAVE CLOSE TO TRIPLED SINCE WE BOUGHT OUR HOME AND HOUSE PRICES ALSO INCREASING WHERE IT'S COST PROHIBITIVE.

SO EVEN THOUGH THERE ARE MANY CHALLENGES TO HAVING A PERMIT

APPROVED AND EXPAND EVEN NOMINALLY AS YOUR STAFF REPORT DESCRIBES IT AS A NEGLIGIBLE INCREASE IN SIZE, ABOUT 494 SQUARE

FEET, THOSE COSTS ARE SAVINGS FOR US COMPARED TO TRYING TO PAY FOR A HOUSE WE CAN'T AFFORD SOMEWHERE ELSE.

MOST IMPORTANTLY, HAVING RAISED OUR KIDS HERE, WE WANT TO STAY IN THE COMMUNITY AND WE DON'T WANT TO LEAVE THE COMMUNITY.

WE HAVE STRONG GENERAL SUPPORT FROM OUR NEIGHBORS ON CARLETON STREET.

AND WE ARE GRATEFUL TO THEM FOR THAT.

AND IN THINKING ABOUT HOW THIS BOARD MAKES DECISIONS FOR HOUSING

FOR BERKELEY, I THINK IT'S REALLY IMPORTANT TO REMEMBER ALL THE

PRESSURES THAT BERKELEY RESIDENTS ARE UNDER TO STAY IN THE

COMMUNITY --
>> Vice Chair Gaffney: YOU GOT TO WRAP IT UP, MAYBE A COUPLE MORE SENTENCES.
>> SURE.

WHETHER IT'S RENTING OR BUYING, THERE'S A RESPONSIBILITY FOR THE

COUNCIL AND IT'S APPOINTED BOARDS TO SUPPORT RESIDENTS IN

EXPANDING NOMINALLY SPACES SO WE CAN HAVE --
>> Vice Chair Gaffney: THANK YOU SO MUCH.

WE APPRECIATE YOU ALL BEING HERE.

I GUESS SHOULD WE TAKE A PAUSE AND GET YES VOTED IN, NOT VOTED IN, EX PARTE'D?
>> Clerk: SURE, I THANK YOU.

COMMISSIONER GAFFNEY.

CHAIRPERSON DUFFY, PLEASE LET ME KNOW IF YOU ARE PRESENT AND REPORT ANY EX PARTE.
>> Chair Duffy: THANK YOU, AND APOLOGIES FOR THE DELAY.

PRESENT, NO EX PARTE.
>> Clerk: THANK YOU.

>> Vice Chair Gaffney: ALL RIGHT, WONDERFUL.

NOW BACK TO BUSINESS.

DOES ANYONE ON THE COMMISSION HAVE ANY QUESTIONS FOR THE APPLICANT AT ALL?
YES, COMMISSIONER YUNG?
>> B. Yung: YEAH, I WANTED TO ASK, SO STATE LAW AND THE LOCAL

IMPLEMENTING ORDINANCE ALLOWS FOR ACCESSORY DWELLING UNITS AND

JUNIOR ACCESSORY DWELLING UNITS, I JUST WANT TO ASK YOU DID LOOK INTO THAT AT ALL.

DID THAT PROVE INFEASIBLE FOR THE SITE CHARACTERISTICS? >> Vice Chair Gaffney: YOU CAN COME BACK UP.
>> YOU MEAN TO USE THE A.D.U. LAW AS A WAY TO KIND OF BYPASS THE VARIANCE?
OR?
>> B. Yung: CORRECT, TO USE A.D.U. LAW TO PERMIT THIS ADDITIONAL RESIDENTIAL SQUARE FOOTAGE.
>> YEAH, THAT'S AN INTERESTING QUESTION.

IT DIDN'T COME UP.

I DIDN'T THINK AN A.D.U., YOU COULD USE THAT TO VIOLATE THE LOT COVERAGE AND THE HEIGHT.

I COULD BE WRONG.
>> D. Sanderson: SO YOU CAN USE THE A.D.U. LAW TO BUILD AN A.D.U., TO BUILD A NEW UNIT.

YOU CAN BUILD A FREE-STANDING LITTLE COTTAGE TYPE THING OR BUILD IN ADDITION TO AN EXISTING DWELLING.

BUT THAT ADDITION MUST BE A UNIT, A SEPARATE DWELLING UNIT.

SO YOU WOULD GO FROM THREE TO FOUR DWELLING UNITS ON THE LOT.

THERE IS A RELAXATION OF THE LOT COVERAGE AND RELAXATION OF THE HEIGHT.

WHAT HEIGHT IS YOUR CURRENT BUILDING?
>> I CAN'T REMEMBER LIKE 26.
>> D. Sanderson: YOU COULDN'T GO UP BECAUSE OF THE HEIGHT.

I DON'T THINK IT WOULD.

I MEAN IT'S GOOD TO THINK ABOUT ALL THESE OPTIONS BUT IT'S NOT GOING TO HELP YOU.
>> I'M TRYING TO THINK THROUGH ALL THIS STUFF.

EVEN THE MIDDLE HOUSING, SPENDING HOURS AND HOURS EVERY WEEK, REPROCESSING IT AND THINKING THROUGH THE RAMIFICATIONS OF IT.

BUT IN THIS CASE, THEY ONLY WANTED A SMALL ADDITION.
>> D. Sanderson: I UNDERSTAND.
>> JUST ONE BEDROOM AND A HOME OFFICE.

SO TO TRY TO HAVE TO PAY FOR ANOTHER KITCHEN OR BATH AND ALL

THIS, EVEN IF IT COULD HAVE BEEN APPROVED IN THAT WAY DIDN'T SEEM, WASN'T WHAT THEY WANTED.

IT DOESN'T SEEM APPROPRIATE IN THIS CASE.

>> Vice Chair Gaffney: THANK YOU, ARE THERE ANY OTHER
COMMISSIONERS WHO HAVE ANY QUESTIONS? OR SHOULD WE GO TO THE PUBLIC NOW?
OKAY, YOU ARE ALL GOOD YOU CAN SIT DOWN.

WE WILL GO TO PUBLIC COMMENT NOW.

WE HAVE THREE SPEAKER CARDS.

ALSO, IF THERE IS ANYONE ONLINE, RAISE YOUR HAND NOW AND I WILL CALL ON YOU AFTER WE HEAR FROM EVERYONE IN PERSON.

SO THE FIRST PERSON I WILL CALL ON IS REBECCA GIBBERT.

COME ON UP TO THE PODIUM.

I DON'T SEE ANY ONLINE.

IF YOU ARE ON LINE PLEASE RAISE YOUR HAND NOW SO I CAN GET A SENSE OF HOW MANY PEOPLE ARE HERE.

I'M NOT SEEING ANY, SO I WILL STICK TO, YOU HAVE TWO MINUTES. >> THANK YOU.

THANK YOU, ZAB FOR MEETING TONIGHT.

I DON'T KNOW -- I JUST NEED TO BE CLOSER OKAY.

THANK YOU FOR LISTENING TO MY REMARKS.

I'M REBECCA GEBHARDT, I LIVE AT 1814 PARKER STREET, ONE PROPERTY WEST OF THE CARLETON PROPERTY BUT ON THE NEXT STREET OVER.

AND I'VE OWNED THAT PROPERTY SINCE 2005 AND I'VE ENJOYED IMPROVING IT, RAISED SIX KIDS THERE, THEY ALL LAUNCHED.

I LIVE IN THE UPPER UNIT, IT'S A DUPLEX, WITH MY HUSBAND AND MY MOTHER-IN-LAW LIVES IN THE LOWER UNIT.

I'M HERE TO OPPOSE THE CARLETON STREET REQUEST FOR A VARIANCE.

AND I SUPPORT THE STAFF RECOMMENDATION TO DENY THE VARIANCE.

THE REASON THAT I'M NOT SUPPORTIVE, THERE ARE A COUPLE.

FIRST THE PROPERTY IS ALREADY SIGNIFICANTLY DENSER THAN THE NEIGHBORHOOD.

THAN THE SURROUNDING NEIGHBORHOOD.

AS YOU HEARD THREE TWO-STORY HOUSES WERE BUILT ON THAT LOT WHICH FORMERLY HAD A SINGLE FAMILY DWELLING AND ACCESSORY STRUCTURE.

I GENERALLY SUPPORT INCREASED DENSITY IN BERKELEY, BUT

INCREASING THE DENSITY OF THIS PARTICULAR LOT EVEN FURTHER BY GOING UP JUST FEELS PRETTY EXTREME.

IN PARTICULAR, I FEEL LIKE WE ARE ALREADY IMPACTED BECAUSE THESE

HOUSES ARE MUCH CLOSER THAN THE OTHER HOUSES WERE TO US, AND ARE HIGHER.

AND THERE'S A BIG BLOCK OF THEM, BECAUSE EVERYTHING IS TWO

STORY, THE NEW HEIGHT UNIT, IF APPROVED WOULD TOWER OVER THE SURROUNDING HOUSES AND YARDS.

AND FOR ME, SINCE I'M ON THE UPPER FLOOR WITH MY HUSBAND, THERE'S KIND OF A PRIVACY CONSIDERATION.

THE EXPERIENCE OF OUR KIND OF LIVING IN THAT HOUSE AND LOOKING AND LIVING ON THAT SIDE OF THE HOUSE WILL SIGNIFICANTLY CHANGE.

OUR LIGHT WILL CHANGE, AND OUR PRIVACY WILL CHANGE.

SO I JUST WANTED TO -- I DIDN'T SIGN AND I'M NOT SUPPORTIVE.

SO THANK YOU.

>> Vice Chair Gaffney: WONDERFUL.

THANK YOU SO MUCH.

ALL RIGHT, WE ARE GOING TO GO TO OUR NEXT SPEAKER.

SINLEA BROADERSON.
>> I'M A NEIGHBOR ON CARLETON.

I'M CYNTHIA BROADERTON, I'VE LIVED THERE 33 YEARS.

I'VE SEEN OUR NEIGHBORHOOD CHANGE.

WHEN I MOVED THERE IT WAS REALLY DIVERSE.

AND NOW IT'S PRETTY MUCH NON-DIVERSE AND I WAS DELIGHTED TO SEE A FAMILY OF COLOR MOVE IN TO THE STRUCTURE.

I WAS ORIGINALLY AGAINST THE BUILDING BECAUSE I DIDN'T LIKE THE PARKING, BUT THE PARKING HAS TURNED OUT TO BE FINE.

I LOVE THE FAMILY, THEY HAVE BEEN A WONDERFUL ADDITION TO OUR NEIGHBORHOOD.

I SEE JAMIE, THE MOM, WORKING BEHIND A SCREEN BECAUSE THERE'S NOT ENOUGH ROOM FOR A REGULAR OFFICE.

AND THEY NEED MORE ROOM.

THEY HAVE THREE KIDS THAT ARE GROWING.

I WOULD LOVE TO SEE THEM GROW UP.

I WOULD LOVE TO SEE THEM STAY IN THE NEIGHBORHOOD AND GROW UP.

I'M SURPRISED BY THE LAST PERSON BECAUSE SHE'S ON PARKER AND

THEY ARE TALKING ABOUT THE FRONT OF THE HOUSE HAVING THE ADDITION.

I WOULD BE SURPRISED THAT WOULD IMPACT SOMEONE FROM PARKER STREET.

I ALSO WANTED TO SAY IT WAS ORIGINALLY TWO LOTS THAT LEN HOLD,

MY NEIGHBOR BEFORE THIS WAS BUILT, IT WAS ORIGINALLY TWO LOTS

AND ONE OF THE HOUSES BURNED SO THERE WAS ONLY ONE HOUSE LEFT ON

A TWO-LOT CONFIGURATION BEFORE IT WAS TURNED INTO WHAT IT IS NOW, THE ONE LOT THAT IT IS NOW.

ANYWAY, I AM FOR THE ADDITION.

THANK YOU.
>> Vice Chair Gaffney: WONDERFUL.

THANK YOU SO MUCH.

SO FAR IT LOOKS LIKE WE ONLY HAVE ONE MORE SPEAKER IN PERSON.

THAT'S ANNA COSBY.

COME ON UP HERE.

YOU ARE READY.

IT LOOKS LIKE WE DID JUST GET AN ATTENDEE ONLINE, I WILL COME TO YOU NEXT.

REMEMBER IF YOU ARE ON LINE AND WOULD LIKE TO SPEAK, NOW IS THE TIME TO RAISE YOUR HAND.

ANNA, GO FOR IT.
>> MY NAME IS ANNA COSBY, I LIVE AT 1818 PARKER STREET.

I HAVE BASICALLY LIVED IN BERKELEY ALL MY LIFE.

SO THEIR HOUSE IS KITTY CORNER TO WHERE I LIVE ON PARKER.

I REMEMBER WHEN THE LOT BEHIND ME WAS JUST ONE HOUSE.

SO IF YOU APPROVE THEM BUILDING THIS EXTRA FLOOR, I'M ALREADY LOOKING IN THEIR BACKYARD, LOOKING STRAIGHT.

I DON'T WANT TO SEE ALL OF THAT.

SO I WOULD APPRECIATE IF, IT'S JUST THE LOT IN ITSELF, YOU'VE GOT THREE HOUSES THERE WHEN BEFORE IT WAS JUST ONE.

SO FOR ME, I WOULD PREFER THAT YOU DENY THIS BECAUSE IT'S ALREADY TOO MUCH IN THAT LOT ALREADY.

AND SO BY YOU ADDING AN ADDITIONAL FLOOR ON TOP, IT'S GOING TO BE HIGHER THAN ANYTHING ON PARKER AS WELL AS ON CARLETON STREET.

SO IT JUST DOESN'T MAKE ANY SENSE TO ME.

THANK YOU.
>> Vice Chair Gaffney: WONDERFUL.

THANK YOU SO MUCH.

ALL RIGHT, THOSE ARE ALL OF OUR GREEN CARDS FOR IN-PERSON.

I WILL MOVE TO ONLINE NOW.

WE HAVE ONE HAND, SHANA, I WILL ALLOW YOU TO TALK NOW.
>> CAN YOU HEAR ME NOW?
>> Vice Chair Gaffney: I CAN, YOU HAVE TWO MINUTES.
>> GREAT, I'M SHANA, I LIVE DIRECTLY ACROSS THE STREET FROM 1817 CARLETON.

THIS PROJECT WOULD HAVE NO IMPACT ON US.

EVEN THOUGH IT'S DIRECTLY ACROSS THE STREET FROM OUR HOUSE, I SIT AND WORK IN AN UPSTAIRS OFFICE, BUT THERE'S A HUGE TREE.

SO I WOULDN'T EVEN SEE, EVEN IF IT WERE THREE STORIES I WOULDN'T EVEN SEE.

SO I THINK SPEAKING ONLY FROM OUR EXPERIENCE I THINK IT WOULD BE A FINE PROJECT FOR CARLETON STREET.

AND YOU KNOW WE LOVE HAVING JAMIE AND TEFA AS NEIGHBORS, IF THIS HELPS THEM STAY IN THE NEIGHBORHOOD THAT WORKS FOR US.

THAT'S KIND OF IT FOR MY COMMENT.
>> Vice Chair Gaffney: WONDERFUL.

THANK YOU SO MUCH.

ALL RIGHT, WELL IT LOOKS LIKE THAT WAS OUR ONLY HAND.

SO IF THAT IS THE CASE, I AM READY TO VOTE TO CLOSE THE PUBLIC HEARING.

WE COULD TAKE A VOICE VOTE FOR THAT.
>> Clerk: OKAY, I THINK TECHNICALLY CHAIR GAFFNEY DOES THIS. >> Vice Chair Gaffney: IF ANYONE OPPOSES -- ANYONE IN FAVOR TO CLOSE THE PUBLIC HEARING, SAY AYE?
ANYONE OPPOSED SAY NAY.

ALL RIGHT, THE PUBLIC HEARING IS OFFICIALLY CLOSED.

THANK YOU FOR THAT.

ALL RIGHT.

NOW WE WILL GO TO COMMISSIONER COMMENTS.

ANYONE WOULD LIKE TO GO FIRST?
GO AHEAD.

>> D. Sanderson: I WANTED TO SAY THAT THE ISSUE TONIGHT IS ABOUT THE VARIANCE, NOT ABOUT THE PROJECT.

THE PROJECT IS A WONDERFUL PROJECT AND CLEARLY THE FAMILY NEEDS MORE SPACE.

BUT VARIANCES ARE VERY HARD TO GET APPROVED IN THE CITY OF BERKELEY.

RARELY DO WE APPROVE VARIANCES.

IT'S PARTLY BECAUSE IT HAS TO BE SOME VERY SPECIAL CIRCUMSTANCE THAT YOU DON'T FIND EVERYWHERE ELSE IN THE CITY.

TO VOTE THE VARIANCE DOWN HAS NO BEARING, IT SHOWS NOTHING ABOUT WHAT WE THINK ABOUT THE PROJECT.

IT'S ENTIRELY SEPARATE.

SO I JUST WANTED YOU TO UNDERSTAND THAT IF IT'S A GOOD PROJECT

JUST SIT AND WAIT AND SEE WHAT MIDDLE HOUSING WILL DO AND YOU

MAY HAVE AN OPPORTUNITY TO COME BACK AT A LATER TIME WHEN THE ZONING ORDINANCE HAS CHANGED.

BUT UNDER THE CURRENT ZONING ORDINANCE, IN ORDER TO WAIVE THE

TWO STANDARDS YOU NEED WAIVED, THE ONLY WAY TO DO THAT IS BY

APPROVING A VARIANCE AND UNFORTUNATELY, IN MY OPINION, YOU DON'T MEET THE REQUIREMENTS, THE FINDINGS FOR A VARIANCE.

BUT PLEASE DON'T THINK IT'S ANY -- I MEAN I APPRECIATE THE NEIGHBORS COMING OUT.

BUT THIS IS ABOUT THE VARIANCE, NOT ABOUT THE PROJECT PROPER.

SO THANK YOU.

>> Vice Chair Gaffney: THANK YOU, COMMISSIONER SANDERSON.

COMMISSIONER O'KEEFE?
>> S. O'Keefe: YEAH, I WILL BRIEFLY SECOND COMMISSIONER SANDERSON'S COMMENTS.

THEY ARE LAUGHING BECAUSE I'M KIND OF KNOWN AS THE ANTI-VARIANCE CRUSADER, SO YOU KNEW I WAS GOING TO SAY SOMETHING.

YOU SAID IT VERY WELL.

I WILL SAY IT BRIEFLY, THE PROJECT SEEMS GREAT, YOUR FAMILY IS LOVELY, I WISH YOU ALL THE BEST.

BUT I PERSONALLY ONLY VOTED YES ON ONE VARIANCE ON THE BOARD, IT WAS ONE THAT MET THIS VERY HIGH REQUIREMENTS.

THAT'S ALSO WHY I'M GOING TO VOTE NO ON THIS, THAT'S WHY.

I DO HOPE YOU FIGURE OUT YOUR SITUATION OR GET IT BUILT UNDER UPCOMING LAWS THAT HOPEFULLY PASS SOON.

WISH YOU THE BEST BUT I'M GOING TO VOTE NO.
>> Vice Chair Gaffney: SORRY, ANY OTHER COMMISSIONERS WANT TO SPEAK ON THIS?
COMMISSIONER YUNG?
>> B. Yung: YEAH, NOT TO ADD TOO MUCH TO THE CHORUS, I JUST WANT TO PROVIDE SOME CONTEXT WHY WE ARE HEADED IN THIS DIRECTION.

IN THE BEGINNING, THE EARTH WAS MADE.

AS TO HOW THAT HAPPENED I WILL LEAVE THAT UP TO THE LISTENERS

DECISION MAKING AND THEN THE ARTICLES OF CONFEDERATION OCCURS,

THE UNITED STATES, A BUNCH OF STATES INDEPENDENT NATIONS DECIDED

TO GET TOGETHER AND DRAFT A BUNCH OF RULES THAT OTHERWISE, IF

YOU KNOW, THESE RULES WERE SILENT STATES WERE GIVEN WHAT ARE CALLED RESERVED POWERS. IN CALIFORNIA, THIS MEANS ANYTHING NOT

EXPRESSLY STATED, THE STATE DELEGATES ALL POWERS, EXPRESSLY LAND USE AUTHORITY TO CITIES AND COUNTIES.

WE, THE CITY AND COUNTY THE MAIN THING THEY DO WITH THAT IS ZONING.

THOSE ARE THE RULE THAT'S DETERMINE WHAT YOU CAN AND CAN NOT DO.

IN THIS CASE THEY SAID THOU SHALT BE ZONED R-2 AND THOU SHALT FOLLOW THOSE RULES.

WE ARE A QUASI JUDICIAL BODY, WE HAVE TO MAKE FINDINGS CONTAINED

IN OUR CODE THAT REFLECT THE ZONING CODE ESTABLISHED BY THE LEGISLATIVE DECISION MAKING OF OUR CITY COUNCIL.

SO THOSE ARE THE CONSTRAINTS UNDER WHICH WE OPERATE.

IT REALLY MAKES ME FEEL BAD TO RULE IN A DIRECTION THAT DOESN'T

ALLOW SOMEONE TO DO WHAT THEY WANT AND EXPAND AND MAKE THEIR HOUSING MORE FAMILY-FRIENDLY.

THESE ARE THE CONSTRAINTS WHICH WE OPERATE IN.

I HOPE THAT MADE A LITTLE BIT MORE SENSE.

SO THANK YOU.
>> Vice Chair Gaffney: COMMISSIONER O'KEEFE?
>> S. O'Keefe: I WANT TO ADD ONE MORE THING, WHICH IS, THIS IS THE REASON I'M SO ANTI-VARIANCE.

AS HE MENTIONED, WE ARE QUASI JUDICIAL, SO IF WE DID APPROVE

THIS, WE WOULD BE OPENING THE DOOR FOR ANYONE ELSE WITH A REALLY

GREAT STORY AND A REALLY COMPELLING PROJECT TO ALSO DEMAND AN EXCEPTION TO THE LAW.

WE CAN'T HAVE THAT.

WE ARE HOLDING ON TO THE RULE OF LAW HERE.

AND THAT'S THE SPIRIT AT LEAST WITH WHICH I WILL BE VOTING. >> Vice Chair Gaffney: ALL RIGHT, THANK, ALL COMMISSIONERS. AND YES I COMPLETELY AGREE WITH EVERYONE AND EVERYTHING STATED.

YOUR FAMILY IS LOVELY AND WE ARE HAPPY TO HAVE YOU HERE AND WE

HOPE IN THE FUTURE YOU ARE ABLE, NOT HAVE TO COME BACK FOR THIS, BUT YOU KNOW, IT'S NOT -- JUST A VARIANCE THING.

IS THERE ANY MOTIONS TO ENTERTAIN?
COMMISSIONER?
>> C. Kahn: I WOULD JUST LIKE TO ADD MY COMMENTS THAT THE PLEA

ON THE PART OF THE FAMILY SOMETHING WITH MY FELLOW COMMISSIONERS I FEEL, I'M A FAMILY PERSON MYSELF.

AND I APPRECIATE YOUR NEED TO PROVIDE FOR YOUR FAMILY.

I THINK BRANDON'S IDEA OF AN A.D.U. MIGHT BE A WAY OUT FOR YOU.

BUT I HAVE TO AGREE, AND I WANT TO SAY, UNLIKE MY FELLOW

COMMISSIONER SHOSHANA HERE, I VOTED FOR EVERY VARIANCE UNTIL TONIGHT.

AND THAT'S BECAUSE THE FINDINGS AREN'T THERE.

AND WE ARE A JUDICIAL, NOT A LEGISLATIVE BODY.

I FEEL IF WE WERE TO VOTE FOR THIS TONIGHT, WE WOULD BE ESSENTIALLY BE TAKING THE POWERS OF THE COUNCIL AWAY FROM THEM.

WE WOULD BE SAYING R-2 NOW CAN BE TALLER.

SO I WILL HAVE TO VOTE AGAINST IT.

AND I APOLOGIZE.

JOHN HAS DONE A GREAT JOB DESIGNING A BEAUTIFUL HOME FOR YOU, THE ORIGINAL HOME.

AND HIS REMARKABLE ABILITIES AS A DESIGNER HE HAS ACTUALLY DESIGNED A LOT OF HOUSE ON A RELATIVELY SMALL LOT.

HOPEFULLY MAYBE WITH THE A.D.U. YOU WILL HAVE A WAY TO DO SOMETHING THAT IS CONSISTENT WITH THE STATE AND MUNICIPAL CODE.

AND THAT'S WHAT I WOULD RECOMMEND AS A POSSIBLE OPTION FOR YOU.

I THINK BRANDON'S IDEA IS A VERY GOOD IDEA BUT I WILL HAVE TO VOTE AGAINST THIS TONIGHT AND I'M VERY SORRY TO SAY THAT.

THANK YOU.
>> Vice Chair Gaffney: WOULD ANYONE LIKE TO MAKE A MOTION ONE WAY?
>> C. Kahn: I'LL MAKE A MOTION TO NOT APPROVE THE VARIANCE APPLICATION.
>> D. Sanderson: SECOND.

I SECOND THAT.

WHICH IS BASICALLY APPROVING THE STAFF RECOMMENDATION.
>> C. Kahn: I MOVE TO APPROVE THE STAFF RECOMMENDATION TO DENY THE VARIANCE, YES.

>> Vice Chair Gaffney: THANK YOU FOR THE CLARITY ON A CONFUSING SITUATION.

NOW WE CAN TAKE A ROLL CALL VOTE.
>> Clerk: THANK YOU, I HAVE A MOTION FROM COMMISSIONER KAHN AND

SECOND FROM COMMISSIONER SANDERSON ON VARIANCE APPLICATION CP 2023 0168 TO DENY THE PROJECT, AS RECOMMENDED BY STAFF.

WHEN I CALL YOUR NAME PLEASE STATE YOUR VOTE.
>> CHAIRPERSON GAFFNEY?
>> Vice Chair Gaffney: YES.
>> COMMISSIONER SANDERSON?
>> D. Sanderson: YES.
>> COMMISSIONER YUNG?
>> B. Yung: YES.
>> COMMISSIONER KAHN?
>> C. Kahn: YES.
>> COMMISSIONER O'KEEFE?
>> S. O'Keefe: YES.
>> AND COMMISSIONER/ALSO CHAIRPERSON DUFFY?
>> Chair Duffy: YES.
>> Vice Chair Gaffney: ALL RIGHT.

THANK YOU.

IS THIS APPEALABLE TO COUNCIL?
>> Clerk: IT IS.
>> Vice Chair Gaffney: IT IS.

IT'S APPEALABLE TO COUNCIL.

AND YES, WE ARE SORRY IT IS NOT A FAVORABLE OUTCOME.

THANK YOU, COMMISSIONERS. I ALWAYS APPRECIATE HOW THOROUGH EVERYONE IS AND IT'S GREAT SERVING WITH YOU ALL.

AND THANK YOU FOR ALL YOUR PATIENCE FOR EVERYONE ON TENTH STREET.
>> Clerk: THANK YOU, CHAIR GAFFNEY.

COMMISSIONER KAHN WILL NOW BE HEADED OUT.

HE IS RECUSING HIMSELF.

ALL RIGHT, WELL FOR TENTH STREET, WE ARE GOING TO START WITH A STAFF PRESENTATION PER USUAL.
>> Vice Chair Gaffney: ALL RIGHT, LOOKS LIKE WE HAVE NILU ON HERE.
>> CAN YOU SEE MY SCREEN?
>> Vice Chair Gaffney: WE CAN, YES.
>> NILU KARIMZADEGAN: THE PROJECT BEFORE YOU IS AT 2600 TENTH STREET.

THIS IS AN APPEAL OF THE ZONING OFFICER'S DECISION TO APPROVE AN ADMINISTRATIVE USE PERMIT, ZP 2023-0031, TO CHANGE THE USE OF THREE TENANT SPACES, TOTAL OF 9,750 SQUARE FEET, FROM MEDIA

PRODUCTION TO RESEARCH AND DEVELOPMENT RESULTING IN A TOTAL OF 29,745 SQUARE FEET OF RESEARCH AND DEVELOPMENT SPACE IN A SEVEN- STORY BUILDING.

ZONING PERMITS REQUIRED ADMINISTRATIVE USE PERMIT PURSUANT TO BERKELEY MUNICIPAL CODE SECTION 23.206.020.

AND A.U.P. TO CONSTRUCT NINE SPACES. THE PROJECT IS LOCATED,

IT'S TAKING OVER A WHOLE BLOCK THAT IS LOCATED BETWEEN PARKER AND CARLETON STREETS AND NINTH AND TENTH STREETS.

IT'S LOCATED WITHIN THE MIXED USE LIGHT INDUSTRIAL DISTRICT OR ALSO KNOWN A MU-LI.

AS YOU CAN SEE IN THE FLOOR PLAN, THE PROPOSED AREA ATTACHED AND ON THE FIRST FLOOR IT INCLUDES UNITS 105 AND 106.

AND THE SECOND FLOOR IT INCLUDES UNIT 2Z 01.

THE BLUE AREA IS PREVIOUSLY CONVERTED TO RESEARCH AND

DEVELOPMENT ON, UNDER A ZONING CERTIFICATE WHICH IS OVER A BY- RIGHT TYPE OF PERMIT.

I'M GOING TO PROVIDE SOME BACKGROUND ON THE HISTORY OF THE A.U.P. AND THE APPEAL LETTER POINTS.

ZONING OFFICER DECISION TO APPROVE THE A.U.P. WAS BASED ON

ANALYSIS AND DETERMINATION THAT THE PROPOSED CHANGE USE FROM

MEDIA PRODUCTION TO RESEARCH AND DEVELOPMENT CONFORMS TO THE

APPLICABLE PROVISIONS IN THE ZONING ORDINANCE, AND THE PROPOSED

RESEARCH AND DEVELOPMENT USE IS CONSISTENT WITH THE PURPOSE OF

THE DISTRICT, COMPLIES WITH THE WEST BERKELEY PLAN AND IS COMPATIBLE WITH THE SURROUNDING DEVELOPMENT.

WE RECEIVED AN APPEAL LETTER IN DECEMBER 2023.

THAT INCLUDED SIX POINTS.

THOSE POINTS ARE THE FOLLOWING:

ONE, THE EXISTING USE IS ARTS/CRAFTS STUDIO WHICH IS A PROTECTED NON-INDUSTRIAL USE.

TWO, A PREVIOUS STAFF REPORT HAS CALLED THE EXISTING MEDIA PRODUCTION USE A PROTECTED USE.

THREE, THIS CHANGE OF USE WOULD BE DETRIMENTAL TO THE GENERAL WELFARE OF THOSE WORKING AT 2600 TENTH STREET.

FOUR, THE CHANGE OF USE DOES NOT BETTER SERVE THE PURPOSES OF THE DISTRICT.

FIVE, THE CHANGE OF USE IS NOT CONSISTENT WITH TWO OF THE MU-LI

DISTRICT PURPOSES AND SIX, THE PROPOSED PROJECT DOESN'T ABIDE BY THE WEST BERKELEY PLAN FOR THE PROTECTED ART USERS.

I HAVE PROVIDED DEFINITION FOR MEDIA PRODUCTION AND ARTS/CRAFTS STUDIO AND PROTECTED USES HERE.

IT'S LONG AND WORDY, I WON'T REPEAT IT UNLESS SOMEONE WANTS ME TO REPEAT IT.

HOWEVER, THE SUMMARY OF THESE DEFINITIONS AND HOW THEY ARE

DIFFERENT IS THAT ARTS AND CRAFTS STUDIO IS COMMONLY

DIFFERENTIATED FROM MEDIA PRODUCTION BY SCALE AND PURPOSES OF

THE ESTABLISHMENT UNDERSTOOD TO ENCOMPASS STUDIO SPACES FOR ART

PRODUCTION AND PERFORMING ART INSTRUCTIONS, REHEARSAL STUDIOS,

THEATER SPACES, MEDIA PRODUCTION USED BY CONTRAST ARE COMMERCIAL

ARTS AND CRAFT, ARTS RELATED BUSINESS SERVICES INVOLVING VARIOUS MEDIA TYPES.

THE POINT ABOUT THE PROTECTED USES I WANT TO HIGHLIGHT HERE IS

ARTS AND CRAFTS STUDIOS CLASSIFIEDS A PROTECTED NON-INDUSTRIAL

USE IN THIS DISTRICT ONLY IF IT WAS LEGALLY ESTABLISHED AS OF JULY 6, 1989 AND IT EXISTS AS A SINGLE STAND-ALONE USE OR COMBINED WITH RESIDENTIAL USE IN A LIVE/WORK UNIT.

I HAVE PROVIDED FULL ANALYSIS, EVIDENCE AND CONCLUSIONS FOR ALL THE APPEAL POINTS IN THE STAFF REPORT.

AND I'M GOING TO GO OVER A SUMMARY OF THE POINTS.

APPEAL POINT #1: THE DESIGNATION OF THE EXISTING USE AS MEDIA

PRODUCTION IS INCORRECT AND THIS USE MUST BE TREATED AS ARTS AND

CRAFT STUDIO SUBJECT TO THE PROVISIONS FOR PROTECTED NON- INDUSTRIAL USE IN THE MU-LI DISTRICT.

STAFF EVALUATED THE PERMIT HISTORY AND DETERMINED AS OF JULY 6, 1989 WAS MEDIA USES WHICH IS NOT A PROTECTED MEDIA USE.

EVEN IF THE USE WERE CONSIDERED ARTS AND CRAFTS STUDIO IT WOULD

STILL NOT BE A PROTECTED NON-INDUSTRIAL USE BECAUSE IT WAS NOT ESTABLISHED AS OF JULY 6, 1989 AND IT HAS NOT BEEN A SINGLE STAND-ALONE USE.

POINT #2: THE 2008 STAFF REPORT CONSIDERS MEDIA PRODUCTION AS A PROTECTED USE.

WHEREAS THE MOST RECENT A.U.P., THE A.U.P. IN FRONT OF YOU, DESCRIBES THE SAME USE AS A NON-PROTECTED INDUSTRIAL USE.

BASED ON THE STAFF RESEARCH AND ANALYSIS, THE EXISTING USE IS

STILL BEST IDENTIFIED AS MEDIA PRODUCTION AND NOT CONSIDERED A PROTECTED NON-INDUSTRIAL USE BY THE CODE.

AND THE REFERENCE IN 2008 VARIANCE STAFF REPORT WAS MADE IN

ERROR AND CANNOT SUPERSEDE THE APPLICABLE REQUIREMENTS AND DEFINITIONS PRESENT IN THE ZONING ORDINANCE TITLE 23 AND

REQUIRED FINDINGS ARE MADE BASED ON THE CIRCUMSTANCES AT THE TIME A DECISION IS MADE ON AN APPLICATION.

APPEAL POINT #3: THE PROPOSED PROJECT WOULD BE DETRIMENTAL TO THE GENERAL WELFARE OF THOSE WORKING AT 2600 TENTH STREET

BECAUSE THE CONVERSION OF MEDIA PRODUCTION TO RESEARCH AND

DEVELOPMENT DIMINISHES THE ABILITY FOR ARTISTS TO COLLABORATE ON PROJECTS AND LIMITS THEIR CONTRIBUTION TO CITY.

THE PROPOSED PROJECT INCLUDES A CHANGE OF USE FROM MEDIA

PRODUCTION TO RESEARCH AND DEVELOPMENT WITHIN AN EXISTING

BUILDING IN THE MU-LI DISTRICT WHERE LIGHT USE INDUSTRIAL USE IS ALLOWED.

RESEARCH AND DEVELOPMENT IS ALLOWED IN THIS DISTRICT AND THE

PROPOSED PROJECT CONFORMS TO THE APPLICABLE DEVELOPMENT STANDARD.

APPEAL POINT #4, THE CHANGE OF USE DOES NOT BETTER SERVE THE

PURPOSES OF THE DISTRICT AS REQUIRED BY THE TENANT SPACE RECONFIGURATION SECTION.

STAFF DIDN'T MAKE ANALYSIS FOR THIS APPEAL POINT BECAUSE THE

FINDING REFERENCED IN THE APPEAL LETTER ARE IN REGARDS TO THE TENANT SPACE RECONFIGURATION.

SO IT DOESN'T APPLY TO THE CHANGE OF USE.

APPEAL POINT #5, THE CHANGE OF USE IS NOT CONSISTENT WITH THE FOLLOWING 2 MU-LI DISTRICT PURPOSES.

I'M GOING TO READ THOSE.

ENCOURAGE DEVELOPMENT OF A MIXED USE LIGHT INDUSTRIAL AREA FOR A

RANGE OF COMPATIBLE USES AND THE SECOND ONE ENCOURAGE THE

CREATION AND CONTINUATION OF WELL-PAID JOBS WHICH DO NOT REQUIRE ADVANCED DEGREES. APPELLANTS BELIEVE THERE'S PLENTY OF SPACE

ALREADY DEDICATE TODAY RESEARCH AND DEVELOPMENT IN BERKELEY

WHILE THERE'S NOT ENOUGH FOR ARTISTS AND FILMMAKERS AND MOST RESEARCH AND DEVELOPMENT JOBS REQUIRE ADVANCED DEGREES. IN WHICH

STAFF RESPONDS TO BY SAYING THAT RESEARCH AND DEVELOPMENT IS

CLASSIFIED AS AN INDUSTRIAL AND HEAVY COMMERCIAL USE AND IT IS

COMPATIBLE WITH A RANGE OF USE THAT'S ARE ALLOWED WITHIN THE DISTRICT.

IT WOULD ALLOW A VARIETY OF RESEARCH AND DEVELOPMENT TENANTS.

THEY MUST BASE THEIR DECISION ON THE REQUIRED FINDINGS AND CONSIDER THE PROPOSED LAND USE IN THEIR DECISIONS.

THEY MAY NOT DENY OR APPROVE A PROJECT BASED ON SPECULATION,

UNSUBSTANTIATED OPINIONS OR THE LEVEL OF SUPPORT OR OPPOSITION

OF VARIOUS PARTIES REGARDING POTENTIAL ECONOMIC AND SOCIAL IMPACTS.

OH, SORRY.

AND APPEAL POINT #6, THE PROPOSED PROJECT DOESN'T ABIDE BY THE

WEST BERKELEY PLANS GOALS AND POLICIES FOR THE PROTECTED ARTS USES AND IN PARTICULAR, GOAL #7, FOR ECONOMIC DEVELOPMENT AND

WEST BERKELEY PLAN APPENDICES, APPENDIX B CULTURAL RESOURCES OF WEST BERKELEY ARE NOT SUPPORTED FY THE PROPOSED PROJECT.

THE EXISTING USE IS MEDIA PRODUCTION AND ANY CURRENT ARTS CRAFT

STUDIO WOULD NOT MEET THE CRITERIA FOR A PROTECTED NON
INDWRAUFLT USE.

THE PROPOSED PROJECT WHICH IS A LIGHT INDUSTRIAL MANUFACTURING

USE WOULD NOT BE COUNTER TO THE GOAL POLICY OR IMPLEMENTATION STRATEGY RAISED IN THE APPEAL.

DID I GO OVER ALL OF THE -- YES, SORRY.

SO RECOMMENDATION IS BECAUSE THIS PROJECT IS CONSISTENT WITH THE

ZONING ORDINANCE AND GENERAL PLAN, AND WOULD HAVE MINIMAL IMPACT

ON SURROUNDING PROPERTIES, STAFF RECOMMENDS THAT THE ZONING

ADJUSTMENTS BOARD UPHOLD THE ZONING OFFICER DECISION AND APPROVE THE A.U.P. PER FINDINGS AND CONDITIONS.

THANK YOU.
>> Vice Chair Gaffney: ALL RIGHT.

WONDERFUL.

THANK YOU SO MUCH.

NOW WE WILL GO TO THE APPELLANT.

THE APPELLANT WILL HAVE FIVE MINUTES. OH, SORRY, COMMISSIONER QUESTIONS, THANK YOU SO MUCH, STAFF.

YES?
COMMISSIONER SANDERSON?
>> D. Sanderson: CAN YOU TELL ME WHO OCCUPIES THESE THREE UNITS NOW?
ARE THEY VACANT?
>> NILU KARIMZADEGAN: THIS IS A GOOD QUESTION FOR THE APPLICANT.

I BELIEVE THEY WERE, BUT I WANT TO CONFIRM IT.
>> D. Sanderson: OKAY, THANK YOU.
>> Vice Chair Gaffney: COMMISSIONER QULUNG?
-- YUNG?
>> B. Yung: SO THE ITEM BEFORE US NOW IS AN APPEAL.

SO I WANTED TO ASK, WE ARE MAKING A DECISION BASED ON THE

CIRCUMSTANCES OF THE ORIGINAL ZONING -- THIS IS A BY-RIGHT DECISION?
>> NILU KARIMZADEGAN: SORRY IF WHAT I SAID WAS CONFUSING, THIS IS AN APPEAL OF THE A.U.P. WHICH WAS APPROVED BY THE ZONING OFFICER.

I JUST EXPLAINED THAT PRIOR TO THIS A.U.P., THERE WAS CONVERSION

OF MEDIA PRODUCTION TO RESEARCH AND DEVELOPMENT UNDER A SEPARATE BY-RIGHT ZONING CERTIFICATE.

THAT HAPPENED BACK IN 2022.

THE BLUE AREA ON PLANS, THAT'S THE AREA.
>> I CAN ALSO HELP TO MAYBE CLARIFY TOO.

WITHIN THE MU-LI, THE RESEARCH AND DEVELOPMENT, THE A.U.P.

STANDARD IS A SIZE THRESHOLD.

SO ONCE YOU CROSS 20,000 SQUARE FEET OF RESEARCH AND DEVELOPMENT IT REQUIRES AN A.U.P., WHICH IS WHY THE PREVIOUS APPROVAL WAS JUST UNDER 20,000 -- 19,000 SOMETHING.

SO THIS 9700 SQUARE FOOT ADDITION PUTS IT OVER THE 20,000 SQUARE

FOOT THRESHOLD WHICH IS WHY IT NEEDED THE A DISCRETIONARY APPROVAL.
>> B. Yung: SO THIS APPEAL IS FOR THE A.U.P. WHICH WAS
ORIGINALLY GRANTED BY THE ZONING OFFICER?
OH, OKAY.

THANK YOU.

ACTUALLY, JUST TO CLARIFY, WAS THE DECISION MADE BY THE ZONING OFFICER ALSO A JUDICIAL ACT?
>> THE ZONING OFFICER DECISION IS A DISCRETIONARY DECISION.

SO ADMINISTRATIVE USE PERMITS, THE ZONING OFFICERS, THE REVIEW AUTHORITY.

AND THEN FOR USE PERMITS, THE REVIEW AUTHORITY IS ZAB AND THEN ZAB REVIEWS APPEALS OF THE ZONING OFFICER DECISIONS.
>> Vice Chair Gaffney: THANK YOU.

GOOD QUESTIONS.

ANY OTHER QUESTIONS FOR STAFF BEFORE WE MOVE ON?

OKAY.
>> Chair Duffy: I HAVE A QUESTION BECAUSE THIS IS VERY, I

REMEMBER THIS LAST TIME WHEN IT CAME BEFORE US A LITTLE BIT DIFFERENTLY.

THERE'S NOT ONLY HISTORY BUT SPLITTING HAIRS AROUND DEFINITIONS AND CLARITY REQUIRED.

I HAD A QUESTION, THESE DEFINITIONS REALLY MATTER.

THEY WERE IN THE DEFINITION AND ON THE SCREEN BUT THEY WEREN'T READ AND I'VE READ THEM.

HAVE THOSE DEFINITIONS CHANGED SINCE -- WELL, WHEN IS THE LAST TIME, WAS IT 1999 THESE DEFINITIONS WERE BAKED INTO THE WEST BERKELEY PLAN?
IS THAT WHAT IT IS?
I HAVE JUST A QUESTION.

I SEE IT NOW.
>> Vice Chair Gaffney: DO YOU HAVE AN ANSWER, FEEL FREE? >> NO, THEY IMPLEMENT THE WEST BERKELEY PLAN.

SO IT WAS AFTER 1999, I STARTED WITH THE CITY IN 2023 AND WAS

PART OF THE EFFORT TO TRY TO COME TO SOME AGREEMENT ON WHAT THESE DEFINITIONS ARE.

SO THESE DEFINITIONS WERE WORKED OUT AFTER MANY HOURS OF CONVERSATIONS WITH WEBAIC AND OTHER INTERESTED PARTIES.

THE EFFORT MADE IN THE ZONING ORDINANCE TO COMPLY WITH THE WEST BERKELEY PLAN.

AND, AT THE TIME, YOU KNOW, WE, THIS WAS KIND OF A MEDIATED OUTCOME.

SO MY UNDERSTANDING AT THE TIME WAS WITH THIS LANGUAGE, EVERYONE WAS HAPPY WITH THESE DEFINITIONS.

SO YOU KNOW, OPINIONS MAY CHANGE OVER TIME.

BUT AT THE TIME, THESE WERE OUR MEDIATED SOLUTION TO TRY TO GET EVERYONE ON THE SAME PAGE.
>> Chair Duffy: I REALLY APPRECIATE THAT CLARITY, THANK YOU.

AND I GUESS, HERE'S A QUESTION, IF THE DEFINITIONS WERE TO

CHANGE, DO THEY ONLY CHANGE, I GUESS THE VARIETY OF WAYS THEY MIGHT.

BUT DOES ONE, WHEN IS IT, WHEN THE PLAN IS REVISITED AND REPUBLISHED, IS THAT WHEN WE REVISIT DEFINITIONS AGAIN? >> D. Sanderson: NO, IF SOMEONE WANTED TO CHANGE THESE
DEFINITIONS IT WOULD BE A ZONING ORDINANCE MODIFICATION.

AND IT COULD CHANGE ONLY AS LONG AS IT WAS STILL CONSISTENT WITH THE WEST BERKELEY PLAN.

SO THE WEST BERKELEY PLAN DIDN'T PROVIDE ANYTHING LIKE THIS DETAIL.

IT'S A VERY ONE-SENTENCE DEFINITION THAT LEFT A LOT OF CONFUSION AND MISUNDERSTANDING.

SO THAT WAS THE IMPETUS TO CREATE THE DEFINITIONS TO PROVIDE MORE GUIDANCE ON WHAT WAS WHAT.
>> Chair Duffy: THANK YOU.

AND FOR ME, THIS IS A LEARNING MOMENT OF KNOWING THE POWER OF DEFINITIONS OF COURSE, AS MUCH AS THEY ALWAYS APPLY.

AT WHICH POINTS AND HOW THEN DO WE MAKE SURE THE CREATION OF NOT

JUST DEFINITIONS BUT ALL THE DOCUMENTS, I'M JUST CURIOUS ABOUT WHEN THE PUBLIC PROCESS OCCURS, YOU KNOW?
ARE WE JUST, YEAH, THAT'S ALL.

I JUST WANTED TO PUT THAT OUT THERE.
>> D. Sanderson: ASK STAFF, BUT I DON'T BELIEVE IT'S AN ISSUE THAT'S BEFORE TO MODIFY THE ZONING ORDINANCE.

THERE'S NOT BEEN A REQUEST LATELY.

I MEAN SINCE THESE WERE ADOPTED EVERYBODY --
>> Chair Duffy: THIS IS IN THE ZONING ORDINANCE AND IT IS WHAT

IT IS, IF THE ZONING ORDINANCE CHANGES IT'S A PUBLIC PROCESS, AND WE CHANGE DEFINITIONS AS WE WOULD ANYTHING ELSE IN THERE.

APPRECIATE THAT.

THANK YOU.

JUST BEING CLEAR.
>> Vice Chair Gaffney: THANK YOU, COMMISSIONERS. IF WE HAVE NO

MORE QUESTIONS FOR STAFF, NOW WE ARE FINALLY READY FOR HEARING FROM THE APPELLANT AND TO HAVE FIVE MINUTES. YOU ARE WELCOME TO

SPLIT UP THE TIME HOWEVER YOU WANT BETWEEN APPELLANTS BUT FIVE MINUTES TOTAL.

>> BEFORE THAT I WAS ASKED I GIVE MY PHYSICAL DESCRIPTION FOR

THOSE WHO ARE BLIND OR LOW VISION AND IT NOT COME OUT OF MY TIME.

THANK YOU, WE DO THAT IN ALL OUR MEETINGS AND THE DISABLED COMMUNITY.

MY NAME IS JIM LA BREKT, I'M AN OLDER WHITE GUY SITTING IN A CHAIR, I HAVE A MAROON SHIRT, GRAY HAIR AND BEARD AND MUSTACHE.

I'M THE CO-DIRECTOR OF THE DOCUMENTARY CRIP CAMP (?) IF YOU HAVE SEEN IT, IT WAS OSCAR-NOMINATED.

IT WAS MADE IN THIS BUILDING.

AND WE'VE TALKED ABOUT DEFINITIONS AND SPLITTING HAIRS AND SUCH.

I THINK WHEN WE THOUGHT ABOUT PRODUCTION, ESPECIALLY LET'S SAY 25 YEARS AGO THERE WAS A GREAT DEAL OF EQUIPMENT, WE HAD ALL THESE GREAT THINGS, THIS WAS A MUCH SMALLER FOOTPRINT.

I DON'T THINK OF IT AS BEING INDUSTRIAL, THIS IS AN ARTISTIC -- BUILDING IN 1996.

IT WAS CALLED BERKELEY SOUND ARTISTS FOR A VERY SPECIFIC REASON.

AND THAT WAS MY BRAND.

SO I JUST WANT TO SAY THAT FILM MAKING IS A COLLABORATIVE ART.

IT IS AN ARTISTIC ENDEAVOR, THERE IS CRAFT.

WE DO SPIT OUT SOMETHING THAT PEOPLE BUY, SO IT'S PRODUCTION.

BUT YOU CANNOT UNDERESTIMATE THE ARTISTIC -- WE'RE NOT MAKING POTTERY HERE.

BUT WHAT IS THE DIFFERENCE?

WE ARE MAKING ART.

WE DON'T THINK OF EVERY SINGLE FILM AS ART.

BUT INDEED, I WANT TO TELL YOU THAT FILM MAKING HAS POWER THAT LEGISLATION DOES NOT.

IT DOES NOT -- IT GETS INTO PEOPLE'S MINDS AND LIVING ROOMS. >> THEY ARE COUNTING OUR MINUTES RIGHT NOW.

YOU WERE THINKING YOU WERE ABLE TO SPEAK BEFORE THE FIVE MINUTES STARTED.
>> NO, I ONLY ASKED ABOUT THE VISUAL DESCRIPTION.

I WILL STOP.
>> I'M NOT ASKING YOU TO STOP BUT TIME TELLING EVERYBODY WE NEED TO GET UP HERE.
>> [ OFF MIC ]
>> NO.
>> Clerk: AS A POINT OF CLARIFICATION, WHEN YOU AND I SPOKE YOU

MENTIONED HAVING A VISUAL DESCRIPTION, THE APPELLANT HAS FIVE MINUTES COLLECTIVELY TO SPEAK AS A GROUP.
>> THERE'S AN EDUCATIONAL VALUE TO WHAT WE DO ALSO, WE BRING IN A LOT OF APPRENTICES AND GRADUATE STUDENTS FROM U.C. BERKELEY.

THANK YOU.
>> Vice Chair Gaffney: THANK YOU.
>> HELLO, MY NAME IS NORMAN JED RIFE, I'VE BEEN A TENANT IN THAT BUILDING SINCE FEBRUARY 1989.

THAT'S 34 YEARS I'VE BEEN ABLE TO MAKE MY LIVING AS A FILMMAKER AND ARTIST.

I'VE HAD 15 NATIONAL BROADCASTED DOCUMENTARIES, I CAME FROM

TEXAS TO MAKE MY -- IN THE LAST TWO YEARS I MADE TWO OTHER

FILMS, THE NINE LIVES OF BARBARA DANE AND FROM HERE FROM THERE WHICH WILL BE NATIONAL BROADCAST JULY 9 ON THE PBS SERIES VOICES. I FEEL WE ARE BEING -- I FEEL REALLY OFFENDED BY THE STAFF REPORT.

I FEEL THEY DON'T UNDERSTAND WHAT WE DO.

AND I FEEL LIKE WE ARE BEING PUT OUT OF BUSINESS, WHICH IS WHAT HAS HAPPENED SINCE WAREHAM HAS BOUGHT THE BUILDING.
>> MY NAME IS RICK AUERBACH, I'M THE STAFF OF WEST BERKELEY ARTS AND INDUSTRY COUNCIL.

I WANT TO RESPOND TO THE STAFF'S REPORT.

WE BELIEVE THAT ABSOLUTELY THESE SPACES ARE ART SPACES AND THEY ARE PROTECTED BY THE ORDINANCE.

I'M THE CO-AUTHOR OF THE ORDINANCE AND THE WEST BERKELEY PLAN.

WE 100% INTENTIONALLY INCLUDED THE WORD FILMMAKERS SPECIFICALLY

BECAUSE OF THE EXISTENCE OF THE FILMMAKERS IN THE FANTASY BUILDING.

THAT WAS THE INTENTION OF THE SUBCOMMITTEE THAT WROTE THAT ORDINANCE, THERE'S NO DOUBT ABOUT IT.

LATER ON, THERE WAS NO MEDIA PRODUCTION IN THE ZONING ORDINANCE AT THAT TIME.

THERE WAS NO OTHER MENTION OF FILM.

IT WAS CLEAR THIS WAS THE INTENTION.

AND YOU COULD SAY ART AND CRAFT STUDIO IS COMMONLY
DIFFERENTIATED FROM MEDIA PRODUCTION.

WHAT DOES THAT MEAN?
COMMONLY?
THIS WAS THE INTENTION OF THE PEOPLE WHO WROTE THIS.

I WAS INVITED BY THE ARTS COMMISSION IN 2008 TO REVISE THIS DEFINITION.

I WAS PART OF THAT PROCESS.

WE ADDED A FEW THINGS ABOUT THE USE OF COMPUTER, BUT WE KEPT

FILMMAKERS IN THERE BECAUSE WE ALWAYS INTENDED AND THE ARTS AND

PLANNING COMMISSION ALWAYS INTENDED THESE FILMMAKERS TO BE PROTECTED.

THIS VIOLATES THE WEST BERKELEY PLAN.

IT VIOLATES ECONOMIC GOAL #7.

PROTECT SMALL BUSINESSES, PARTICULARLY ARTS AND CRAFTS
BUSINESSES SO THEY CAN CONTINUE TO FLOURISH IN WEST BERKELEY.

ARTS AND CRAFTS BUSINESSES ARE KEY IN CREATING THE UNIQUE CHARACTER OF THE WEST BERKELEY.

THE CITY DEVELOPED THE PROTECTIVE ZONING OF ARTS AND CRAFTS TO PROTECT THESE BUSINESSES.

IT'S VITAL TO ENSURE IT IS GENERALLY PROTECTED FROM
DISPLACEMENT.

USE ALL AVAILABLE MECHANISMS INCLUDING ZONING TO ASSURE ARTISTS REMAIN A VITAL PART OF WEST BERKELEY.

IT GOES ON AND ON.

I'M GOING TO CEDE MY TIME.
>> HI, REAL QUICK, VIVIAN KLEINMAN.

I HAVE BEEN THERE SINCE 1986.

THE AWARD, EUREKA FELLOWSHIP FOR ARTISTS BY THE -- FOUNDATION IN SAN FRANCISCO.

SO BY DEFINITION OF THE FLYSACKER FOUNDATION, I AM AN ARTIST AND A FILMMAKER.

I'M A FILM ARTIST.

THEY ARE ONE IN THE SAME.

I WILL STOP THERE.
>> Vice Chair Gaffney: THANK YOU.
>> I WOULD LIKE TO SAY THAT ON THE ISSUE OF --
>> Vice Chair Gaffney: YOU WILL HAVE A CHANCE FOR A REBUTTAL AFTER THE APPLICANT GOES.

THERE WILL BE TWO MORE MINUTES YOU AND THE APPLICANT WILL GET.

I WOULD SAY THAT'S PROBABLY THE BEST TIME YOU WILL GET.

THANK YOU FOR STAY TOGETHER FIVE MINUTE TIME LIMIT.

THERE IS A LOT OF YOU AND IT'S NOT EASY SO WE APPRECIATE IT.

IT'S NOW TIME FOR -- DO WE DO QUESTIONS?

IF ANY COMMISSIONERS DO HAVE ANY QUESTIONS FOR THE APPELLANTS, NOW YOU CAN FEEL FREE.

YEAH, COMMISSIONER SANDERSON?
>> D. Sanderson: SO WHEN I LOOK AT THE DEFINITIONS, AND I

REMEMBER THE HAIR-PULLING NAIL-BITING WHATEVER PROCESS WE WENT THROUGH AT THE TIME.

SO ARE YOU SAYING THEN THAT MEDIA PRODUCTION IS A TYPE OF ART/CRAFT STUDIO?

SO THERE WAS A DISTINCTION AT THE TIME BETWEEN COMMERCIAL PRODUCTION AT THE TIME THE ART COMMUNITY SAID THAT'S NOT US.

AND ART/CRAFT STUDIO.

WHAT I'M HEARING, I THINK, IS THAT THE DISTINCTION BETWEEN PRODUCTION AND STUDIO IS, HAS BECOME MERGED IN YOUR MINDS? WHETHER IT IS OR ISN'T.

I'M TRYING TO UNDERSTAND THE APPEAL.

YOU HAVE TO SPEAK AT THE MIC.
>> ALL ARTS AND CRAFTS ARE INVOLVED WITH SOME ASPECT OF PRODUCTION.

THEY ALL PRODUCE A PRODUCT.

WHETHER IT'S A PAINTING OR WHETHER IT'S A FILM.

WHEN WE WROTE THE ORDINANCE ORIGINALLY WE SAW FILMMAKERS AS

USING THEIR ARTISTIC CRAFT TO CREATE AN ARTISTIC EXPRESSION, WHICH WAS A PRODUCTION OF A FILM.

OR IF SOUND WAS ALREADY INCLUDED IN THAT AND THE OTHER THINGS THAT WENT ALONG WITH IT.

WE WERE THINKING ABOUT, YOU KNOW, THIS CONCEPT OF MEDIA PRODUCTION BECAUSE IT DIDN'T EXIST IN THE ORDINANCE.
>> D. Sanderson: RIGHT, WE HAD TO ADD THAT DEFINITION.
>> RIGHT, THAT WAS ADDED MUCH LATER.

AND NO ONE HAS EVER BROUGHT THIS UP.

THIS IS A NEW CONCEPT THAT ALL OF THE SUDDEN FILMMAKERS AREN'T ARTISTS AND THEY DON'T DESERVE PROTECTION.

AND WE HAVE IDEAS WHY THIS IS BROUGHT UP NOW.

IT HASN'T BEEN BROUGHT UP IN ALL THESE YEARS, IT'S NEVER BEEN QUESTIONED.

AND THE ARTS COMMISSION ALWAYS INTENDED THEM TO BE PROTECTED.

THANK YOU.
>> S. O'Keefe: I HAVE A QUESTION OF THE APPELLANT.

CAN YOU PLEASE GIVE AN EXAMPLE, ANY OF YOU, OF A USE THAT WOULD BE MEDIA PRODUCTION, BUT WOULD NOT BE AN ART STUDIO?
I'M ALSO TRYING TO UNDERSTAND THIS DISTINCTION.

CAN SOMEONE COME UP.

GIVE US A SPECIFIC EXAMPLE, SO I CAN UNDERSTAND A MEDIA PRODUCTION BUT NOT ART STUDIO.
>> USING THE SAME EQUIPMENT, SAME EDITING SOFTWARE WOULD BE A

CORPORATE INDUSTRIAL, A COMPANY THAT PRODUCES CORPORATE INDUSTRIALS, HOW TO SUCCEED IN DUCK HUNTING.

HOW TO SELECT A GREAT EMPLOYEE.

A PORTRAIT OF THE C.E.O.

YOU KNOW, --
>> S. O'Keefe: SO YOU ARE SAYING THIS PARTICULAR DEFINITION IN OUR CODE IS JUST SPECIFICALLY FOR CORPORATE TRAINING VIDEOS? THAT'S ONE EXAMPLE?
>> I'M SAYING AS FILMMAKERS WE DON'T HAVE SUCH A NARROW DEFINITION OF OURSELVES.

WE USE WORDS INTERCHANGEABLY, WE USE THE WORD ARTIST, FILMMAKER, MEDIA PRODUCTION, THEY ARE INTERCHANGEABLE.

BUT THERE'S ONE ASPECT OF MEDIA PRODUCTION THAT IS NOT THE

ENTIRE DEFINITION OF THE WORD MEDIA PRODUCTION THAT WOULD BE CORPORATE INDUSTRIALS.
>> S. O'Keefe: I'M JUST TRYING TO UNDERSTAND, THIS MUST BE A

PRETTY BIG CATEGORY IF IT'S ITS OWN DEFINITION AND TREATED SEPARATELY.

THANK YOU.
>> Vice Chair Gaffney: DO ANY OTHER COMMISSIONERS HAVE ANY QUESTIONS?
COMMISSIONER YUNG?
NO QUESTIONS.

LOOKS LIKE WE HAVE NO QUESTIONS FOR THE APPELLANT RIGHT NOW.

IT'S NOW TIME FOR FIVE MINUTES FOR THE APPLICANT.

AFTER THE APPLICANT GOES, YOU WILL HAVE FIVE MINUTES FOR REBUTTAL.
>> GOOD EVENING, THANK YOU FOR BEING HERE AND HAVING A QUORUM.

I'M LISA VOGEL, WITH WAREHAM.

I WANT TO THANK STAFF FOR THE DILIGENT WORK ON THE APPLICATION

AND COMPREHENSIVE AND WELL-THOUGHT OUT REPORT THAT WAS PRESENTED TONIGHT.

I JUST WANT TO GIVE A LITTLE RECAP ON OUR CURRENT TENANT BASE AND OUR APPLICATION.

SO WE ARE PUTTING IN FOR AN ADDITIONAL 9,750 SQUARE FEET TO R & D.

WE HAVE BEEN TRYING TO LEASE THOSE SPACES SINCE 2018 ON THE GROUND FLOOR AND WE HAVE HAD NO VIABLE TENANTS.

CURRENTLY THE EXISTING MEDIA TENANTS SOME HERE TONIGHT, THANK

YOU, RESIDE MAINLY ON THE THIRD, FOURTH AND SIXTH FLOOR OF THE BUILDINGS. THERE'S A DEEP CLUSTER OF THOSE.

I HAVE SIX SUITES AVAILABLE FOR ANY MEDIA PRODUCTION IN THE

MARKET, I WOULD WELCOME MORE MEDIA PRODUCTION TO PLEASE COME AND JOIN OUR CLUSTER AT 2600 TENTH STREET.

I WILL HAVE TO SAY IN THE APPELLANTS, I SAW THERE WAS SOME WORDING WE WERE NOT SUPPORTING IN MEDIA PRODUCTION TENANTS.

SINCE BUYING THE BUILDING WE KEPT FANTASY STUDIOS OPENED FOR TEN YEARS, AFTER SALZANS OPENED HIS COMPANY DOWN TO LOS ANGELES.

WE WERE ONE OF THE FOUNDERS OF BERKELEY FILM FOUNDATION, ALONG WITH SALZAN'S COMPANY IN CITY OF BERKELEY.

SINCE THE FORMATION OF THAT FOUNDATION IN 2009 THERE'S BEEN ISSUED OVER $2 MILLION GRANTS TO EAST BAY FILMMAKERS INCLUDING SOME OF OUR TENANTS AT 2600.

IN CONCLUSION WE APPRECIATE THE THOROUGHNESS OF THE REPORT, WE

ASK IT SHOULD BE DENIED AND WE GET THE ADMINISTRATIVE USE PERMIT APPROVED.

THANK YOU.
>> Vice Chair Gaffney: ALL RIGHT.

THANK YOU.

THERE IS NOW TIME FOR -- SORRY, QUESTIONS.

I'M FORGETTING THE QUESTIONS AGAIN.

COMMISSIONER SANDERSON?
>> D. Sanderson: SORRY, I KEEP HUGGING THE MIC.

ANYONE ELSE CAN --
>> Vice Chair Gaffney: APPRECIATE YOUR KNOWLEDGE.
>> D. Sanderson: THIS IS A QUESTION FOR THE APPLICANT.

SO RIGHT NOW THOSE SPACES ARE LABELS WHAT AND THEY ARE VACANT? ARE YOU TRYING TO LEASE THEM AS ARTS AND CRAFTS?
WHAT ARE YOU ADVERTISING FOR?
>> RIGHT NOW IT'S MEDIA PRODUCTION AND WE ARE TRYING TO CONVERT THAT.

IT WOULD BE ARTS AND CRAFTS, I'M NOT REALLY SURE THE DEFINITION IS DIFFERENT.

>> D. Sanderson: SO IF MEDIA PRODUCTION -- BY MAKING THIS CHANGE TO R&D HOW DOES THAT CHANGE WHAT HAPPENS IN THAT PLACE? >> IT WOULD BE RESEARCH AND DEVELOPMENT TENANT, MAYBE WAREHOUSE.

I MEAN THERE JUST SEEMS TO BE A LITTLE MORE ACTIVITY IN THAT

MARKET, ALTHOUGH I WILL SAY THE MARKET IS NOT VERY STRONG RIGHT NOW AS WE ALL KNOW.

BUT THERE'S DEFINITELY A BETTER CHANCE OF TRYING TO GET THAT 9,000 SQUARE FEET LEASED.

AGAIN I HAVE 8,000 SQUARE FEET, ALMOST THE SAME AMOUNT UPSTAIRS READY TO GO FOR MEDIA PRODUCTION.
>> D. Sanderson: SO MEDIA PRODUCTION AND ARTS AND CRAFT STUDIOS ARE WHAT YOU HAVE AVAILABLE THAT ARE NOT BEING PICKED UP? >> CORRECT, RIGHT.

THERE'S 30 SPACES AND 8,000 SQUARE FEET.
>> D. Sanderson: IS THERE ANY, DO YOU HAVE ANY INFORMATION ON COMPARABLE RENTS OR LEASING COSTS FOR THOSE SPACES?
>> FOR THE MEDIA PRODUCTION SPACES?
>> D. Sanderson: UH-HUH.
>> YOU KNOW, WE DO A VERY FAIR DEAL, THEY ARE USUALLY NOT MARKET.

AND I LET THE TENANTS SPEAK TO THAT.

BUT WE UNDERSTAND THAT THE MEDIA PRODUCTION, THE FILMMAKERS, THE

SOUND EDITORS ARE ON A TIGHT BUDGET THAT'S WHY THE SPACES ARE LIKE 200-300 SQUARE FEET.

THERE'S A FLOOR PLAN THAT MIGHT BE HELPFUL TO PULL IT UP JUST TO

SEE WHAT A MEDIA PRODUCTION FLOOR LOOKS LIKE AND YOU CAN SEE ALL THE SPACES.
>> [ OFF MIC ]
>> YEAH.
>> [ OFF MIC ]
>> Vice Chair Gaffney: ALL RIGHT, YOU WILL HAVE TIME FOR REBUTTAL IN JUST A SECOND.

YOU ARE ALL GOOD?

ANY OTHER COMMISSIONERS HAVE QUESTIONS FOR THE APPLICANT AND WE WILL MOVE TO REBUTTAL?
OKAY, SOUNDS LIKE WE HAVE NO MORE QUESTIONS OF THE APPLICANT.

NOW ANYONE WHO WANTS TO REBUTTAL, YOU HAVE TWO MINUTES. >> TO CLARIFY WHY THE SIXTH FLOOR IS EMPTY, THEY TOOK ALL OF THE

FILMMAKERS OFF THE SIX FLOOR, ABOUT NINE OFFICES, NINE DIFFERENT

FILMMAKERS WERE REMOVED FROM THE SIXTH FLOOR OR SQUISHED ON

OTHER FLOORS OR PEOPLE DECLINED TO ACCEPT THOSE SPACES BECAUSE

THEY WEREN'T AS NICE AS THE SIXTH FLOOR SO WHAT WE JUST HEARD WAS NOT TRUE.

FOR EXAMPLE, ON THE SIXTH FLOOR ACROSS THE HALL WAS A GAY NAMED ADRIAN VEREL, VETERAN OF THE U.S. MARINES. AFRICAN AMERICAN, HE RENTED AN OFFICE BECAUSE HE HAD A CURIOSITY IN FILM.

WE STARTED TALKING, I STARTED MENTORING HIM.

HE NOW IS THE GUEST ARTIST AT STANFORD UNIVERSITY'S ART AND DIVERSITY PROGRAM.

SO THANKS, I CAN'T SAY I PUT HIM THERE, BUT I CAN SAY THANKS TO THE INTERACTION WE HAD, HIS CAREER HELPED GET SHAPED.
>> AS TO THE DATE JULY 6, 1989 WE CONTEND THE SPACES AT ISSUE

WERE ABSOLUTELY OCCUPIED BY PROTECTED ARTS USES AS OF THAT TIME AND WE HAVE EVIDENCE TO THAT EFFECT.

FROM THE MEDIA AND PEOPLE HERE WERE IN THE BUILDING AT THAT TIME, AND THEY KNOW WHO WAS OCCUPYING THAT.

IN CONTRADICTION TO STAFF'S DENIAL OF APPEAL, FANTASY FILMMAKERS

CONTEND THE PROPOSED SCOPE OF THIS PERMIT WOULD BE DETRIMENTAL

TO THE GENERAL WELFARE OF PERSONS RESIDING OR WORKING IN THE AREA.

AND WOULD LEAD TO LOSS OF CRITICAL JOBS AND CULTURAL DIVERSITY

AND VIOLATES IMPORTANT PROVISIONS OF THE BERKELEY MUNICIPAL

CODE, WAREHAM HAS FOUR MILLION SQUARE FEET OF R&D SPACE IN THE EAST BAY, ONE MILLION IN BERKELEY.

THERE'S ANOTHER MILLION SQUARE FEET COMING ON FROM DEVELOPMENTS THAT HAVE JUST BEEN BUILT IN WEST BERKELEY.

THEY CONTEND THEY NEED THESE 2,000 SQUARE FEET FROM THE FILMMAKERS FOR R&D.

IT MAKES NO SENSE.

WE NEED THIS CULTURAL INSTITUTION TO MAINTAIN IN OUR CITY.

IT'S ICONIC, IT'S ONE OF THE MOST IMPORTANT ARTS BUILDING IN THE AREA.
>> Vice Chair Gaffney: THANK YOU SO MUCH.
>> I JUST WANT YOU TO LOOK AT THE GROUND PLAN PLEASE, IF IT'S A VERY LARGE SPACE THAT DOES NOT SERVE OUR COMMUNITY.

WE ARE PRICED OUT OF THIS BUILDING.

AT LEAST WHAT WE WERE TOLD THEY WERE GOING TO OPEN UP TO LARGE SPACES. I JUST WANT YOU TO PLEASE LOOK AT THAT.
>> [ OFF MIC ]
>> Vice Chair Gaffney: THANK YOU SO MUCH.

THANK YOU.

DOES ANYONE HAVE ANY QUESTIONS, ANY FOLLOW-UP TO ANY OF THAT? ALL RIGHT.

IT LOOKS LIKE WE DO NOT.

THE APPLICANT ALSO GETS A TWO MINUTE REBUTTAL OR YOU ALSO DON'T NEED TO TAKE IT.
>> I JUST WANT TO SHARE --
>> Vice Chair Gaffney: COME TO THE MICROPHONE.
>> THE THREE SPACES THAT WE ARE TALKING ABOUT, ONE OF THEM ON THE SECOND FLOOR HAS BEEN VACANT SINCE 2008.

NOBODY IN THE MEDIA PRODUCTION ARENA HAS WANTED IT.

ON THE GROUND FLOOR THEY HAVE BEEN VACANT SINCE 2018.

AND AGAIN, I WISH I HAD THE SLIDE.

I'VE GOT 30 SPACES TO LEASE RIGHT NOW TO ANY MEDIA PRODUCTION TENANTS AND I WOULD WELCOME THAT.

WE ARE VERY SUPPORTIVE OF THIS COMMUNITY AND WE ARE VERY

THRILLED WE HAVE A BIG CLUSTER OF MEDIA PRODUCTION AND VERY, VERY TALENTED PEOPLE IN THE BUILDING.

THANK YOU.
>> Vice Chair Gaffney: IS THERE A SLIDE YOU WANTED TO BE SHARED? IT LOOKS LIKE WE ARE GOING TO PULL THEM UP RIGHT NOW, I THINK.

THERE'S A LISA BULLWINKLE WHO RAISED HER HAND.

ARE YOU WITH EITHER THE APPLICANT OR APPELLANT?
OKAY.

PART OF PUBLIC COMMENT, PERFECT.

DON'T WORRY, ANYONE FROM PUBLIC COMMENT, WE WILL BE GETTING TO YOU SOON.

YOU HAVE A LITTLE MORE TIME.
>> THIS IS THE SIXTH FLOOR.

THE WHITE SPACES ARE CURRENTLY AVAILABLE.

THIS IS ON THE SIXTH FLOOR AND THERE'S ANOTHER PLAN FOR THE

FOURTH FLOOR, THERE'S ONLY ON THE FOURTH FLOOR, THAT CLUSTER IS PRETTY TIGHT.

SO ALL THE PURPLE, IF YOU LOOK AT IT AS PURPLE IS LEASED.

AND WHERE YOU SEE THE WHITES OUTSIDE OF THE CONFERENCE ROOM ARE AVAILABLE TOO.

BETWEEN THE TWO FLOORS THERE'S 30 SPACES AND I WOULD LOVE TO FILL THEM.

THANK YOU.
>> Vice Chair Gaffney: THANK YOU SO MUCH.

ALL RIGHT.

IF ALL THE COMMISSIONERS ARE DONE WITH THEIR QUESTIONS THEN? LOOKS LIKE WE ARE ALL GOOD, WE WILL MOVE TO PUBLIC COMMENT NOW.

ANYONE ONLINE, IF YOU COULD PLEASE RAISE YOUR HAND IF YOU WOULD LIKE TO SPEAK.

JUST BASED ON THE SHEER NUMBER OF GREEN CARDS ALONE WE WILL HAVE TO DO ONE MINUTE PER SPEAKER.

I WILL GO FROM THE GREEN CARDS, IN-PERSON SPEAKERS FIRST AND THEN ONLINE.

THE FIRST SPEAKER WILL BE BETSY MORRIS, YOU WILL HAVE A MINUTE. >> BETSY MORRIS, I'M A WHITE WOMAN WITH BLUE GLASSES WEARING A GRAY BLAZER AND I HAVE KIND OF BROWNISH-GRAYISH HAIR.

SO AS A LONG-TIME RESIDENT OF WEST BERKELEY, WHILE THE WEST

BERKELEY PLAN WAS BEING DEVELOPED, I ACKNOWLEDGE I KNOW SO MUCH LESS OF THE DETAILS THAN WEBAIC AND RICK AUERBACH.

HE HAS DONE AN INCREDIBLE JOB, OR THEY HAVE DONE AN INCREDIBLE

JOB OF ASSEMBLING INFORMATION, TO THE BEST OF MY KNOWLEDGE AS I READ IT, I SAID YEAH, THAT STRIKES TRUE.

THE IDEA WE HAVE HERE IN BERKELEY A UNIQUE CLUSTER OF
INDEPENDENT FILMMAKERS, DOING INCREDIBLY CREATIVE WORK.

I RECOMMEND IT TO ANYONE, IT'S A FABULOUS, FABULOUS DOCUMENTARY.

AND I DIDN'T EVEN KNOW IT WAS BEING PRODUCED HERE IN BERKELEY.

SO THE IDEA WHEN I THINK OF IT EVER BEING QUESTIONED AS AN ARTS-

RELATED, YES, THERE ARE SUCH THINGS AS INDUSTRIAL ARTS AND COMMERCIAL ARTS.

AND THEY PRODUCE VALUE FOR THIS CITY AS A PLACE FOR CREATIVE, INDEPENDENT ARTISTS. NOW THE PIECE THAT REALLY FRUSTRATES ME, I

STILL DON'T GET IT, AND I RESPECT THAT WAREHAM HAS A

PROFESSIONAL HERE, WHY WOULD YOU, WITH A FAIRLY LARGE VACANCY

RATE GOING ON FOR R&D AND OFFICE SPACE IN THE EAST BAY, WHY

WOULD YOU THROW OUT, OR DISCOURAGE TENANTS WHO HAVE BEEN THERE A

LONG TIME BY RAISING THE RENTS SO EXCESSIVELY THAT THEY CAN NO LONGER AFFORD IT.
>> Vice Chair Gaffney: I'M SORRY.
>> I UNDERSTAND THERE'S LEASING ISSUES I DON'T UNDERSTAND, BUT I WANT TO SUPPORT THIS.
>> Vice Chair Gaffney: THANK YOU SO MUCH.

WONDERFUL.

ALL RIGHT.

WE WILL NOW GO TO CLAIRE SHOWIT?
>> SO IS THIS ON?
GREAT.

HI, I'M CLAIRE SHONE, A RESIDENT OF BERKELEY.

I WORKED AT THE SALZANT FILM STRUCTURE, KNOWN AS THE FANTASY BUILDING FOR 18 YEARS WHEN SAUL OWNED THE BUILDING.

HE CREATED A WONDERFUL COMMUNITY THERE BY SUPPORTING OUR WORK, KEEPING OUR RENTS LOW.

AND FANTASY WAS A THRIVING PRODUCTIVE PLACE WHERE BEAUTIFUL, PROFOUND, AWARD-WINNING AND SOCIALLY RELEVANT MEDIA WAS MADE.

WHEN WAREHAM BOUGHT THE BUILDING IT WAS CLEAR FROM THE BEGINNING TO ALL OF US, THEY WANTED US OUT.

MY RENT WAS DOUBLED AND THEN TRIPLED OVER THAT.

AT PIKE COMMUNITY, WE JUST WANTED TO SIT DOWN AND TALK TO THEM ABOUT WHAT WAS GOING TO GO ON.

THEY REFUSED TO TALK TO US AS A GROUP.

INSTEAD THEY TRIED TO DIVIDE US, PICKING US OFF ONE BY ONE WITH SECRET DEALS, SOME OF US GETTING BETTER DEALS THAN OTHERS.

I WAS DRIVEN OUT OF THE BUILDING BY WAREHAM.
>> Vice Chair Gaffney: YOU ARE OUT OF TIME, ONE MORE SENTENCE. >> AS WERE MANY OTHER MEDIA PRODUCERS AND I WAS VERY GRATEFUL FOR THE ONES WHO STAYED.

PLEASE DON'T LET WAREHAM TEAR DOWN THIS VITAL FILM COMMUNITY ANY FURTHER.
>> Vice Chair Gaffney: THANK YOU VERY MUCH.

I APPRECIATE EVERYONE, I KNOW THE ONE MINUTE IS HARD.

WE WILL GO TO JAMES LEBRECHT NOW.

NO?

THEN STEPHEN MOST.
>> HELLO, I'M AN OLD GUY WITH GLASSES AND GRAY HAIR WEARING A VEST.

I'M A FILMMAKER, DOCUMENTARY WRITER AND PRODUCER.

ALSO THE AUTHOR OF A BOOK CALLED "STORIES MAKE THE WORLD, REFLECTIONS ON STORYTELLING AND THE ART OF THE DOCUMENTARY." AND IN THAT BOOK, WHICH WAS PUBLISHED IN 2017 ARE CHAPTERS ABOUT

DOCUMENTARIES, SOME OF THEM AWARD-WINNING AND ACADEMY-AWARD

NOMINATED THAT WERE MADE IN BERKELEY, INCLUDING BERKELEY IN THE 60s, FREEDOM ON MY MIND AND OTHERS.

AND I JUST WANT TO SAY THAT THE FILM MAKING COMMUNITY WHEN I MOVED NEAR IN 1987 WAS WIDELY RECOGNIZED AS THE CORE OF THE FILM MAKING COMMUNITY IN THE ENTIRE EAST BAY.

IT'S NOT JUST A MATTER OF HAVING GREAT ARTISTS AT THE FANTASY BUILDING.

THEIR WORKS SUPPORTED AN ECOSYSTEM OF DIRECTORS, PHOTOGRAPHERS,

WRITERS --

THIS IS A GREAT BENEFIT NOT ONLY TO BERKELEY BUT ALSO TO THE WORLD AND THIS COMMUNITY NEEDS TO BE ALLOWED TO STAY.
>> Vice Chair Gaffney: THANK YOU SO MUCH.

ALL RIGHT.

WE ARE GOING TO GO TO FRANK ZIMACONA?
>> HI, I HAVE PEPPERED HAIR, I THINK AND BLACK GLASSES.

HI, GOOD EVENING, I'M FRANK ZIMACONA.

I'M IN THE BUILDING.

I'VE BEEN THERE 13 YEARS, MULTI-CAMERA LIVE DIRECTOR.

I DO A LOT OF LIVE OPERAS, SYMPHONIES AND BALLETS AROUND THE COUNTRY.

BUT I'VE BEEN AT THE ZANT CENTER FOR 13 YEARS LIKE I SAID.

THE REALLY A UNIQUE PLACE.

WHY IS IT UNIQUE.

THERE'S A LOT OF EDITORS, PRODUCERS, SOUND MIXERS, DESIGNERS, WRITERS, EXECUTIVE PRODUCERS UNDER ONE ROOF.

I DON'T KNOW A CREATIVE HUB ANYWHERE THAT'S LIKE THIS IN NORTHERN CALIFORNIA OR EVEN IN THE U.S.

THERE'S MORE DOCUMENTARIES AND PROGRAMS BEING CREATED BY THIS COMMUNITY THAT MOST PUBLIC TV STATIONS AROUND THE COUNTRY.

IT'S A PLACE AND YOU HAVE HEARD IT, IT'S A PLACE OF

COLLABORATION, A THINK-TANK FOR ARTISTS WHO COME AND SHARE THEIR WORK WITH EACH OTHER.

IT'S A GREAT THING, YOU COULD GO DOWN THE HALL TALK TO EACH

OTHER ABOUT IDEAS, GET FEEDBACK AND THAT'S WHAT A COMMUNITY IS ALL ABOUT.

IT'S UNIQUE.

AND THAT'S THE UNIQUENESS OF THE ZANT CENTER OR FANTASY CENTER OR WHATEVER YOU WANT TO CALL IT.

BUT IT'S THERE AND IT'S UNIQUE.
>> Vice Chair Gaffney: THANK YOU SO MUCH.

ALL RIGHT, WE WILL HAVE GREGORY SHARPEN UP NEXT.
>> MY NAME IS GREGORY SHARPEN, I'M LONG-HAIRED AND BEARDED AND SOMEWHAT DISREPUTABLE.

I'M AN EDITOR IN THE ZANTS BUILDING.

I HAVE BEEN THERE MORE DECADES THAN I CARE TO THINK ABOUT.

I WANT TO ADD ONTO THE IDEA OF IT BEING AN ARTISTIC COMMUNITY AND PEOPLE GOING DOWN THE HALL AND TALK WITH ONE ANOTHER.

AND HAVE ARTISTIC CONVERSATIONS, HAVE PHILOSOPHICAL
CONVERSATIONS. HAVE AN INTERCHANGE THAT I THINK INEVITABLY MAKES

ALL OF OUR WORK AND ALL OF OUR PRODUCTIONS AND EVERYTHING THAT MUCH BETTER BECAUSE IT IS A COMMUNITY OF US.

AND TO CHIP AWAY SLOWLY AT THAT BUILDING LIKE THE FACT THEY GOT

RID OF THE FANTASY STUDIO, AUDIO STUDIOS IN THE BASEMENT STILL THAT HURTS ME A LOT.

BECAUSE I DID A LOT OF GOOD WORK IN THOSE STUDIOS. EACH CUT IS

ANOTHER KIND OF BODY BLOW TO THE ARTISTIC COMMUNITY IN THE BUILDING.
>> Vice Chair Gaffney: THANK YOU SO MUCH.

ALL RIGHT, WE ARE GOING TO GO TO JOHN KIRL NOW.
>> HELLO, I'M JOHN KIRL.

I WORKED IN THE SAW TOOTH BUILDING AS A CABINET MAKER FOR OVER 40 YEARS.

I WAS ONE OF THE PEOPLE WHO WERE AUTHORS OF THE WEST BERKELEY PLAN.

I WORKED VERY CLOSELY WITH WEBAIC ON THESE SPECIFIC ORDINANCES.

I HELPED WRITE THESE ORDINANCES. I'M HERE IN SUPPORT OF THE FILMMAKERS. EVEN AT THAT TIME IN THE 1980s AND THE 1990s THEY WERE ONE OF THE MOST IMPORTANT BUILDINGS IN WEST BERKELEY.

IF YOU WOULD HAVE SEEN WHAT WAS HAPPENING WHEN WE STARTED THE

WEST BERKELEY PLAN, DEVELOPERS WERE BRINGING ARTS AND CRAFTS OUT, THEY WERE CHANGING EVERYTHING.

AND THIS WAS THE ONLY PLACE IN BERKELEY WHERE CRAFTS AND ARTISTS COULD AFFORD TO WORK.

AND SO YOU TAKE THIS AWAY, IT'S LIKE BY CHANGING THE

DEFINITIONS, BY DOING ONE AT A TIME, YOU WIND UP GETTING RID OF THE WHOLE THING.

I WILL ASK YOU TO RISE TO THIS OCCASION, BECAUSE THIS IS WHAT YOU ARE HERE FOR.

TO CORRECT MISTAKE THAT'S ARE MADE BY BERKELEY STAFF AND THIS IS

A MISTAKE THAT IS OF GREAT IMPORTANCE TO THE WHOLE OF BERKELEY,

NOT JUST WEST BERKELEY, NOT JUST THE FILMMAKERS, NOT JUST THE ARTISTS.
>> Vice Chair Gaffney: THANK YOU.

GOT TO WRAP IT UP.
>> IT'S GOING TO TOTALLY CHANGE THE WHOLE NATURE OF BERKELEY.

I URGE YOU TO RISE AND CORRECT THIS MISTAKE.
>> Vice Chair Gaffney: THANK YOU SO MUCH.

THANK YOU.

ALL RIGHT.

GEORGIA [INAUDIBLE]
>> HELLO, MY NAME IS GEORGIA AND I'M A PAINTER AND ILLUSTRATOR AND A LIFE LONG RESIDENT OF WEST BERKELEY.

I WANT TO SPEAK IN FAVOR OF THE FILMMAKERS. JUST AS A LIFE LONG

RESIDENT OF BERKELEY AND A RESIDENT OF WEST BERKELEY ARTS

STRICT, FILMMAKERS AND SOUND ARTISTS HAVE ALWAYS BEEN A PART OF OUR COMMUNITY.

THEY HAVE HELPED CREATE THE ARTS FABRIC IN BERKELEY AND THEY ARE

PART OF HOW WE ARE KNOWN, NOT JUST NATIONALLY BUT
INTERNATIONALLY.

WE HAVE INTERNATIONALLY-KNOWN FILMMAKERS RIGHT IN OUR CITY AND THAT IS PART OF OUR CITY'S CHARACTER.

AND IT ALWAYS HAS BEEN.

I REALIZE THAT DEVELOPERS WILL ALWAYS WANT TO EARN MORE REVENUE FROM THEIR SPACES BUT THERE'S A REASON THESE RESTRICTIONS EXIST.

IT ALLOWS ARTISTS TO WORK IN PLACES THEY WOULDN'T OTHERWISE

HAVE, AND CREATE THE CHARACTER OF OUR CITY WE REALLY SHOULD BE PROTECTING, IT'S VERY VALUABLE AND IMPORTANT.

THANK YOU.
>> Vice Chair Gaffney: ALL RIGHT.

THANK YOU ALL SO MUCH.

WONDERFUL.

HAVE WE DONE EVERYONE IN PERSON?

WE WILL MOVE ONLINE NOW, THE FIRST PERSON PATIENTLY WAITING ONLINE, LISA BULLWINKLE, I WILL ALLOW YOU TO TALK NOW.

YOU CAN UNMUTE YOURSELF.
>> HI.

I'M LISA BULLWINKLE HERE SPEAKING AS A PRIVATE CITIZEN EVEN

THOUGH I'M ON THE ART COMMISSION AND HAVE CHAIR IT HAD FOR A FEW

YEARS, I WANT TO COMMEND RICK AUERBACH AND JOHN KIRL FOR THEIR

EXTREMELY WONDERFUL WORK GETTING ARTISTS HOUSED AND FED AND ACKNOWLEDGED IN THE CITY OF BERKELEY.

THE BIG PICTURE HERE THIS IS ABOUT GENTRIFICATION.

IT'S LIKE DEATH BY A THOUSAND CUTS TO OUR ARTISTS IN THE CITY.

AND I HAVE WATCHED SO MANY OF OUR ART COLLECTIVES AND BUILDINGS

GET WIPED OUT AND DESTROYED AND THE DEVELOPMENT COME IN AND PUT IN R&D THAT WE DON'T REALLY NEED.

WHAT WE NEED ARE SPACES FOR ARTISTS TO DO THEIR JOBS AND KEEP US THE VIBRANT ART COMMUNITY.

THE STAFF HAS MADE A TERRIBLE ERROR IN THEIR LACK OF FORESIGHT IN THE DEFINITION.

AND I THINK RICK IS RIGHT ON IN THAT WE REALLY NEED TO BE A LITTLE BROADER HERE.

THE ARTS ARE IN TROUBLE, HELP US, KEEP THEM, SAVE THEM.

WE WANT BERKELEY TO BE VIBRANT, NOT JUST HAVE R&D EVERYWHERE IN TOWN.

THANK YOU.

>> Vice Chair Gaffney: THANK YOU SO MUCH.
>> WELL SAID, WELL SAID.
>> Vice Chair Gaffney: ALL RIGHT.

WE WILL NOW -- KELLY HAMMARGREN, YOU ARE UP NEXT.

YOU SHOULD BE ABLE TO TALK NOW.
>> THANK YOU.

AND I REMEMBER WHEN THIS BUILDING CAME TO COUNCIL TO TURN IT

INTO R&D AND IT'S REALLY SUCH A GREAT TRAGEDY BECAUSE BERKELEY WAS, AT ONE TIME THE FILM CENTER.

IF YOU GO THE BROWSER GOOGLE THERE ARE STILL SITE THAT'S NAME BERKELEY AS AN ARTS CENTER BUT THAT'S REALLY DISAPPEARING.

I THINK FOR ALL THESE EMPTY SPACES YOU NEED TO LISTEN TO THE

PERSON WHO SPOKE EARLIER ABOUT HER RENT BEING TRIPLED FOR A SPACE IN THAT BUILDING.

I JUST THINK THERE'S A LOT OF GAMING AND MANIPULATION GOING ON

HERE, AND THIS IS REALLY SO SAD AND I WISH YOU WOULD STAND ON THE SIDE OF RECOGNIZING FILM AS ART, THANK YOU FLT.
>> Vice Chair Gaffney: THANK YOU SO MUCH.
>> YEAH, AND I GUESS I COULD SAY THAT, AS THE FORMER EXHIBITIONS

CHAIR FOR THE NORTHERN CALIFORNIA WOMEN'S CAUCUS FOR ART, WE CONSIDER FILM ART.
>> Vice Chair Gaffney: THANK YOU, KELLY.

APPRECIATE IT.

ALL RIGHT, UP NEXT WE HAVE BARBARA BOWMAN.

ALL RIGHT, YOU SHOULD BE ALLOWED TO TALK NOW IF YOU UNMUTE YOURSELF.
>> THANK YOU, CAN YOU HEAR ME?
>> Vice Chair Gaffney: A LITTLE TOO LOUDLY.
>> OKAY.

MY HUSBAND'S COMPUTER IS ON, WE WILL TURN IT OFF.
>> Vice Chair Gaffney: IT'S STILL A LITTLE LOUD, YOU CAN TALK A LITTLE QUIETER.
>> ARE YOU THERE?
>> Vice Chair Gaffney: YOU'RE GOOD, WE CAN DEFINITELY HEAR YOU. >> I LIVE ON TENTH STREET A FEW BLOCKS FROM THE FANTASY BUILDING.

I'M HERE TO CONTEST TO NOT BEING MUCH OF A FILM BUFF BUT I'M A FAN OF THE WEST BERKELEY PLAN THAT PROTECT THESE TENANTS.

WRITTEN SUBMISSIONS AND I NEED NOT REITERATE THEM.

BUT I WAS THINKING TODAY ABOUT THIS AND I WAS REMINDED THE LAST

TIME I ADDRESSED THE ZAB MEETING DEMOLISHED HOUSES --

NEGLECTED TO GET A PERMIT BASED ON THE IDEA IT IS EASIER TO GET FORGIVENESS THAN PERMISSION.

I COMMENTED THEN IF BERKELEY HAD A THREE-STRIKES LAW, WAREHAM WOULD HAVE BEEN BANNED FROM BERKELEY BY THEN.

IT NEVER OCCURRED TO ME THIS FEELS LIKE A ANOTHER WEST BERKELEY DEMOLITION TO ME.

EXCEPT THEY ACTUALLY ASKED PERMISSION THIS TIME AND THE TENANTS ARE ABLE TO FIGHT BACK.

I REALLY HOPE YOU WILL DECIDE IN FAVOR OF THE FILMMAKERS AND I ASK THAT YOU GIVE A FIRM NO TO THIS REQUEST FOR A REZONING.

THANK YOU, THAT'S IT.
>> Vice Chair Gaffney: THANK YOU SO MUCH, BARBARA.

ALL RIGHT.

LOOKS LIKE WE HAVE ONLY ONE MORE HAND.

IF YOU WANT TO SPEAK PLEASE RAISE YOUR HAND NOW.

IF NOT, WE JUST HAVE ONE MORE.

AND SO DAVID, I'M GOING TO ALLOW YOU TO TALK NOW.
>> I'M DAVID BOWMAN AND I LIVE DOWN THE STREET ON TENTH -- [BREAKING UP]
>> Vice Chair Gaffney: DAVID, CAN I STOP YOU, IT'S VERY LOUD BUT I DON'T THINK IT'S YOU, IT'S SOMETHING WRONG WITH OUR SOUND.

WE WILL PAUSE AND RESTART IT.
>> I'M DAVID BOWMAN AND I LIVE DOWN THE STREET --
>> Vice Chair Gaffney: HOLD ON, DON'T TALK FOR A SECOND, IT'S VERY LOUD.
>> I'M SORRY?
>> Vice Chair Gaffney: JUST A SECOND.

WE ARE HAVING SOME TECHNICAL DIFFICULTIES.

I WILL MUTE YOU FOR A SECOND BUT I PROMISE WE WILL BE HEARING FROM YOU IN A SECOND.

>> THANKS.
>> Vice Chair Gaffney: OKAY, DAVID WE ARE GOING TO HAVE YOU

SPEAK BUT SPEAK QUIETER THAN YOU THINK WE ARE HAVING TECHNICAL

DIFFICULTIES, TRY TO SPEAK A LITTLE SOFTER, I WILL TELL YOU IF -- SO GO FOR IT AND I WILL LET YOU KNOW.

WE RESTARTED YOUR TIME.
>> HOW ABOUT NOW, IS THIS BETTER?
>> Vice Chair Gaffney: GO A LITTLE CLOSER TO THE MIC NOW, SORRY.

SPEAK A LITTLE LOUDER, I'M SORRY.
>> I'M DAVID BOWMAN, I LIVE DOWN THE STREET FROM TENTH STREET. >> Vice Chair Gaffney: GO AHEAD.
>> I'M DAVID BOWMAN, I LIVE DOWN THE STREET ON TENTH STREET FROM

FANTASY, I WAS INVOLVED WITH RICK A LITTLE BIT -- WEST BERKELEY PLAN, I WOULD JUST LIKE TO SAY [ INDISCERNIBLE ]

IT'S PROTECTED BY THE WEST BERKELEY PLAN -- BUT I SPENT SEVERAL [ INDISCERNIBLE ]
IT WAS GREAT TO HAVE THAT KIND OF CAMARADERIE.
[ INDISCERNIBLE ]

SOUNDS LIKE YOU NEED TO LOWER THE RENT SO WE CAN LET SOME MORE PEOPLE IN THERE, WHY DRIVE THEM OUT?
GOOD LUCK.

THANK YOU.
>> Vice Chair Gaffney: ALL RIGHT, THANK YOU, DAVID.

ALL RIGHT, IT LOOKS LIKE WE HAVE ONE MORE LEFT, HOPEFULLY.

OUR SOUND SYSTEM IS OKAY?
I DON'T THINK THAT WAS US NECESSARILY.

SO CAMERON WOO, WE WILL ALLOW YOU TO TALK RIGHT NOW, LET'S SEE IF THIS WORKS.

CAMERON?
>> GOOD EVENING, HOW AM I DOING, CAN YOU HEAR ME?
>> Vice Chair Gaffney: GREAT, THANK YOU.
>> GREAT.

MY NAME IS CAMERON WOO, I'M ON THE CIVIC ARTS COMMISSION IN THE D.R.C.

I SPEAK TONIGHT AS A PRIVATE CITIZEN REPRESENTING ONLY MYSELF.

I'M A LONG-TIME WEST BERKELEY RESIDENT LIVING A FEW BLOCKS AWAY

FROM THE SAUL ZAENTS BUILDING CURRENTLY HOUSING A LARGE NUMBER OF FILMMAKERS, AS YOU KNOW.

I WOULD LIKE TO ADD MY SUPPORT KEEPING THEM THERE BY NOT ALLOWING THIS TO CHANGE TO R&D, LAB AND OFFICE SPACE.

THE FRUITS OF THESE CREATIVE FILMMAKERS HAVE WON NUMEROUS AWARDS.

I FEEL THEIR PRESENCE IN BERKELEY IS ESSENTIAL TO THE BAY AREA'S CREATIVE COMMUNITY.

BERKELEY AS A HAVEN FOR THOUGHTFUL SOCIALLY RELEVANT FILM MAKING.

THERE'S CURRENTLY A GLUT OF R&D SPACE IN THE BAY AREA.

BERKELEY IS BETTER OFF HOLDING ONTO THIS, RATHER THAN CONTINUING TO THIS GLUT.

PLEASE THINK OF THESE FACTORS WHEN CONSIDERING YOUR VOTE TONIGHT.

THANK YOU.
>> Vice Chair Gaffney: THANKS, CAMERON AND EVERYONE ELSE WHO SPOKE.

LOOKS LIKE WE HAVE NO MORE HANDS ON LINE.

WITH THAT I WILL MAKE A MOTION TO CLOSE THE PUBLIC HEARING AND WE WILL TAKE A VOICE VOTE.

SO ALL THOSE IN FAVOR OF CLOSING THE PUBLIC HEARING, SAY AYE.

ALL THOSE OPPOSED SAY NAY.

ALL RIGHT, THE PUBLIC HEARING PORTION IS OFFICIALLY CLOSED.

IT IS ALSO IS ABOUT 9:00 P.M. AND WE WILL NEED TO TAKE A TEN

MINUTES CAPTIONER'S BREAK BECAUSE WE ARE LIVE CAPTIONED AND THEY NEED TO GET RESTED FOR A SECOND.

WE WILL MEET HERE AT 9:10 AND PICK UP RIGHT WHERE WE LEFT OFF.

SO THANK YOU, EVERYONE.
>> Vice Chair Gaffney:
>> Vice Chair Gaffney: IF EVERYONE CAN WRAP UP WHAT THEY ARE TALKING ABOUT AND GET BACK TO THEIR SEATS WE WILL GET STARTED.

CALLING THE MEETING TO ORDER FELLOW COMMISSIONERS. COME BACK.

ALL RIGHT.

WONDERFUL.

THANK YOU ALL FOR YOUR PATIENCE DURING OUR CAPTIONER'S BREAK.

SO AGAIN, NOW WE CLOSED THE PUBLIC HEARING AND WE HAVE HEARD FROM ALL OF THE PUBLIC.

WE CAN START DELIBERATIONS HERE, WHICH I KNOW THERE ARE A LOT.

SO WHO WOULD LIKE TO KICK US OFF?
YEP?
COMMISSIONER YUNG?
>> B. Yung: IT'S SO WONDERFUL THAT WE IN THE CITY OF BERKELEY

ARE ABLE TO AIR OUT SO MANY OF OUR DECISION-MAKING PROCESSES IN

DISCRETIONARY PUBLIC FORUMS, WHAT A BETTER WAY TO LEARN ABOUT CIVICS.

I ALSO, SO I MENTIONED THE FIFTH AMENDMENT EARLIER, THERE'S A LOT OF THINGS GOING ON IN THERE.

ONE IS A RIGHT TO DUE PROCESS IN REGARDS TO LIFE, LIBERTY OR PROPERTY.

THAT PROPERTY PIECE IS THE BASIS FOR HOW APPEALS HEARINGS HAPPEN.

SO THAT IS TO SAY, IF YOU KNOW, SOMEONE WERE TO CHALLENGE THE

LEGALITY OF THE ZONING ADMINISTRATOR'S DECISION, THEY MUST FIRST EXHAUST THEIR ADMINISTRATIVE REMEDIES, IN THIS CASE, THE APPEAL.

THE APPEAL IS A REVIEW OF THE INITIAL DECISION.

SO THE QUESTION BEFORE US TONIGHT ARE, GIVEN THE EVIDENCE BEFORE US, WHAT IS THE REVIEW OF THE ORIGINAL DECISION?

MY OWN READING, MY OWN FINDING IS THAT I WOULD STAND BEHIND THE ORIGINAL DECISION GIVEN THE LANGUAGE OF THE ORDINANCE.

THE FACTS BEFORE US AND TO THE BEST THAT WE CAN, OUR APPLICATION TRUE TO THE LANGUAGE OF THE ORDINANCE.

I'LL POINT OUT KIND OF AN APPROACH TO HOW I LANDED THERE.

SO YOU KNOW, THE APPEAL BRINGS UP MANY POINTS.

I THINK THE ONE THAT'S MOST RELEVANT HAS TO DO WITH DETERMINING WHAT USE IS PRESENT.

SO YOU KNOW, STATUTORY INTERPRETATION, LET'S START TOP TO BOTTOM, RIGHT?

AN ESTABLISHMENT, ARTS/CRAFT STUDIO IS AN ESTABLISHMENT ENGAGED IN THE CREATION OF ARTS OR CRAFTS THAT REQUIRES ARTISTIC SKILL.

IT WAS MENTIONED EARLIER THAT FILM MAKING, ART, IS MUCH MORE POWERFUL THAN GOVERNMENT.

I COMPLETELY AGREE, BECAUSE IN THIS CASE, YOU WOULD BE SCANT TO

WANT TO AFFORD GOVERNMENT THE ABILITY ON ITS OWN WHAT AND WHAT DOES NOT REQUIRE ARTISTIC SKILL.

I'M HESITANT TO MAKE THAT JUDGMENT CALL HERE.

I THINK THERE ARE MANY WIDE RANGE OF THINGS.

ANY TYPE OF ANALYTIC WORK ANYONE CAN JUSTIFIABLY SAY REQUIRES ARTISTIC SKILL.

WITH THAT AMBIGUITY BEING STATED LET'S MOVE FORWARD.

SUCH ESTABLISHMENT MAY PARTICIPATE IN THE STUDIOS BUT [READING RAPIDLY]

FOR INCIDENTAL SELL OF GOODS MADE ON SITE.

YOU HAVE TWO VERBS, SHALL OR MAY.

MAY IS LESS BINDING, MORE OPEN-ENDED.

SO OPTION TO ENGAGE IN PERIODIC SALES --

THEY ALSO INCLUDE REHEARSAL SPACES NOT DESIGNED FOR PUBLIC PERFORMANCES.

THAT SEEMS TO BE THE CASE HERE FROM MY UNDERSTANDING.

AND THEN THERE'S A LIST OF EXAMPLES. OF INDIVIDUALS TYPICALLY

ENGAGED IN THIS WORK THEY INCLUDE A LONG LIST OF TYPES OF PROFESSIONS INCLUDING FILMMAKERS AND PHOTOGRAPHERS.

THIS USE EXCLUDES ARCHITECTURAL LANDSCAPE SERVICES, INDUSTRIAL

OR GRAPHIC DESIGN, COMPUTER SYSTEM, DESIGN SERVICES AND OTHER

COMMERCIAL ACTIVITIES NORMALLY CONDUCTED IN AN OFFICE
ENVIRONMENT.

FINALLY, THIS IS CONSIDERED A PROTECTED NON-INDUSTRIAL USE PROVIDED THAT THE USE WAS A LEGALLY ESTABLISHED, AS OF JULY 6, 1989 AND B, EXISTS AS A SINGLE STAND-ALONE USE OR COMBINED WITH

RESIDENTIAL USE IN A LIVE/WORK UNIT, MEDIA PRODUCTION IS NOT A PROTECTED USE.

A FEW KEY THINGS, THE FIRST ONE, EXAMPLES OF INDIVIDUALS WHO ENGAGE IN THIS TYPE OF WORK.

A FILMMAKER IS AN EXAMPLE.

WE KNOW GIVEN THE EVIDENCE BEFORE US THAT THE MUSIC LABEL AND

FILM PRODUCTION WAS AN INTEGRATED BUSINESS ENTERPRISE OF

WAREHOUSES, OFFICE AND RECORDING STUDIOS. IT WASN'T JUST FILMMAKERS. THERE WAS A RANGE OF ACTIVITIES HAPPENING AT THE SITE WHICH INCLUDED OFFICE AND WAREHOUSE TYPE ACTIVITIES.

ADDITIONALLY, WE HAVE THE FACT THAT THE LAST CLAUSE OF THE

DEFINITION STATES THAT AND THE USE EXISTS AS A SINGLE STAND-

ALONE USE OR COMBINED WITH RESIDENTIAL LIVE/WORK UNIT OR DISJUNCTIVE SO EITHER/OR.

DID IT EXIST AS A SINGLE STAND-ALONE USE?
OR IS COMBINED WITH RESIDENTIAL USE IN A LIVE/WORK UNIT.

AS FAR AS WE KNOW WITH THE EVIDENCE BEFORE US TONIGHT, THERE WAS NO RESIDENTIAL.

MEDIA PRODUCTION IS NOT A PROTECTED USE.

IT ALSO FINALLY EXPLICITLY EXCLUDES MEDIA PRODUCTION.

SO GIVEN THE, THIS IS GENUINELY I WOULD SAY AMORPHOUS DEFINITION THAT WOULD WARRANT CAREFUL CONSIDERATION.

BUT GIVEN THE WEIGHING OF THE TWO DEFINITIONS, MY CONCLUSION IS AS FOLLOWS:

THE USE AS WE KNOW IT AS WAS ESTABLISHED IN 1989 IS ENTIRELY ENCOMPASSED WITHIN THE DEFINITION OF MEDIA PRODUCTION.

WHAT WAS OCCURRING AT THAT RELEVANT POINT IN TIME WAS PARTIALLY

COVERED BY THE ARTS/CRAFT STUDIO, THEREFORE I WILL FIND AND AGREE WITH STAFF'S DETERMINATION.
>> Vice Chair Gaffney: COMMISSIONER SANDERSON?
>> D. Sanderson: WELL HERE GOES MY POINT.

I WAS AROUND WHEN WE DID THE DEFINITIONS, SO WERE A FEW OF YOU IN THIS ROOM.

WE ARE ALL OLD NOW.

BUT I THINK IT'S CONFUSING.

IT IS, FIRST OF ALL, ARTS AND CRAFTS STUDIO MENTIONS FILM MAKING.

I DON'T THINK YOU CAN THEREFORE CONCLUDE THAT MEDIA PRODUCTION IS NOT ALSO ARTS AND CRAFTS. THAT'S MY FIRST DILEMMA.

AND SECOND, I BELIEVE THE SPACES, THESE WORK SPACES YOU SHOWED ON THE FLOOR PLAN WERE -- OH, SORRY.

I WENT THE WRONG WAY.

THIS IS MY WAY.

WERE 200 SQUARE FEET, 230 SQUARE FEET.

THESE ARE A TENANT SPACE.

IN THE OTHER BUILDING WHOSE NAME I FORGOT, RICK MENTIONED OR SOMEBODY MENTIONED, SAW-TOOTH BUILDING, THERE ARE 40-SOME-ODD INDIVIDUAL SPACES IN THERE.

AND EACH OF THOSE SPACES HAD TO GET A BUSINESS LICENSE TO OPERATE AS AN ARTS/CRAFT STUDIO IN THAT SPACE.

SO THEY ARE FREE-STANDING IN THAT THEY ARE SELF CONTAINED.

WE'RE NOT TALKING ABOUT THE WHOLE BUILDING. THE WHOLE BUILDING HAS MULTIPLE USES IN IT.

WE ARE TALKING ABOUT THESE THREE TENANT SPACES. AND SO, I THINK,

I HATE THIS, THIS IS AWFUL TO SAY, BUT IT SEEMS TO ME THEY ARE STAND-ALONE.

AND THAT THERE IS SOME OVERLAP.

I LOOKED AT THE DEFINITION FOR RESEARCH AND DEVELOPMENT AND IT'S ENTIRELY COMMERCIAL, IT HAS NOTHING TO DO WITH ART ANYWHERE.

I THINK AT THE TIME WHEN WE DID THE ARTS/CRAFTS DEFINITION, WE

ADDED THE MEDIA DEFINITION, MEDIA PRODUCTION DEFINITION BECAUSE THERE WAS NO SUCH THING IN THE CODE.

WELL, WHAT DO I GO GET A BUSINESS LICENSE FOR IF IT'S NOT EVEN A RECOGNIZED USE IN THE CODE.

SO I'M VERY AMBIVALENT.

I SEE MORE OVERLAP BETWEEN MEDIA PRODUCTION AND ARTS/CRAFTS STUDIOS THAN MY COLLEAGUE DOES.

SO I'M STILL SITTING ON THE FENCE AND I'M GOING TO LISTEN TO WHAT OTHER PEOPLE HAVE TO SAY.

I DID HAVE ONE -- CAN I ASK A QUESTION?
>> Vice Chair Gaffney: CAN WE ASK A QUESTION WITHOUT REOPENING THE PUBLIC HEARING?
>> Clerk: YOU CAN ASK A QUESTION OF STAFF.
>> D. Sanderson: I WILL GO TO STAFF THEN AND NOT THE OWNER.

THE BUSINESS LICENSES LAST ISSUED FOR THESE THREE TENANT SPACES, CAN YOU TELL ME WHAT THEY ARE?

HAS ANYBODY LOOKED AT THE BUSINESS LICENSES FOR THESE LAST THREE TENANT SPACES?
AND THAT WILL TELL YOU THE LAST LEGAL USE.
>> SO WE DID DO PRETTY COMPREHENSIVE RESEARCH AND I DON'T HAVE THAT WITH ME HERE TONIGHT.

I THINK THE ISSUE AT HAND IS WHAT WAS THE ESTABLISHED USE IN THAT DATE IN 1989.

AND THE PERMITS FOR BOTH THE BUILDING, THE ORIGINAL CONSTRUCTION

OF THE BUILDING AND THE ADDITION WERE -- SORRY, I'M GOING TO REFER TO THE STAFF REPORT.
>> D. Sanderson: WHERE ARE YOU?
>> I'M LOOKING AT PAGE 8.
>> D. Sanderson: OKAY.
>> SO IN 1971 IT CONTAINED THREE RECORDING STUDIOS. THEN EXPANDED INTO FILM PRODUCTION, KNOWN AS FANTASY FILMS.

THEN SAUL ZAENTS MEDIA CENTER OPENED IN 1980 WHICH HAD A MEDIA PRODUCTION CENTER AND FOURTH RECORDING STUDIO.

SO DURING THE TIME OF CONSTRUCTION IT WAS, AND THE SUBSEQUENT EXPANSIONS, IT WAS MEDIA PRODUCTION.

ADDITIONAL BUSINESS LICENSES WERE, STARTED TO BE GRANTED IN WHERE DID IT GO?
STARTED IN 1998, AFTER THE 1989 CUT-OFF FOR DETERMINING WHETHER OR NOT THE USE WAS PROTECTED.
>> D. Sanderson: THANK YOU, I'M THINKING.

GO ONTO SOMEONE ELSE.
>> Vice Chair Gaffney: OKAY, COMMISSIONER O'KEEFE?
>> S. O'Keefe: SO I THINK WE CAN ALL AGREE THERE'S AMBIGUITY HERE.

IT SAYS THAT ART USES ARE PROTECTED, MEDIA PRODUCTION IS NOT.

THEN WHAT IS ART.

THE IDEA THAT THE GOVERNMENT CAN SAY WHAT AND WHAT ISN'T ART IS WRONG AND I REJECT THAT.

I APPRECIATE A LOT OF THE ARGUMENTS HERE, WHAT I DO IS ART, WHY

WOULDN'T YOU CONSIDER IT TO BE ART, I DO CONSIDER IT TO BE ART AND NO ONE SHOULD HAVE TO DEFEND THAT.

NO ARTIST SHOULD HAVE TO DEFEND THEIR WORK AS ART.

I REJECT THE IDEA WE HAVE TO DRAW A BOUNDARY AROUND THAT, ESPECIALLY WHEN THERE'S AMBIGUITY.

SO, THERE'S THE SPIRIT OF THE LAW AND THE LETTER OF THE LAW, OKAY.

I'M ACTUALLY USUALLY A LETTER OF THE LAW PERSON, I'M KIND OF INTO THAT, AS I MENTIONED IN THE LAST ITEM.

BUT IN THIS CASE, THE LETTER OF THE LAW IS NOT VERY HELPFUL.

I THINK THE LETTER OF THE LAW IS KIND OF RIDICULOUS, HONESTLY, AND IT CERTAINLY ALLOWS ROOM FOR US TO KIND OF LOOK ELSEWHERE.

SO LET'S LOOK AT THE SPIRIT OF THE LAW.

THE SPIRIT OF THE LAW SAYS THAT ESSENTIALLY YOU CAN'T KICK OUT ARTISTS. THAT'S THE SPIRIT, THAT'S WHY WE HAVE THE PROTECTED USE CLAUSE.

PLEASE DON'T KICK OUT ARTISTS, WE WANT TO PROTECT THAT.

THEY AREN'T SUPPORTED BY THE MARKET ECONOMY VERY WELL, THEY ARE VALUABLE IN OTHER WAYS, KEEP THEM.

THAT'S THE SPIRIT OF THE LAW.

SO I DO THINK THAT, WELL, STAY WITH ME, DON'T GET TOO EXCITED.

I DO THINK THIS IS A PROTECTED USE.

I WOULD ABSOLUTELY SAY THIS IS AN ARTS/CRAFTS STUDIO USE.

I'M NOT SURE ABOUT THE STAND-ALONE USE ISSUE.

THAT'S ALSO PART OF THE LAW AND THAT IS LESS AMBIGUOUS.

I WAS GOING TO SAY YES ON THAT.

I WANT THE SPIRIT OF THE LAW TO BE EVOKED BUT I NEED TO FIND LEGAL JUSTIFICATION.

SO I'M VERY OPEN TO ARGUMENTS THIS WAS A STAND-ALONE USE.

IF YOU DECIDE THAT --
>> D. Sanderson: THE REASON I THINK THESE ARE STAND-ALONE USES,

IF YOU LOOK AT THE SAW-TOOTH BUILDING, WHICH HAS I DON'T KNOW

HOW MANY ARTISTS IN IT, THEY HAVE INDIVIDUAL SPACES AND THEY HAVE SOME SHARED SPACES. BERKELEY WENT THROUGH A BIG TO-DO ABOUT 2010 OR SO BECAUSE A LOT OF THOSE PEOPLE, AND MOST PEOPLE IN WEST BERKELEY HAD NEVER GOTTEN BUSINESS LICENSES.

SO THERE WAS A TO-DO, IF YOU WANT TO KEEP THIS SPACE, YOU HAVE

TO HAVE A BUSINESS LICENSE THAT SAYS YOU ARE AN ART/CRAFT

STUDIO, SO EACH ONE OF THOSE ENTREPRENEURS IN THAT BUILDING HAD TO GET THEIR OWN INDIVIDUAL BUSINESS LICENSE FOR THAT SPACE.

THEY DIDN'T GET A BUSINESS LICENSE FOR THE WHOLE BUILDING.

BECAUSE I THINK THERE MAY HAVE BEEN SOME IN THERE THAT WEREN'T ARTS AND CRAFTS, THEY WERE OTHER THINGS.

SO I THINK I'M USING THAT LOGIC TO SAY STAND-ALONE.

IT DOESN'T MEAN IT HAS TO BE A LITTLE STAND-ALONE TINY BUILDING.

IF IT DID, WE WOULD HAVE NO ARTS AND CRAFTS STUDIOS, VERY FEW.

BUT IF WE GAVE BUSINESS LICENSES TO ARTS AND CRAFTS STUDIOS IN

THE SAWTOOTH BUILDING AND WE LICENSED THEM AS ART AND CRAFTS

STUDIOS, SO THEY WERE, IT WAS THE INDIVIDUAL USE IN THAT SQUARE FEET THAT WAS THE USE WAS ESTABLISHED.

AND SO --
>> S. O'Keefe: SORRY, CAN I ASK, IS THERE PRECEDENT FOR ONE OF THOSE BUSINESSES BEING RECOGNIZED AS A PROTECTED USE BY ITSELF? >> D. Sanderson: YEAH.
>> S. O'Keefe: DO WE HAVE THAT AND WAS IT CHALLENGED?
>> D. Sanderson: IT WASN'T CHALLENGED.

IT'S THE WAY THE PLANNING DEPARTMENT INTERPRETED THE ORDINANCE. >> S. O'Keefe: IN THE CONTEXT OF PROTECTED USE?
>> D. Sanderson: YEAH.

WE SAID YOU'RE NOT PROTECTED, UNLESS YOU HAVE A BUSINESS LICENSE ESTABLISHING THIS AS A LEGAL USE.

AND YOU KNOW, PEOPLE HAD BEEN THERE FOR DECADES. BUT THAT'S WHY I THINK IT APPLIES.

WE CHANGE USE, WE DON'T APPLY IT TO THE WHOLE BUILDING. WE APPLY IT TO THAT CHUNK OF REAL ESTATE.

THAT LITTLE SPACE, SO.
>> S. O'Keefe: THAT MAKES A LOT OF SENSE TO ME.

I'M ALMOST CONVINCED.

I'M GOING TO KEEP LISTENING.
>> Chair Duffy: NOT TO TALK GENERALLY BUT TO TALK ABOUT STAND- ALONE USE I WOULD CONCUR IN THAT AS WELL.

THAT'S ONE OF THE MANY PROBLEMATIC PIECES OF TRYING TO DEFINE AND CATEGORIZE WHAT CREATIVE CLUSTERS OF AMAZING CREATORS DO.

THERE'S NO SIMPLE WAY OF CODIFYING IT AND THAT'S THE DIFFICULTY

HERE, BUT THAT STAND-ALONE USE, MY THOUGHT ALSO DOESN'T MEAN STAND-ALONE USE IN A STAND-ALONE BUILDING.

AND THAT ACTUALLY, IT IS ESSENTIAL FOR THE CREATIVE COMMUNITY TO

CLUSTER AND TO FLEX AND TO BE VERY DIFFERENTIATED AND

COLLABORATIVE IN THE MANY DIFFERENT WAYS THEY WORK AS INDIVIDUAL

PEOPLE, EVEN UNDER ONE PARTICULAR LICENSE OR TEN PARTICULAR BUSINESS LICENSES.

SO THAT'S MY GENERAL TAKE TOO, I JUST APPRECIATE YOUR
DEFINITION.

>> Vice Chair Gaffney: COMMISSIONER YUNG?
>> B. Yung: JUST A QUESTION FOR STAFF REAL QUICK.

DO WE KNOW WHAT, I MEAN I'M SURE THE ENTIRE ENTITLEMENTS PROCESS

MIGHT HAVE BEEN DIFFERENT BACK THEN, BUT DO WE KNOW WHAT CONDITIONS/UNI PERMIT WERE APPLICABLE AT THAT TIME?
>> D. Sanderson: AT THE TIME WE HAD THIS DEFINITION AND THAT WAS IT.

THERE WAS NO OTHER LANGUAGE WE PULLED FROM SOMEWHERE.

IT UNFORTUNATELY -- WE HAD TO DO SOMETHING IN ORDER TO IMPLEMENT THE WEST BERKELEY PLAN.

WE COULDN'T JUST SAY LOOK, AND THIS WAS AS BEST WE COULD DO AT THE TIME OF THAT.

AND YOU KNOW, I CONFESS AT THE TIME IT DIDN'T, THERE WAS CLEARLY, THERE WERE CLEARLY OVERLAPPING ASPECTS.

BUT NOBODY COULD COME UP WITH ANY BETTER WORDS.

I MEAN WE PROBABLY COULD NOW IF WE THOUGHT ABOUT IT AND WE WATCHED HOW IT'S WORKED OVER TEN YEARS.

OR NOT WORKED.

I THINK IT'S INTERESTING THAT WE HAVEN'T, THIS HASN'T COME TO US BEFORE.

I MEAN I'VE ONLY BEEN HERE FOR A COUPLE YEARS, I GUESS.

I DON'T REMEMBER ANY OF THE ISSUE COMING UP OTHERWISE.

YOU ALL WHO HAVE BEEN ON THE ZAB LONGER WOULD REMEMBER THIS WHOLE DISCUSSION.

ANYWAY, I'M GOING TO SHUT UP.
>> Vice Chair Gaffney: NO, WE APPRECIATE YOUR FEEDBACK.

DOES ANYONE ELSE HAVE ANYTHING TO CONTINUE ADDING TO SUCH A COMPLEX DISCUSSION?
ON STAND-ALONE USES.

ARE WE ANYWHERE TOWARDS A MOTION?
COMMISSIONER YUNG, WOULD YOU LIKE TO GO?
>> B. Yung: I WOULD LIKE TO MAKE A MOTION TO UPHOLD THE APPEAL AS ITS PRESENTED.
>> S. O'Keefe: SECOND.
>> Vice Chair Gaffney: ALL RIGHT.

IS THERE ANY ALTERNATE MOTIONS, DISCUSSION ITEMS?
>> Chair Duffy: WE CAN DISCUSS THE MOTION.
>> Vice Chair Gaffney: COMMISSIONER YUNG?
>> B. Yung: JUST IN THE SPIRIT OF FLESHING OUT OUR LOGIC AS A BODY, SO THE POINTS REGARDING A STAND-ALONE ARE REALLY VALID.

IT BEGS THE QUESTION.

SO IN THIS CASE, IF STAND-ALONE WERE TO NOT ENTAIL A SINGLE

OPERATION ON A SITE, IMAGINE A STAND-ALONE BUILDING WITH ONE

BUSINESS OPERATING IN IT, THEN I GUESS MY QUESTION IS, WHAT IS THE INTERPRETATION?

AND IT SOUNDS LIKE THE INTERPRETATION WE ARE LANDING ON IS A UNIT, YOU KNOW, FOR EXAMPLE, THE SAWTOOTH BUILDING.

HOWEVER, I STILL THINK THAT WOULD RENDER THE DEFINITION

INTERNALLY INCONSISTENT IN THAT IT EXPLICITLY PERMITS LIVE/WORK,

WHICH IN AND OF ITSELF IS A FORM OF A MIXED USE THAT SHARES THE SAME CONDITION SPACE.

SO I GUESS I'M STILL A LITTLE UNEASY WITH THE INTERPRETATION WE ARE LANDING AT.
>> D. Sanderson: LET ME ADD A LITTLE BACKGROUND ON LIVE/WORK.

YOU CAN HAVE FOUR LIVE/WORK UNITS. EACH ONE GETS A SEPARATE BUSINESS LICENSE.

IT'S ABOUT WHO IS OPERATING IT AND WHAT ARE THEY DOING.

ANOTHER INDUSTRIAL CASES YOU HAVE A WHOLE BUILDING THAT'S, YOU

KNOW, MAKING SAKE, I MEAN ALL OF THOSE PIECES OF ACTIVITIES ARE ALL AROUND MAKING SAKE.

SO THAT HAS A MANUFACTURING USE.

THAT'S ESTABLISHED ON THAT SITE.

SO LIVE/WORK, IT'S THE WORK PART THAT I THINK IS WHY IT WAS

BROUGHT IN HERE AND THERE ARE SEVERAL PLACES WHERE LIVE/WORK HAS TO BE AN ARTS AND CRAFTS STUDIO.

YOU KNOW, WITH ALL THE BEST INTENTIONS TO PROTECT ARTS AND

CRAFTS STUDIOS, IN ESSENCE TO TRY TO CHANGE THE COMPETITIVE

RENTS OF ARTS AND CRAFTS STUDIOS VERSUS R&D, IT WAS AN EFFORT TO

TRY TO PREVENT THE ARTS/CRAFTS STUDIOS FROM BEING SWALLOWED UP BY R&D WHICH AT THE TIME THERE SEEMED TO BE A BOTTOMLESS DEMAND.

I'M NOT SURE THAT'S STILL TRUE ANY MORE.

BUT I THINK THE STAND-ALONE -- I MEAN, LAND USE IS ALL ABOUT WHO IS DOING WHAT, WHERE.

I DON'T CONTROL THE GUYS ACROSS THE HALL WHO MAY BE MAKING WIDGETS THAT ARE UGLY.

BUT I CAN CONTROL, IF I'M THE ARTIST, I CAN CONTROL WHAT HAPPENS IN MY SPACE.

SO I'M VERY COMFORTABLE SAYING THAT IT GOES BY THE SPACE.

IT DOES NOT GO BY THE BUILDING.

BECAUSE WE HAVE MANY BUILDINGS THAT HAVE MULTIPLE USES IN THEM, AND EACH ONE GETS A SEPARATE BUSINESS LICENSE FOR THEIR USE.

SO I'M GOING TO SHUT UP AGAIN.
>> S. O'Keefe: I'LL JUST JUMP IN AND SAY THAT MAKES PERFECT SENSE.

YOU HAVE 100% CONVINCED ME.

I THINK THAT'S EXACTLY RIGHT.
>> B. Yung: I WILL ADD, THE ONLY REASON I BROUGHT THAT UP IS

WHEN WE APPROVE LIVE/WORK UNITS WE LITERALLY HAVE DIAGRAMS THAT SHOW WHAT PERCENTAGE OF THE SQUARE FOOTAGE ARE LIVE AND WORK.

YOU CAN CONSIDER LIVE/WORK SLASH ALL THIS I GUESS UNDER THE SAME

USE OF ART/CRAFT, JUST FOR MY OWN --
>> D. Sanderson: YOU HAVE TO GET A BUSINESS LICENSE FOR THE WHOLE [ OFF MIC ]
>> B. Yung: OKAY, LAST QUESTION.

SORRY.

IF WE ARE LANDING AT THIS PLACE, YOU KNOW, I THINK ONE QUESTION

THAT'S WORTH IT TO ADDRESS OR MAKE SURE WE ARE GIVING SUFFICIENT

ATTENTION TO IS, SO IF THIS IS THE CASE, IN WHAT EXAMPLE WOULD THERE BE A MEDIA PRODUCTION USE?

SINCE ART/CRAFT STUDIO, THE VERY LAST SENTENCE SAID MEDIA PRODUCTION IS NOT A PROTECTED USE.

SO THESE THINGS ARE MUTUALLY EXCLUSIVE.

WHAT TYPE OF USE.
>> S. O'Keefe: CORPORATE TRAINING VIDEOS. RIGHT?
I ASKED THAT QUESTION.

CORPORATE TRAINING VIDEOS. I ASKED THAT QUESTION, AND THAT'S THE ANSWER.

I GUESS.

MEDIA WITH NO ARTISTIC VALUE, WHATEVER THAT MEANS, RIGHT? IF YOU COULD ESTABLISH THAT.
>> D. Sanderson: IT'S HARD FOR ME TO EVEN IMAGINE THERE'S NO ARTISTIC VALUE IN A TRAINING VIDEO.

YOU KNOW.

I GUESS WHERE I AM ON THIS IS IN THE PAST, THE CITY, I WOULD SAY

LEANED TOWARD R&D BECAUSE THAT'S WHAT WE THOUGHT WAS GOING TO BRING IN THE ECONOMIC BENEFIT TO WEST BERKELEY.

BUT IT'S REALLY, AND I DON'T KNOW HOW -- I THINK THERE ARE OVERLAPPING DEFINITIONS.

WHICH PUT US IN A BIND.

AND I THINK TO GO BACK TO THE PURPOSE, AS LAID OUT IN THE WEST

BERKELEY PLAN, AS A WAY TO DEAL WITH THAT AMBIGUITY MAKES PERFECTLY GOOD SENSE TO ME.

AND THAT'S THE WEST BERKELEY PLAN WAS ABOUT PROTECTING CERTAIN USES AND NOT PROTECTING OTHER USES.

SO I WILL SUPPORT THE MOTION.
>> Vice Chair Gaffney: ALL RIGHT.

THIS HAS BEEN A VERY INTERESTING DISCUSSION.

SO I GUESS EVEN TO KIND OF CLARIFY, WE ARE SAYING THAT THERE WAS MORE THAN, THERE WERE MULTIPLE USES BACK WHEN 19, WHEN WAS THAT, THE YEAR THIS WAS ESTABLISHED?

SO WE ARE SAYING, THE ONLY JUST TO PLAY DEVIL'S ADVOCATE ON THAT

IT IS KIND OF SAYING HERE IS ONE BIG COMPANY, AT LEAST BACK AT

THAT TIME, RATHER THAN A SERIES OF SMALLER COMPANIES OR DIFFERENT USES.
>> D. Sanderson: NO, I MEAN, MY REMEMBER OF SAUL ZAENTZ STUDIO, IT WAS STILL CLUSTERS OF INDIVIDUAL ARTISTS. I THINK IT WAS ALWAYS THAT WAY.

SO THEN THE PRESSURE ON THESE DEFINITIONS CAME BECAUSE SOMEONE

WANTED TO CONVERT SOME OF THAT SPACE TO SOMETHING THAT WAS NOT ART-RELATED.

AND THERE WAS THIS BIG DISPUTE BETWEEN R&D AND ART AND HOW DO YOU ALLOW SOME R&D TO COME IN WITHOUT ALLOWING IT TO TAKE OVER.

SO THAT'S WHY YOU HAVE THE PERMIT STANDARDS, IF IT'S UP TO 20,000 SQUARE FEET, YOU CAN DO IT.

IF IT'S OVER, YOU NEED A USE PERMIT OR WHATEVER, WAS TO TRY TO STRIKE A BALANCE BETWEEN THOSE TWO COMPETING USES.

AND, ANYWAY.
>> Vice Chair Gaffney: THANK YOU, I REALLY APPRECIATE THAT CLARITY.
>> Chair Duffy: I WOULD JUST, AS THE MAKER OF THE MOTION, FIRST

OF ALL, AND JUST SAY THANK YOU TO THE CREATIVE COMMUNITY IN WEST

BERKELEY FOR ALL THAT YOU HAVE DONE, MUCH OF WHICH I DON'T KNOW, SOME OF WHICH I DO.

AND I FEEL VERY PROUD OF YOUR WORK, YOUR CULTURE WORK, THE RELEVANCE OF YOUR WORK.

AND I, ASIDE FROM THE CODEFICATION OF WHAT YOU MIGHT DO OR NOT

DO, I JUST WANT TO SAY I APPRECIATE BEING IN THE PRESENCE OF YOUR WORK.

I APPRECIATE THE VALUE OF YOUR WORK, AND SOME OF WHAT I HAVE SEEN.

I REALLY FEEL LIKE FOR A COMMUNITY LIKE YOURS TO CONTINUE TO BE

AS INFLUENTIAL AND AS CREATIVE, IT'S ESSENTIAL THAT THE MIXING

AND THE COLLABORATION AND THE AMBIGUITY AROUND WHAT WE DO IS HOW WE SUCCEED, YOU KNOW, AS A CREATIVE CULTURE-MAKING GROUP.

SO I JUST APPRECIATE WHAT YOU DO.

AND I THINK, I'M NOT CAUGHT IN THE WEEDS OF TRYING TO CODIFY WHAT YOU HAVE BEEN DOING ALREADY.

I BELIEVE FILM MAKING IS AN ART.

I BELIEVE YOUR WORK IS ART, AND I APPRECIATE YOUR WORK AS ART.

CODA SIDE, I JUST WANT TO SAY THAT.

AND THANK YOU.
>> S. O'Keefe: JUST TO COMMENT ON THE LAST COMMENT, ARTISTS ARE WHAT MAKE BERKELEY AMAZING MORE THAN ANYTHING ELSE.

SO THANK YOU.
.
>> Vice Chair Gaffney: WONDERFUL, WE ARE READY FOR A ROLL CALL VOTE.
>> Clerk: I HAVE A MOTION FROM CHAIRPERSON DUFFY AND

COMMISSIONER O'KEEFE TO UPHOLD THE APPEAL AND DENY THE
ADMINISTRATIVE USE PERMIT, FOR ZP 2023-0081.

WHEN I CALL YOUR NAME, PLEASE STATE YOUR VOTE.

ACTING CHAIRPERSON GAFFNEY?
>> Vice Chair Gaffney: YES.
>> Clerk: COMMISSIONER SANDER?
SON?
>> D. Sanderson: YES.
>> Clerk: COMMISSIONER YUNG?
>> B. Yung: NO.

IN THE MOST LOVING WAY POSSIBLE.

>> Clerk: COMMISSIONER O'KEEFE?
>> S. O'Keefe: YES.
>> Clerk: CHAIRPERSON DUFFY?
>> Chair Duffy: YES.
>> Clerk: THANK YOU.

JUST AS A REMINDER OF A QUORUM FOR A VOTE, THIS IS A COMMISSION OF NINE SEATS AND THERE'S ONE VACANCY.

THAT BRINGS US DOWN TO EIGHT.

THREE HAVE APPROVED LEAVES OF ABSENCES, THAT BRINGS US DOWN TO FIVE.

A QUORUM CONSTITUTES THREE.
>> D. Sanderson: SO WE HAVE A QUORUM BUT WE DON'T HAVE FIVE VOTES FOR ACTION.
>> Clerk: YES.

SO THE QUORUM BRINGS US DOWN TO THREE AND THE VOTES NEEDED FOR ACTION IS ALSO THREE.
>> Vice Chair Gaffney: ALL RIGHT.

SO, MOTION PASSES.
>> Chair Duffy: THREE IS A MAJORITY WITHIN FIVE.
>> Clerk: THAT IS CORRECT, THANK YOU.
>> Vice Chair Gaffney: ALL RIGHT.

SO YEAH, THE MOTION PASSES.
>> Clerk: IT IS APPEALABLE TO THE CITY COUNCIL.