Office of the City Manager

2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: manager@CityofBerkeley.info Website: http://www.CityofBerkeley.info/Manager

February 1, 2017

To: All City Commissions

From: Dee Williams-Ridley, City Manager

Subject: Provide input on the Berkeley Strategic Plan

The City is in the process of developing a Strategic Plan that will articulate the long-term goals that the City government will achieve on behalf of the community and the short-term projects designed to advance those goals. The main purpose of the Strategic Plan is to help City Council and staff throughout the organization to prioritize limited time and resources. It will be updated every two years along with the City budget. Your input and the input of the broader community on the goals of the Strategic Plan is important. On January 25, 2017, staff launched a survey using the City’s new online engagement tool - Berkeley Considers. The survey is an opportunity for you and other community members to communicate what you think are the most important issues facing Berkeley. Community input will inform the goals and priorities included in the Berkeley Strategic Plan. The survey will be available online through February 28, 2017. Please complete the survey as an individual community member. In addition to completing the survey yourself, I would be very appreciative if you could assist us in distributing the survey announcement and link to others in our community. For more background on the strategic planning process and an overview of progress and next steps, please review the report and presentation that I provided to City Council on January 31, 2017. Please feel free to contact Timothy Burroughs, Assistant to the City Manager, at 510.981.7437 or tburroughs@cityofberkeley.info, for more information. cc: Department Directors Matthai Chakko, Assistant to the City Manager Tasha Tervalon, Assistant to the City Manager Timothy Burroughs, Assistant to the City Manager

COMMUNICATIONS Planning Commission

February 15, 2017

Communications

Planning Commission

February 15, 2017

Communication

To Planning Commission Commissioners and Planning Commission Staff

Monday, January 23, 2017

From Steve Martinot

1- Issues raised for the Planning Commission by symptoms of density

This proposal refers to the overall process of developing new housing in Berkeley, as set

forth by the Plan Bay Area adopted by ABAG and the MTC in 2014. That plan calls for

Berkeley (allots to Berkeley) to construct some 2900 housing units by 2020. This allotment has

been made by the Plan Bay Area from area-wide considerations of expressway traffic congestion

and the need to diminish the social production of greenhouse gases.

In the Plan Bay Area, the issue of a balanced increase in housing density was ignored.

Instead, construction was planned to occur on major arteries in each city, called Priority

Development Areas (PDA). The purpose was to place the new housing units on transit corridors

and at transit hubs. In Berkeley, these PDAs were Shattuck Ave, University Ave, San Pablo Ave,

Adeline St, Telegraph Ave, with minor development indicated for Gilman St.

In the context of this plan, some questions are raised by the fact that traffic patterns in

Berkeley have already become extremely congested. In particular, between the hours of 4 pm

and 6 pm on weekdays, traffic on all north-south arteries is jammed in at least one direction. This

means that it often takes 2 or 3 red lights to get to and across an intersection. Similar congestion

of traffic has long been known (and unfortunately accepted by council) on Ashby Ave. Such

congestion can now be found on other east-west arteries, including Dwight Way, University Ave,

and Gilman St.

2- Questions that this situation raises

The questions this raises are the following. How is Berkeley to deal with the apparent

contradiction between the plan’s focus on building housing on PDAs, and the congestion already

evident on those same arteries?

Does not this traffic congestion directly contradict the reliance on "transit corridors" and

“transit hubs” that function at the center of plans for housing development in Berkeley? Do these

problems not call in question the strategy for positioning new housing in the vicinity of hubs for

surface transportation?

Is it possible that, given the specific geographic configuration of a city like Berkeley, and

the specific geographic conditions of its underlying topography, that a maximum density for the

city as a whole is a limit concept that could have real material meaning for city life and

efficiency, and thus be applicable to that city’s further development?

3- The Issue of a Possible “Maximum Density” Parameter

There has been, in the last two years, an increase in the number of neighborhood

movements in the form of associations, ad hoc groups, and recognized organizations (we might

mention Claremont Elmwood Neighborhood Assoc., Northeast Berkeley Assoc., Live Oak

Codornices Creek Neighborhood Assoc., Le Conte Assoc., Friends of Adeline, West Berkeley

Air Quality Advocates, and others). All have noticed and made a point of directing commentary

to the city council about traffic, parking, and open space with respect to development. All have

raised the issue of size and population density with developers seeking to build new apartment

complexes in the neighborhoods of these groups.

The increase in traffic congestion, and the emergence of these neighborhood movements

suggest that the issue of a maximum density for the city as a whole is real.

If it is possible that there is such a maximum density discoverable for Berkeley, then it

behooves city council to undertake a study of the issue, and use it as a pragmatic limit for further

development.

Proposal:

A- That the Planning Commission recommend to the City Council that it immediately undertake

a study of:

1) the actual density that already exists in and around the suggested "transit hubs;"

2) the percentage of automobile traffic during rush hours whose destination is within

Berkeley city limits, and those who are just passing through;

3) the concept of a maximum density for a city with respect to its social and topological

geography and configuration; and

4) the possibility that Berkeley is now on the verge of or at the cusp of arriving at its own

specific point of maximum urban density in the context of the above factors.

B- That the Planning Commission recommend to the City Council that it adopt, in the face of

what it discovers in the above proposed study, the following as goals:

1) alleviate the already present traffic congestion;

2) take measures to insure that further housing development be balanced with respect to the

city’s density configuration; and

3) take a more proactive stance toward development, promoting schemas that will more

greatly alleviate the problem of continuing failure to house low and very low income

families who are now facing increasing displacement by the eruption of a rent level

movement upward that is resulting in massive economic eviction for many such families.

Communication

To the Planning Commission

From Steve Martinot

February 3, 2017

How to defend Berkeley from Gentrification

This is a proposal for some zoning changes for Berkeley to enable it to survive

certain overarching rights given developers by state law. It contains an

introduction on the housing crisis, the proposals for zoning changes, some reasons

why those changes are both legitimate and necessary, and some ancillary effects

of these changes. There is included a suggestion that the Housing Accountability

Act might be unconstitutional.

Introduction

There has been a lot of talk recently about how to save Berkeley from the crises that now

beset it, and in particular, the housing crisis. The plan to build extensive market rate housing

stands as a prime initiator of the crisis, having led to gratuitous and unwarranted rent increases,

in part by spurring land speculation. Low and moderate income families are being forced out of

their homes by these rent increases, and then discover that they cannot find housing they can

afford, leaving them to move elsewhere. This displacement is the real housing crisis. And it is

caused by the promise of massive market rate housing, while creating an inordinate demand for

low and moderate income affordable housing.

Thus, this is not simply a supply and demand crisis. High income families find plenty of

housing for themselves, much of it housing from which low or moderate income families had

been forced out, so that landlords could raise their rents to the current market rate. The wealthy

can afford that rate. There is no shortage of apartments for them.

This process also forces out commercial establishments that served and serviced low and

moderate income families. Thus the crisis erodes neighborhood economic infrastructures as well.

The developers have state laws on their side, such as the Housing Accountability Act and

the density bonus law that enable them to ignore zoning regulations, neighborhood desires, and

attempts to preserve the social character of the city. We have seen this happen with respect to the

Haskell St. project.

One form of defense would be to change the basic zoning regulations so that

development does not result in displacement. Hence, the present proposal.

A Proposal

The following is a proposal for zoning changes in Berkeley to enable it to stem this crisis.

A- The basic proposal for this will be

(1) to require all new multifamily development include 60% affordable units, comprising of

20% for moderate income, 20% low income, and 20% very low income, calibrated on

Berkeley city AMI and not on Alameda County AMI;

(2) set the in-lieu mitigation fee at $100,000 per unit (some mitigation fee is required by the

Palmer decision).

B- For all second structures built in R1A, R2A, and R3A zones, all units would have to be

rentable for tenants at 50% to 100% of Berkeley’s AMI (a range including low income and

the lower half of the moderate income stratum), at 30% of tenant income, again with an in-

lieu mitigation fee of $100,000.

C- This concept of making market rate housing more difficult in R1A, R2A, and R3A areas

would prioritize building ADUs (Auxiliary Dwelling Units) over major buildings added to a

parcel, which would generally be out of character with the residential nature of the

neighborhood. This would provide more affordable housing, and slow the densification

process.

This proposal would do two things immediately.

1- By fostering a policy that 60% of the new apartments should be affordable, it would move

to alleviate the crisis of dislocation. Those who were losing their homes would be more

able to find affordable housing.

2- It would also alleviate the crisis by curtailing the building of market rate housing, which

has been the prime instigator of the housing crisis.

The legitimacy of this kind of proposal

One of the adverse impacts of the Housing Accountability Act (HAA) is enabling

developers to evade local zoning standards, and to ignore neighborhood characteristics and

desires.

Under the terms of the HAA, a developer could comply with “applicable, objective

general plan and zoning standards and criteria,” and be free of any ability on the part of the city

to deny a permit. It thus allows a developer to build densifying market rate housing, exacerbating

the housing crisis.

Ironically, the Housing Accountability Act presents itself as an act to ensure that

affordable housing gets built, and is not denied by a city council for capricious reasons. For that

reason, Zach Cowan, the city attorney of Berkeley, in his report of Jan. 24, 2017 on the Housing

Accountability Act, has stated that one approach to addressing the potential impacts of this law

might be to:

Amend the General Plan and Zoning Ordinance to adopt numerical density

and/or building intensity standards that can be applied on a parcel-by-parcel

basis in an easy and predictable manner. These would constitute reliable and

understandable “objective general plan and zoning standards” that would

establish known maximum densities. This could be done across the board or for

specified districts.

The purpose of this present proposal is to do what Mr. Cowan is advising.

Some additional consideration

How this would relate to the traffic problem

Most of us recognize that traffic in Berkeley and other east bay cities is out of hand.

Every afternoon, there are severe traffic jams on every major artery in Berkeley. Sometime it

takes 3 or 4 lights for one to get across an intersection.

These traffic jams symptomatically suggest that east bay cities are approaching their

maximum density, if they have not already arrived there.

The notion of a maximum density would depend on a city’s specific geography, its

topography as well as how its streets and neighborhoods are laid out in relation to its means of

transportation. There could be no ready formula or algorithm for determining what that

maximum density might be. It would have to be derived from the specifics of the city and its

history and geography.

To require all new developments to include 60% affordable units would assist in

resolving the traffic problem by providing housing for those who were already residents of the

city, but were suffering possible displacement. This would cut back on pressure toward greater

density for the city.

Some reasons why the HAA might possibly be unconstitutional

There are three reasons why the HAA might be unconstitutional.

1- It is overly broad. It states that the only reasons a housing development can be refused

or reduced in size by a city government is for the purposes of health and safety. The terms

"health" and "safety" are defined in such a broad and abstract manner that they present

impossible parameters for a city to meet with any reasonable objectivity, though objectivity is

required of them by the act.

2- It makes an impossible demand on a city government. It requires a city government to

deal quantitatively in the present with something that might happen in the future, and thus can

only be conceived of qualitatively. It is impossible to know what the effects of a project might be

if judged by what is known from past experience, since each project will be adding to all past

experiences in an unknown and unknowable way. For example, a market rate project will change

the class character of a neighborhood, and thus change the economic infrastructure of that

neighborhood. The safety and health effects of that change in economic infrastructure cannot be

objectively foreseen. For the HAA to require that a city government "objectively" foresee them is

to create an impossible condition.

3- The HAA infringes on the powers of a city to regulate its own zoning. Yet zoning is a

power that is reserved for the cities by the California State Constitution. In so infringing, the

HAA violates the state constitution.

Steve Martinot

1

From: loni gray [mailto:lonigray@sonic.net]

Sent: Tuesday, January 24, 2017 11:42 PM

To: Amoroso, Alexander <AAmoroso@cityofberkeley.info>

Subject: Angles as well as height constraints

Alex,

After the Jan 18th Commission meeting, I spoke with Commission members Robb William Kapla and Ben

Beach about the City of Albany's use of 45% step-down daylight plane building standards as an additional

way to offer adjacent buildings more light, view and reduce massing.

As you may be familiar, Albany uses this standard where commercial structures are adjacent to residential

buildings, but I thought it useful for the discussion of the R-1A district's view and light issues between

residential structures to help the Commissioners think beyond height restrictions alone.

They asked me to send it to you so you could make it available to them. I'm including Albany's City

General Plan 2035. In Chapter 3 Land-use, page 27 discusses these daylight planes and then shows a

simple diagram of this standard on p.28. http://www.albanyca.org/index.aspx?page=439

Hope this helps the discussion,

Loni

--

3-27

Albany 2035 General Plan Chapter 3: LAND USE ELEMENT

E. COMMUNITY DESIGN AND PRESERVATION Views Many homes in Albany have filtered or panoramic views of nearby landmarks, particularly San Francisco Bay and the hills of Marin County, Alcatraz and Angel Islands, the Golden Gate and Bay Bridges, the San Francisco skyline, the Berkeley Hills, the El Cerrito Hills, and Albany Hill. Other homes enjoy shorter-range views of landscaped yards, nearby homes, street trees, and adjacent streets. Large specimen trees occur throughout the city, providing orientation and adding beauty to the urban landscape. Given the small size of most Albany homes, many owners seek to build additions and second stories. This creates the potential for view impacts and requires trade-offs between preserving community character and promoting investment in the city’s housing stock. The City has developed Design Guidelines to help achieve a balance between view preservation and home expansion.

View protection is also addressed in the Albany Municipal Code. The zoning regulations include standards for height and bulk which preserve views, maintain light and air, and protect aesthetic quality. Daylight plane regulations have been adopted so that taller buildings step down in height as they approach property lines in order to preserve privacy and sunlight in adjacent yards (see text box). The Zoning Code also includes special provisions for hillsides established to protect scenic beauty and preserve significant ridgeline or bay views from Albany Hill. The Code also regulates the siting of wireless communication facilities, noting that such facilities must avoid unreasonable interference with neighboring properties and be placed in locations where their visual impact is least detrimental to scenic vistas.

View east from Albany Hill, Berkeley Hills in background

3-28

Chapter 3: LAND USE ELEMENT Albany 2035 General Plan

Gateways Gateways can create a first impression and lasting image of a community. A well designed gateway communicates vitality and prosperity while a neglected gateway can communicate disinvestment and a lack of civic pride. The major gateways into Albany are Buchanan Street east of I-80, the locations where San Pablo Avenue enters the city on the north and south, and the locations where Marin and Solano Avenues enter the city on the east. The City’s Public Art Master Plan places a special focus on beautifying these locations. The Buchanan Gateway includes the “Rose Wave” sculpture and the southern Gateway on San Pablo is planned for a major new installation adjacent to new senior housing. The northern gateway presents opportunities for improvement. Gateway signage, public art, and distinctive architecture should be incorporated in the event that development in this area, including the Albany Bowl site. Opportunities to strengthen the visibility of Cerrito and Codornices Creek should also be pursued as gateways are improved. The creeks define the north and south edges of the city and can influence the character of its gateways.

Urban Form and Architecture Albany has a large inventory of early 20th Century residential and commercial architecture. While there is great diversity in architectural style and exterior materials, there is also a strong sense of unity and consistency established by the street grid, lot patterns, and age and scale of the housing stock. Many Albany homes were built as single story bungalows of less than 1,400 square feet. As housing values and incomes have increased, additions to these homes have become common. Given the narrow dimensions and small size of most lots, this often requires adding a second story. The City has adopted design guidelines to reduce the perceived mass of two-story homes from the street, protect the privacy of adjacent properties, and promote architectural compatibility. For second story additions, the upper floor is often recessed from the front facade, maintaining a lower profile at the street. The City has adopted floor area ratio and lot coverage standards which discourage teardowns and very large homes.

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Office of the City Manager

2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099E-Mail: manager@CityofBerkeley.info Website: http://www.CityofBerkeley.info/Manager

INFORMATION CALENDARJanuary 24, 2017

To: Honorable Mayor and Members of the City Council

From: Dee Williams-Ridley, City Manager

Submitted by: Zach Cowan, City Attorney

Subject: Housing Accountability Act

INTRODUCTIONAt its meeting on November 14, 2016, the Agenda Committee requested a report on the Housing Accountability Act (Gov. Code § 65589.5; Attachment 1).

CURRENT SITUATION AND ITS EFFECTSThe City reviews and acts on many applications every year for development projects, including many residential and mixed-use projects. The Housing Accountability Act constrains the City’s discretion with respect to some of these projects.

BACKGROUNDThe Housing Accountability Act was originally enacted in 1982 and has been amended a number of times over the years. The original legislation, now designated as subdivision (j) of Section 65589.5 now reads:

(j) When a proposed housing development project complies with applicable, objective general plan and zoning standards and criteria, including design review standards, in effect at the time that the housing development project’s application is determined to be complete, but the local agency proposes to disapprove the project or to approve it upon the condition that the project be developed at a lower density, the local agency shall base its decision regarding the proposed housing development project upon written findings supported by substantial evidence on the record that both of the following conditions exist:

(1) The housing development project would have a specific, adverse impact upon the public health or safety unless the project is disapproved or approved upon the condition that the project be developed at a lower density. As used in this paragraph, a “specific, adverse impact” means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete.

Page 1 of 17 COMMUNICATIONSPlanning Commission

February 15, 2017

Housing Accountability Act . INFORMATION CALENDARJanuary 24, 2017

Page 2

(2) There is no feasible method to satisfactorily mitigate or avoid the adverse impact identified pursuant to paragraph (1), other than the disapproval of the housing development project or the approval of the project upon the condition that it be developed at a lower density.1

For purposes of Section 65589.5, “housing development project” means a use consisting of residential units as well as mixed-use developments, provided that nonresidential uses are limited to “neighborhood commercial” uses and to the first floor of buildings that are two or more stories. “Neighborhood commercial” is defined as “small-scale general or specialty stores that furnish goods and services primarily to residents of the neighborhood.” “Housing development project” also includes “transitional housing or supportive housing”.

In addition, “disapproving” a development project includes denying approval as well as failing to comply with the Permit Streamlining Act (Gov. Code §§ 65950 et seq.)

Senator Greene, the author of the bill, stated that the intent of the legislation was to address the “problems in some cases where local governments adopt housing policies and then fail to comply with their own policies when specific projects are at stake. Presently, there is no effective remedy for the proponents of such a project. The obvious problem is that when developers of housing cannot rely on housing policies in proposing projects, then substantial uncertainty is created.”

Other provisions of Section 65589.5 apply more specifically to projects containing below-market rate units (see subds. (d) and (k))2, but we focus here on the more generally-applicable provision, subdivision (j).

Since its adoption in 1982, Section 65589.5(j) has been largely ignored. In part this was due to a belief that despite its language it only applied to projects that included below market rate units. This notion was effectively put to rest in Honchariw v. County of Stanislaus (2011)200 Cal.App.4th 1066, 1074-76.

Subject to limited exceptions discussed below, Section 65589.5(j) requires local governments to approve any “housing development project”, including specified mixed-use projects, if they comply with “applicable, objective general plan and zoning standards and criteria, including design review standards, in effect at the time that the housing development project’s application is determined to be complete…”

As Honchariw explained, this language was intended to “tak[e] away an agency’s ability to use what might be called a ‘subjective’ development ‘policy’ (for example,

1 The current language closely reflects the original language, but there have been some amendments to it as well. 2 These were discussed in a May 7, 2002, information report to the Council (Attachment 2.)

Page 2 of 17

Housing Accountability Act . INFORMATION CALENDARJanuary 24, 2017

Page 3

‘suitability’)” to deny a project or reduce it in density. Id. With respect to design review standards, the court went on to “interpret that phrase to mean design review standards that are part of ‘applicable, objective general plan and zoning standards and criteria.’” Id. at 1077.

The City’s general plan and zoning ordinance contain “objective general plan and zoning standards and criteria”, such as lot development standards3 and in some cases density or building intensity standards. Section 65589.5(j) does not override these lot development standards; nor does it compel approval of projects that require discretionary approvals to exceed these standards, such as reductions in setbacks or additional stories. Rather, it overrides the use of policies like neighborhood compatibility or detriment when a project complies with all applicable lot development standards.

Under Section 65589.5(j), a housing development project may be disapproved or reduced in density only if there is no other way to “satisfactorily mitigate or avoid” a “specific, adverse impact upon the public health or safety”. A “specific, adverse impact” “means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete.” It is important to note that the reference to “health or safety” standards is much narrower than the typical “health, safety and welfare” basis for general police power regulations. The City does not have such standards that are typically applicable to housing development projects.

A few possible approaches to addressing the potential impacts of Section 65589.5(j) are:

Amend the General Plan and Zoning Ordinance to adopt numerical density and/or building intensity standards that can be applied on a parcel-by-parcel basis in an easy and predictable manner. These would constitute reliable and understandable “objective general plan and zoning standards” that would establish known maximum densities. This could be done across the board or for specified districts.

Devise and adopt “objective, identified written public health or safety standards” applicable to new housing development projects.

Adopt “design review standards that are part of ‘applicable, objective general plan and zoning standards and criteria”.

ENVIRONMENTAL SUSTAINABILITY No effect; compliance is mandated by statute.

POSSIBLE FUTURE ACTION The Council may wish to revisit relevant zoning and/or general plan provisions.

3 Lot development standards include such things as setbacks, FAR limits, height limits, and parking requirements.

Page 3 of 17

Housing Accountability Act . INFORMATION CALENDARJanuary 24, 2017

Page 4

FISCAL IMPACTS OF POSSIBLE FUTURE ACTION No action is required. If the Council wishes to revisit zoning and/or general plan provisions, the cost could be substantial.

CONTACT PERSONZach Cowan, City Attorney, 981-6950

Attachments: 1: Government Code section 65589.5 2: May 7, 2002 Information Report

Page 4 of 17

State of California

GOVERNMENT CODE

Section 65589.5

65589.5. (a)  The Legislature finds and declares all of the following:(1)  The lack of housing, including emergency shelters, is a critical problem that

threatens the economic, environmental, and social quality of life in California.(2)  California housing has become the most expensive in the nation. The excessive

cost of the state’s housing supply is partially caused by activities and policies of manylocal governments that limit the approval of housing, increase the cost of land forhousing, and require that high fees and exactions be paid by producers of housing.

(3)  Among the consequences of those actions are discrimination against low-incomeand minority households, lack of housing to support employment growth, imbalancein jobs and housing, reduced mobility, urban sprawl, excessive commuting, and airquality deterioration.

(4)  Many local governments do not give adequate attention to the economic,environmental, and social costs of decisions that result in disapproval of housingprojects, reduction in density of housing projects, and excessive standards for housingprojects.

(b)  It is the policy of the state that a local government not reject or make infeasiblehousing developments, including emergency shelters, that contribute to meeting theneed determined pursuant to this article without a thorough analysis of the economic,social, and environmental effects of the action and without complying with subdivision(d).

(c)  The Legislature also recognizes that premature and unnecessary developmentof agricultural lands for urban uses continues to have adverse effects on the availabilityof those lands for food and fiber production and on the economy of the state.Furthermore, it is the policy of the state that development should be guided awayfrom prime agricultural lands; therefore, in implementing this section, localjurisdictions should encourage, to the maximum extent practicable, in filling existingurban areas.

(d)  A local agency shall not disapprove a housing development project, includingfarmworker housing as defined in subdivision (h) of Section 50199.7 of the Healthand Safety Code, for very low, low-, or moderate-income households, or an emergencyshelter, or condition approval in a manner that renders the project infeasible fordevelopment for the use of very low, low-, or moderate-income households, or anemergency shelter, including through the use of design review standards, unless itmakes written findings, based upon substantial evidence in the record, as to one ofthe following:

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(1)  The jurisdiction has adopted a housing element pursuant to this article that hasbeen revised in accordance with Section 65588, is in substantial compliance with thisarticle, and the jurisdiction has met or exceeded its share of the regional housing needallocation pursuant to Section 65584 for the planning period for the income categoryproposed for the housing development project, provided that any disapproval orconditional approval shall not be based on any of the reasons prohibited by Section65008. If the housing development project includes a mix of income categories, andthe jurisdiction has not met or exceeded its share of the regional housing need for oneor more of those categories, then this paragraph shall not be used to disapprove orconditionally approve the project. The share of the regional housing need met by thejurisdiction shall be calculated consistently with the forms and definitions that maybe adopted by the Department of Housing and Community Development pursuant toSection 65400. In the case of an emergency shelter, the jurisdiction shall have met orexceeded the need for emergency shelter, as identified pursuant to paragraph (7) ofsubdivision (a) of Section 65583. Any disapproval or conditional approval pursuantto this paragraph shall be in accordance with applicable law, rule, or standards.

(2)  The development project or emergency shelter as proposed would have aspecific, adverse impact upon the public health or safety, and there is no feasiblemethod to satisfactorily mitigate or avoid the specific adverse impact without renderingthe development unaffordable to low- and moderate-income households or renderingthe development of the emergency shelter financially infeasible. As used in thisparagraph, a “specific, adverse impact” means a significant, quantifiable, direct, andunavoidable impact, based on objective, identified written public health or safetystandards, policies, or conditions as they existed on the date the application wasdeemed complete. Inconsistency with the zoning ordinance or general plan land usedesignation shall not constitute a specific, adverse impact upon the public health orsafety.

(3)  The denial of the project or imposition of conditions is required in order tocomply with specific state or federal law, and there is no feasible method to complywithout rendering the development unaffordable to low- and moderate-incomehouseholds or rendering the development of the emergency shelter financiallyinfeasible.

(4)  The development project or emergency shelter is proposed on land zoned foragriculture or resource preservation that is surrounded on at least two sides by landbeing used for agricultural or resource preservation purposes, or which does not haveadequate water or wastewater facilities to serve the project.

(5)  The development project or emergency shelter is inconsistent with both thejurisdiction’s zoning ordinance and general plan land use designation as specified inany element of the general plan as it existed on the date the application was deemedcomplete, and the jurisdiction has adopted a revised housing element in accordancewith Section 65588 that is in substantial compliance with this article.

(A)  This paragraph cannot be utilized to disapprove or conditionally approve ahousing development project if the development project is proposed on a site that isidentified as suitable or available for very low, low-, or moderate-income households

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in the jurisdiction’s housing element, and consistent with the density specified in thehousing element, even though it is inconsistent with both the jurisdiction’s zoningordinance and general plan land use designation.

(B)  If the local agency has failed to identify in the inventory of land in its housingelement sites that can be developed for housing within the planning period and aresufficient to provide for the jurisdiction’s share of the regional housing need for allincome levels pursuant to Section 65584, then this paragraph shall not be utilized todisapprove or conditionally approve a housing development project proposed for asite designated in any element of the general plan for residential uses or designatedin any element of the general plan for commercial uses if residential uses are permittedor conditionally permitted within commercial designations. In any action in court,the burden of proof shall be on the local agency to show that its housing element doesidentify adequate sites with appropriate zoning and development standards and withservices and facilities to accommodate the local agency’s share of the regional housingneed for the very low and low-income categories.

(C)  If the local agency has failed to identify a zone or zones where emergencyshelters are allowed as a permitted use without a conditional use or other discretionarypermit, has failed to demonstrate that the identified zone or zones include sufficientcapacity to accommodate the need for emergency shelter identified in paragraph (7)of subdivision (a) of Section 65583, or has failed to demonstrate that the identifiedzone or zones can accommodate at least one emergency shelter, as required byparagraph (4) of subdivision (a) of Section 65583, then this paragraph shall not beutilized to disapprove or conditionally approve an emergency shelter proposed for asite designated in any element of the general plan for industrial, commercial, ormultifamily residential uses. In any action in court, the burden of proof shall be onthe local agency to show that its housing element does satisfy the requirements ofparagraph (4) of subdivision (a) of Section 65583.

(e)  Nothing in this section shall be construed to relieve the local agency fromcomplying with the congestion management program required by Chapter 2.6(commencing with Section 65088) of Division 1 of Title 7 or the California CoastalAct of 1976 (Division 20 (commencing with Section 30000) of the Public ResourcesCode). Neither shall anything in this section be construed to relieve the local agencyfrom making one or more of the findings required pursuant to Section 21081 of thePublic Resources Code or otherwise complying with the California EnvironmentalQuality Act (Division 13 (commencing with Section 21000) of the Public ResourcesCode).

(f)  (1)  Nothing in this section shall be construed to prohibit a local agency fromrequiring the development project to comply with objective, quantifiable, writtendevelopment standards, conditions, and policies appropriate to, and consistent with,meeting the jurisdiction’s share of the regional housing need pursuant to Section65584. However, the development standards, conditions, and policies shall be appliedto facilitate and accommodate development at the density permitted on the site andproposed by the development.

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(2)  Nothing in this section shall be construed to prohibit a local agency fromrequiring an emergency shelter project to comply with objective, quantifiable, writtendevelopment standards, conditions, and policies that are consistent with paragraph(4) of subdivision (a) of Section 65583 and appropriate to, and consistent with, meetingthe jurisdiction’s need for emergency shelter, as identified pursuant to paragraph (7)of subdivision (a) of Section 65583. However, the development standards, conditions,and policies shall be applied by the local agency to facilitate and accommodate thedevelopment of the emergency shelter project.

(3)  This section does not prohibit a local agency from imposing fees and otherexactions otherwise authorized by law that are essential to provide necessary publicservices and facilities to the development project or emergency shelter.

(g)  This section shall be applicable to charter cities because the Legislature findsthat the lack of housing, including emergency shelter, is a critical statewide problem.

(h)  The following definitions apply for the purposes of this section:(1)  “Feasible” means capable of being accomplished in a successful manner within

a reasonable period of time, taking into account economic, environmental, social, andtechnological factors.

(2)  “Housing development project” means a use consisting of any of the following:(A)  Residential units only.(B)  Mixed-use developments consisting of residential and nonresidential uses in

which nonresidential uses are limited to neighborhood commercial uses and to thefirst floor of buildings that are two or more stories. As used in this paragraph,“neighborhood commercial” means small-scale general or specialty stores that furnishgoods and services primarily to residents of the neighborhood.

(C)  Transitional housing or supportive housing.(3)  “Housing for very low, low-, or moderate-income households” means that

either (A) at least 20 percent of the total units shall be sold or rented to lower incomehouseholds, as defined in Section 50079.5 of the Health and Safety Code, or (B) 100percent of the units shall be sold or rented to persons and families of moderate incomeas defined in Section 50093 of the Health and Safety Code, or persons and familiesof middle income, as defined in Section 65008 of this code. Housing units targetedfor lower income households shall be made available at a monthly housing cost thatdoes not exceed 30 percent of 60 percent of area median income with adjustmentsfor household size made in accordance with the adjustment factors on which the lowerincome eligibility limits are based. Housing units targeted for persons and familiesof moderate income shall be made available at a monthly housing cost that does notexceed 30 percent of 100 percent of area median income with adjustments forhousehold size made in accordance with the adjustment factors on which themoderate-income eligibility limits are based.

(4)  “Area median income” means area median income as periodically establishedby the Department of Housing and Community Development pursuant to Section50093 of the Health and Safety Code. The developer shall provide sufficient legalcommitments to ensure continued availability of units for very low or low-incomehouseholds in accordance with the provisions of this subdivision for 30 years.

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(5)  “Disapprove the development project” includes any instance in which a localagency does either of the following:

(A)  Votes on a proposed housing development project application and theapplication is disapproved.

(B)  Fails to comply with the time periods specified in subdivision (a) of Section65950. An extension of time pursuant to Article 5 (commencing with Section 65950)shall be deemed to be an extension of time pursuant to this paragraph.

(i)  If any city, county, or city and county denies approval or imposes restrictions,including design changes, a reduction of allowable densities or the percentage of alot that may be occupied by a building or structure under the applicable planning andzoning in force at the time the application is deemed complete pursuant to Section65943, that have a substantial adverse effect on the viability or affordability of ahousing development for very low, low-, or moderate-income households, and thedenial of the development or the imposition of restrictions on the development is thesubject of a court action which challenges the denial, then the burden of proof shallbe on the local legislative body to show that its decision is consistent with the findingsas described in subdivision (d) and that the findings are supported by substantialevidence in the record.

(j)  When a proposed housing development project complies with applicable,objective general plan and zoning standards and criteria, including design reviewstandards, in effect at the time that the housing development project’s application isdetermined to be complete, but the local agency proposes to disapprove the projector to approve it upon the condition that the project be developed at a lower density,the local agency shall base its decision regarding the proposed housing developmentproject upon written findings supported by substantial evidence on the record thatboth of the following conditions exist:

(1)  The housing development project would have a specific, adverse impact uponthe public health or safety unless the project is disapproved or approved upon thecondition that the project be developed at a lower density. As used in this paragraph,a “specific, adverse impact” means a significant, quantifiable, direct, and unavoidableimpact, based on objective, identified written public health or safety standards, policies,or conditions as they existed on the date the application was deemed complete.

(2)  There is no feasible method to satisfactorily mitigate or avoid the adverseimpact identified pursuant to paragraph (1), other than the disapproval of the housingdevelopment project or the approval of the project upon the condition that it bedeveloped at a lower density.

(k)  The applicant or any person who would be eligible to apply for residency inthe development or emergency shelter may bring an action to enforce this section. If,in any action brought to enforce the provisions of this section, a court finds that thelocal agency disapproved a project or conditioned its approval in a manner renderingit infeasible for the development of an emergency shelter, or housing for very low,low-, or moderate-income households, including farmworker housing, without makingthe findings required by this section or without making sufficient findings supportedby substantial evidence, the court shall issue an order or judgment compelling

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compliance with this section within 60 days, including, but not limited to, an orderthat the local agency take action on the development project or emergency shelter.The court shall retain jurisdiction to ensure that its order or judgment is carried outand shall award reasonable attorney’s fees and costs of suit to the plaintiff or petitionerwho proposed the housing development or emergency shelter, except underextraordinary circumstances in which the court finds that awarding fees would notfurther the purposes of this section. If the court determines that its order or judgmenthas not been carried out within 60 days, the court may issue further orders as providedby law to ensure that the purposes and policies of this section are fulfilled, including,but not limited to, an order to vacate the decision of the local agency, in which casethe application for the project, as constituted at the time the local agency took theinitial action determined to be in violation of this section, along with any standardconditions determined by the court to be generally imposed by the local agency onsimilar projects, shall be deemed approved unless the applicant consents to a differentdecision or action by the local agency.

(l)  If the court finds that the local agency (1) acted in bad faith when it disapprovedor conditionally approved the housing development or emergency shelter in violationof this section and (2) failed to carry out the court’s order or judgment within 60 daysas described in subdivision (k), the court, in addition to any other remedies providedby this section, may impose fines upon the local agency that the local agency shallbe required to deposit into a housing trust fund. Fines shall not be paid from fundsthat are already dedicated for affordable housing, including, but not limited to,redevelopment or low- and moderate-income housing funds and federal HOME andCDBG funds. The local agency shall commit the money in the trust fund within fiveyears for the sole purpose of financing newly constructed housing units affordable toextremely low, very low, or low-income households. For purposes of this section,“bad faith” shall mean an action that is frivolous or otherwise entirely without merit.

(m)  Any action brought to enforce the provisions of this section shall be broughtpursuant to Section 1094.5 of the Code of Civil Procedure, and the local agency shallprepare and certify the record of proceedings in accordance with subdivision (c) ofSection 1094.6 of the Code of Civil Procedure no later than 30 days after the petitionis served, provided that the cost of preparation of the record shall be borne by thelocal agency. Upon entry of the trial court’s order, a party shall, in order to obtainappellate review of the order, file a petition within 20 days after service upon it of awritten notice of the entry of the order, or within such further time not exceeding anadditional 20 days as the trial court may for good cause allow. If the local agencyappeals the judgment of the trial court, the local agency shall post a bond, in an amountto be determined by the court, to the benefit of the plaintiff if the plaintiff is the projectapplicant.

(n)  In any action, the record of the proceedings before the local agency shall befiled as expeditiously as possible and, notwithstanding Section 1094.6 of the Codeof Civil Procedure or subdivision (m) of this section, all or part of the record may beprepared (1) by the petitioner with the petition or petitioner’s points and authorities,(2) by the respondent with respondent’s points and authorities, (3) after payment of

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costs by the petitioner, or (4) as otherwise directed by the court. If the expense ofpreparing the record has been borne by the petitioner and the petitioner is the prevailingparty, the expense shall be taxable as costs.

(o)  This section shall be known, and may be cited, as the Housing AccountabilityAct.

(Amended by Stats. 2015, Ch. 349, Sec. 2. (AB 1516) Effective January 1, 2016.)

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-----Original Message----- From: Toni Mester [mailto:tonispann@comcast.net] Sent: Wednesday, February 08, 2017 1:56 PM To: Amoroso, Alexander <AAmoroso@cityofberkeley.info> Subject: R-1A History Hi Alex and members of the Planning Commission, Attached is a research paper that explores the zoning in parts of West Berkeley. “A Brief and Personal History of R-1A Zoning in West Berkeley” includes 7 appendices. I don’t think it needs an executive summary. I also have a parcel data base on Excel; if anybody wants it, please email me. The third part of my R-1A research will be samples of second unit and accessory unit standards from other cities. Toni

A Brief and Personal History of R-1A Zoning in West Berkeley (A work in progress)

By Toni Mester

Introduction

As a Tenth Street homeowner since 1979, I have long been interested in

West Berkeley development issues. In the early 80’s, I participated in the planning for the waterfront as a Sierra Club activist, chairing the Yes on Measure Q committee in 1986. Later I served on the Citizens Advisory Committee for the Bayer Development Agreement in 1991.

Since my retirement, I served on the Parks and Waterfront Commission and was treasurer of the Yes on Measure F (parks tax) campaign.

Currently I am focused on mixed-use projects along San Pablo Avenue and the zoning in the R-1A, which was changed without my knowledge while I was living here. Only discovering this when a neighbor appealed a back-yard house on Ninth Street, I decided to find out what happened.

Currently R-1A zones most of the area bordered by San Pablo Avenue and Sixth Street (east to west) and between Camelia Street and Dwight Way (north to south) and about eight blocks around Gilman and Peralta in Westbrae. The provisions for two dwelling unit provisions are confusing and poorly written. The development standards, which allow heights of 28 to 35 feet, are designed for detriment; so advantageous to the applicant and unfavorable to owners of neighboring properties that building to the allowed envelope results in negative impacts to neighboring properties. A two or three story house in the back of a narrow lot casts shadows and violates the privacy of other residents. The requirements for off-street parking and minimal open space mean that a second house can swallow the potential for healthy outdoor living, and cars take over private areas where children should play. Under the current R-1A allowance, an applicant can build two “main” houses within 4 feet of property lines and with no stipulated separation between houses on a parcel of 4500 square feet or more, some as narrow as 35 feet wide. There are hundreds of such skinny lots in West Berkeley. I own one. Almost any permit application must be adjusted through a laborious process to make new buildings acceptable to the neighbors, creating delays and appeals. There are no staff guidelines defining detriment and unreasonable obstruction of sunlight, air, and views, a required finding. Clearly, R-1A must be rewritten for efficient and desirable outcomes. To understand the problems of West Berkeley zoning, one must recognize that the West Berkeley Plan of 1993 barely focused on the development of San

Pablo Avenue and completely ignored the R-1A, even though the Planning Commission had suggested such a plan back in the 1960’s. Supervised by city planner Nathan Landau from 1985, the West Berkeley group dedicated themselves to subdividing the old single manufacturing (M) zone into four variations including mixed use residential (MUR) and mixed use light industrial (MULI), which took many years before the City Council demanded a completed product. The West Berkeley Plan of 1993 was an achievement, but a viable San Pablo Avenue Plan was left as a vague promise, and the more than five thousand residents in the R-1A were left to fend for ourselves. The basic premise of this paper is that residents and property owners of residential West Berkeley have been treated as an afterthought at best or colonial subjects at worst and that use of our land has been viewed as a city resource, not a neighborhood right. Property owners who want to build have lacked the guidance imparted by appropriate standards and procedures. The problem is that West Berkeley has long been a political stepchild lacking representation and champions. Until Cheryl Davila was elected from District 2, not a single resident of West Berkeley has ever served on the Berkeley City Council. Civic disregard and neglect reached its nadir with Measure T in 2012, when the Council majority invited the rest of the city to bully West Berkeley and to force unwanted building heights on Aquatic Park. The narrow defeat of Measure T brought welcome relief.

Blocks and Lots

One of the oldest sections of town, West Berkeley was known as Jacob’s Landing and later Ocean View after it was first settled in the 1850’s with a wharf, grist mill, distillery, lumber yard, and other industries surrounded by farm land. At the same time, the College of California was established in 1855, later becoming the University of California in 1868. In Berkeley, a City in History, Charles Wollenberg describes the landscape in the 1870’s: “Berkeley consisted of two well-established settlements separated by more than a mile of fields, pastures and marshlands. But the communities were divided by more than physical space. Ocean view was heavily immigrant, substantially Catholic and working class, essentially an industrial and farming town. The campus community, on the other hand, was primarily middle or upper middle class, inhabited by native-born Protestants, many of them working in professional occupations.” In many ways, this class division has persisted. It is not my intention to summarize the complicated history of Berkeley but to suggest that the early division of land into narrow lots is a fundamental reason to treat the zoning in West Berkeley in a way that respects its history.

In 1873 a group of businessmen led by Henry Durant founded the Berkeley Land and Town Improvement Association for the purpose of arranging land sales and developing business in West Berkeley. As they acquired real estate from the Peralta, Avery Raymond, Haft, and Sisterna tracts, they subdivided the land into a geometric grid of blocks and lots that are still indicated on the Alameda County Assessor maps and evident in street and zoning maps. The width of the blocks are between 240 and 270 feet and the length between 380 and 600 feet, divided into parcels with four right angles, suggesting that uniform rules should determine what can be built and how. Many of these lots were originally 25 feet wide, intended for small cottages for workers in local industries. Over the years, many owners widened their lots by buying slivers of adjacent land. Whereas the basic neighborhood structure rests on a rectangular grid of deep and skinny lots, the zoning rests on serendipity not system. In the first half of the twentieth century, a variety of homes were built on these lots. Paul Schmidt, a German immigrant, built my craftsman cottage in 1915 and a larger Queen Ann house two doors away. Our block is lucky in retaining most of the historic structures. About ten years ago, I hosted a neighborhood lunch for the Schmidt family, including Paul Jr. who wanted to see the house where he grew up before he went to “the happy hunting ground.” Every old house in West Berkeley has such stories.

1946-1967

During the 1940’s the population of Berkeley grew from 85,547 (1940 census) to 113,805 (1950) due to the labor demand in war related industries like the Kaiser shipyards, the Port of Oakland, and the expansion of the railroads and other infrastructure. Many new residents were demobilized servicemen taking advantage of the GI Bill to enroll at Cal. Of the 28,258 new residents of Berkeley, 9,894 were African-American, raising their population from 3,395 (4% of the city’s total population) in 1940 to 13,289 (11.7%) in the next census. By 1960, that figure had risen to 21,850 (19.6%) and to 27,421 (23.5%) in 1970, the apex of the African-American population in Berkeley. Since then the number has been steadily decreasing to the 2010 census of 11,241 (10%). Due to redlining in the real estate industry, most of the black population was restricted to the south and west areas, with San Pablo Park as the epicenter, where most of leadership of the African-American community resided. Following the war, the Republican controlled City Council hired a land-use consulting firm (Hahn, Campbell and Associates) to conduct a survey of the

neighborhoods and recommend appropriate zoning. Two years of meetings and public hearings followed; the biggest controversy focused on the hills zoning, a fight between R-1 and R-2. Guess who won. The flatlands including the San Pablo Park area were zoned R-3, allowing six stories to 75 feet, including student housing, while the rest of West Berkeley was zoned R-4 that allowed the same height plus additional uses such as hotels, schools motels, hospitals, and offices. Most of the challenges to the zoning came from individual property owners. But nobody came forward to protest the R-4 zone in West Berkeley except Alvin DeMello, a Berkeley native, businessman, and later a Planning Commissioner, who said “that some of the area west of San Pablo Avenue had been reclassified R-4 although in this area there are many single-family dwellings; that he feels these people should have the right to protest the establishment of a church, public school or library….” (City Council minutes Jan. 18, 1949) The new zoning ordinance No. 3018-N.S. was adopted at that meeting and remained in effect for 50 years while being amended 350 times. The N.S. suffix stands for “new series”, a designation that I will omit in future ordinance citations. During the 1950’s the City Council majority was still Republican with an appointed Planning Commission and a professional planning staff of eight. The Planning Commission appointed the Zoning Adjustments Board (ZAB) until 1975, when the Fair Representation Ordinance was passed by initiative, giving the City Council the responsibility of appointing commissioners. In 1955 the City adopted its first post-war general plan, which measured the 1950 residential densities in West Berkeley at 30 to 50 persons per acre and proposed an increase of 50 to 80. The area surrounding San Pablo Park was to remain at lower densities. The most unusual feature of the plan was a proposal to fill the Bay west of University Avenue to increase usable land by 2,000 acres including a hotel and an airstrip, ideas that were still being discussed in the 1960’s. In 1961, the Democratic Caucus won its first majority on the Berkeley City Council, including election of the first black member Wilmont Sweeney, and within a year they began a zoning review of the General Plan. The Planning Commission held public hearings and postcard surveys of each area, reclassifying many streets and neighborhoods, and down zoning sections of West Berkeley. One concern in “Area III” West of San Pablo Avenue was the condition of “many poorly designed and constructed apartment houses,” according to the Planning Commission minutes of May 1962.

The postcards returned in the San Pablo Park neighborhood showed the majority favoring R-1 over R-3 (75 to 49). African-Americans wanted to have a home of their own in a stable and safe neighborhood, which meant more than owning a piece of the American Dream. It meant the achievement of equality. To ignore this reality is to miss the importance of Lorraine Hansberry’s watershed play “A Raisin in the Sun” (1958). The black community leadership considered the lack of single-family residential zones in south and west Berkeley discriminatory. The traffic diverters that surround the park area were first constructed in 1963. By November 1963, the revised zoning was complete with 8,000 parcels having been reclassified. One of the innovations was the R-1A zone, located near the UC stadium at the base of Panoramic Hill. On the hand-drawn 1963 map, it’s a light orange patch, rezoned to ES-R in 1979. The building allowances for the new R-1A were a duplex, a single-family residence or an SFR with an accessory unit of 700 square feet maximum. The yellow areas on the 1963 map are R-1, including San Pablo Park, the hills, and the Claremont. Other than the blue manufacturing zone, West Berkeley remained R-4 (brown) with a section of R-2 in Ocean View. It would be four more years before the R-1A was applied to 50 blocks in West Berkeley and five years after that for an eight block zone of R-1A to be created in Westbrae (Ordinance 4610, Dec. 1972). The year 1963 included a bitterly fought battle in which the Republicans defeated a local fair housing ordinance and tried to block school integration. In 1964, the Democrats increased their majority to 6-3 on the City Council in the general election that gave Lyndon Johnson a resounding victory over Barry Goldwater. In Berkeley politics, the Democrats split over the Vietnam War and local issues like rent control and neighborhood development. By the mid-1960’s the demolition of single-family homes and their replacement by multiplex apartment buildings of inferior design and construction had become an issue for the community and the Planning Commission. Real estate interests cited the demand for new apartments, but neighbors protested their shoddy design. Some of the new buildings featured living quarters built on flimsy supports above parking, now known as “soft-story” structures that require retrofit for earthquake safety. West Berkeley residents were organized at the grass roots, including an activist West Berkeley Neighborhood Council. In March 1966 the Planning Commission considered a moratorium on the construction of apartment buildings. The next month a hearing was held on a staff proposal to down zone West Berkeley to R-1A and remove the 700 square foot limit on the second house.

In April 1967, Ron Dellums was elected to the Council, its second black member. In June, fifty West Berkeley residential blocks were reclassified as R-1A by a unanimous vote of the City Council through two ordinances: 4272 on the reclassification and 4273 on an allowance of two dwelling units and three off-street parking spaces. On staff recommendation, the 700 square foot gross floor area restriction was applied to the Panoramic Hill section only. I can’t explain why without reading the relevant staff reports, which is the next level of my research. With the removal of this restriction, the West Berkeley R-1A became a two-unit zone that lacked a useful definition of the second dwelling unit building allowance. Nobody seemed to notice. The main concern of the community was stopping the construction of badly built multiplex apartment houses and the preservation of single-family residences, including Victorian houses and Craftsman cottages that give West Berkeley its historic character. The passion for preservation persisted through the 1970’s with the passage of an initiative, the Neighborhood Preservation Ordinance in 1973, followed in 1974 by the adoption of the Landmarks Preservation Ordinance, which created the Landmarks Preservation Commission. Other political passions rocked Berkeley during the 1970’s including the defeat of an industrial park in Ocean View, police review, and rent control. To fully appreciate the chaos of Berkeley politics during this era and to trace the rise of Loni Hancock, one must read David Munstock’s history. After I was evicted from my apartment in central Berkeley in 1978, I shopped around for an affordable house to buy and found one on Tenth Street, a true fixer-upper. The place was a wreck. In those days West Berkeley was not considered a desirable place to live, but I was young, energetic, and eager to learn renovation skills. The R-1A zoning allowed a second unit in the basement, which I built within five years of buying the house. The commute to San Francisco was convenient and a lot easier then. Rent control went into effect in 1980 and had seismic economic effects that are debated to this day. Many believe that housing construction ground to a halt because builders feared that rents in new buildings would be controlled, starving investors of a fair return or worse, causing bankruptcy. The 1980’s were not a heyday of housing construction in Berkeley. In 1984, following a zoning appeal, staff recommended changing the parking requirement in lower density districts to one parking space for each unit. In the R-1A a minimum lot size of 5,000 square feet was required of “each structure, together with its accessory buildings” or 4,500 square feet on a substandard lot. After a public hearing and some discussion on whether these new rules satisfied the requirements of the 1982 Mello Bill on affordable housing, the City

Council passed an amendment to the R-1A zoning in July 1984 (ordinance 5613). No development standards specific to the second unit were included. One surviving member of the 1984 City Council told me that it was “an oversight.” A related housing issue soon riled the community, second units in the R-1. The Council referred the matter to the Planning Commission, and in December 1984, Director Marge Macris brought them a draft of an ordinance. The discussion lasted into the next year focusing on the standards and regulations including owner occupancy, rent control, and parking. Over the opposition of the North East Neighborhood Association (NEBA), the Council passed the first “subsidiary” dwelling unit ordinance (5695) in December 1985. In 1986 district elections were instituted, again changing the composition and priorities of the City Council. One motive was a reaction to building low-income housing on vacant school district land. The new Council minority, Mary Wainwright (D2), Shirley Dean (D5), Alan Goldfarb (D6) and Fred Collignon (D8) were drawn from the moderate Berkeley Democratic Club while Mayor Loni Hancock, Nancy Skinner (D1), Ann Chandler (D4), Don Jelinek (D7) and Maudell Shirek (D3) retained a slim majority from the progressive Berkeley Citizens Action slate. In the late 1980’s the Council passed zoning ordinances for several commercial areas including the Adeline corridor, southern Sacramento Street, and Solano Avenue. They returned to the subject of residential additions in April 1990 because people were adding height and bulk to existing buildings in increments without use permits. Council referred the matter, and in February and March 1991, the Planning Commission held public hearings on residential additions that addressed façade removal, the definition and size of a major addition, and when use permits should be required. On May 28, the Council held a public hearing on zoning amendments for residential additions and revised notice requirements. A subcommittee of Chandler, Dean, and Wainwright were to consider “general revision of the zoning ordinance” for the Planning Commission to consider. However, when the text of an ordinance was brought to the July 16, 1991 City Council meeting, no further Planning Commission hearings had been held or recommendations forthcoming, so that when the Council voted, the minutes of the March 27 planning commission was referenced. The ordinance (6086) included building heights of 28 feet by right for all residential districts R-1 to R-2, requiring an AUP above that to 35 feet, a topic that had not been discussed and recommended by the Planning Commission. The rest of the ordinance covered residential additions, notices, and use permits that had been discussed and approved by the Planning Commission.

And that is how we got the allowance for big second houses in backyards. The Planning Commission and the Zoning Adjustments Board were supposed to develop “written guidelines as to what constitutes an ‘unreasonable obstruction’ of sunlight, air, or views,” according to the Council minutes of July 16, 1991. In my recent public records search, I requested such guidelines as well as any covering the definition of detriment and was informed that no such written standards exist. This is an unfinished document. My next public records search will be for the relevant staff reports, after which I shall continue this history. In the meantime, I will advocate for reasonable standards for second dwelling units in the R-1A that do not intrude on the neighbors’ light, air, views, or property values. That means limiting such units in height and floor area and providing adequate rear and side setbacks. It also means holding properly noticed hearings at the Planning Commission and City Council so that the public can be informed and weigh in. February 8, 2017: draft 1

Appendix 1: 1949 zoning map of West Berkeley:

Appendix 2: zoning map of 1963 following reclassifications

Appendix 3: the creation of the R-1A Chapter 5A in Ordinance 3928 that codified the reclassifications, Feb 1963.

Appendix 4: the reclassification of West Berkeley to R-1A in 1976

Appendix 5: R-1A zoning applied to West Berkeley R-1A, reserving to the hills the 700 square foot maximum for the second unit, July 1967

Appendix 6: City Council minutes of Subcommittee reports 1991. #2 had not been discussed by the Planning Commission.

Appendix 7: pages 1 & 2 of the ordinance increasing building heights, the R-1A is Section 5A.