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For over 20 years, Berkeley law has required developers of new apartment buildings to offer 20 percent of their units at levels affordable to people with lower-than-average incomes. It’s a trade-off with developers (for which they’re handsomely rewarded) to make sure that, as Berkeley develops, poorer people aren’t steadily forced out of the city. That same law requires those units to be evenly dispersed throughout the building, because poor people shouldn’t be sequestered in special poor sections of apartment buildings. 

But in all apartment buildings erected in the last five years, the top levels are free of these affordable units. (When you get in the elevator, don’t press “P” if you’re poor; that button’s for penthouse residents, not for you.) So instead of poor-people ghettos in new apartment buildings, we’ve made poor-people-free zones. How did a city that prides itself most of all on its commitment to fairness end up violating its own laws to segregate its housing stock and keep poor people out of its best (and most heavily city-subsidized) new real estate? 

The tale descends arcanely from the 1989 state law that codified how developers are to be compensated for providing these lower-priced units. Five years ago a big Berkeley developer came to the Berkeley city attorney and complained that we weren’t interpreting that law strictly enough. The city attorney agreed, and wholesale changes were instituted in the project approval process that took away almost all city discretion over project size. (All four-story projects, for instance, have automatically become five-story projects.) In essence, apartment buildings were granted a 25 percent increase in square footage. Furthermore, that increase itself, according to our city attorney’s state-law interpretation, does not generate any further affordable-housing requirement. 

Ten days ago, during a discussion of the composition of units in the proposed Seagate Building (the north side of Center Street just below Shattuck), which at seven stories was so big that it was granted two extra of these “bonus” stories, sharp-eyed commissioner Laurie Capitelli noticed that there were no affordable units marked out for the penthouse floors, as we'd always understood our Code required. City staff explained: “The first five stories are what’s allowed in the Code, the next two are for the Cultural Bonus [we also grant extra stories for space creation deemed to benefit the city culturally, which this building has taken advantage of in an unusual way], and the last two are for state density bonus. That’s why they’re on the top.” 

So the state density bonus units go on the top, which just happens to be the most valuable residential real estate. And then the coup de grace: since the bonus units do not themselves generate any requirement for further affordable units, there shouldn’t be, we were told, any such units on those floors. 

Interpretation layered on top of interpretation, and Berkeley’s law giving the poor some measure of access to new housing has been reshaped to exclude them from the best of it. 

Dave Blake is a long-time member of the Berkeley Zoning Adjustments Board