The Berkeley City Council voted 5-4 Tuesday night to send a 57-unit project back to the zoning board for a third review and changes to the design.

The Berkeley City Council voted 5-4 Tuesday night to send a 57-unit project back to the zoning board for a third review and more changes to the design.

The vote Tuesday took place after neighbors appealed plans for a five-story building at 2701 Shattuck Ave., an oddly-shaped lot at the corner of Shattuck and Derby Street. The Zoning Adjustments Board gave substantial feedback on the project during two hearings in 2018 and approved it 7-1 (with one person absent) in November.

When zoning board members approved the project last fall, most said they would have liked to see a less dense option. But state law tied their hands, they said, as far as changes they could make. California’s Housing Accountability Act does not allow local jurisdictions to decrease density for infill projects that comply with zoning standards — unless findings can be made for “specific adverse impacts.”

Derby Street neighbor Todd Darling, who lives one house away from the corner lot, appealed the zoning board vote in December, citing concerns about sunlight, privacy, view and encroachment impacts. He also said there was a creek under the property that wasn’t considered by staff. (Staff said its research and records show that the creek now runs through a storm drain.) Darling told council the project was “bloated” and would limit his family’s ability to grow food and use its solar panels.

Public comment was relatively brief Tuesday night, with eight people speaking in favor of Darling’s appeal and three asking the city to uphold the approval and let the project move ahead.

Several officials and members of the public said they would like to see fewer parking spots in the 21-car garage on the ground floor. Stuart Gruendl, of applicant Bay Rock Multifamily, said Bay Rock had already taken out spots and made the garage smaller in response to a zoning board request. City staff initially said the parking could not be reduced further. But, after Mayor Jesse Arreguín cited a specific code section regarding use permits, staff said council did have the authority to make that change.

Councilwoman Sophie Hahn said she would like the zoning board to consider moving the northside stairwell to the east side of the building, pulling one wall back, moving the rooftop elements closer to Shattuck and potentially reducing parking to zero. She said she wanted the board to look at the encroachment onto the sidewalk where Bay Rock plans to have a corner café with a public seating area. Hahn also asked Bay Rock to look at putting more affordable housing units into the building and, perhaps, adding some live-work space.

The current plans call for five below-market-rate units in the building and a $1 million payment into the city’s affordable housing trust fund.

Some members of council said Tuesday that they want to encourage developers, going forward, to include more below-market-rate units on-site, because Measure O, the $135 million bond measure voters approved in November, will give the city more money for its affordable housing projects. State law prohibits the city from requiring developers to build on-site. But officials can make the request.

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Gruendl told Hahn her suggestions had already been discussed at length, and that the project had been “vetted twice” by both the zoning board and Design Review Committee. He said Bay Rock had made substantial changes to address the issues raised by neighbors. Gruendl explained that the project would not be able to secure financing if it did not include parking because the lenders “require a nominal amount [of parking] on-site.”

“They’re all great suggestions in a utopian world,” he told Hahn, of her ideas. “There’s only so much we can do without chopping off the density.”

Gruendel said, further, Hahn’s suggestions would require a “radical redesign that’s most likely impossible.”

City Attorney Farimah Brown advised council it would have to make “very strict findings” related to health and safety issues in the case of denial: “Denying or reducing density is not something that is advisable,” she said. The implication was that this could make the city vulnerable to legal action.

Mayor Arreguín said council was within its legal rights to suggest changes “to the actual massing and building form,” which he said officials had done previously with the Stonefire project on University Avenue. Staff agreed with his assessment.

“Changing the design of a project doesn’t mean we’re reducing the density,” the mayor said.

Councilman Rigel Robinson said he was “enthusiastic” about the project and did not think sending it back to the zoning board made sense. Councilwoman Lori Droste, too, balked at the idea of the remand, noting, “It seems we’re quite limited in what we can do.”

Councilwoman Susan Wengraf said she was concerned about the viability of the corner café. But she said she thought council should respect the zoning board’s “hours and hours of volunteer time” and its vote.

“I just think it sets a very bad precedent,” she said, of sending it back. “It’s not my favorite project, but we are committed to building housing. We should move forward on this.”

Ultimately, the mayor, Hahn, Kate Harrison, Ben Bartlett and Cheryl Davila voted to send the project back to the zoning board. The other four — Robinson, Droste, Wengraf and Rashi Kesarwani — were opposed.

Staff said it will take four to six months to get the project back before the zoning board, which has a “very full calendar.” Bay Rock submitted the project to the city in December 2016.

Update, 10 p.m. Multiple sources told Berkeleyside after publication that the project would need to go back before the zoning board within 90 days, as per the zoning ordinance. Scheduling is reportedly underway.