Okay.

Good evening, everyone.

I'm calling to order a special meeting of the Berkeley City Council today.

It's February 23rd, 2026.

It is 6.04 p.m.

Clerk, can you please take the roll?

Councilmember Kessarwani.

Here.

Present.

Councilmember Bartlett is absent.

Trega present.

O'Keefe.

Here.

Blackaby.

Here.

Lunapara.

Here.

Humber present.

And Mayor Ishi.

Here.

Okay.

Quorum is present.

Very good.

So we have a few.

We had a few different items on our agenda this evening, but the first one has been withdrawn.

So we're going to move to item number two.

Um so item number two is the zoning adjustments board appeal for 2425 Durant Avenue, use permit application ZP 2024-0162.

And we will start off with a presentation from our.

Thank you, Mary.

Good evening, Council members.

I'm Jordan Klein, Director of Planning Development.

I'm joined here at the staff table.

At the far end, that's Sarah Price, Principal Planner, Neil's Karam Zadigan, Senior Planner, and Ann Hirsch, the landing's planning manager, and Nilo will be presenting for staff.

He's taken away, Neilo.

Actually, as you're gathering that together, I'm gonna do the report out language too, because I need to do that from the closed session.

So the mayor and council met in closed session and formed an ad hoc subcommittee consisting of Mayor Ishii, Vice Mayor Lunopara, and Councilmember Humbert to assist with the recruitment of the next permanent director of police accountability.

And that is our report out for closed session.

Thank you.

That's on.

All right.

Good evening.

My name is Nilukarim Zadagon, and the project before you is the appeal of the Zab approval for the project at 2425 Durant Avenue.

The project is to demolish three existing residential buildings, including 19 units, and construct a 20-story residential building containing 169 units, including 32 below market rate units.

In this presentation, I will go over the project scope, project timeline, density bonus information, appeal issues, and staff recommendation.

The project site is located to the west side of Telegraph Avenue and to the south of Bancroft Way within the residential Southside Mix Use District or RSMU.

Here is a south elevation of the existing buildings facing Durant Avenue.

Three existing two-story residential buildings, including 19 units, are proposed to be demolished.

Using state density bonus, the project proposes to construct a 20-story approximately 149,000 square foot residential buildings with 169 units, including six extremely low-income, seven very low income, six low income, and 13 moderate income units.

And major components of the proposed building are 169 units, including 105 studios, one bedroom, 46 two bedrooms, 17 three bedrooms for a total of 249 bedrooms.

Ground floor includes the lobby, mailroom, bike parking, as well as residential support facilities.

An indoor lounge is provided on level 8.

Community spaces on level 13.

Additional resident lounge on level 17, and a thousand square feet roof deck on level 20.

In November 2024, the use permit application was submitted, and the SB 330 pre-application vested the project.

LPC designated the project as a city landmark in March 2025.

And council reversed that decision in July 2025 because the project was vested prior prior to the landmark designation.

The project was approved at ZAB and appealed in October 2025 and is before you tonight.

This meeting represents the second public hearing for the proposed project since the project was deemed complete.

Under the city's density bonus procedure, the base project is 85 units as the maximum allowable density for the site by providing 13 very low income and 13 moderate income units on site, which is 30% of the 85 unit based density.

The project is eligible for 100% density bonus or 84 additional units for a total of 169 units.

This project is requesting three concessions and a number of waivers.

Concessions required for the requested for the project are apprenticeship requirement, health care expenditure, and prevailing wages.

Waivers requested on this project are removal removal of a coast live oak tree, usable open space, floor area ratio, height, setback, and bike parking.

On October 28, 2025, the Building and Construction Trade Council of Alameda County and the Northern California Carpenters Regional Council filed an appeal of the ZAP's decision to approve the project.

Appellants detail appeal letter is attached to the staff report.

And here I have a summary of the appeal points, and I will go over each point separately and staff response.

Appeal issue one: the provisions regarding apprenticeship requirements and health care expenditure are not appropriate subject of a concession because they do not pertain to development standards.

Staff responses that a concession can be used to reduce the cost of building affordable housing, and according to the definition of a concession, a concession can be a reduction in site development standards or a modification of a zoning code requirement or any other regulatory incentive.

Appeal issue number two.

The requested concessions would not result in identifiable and actual cost reduction.

Staff responses that according to the applicant, the requested concessions for exemption from the apprenticeship requirement, health care expenditure, and prevailing wages would result in cost saving as presented.

The city could reject the concession upon finding that they would not result in identifiable and actual cost reduction.

However, the requested concessions would result in identifiable and actual cost for a total cost reduction of 16,560,000 for the applicant.

And the city has no information to make any finding otherwise.

Therefore, the city cannot make a finding based on substantial evidence that this exception applies.

Appeal issue number three.

The concessions would have a specific adverse impact upon public health and safety.

Staff responses that the city may deny concessions only if it can make findings supported by substantial evidence that the concessions would cause a specific adverse impact on public health or safety.

State law defines specific adverse impact as a significant, quantifiable, direct, and unavoidable impact based on objective written health or safety standards in effect when the application was deemed complete.

Staff concludes that appellants have not provided sufficient evidence showing that concessions would create such an impact, and the city itself does not have other evidence that would support making this finding.

Therefore, staff advised that the city cannot make a finding based on substantial evidence that this exception applies.

For reasons stated in appeal point one, two, and three, staff find that these concessions are appropriate and that the city cannot make the factual finding necessary to deny them.

Finally, it has come to our attention that there was a typographical error in the conditions of approval for the project at 2425 Durant Avenue.

Condition number 65 was cut off.

The full text of the conditions should read as roofed off projections.

No additional rooftop or elevator equipment shall be added to exceed the approved maximum roof height without submission of an application for use permit modification, subject to board review and approval.

And then the subsequent conditions should be renumbered 66 through 70.

We request that council's action on this item if um it is approved.

Tonight's staff recommends that council conduct the public hearing and adopt the resolution to deny the appeal and approve the use permit ZP 2024-0162.

Thank you.

Thank you very much.

But I actually do want to see if there are any questions from council before.

And if there are no questions, I'll move on to the appellant.

You'll have five minutes to present.

And applicant, if you could just be ready in the wings.

Thank you.

Good evening, Mayor Ishii and members of city council.

My name is Jolene Kramer.

I'm an attorney with Weinberg Roger and Rosenfeld, and we represent the Building Trades Council and the Carpenters in making this appeal tonight.

We appreciate you hearing it.

I'm gonna try and go through the issues as quickly as I possibly can given the five-minute time limitation.

As you can see from slide one, we actually filed appeals on three different projects.

Um Scott Littlehale from the Carpenters will be presenting on the 2029 university project, and I understand 2298 is no longer at issue.

So I'll be addressing the 2225 Durant project primarily.

However, the same arguments do apply with respect to the concessions requested on 22 and 2029 university, with the exception of the prevailing wage issue, which was not one of the concessions sought for 2029 university.

In all three of these cases, the project applicants are requesting concessions under the density bonus law that would effectively exempt their projects from compliance with labor standards that the city of Berkeley specific specifically adopted for large-scale development projects.

Specifically, the applicants, and this applies to 2425 Durant has requested waivers of the prevailing wage requirement in the Southside plan, the health care expenditures requirement and the hard hats ordinance, and the apprenticeship participation requirement in the hard ads ordinance.

Each project applicant requested a different mix of concessions, but included at least two of the ZAB, approving the use permits with the proposed concessions.

One would be reversing the decisions of the ZAB only with respect to the concessions, but approving the remainder of the use permit.

And the third would be remanding to the ZAB to reconsider the applications and confer with the applicant regarding the grounds for its requested concessions.

For 2425 Durant, the applicant, yes, DAFE architects has applied for a use permit that includes these um concessions.

I won't go over them again.

We've already discussed them the apprenticeship, the health care, and the prevailing wage requirements.

The city should not grant concessions under the density bonus law that waive local labor standards.

This is a novel and unorthodox strategy to use the density bonus law to undermine local ordinances that promote worker retention and worker well-being.

Prior to 2425 durant, no project had received a concession related to hard hats or the South Side plan.

And we have confirmed that through public record act requests, which were attached to one of our appeals letters.

The density bonus law defines the concession or consentive as either a reduction in site development standards, approval of mixed-use zoning, or other regulatory incentives or concessions that result in identifiable and actual cost reductions to provide for affordable housing costs or for rents to be set at the statutory rate.

And of these options, it's only the third that we believe would arguably apply.

We're not claiming it's a reduction in site development standards.

However, even if a concession could result in identical and actual actual cost reductions, the city can deny that if the concession of one of the following applies if the concession would not actually result in cost reductions to provide for affordable housing, the concession would have a specific adverse impact upon public health and safety, or it would be contrary to state and federal law.

Perhaps more importantly, the original legislative intent of the density bonus law was to allow developers to build more affordable units as a social good.

Allowing a developer to avoid a labor standards requirement would do the opposite.

I'm just going to move a little quickly because I know I'm running out of time.

The concession as to the Southside plant's prevailing wage requirement is frankly even more offensive to public policy because it reduces worker wages and makes the housing they are building even less affordable to them, which is antithetical to the density bonus laws uh purpose.

The density bonus law should not be misused to allow developers to avoid labor standards or other societal benefits, especially when there has been no demonstration of an actual financial benefit.

As we argue in our letter, the city can and should request reasonable documentation to support the concessions that's allowed for in the statute and under case law.

Here in their application, the applicant did not provide any evidence or information to substantiate their requested concessions.

I'll say given the importance to the city of the high.

Of the high labor standards and hard hats in the south side plan, the city should exercise its right to seek information from the applicant, requiring them to make some showing as to how their requested concessions would actually save development costs and allow them to build more affordable housing.

In conclusion, we would like you to approve the projects without the requested concessions.

Thank you so much.

So, good evening, Madam Mayor, members of city council.

I want to thank you all for the time this evening and staff for the enormous amount of time helping us uh get to this point.

This is difficult evening.

We understand that.

I'm going to turn it over to uh Todd Williams right here.

He's our legal counsel uh for the project.

Um staff did a wonderful job of laying out the issues here tonight.

Uh I won't belabor them, so uh I will uh let Todd uh go ahead and take over at this point, and I'll come back at the end.

Great.

Thank you, Mayor and Council members.

Uh again, I'm gonna echo what Mark just said.

I think the staff report does a really great job of setting out the factual and legal structure, and we believe staff's recommendations should be followed.

I'm gonna focus on a few quick topics, uh, namely the nature of density bonus concessions and why approval in this instance is mandatory.

Uh let's see, as was discussed before, 16 and a half million dollars worth of cost savings uh resulting from these three requested concessions.

Let's go to the next slide.

So a concessions.

So they're defined three different ways in the density bonus law.

The two that are relevant here is a reduction of development standards, and this is including but not limited to uh basically regulatory requirements that result in identifiable and actual cost reduction.

Uh the third and very broad definition of concession is other regulatory incentives or concessions proposed by the developer, again, that result in actual and identifiable cost reductions.

Go ahead to the next slide.

So, what is a development standard?

So, development standard is not just zoning height, set back, parking ratios, it is a site or construction condition that applies to any residential development pursuant to any ordinance, could be a general plan, could be specific plan, charter, any local condition, law, policy, resolution, or regulation that is adopted by the local government.

It doesn't need to reside in the zoning code to be eligible to be uh for a concession to be used.

And additionally, uh the state density bonus law requires that the city, anyone interpreting it, interprets it in a way that is liberally in favor of producing the maximum amount of housing.

So the both HCD, the Department of Housing and Community Development, and uh case law have weighed in uh on issues relevant to tonight.

Specifically, there was a uh case in San Jose where HCD issued a technical memo and it discussed the breadth of a concession, and it found that the definition of concession is quote intentionally broad, and the definition clearly indicates that requirements beyond development standards are eligible as concessions.

Again, it's identifying regulatory requirements that result in identifiable and actual cost savings.

In that case, uh the eligible concessions were a waiver of a requirement to replace demolished uh commercial space with other commercial space, as well as using the city as a bonding uh as the issuer of bonds for multifamily development.

So those were both found to be uh eligible to be used for concessions to be used on.

Um I also want to point out in terms of development standard, appellate's first slide, politics counsel just said that hard hats and south side prevailing wage were specifically adopted for large-scale development.

These are development standards, they only apply to development larger than or 50,000 square feet or larger.

So clearly it's both a development standard and it falls into that broader sort of catch all definition of regulatory incentive.

Finally, uh I'll just touch briefly on uh let's go to the next slide.

Um, I'm sorry, back one.

Um basis to deny.

So we've already talked about one basis is uh are there actual cost savings?

Clearly, that's the that there are.

So the only other basis would be uh a specific adverse impact on public health and safety that can't be mitigated, and it has to be based on objective, identified written public health and safety standards policies or conditions.

And the housing accountability act states that such instances are infrequent here.

Here, what's being relied on are statistical connections and national numbers, not a specific health and safety standard that resides in the Berkeley Code.

Without that, there simply is not the evidence to support a finding uh of denial.

I'll just share this slide with you.

In addition to the dwelling units and affordable units for this project, so the revenues will be generated by these fraud projects if they're feasible to develop.

We're happy to answer any questions you might have.

Thank you.

Thank you both.

So council, um, do you have any questions and and for the um appellants attorney?

If you want to come up just in case you have questions, so you don't have to go back and forth, that might be easier.

Questions?

Yes.

Um, Councilmember Blackaby.

Thanks, madam mayor.

Um, question for the um applicants.

Um, you know, a lot of the appellants um argument comes down to whether uh the concessions result in identifiable and actual cost reductions.

You've certainly kind of come to us with numbers on what the apprenticeship requirements cost, health care prevailing wage.

Can you talk to us about how you've developed them?

Like take us to the next level there.

Um are you looking at um the staff the the staffing that you're expecting uh and the costs for that versus anyway?

Just help us.

I'm just trying to understand how you come to these numbers just to kind of like go a level or two deeper.

Um it's science and art.

Uh at this uh stage in the project, uh, there's a lot of time spent um looking at what the construction costs are going to be.

Uh our team has spent an extraordinary amount of time because right now high rise development is very difficult to put together from a financial feasibility perspective.

Um these numbers are based on actual bids uh by union signatory and non-union contractors on the same projects in other places, and actually some here in Berkeley.

And so this is that's where we got the numbers from is a pure uh straight up finding uh based on our actual experience in the field.

Okay.

And so um, will will staff would would folks who are staffing the project be receiving health care just at a lower cost, or let me just drill on the healthcare piece a little bit.

I would love um uh let's see, yes, um health care uh costs are often provided uh for laborers for these projects.

Um unemployment insurance benefits for non-union laborers are provided.

Um petitive wages are provided, quite frankly, because if you're not paying your workers a good salary here, they're gonna go work for somebody else.

This is a crowded market uh for uh for labor.

Uh and so I, you know, I I know the unions want you to think that non-union labor is sort of the end of the world and will destroy the community, but quite frankly, none of the housing projects in Berkeley over the last 30 years have been built with union labor, save one or two affordable housing projects.

Would you expect that some proportion of the project would be staffed by union labor, some more?

Absolutely, part of the issue here is this is an extreme upfront cost that's um difficult, impossible uh to commit to.

A project like this is going to most likely include concrete and steel labor union labor and others perhaps.

But yes, there will be union labor on this project, just like most of the other projects that are being built in Berkeley right now.

And the biggest delta is really on the prevailing wage piece.

So it's just it's the expectation in terms of what what the bids you're expecting on wage, the delta there is the biggest, right?

I mean, in terms of all the pieces, and again, you so you have specific numbers in mind in terms of rates you're looking at for different roles and responsibilities through these other projects versus what you would have to pay on the re on the prevailing wage basis.

That's correct.

Okay, and you did that.

Based on those contractor bids, correct.

So taking that and extrapolating it times the amount of labor and the number of hours that would be consumed by this project and kind of working it through.

Correct.

Okay, all right.

Thank you.

Thank you.

Councilmember Taplin.

Thank you.

Uh for staff of the five meetings, which number is this one tonight?

It's meeting number two.

This is meeting number two.

And then for the um appellant and applicant, um, could you each describe efforts today to resolve the various points of convention?

To do what, I'm sorry?

To achieve resolution.

Well, the ordinance is uh plain language.

Uh there's not a way to come up with another solution.

You're either subject to the ordinance or you aren't.

Um, you know, in the old days, you might have continued a meeting to have us sit down with labor and try to hammer something out, and I think that was less often successful, but in this case that's just not the case anymore.

Um you've got an ordinance that's been adopted, uh, is in effect.

These are the first projects to be subject to them since uh they were put in place and projects filed their SB 330 applications.

Um, but there's no negotiating out of the plain language of the city's ordinance.

Thank you, Councilmember Taplin, for the question.

I don't believe that there have been meaningful attempts to try and reach a resolution of this, primarily because the developer, as they've just explained to you, is not willing to implement high labor standards on these projects, they're not willing to require a prevailing wage, they're certainly not willing to require health care for the workers on the project.

Um, in response to council member Blackabi's question, I mean, you heard it's just it's just they get it if they get it, and because they're not they're prioritizing the cost savings over these labor standards, then there is really no meaningful resolution of this with the developer.

Thank you.

Thank you.

Councilmember Bartlett.

Thank you, Madam Mayor.

And um a couple questions here.

Um for the staff, and I guess who I can answer, you can all answer this.

You know, you've all researched it.

Uh, I heard some conflicting um information around the the density bonus law and its use before uh any kind of precedent to be used for these for these waivers.

Can you end the concessions?

This is 2425 Duran is the first project that's requesting these concessions.

Okay.

Well, maybe the the um the uh the the challenger, you you mentioned you mentioned this is a novel use of the of the density bonus law.

Um can you expand that, please?

Sure.

So certainly it's true, hard hats became effective January 1 of 2024, and the prevailing wage requirements and the Southside Plan became effective of in November of 2023.

That being said, we do not know of the density of other instances of the density bonus law, the state density bonus law being used in order to avoid labor standards.

That is not something we have seen before.

It is honestly not something that we anticipated.

Former uh mayor Arien, who was mayor when the legislation was adopted, expressed that in his letter to you all that he did not foresee this type of use of the density bonus law in order to avoid prevailing wage, in order to avoid health care, in order to avoid apprentice training.

So in his mind, it was novel, it was unexpected, and in our minds it is also novel, as well as I said, we've not seen the density bonus law used in this way for any development project that we've encountered before.

Thank you for the question, Councilmember.

It's a really good question.

Concessions haven't been used on labor standards for private development projects before because Berkeley is the only city, and I'm welcome.

I'm happy to be disabused of this, but Berkeley is the only city in California that has such standards.

You might ask yourselves why that's the case.

Um but um were these standards to apply across the board?

We'd frankly stop building housing in Berkeley because it wouldn't be feasible anymore.

We're still in the midst of a state housing crisis.

And I'm a housing first person.

So if a contractors uh qualified, they should build the housing.

Thank you for your questions.

Um Councilmember O'Keefe.

Thank you, Mayor.

Uh, this question is for staff.

Um, either city attorney or planning staff, whoever wants to answer it.

Um, so this is a novel issue we're hearing tonight regarding this particular use of concessions, but um, this is not the first controversial concession that we've talked about.

And I'm wondering if you could help us on the council understand what is the typical standard of evidence that we ask applicants um to provide um to show that a concession represents an identifiable and actual cost reduction.

Um, the city can require reasonable documentation, such as documentation of cost reduction.

Um, the city may not require information that incentive is necessary to make the project economically feasible.

It cannot require that they show that it's economically feasible.

Correct.

Okay, thank you.

And you said sorry, you said they can require documentation of what was that?

Cost reduction.

Of cost reduction.

Um, in your opinion, have they pro has the applicant provided that in this case?

Or is there more that you think would be appropriate?

Yes, yes, yes, yes, okay.

Um, all right, thank you.

Thank you.

Councilmember Tregott.

Uh thank you, Madam Mayor.

Um both questions are for staff.

Um, one, and apologize if I missed this in the presentation, but uh are there any um edits contemplated in what we're being asked to approve?

Oh, so yeah.

Yeah.

She read it at the conclusion of the presentation.

Yes, so she noted there was an error in condition number 65.

She read the correction into the record, and we just request that council's action reflect the correction that Neil read into the record at the conclusion of her presentation.

Thank you.

Okay, thank you.

Um and then my probably more apropos question given the questions being raised on appeal.

Is there any um documentation of how these costs associated with the three um concessions being requested, how they stack up against other development fees or requirements?

I can feel that.

Um, okay.

Turn yours off.

No, no, don't touch it.

Thank you.

Sorry, it's tricky up here.

Um so last year the city uh engaged, and this was in response to direct from city council, uh, engage street level advisors and strategic economics to help us analyze the impacts of this policy on housing feasibility.

Um, if I recall correctly, um uh they estimated that um it would increase construction cost by approximately 20 percent.

Um, and they did compare put that into context with our public art and private development policy, which was also part of that analysis.

The city doesn't really have other impact fees beyond beyond our inclusionary requirement.

Um there is the streets and open space improvement plan fee that only applies to projects in the downtown area plan, but um the city doesn't have a you know a citywide transportation impact fee or an open space fee or a public safety fee like some other cities have.

Okay, and do you remember?

I I take it you're referring to the one percent for public art requirement.

Uh do you recall what percentage of uh cost increase debt accounted for?

Yes, so that is um uh 1.75% of construction costs if the applicant chooses to include art on site or zero point eight percent of construction costs if the applicant chooses to pay the in lieu fee, uh okay, and then the in lieu of well since this is a density bonus project, um, we would not be accounting for the uh affordable housing mitigation fee on this project.

Okay.

Um affordable housing inclusionary section does apply to the project.

I have the numbers.

So, what I mean is since the affordable housing is being built on site, um what is the amount if any on this project that is going into the housing trust fund?

It's the 20 percent um of the project uh the total.

So I believe the project is including, is it it's certainly at least 15%, but I believe there are replacement units being demolished, and so that total 20% of the units 20% of the base?

So yes, it's satisfying the inclusionary policy via on-site affordable housing.

That's right.

Yeah, and um, I'm sorry, my question is different.

Um is there because the inclusionary requirement is being met, uh, there is no additional money going into the housing trust fund.

Correct.

That is correct.

Thank you.

Okay, uh Vice Mayor Linopara.

Thank you.

I just have a really quick question.

Um, do you mind pulling up the presentation that was just up with the the numbers?

Um, financial I think theirs.

I'm curious um about the property tax piece, if if staff thinks that that's an accurate reflection of what um the property tax would be for that property.

We show the property tax uh elevating from sixty-six thousand dollars a year to approximately uh a million six hundred and forty-five thousand dollars a year.

I think that likely includes the county's portion.

That's the whole tax bill, right?

Right.

So the the city's portion would be uh a little less than a third of that.

Makes sense.

But that sounds that looks right.

Yeah, it does.

Thank you.

That's it.

That's a good flag because I think people expect that we get all of those property taxes and we don't.

So um, Councilmember Biley, did you have a follow-up question?

Thank you.

And uh, I guess earlier, but uh question, I guess for maybe our team or the city attorney, or maybe the attorneys here.

Uh the the social good um exemption for uh denying um a waiver.

What's that about?

So I come up in your presentation.

I think that was the appellants presentation, I think.

Yes.

So you saw it, but you saw the the the actual state law, right?

No.

The words social good do not appear anywhere in the density bonus law.

There's not an exemption for something that is uh a social good.

Okay, coming from the appellate.

Thank you.

We did make some policy arguments in our letter, um, that the rationale for the hard hats ordinance was to provide health care, apprenticeship um and training to workers, and that the that those sorts of social goods are consistent with the state density bonus law.

In other words, the state density bonus law is intended to build affordable housing, so it's a progressive statute.

It's a it's supposed to enable more people to get into affordable housing, and it's ironic that the applicant is using the state density bonus law to undermine the wages and working conditions and training and um health care of the people who would be building this project because the point of the density bonus law and the point of the concessions is to promote a social good by building more affordable housing.

That's the point that we were making.

Thank you for the question.

Thank you.

Any additional questions?

Okay.

We will then move on to our public comments.

So if you have a public comment on item number two, which is the zoning adjustments board appeal for 2425 Durant Avenue, please come on up.

Good.

Uh hi, good evening.

Um I'm here to encourage the council to move forward with these housing developments.

We're in a housing crisis in Berkeley and we badly need them.

Um, I would like to call your attention to the fact that after the Hardhats ordinance was passed in I think 2023, um, there was a demonstrable plummeting of housing development in our city as soon as that law went into effect.

We can see the impacts that this is having on the amount of homes that are being built in our city, badly needed homes.

And I just I really think it's very unfortunate that we have a special interest group here that's um you know encouraging you all to deny this application on the grounds that um they'd like to featherbed their own uh salaries and benefits, when in fact, like we, you know, the the city of Berkeley, the the broader population of this city needs these homes, and you know it's setting aside the fact that if you if you deny these um, you know, if you if you if you deny these housing developments being produced, um we're gonna be subject to a lawsuit that the city is very likely to lose.

So please pass this.

Thank you.

Okay, for those of you that are new here, just since there are so many folks, I'm very strict on time.

So you'll have one minute to give your public comment.

Go ahead.

Thank you, Mayor.

My name is Vince Agreement, I'm with the special interest group of helping disadvantaged communities make it into the middle class through a good union construction career.

It is devastating that we're here tonight and had to listen to this presentation.

Uh, from the applicant who laxadaisically put together this information.

The Hard Hats ordinance was put together to be intentional about developers in this city.

Melbourne Mechanical and on-union sheet metal contractors now being investigated by two DA's offices for trafficking 25 Honduran migrants.

They helped to build out SHATIC.

We heard from this developer multiple times that oh, some union trades will be on this.

Oh, non-union has health care.

I can't keep up with the numbers here.

I heard 60 million at one point.

This is about health care, and this is about apprenticeship opportunity.

That's what the hard hats was about, and that's what they wanted to waive.

In addition, this was about wages, but I want to make it very clear.

This is about helping bring people up, and in a desperate time right now, we are in a desperate time in this country.

This is devastating.

Thank you.

Thank you.

Hi, how's it going?

Feel free to adjust the mic too, so you don't have to.

Yeah, there you go.

My name's T Burlogum, and I'm a local 713 Carpenter member since uh, I think 99.

Went through the apprenticeship program.

I'm a Berkeley resident since that time.

I've worked on several projects in the city, including the center street garage, the hotel, and the um another um apartment building uh right on Addison there, green, very ugly color.

We gotta work on our facades, by the way.

But anyway, to make a long story short, uh Berkeley residents of all trades are gonna be affected by your decision today.

What you decide will have consequence, far reaching consequence, and I need you guys to please consider health care.

They say yeah, they might get it.

How are they able to save all this money?

If they also get health care.

Everything is a dream in their world.

They get apprenticeship training.

Everyone else can just move forward.

You know, they can all right.

That's good enough.

But I appreciate your time.

Thank you.

Thanks.

Yeah, feel free to move up.

Uh come close.

Anthony LeVice is also gonna concede some time to me.

Can I speak?

Sorry, who is seating time session?

Okay, thank you.

All right.

Uh I've been introduced.

I'm Stephanie Lynde.

I'm a local 22 carpenter.

I'm also a resident of Berkeley.

I'm a homeowner.

I have a kid in Longfellow, I have a kid at Berkeley Tech.

And I was here in front of this council to speak in favor of the hard hat ordinance when it was passed, and I was so proud of the city at that moment.

Um, with the work that I've done for the last 30 years as a carpenter.

Um, today I'm I'm shocked.

These concessions, and the talk of it, having a cost savings is completely outrageous.

The cost is gonna be on the people of the city, someone like myself in wages, health care, and and the ability to work in the city.

I've for 30 years I've worked as a carpenter and I've worked on a project once in Berkeley.

And it's not because people don't bring projects to Berkeley, it's because the projects that are brought to Berkeley are not affordable.

I'm working in San Francisco, I'm working in Wama Creek, I'm working in Marin.

I worked on one project in Berkeley, and that was the year that I was the parent who could go to the her kids' uh school events, who could go to the after school things.

Every other time I'm commuting far away from Berkeley.

I'm here and I'm a carpenter because I was given the opportunity through an apprenticeship program.

I'm a single mom of two because I can afford health insurance for my family.

I can afford to live in Berkeley that I love because I've been given these opportunities through apprenticeship, through a living wage, through health care.

And I think I think we're asking the wrong questions here.

We're looking at a spreadsheet and we're weighing, is it cheaper to have health care or not have health care?

The cost is overall, cradle to grave.

It is not an affordable housing project, it is not a sustainable housing project if it doesn't have a living wage.

The people who are gonna build this project need to be able to survive and live in the city, or we're giving work to people outside the city.

Thank you.

Good evening.

Uh, since we're so tight on time, I'm gonna have three individuals cede time to me.

Uh John Pitlock, and Mauricio Chavez.

Good evening, Mary Ishi, members of the Berkeley City Council.

My name is Daniel Gregg, senior organizer at North Coast State's Carpenter's Union Local 713.

We're here in opposition to a group of developers and their consultant who want to strip health care from hundreds of construction workers here in the city of Berkeley.

They have gone so far as to threaten the city with a lawsuit if they do not acquiesce to their demand to strip those hundreds of workers of their mandated health care.

The absurdity of this moment is immeasurable.

How did we arrive here?

I don't live in Berkeley, but I have represented workers in this city for over 10 years.

And those 10 years, Berkeley has seen a boom in construction.

Developers from all over the world propose and build projects here.

Even post-pandemic, when market rate housing has virtually dried up all over the Bay Area, developers still identify Berkeley as a city they can find financially feasible to build in.

That basically means that the rent in Berkeley is still extremely high.

When construction is booming, developers will cry, there's a labor shortage.

That is a misrepresentation of the truth.

The reality is that there is a shortage of individuals willing to work for low wages and little to no benefits.

The development community has a responsibility to create incentives that make the construction industry attractive as a career path.

Here in Berkeley, they have failed miserably at that responsibility.

Hard hats are is a response to that failure.

Hard hats went into effect in January of 2024.

A modest proposal that requires a commitment to health care and apprenticeship on large projects in Berkeley.

It was aggressively opposed by Mark Rhodes, and we saw a flurry of project applications come applications come in before the law went into effect.

2425 Durant is the first project to finally be subject to hard hats.

On October 9th, Mark Rhodes, on behalf of his client, asked the ZAB board to grant concessions on health care and apprenticeship, apprenticeship, among other things.

He told the board that they had previously granted these concessions on several projects, and even named a few.

Another complete misrepresentation of the truth.

On October 30th, the second project to be subject to art ass arrived before the ZAB board, who was under the impression that these concessions had previously been granted on several projects.

Again, health care was stripped away from hundreds of construction workers with a concession.

On over November 13th, the third and fourth project to be subjected to hard hats was presented to ZAB board.

In this instance, staff had to issue a retraction of the statements made by Mark Rhodes at the October 9th meeting, but the damage was already done.

Now precedence, which is did not previously exist, have been set based on false statements.

That is how we got here, and what I believe this is all about.

Decisions made here in Berkeley will reverberate throughout the state as developers exploit this unintended loophole in the state density bonus law.

This is not about union versus non-union or hard hats versus PLA.

A hundred percent of the construction workers on these projects could be non-union, and when hard hats applies, they will enjoy health care.

Construction is the second largest industry in the world behind health care and one of the most dangerous physically and mentally.

Mark Rhodes made a comment to me that several buildings in Berkeley, in fact, he said again tonight several buildings in Berkeley were built non-union and they're still standing.

This comment completely misses the point and speaks to the mindset of these individuals.

My question isn't whether the building is still standing, but are the workers who built it still standing.

We respectfully ask that the council approve these projects without granting concessions on hard hats.

Thank you for your time and consideration.

Thank you.

Judy Gatewood, I'm a retired carpenter.

I grew up in Berkeley and I live, I'm a homeowner in Berkeley now.

I raised my daughter in Berkeley.

I was in a union from the Carpenters Union since 1979.

I always had health care for my daughter.

I always had a good wage.

I had a pension.

I'm living on my pension now because I was a member of a union.

And I bought my house because the carpenter saved money and an annuity fund for me.

Uh, and there's no excuse.

There's no excuse for a town like Berkeley not to have uh jobs that benefit their workers.

I was really proud when we finally passed that hard hat ordinance because I've had to watch the developers build these terrible buildings all over Berkeley, and I see the workers and I talk to them, and these people are not getting prevailing wage, they're not getting health care a lot of the time, and there's no compliance.

Berkeley doesn't do compliance.

At least if these people were in a union, the union would make sure they had health coverage.

Thank you.

Yes, good evening, council members.

I'm Tim Frank, and I'm representing the construction construction trades workforce initiative.

And to save time tonight, I'm actually getting seated time from Ian Streets, Chris Palomo, and Ramon Amore.

So thank you very much.

I just wanted to note that by way of introduction, the construction trades workforce initiative is a nonprofit partner of the building trades, and we work on providing access to family sustaining careers for people from disadvantaged communities from the justice impacted uh etc.

That's our fundamental purpose, and we work on both support of programs that provide pre-apprenticeship training for these cohorts, including rising sun and the Nelson Mandela Center, which actually serve residents from Berkeley.

And we work on policy issues such as the career policy.

Now I would note that uh construction industry is a dual wage industry.

You know, it has a high road uh sector and then it has a low road sector.

Uh and the low rud sector is defined by low wages and dangerous working conditions.

And if you're wondering what that means in the Bay Area, the majority of construction work uh residential construction workers in the Bay Area make what the State Department of Housing and Community Development defines as a low wage, which means that they actually qualify for housing subsidies, such as uh the subsidies that we provide from the funds we get from U1, etc.

Um, and the uh the the high wage industry is defined more by paying uh a prevailing wage, but the prevailing wage is really part of a package that includes uh prevailing wage uh paid benefits, including paid health care and adequate uh uh training to ensure that the workers are working in a safe environment.

And without these things, all three of them, you don't have the quality of uh training and retention and the the skilled workforce that we know is important uh to delivering both green green building benefits but also health and safety benefits.

So I just want to note that the hard hats ordinance and the provision in the South Side plan are specific written proposals that are embedded in the Berkeley Code uh and that they are justified by very strong statistical evidence.

And I will note that the statistical evidence is general, it has not come from the city of Berkeley, but this is the same the same thing can be said of the provisions in the Berkeley seismic plan, it's uh it's uh electrical code, it's seismic code.

Uh and none of these things are things that we would want them to be able to waive.

So finally, I just want to focus a little attention on the health and safety issue here.

Uh uh I mentioned that the uh construction industry is a dual wage industry, so the health and safety impacts of that have been considered by the California State Department of Insurance since 1986 when it established a penalty for uh contractors that are uh paying low wages uh for workers' comp insurance.

Now, the thing about the uh the specific adverse impact, what we're talking about is injuries on the job.

And what the evidence from the insurance uh industry provides you is the uh the very clear strong statistical basis for suggesting that workers who are paid a low wage, not given a training, and uh uh uh working in an environment where their colleagues have a lot of turnover and you don't have a lot of experience on the job, that's dangerous, right?

And so this so for 40 years, we have seen an annual reconciliation of those facts by the State Department of Insurance that has established a penalty for workers' comp rates for uh contractors who pay low wages and a corresponding benefit for uh lower.

Thanks for your comments.

Good evening, council.

My name is Joey Flagel Mishlove.

I'm uh Berkeley resident, a resident of District 8, and I'm here in my capacity as chair of the City of Berkeley Commission on Labor.

Uh the Commission on Labor discussed this issue and uh urges the council to not grant concessions that allow developers out of the hard hats ordinance.

And uh what we discussed was that this is called a density bonus.

The intention is that if developers build affordable housing, they get more density, they get to build taller, they get to build more units.

It is not a throw your workers under the bus uh bonus, it is a density bonus.

And if uh if this concession is granted, Berkeley will not have a hard hats ordinance because every developer will ask for these concessions.

So we heard uh the developer tonight threaten that no housing will be built in Berkeley if we maintain this ordinance.

I urge the council to fight for our ordinance and do whatever it takes to stand by the ordinance that we passed.

Thank you.

Thank you.

Good evening, hello, Toscano will be seating this time.

Good evening, Mayor Aishi and Council members.

My name is Jesse Prowlis, the business representative for uh local 713, and I oversee the jobs in Berkeley and see firsthand the impact that low-cost, low road contractors have in this area.

I have seen how a contractor where the job site was shut down due to safety concerns.

It was actually shut down by the City of Berkeley fire department about nine months ago, and it was uh because they did not have a proper stairwell in the building during construction of a five-story housing on College Avenue.

There was another accident years back where a worker hung his nail gun on the hook near a stairwell and went to get more material.

It eventually fell off the fifth floor onto another worker's head on the second floor, eventually killing them.

Cal OSHA ruled that death happened because none of the employers on site ensured that there were effective safeguards in place for those workers below an elevated work area.

These are just a few examples where the conditions were unsafe.

Local 713 actually has an MOU with Berkeley Unified School District to recruit future construction workers.

The carpenters are invested in growing the community, building housing, and investing in the construction workforce.

Granting concessions on labor standards effectively cancels this MOU and the long-standing relationship we have in this community.

These proposed projects, if they have proper labor protections, can be beneficial to the Berkeley community by building housing and creating job opportunities.

I want to see Berkeley grow.

I want the city to build more housing, and I want to see quality jobs to recruit and retain construction workers.

The concessions that the applicant is asking for takes us several steps back from hard hats that the city of Berkeley passed years ago.

We have to make sure these projects are built right and we have to make sure they don't go out of our way to reverse city policy to make a profit on the backs of workers you resolved to protect years ago.

We want to see this project built.

We understand the need and support division, but not with the concession the applicant is requesting.

On behalf of Carpenter's Local 713, we asked the city council to uphold the appeal of these projects because they deny all workers health care, apprenticeship investments, and fair wages.

Thank you.

Thank you.

Perfect timing too.

Good evening, council members.

My name is Eric Delacruz.

I'm a first period apprentice out of Local 713.

Even though I haven't started working in the field yet, joining the Carpenters Union has already changed my life.

It gave me a real path forward, a chance to build stable career, earn fair wages, and have access to health care and benefits that protect me and my family.

For me, being in the union isn't just about a job, it's about opportunity.

It's about knowing that if I work hard, I can support myself, afford health care, and provide for my family.

When companies try to undercut workers by lowering wages or reducing benefits, they're not just cutting costs, they're cutting people's futures.

They're making it harder for apprentices like me to stay in the trade and build a life here.

I joined the union because I believe in fair pay for skilled work.

I believe workers deserve health care, and I believe our city should support projects that lift workers up and not push standards down.

We urge the council to remember what we stand for in Berkeley to uphold the hard hats ordinance, uphold this appeal, and promote housing that isn't built by exploiting workers.

But supporting workers, thank you.

Thank you.

Raised my two kids.

They went to Longfellow.

They graduated from Berkeley, Berkeley High.

So the Hard Hats Ordinance provided us, provided our city with the foundation.

If we are building housings, we must also support working families in our community.

Granting these concessions opened the door for developers to continue to ship away foundation project by project.

Once you decide that our city labor protections are negotiable, you are sending a message to the developers that our labor standards are optional.

Granting these concessions.

Thank you.

I probably ought to be.

Good evening, Council.

My name is Wynn Newbarth.

I'm a UC Berkeley student.

I want to give a sociological perspective on this.

Uh I uh I've seen these people, these workers outside my apartment the last like few months, I think.

And I think that, you know, if you're looking around the country, you know, I think that you need to set a good example.

I think that unions are starting to make a comeback.

The SFUSD just went on strike in the for the first time in 50 years, Oakland district is going on strike, and the nurse is in Oakland as well.

And I think that in order to provide a good example, you need to give your uh you need to give your contract workers fair wages, health care, and you need to be hiring unions and not hiring these uh other contractors that have low standards for their companies, especially at a time like this where a lot of uh where ice is taking so many people, we need to be setting a good example for our immigrant communities, which a lot of these people are.

So thank you.

Thank you.

Good evening, everybody.

EJ Sire, C Metal Workers Local 104.

I'm I'm kind of confused as to why the applicant is consistently on this whole union versus non and using union bids to do this stuff.

This isn't about union versus non-the hard hats ordinances healthcare and state approved apprenticeship training to actually put people through a career that supports them.

It's not union versus non.

So if you're in a union, you're already gonna have these protections.

The reason why we fought for it, and the reason why we're all here tonight to fight for the workers is to fight for the workers.

We're not here for profit over people.

So what I what I want to make sure is understood is you know, on the night that hard hats came to fruition and everybody was here, and it was a great celebration and huge picture.

Um, Councilmember Barley, one of the things that you said during that speech was that workers everywhere need to know that regardless of who's against them, one city has their back.

The developers are here tonight to take that away from you without proof.

Councilmember Humbert, whenever it was your turn to speak, and it was that time for voting.

Your response on your vote wasn't just a yes or an aye.

You said heck yes.

So now we're supposed to be going against all of this with no proof.

The justification in their dialogue was three sentences.

There was no documentation for any of this.

Thank you.

I appreciate it.

Thanks, J.

Hello, council members.

My name is Scott Little Hale.

I'll be joining you again shortly.

Counselors have asked questions about evidence as to what the costs of hard hats are and what the benefits are.

Hard hats through its training provisions, which promotes safety and its health care provisions, which promotes health of the worker and possibly a dependent, have a direct nexus to public safety and health, which is the exemption under state law for regulatory concession.

And as best as I can tell, though, neither the applicant nor the city staff have attempted to do any cost-benefit analysis of the public health and safety costs and benefits.

Conceiving health standards is not limited waiver, workers' welfare is not the same as a zucchini patch.

That's that's all I have to say, and I'll see you shortly.

Thank you.

Oh, is there any other in-person public comment?

Okay.

Is there anyone online who has public comment on item two zoning adjustments board appeal 2425 Durant Avenue?

There are uh three hands raised.

The first speaker is David Schear.

Hi.

Um two points that I want to make tonight.

When council passed hard hats back in 2023, there were some additional referrals.

There was including it in the feasibility study.

We did that.

Um, there were subsequent adjustments to impact fees to offset the costs based on the feasibility study.

We didn't do that.

Uh there is uh and there was further upzoning in downtown.

We we haven't come back to that.

Um, I really hope that we are able to come back to some of these things.

We hear a lot about how important this is how important this ordinance is.

Obviously, it makes things more expensive.

And we if we want this to work, it's on us to make it.

That's that's thing one.

Um, I hope we come back to this.

Second, this is a novel use of the law.

Very easy to imagine that whatever happens tonight, we're going to court.

That is expensive and I encourage you to vote for whatever uh minimizes our litigation costs and reduces the likelihood that we're paying attorney's fees thank you thanks David okay next is Bonnie Zhu I can I share the screen no no you hear me sorry we don't do that during public comment okay I I just want to bring out the the appling has applicant has a history of uh willful non-compliance with safety laws and I'll fit to manage a project of this scale I'm a resident at this uh property and they uh violate the um law the without the property manager on the site for more than four years creating a public safety vacuum with several life threatening incidents and the involvement of burden fire department and they also didn't ignore the mandatory annual rental safety checks um and a failing to provide basic life safety equipment and many other violations also uh the the applicant also legally intimidate and a threat when ret tenants cite the California Civic code regarding life safety hazards so all in all next speaker is Kelly Hammergren Kelly Hammergren you should you're unmuted you should be able to speak okay um so we have a hundred and sixty nine units Berkeley municipal code 23.324.030 the inlu fee most easily found through a search affordable housing requirements for developers the inlu fee is calculated as 10% very low income units 10% low income units when this was passed it was for the total building we are getting seven very low income units not 17 we are getting six low income units not seventeen we have been told no money will be paid into the housing trust fund when we are short 10 very low short 11 low income OSHA lists construction as the fourth most dangerous job in the US after logging rippers fishing and hunting what we don't know is what the return on investment is expected for this project.

Thank you Kelly Okay that's uh final speaker okay thank you all thank you very much for your public comments um in excuse me is there a motion to close the public hearing so moved is there any opposition to closing a public hearing if not we'll be recorded as I unless we need to take the role in it okay then we will all be recorded as I for that and the motion and the motion to close the public hearing is passed.

Yes okay so moving on to council deliberations I believe I saw do you want to you want to wait okay I just punched the button and sure all right are there any council comments okay council member blackaby thanks madam mayor um I want to thank everybody who's been here tonight staff um members of our labor community uh the developers who are here um as other people have said, I mean, this is this is a really hard issue.

It's a hard issue for me.

I think it's a hard issue for all of us.

We all know um absolutely 100% without any question that we need housing projects to move forward in the city, in this state um we're in a housing crisis uh we don't, we have not kept up with supply over the past decades.

We need more housing.

At the same time, we want and deserve to make sure that people working on these projects are paid fairly.

They're well trained, they get health care and they can afford and to live and safely work here in Berkeley.

That is also a priority for us.

My read of the state density bottle state density bonus law is that the applicant is entitled to these concessions by the letter of the law.

And denying this concession would put us as a city at legal risk at a time where we really can't afford to be put at that risk with the cost that we'd be exposed to.

But we also need to figure out how to do better.

Ultimately, this issue needs to be taken up and resolved at the state level.

Our overall goal should be to find the common ground that's required to provide workers with fair pay health care and training, but that still the market can still clear such that housing projects can move forward.

We need to have an open, robust public discussion about that and figure out how to make that happen.

It certainly does not reflect well on us as a state or as a community if we can't fairly pay and train the workers we need to build our housing.

So I will be um I will be supporting the motion to deny the appeal reluctantly and approve the use permit, but I know we can do better, and I think we all deserve to do better.

Thank you.

Thank you, council member.

Um Councilmember Taplin.

Uh thank you very much, Madam Mayor, and to staff and everyone who spoke tonight.

Um to be honest, this really doesn't stay right with me.

What is the point of there being five allotted meetings of not to achieve a resolution between parties?

We have representatives of the e-space unionized workforce vying to create pathways to the middle class through gainful employment at safe and hazard-free job sites pitted against the deep pockets of well-resourced private enterprise.

The message this sends to the community is that state law subserviates the health, safety, and financial security of the families and workers providing physical labor and applying skilled craft to build the housing we so value to the economic interests of private developers and their lenders.

The path before us is unclear this evening to ensure compliance with our local our local labor standards.

If I could guarantee victory, I would gladly approve this project without the concessions or remand back to Zab.

To that end, I welcome and implore our state legislators to act in order to prevent exploitation of the concessions loophole.

In closing, this is a pro-housing council.

Each of us in our districts and in unison on this diet has championed housing.

But none of us would be here if we failed to build bridges and bring community along with us.

I take serious issue with this idea that you don't have to reach across the aisle to consider critical stakeholders because you can just strong arm this council or the city, organized labor is not the enemy of housing, and any argument that throws workers under the bus will never gain traction with me.

Thank you.

Thank you.

Councilmember Humbert.

Thank you, Madam Mayor.

And um, I have fairly lengthy comments, but um I would ask some, you know, uh a little bit of leave to uh extend past the five minutes because my comments on the second item will be much shorter.

Yes, and you can have a minute of my time as well.

Thank you.

Um, since these two appeals fundamentally relate to the same issue, that of labor standards in the South Side plan, I'm gonna focus my comments here and refer back to them for the remaining one item.

As such, I hope, well, I've already been granted a little bit of time.

I truly wrestled with these applications.

I spent a lot of time with them, the subsequent appeals and the difficult questions they pose about labor standards adopted by the city under the Hard Hats Ordinance and the south side Plan.

And yes, I did say heck yes.

Uh although my position on these issues ultimately came down, comes down to the legal questions.

I want to acknowledge the incredibly thorny policy questions these projects and their appeals raise.

Candidly, I hate that we're currently in a position where our desperate need for more homes is in conflict with the requirements that we've established around health care and the apprenticeship for construction workers.

It speaks to the urgent need for universal health care and greater state and federal support for vocational education and training.

Some people might argue that this tension is simply the result of greed from one group or the other, but I've got to push back on that.

Construction workers are not greedy to want good health care.

But we can see from the stalled housing projects around the city that our current regulatory requirements and construction costs are rendering projects infeasible in our current climate.

It's also worth noting that the U.S.

has overall construction costs that tend to far outstrip those in comparable developed countries.

To the extent greed is causing these problems, I'd argue it's coming from far above the level of these projects and the city of Berkeley.

But beyond these questions being challenging from its policy and even from a philosophical or maybe sociological standpoint, we're precluded from looking at these appeals in those lights.

Whatever we might feel is right policy-wise, we're obligated to follow the law to the best of our ability to understand that law.

Additionally, given the city's incredibly dire budget situation, I'm further compelled to go with the legally defensible position to minimize the city's likelihood of legal and financial liability.

We've seen with past projects that the city has spent or outright lost millions of dollars when it fought, ultimately lost legal battles over projects where our arguments rested on very shaky legal ground.

I therefore must make a decision based on my best judgment, as well as the advice of our planning staff and our city attorney.

On this basis, I'm compelled to conclude the city is obligated to deny this appeal, affirm the decision of the zoning adjustments board, and approve the 2298 Durant project.

That's the wrong number, I think, but let's see, 2024 25 Durant project as proposed.

On the question of whether local labor requirements can be voided as part of concession, I believe the letter of the law supports this.

There are clear provisions in state law under the section 65915 cited, spelling out that while waivers might pertain to physical development standards, concessions are not limited to these.

Hard hats would fall under the more permissive definition of a regulatory concession.

This permissiveness is reinforced by the statutory provisions specifying that there should be a liberal construction in favor of more housing as well as the state's legislative findings that California is in desperate need of more housing.

This interpretation is further reinforced by at least one technical assistance letter from HCD in the Blossom Hill Project in San Jose, HCD had this to say.

The definition clearly indicates that requirements beyond development standards are eligible as concessions.

In sub-paragraph three, the statute clearly identifies regulatory requirements that are proposed by the applicant and result in identifiable and actual cost reductions as eligible incentives or concessions under the state density bonus law.

Given all this, I'm forced to conclude that hard hats requirements can be waived as part of a concession.

Now, my understanding is that Senator Aragin, our former mayor, and he was the author of Hard Hats, has even said he believes a state legislative fix may be necessary.

This lends strong credence to the idea that the current law allows for this concession to go forward.

If it's a state law loophole, and I heard the mention of a loophole, then the state has to fill that loophole, and frankly, I hope the state does, because we can't.

What is far less clear, can I go on?

What is far less clear is whether the city has any power to deem the existing cost savings documentation so insufficient as to actually deny the project.

Here I still believe the answer is no.

The fact that we have organized our brothers and sisters from organized labor here arguing for hard hats requirements, it's just frankly a clear indication that they carry value for both parties and cost to the applicant.

I think it's extremely unlikely that the city would find sufficient fault with the cost documentation so as to contravene this simple common sense conclusion.

Given all of what I've outlined, I'm not willing to put the city on shaky legal ground and create additional potential costs and legal in in staff time and legal defense by requir requesting documentation that would likely confirm what we already know and which makes sense on a common sense.

I think the strongest argument in the appeal is probably the idea that the healthcare provision of cities hard hats requirement is necessary.

I can give you a minute.

Okay.

It's necessary to protect public health and safety.

However, we have to look at this through the lens of the statute, where the state has adopted a narrow definition of public health and safety, which they have further clarified should only infrequently apply.

And once again, we have to keep in mind the overall pro-housing context and findings findings of the legislation.

I'm gonna leave aside the question of quantifiable because the impacts theoretically are quantifiable, but whether they are significant is more difficult, but I don't think the city could meet the burden of proof necessary to show that the impacts from these specific projects are significant.

I'm concerned that the tenuousness of these connections should not only put the city in legal jeopardy, but explode state housing laws and wage, which would allow other cities to adopt anti-housing requirements in bad faith.

And we've seen a lot of that all over the state.

To wrap this up, I want to again express my strong support for construction workers, indeed all workers and residents, to have full health care coverage, but I have to put these sentiments aside in evaluating whether the city can enforce local requirements around health care, apprenticeship, and compensation in this context of state density bonus law, which grants broad incentives and concessions and only narrow exceptions to granting them.

As such, I'm compelled to reject the appeal, affirm the ZABS decision, and grant the necessary permits for this project.

Thank you.

Thank you.

And for transparency, Councilmember Humbert had asked me previously if he could have sort of time from his from the second item for this one.

So just so folks understand.

So, just so you know, the order will be council member Bartlett, then Trega, then Kesserwani.

Thank you, Madam Mayor.

Thank you.

And uh, well, it's I didn't expect to be here.

I think pass this uh this groundbreaking rule last year.

Uh it's interesting though, because we're we're charting the sort of larger trends at play in the country, and here uh, you know, health care is in crisis, we know this.

Um a trillion dollars are taken out of the health care budget to give tax breaks to billionaires, and California is about to lose 17 to 18 hospitals.

I think some tens of millions of people losing health care, uh, five million children losing nutritional assistance.

Uh so the the downward pressure is on the Berkeley worker, their health and their wages and well-being.

Uh, we know that the jobs industry is under assault from efficiency and technology.

Um, so you know the things that we fought for in this item uh still matter and they still value and they're so important.

Uh there's another larger issue, too, in terms of at what point does the state law effectively nullify our locally adopted public health standards?

Um, you know, what boundaries are out there?

For instance, uh, if we can, if if low local labor standards can be waived, then what about environmental mitigation?

What about uh safety requirements and so forth and so forth?

It's a slippery slope that I think we need to grapple with very carefully.

Um, you know, regarding the the the quantifiable, the quantifiable cost that were that we cited here and the impacts, uh so I don't know whether the city has fully evaluated whether removing healthcare standards from workers here in the city will produce uh measurable impacts to worker health during the life of this project.

I know from one of the at least one of the speakers here it sounded like it could have.

Um, and if the answer is no, is that because the impacts do not exist, or is it because we've not yet built a sufficient record?

So, you know, in short, I support housing from day one, I support workers from day one as well.

I support hard hats.

Um, and I just don't feel comfortable granting concessions of this magnitude and this potential magnitude without a fully developed factual record.

Um I'd like to see some uh some more findings here.

Thank you.

Thank you.

Councilmember Traiko.

Thank you, Madam Mayor.

Uh, thank you to staff, the applicant, the appellant, and all members of the public here tonight.

On day one of my first career as an engineer, someone came to my office and told me if I really wanted to get an understanding of what actually is going on, how things are built, go talk to the construction crafts, and I did, and I am very glad I did that.

Contrary to what I heard um someone in the public say um around a special interest group, these are men and women that build the housing of Berkeley and beyond, and should be treated with the same respect that we should treat all people.

It is atrocious that in one of the most rich countries in the world, and one of the most wealthy areas in our country, we cannot make projects supposedly pencil that pay people fair wages for their qualified labor.

We would not hire a surgeon who did not receive a certificate of completion of their craft.

How can it be that we would be okay with building housing where people live for years that must withstand earthquake and other natural disasters without giving them the training that they deserve, the health care that all of us deserve, and a wage that might allow them to afford the housing that they're building.

In my combined 14 years on the ZAB and the council, I am proud to have approved over 10,000 units of housing, and a lot of it is in the downtown, a district that I am honored to serve.

I am all too painfully aware of the construction slump that has resulted in 17 stout projects in my district.

Someone mentioned uh that they think it's tied to the passage of hard hats.

I think that is a confounding variable.

I think everything between Trump's tariffs and an increase in the cost of goods and materials has led to this untenable situation.

Nothing would make me happier than to see those projects move and provide much needed housing for the people in our community, or to give others the opportunity to live here.

That said, we all have web lines.

This is mine.

I cannot in good conscience support housing that will be built on the backs of the workforce.

I understand that the issues being discussed are above my pay grade, no pun intended.

This must be addressed at the state level.

And I would welcome any clarification as to whether density bonus law was ever intended in a way to legislate out other social necessities, like health benefits, an apprenticeship, and a good wage.

And so, until that happens, I have no choice tonight but to lay off supporting this appeal.

Thank you.

Thank you, Councilmember Kissarwani.

Thank you very much, Madam Mayor.

Thank you to the planning staff for the presentation.

Thank you to the appellant and applicant for your presentations, and thank you to the public commenters.

I have great sympathy for the workers that we heard from tonight.

And I'm gonna be really brief with my comments.

Unfortunately, I don't think the legal justification is there to deny the concessions as some of my colleagues have explained in terms of what the language of the state law says.

As others have noted, the city is not in a position to take on the costs of expensive litigation when we know at the outset we are unlikely to prevail.

Just to be really clear, the city is projecting a $30 million budget deficit.

With a deficit of that size, we have to consider layoffs.

So, you know, we are in a really dire situation.

We are gonna be facing really difficult decisions, and so I think we have a difficult decision to make tonight to think about uh what kind of legal exposure we might be putting our city at risk of and what the costs of that may be, and how we're gonna balance that with all of the other reductions that we may have to make.

Um so I implore my colleagues to think about that when we uh weigh uh what to do on this.

Thank you very much.

Thank you, council member.

Um next, moving on to Councilmember O'Keefe.

I don't have a speech, um, I don't really even know what to say, to be honest.

I am a union member.

Um, my job provides me and my family with excellent health insurance, which is a human right, by the way.

Um the people who work hard to build our much needed housing deserve the same.

We've been handed a um a pickle here.

This is a very difficult, difficult situation we've been placed in.

Um the legal issues is that our hands are tied.

That's that's my assessment of what we can do.

Um, I do not like this.

I join the plea uh already stated well by many of my colleagues that the state government figure this out.

This is a big problem.

Um, for my own moral comfort, I'm gonna abstain.

Um I really want to stand with my union brothers and sisters as much as possible.

Um, I don't know if there's anything more we can do.

So that's all I have to say.

Thank you, Vice Mayor Linopara.

Thank you.

Um, and I really want to thank everyone for being here tonight.

This um development is in my district, it's one block from the university, and it includes 32 affordable units.

Um, and given how many students and young people and people across the city experience homelessness and overcrowding every day, I'm I'm excited for the development.

And I also fundamentally believe that every single resident in our country deserves health care, a living wage, and a safe working site, and we cannot leave behind the workers that make these developments possible.

And sometimes public policy will be in conflict um with one another, and governments will have to make a decision over what they're gonna value.

And it is in the best interest of every everyone that legislators weigh these decisions, these sometimes conflicting interests against one another, and make a decision that they think is what their jurisdiction needs.

And this body has made many of those decisions in the past, often without unanimous support.

And our vote tonight is not one of those decisions.

We are not making that policy trade-off choice with the decision in front of us right now.

The question that we are being asked is whether these arguments hold up to state law.

And I think the density bonus law is very clear in placing the development of affordable housing over all else.

It states this chapter shall be interpreted liberally in favor of producing the maximum number of total housing units.

And if that's a policy that we need to change, then then we need to change it at the state level.

Um I don't think that we have another choice right now.

Thank you.

Thank you.

I think all of my council colleagues have spoken already.

And so I really want to thank all of you for both the applicant appellant and also uh to our own city staff for taking the time to do the analysis and make a recommendation to us.

Um I also want to thank uh the union for being so organized with their public comment.

That's something that gets major bonus points for me.

So thank you all for organizing that.

Um, and also just for your words.

Um, it's it is really challenging to hear um about the personal impacts and and what you all are experiencing, and I do really support apprenticeship programs and want to thank those of you who have actually helped to build our city.

Um as was said many times we are pro-housing council, and housing is something that is incredibly important to us.

And um, I agree with the importance of the hard hat ordinance, both for worker safety, ensuring healthcare, and also skilled training.

I think that those programs are essential.

Um, however, as was said by many of my colleagues, it's clear that these concessions are legally allowed under state law.

Um I do want to encourage the developers to partner with the unions uh with the trades to provide the strongest working conditions for this project.

Um I know that that was mentioned, but I think it is really important that if you are going to come and say that you you care about that, that you have those conversations as well.

Um, by working with the building trades, you ensure high quality, skilled and well-trained workers.

Um I think when we look at what's happening on the state level, we can see that the state government really wants to make sure that we have more housing.

That is the entire purpose of being able to waive these in the first place.

And um, if we do think that this is something that's important at the state level, then we need the state to weigh in.

So I want to echo those comments of my colleagues.

I think many of you have stated that already, and I know that this is very challenging for a lot of you.

So I want to thank you all for your comments.

Um, so is there a um a motion?

I'll make a motion to adopt a resolution denying or approving the appeal, or I'm sorry, denying the appeal and affirming the zoning adjustments board decision to approve the use permit.

Second.

Can you take the role, please, Clerk?

Okay, on the motion, which includes the correction read into the record by staff.

Uh Councilmember Kessar Wani, yes, Taplin.

Abstain.

Bartlett, abstain.

Trega, upstain.

O'Keefe.

Abstain.

Blackaby, yes.

Munapara.

Yes.

Humber.

Yes.

And Mary Ishi.

Yes.

Motion carries.

Thank you.

Okay, so before we move on to the next item, I do want to give us a 10-minute stretch break.

So we're gonna do that, and we will be back soon.

Thank you.

Let's do it, and I'm not And then you can do it.

It's gonna be easier.

Now that we know.

Yeah, yeah, like a lot of price.

I thought it would have been a little bit more.

Yeah.

No.

No, no, no, no.

Yeah.

My sister would say that.

Okay, folks, our break is over.

I will please ask you to take your seats.

If you're having a conversation, please take your conversation outside.

Thank you.

Recording in progress.

Have a seat.

Come on, guys.

Thank you.

All right.

Very good.

So we are back from our break.

Thank you all so much for waiting.

We are moving on to item numbers three A and three B.

That's the zoning adjustment board appeal to Zero Two Nine University Avenue.

And also two zero two nine University Avenue.

One of them is use permit application ZP two zero two four-zero one eight two student housing oriented.

And the other is use permit application ZP two zero two four four four four four zero one eight one multifamily.

Alright, staff.

Please take it away.

Thank you again, Mayor.

Uh presenting again for staff on this item is Neil Carab's Otagon.

And I think she's just pulling up the deck now.

I lost it.

Oh, you're doing that, I can say we're officially opening our public hearing.

Good evening again.

There are two separate permit numbers and project schemes proposed for this site.

One scheme is oriented toward multifamily housing, and the other is oriented towards student housing.

Two different applications were submitted for this site in order to provide the developer with maximum flexibility in identifying equity partners and securing project financing.

In this presentation, I will go over both project scopes, project timelines, density bonus information, appeal issues, and staff recommendation.

The project site is located along University Avenue, West of Shadak Avenue within the downtown mixed use district or C DMU outer core, and within the existing two-story commercial building and a 10-car garage structure on a 12,385 square foot lot, and to construct a 23 story, 256 feet tall, approximately 191,000 square foot residential building.

In the upcoming slides, I'll be describing the two proposed schemes, which have approximately the same building envelopes.

The multifamily oriented scheme would be containing 240 dueling units, including 18 very low income and 18 moderate income units for 100% density bonus.

The student housing oriented scheme would be containing 160 dueling units, including 12 very low income and 12 moderate income units for 100% density bonus.

Shared program in both schemes are the ground floor residential program that includes the lobby, bike room, mailroom, as well as the trash room, back of house service areas and utilities.

2900 square foot community spaces, 2200 square foot fitness center, and 2055 square foot roof deck is provided on level 23.

29 off street parking spaces are located on the second uh floor garage, and there is there are 167 long-term bike parking spaces available.

Building envelopes are approximately the same.

Units are larger within the student oriented housing, making this design include less total number of units, 160 units in the student housing oriented scheme versus 240 units in the multifamily scheme.

Other program differences in the two schemes are the unit types, number of bedrooms, density bonus numbers, and number of short-term bike parking spaces.

Multifamily oriented design program include 240 dueling units that include 80 studios, 60 junior one-bedrooms, 61 bedrooms, and 42 bedrooms.

And that's for a total of 280 bedrooms.

Student oriented design program include 160 dueling units that include 60 studios, 21 bed 21 bedrooms, 23 bedrooms, and 64 bedrooms for a total of 380 bedrooms.

Both project designs were reviewed by the DRC on October 16, 2025, and the DRC had a favorable recommendation to the ZAP.

This uh public hearing tonight is the fourth meeting of the project.

Under the city's density bonus procedure, the base project for the student housing scheme is 80 units as the maximum allowable density for the site.

The base project and the resulting 23-story proposed project both have an average unit size of 1,200 square feet by providing 12 very low income and 12 moderate income units on site, which is 30% of the 80 unit base density.

The project is eligible for 100% density bonus or 80 additional units for a total of 160 units.

Under the city's density bonus procedure, the base project for the multifamily scheme is 120 units as the maximum allowable density for the site.

The base project and the resulting 23-story proposed project both have an average unit size of 801 square feet by providing 18 very low income and 18 moderate income units on site.

Again, 30% of the 120 unit-based density.

The project is eligible for 100% density bonus or 120 additional units for a total of 2004 of 240 units.

Both projects are requesting three concessions and a number of waivers.

Concessions requested on these projects are exemption from the apprenticeship requirement, health care expenditure, and bird safe building.

Waivers on the project are usable open space, height, setback, building with with over 120 feet height, and projections above height limit.

On December 1, 2025, the building and construction trade council of Alameda County and the Northern California Carpenters Regional Council filed an appeal of the ZAPS decision to approve both projects.

Appellants' uh detailed appeal issue letter is attached to the staff report, and I have a summary of appeal points, and I will go over each separately.

Appeal issue one, the provisions regarding apprenticeship requirements and health care expenditures are not appropriate subject of a concession because they do not pertain to development standards.

Staff responses that a concession can be used to reduce the cost of building affordable housing.

And according to the definition, it can be a reduction in site development standard or a modification of zoning code requirement or any other regulatory incentive.

Appill issue two, the requested concessions would not result in identifiable and actual cost reductions.

Staff response is that according to the applicant, the requested concessions for exemption from apprenticeship requirements and health care expenditures would result in cost saving as presented.

And the city could reject the concession upon a finding that they would not result in identifiable and actual cost reduction.

However, the requested concessions would result in a total cost reduction of $4,732,000 for the applicant, and the city has no information to make findings otherwise and therefore cannot make a finding based on substantial evidence that this exception applies.

Staff responses that the city may deny concessions only if it can make findings supported by substantial evidence that the concession would cause a specific adverse impact on public health or safety.

State law defines specific adverse impact as a significant, quantifiable, direct and unavoidable impact based on objective written health or safety standards in effect when the application was deemed complete.

Staff concludes that appellants have not provided sufficient evidence showing the concessions would create such an impact, and the city itself does not have other evidence that would support making this finding.

Therefore, staff advise that the city cannot make a finding based on substantial evidence that this exception applies.

For reasons stated in appeal point one two and three, staff find that these concessions are appropriate and that the city cannot make the factual finding necessary to deny to deny them.

ZP 2024-0181 and ZP 2024-0182.

Thank you.

Thank you very much.

We'll have a five-minute presentation.

Am I waiting for an invitation to share my screen?

Okay.

Says it's rejoining.

And is spinning.

There, let's see.

Okay.

As I'm a novice at this, I don't see share my screen option.

We've been doing too much teams.

Thank you for bearing with me.

That doesn't want to seem to share share my presentation version, but there we are.

Thank you for bearing with me.

My name is Scott Little Hale, and I'm executive research analyst for the North Coast States Carpenters Union, formerly NorCal Carpenters Union, now representing Carpenters, Drywallers, and other construction craft workers between Bakersfield, California, all the way up to the Canada border.

And here tonight to talk about this high-rise project at 2029 University Avenue, the hard hats concessions specifically, which we argue, if granted, will hurt workers, and importantly, degrade public health and safety.

We've already covered health care expenditures and apprenticeship fiat waivers.

These are not union standards.

These are distinct from union standards.

And the claims made by the uh development proponent, we argue is non are non-credible and unsubstantiated about their costs.

We ask in particular to remand the ZAB to request corrected supported documentation, given those unsubstantiated and we argue erroneous estimates.

And we ask that perhaps the staff develop some capacity on doing cost benefit analysis of things that have such clear direct substantial significant adverse impacts on public health and safety.

You probably already know that construction workers face some of the highest injury rates, including fatal injury rates that are four to five times higher than all other working people.

But those ten deaths per 100,000 construction workers are dwarfed by deaths of despair, dwarfed by deaths from overdose, dwarfed by deaths by suicide.

What's the connection?

Lack of training, injury, addiction to painkillers, substance use combined with low job security, low pay and household income, job stresses on top of that, lowest among all major occupational groups of health care coverage.

On top of that, 25% of the workforce due to immigration status being ineligible for any of the social insurance benefits, including the unemployment insurance that that was mentioned earlier, not to mention SNAP, other forms of benefit, sixty-three percent lower average employer expenditures for residential construction workers compared to non-residential construction workers.

These low road model outcomes are what hard hats was designed to combat.

Through investment and training and retention promoting health insurance, health insurance coverage.

It's not a union standard, but it is designed to reduce financial stress, diminish turnover of the construction workforce, which we hear repeatedly we need so badly, increase skills retention and boost productivity.

The applicants' cost documentation we believe is definitely unsubstantiated and with a little bit of math, clearly erroneous.

You see before you on the screen and in hard copies that were distributed, the cost simple costs of taking what was put in the record by the applicant in terms of costs for health care under hard hats and apprenticeship and dividing it by 240 multi multifamily units.

Do a little bit of division, and you estimate that that would be 2500, over 2500 construction craft work hours per unit.

I'm sorry, that's not credible.

That's 30% higher than an average across 14 different Alameda County A1 projects that we have wage records and hours records for.

And it also has a hidden assumption that there is zero percent of this high-rise work performed by a contractor that has health, has made commitments to health benefits.

Could be Union or non-union, or that has uh made commitments to some training at the low low rate of three dollars and ten cents an hour according to the hard hats ordinance.

Questions that this council asked would ask is were any baseline training or health expenses deducted from that cost?

I've heard things all over the map tonight.

But the implication of what was put into the record is that that number is zero, and that's just not credible.

If they aren't going to contribute anything, shouldn't we ask why not?

And at what cost to public health and safety?

With that, I'll conclude.

Thank you.

Okay.

Can the applicant come up percent, please?

I don't have a share screen yet.

There we go.

Got it.

Thank you.

Oh, here we go.

Found it.

Ready?

Oh, yeah.

Good evening again, Madam Mayor, members of the city council.

Thank you, staff, uh, for all the time and energy that's gone into your work to get us here.

Um, very briefly, um, when I introduce Travis Brooks, uh Project Council, because that's really what these issues are turning on.

I will say, though, um, that, and thank you for the reminder from the planning director earlier.

You don't need me to substantiate our numbers.

Your consultant did that for you a year and a half ago when they said there'd be a 20% lift on construction projects with the imposition uh of these ordinances.

With that, let me turn it over to Travis and we'll walk you through uh the rest.

Great, thank you, Mark, and uh thank you all for your time tonight, and thank you for the time uh that you've all spent to come here tonight.

Uh, I think it's really important to frame the uh narrowness of the issues being considered on this appeal.

Uh we're not here to question the virtues or goals of the hard hats ordinance, and we're not asking you to eliminate or uh nullify the hard hats ordinance.

Regardless of the outcome of this appeal, the hard hats ordinance will still apply throughout the city to market rate projects, commercial projects, and to all projects where concessions uh to reduce or eliminate the hard hats provisions are not asked.

The narrow question in this appeal instead is what does state housing law require the city to do in response to my clients' three requests for incentives that is that it is entitled to request under state law in exchange for the significant expense it it is encouraged, it is incurring to provide dozens of critically needed affordable housing units.

That uh an incentive must result in actual and identifiable cost reductions.

We've done that here.

Uh these incentives will result in approximately five million dollars in cost reductions.

That certainly clears the state law threshold uh if it's anywhere near that range uh for an incentive or concession to be appropriate.

Uh and there's case law that says uh it's a the Schreiber case, 2021 case out of LA that said by virtue of asking for an incentive uh a presumption actually arises that the incentive will result in cost reductions.

Uh next slide.

Uh so density bonus law incentives and concessions are intended to be uh flexible and broadly defined, uh broadly applied.

Uh with regard to development standards that can be reduced or eliminated.

It's any site or construction condition that applies to a housing project pursuant to any ordinance or other uh condition adopted by the local government.

I I do think that clearly that doesn't only apply to physical site constraints, it also complies to locally adopted policies.

Uh but if that weren't enough, even if that uh even if the hard hats ordinance did not fall into the definition of a development standard that could be eliminated through an incentive, it we certainly fall within uh the other regulatory incentives category that we could ask for under uh K3 of the density bonus law.

Uh we already talked about the interpretive rules that bind you here.

Uh, the density bonus law uh directs you to interpret it liberally in favor of producing the maximum number of housing units.

There are also pro-housing interpretive rules under the HAA that are applicable here.

Uh so as laudable uh as the label provisions of the uh hard hats ordinance are uh for our purposes here, those uh labor provisions just do not enter the calculus as to whether or not you can uh deny the incentives that we've requested.

Next slide.

Great.

Uh and again, we've already talked about the narrow uh uh health and safety findings that can be made.

There are very specific requirements uh that must be met to make that finding.

There are four very specific requirements uh and words, they all have meanings that must be met.

So, specific adverse impact must be significant, quantifiable, direct, and unavoidable.

Uh as the record shows, those four requirements have not been met here to deny the incentive request.

Uh, and they must be based on objective written public health and safety standards that existed at the time we submitted our preliminary application.

As laudable as the Hard Hats ordinance is, it is not a health and safety standard.

It is a labor policy document.

Uh the OSHA provides the health and safety standards.

With that, I'll I'll pass it on to Mark.

Thank you again.

Just a last slide here showing the potential revenues generated by the project.

Um, and there's a question earlier about permit fees, impact fees versus the cost of hard hats.

You can see that the city's fees are quite high compared to the overall cost of the hard hats requirements.

Thanks, Mark.

Yeah, that's thank you very much, everybody.

Okay.

All right.

Um, very good.

Do we have any council questions?

Okay.

Oh, it's not working.

Uh okay.

Well, you can start while I try to fix it.

Go ahead, council member.

Uh, thanks.

I have three questions for staff.

Uh could a developer waive living wage ordinance as a concession.

Short answer is yes, and it goes back to the definition of concession government quote section 6591 5K 3.

Um that says any other regulatory incentive can be a concession.

Okay, um, so this project is is waiving the uh bird safe glass.

Um could could someone waive any um green building codes you might adopt at some point beyond what the state requires?

Uh the answer to that I believe is no.

Um the green building standards are part of the building code, um, so they the project would have to comply.

Thank you.

Um and then so for C Manager or whomever, um, were there to be um uh proposed amendment to say law, would it be possible for council to be alerted in the occasion if it happens?

Or I might be we might we might get that from our state lobbyists.

Sure, absolutely yeah, great, thank you.

Thank you.

Thank you.

Councilmember Traegub.

Uh thank you so much.

Um while this is not the direct subject of the appeal, we are seeing this whole ladder de novo.

So um I'm noticing that one of the requested concessions is around board safe glass for 400k for staff.

Have there been other instances you have observed of uh waivers, sorry, concession requests of Bart Safe class on a project since the inception of the Bard Safe ordinance?

Yes, I don't have the exact addresses, but I I do remember.

Concession on bird safe.

Okay, uh for the applicant.

How did you base the 400k number and did you consider uh what there any alternatives that may have uh been equivalent on cost to um not having part save class?

Are there any part safe treatments that you looked at that might not add cost to the project?

There are no bird safe treatments that we're aware of that don't add cost to a project.

The one that you're looking at with that cost assumption is is is inexpensive as it gets.

Um you can go every from everything from applying stickers to the glass, little dots uh four inches on centers uh all the way up to fritted glass, uh, which is quite expensive.

That's not a reflection of a fritted glass requirement.

That's more a reflection of the stickers uh the dot stickers requirement like you see on the B of A building downtown.

Okay, thank you.

Uh Councilmember Blackaby.

Thanks, Madam Mayor, and thank you to the applicant and the appellant and staff for being here.

Um, kind of like in the first one, I just want to kind of dive into some of the cost numbers a little bit.

Um on the apprenticeship requirements, um, you know, the cost saving about 1.9 million.

I was just going back again to hard hats and refreshing my map recollection on what the apprenticeship requirement is.

It says under the ordinance for covered projects, contractors must perform at least one of the following, either participate in the joint labor management apprenticeship program or use a state approved program or contribute to training funds, making hourly contributions to the apprenticeship council for every apprenticeable craft hour.

Um when you calculated this number, kind of what was the what was the cost?

How did you determine that cost?

Was it against one of those three?

Sure.

I was wondering if one of them is, is it if you used a joint labor management apprenticeship program?

Is that more economically viable?

Good evening, everybody.

My name is Paul Menzies.

I'm CEO of Laconia Development.

We are the development of this developer of this project.

These estimates were put together by looking at actual cost estimates for the birds class.

And the other estimates were put together in conjunction with uh contractors, uh many of whom we've worked with before who provided information to us.

So I guess my question is is so are we saying that participation in the joint labor management?

I'm again I'm just trying to find out is there a way of meeting the apprenticeship requirement under hard hats that cost less than 1.9 million.

Does anyone know the answer to that?

I don't believe so.

Do you know if that what what is the cheapest method of of meeting that?

Am I asking the question the right way?

What I'm trying to figure out is which of these three prongs is the most economical way of reaching it, and is that what this 1.9 million reflects?

That's what I'm trying to ask.

I'm sorry, I don't quite understand that question.

Yeah, I mean, yeah, no, they're under the three options.

This test is for the least expensive option identified by the contractor.

Right, which just so I know which one I don't I don't recall off the top of my head which one it was.

Okay.

Do you have follow-up questions?

Um, I just wish I wish we knew that, but um, okay, that's all I got.

Thanks.

Okay, thank you.

Councilmember Bartlett.

Thank you, Madam Mayor.

And um this question, I guess, is for the for the team.

Um what's our methodology for measuring um impacts on uh public health and safety.

I mean, we I think we rely on objective standards that are established in the municipal code, and so if the appellants in this case had identified objective standards in the municipal code that would constitute health and safety risks, we would have taken those into consideration, but I'm not they didn't raise specific objective standards, and I haven't been, I don't think our team has been made aware of any specific codified objective standards for health and safety that would be violated by the project.

Thank you.

Thank you.

I'm gonna go to council member, actually, Vice Mayor Luna Para, because you've asked already, so we'll come back to you.

Thank you.

Um, I think the appellant wanted to respond to Councilmember Blackaby's question, so I just wanted to give them the opportunity to do so.

Thank you very much.

Uh Councilmember Blackview.

I mean, there were, as you noted, three different options.

So even if one were not to take advantage of the training opportunities of participating in an apprenticeship, one could contribute to an existing state California Apprenticeship Council training fund at the rate of three dollars and ten cents per construct apprenticeable construction craft work hour.

That's where I did the math on the earlier slide to get to the, in my opinion, inflated estimate of hours worked by construction craft workers per unit compared to a range of other projects that we've looked at.

So it's either that the workers that they're intending to hire are less productive by 30 percent, or the number is incorrect.

Um the value of the apprenticeship is harder, is harder to calculate, and that goes to the methodology questions that were asked earlier.

Thank you for the opportunity.

Did you have a question or that was no, okay?

No.

Okay, thank you.

Going back to Councilmember Trakeup.

Well, I had the same question as the vice mayor.

It's been answered.

Very good.

Any other questions?

Okay, thank you all for answering our questions.

Um, we will now move on to public comment.

So if you have public comment on items 3A or 3B, this is the zoning adjustment board's appeal for 2029 University Avenue.

Please come on up.

Oh hello.

Okay, you're ready to go.

You're ready, got it.

Again, EJ Sire.

So I mean, if if 400,000 for bird safe glass is going to make or break a project, and that's what's needed for a concession, I think there's other issues there, but um I just want to point out a couple of different things here.

Everybody keeps talking about state legislature needs to fix this stuff and all that.

If if everybody just did what the bosses said and waited for the bosses to fix stuff, then there would never be a union at all anywhere.

Um 1598 university is really a good example of what happens when you don't have any standards whatsoever on any of these projects.

1598 university, I use that example because we were told, we as an everybody in this room right now, uh, was told multiple times that we were gonna have local workers on those projects, we're gonna have good good paying jobs on those projects.

Um, every license plate except for one, the day that we were all out there on a strike line, many of you sitting up on the dice right now, um, every license plate except for one was from the state of Washington.

So congratulations, developer, you employed people from Washington to take that money back with them.

Um, and I also want to point out the litigation keeps getting mentioned over and over again.

Who's gonna litigate?

It's not it's not this side of the room with safety vests on, it's the other side that would be threatening that.

Thank you.

Uh real quick, Daniel Greg, uh North Coast States Carpenters Union.

Uh just kind of speak to Igor's point uh earlier that all these stalled projects are because of hard hats.

Hard ass doesn't only applies to the three projects we're gonna talk about tonight.

So none of these projects in his district or throughout are stalled because of hard hats.

And I I just wanted to bring out the point that this is uh new to me that that a city will allow a developer to have two different applications for the same parcel.

I've seen where cities have decided what they want to see there on two different proposals, but I can imagine that they're they're gonna do a real tight cost analysis on these projects about where they can get the highest rents, and that's the one they're gonna go with.

Um, absurd.

Second, at the ZAB hearing for 2029 University, Mark Rhodes stated that contractors on this project would provide health care to the construction workers.

Five minutes after he stated the project had not gone out to bid yet.

He said the workers would have health care, but not as good as the unions.

Thank you.

Thank you.

No, I did just wondering if the development team is willing to make that commitment tonight that all the workers on this project will have some form of health care.

Thank you.

Good evening again.

Um I'm Tim Frank, and I'm also carrying a minute from Jesse Parales.

Thank you.

Um, I want to note that the construction trades are fundamentally pro-housing, you know.

We don't get a single work hour out of any job that doesn't get built.

So we want jobs to be built.

We support the idea of actually building to a very aggressive envelope.

We would like to see a lot of building uh homes built near the the campus.

We just want it done under fair circumstances.

Now Mark suggested that if we have a labor standard and we apply it here, nothing will get built in in Berkeley.

Um I actually would suggest that that isn't that doesn't comport with reality.

We actually have one of the strongest uh rail markets in the East Bay.

This is a place where we could actually establish a standard and make it work.

If you look at this from a statewide perspective, the last time California built 200,000 homes in a year was in the 1980s when a majority of the residential construction work were uh a majority of the workers were union workers.

Since then we've seen union busting from the people on the other side of this this aisle here tonight.

Uh and we haven't built more than a little over 100,000 any time in recent year history.

The suggestion that actually accommodating the system that actually pays a wage high enough to allow people to afford housing without an additional public subsidy that requires the kind of training that also makes both the job site safe and improves productivity.

That just doesn't hold up.

What we need is public policy that is demanding an approach that is actually fair to the workers that will help build the strong workforce we need.

I mean, these guys are complaining about a lack of skills.

Thanks for your comment.

Thank you.

Okay, hello.

Thank you for having me today.

Thank you, Mayor.

Um, so I want to hope the iron hats on this one because this building is way over five floors, and I don't know much about buildings, but I know if you build something over five floors, you have to be very careful because it can fall.

So I know that much, right?

The height is over the five-floor limit, way over.

So there must be all precautions taken.

There has to be hard hats being used, involvement of OSHA, and even extra non-hard non-hard hat helpers, if possible, if that can make it more affordable for people hiring.

If you could mix the workers, that way you can have some hard hats.

But because for a building for this big, you cannot have any mistakes, or it can fall, or it can fall on someone in maybe the next five years.

We don't want what was happening in San Francisco to happen here with that tilting building.

You don't want that in Berkeley.

Um, also, this structure is very dull and ugly looking.

It resembles a prison style building.

Thank you.

Thank you.

Thank you, Mayor and Council members.

My name is Vince Agreement with Sheet Metal Workers Local 104.

I just want to thank everyone here tonight.

I know this is a special called meeting, it's a Monday night, we're all frustrated to be here to varying degrees, but I want to thank all of your leadership on this.

What I want to say is that what we've been served tonight by the applicant was pure disrespect.

We, when we were framing the hard hats ordinance, it took years to meticulously craft this to be amenable to development to make sure that it worked and it penciled to the point where we're working numbers for months.

They came here tonight, and we clearly just heard a bunch of BS.

They can't tell you how much with which apprenticeship works for them, how they got their numbers.

They worked with some contractors.

That's the nature of this industry.

It is underhanded, people pay under the table, people are undocumented and exploited oftentimes, particularly in this city, and that's why we're here.

Thank you all so much for your time tonight.

And I'm sorry we were disrespected.

Thank you.

Hi, Stephanie Land again, Berkeley Resident Local 22 member.

I was not planning on speaking twice or staying this long because it's past my kids' bedtime on the single mom uh, but I feel passionate, so I'm I stayed, I'm here.

Um I just want to say this feels very fishy.

I work for a general contractor, so I do interface with the cost items.

We have but you know brought down our budgets by millions of dollars sometimes by value engineering.

Why is it why are we looking at it with such a narrow lens and allowing them to only look at taking away health care rights, taking away training?

I can tell you someone who's not trained is gonna take twice as long to do the job.

That's gonna be costly.

So why are we looking at with such a narrow lens?

Let's be more creative.

Let's think about the other, you know, concessions that could be offered, like value engineering, looking at the budget as a whole, and not narrow it down to taking the things away that Berkeley cares about.

All Berkeley residents care about this.

Thank you.

Are you speaking as well?

No, other public comment?

Okay, he's behind the he's behind the camera guy, so all right.

Um, is there any public comment online for items three or three A or 3B zoning adjustments board appeal to zero two nine University Avenue?

All right, two hands raised.

First is Kelly Hammergren.

Okay, I just sent you this document.

Um safe glass loss of nature is detrimental to our public health.

And at the zoning adjustment board meeting on November 13th.

And an estimate of 400,000 for bird safe glass.

The board members, that is a difference of $8,674 to protect birds from birds from bird glass collisions.

The board members asked the developer to make a swap and to put in the bird safe glass.

And that if funds were found later to add in the public art later.

And I asked Kelly request that tonight.

Kelly, I'm sorry, your time is up.

Thank you.

Okay.

Next is Joey from Ebho.

Hold on, say.

Hi, my name's Joey.

I'm not here on behalf of EBHO, that is just uh must have been logged on to the wrong Zoom account.

I'm sorry about that.

Um but my name's Joey.

I'm uh the chair of the Berkeley Commission on Labor.

That's the capacitor here.

I'm sorry to leave the meeting and log back in on Zoom.

Um yeah, once again, we uh urge the council to stand behind the hard house ordinance uh to the extent possible and if that means you know engaging in legal action to defend the ordinances that we pass in our city because we believe in them, we think that's worth doing.

We think it's worth taking a strong stand um and we support, you know, all the calls on the developers to stand by strong labor practices, whatever the the results of the hearing is tonight.

Uh we hope that they will, you know, uh uphold strong labor standards, provide health care for their workers, and so on.

Thank you.

Thank you, Joey.

Thanks for being here with us virtually.

Um I think that that's it for our public comment online.

Just those two.

Okay, very good.

All right.

Is there a motion to close the public hearing?

So second.

And if there's no opposition to closing the public hearing, then we will close the public hearing.

All right.

Public hearing is closed.

Uh we'll now move on to council deliberations, starting with Councilmember Taplin.

Uh, yes, thank you, and thank you for everyone to everyone for saying uh so late.

Um and Director Clinton correct me if I wrong, but it sounds like the city doesn't currently have adopted objective health standards, or is that it was a response to couple of things.

No, I'm sure we do have many codified objective standards related to health and safety, but um I'm just saying that none of those this project hasn't been identified to be violating any of those objective standards.

Thank you.

Um this is a novel thing we're dealing with now, but I wanted to state that I'm committed to continuing the work that we began with the hard hats ordinance.

Um, something Celsius said last round really uh moved me.

Um especially the line about or the part about having a red line.

Um it makes total sense for our community to advocate and fight for the rights of workers, and that's what we've attempted to do here with hard hats.

Um people are well within a reason to be suspicious and wary of uh first exploit workers for profit.

If we hadn't spent our entire lives seeing that, I don't think people would be so concerned tonight or in general.

Um, I I do want to see the state come into alignment with with us around hard hats and the applicability of the ordinance.

Um uh I know that I know that perhaps there's not votes to deviate from a soccer commission tonight.

But I when I hear everyone, I look into the crowd, I see so much of my own family, that there's no way I could I could I could set aside my principles this evening.

Thank you.

Thank you, Councilmember Traygob.

Thank you.

For the record, I will largely echo without repeating the comments that I made for the previous item, which was ZAB appeal 2425 Durant use permit application ZP 24-0162.

I did want to add one thing since 1598 university came up, and I was on the ZAB when I was uh I believe part of a unanimous ZAB when we approved that project.

And in my two years on the council, no project before or since, well, I don't know what happened before, but certainly no project has um been grounds for more warranted constituent complaints where various parts of the code continue to be violated over and over by the applicant, and in my previous line of work as an engineer, uh as a safety engineer, generally when there were multiple violations, it uh demonstrated a systemic issue which could often be corrected with training, and that means we had approved a project where the crafts that were working on it presumably were not receiving the training that frankly they deserve, nor our community.

My heart hearts right now, I would love to see a project approved in my district that will actually break ground and not be built on the box of the workforce for all the aforementioned reasons.

I hope the state does its job.

I look forward to working with Councilmember Taplan and others on this body to see what uh objective standards we might need to develop as well, but I will respectfully be laying off this item as well.

Thank you, Councilmember Humbert.

Thank you, madam mayor, and this is where I um fulfill my promise to be very brief.

Um this appeal raises the same legal questions I addressed in my in the prior item um regarding the scope of density bonus concessions and the specific adverse impact standard.

I've reviewed independently the records for the 2029 University Avenue applications, including the distinct concessions requested cost documentation and testimony received on this item, and I reached the same conclusions for the same reasons.

I'd like to incorporate by reference something lawyers like to do.

My comments on the policy and legal questions surrounding the 2425 Durant project is the basis of my reasoning for 2029 University Avenue.

Therefore I'm compelled to reject the appeal, affirm that the ZABS decisions, and grant necessary permits for the two versions of the 2029 University Avenue project.

Thank you.

Thank you, Councilmember Bartlett.

Thank you, Madam Mayor.

And not to uh beleaguer the point um that I made earlier, but again, um I'm not convinced that the denial of health care uh to workers in the city of Berkeley uh is not without impact.

And with that being said, without a clear record of that, whether it came with the whether it didn't come from the the challenger or from our own city staff, uh with the with an out that with the absence of that impact statement and that analysis, I don't feel comfortable.

Uh throwing our work is through the wind.

Thank you.

Any other council comments?

Okay, I will just add my comments basically as incorporated as before as you were saying, um, Councilmember Humbert.

Um, but thank you everyone so much for coming out and for sharing your perspectives with us this evening.

Um we really do appreciate hearing the impact.

I think that's really essential.

Um, and thank you so much as always to staff for your work on this.

Um is there a motion?

I'd like to make a motion to deny the appeal and affirm the zoning adjustments board decision to approve use permit.

Should I cite them both?

Okay, ZP 2024-0162 and ZP 2024-0182.

Second.

Can we take the roll, please, clerk?

Okay.

On the motion, Councilmember Casarwani.

Yes.

Taplin.

Abstain.

Bartlett.

Abstain.

Trago.

Abstain.

O'Keefe.

Abstain.

Blackaby, pass.

Unapara.

Yep.

Humbert?

Yes.

Mayor Ishii?

Yes.

Uh Councilmember Blackley.

Umstain.

Okay, motion fails.

Staff, can you talk to us about what happens if the motion doesn't pass?

If council doesn't take action on this, then the ZAP's decision will stand right.

Thank you.

Okay.

Um that was the final item for this evening.

Um, since this is a special meeting, um, that's all we have left on here.

So is there a motion to adjourn?

So moved.

Second.

Um, if there's no opposition to adjourning, you will adjourn for this evening.

Okay.

All right.

Meeting is adjourned.

Thank you.