South Berkeley apartment building moves forward, despite objections from neighbors and unions

A planned apartment building at a busy South Berkeley intersection is on track to win city approval, over the objections of its neighbors and unions representing construction workers.

The development firm NX Ventures wants to construct a 10-story building with 166 apartments at 3000 Shattuck Ave., a corner property at the intersection of Shattuck and Ashby avenues that is now home to the Berkeley Gas and Smog gas station. A group of nearby residents and two labor organizations filed appeals to the City Council after Berkeley’s Zoning Adjustments Board unanimously approved the project in 2023.

At an unusual hearing Tuesday night, the council fell one vote short of directly approving the project. But it also didn’t vote to overturn the zoning board’s approval, meaning that decision will stand and NX Ventures will get the green light to build, unless the council takes the appeal back up in the next month.

Seventeen of the project’s apartments would be reserved for renters who are considered very low income, which in Berkeley today means an individual making up to $54,500 per year. The project would also include 1,000 square feet of commercial space.

Opponents of the proposal raised a long list of challenges, including that the plans should have undergone a more extensive environmental review because of potential contamination at the gas station and the cumulative impact of a slate of new housing planned for that pocket of South Berkeley. Crews are finishing construction now on a new affordable apartment building a block down Ashby Avenue from the NX Ventures project, and there are plans for more housing at five other nearby sites, including the Ashby BART station.

Neighbors who spoke at Tuesday’s meeting also took issue with the size of the building, which one called a “tower,” and raised concerns about the lack of a loading zone in plans for the project, which will not have any on-site car parking.

“Ten stories downtown? Fine, no problem,” said Les Shipnuck, who lives near the site. “But not out in the neighborhoods — I think the city is making a mistake with this.”

Many of those same concerns were raised in 2018, when a divided City Council approved a smaller proposal for the 3000 Shattuck Ave. site that called for a five-story building with 23 “co-living” apartments. Developer Nathan George of NX Ventures has said the multi-year city approval process the project went through meant it was not financially feasible to build.

The way Berkeley and other California cities handle housing applications has changed a lot in the years since then. Driven by the state’s spiraling housing crisis, legislators have passed a raft of state laws that make it easier and faster for developers to build, and also toughened a decades-old law known as the Housing Accountability Act that limits local governments’ power to reject projects.

Emily Lieban, an attorney who represented NX Ventures, reminded the City Council of that legal landscape Tuesday.

“We had residents oppose this project on the basis of concerns with the changing nature of their community,” Lieban said. “‘Not out in the neighborhoods’ is exactly the sort of subjective concern that the HAA is trying to reduce in order to produce the housing that we so desperately need.”

City planning staff, who recommended the council reject the appeals, said further environmental reviews are not required and that testing at the gas station site did not find elevated levels of harmful chemicals. One test found high concentrations of the chemical benzene at a groundwater monitoring well about 150 feet from the site, according to the city, but more recent testing conducted at the property did not detect benzene nor dangerous concentrations of other chemicals.

The approval process for the project had by Tuesday night already been pushed back by a year and a half so that a city consultant could revise an environmental report.

But East Bay Residents for Responsible Development — a group backed by unions representing workers in the building trades that has challenged other projects in Berkeley and around the region — maintained that the former gas station would pose a risk. Laborers International Union of North America, Local 304 also filed an appeal seeking to block the project on environmental grounds.

The challenges are the latest scuffle between construction unions and George, the NX Ventures developer who has several housing projects with hundreds of apartments in the city’s approval pipeline. Some of the same unions that sought to block the South Berkeley proposal picketed outside another NX Ventures project on University Avenue last fall, alleging the developer’s contractor underpaid workers.

Councilmembers Terry Taplin and Ben Bartlett, both of whom participated in the picket line, voted against the 3000 Shattuck Ave. project Tuesday night, citing the environmental concerns raised by the unions. Bartlett said he did not have enough confidence in what he called “disputed data” about benzene levels at the site.

“The risk to children living there in the new building, to workers digging it [and] to neighbors is more than the risk I want to take,” he said.

Other councilmembers said the test results provided by city staff convinced them the site is not dangerously contaminated.

“I would … much rather have an apartment building with neighbors instead of a gas station,” said Mayor Adena Ishii. “If we’re concerned about environmental harm, we need to think about the fact that this has been a gas station, it’s continuing to be a gas station, and that has its own environmental harms to our neighborhood.”

Tuesday’s meeting culminated in a vote that saw a shorthanded City Council indirectly allow the project to move forward.

Three councilmembers — Igor Tregub, Shoshana O’Keefe and Cecilia Lunaparra — recused themselves from Tuesday’s hearing because they’d voted to approve the plans as members of the Zoning Adjustments Board. That left six councilmembers at the dais, four of whom — Ishii along with Rashi Kesarwani, Brent Blackaby and Mark Humbert — voted to approve the project. With Taplin and Bartlett opposed, however, the council did not reach a five-vote majority, and the motion to approve NX Ventures’ plans failed.

There was no attempt to reverse the zoning board decision.

In effect, that means the project will be approved with a slight delay. City Attorney Farimah Brown told the council the zoning board’s decision will be upheld unless the council votes within the next 30 days to overturn it.