Berkeley Municipal Code Ch. 11.56 Development Limited on the Waterfront

The people of the City of Berkeley find that it is in the public interest to preserve and protect the open space, views, wetlands, tidal mudflats, seasonal ponds, wetlands-type environment, creeks, meadows, beaches and the low density character of the unique and irreplaceable waterfront area of the City, being all that land in the City of Berkeley generally adjacent to San Francisco Bay and lying west of Interstate Highway 80 and east of Marina Boulevard.

The people of Berkeley further find, based on numerous scientific studies and data, including those developed during the Waterfront Planning Process of 1984-86, and in the draft Environmental Impact Report of June 1986, that the portion of the waterfront area south of the northern edge of Virginia Street (as extended westward), and including School House Creek, constitutes environmentally sensitive, irreplaceable, and unique wetlands, marshes, seasonal ponds, meadows, wildlife habitat, and other features of the natural ecology; and that it is in the public interest to preserve, protect, reclaim, and restore all said portion of the waterfront in a natural, open, and undeveloped form.

These actions are necessary to protect the public health, safety, and welfare and to avoid unnecessary conversion of open space land to high density urban uses, thereby protecting against the resultant adverse impacts, such as: disturbance of wetlands and wetlands-type environment; destruction of wildlife habitat, including that of endangered and protected species; diminishing the ecological health of San Francisco Bay; hazards relating to geology, landfill, flooding, and earthquakes; destruction of scenic beauty; air, noise, and water pollution; increases in traffic on freeway, City streets, and intersections to unacceptable levels; rise in housing costs and subsequent displacement of low-income people from contiguous neighborhoods in West Berkeley; and other demonstrated consequences of overly dense urban development. (Ord. 5788-NS § 1, 1986)

The purpose of this chapter is to establish policies and uses which:

A. Provide special protection to the unique and irreplaceable San Francisco Bay shoreline ecology, including, but not limited to, seasonal ponds, wetlands, mudflats, meadows, beaches, marshes, creeks, and tidelands;

B. Protect the open space and enhance the recreational uses and low density character of the entire waterfront area;

C. Protect and preserve views from the waterfront to the rest of the City, and from the rest of the City to the waterfront;

D. Guarantee and maximize access to the shoreline area by citizens of Berkeley and the state of California and guarantee that a continuous shoreline corridor or esplanade at least one hundred feet wide shall be dedicated to the public for access by pedestrians, the disabled, and bicyclists; provided, however, that such access shall not damage the delicate ecology of the area; and

E. Ensure that any development in the waterfront area occurs in a prudent manner, while protecting the City’s residents from overly dense urban development in areas which are ecologically fragile and/or irreplaceable. (Ord. 5788-NS § 2, 1986)

A. Meadow. That area of the Berkeley Waterfront bounded by the freeway on the east, by the south sailing basin on the south, by Marina Boulevard on the west, and by the north sailing basin and by the northern edge of Virginia Street (as extended West to the Bay) on the north, commonly known as the Meadow, shall be retained as open space, except as provided in subsection C, 4 below. Open space uses which do not require the construction of structures on the Meadow may be allowed on the Meadow, provided that such uses are consistent with the findings, purposes, and policies stated above, and provided further that any adverse environmental impacts be satisfactorily mitigated on site.

B. Brickyard and Beach. That peninsular portion of the Berkeley Waterfront south of the Meadow to Emeryville, commonly known as the Brickyard, and that the water’s-edge portion of the waterfront south of University Avenue, commonly known as the Berkeley Beach, shall be retained as open space, except that a nature interpretive center of no more than one story, with a height of no more than twenty feet above current ground level, and with an area of no more than five thousand square feet of floor space may be constructed on the Brickyard. Open space uses which do not require the construction of structures on the Brickyard and Beach may be allowed on the Brickyard and Beach, provided that such uses are consistent with the findings, purposes, and policies stated above, and provided further that any adverse environmental impacts be satisfactorily mitigated on site.

C. North Basin Strip and Horse Barns.

1. That portion of the Berkeley Waterfront north of the Meadow, east of the Bay and south of Gilman Street, commonly known as the North Basin Strip; and that portion of the Berkeley Waterfront north of Gilman Street, east of the Bay, and south of the Albany city line, commonly known as the Horse Barns area, shall be designated for development.

2. The total amount of development allowed in this area may not exceed five hundred sixty-five thousand square feet. No building may be constructed which exceeds two stories, or which exceeds twenty-five feet above the current (1986) ground level, except that up to fifty thousand square feet of this amount of development may be placed in a third story, in a building or buildings not to exceed thirty-five feet in height above the current (1986) ground level, if the appropriate City Design Review Board determines that a plan which includes such increase in height is desirable both for aesthetic reasons and to carry out the policies set forth above. Permitted uses in this area are limited to the categories of uses for this area set forth in the draft Waterfront Specific Plan of May 9, 1986, (which categories include lodgings, conference center, restaurants, retail shops, recreational uses, and open space uses) plus buildings appurtenant to any open space use of the Meadow or Brickyard.

3. The above-described development may be allowed only if the landowner or developer establishes that any adverse environmental impacts, including, but not limited to, those described in the June 1986 draft Environmental Impact Report, including, but not limited to, traffic, geology, wetlands, and endangered-species problems, will be satisfactorily solved or mitigated. Any adverse impacts as to wetlands shall be mitigated on property within the Berkeley Waterfront, as defined above.

4. If the landowner or developer demonstrates to the City’s satisfaction that it is economically and legally infeasible to place all the development described in subsection C, 2, above, in a location north of Virginia Street (as extended westward), then the City may permit some of that development to be situated south of Virginia Street (as extended westward) provided: (1) that the amount of development (including structures and parking) located south of Virginia Street shall be kept to a minimum; (2) that any such development south of Virginia Street may occupy a site of no more than twelve acres of land; (3) that this development shall be located as far north and as far east on the Meadow as possible, and shall not encroach on that portion of the Meadow which is west of the North Basin Strip shoreline, if that line were extended due south to University Avenue; and (4) that the above-described development may be allowed only if the landowner or developer establishes that any adverse environmental impacts, including, but not limited to, those described in the June 1986 draft Environmental Impact Report, including, but not limited to, traffic, geology, wetlands, and endangered-species problems, will be satisfactorily solved or mitigated. Any adverse impacts as to wetlands shall be mitigated on property within the Berkeley Waterfront, as defined above.

"Economically and legally infeasible" is defined as follows: the landowner or developer must establish that there was a lease between it and the Pacific Racing Association which existed as of January 1, 1986; that said lease did and does render it legally and financially infeasible to construct the approved development on the North Basin Strip north of Virginia Street, that the lease represents the sole reason for any inability to develop prior to the lease’s expiration date, and that said lease cannot reasonably be modified at a reasonable cost. "Reasonable cost" means that the cost or fair market value of modifying the lease, as determined by the City, is such that it would not make the contemplated construction north of Virginia Street financially infeasible.

"To the City’s satisfaction", as used in this subsection, is defined as follows: the City Council must find, by a vote of more than two-thirds of the councilmembers, based on a preponderance of the evidence, that such development in this location is necessary to carry out the purposes and polices of this Chapter. (Ord. 5788-NS § 3, 1986)

Within six months of the effective date of this chapter the City of Berkeley’s Master Plan, Zoning Ordinance, and Waterfront Specific Plan shall be amended to incorporate and conform to the policies contained in this chapter. However, the policies contained in this chapter shall be in force as soon as the chapter takes effect. These policies shall be implemented in a manner which advances the findings and purposes listed above. (Ord. 5788-NS § 4, 1986)

This chapter is not intended to authorize, and shall not be construed as authorizing, the City of Berkeley to exercise its power in a manner which will take or damage private property for public use. This chapter is not intended to increase or decrease the rights of any owner of property under the Constitution of the State of California or the United States. (Ord. 5788-NS § 5, 1986)

If any portion of this chapter is hereafter determined to be invalid, all remaining portions of this chapter shall remain in full force and effect, and to this extent the provisions of this chapter are severable. (Ord. 5788-NS § 6, 1986)

A. No part of this chapter shall be amended or repealed, except by a vote of the people. Notwithstanding the preceding sentence, the City Council may amend this chapter and the Waterfront Specific Plan to address changed circumstances since 1986, including changing the amount and type of currently authorized land uses on the remaining privately-owned property at the Berkeley Waterfront, so long as the development potential as allowed in the current Waterfront Specific Plan is not increased. In the event that the type or amount of development authorized is changed, any amendments shall ensure that the property owner’s constitutional rights are respected.

B. Any amendments adopted pursuant to this section shall be placed before the voters at the next general municipal election following adoption by the City Council. Any such amendments shall be adopted in the manner required by state and local law and that includes public and commission review. Any amendments adopted by the Council and proposed to the voters pursuant to this section shall be subject to environmental review under the California Environmental Quality Act prior to adoption. (Ord. 6722-NS § 2, 2002; Ord. 5788-NS § 7, 1986)

This chapter shall take effect immediately upon its passage by the voters of the City of Berkeley. (Ord. 5788-NS § 8, 1986)