Comal's owners are planning to open a new restaurant at 2635 Ashby, but may be delayed by a lawsuit. Photo: Google StreetView
Comal’s owners are planning to open a new restaurant at 2635 Ashby, but may be delayed by a lawsuit. Photo: Google Street View
Comal’s owners are planning to open a new restaurant at 2635 Ashby, but may be delayed by a lawsuit. Photo: Google Street View

A group of Elmwood residents who are worried that a new upscale restaurant on Ashby Avenue will make traffic and parking unbearable in the neighborhood has filed a lawsuit against the city and the restaurant’s owners.

The Elmwood Neighborhood Association believes that Berkeley violated environmental laws when it made a “negative declaration” that determined the new restaurant at 2635 Ashby Avenue near College would not create significant noise, parking, or odor problems. The lawsuit, which was filed April 28, asks Berkeley to redo its environmental review.

Zach Cowan, the Berkeley city attorney, said the city disagrees with the allegations in the suit.

“The issues in the petition were all addressed and analyzed,” said Cowan.

But the attorney for the group suggested that the lawsuit could be settled out of court if the city takes a few steps to mitigate the restaurant’s impact. Parking is a main issue for the group since many of the houses in the Elmwood don’t have garages, according to Stuart Flashman, who is representing ENA. Residents have to find street parking, and that may be difficult if restaurant patrons grab all those spots. It will be a burden on elderly people, or those who have to cart groceries for blocks.

“It’s more than an inconvenience, it’s a serious problem,” said Flashman.

Flashman said his clients would like the city to reserve some parking spaces just for residents, he said. They would also like the city to find a way to have restaurant employees park their cars a few blocks away, perhaps on Telegraph where there is more parking.

“There is a concern about the increasing number of restaurants in the area and whether the restaurants are overpowering everything else,” said Flashman. “From my clients’ standpoint (the concern) is not that there is a restaurant, but that restaurant’s impact on the neighborhood.”

A settlement conference is scheduled for today.

An early rendering of a new restaurant prosed for Ashby Avenue
An early rendering of a new restaurant prosed for Ashby Avenue.  Image: Abueg Morris Architects
An early rendering of a new restaurant prosed for Ashby Avenue.  Image: Abueg Morris Architects

The owners of Comal, John Paluska and Andrew Hoffman, first announced in June 2013 that they had leased 3,200-square feet in the old Wright’s Garage building, which was renovated by John Gordon, a commercial realtor and developer. The plan is to serve Northern Californian cuisine, and craft cocktails, and be open for lunch and dinner. The restaurant will accommodate 100 people. The atmosphere, energy and design will resemble that at Comal, according to Paluska, who hopes to open in 2015.

The Zoning Adjustments Board approved the restaurant application in December, but the approval was appealed by members of the Elmwood Neighborhood Association to the City Council. The appeal was denied in March, prompting the lawsuit, which also names Paluska and the Belt and Suspenders LLC.

The lawsuit is a déjà vu of sorts for Berkeley. The Elmwood Neighborhood Association succeeded in halting a restaurant from moving into the same space seven years ago. In 2007, the Council gave its approval for a 5,000-square-foot restaurant, but ENA filed a lawsuit against the landlord of the building, John Gordon, and Berkeley, arguing that the city had not put the project through the proper environmental review. The suit was settled in February 2008 after Gordon and Berkeley paid $20,ooo each, plus attorneys’ fees. The space has been vacant since then.

The composition and make-up of the Elmwood Neighborhood Group is murky. It is an unincorporated association and does not have a website. There is no public board of directors or spokesperson. The current lawsuit references three people who challenged the city’s negative declaration: Robert Carter, and Stuart and Louise Beattie. Judith Epstein, who has been involved with a number of lawsuits against Berkeley, was involved with the first ENA lawsuit in 2007.

Those bringing the current lawsuit believe the city did not determine, as required by law, that the restaurant would be compatible with the neighborhood and would not generate parking and traffic demand beyond what the neighborhood could handle. Berkeley zoning laws require that these findings be backed by evidence, and they were not, according to the lawsuit, even though independent parking studies and a traffic analysis were conducted. Therefore, the approval of the restaurant was a violation of zoning laws, the lawsuit contends. The lawsuit also argues that zoning in the Elmwood does not allow a freestanding bar, as this restaurant intends to have.

The backers of the restaurant believe that the larger surrounding neighborhood will be able to accommodate the increased traffic. A study commissioned by Gordon determined that the restaurant would generate a peak demand for 37 spaces on a Saturday night.

Paluska said the lawsuit won’t interfere with his construction plans, at least for now. The backers of the restaurant have a use permit and are currently drawing up plans to submit for a building permit. That will go forward. He hopes the suit will be settled or decided by the time construction should begin.

“We are eager to be free of all uncertainty and to put our energy into making this a great place,” said Paluska.

Read the parking study and a traffic impact analysis report, both conducted by engineering firm Omni Means.

View the lawsuit filed by the Elmwood Neighborhood Association.

Comal owners get okay for new Berkeley restaurant (03.26.14)
Comal owners get go-ahead for new Elmwood restaurant (12.13.13)
Comal owners plan to open new restaurant in Berkeley (06.25.13)
New Elmwood restaurant seeks city approval tonight (12.12.13)
Nosh Talk: Comal chef Matt Gandin (11.14.12)
Bauer waxes lyrical about Comal: A magnificent package (07.16.13)
Comal: New restaurant takes a bet on downtown Berkeley (04.30.12)

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Frances Dinkelspiel, Berkeleyside and CItyside co-founder, is a journalist and author. Her first book, Towers of Gold: How One Jewish Immigrant Named Isaias Hellman...