Columns

A spectre is haunting Berkeley, the spectre of THIMBYism, long buried in the zoning code and currently lurking in the agendas of the City Council and the Planning Commission.

The House in My Back Yard (THIMBY) has become a contentious issue as the need for more housing bumps against the historic political conflicts and ageless geography that separate the flatlands from the hills.

THIMBYs come in two basic sizes: big and small. One would think that big back yard houses would be allowed on the biggest lots and the smallest on the small but the Berkeley zoning code has this in reverse. Big houses are being squeezed into relatively limited space in the flats while the smallest units originally planned for larger upland parcels face so many hurdles that the eagerly anticipated backyard cottages may never be built. 

Accessory Dwelling Units 

The project to allow accessory dwelling units (ADUs) in the R-1 and R-1H districts has been several decades in the making. Although the hills are zoned for single-family homes, property owners there have long been divided on second units. After World War II, with the population of Berkeley rapidly swelling from 85,500 in 1940 to 113,800 by 1950, the City hired the land-use consulting firm of Hahn, Campbell and Associates to conduct surveys. The minutes of the Council in September and October of 1948, available at the City’s records-on-line, are replete with testimony from hills dwellers who wanted to increase the opportunities to build housing. One citizen on Tamalpais Road submitted a petition with 239 signatures “favoring two-family and multiple houses in this street” while others opposed. 

After two years of hearings and debate, in January 1949 the Berkeley City Council passed a zoning code and map (ordinance 3018) that was amended 350 times until it was replaced in 1999 by the zoning ordinance (6478) in effect today. 

Although the hills and the Claremont remained single-family zones, many unpermitted second units have been built. Nobody seems to know the exact figure, but the post-war pressure to allow accessory units continued until 1985, when the first legal allowances in the R-1 districts prevailed over the objections of the Northeast Berkeley Association (NEBA).  

That original ADU ordinance (5695) required a minimum lot size of 4500 square feet on which a “subsidiary” structure between 300 and 640 square feet could be built. An extra off-street parking space was required. 

The new zoning code passed in 1999 incorporated these allowances and the potential for granny units in the main dwellings of the R-1 zones. 

In 2003, the allowance for ADUs was expanded to other residential zones but prohibited in Panoramic Hill for environmental and safety reasons. As interest in building new units increased, in 2015 the City unified the existing rules into a new chapter 23D of the zoning code that allowed units of 750 square feet or 75% of the primary residence. 

To its credit, the City of Berkeley has been ahead of the game when it comes to allowing little THIMBYs. Thanks in part to local ADU activist Karen Chapple, a professor at UCB and planning commissioner, the State legislature last year came to the aid of property owners by passing laws that make “granny units” easier to build. 

The City is in the process of revising our accessory dwelling units ordinance to comply with the new state guidelines, including relaxation of parking requirements. The Planning Commission held a public hearing in January on the new language, with action probably reaching the Council in March. 

The fire department is concerned that some roads in the hills are too narrow to overpopulate, and so a minimum road width of 26 feet is proposed. 

Meanwhile the ADU allowances have become entangled with the controversy over Airbnb culminating in a new short-term rental chapter 23C.22, which gets its second reading on Tuesday February 28^th. The definition of short-term rental is less than fourteen days, and the Council has strictly limited the ability of owners and tenants to engage in the “sharing economy” using a host platform like Airbnb. 

The purposes of the new short-term rental law are to provide standards of operation and alternative forms of lodging, prevent displacement and conversion of long-term rentals, and protect neighborhood character and livability.  

A business license will be required as well as host residency stipulations and notification of neighbors. These restrictive regulations on high-turnover rentals should make some people reconsider essentially operating a hotel in a residential neighborhood. 

We all know people who do, including the constant cleaning; such income can be an essential part of their personal economy, helping to pay the bills and the mortgage. There are other perks. Availability can be cancelled, allowing the owners to take a vacation from hosting, and the platform provides a package deal: advertising, customer vetting, and monetary deposits, after taking a percentage. Many hosts enjoy meeting the large variety of guests who come from all over the country and the world. 

The new law should not be a huge burden for those who are willing to play by the rules. Some owners will revert to long-term leases. Others will continue to use Airbnb but only for rentals of 14 days or more. Two weeks is barely enough time to explore the Bay Area, using centrally located Berkeley as a base. Time will tell if the current number of Berkeley Airbnb listings – around 300- decreases with these new regulations. 

Another outcome may be that some owners will simply not comply, and tracking down outlaw listings will aggravate the enforcement headache for a City that already has an unknown number of unpermitted units. 

To complicate matters, the Council decided to outlaw short-term rental of new ADUs, just when we need them the most. A worrisome unintended consequence may be that few ADUS will get built. With construction costs between $50k to $75K, the quickest way to recoup such expense is to rent them short-term. If building permits for ADUs dry up as a result, the Council should revisit this restriction. 

Another rule passed on February 14 says that existing ADUs can only be rented short-term if they haven’t been a long-term rental within ten years, which is actually a prohibition since Airbnb has only been in existence for ten years. This unenforceable rule will make outlaws of well-intended ADU owners who rent to students during the school year and want to rent short-term during the summer. 

Main Buildings 

Big THIMBY’s are called “main buildings” in the Berkeley zoning code, where the very nomenclature presents a problem. How many main buildings can one lot contain? In the R-1A, two main buildings; in the R-2 and R-2A, up to three main buildings; in each case, the number is dependent on the lot size. It’s confusing because main means principal or most important whereas these zones actually allow main buildings of similar size. 

I contend that a parcel can only have one main building and that others should be called detached dwelling units or DDUs. Such taxonomy would clarify the THIMBY universe: little ones being ADUs and bigger ones DDUs. 

All of the low to medium density residential zoning from R-1A to R-3 is a total mess, from the illogical vocabulary to the inconsistency of district purposes with their development standards. In 1991 the Council imposed a uniform height limit of three stories without a public hearing and recommendation by the Planning Commission. Such piecemeal zoning is the primary reason for poor results including design disasters, demolitions and delays. 

Main buildings are condos-in-waiting, and the potential for providing ownership opportunities and family housing needs to be considered in a holistic way. As Hamlet says, “nothing is good or bad but thinking makes it so.” The problem is that the current allowances for multiple main buildings are creating a demolition derby in West Berkeley, and the current owners rightly feel threatened. They deserve an opportunity to shape the future of their neighborhoods. 

On Tuesday the Council hears a rerun of the appeal of the 1310 Haskell Street project that includes the demolition of a single-family home and replacement by three “main buildings” in south Berkeley. The 300 page administrative record reads like a bad novel. 1310 Haskell Street is the Peyton Place of zoning appeals. 

The story begins two years ago when an owner occupant sells her one-story 1925 single-family house to Cristian S. Hedes, the principal of CS Development in Danville for $650,000. The project is designed by architect Matthew Baran with assistance from Cassidy Cheung of Baran Studios. Manny Bereket is the project manager for the City of Berkeley. 

The three houses are each two stories reaching 22 feet with flat roofs, averaging 1900 square feet with three bedrooms on the second floor and enclosed garages on the first. The designs are also similar: boxy modern with stucco walls, horizontal wood panels, aluminum doors and windows, and modest cantilevers or bays on the second floor. The neighbors hate the project, even after the architect makes some minor design adjustments known as “tweaks” in Berkeley parlance. 

In June 2015, twenty neighbors show up at a mediation session with Baran at Seeds, which summarized the meeting: “The applicant described the project. Not a single neighbor had anything positive to say about it. No further meetings were scheduled.” 

On March 10, 2016 the project goes to ZAB, which approves it 6-3 after a lengthy discussion that reveals the zoning problems. Hahn, Tregub, and Pinkston vote no. The hearing demonstrates that the purposes of the R-2A conflict with the development standards, which would allow four building of three stories each. Something is clearly out of whack. 

The neighbors – all 42 of them- appeal to the City Council, who hears the appeal on July 12 and denies the project, overturning the approval by the ZAB. The decision is Darryl Moore’s call. Haskell Street is in his district, and he’s obviously feeling shaky about the election. He makes a grand speech about the importance of neighborhoods, and gets five votes to deny and four abstain. Tom Bates casts the deciding vote. 

In October the Bay Area Renters Federation sues the City, citing violation of the Housing Accountability Act that prohibits a reduction in housing units except when health and safety are at stake. The City immediately settles the case by paying BARF’s legal costs and allowing the appeal to be heard again. 

It’s anybody’s guess what this Council is going to do. They cannot reduce the number of units, as Pinkston suggested at the ZAB hearing, but they could find detriment in the shadowing of neighboring properties and reduce the mass of the second stories by requiring a redesign. 

All of this could have been prevented if the development standards in the flatlands had a height limit that harmonized with the neighborhood and required second stories to be smaller than the first by providing a 45º setback known as a “sun access plane” that is required by many Bay Area cities. If Berkeley wants to promote family housing, then a larger open space requirement is needed than what the R-2A provides. 

There isn’t a villain in this story. The usual suspects will blame the NIMBY neighbors or the politicians that they love to hate. But it’s the zoning, stupid. In the ZAB hearing, every member of the Board says so in one way or another. The R-2A needs to be rewritten to make it functional and coherent. The development standards need to conform and reinforce the purposes of the districts and provide design consistency and guidance. Every single flatland zone needs to be so reformed. A rewrite of the R-1A is already underway at the Planning Commission, and the Council should refer all the others. 

Chaos reigns in THIMBY land. The ADUs are in danger of being regulated to death, and the main buildings need to be better defined by form and function. The backyard is an icon of American culture, not just a Berkeley conflict zone. Neighbors want to protect their gardens and privacy. The fast-track urbanites want to tax or build on back yards, that little bit of nature we call our own. Berkeley faces a challenge in providing more housing while preserving the peaceful green spaces that characterize a town that sits in the eye of the Bay Area urban swirl.