WOLLMER v. BERKELEY











Filed 3/11/11 Certified for publication 3/30/11 (order attached)







IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

STEPHEN WOLLMER, Plaintiff and Appellant, v. CITY OF BERKELEY et al., Defendants and Respondents; R.B. TECH CENTER LP et al., Real Parties in Interest and Respondents.

A128121 (Alameda County Super. Ct. No. RG09457010)

Appellant Stephen Wollmer asks this court to reverse the denial of his petition for administrative mandamus challenging two approvals by respondents City of Berkeley and the Berkeley City Council (collectively, the City) for a mixed-use affordable housing or senior affordable housing project located at 1200 Ashby Avenue.[1] Specifically, he denounces the approvals as violative of the state's density bonus law as well as the California Environmental Quality Act (CEQA).[2] We conclude the trial court properly denied the petition and entered judgment in favor of the City; accordingly, we affirm the judgment.
I. FACTUAL BACKGROUND
The site of the proposed projects at 1200 Ashby Avenue consists of 0.79 acres, located at the southeast corner of San Pablo Avenue and Ashby Avenue in Berkeley. Currently vacant, the northern portion of the site previously was a gas station, and the soil has been remediated. The area generally has been developed with one- and two-story commercial and mixed-use buildings. It abuts a lower-density residential neighborhood to the east and a light industrial/commercial district to the west.
A. The Affordable Housing Project
In November 2007, real parties in interest[3] submitted an application to the City for a new mixed-use building with condominiums (some affordable), retail space and parking (the Affordable Housing Project). With the submission of a revised application in April 2008, the application was deemed complete for processing. In January 2009, the Berkeley Zoning Adjustments Board approved the use permit application for a five-story building with 98 residential units (including 15 affordable units); 7,770 square feet of ground floor commercial space; 114 parking spaces; and a five-foot right-of-way to the City to accommodate a new left-turn lane to alleviate traffic concerns. From the beginning the Developers sought approval of a density bonus as provided under state and local law. The use permit qualified the Developers for a minimum 32.5 percent density bonus under Government Code[4] section 65915 because, at the Developers' option, 20.3 percent of the base units would be affordable to low-income households if built as condominiums, and 10.8 percent of the affordable units would be affordable to very-low-income households if built as rentals.
Wollmer appealed the zoning adjustments board's decision and the City affirmed.
Prior to determining the project's status under CEQA, the City undertook a traffic analysis, particularly focused on traffic impacts to the San Pablo/Ashby intersection. The traffic study projected that on a typical weekday, the proposed project would generate approximately 34 trips during the morning peak hour and 41 trips during the afternoon peak hour; on Saturdays, the project was expected to generate 71 trips during the peak hour. The study concluded that â€