Oakland Zoning Update: Used to be uses

by V Smoothe | June 2, 2009 | 17 comments

So, as part of the never-ending Citywide zoning update, the Oakland City Council will tonight consider a number of amendments to the City’s Use Classifications (PDF). Sounds exciting, huh?

Well, exciting might not be the right word, but it’s certainly important. For those who aren’t schooled in such matters, here’s how it works in a nutshell. Zoning is how we regulate land use, and is one of the most important powers a city has. There are two aspects to this. First, there’s what you can build – how tall, how dense, how much open space you need, how far buildings have to be set back from the street, and so on. The year-long discussion over the Central Business District Rezoning was basically entirely focused on this. But zoning also regulations what you can do in the spaces you build, or in spaces that already exist. So if I live in a residential neighborhood, and I want to say, open a restaurant in my dining room, the zoning code will tell me that no, I can’t do that.

What you can build and what you can do varies from neighborhood to neighborhood. Every place in the City belongs to one of a long list of zones. Each zone has its own rules for what you can build in that zone and also what you can do in that zone. dto510 has written a very good primer on zoning. In general, Oakland has too many zones, and their regulations are, to put it kindly, archaic. The City is currently undergoing a lengthy process that will update and consolidate our zones.

Got all that? Now, the regulations for each zone tell you what you can and can’t build, and what you can and can’t do. A certain zone might, for example, say that you’re definitely allowed to open a flower shop, but if you want to open a restaurant, that might be allowed or it might not, in which case, you will have to apply for something called a conditional use permit to have a restaurant. And the same zone might also say that you’re not allowed, under any circumstances, to open an auto repair shop.

So for all these activities, restaurants, and auto repair, and flower shops, whether you can do them in a certain place or not is defined by the zoning for that place. But it would be impractical to sit around, listing for every single zone in the city, every conceivable use of space. So what we do instead is that we group potential uses into activities. So instead of listing, in the code for every single zone, whether or not you can have health clinics, hospitals, assisted living facilities that provide on-site medical care, counseling centers, and drug treatment facilities, we have an activity classification for “Health Care Civic Activities,” which has a definition and also a list of examples of things that fall under it. Then, for each zone, we simply say whether Health Care Civic Activities are permitted, conditionally permitted, permitted or conditionally permitted with certain exceptions, or banned. These Use Classifications and their definitions are listed at the beginning of the City’s zoning code.

It probably sounds kind of complicated, but it’s normal and it’s also probably the simplest way to provide clarity in our zoning.

Currently, our Use Classifications are, in many cases, overly broad. In writing zoning, you don’t want to make your definitions too specific or it becomes confusing. But you also don’t want to make them too broad, or you end up over-regulating certain types businesses for no reason. For example, if you want to limit restaurants opening in your neighborhood but not butcher shops, a good zoning code will have a way of placing certain restrictions on restaurants without also putting those same annoying restrictions on butcher shops. The amendments being presented to the Council tonight will change the Use Classifications so that it is easier to identify which businesses we want to regulate and which we don’t. Amending the definitions, of course, doesn’t do anything to change the zoning code anywhere, but it does allow you, when you eventually do change the zoning code, to more finely regulate activities.

Here are the proposed changes in the use classifications (PDF):

• Telecommunications Activities have been moved from their own special classification to Essential Service Civic Activities, which also includes things like police stations, telephone poles, sewers, storm drains, and streets.

• Community Assembly Civic Activities, which included things like churches, basketball courts, and festivals, has been split in two. Now instead of lumping all those things together as the same use, we will have a more narrowly defined Community Assembly Civic Activities, which will include churches, meeting halls, and performing arts centers – basically, places people gather to watch somebody talking. The basketball courts, soccer fields, and picnic areas get their own use, called Recreational Assembly Civic Activities.

• General Food Sales Commercial Activities, which used to include both restaurants and grocery stores, is being split into three different definitions – General Food Sales Commercial Activities, which will basically be grocery stores and speciality food markets, Full Service Restaurant Commercial Activities, which, well, is pretty much self-explanatory, and Limited Service Restaurant and Cafe, which is like, a sandwich shop.

• Convenience Sales and Service Commercial Activities, which included convenience stores, beauty supply, laundromats, barber shops, dry cleaners, and the like, and General Personal Service Commercial Activities, which would be like, your nail shop, and being rearranged. Now we’ll have General Retail Sales Commercial Activities, which will include like, basically all retail (newsstand, florist, bookstore, furniture store, jewelry store, office supply store, department store, and so on) and Consumer Service Commercial Activities, which includes like, all those things that people need and use all the time, but that nobody want to look at – barber shops, nail shops, laundromats, tattoo parlor, shoe shine, and the like.

• Group Assembly Commercial Activities used to include, like, a million different things. Now it’s being split into two. First, we’ll have Group Assembly Commercial Activities, which is for, like, big stuff – theaters, performance venues, large gyms, banquet halls, the circus. Then there’s Personal Instruction and Improvement and Small Scale Entertainment Commercial Activities, for theaters holding less than 300 people, yoga studios, small gyms, and other small (under 2,000 square feet) instructional facilities.

• Business and Communication Service Commercial Activities is being split into two – Business, Communication, and Media Service Commercial Activities, which would be like, a mailbox shop or copy/printing place, and Broadcasting and Recording Service Commercial Activities, for music or film recording studios.

• Categories where uses weren’t really changed, but the definitions were improved to be more clear and got a new name, include Automotive Servicing Commercial Activities, which is becoming Automobile and Other Light Vehicle Gas Station and Servicing Commercial Activities, and Automotive Repair and Cleaning Commercial Activities, which is becoming Automobile and Other Light Vehicle Repair and Cleaning Commercial Activities.

• Transport and Warehousing Commercial Activities got split up. The original classification will now apply only to warehousing and storage, while taxis, limos, airport shuttles, messenger services and so on now get their own name, Taxi and Light Fleet-Based Service Commercial Activities.

• Animal Care Commercial Activities also got split up, so a vet is still under the same classification, but the kennel or a breeder would now fall under Animal Boarding Commercial Activities.

And that’s it. Overall, these are really good changes. Naturally, there are several aspects I would probably do differently, but there’s nothing I can’t live with.

So, this item came before the Council’s Community and Economic Development Committee last week, and OMG, it was most definitely among the most frustrating discussions I’ve witnessed in recent memory. I realize that the distinctions between uses permitted in certain zones and the definitions of use classifications is not necessarily immediately intuitive, but I’ve tried to explain the difference above. I hope people understood it. Last Tuesday, the Committee most definitely didn’t.

If and when we ever finish the zoning update process and adopt new zoning codes for all our neighborhoods, there are two things we can definitely expect from the Council – they will try to ban antennas and nail shops. The whole meeting last week, they just sat there, obsessing about how they hate antennas and nail shops and were completely convinced, no matter how many times they were told otherwise by four different people, that the changes to the definitions will make it neither easier nor harder to put up an antenna. No room for facts at the City Council, they hate antennas, and don’t want any more going up, regardless of whether or not people, say, need to be able to transmit signals to, I don’t know, use a cell phone.

You can watch the whole discussion here:

Here’s a little taste of what you’ll see if you choose to press play.

Neil Gray, Strategic Planning Division: Communications activities, as an activity, was permitted in every single zone in the City. The facilities, on the other hand, certain facilities required a use permit and design review. Those are remaining unchanged…The activity was permitted in every zone in the past, and it’s gonna remain permitted in every zone in the past. But the facilities are going to continue to regulate the activities.

Ignacio De La Fuente: I know, but…So what do you consider the antennas that they’re putting all over the place?

NG: That’s facilities.

IDLF: That’s facilities? That’s not true! Because I – talk to me, Mark. Because I -I’m getting it left and right. I got 12, 15 within a month of these damn antennas and I cannot stop them, so how’s that? I wanna put them in Ms. Brunner’s district.

Jane Brunner: I knew I’d get someone going today.

JB: Oh! Oh!

IDLF: I want to put them in Ms. Brunner’s district.

Mark Wald: Mark Wald, Deputy City Attorney. Mr. Gray, I think, is essentially correct. The planning code has sort of an arcane treatment that distinguishes between activities and facilities. And it would be very difficult to sort of, separate –

IDLF: What is an antenna? Come on, guys. Talk to me in English. Talk to me in English or Spanish, one of the two so I can understand. What is an antenna?

NG: You don’t speak planning code?

MW: What Mr. Gray is saying is there is no relaxation of the regulations as it pertains to telecommunications facilities in the proposal that’s before you today.

IDLF: Okay, so now you said it. But how can I stop Verizon and all those people from just putting up antennas all over the place?

NG: As you have in the past, there’s a conditional use permit process that’s existed in the past and continues. Whatever regulations are there are unchanged. Now, it’s a question, do you want those regulations to be stronger. If that’s the case, we can go through a process to do this.

IDLF: [unintelligble]

NG: This process neither makes it easier nor harder for those telecommunications facilities.

JB: But we don’t have the exact language. So 17 – I’m not ready to pass this one on this one yet, because 17.128 – I may not be finding it.

MW: I’m sorry. I think that reference was to a section, a chapter of the code that has not been changed.

JB: So what part of this code, they don’t tell me the part of the code that was changed? So tell me the code the was -

MW: Well, the whole attachment A -

JB: I know, but I’m not gonna read the whole attachment A.

Sigh. I understand that, at first glance, the distinction between activities (what you do with a space) and facilities (an actual physical thing), and the manner in which zoning regulates both, might seem confusing. But zoning, if you just take a little time to step back and read carefully and try to understand it, is just not that complicated. By the end of the meeting, it was clear that despite their combined twenty-eight years of experience on the City Council, neither Council President Jane Brunner nor District 5 Councilmember Ignacio De La Fuente, fully grasped this distinction or really had any idea what they were being asked to pass.

I realize that Councilmembers are busy, and so it’s understandable if they don’t have time to sit down and read, Zoning for Dummies cover to cover. But zoning is way too important for the people making decisions about it to not understand. They need to have like a zoning camp or something before the rest of the zoning update comes before them, or who knows what craziness we’ll end up with.