Nov 29 2013

New Interpretation of Charter Language Opens the Door to Big Zoning Changes

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Use changes would be individually based property rights 

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

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

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

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

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


4 Responses to “New Interpretation of Charter Language Opens the Door to Big Zoning Changes”

  1. where is “commercial zone D”? Highland Ave.? Grand Ave? Are they planning on putting multi family only in “lower Piedmont”?

    Editors’ Note: Commercial Zone D is both on Highland and Grand Avenues. The City’s plan is to allow multifamily in both commercial areas.

  2. This sounds a lot like the Moraga Canyon fiasco. Developers are being heard, but the dynamics of meetings are such that the public does not get a chance to opine. The council should pass this to the voters, not only because prudence dictates in response to the questionable way the discussion has been handled out of resident and voter earshot so far, but because the language is clear. We need Piedmont representatives that represent the public!

  3. What is the line between establishing a permitted new use and zone reclassification? Hard to say, but if single and multi family residential are different enough to require separate zoning, then it would seem commercial and mixed used operations should be as well. It’s clearly easier for the city to adopt mixed use as a new use and less riskier than going to the ballot, but there are substantive changes to the city character as a result of the proposed Chapter 17 revisions. For example, a mixed use development need only provide parking for the upstairs residential use – that will push parking for the commercial operation into the neighborhoods.

    There is some confusion in the use of the terms multi-family and mixed use. Multi-family is just that – only residential use, no matter how many floors – whereas mixed use is commercial on the ground, “multiple dwelling” on the second floor. So multiple dwellings can be multi-family, but the zones are different. And both can have between 2000 and 3600 square feet each. For example, Mulberry’s is roughly 6250 square feet and if converted to mixed-use could have 3 dwellings on top.

    One issue I have with this new permitted mixed use is that a “double standard” seems to be developing. There has been some discussion by Planning Commissioners, staff and the public at Chapter 17 hearings that different design guidelines should be adopted for the Grand Avenue mixed use zone and for the Highland/Civic Center zone. For example, the current proposed Chapter 17 changes stipulate 80% lot coverage, but there seems already to be a willingness to change that to 100% for the Grand Avenue zone. That should be better clarified before these revisions are adopted.

  4. We will have to see at this Monday’s Council meeting if Mr. Wieler will back his previous comments with a motion to take another direction rather than approve the staff plan of reclassifying zone D.

    Other’s concerns about a two-tiered system in Piedmont are well founded and an ongoing issue. Of course multi-use will be allowed on Grand Avenue with 100% hardscape, as John Malick recommended, but this will never occur around City Center. Let’s get real.

Leave a Comment