Should a Zoning Amendment be Adopted to Allow Development Flexibility for Existing Public Libraries?

Introduction

Should the Berkeley City Council
1. Adopt Resolution certifying Final EIR for the proposed Amendment?;
2. Adopt first reading of an Ordinance to add BMC Section 23C.04.076 to allow (a) existing public libraries to be changed, expanded, or replaced by a new public library on the same site following demolition, and (b) modification of any Zoning Ordinance requirement applicable to such projects with a Use Permit, rather than a Variance?

FISCAL IMPACTS OF RECOMMENDATION 

By removing the requirement for Variances, the amendment would result in reduced application fees for qualifying library projects. 

CURRENT SITUATION AND ITS EFFECTS 

The proposed Zoning Ordinance amendment (ZOA) would add a new section (23C.04.076) within BMC Chapter 23C.04 (“Conforming and Non-Conforming Uses, Buildings, and Lots”) that would allow existing public libraries, whether conforming or non-conforming, to be changed, expanded, or replaced by a new public library on the same site following demolition, and would also allow modification of Zoning Ordinance requirements applicable to such projects with a Use Permit, rather than a Variance. On March 2, 2011, the Planning Commission recommended approval of the proposed ZOA. 

BACKGROUND 

On November 4, 2008, Berkeley voters approved Measure FF, which authorized up to $26 million in general obligation bonds to “renovate, expand, and make seismic and access improvements at four neighborhood branch libraries”. The Library’s web site provides the following information about the proposed improvements: 

“Most of Berkeley’s neighborhood branch libraries have not been renovated in more than 30 years, and findings from the recently completed Branch Libraries Facilities Master Plan indicate the buildings have crowded spaces, suffer from structural and infrastructure impairment, are not ADA-accessible and lack the infrastructure to meet current and future technology needs. With more than 800,000 visits during the year, the branches need substantial upgrades to ensure a safe environment and an efficient operating system. The revenue from the bond will bring the buildings up to current code standards; meet seismic requirements; make all of the branches fully accessible to Berkeley’s diverse population; provide environmentally sustainable “green” operations; and create adequate space for the Tool Library and the adult literacy program, Berkeley Reads. Renovations will include the restoration and preservation of historic features at the branch libraries.” 

The existing branch libraries were constructed between 1923 and 1961 and are lawful non-conforming uses and/or buildings. This status is based in part on intervening changes to the Zoning Ordinance and the current configurations of the sites. It has become clear during the preparation of schematic designs that the improvements being proposed would not comply with several requirements of the Zoning Ordinance, including but not limited to off-street parking, lot coverage, and setbacks. Although the improvements are not intended to expand library collections, programs, or staffing, it has proven difficult to comply with current zoning requirements because the libraries are located on relatively small sites with insufficient space to accommodate wider corridors, larger bathrooms and staff areas, and other needed upgrades while still meeting the zoning requirements. 

Under the current Zoning Ordinance, there is no provision to modify these requirements for libraries, except with a Variance. Given the difficulty of making the required findings for a Variance, and the public support for the proposed improvements as evidenced by passage of Measure FF, staff prepared this ZOA to allow the Zoning Adjustments Board (ZAB) to modify the requirements of the Zoning Ordinance with a Use Permit. 

On May 26, 2010, the Planning Commission voted 7-2 to recommend approval of an earlier, slightly different version of the ZOA to the City Council1. On June 29 and July 6, 2010, the Council adopted the first and second readings, respectively, of the ZOA, and the ZOA took effect on August 9, 2010. In August 2010, an unincorporated association known as “Concerned Library Users” filed suit challenging the ZOA, claiming that the City was required to have prepared an environmental impact report (EIR) before adopting it, because it would have the effect of allowing demolition of historic resources, namely the South and West neighborhood branch libraries. Since the City had already determined to prepare an EIR on each of those projects, it combined those two EIRs and added the ZOA to the scope of the combined EIR. 

On December 14, 2010, pursuant to a partial settlement with the litigants, the Council repealed the ZOA. On January 19, 2011, the Planning Commission held a public hearing on the Draft EIR for the ZOA, and on March 2, 2011, the Commission held a public hearing on the ZOA and recommended that the City Council approve the ZOA by a vote of 5-2-1-1 (Yes: Clarke, Novosel, Samuels, Stoloff, White; No: Dacey, Poschman; Abstain: Washington; Absent: Pollack). 

Footnote 1 This earlier version was identical to the current version except that it read “demolished and a new public library constructed on the same site” rather than “replaced by a new public library on the same site following demolition”. This language was revised to make it abundantly clear that a new library may only be built if the existing library is demolished (not merely changed or expanded). 

The Commission’s recommendation includes the change noted in footnote 1 above (and shaded in the following paragraph), but does not include five other changes that would have addressed concerns voiced at the January 19, 2011 hearing and in written comments on the Draft EIR (items [a] through [e] of the following paragraph): 

Notwithstanding any other provision of this Title, any conforming or lawful non- conforming public [a]branch library existing as of May 1, 2010 may be (1) changed, (2) expanded, or (3) replaced by a new public library on the same site following demolition, subject to issuance of a Use Permit[b]. This provision shall not nullify any existing provision of this Title that would allow such change, expansion or new library subject to a Zoning Certificate or Administrative Use Permit, unless such change, expansion or new library is otherwise allowed by this Title. The Board may modify any requirement of this Title applicable to such change, expansion or new library [c]subject to issuance of a as part of the Use Permit [d], except that height shall be limited to two stories and 35 feet. [e]This section shall apply only to Use Permit applications filed before January 1, 2015. 

Items [a] and [e] would have limited the scope of the ZOA to address concerns that changes to the Central Library, and future changes to the branch libraries beyond the current Measure FF projects, could conceivably occur under the ZOA. Staff did not recommend these changes because, as a matter of policy, there is no reason to treat the Central Library differently than the branch libraries, or to limit the ZOA to the current branch library projects. While no specific projects are foreseeable, staff nonetheless anticipates that over a long period of time, perhaps 50 to 100 years, due to normal aging of buildings, changes in library technology and practices, user needs, and other factors, some kind of expansion or renovation project is likely to occur at all of the City’s public libraries, including the Central Library. Because public libraries are a unique use that cannot easily be accommodated within the normal zoning requirements, but which may not qualify for a Variance, staff believes it is an appropriate policy to allow long- term flexibility to modify zoning requirements for such future projects, including for the Central Library. The Planning Commission concurred with staff and did not include these changes in its recommendation to Council. 

Items [b] and [c], which staff drafted in response to a suggestion from Commissioner Poschman, would have further clarified that if a particular project is already allowed with a Zoning Certificate or Administrative Use Permit, those provisions would still apply. Staff did not recommend these changes because staff felt that the ZOA was already clear on this matter. The Planning Commission concurred with staff and did not include these changes in its recommendation to Council. 

Item [d] would have addressed Commissioner Poschman’s concern that the ZOA could allow modification of the height standards, potentially allowing future library additions or buildings up to five stories in height or taller. Staff did not recommend this change because, while it is possible, but speculative, that such buildings could be approved under the ZOA, such buildings would be subject to CEQA review, public hearings, and a finding of no detriment, and would require approval by the Zoning Adjustments Board and, on appeal, of the City Council. The Planning Commission concurred with staff and did not include this change in its recommendation to Council. 

RATIONALE FOR RECOMMENDATION 

The proposed amendment is necessary and appropriate for the following reasons: 

 As discussed above, Berkeley voters have expressed support for the proposed branch library improvements by passing Measure FF. Without a zoning amendment, the Measure FF improvements would be more difficult or impossible to carry out due to the need for Variances. 

 Variances are generally quite difficult to approve. Although one of the Commissioners suggested that the City could be more flexible in its interpretation of the Variance findings, the current approach to the Variance findings is based on the plain language of the findings, and on consistent, longstanding advice from the City Attorney. Deviation from the current approach would be more vulnerable to legal challenge. 

 The amendment would more easily allow for substantial public benefits such as improved accessibility, seismic safety, and energy efficiency in the City’s branch libraries. 

 Staff has written the amendment to allow a broad range of improvements at the existing branch libraries, so that if future expansion or improvement of the libraries should be necessary, such projects could be carried out without Variances. Such projects would still be subject to a Use Permit, with a public hearing, a finding of no detriment, and an opportunity for appeal to the City Council. 

 Allowing broad flexibility to modify zoning requirements is appropriate because it cannot be anticipated at this time what the nature of future library improvements might be. In addition, there are adequate protections through the normal Use Permit process and the California Environmental Quality Act to ensure that any detrimental impacts of public library projects would be reduced or avoided. 

ALTERNATIVE ACTIONS CONSIDERED 

None. 

CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) 

The Draft EIR was made available for public review from December 14, 2010 to January 31, 2011. A number of comments were received, and staff has prepared responses to all comments in the attached Final EIR. 

CITY MANAGER 

The City Manager concurs with the content and recommendations of the Planning Commission’s Report. 

However, the Council may wish to adopt an alternate version of the ZOA that addresses concerns raised by some members of the public. While as discussed above staff does not feel these concerns are justified, the alternate version would not impair completion of the Measure FF program and the proposed projects for the South and West branch libraries, and would eliminate any basis for threatened further challenges to the ZOA. 

In brief, the alternate version of the ZOA limits its applicability to Measure FF projects, thus eliminating any possibility that the ZOA could be used to facilitate future modifications, beyond the extent of Measure FF projects, to any of the libraries. Both an alternate version of the ordinance amendments as well as an alternate version of the CEQA findings are attached should the City Council wish to consider this alternative.