MANUELA ALBUQUERQUE, City Attorney, State Bar No. 67464
ZACH COWAN, Assistant City Attorney, State Bar No. 96372
CHRISTINE DANIEL, Deputy City Attorney, State Bar No. 142710
2180 Milvia Street, Fourth Floor
Berkeley, California 94704
(510) 644-6380
Fax: (510) 644-8641
Attorneys for Plaintiff
CITY OF BERKELEY
CITY OF BERKELEY, ) No.
)
Plaintiff, ) DECLARATION OF DAN MARKS
) IN SUPPORT OF APPLICATION
vs. ) FOR TEMPORARY RESTRAINING
) ORDER AND PRELIMINARY
ALTA BATES MEDICAL CENTER, ) INJUNCTION
a nonprofit corporation, and DOES 1-50. )
) Date: February 24, 1997
Defendant. ) Time: 1:45 p.m.
____________________________________ ) Department 81
I, DAN MARKS, declare:
1. I am employed by the City of Berkeley as the Manager of the Current Planning Division of the Planning and Development Department, and Zoning Officer.
2. I am familiar with the manner in which files of the Current Planning Division are kept. The files and records of the Current Planning Division are routinely made and kept by public employees of the Division, acting within the scope of their employment, to record official actions or observed conditions at or near the time of the action of observation. I, other staff members, and the general public routinely use these records as sources of reliable information.
3. I have diligently reviewed the files of this Division in preparing this declaration.
4. The City has adopted a zoning ordinance (Ordinance 3018 - N.S., as amended), which regulates the use of land and buildings within the City. True copies of the following chapters of the Zoning Ordinance are attached hereto:
Chapter 1
Chapter 2
Chapter 7
Chapter 20
Chapter 25
5. Based on my review of the Official Zoning Maps of the City, I have determined that the Alta Bates Medical Center is located in the "R-3" (Multiple Family Residential) zoning district.
6. As relevant, the R-3 regulations regulate permitted and conditionally permitted uses, set maximum lot coverage standards, building height limits, and establish open space requirements. (Zoning Ordinance sections 7.1-7.6.)
7. What follows is a brief summary of the permit history of Alta Bates Medical Center since 1970. In 1970, Alta Bates hospital consisted of the buildings shown in Exhibit A, with the exception of the "1975 Building". These included the "1928 Building", the "1954 Building" and the "1968 Building", which generally made up what was then known as "Alta Bates Hospital". Various other accessory buildings, such as the Laundry Building and the Boiler Building also existed on the site.
8. In April 1971, the Berkeley City Council approved Use Permit No. 6775 and Variances Nos. 537 and 538 to permit development at the Alta Bates Campus, as set forth below. Use Permit #6775 authorized expansion of the existing hospital (as described in the foregoing paragrap) through construction of the 1975 Building, as well as a parking garage at the corner of Ashby and Colby, across Colby from the 1975 Building. Because the parking garages are not permitted in the R-3 Zoning District, Variance #537 was granted. In addition, because the 1975 Building exceeded the lot coverage limitations of the Zoning Ordinance, Variance #538 was granted. The Variances also allowed other comparatively minor deviations from the zoning regulations.
9. The development authorized by the 1971 Use Permit and Variances necessitated the vacation of the portion of Webster Street between Regent and Colby Streets, to allow for the construction of the 1975 Building and its connection to a pre-existing building to the south, as well as construction of two new streets: South Hospital Drive at the southern end of the campus, and an extension of Colby Street from its former terminus at Webster to Ashby.
10. The 1971 approvals included the following condition referring to the 1928 building on Regent Street south of Webster:
(2) That the older wing of the existing hospital shall be removed within five (5) years of completion of the proposed addition; that the space occupied by the older wing shall be retained substantially open.
11. All of the development contemplated by the 1971 Use Permit and Variances was completed, including the vacation and development of streets, except that the demolition of the 1928 Building was not accomplished within the five year period required by the Use Permit.
12. Exhibit A depicts the buildings on the Alta Bates Campus as of 1982. These included the buildings decribed in 7, as well as the "1975 Building".
13. Eventually, ABMC applied for permission to extend its deadline for demolishing the 1928 Building. ABMC took the position that it needed a new building to house the functions in the 1928 Building. Ultimately, the question of the demolition of the 1928 Building was subsumed within ABMC’s 1982 permit applications, which are described in the next paragraph.
14. In February 1982, ABMC applied for a modification of Use Permit #6775 and for a new Variance to authorize the construction of two new buildings: one at the corner of Colby and South Hospital Drive (the "Southwest Building"), and the other more or less on the site of the former 1928 Building, which is known as the "East Building". These two buildings were to replace four buildings existing at that time, including the 1928 Building. These applications subsumed the issue of the demolition of the 1928 Building.
15. In July, the application was amended to add an application for a new Use Permit (eventually numbered 10679) to add 10 perinatal beds and 6 bassinets to the third floor of the 1975 Building.
16. On March 17, 1983 the City approved ABMC’s applications. It modified Use Permit #6775 to authorize the two new buildings (the Southwest Building and the East Building), and issued a new Use Permit #10679 to authorize the 10 new perinatal beds and 6 new bassinets on the third floor of the 1975 Building. The City also granted a Variance (#999) to permit lot coverage in excess of that otherwise permitted under the Zoning Ordinance.
17. A major and recurring issue triggered by Alta Bates’ applications, both in 1972 and 1982-83, was the impact of its expansion on the surrounding neighborhoods. Indeed, one could say that the neighborhood impacts of Alta Bates’ expansion formed the planning context for those applications. As a part of the overall compromise that led to the approval of Alta Bates’ 1983 Use Permits and Variance, it negotiated with the surrounding neighborhood organizations, and executed, what has become known as the "Neighborhood Agreement", a copy of which is maintained in the files of the Current Planning Division, and with which I am generally familiar. In brief, the Neighborhood Agreement limits Alta Bates to a specified level of development, in return for the non-opposition and support of the neighborhoods for the 1983 Use Permits and Variance as well as for certain specified anticipated future applications. The 1983 Use Permits and Variance require compliance with certain parts of the Neighborhood Agreement, but allow less development than is contemplated by the neighbors and Alta Bates in the agreement.
18. Thereafter, the Southwest Building was constructed and occupied and the 1928 Building was demolished. A site plan showing the Alta Bates Campus as it was planned to exist at build-out is attached as Exhibit B. The major difference between that plan and what currently exists is that the plan shows the East Building (labeled "Phase II") as completed (with a proposed roof garden), while in fact the site of the former 1928 building is currently being used for parking, storage, delivery access, and generally as a "corporation yard".
19. The Zoning Division began receiving phone complaints regarding the construction activity at Alta Bates in late September or early October, 1996. Unfortunately, these complaints were not logged and I have no specific date when we started receiving these complaints. However, in response to these concerns, in late October I contacted our liaison at Alta Bates, Deborah Pitts, Community Relations Representative, to arrange a meeting to discuss the current projects underway at Alta Bates.
20. On October 28, 1996, a meeting was held between the following people:
For Alta Bates: Deborah Pitts, Michael Greene, Attorney, and Richard Adam,
Contractor.
For City of Berkeley: myself, Gisele Sorensen, Associate Planner,
and Reggie Meigs, Chief Building Official.
21. At the October 28 meeting, Ms. Pitts and Mr. Adam described the general nature of the work underway at the hospital, representing that the project included two parts: asbestos removal in second story "interstitial space," and renovation of the third floor women’s and infants’ area. We requested plans of the current renovation project so that we could determine whether there was any intensification of use and whether modification of the Use Permit would be required.
22. On October 29, Alta Bates provided me with a partial set of plans of the current construction project. After reviewing the plans, we noted what seemed to be a substantial renovation of space from one type of use to another, and the addition of usable floor area on the third floor. The increase in floor area was confirmed in a phone conversation with Carrie Shanahan, facilities planner on November 1.
23. I then drafted and sent a November 1 letter (Exhibit C) noting my concern with the project, and especially the additional floor area. I noted that in my view, the third floor renovation project as a whole was continuing at their own risk should the City determine that a Use Permit modification was required and that permit not be granted. I requested additional information to assist me in arriving at a determination regarding the work underway on the third floor, including an adequate set of "before and after" plans for the area. At the time I sent the November 1 letter, I had not yet reviewed the applicable record to determine the Use Permit conditions that applied, or representations made in previous Use Permit application that might apply to the project.
24. In response to my November 1 letter, I received a letter dated November 7 (Exhibit D; received November 12) asking several questions of me in return. At this point, at the request of Alta Bates, the issues moved to the level of the City Manager and Alta Bates' Chief Executive Officer. A meeting was scheduled between them on November 22.
25. On November 22, James Keene, the City Manager, Gil Kelley, the Director of Planning and Development, and I met with Deborah Pitts and Al Greene, CEO of Alta Bates. At this time we discussed the concept of "macro level" and "micro level" impacts. As I understood the discussion, "macro level" issues relate to the overall intensity of use at the hospital as that intensity affects the community, such as overall traffic, number of employees and other campus-wide measures of intensity of use. "Micro level" impacts would be a measure of whether any particular function or set of functions within the hospital was being modified to increase or decrease in intensity.
26. We discussed that the "baseline" for "macro" analysis was likely to be the level of development when the Use Permit was granted in 1983. The hospital representatives also asserted that in their view, the parameters controlling what was permitted at the hospital site were set forth in the Neighborhood Agreement. The City indicated that we had not yet researched the relationship of the Neighborhood Agreement to City permits and could not yet comment on that issue. City staff continued to assert that "micro" level impacts could well be within the purview of the City's authority and existing Use Permit.
27. The hospital agreed to provide us with information on the "macro" level issues such as traffic, employment, number of patients, number of births, and other information. The hospital also agreed to provide us with more information on the "micro" level as to exactly what was being developed on the third floor, plans of what had previously existed on the third floor, and information regarding what it believed was permitted on the third floor.
28. On December 4, the hospital provided the "macro" level measures in a table form (Exhibit E) and indicated that it could not provide the "micro" level information for another three weeks.
29. On December 12, in a letter from James Keene (Exhibit F), the City reiterated the need for more detail regarding current construction projects and a comparison to past permits, and requested that the hospital stop construction on the third floor while the issue of the conformance with the Use Permit was resolved.
30. On December 17, the City Council adopted a motion requesting that Alta Bates halt construction activity until a determination could be made as to the conformance of the project with the Use Permit. This request was relayed in a December 20 letter from Sherry Kelley, City Clerk (Exhibit G).
31. On December 23, the hospital agreed to not begin new construction, but indicated that it would continue to complete the work it had already begun on the third floor, as well as complete the asbestos work.
32. On December 24, 1996 (at approximately 5:30 p.m.), Alta Bates delivered two notebooks (Exhibit H and Exhibit I) containing what it asserted were the facility plans permitted under its 1983 Use Permit, plans of the campus in 1996, and the plan for future construction for the Women's and Infants' area. Although this information was provided in a very difficult to assess format, staff assembled the "plans" for the third floor and compared the "1996" plans to the third floor plans submitted in its application for its 1983 Use Permit (submitted in July, 1982). The plans submitted as being "authorized" under the 1983 permit are very similar to the 1996 "existing" plans.
33. Staff had initially assumed that the "1996 plans" incorporated the improvements already virtually constructed; this proved to be a City staff misunderstanding. The hospital provided no information in these notebooks to indicate what exactly was under construction or constructed in 1996.
34. Based on a comparison of the "1996 plans" and the 1983 Use Permit drawings, I issued my letter of January 6 (Exhibit J) indicating that the hospital was not in compliance with its Use Permit. This was relayed to Mr. Al Greene with a cover note from the City Manager on January 7 (Exhibit K).
35. I undertook a detailed tour of the third floor on January 21, 1997 with the available 1996 floor plan and compared it to what was present on the third floor on that date. I discovered that the "1996 plans" submitted by Alta Bates did not fully reflect the areas which were clearly constructed prior to 1996; nor did they reflect the current status of new construction work virtually completed on the third floor as of December, 1996 (Exhibit L). This tour indicated that the hospital was further out of conformance than I had indicated in previous communications. In addition to the current work being outside the scope of the Use Permit, it is likely that some previously constructed work (no date known) may also be out of conformance with the Use Permit plans submitted in 1982 (Exhibit L). The information displayed in Exhibit L is confirmed in large scale plans titled "Women and Infants Remodel, Phase 3D", dated December 31, 1995 by Akol Architects which is on file in the Current Planning Division.
36. In my January 6 letter, I requested certain information that might allow for a different determination. This information would also help to clarify the current status of the third floor improvements. None of this information has been provided to date.
37. Exhibit L indicates the following areas that are currently under
construction that do not appear to have received any review or permit
approval from the City of Berkeley:
a. The eastern edge and east-central portions of the north building
(shown on the map as Phase 3) that has been recently constructed or is
currently under construction); and
b. Approximately 560 square feet of new floor area (in the southeastern
corner of the 1975 Building) that we believe was previously unfinished
mechanical area or interstitial space plus two other areas in the
northeastern corner and the center of the third floor of the 1975 Building
(marked with an "X" on the map).
38. Near-term plans to make other alterations within the 1975 Building
and on the third floor including:
a. Construction shown on Exhibit M (Phases 4, 5, and 6); some of these
alterations the hospital indicates in its phasing plans (Exhibit N) are to
begin this year.
b. Operation Room #1 Construction (Exhibit S, OSHPD, Table, page 13,
October 1, 1996); according to documents from OSHPD, Alta Bates has already
applied for a building permit to construct this operating room.
These alterations also would be in conflict with the plans submitted with
Use Permit #10679.
39. Longer-term plans to make other alterations (not on the third floor of the 1975 Building) to the Alta Bates complex include those shown on Exhibit Q, Pre-Application for Master Plan Summary, including:
a. East Building Construction (Exhibit Q, Item #1)
b. Ashby Basement (Exhibit Q, Item #12)
c. Emergency Department Relocation to the Ashby Strip (see Exhibit R)
40. Exhibit O "Third Floor Upon Completion of Six Phase Master Plan"
contains several significant deviations from the plans submitted and approved
with the Use Permit #10679 (Exhibit P "Final Stage Third Floor Plan").
Specifically, the eastern edge and east-central portions of the 1975 Building
are shown as storage on the Use Permit plan (Exhibit P), whereas these same
areas are shown for birthing rooms, sleep areas, offices, a nursing station,
lounge and other active uses on the "Third Floor Upon Completion"
(Exhibit O). This further demonstrates that the current plans to
modernize the third floor of the 1975 Building are in conflict with
Use Permit #10679.
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41. The following exhibits are true and correct copies of documents in the files of the Current Planning Division:
Excerpts of Berkeley Zoning Ordinance
Exhibit A: Alta Bates Hospital Existing Site Plan (1982)
Exhibit B: Alta Bates Hospital Proposed Final Site Plan
Exhibit C: Letter from Dan Marks to Deborah Pitts dated November 1, 1996
Exhibit D: Letter from Deborah Pitts to Dan Marks dated November 7, 1996
Exhibit E: Letter from Albert Greene to James Keene including table of "macro" level measures, dated December 4, 1996
Exhibit F: Letter from James Keene to Albert Greene, dated December 12, 1996
Exhibit G: Letter from Sherry Kelley, City Clerk to Albert Greene, dated December 20, 1996
Exhibit H: Notebook titled "Exhibit I, Alta Bates Medical Center Ashby Campus, 1983 Floor Plans including Authorized Work Under Use Permit #10679 (excerpts only)
Exhibit I: Notebook titled "Exhibit I, Alta Bates Medical Center Ashby Campus, 1996 Facilities Plans for All Buildings and Floors Prior to Women & Infants Master Plan Projects (excerpts only)
Exhibit J: Letter from Dan Marks to Albert Green, dated January 6, 1997
Exhibit K: Letter from James Keene to Albert L. Greene dated January 7, 1997
Exhibit L: Map showing that the 1996 plans reflect the current status of new construction work virtually completed on the third floor as of December, 1996 and some previously constructed work (no date known) may also be out of conformance with the Use Permit plans submitted in 1982
Exhibit M: Women & Infants Facility Master Plan: Summary
Exhibit N: 1996 Women's and Infants Master Plan, Third Floor, dated September 27, 1996
Exhibit O: Floor Plan titled Third Floor Upon Completion of Six Phase Master Plan, no date
Exhibit P: Floor Plan titled Obstetrics Department Modernization, Final Stage Third Floor Plan, by Anshen + Allen that appears on page 77 of the July 7, 1982 Use Permit Application for the Replacement Project
Exhibit Q: Area Summary - Neighborhood Agreement vs. Projects Planned (part of Pre-Application for Master Plan, March 31, 1993 by Anshen + Allen)
Exhibit R: Emergency Department Relocation Summary, March 7, 1996 (see Exhibit V)
Exhibit S: California Office of Statewide Health Planning and Development (OSHPD) Table, page 13, October 1, 1996)
I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on February 21, 1997, at Berkeley, California.
__________________________
DAN MARKS
Last update: May 12, 1997.