Columns

SQUEAKY WHEEL: The Frankenstein Monster

Toni Mester
Friday June 30, 2017 - 04:28:00 PM
Building Envelope
Building Envelope

Berkeley’s zoning ordinance is such a badly written mess that very few people read it unless they must, and those who do struggle to understand what it means. We should probably thank former Planning Director Carol Johnson for getting the City Council to hire a consultant to make the ZO at least readable. Making it workable and equitable is a Herculean task but we’re off to a good start. 

At the Planning Commission Meeting of June 21, the consultants, Ben Noble and partners, presented a slide show and brochure outlining their revision plan. If all goes well and the $300,000 budget suffices, they expect to “make the document easier to understand and administer; clarify City zoning rules and procedures; and enhance customer service for applicants and the general public.” 

They hope to reorganize the ZO for logic, modernize the format by adding visual aids, simplify the writing style for clarity, and eliminate conflicts and inconsistencies. Their contract is expected to span the next two years, with recommendations due mid 2018, draft amendments early the next year, and completion in late 2019. 

Parking was presented as an example of a redundancy that is addressed in two sections as well as individual district chapters. Such duplication can be simplified by putting the subject of parking in one chapter. The format of each chapter could be better arranged with tables and graphics, and the text clarified using “everyday language.” They chose another example Section 23B.44.010 Variances, a paragraph comprised of one long obtuse sentence: 

The Board may grant Variances to vary or modify the strict application of any of the regulations or provisions of this Ordinance with reference to the use of property, the height of buildings, the yard setbacks of buildings, the percentage of lot coverage, the lot area requirements, or the parking space requirements of this Ordinance; provided, however, that a use permit, rather than a variance, may be approved to vary or modify the strict application of any of the regulations or provisions of this Ordinance with reference to the yard setbacks of buildings, the percentage of lot coverage, or the parking space requirements when development is proposed on property which is located within thirty feet of an open creek and where varying from or modifying existing regulations is necessary to enable the property owner to comply with BMC Chapter 17.08, Preservation and Restoration of Natural Watercourses. (Ord. 6954-NS § 1 (part), 2006: Ord. 6478-NS § 4 (part), 1999) 

A comedian could convulse an audience with an inspired reading of such grotesquerie. It’s a good thing that variances are almost never granted; maybe the wording of the section is the reason why. 

In a parallel effort to improve service at the permit center, the Council held a work session June 27 to hear a report, when the issue of the planned revision of the zoning code came up. Councilmember Sophie Hahn, who served on the Zoning Adjustments Board for about seven years, called the ordinance a Frankenstein monster with good bones, but a patchwork of amendments over the years make it unwieldy to apply. She said that law schools offer courses in legal writing to ensure that code is precise and clear, echoing one of Ben Noble’s PowerPoint slides: writing style. 

Design for Detriment  

But jazzing up the zoning code for better comprehension isn’t going to change dem bones or ensure that citizens are going to like what they read. In fact the revision may infuriate homeowners when they understand the outsized allowances because most of the zones permit development that is detrimental to their property. 

Zoning protection depends on where you live. Do you know how your neighborhood is zoned? If not, consult the zoning map linked to “municipal code and zoning ordinance” at the bottom of the list at the left of the City of Berkeley main page and then click on Subtitle 23D: provisions applicable to all residential zones. That will open a list of the zones. Click on your zone and then the button “compile chapter” and then, on the chapter page, click the button “view entire title as a PDF.” Print the PDF to read, which takes time because tracking the references is like a treasure hunt. 

Even if the code were made coherent, its inherent inequities and inadequacies will remain unless we correct the mistakes of the past, which is why I spent two months researching the history of the R-1A. The development standards of the West Berkeley zone where I’ve lived since 1979 are now under scrutiny at the Planning Commission and will be the subject of a public hearing on July 19. The R-1A is the worst written chapter of the zoning ordinance but illustrative of its faults and failures. 

In the course of my research, it become painfully obvious that the zoning ordinance is a political document as well as a planning guide and that the political camps have used the code in a tug-of-war for supremacy. As the majority of the City Council changed over time, amendments and alterations were made that were not fully integrated into the document, both in style and substance. 

Any holistic treatment of the zoning ordinance came to a screeching halt with district elections in 1986, which shifted control of city hall from BCA, gave more power to the hills, and created the conditions for a fractured land-use policy. Rent control and subsidized housing led to district elections, but other momentous planning efforts were under way. In 1986, under Planning Director Marge Macris, the City zoned the waterfront and survived a federal lawsuit, laying the foundation for the Eastshore Park. In the early 1990’s with Gil Kelley at the helm, the West Berkeley Plan and the Bayer Development Agreement were undertaken, creating quite a stir. So in 1991, at the beginning of Loni Hancock’s second term, few people noticed the imposition of uniform building heights. 

The ramifications of this weird event remain at the heart of countless appeals, the lawsuit over 1310 Haskell Street, and the reform effort in the R-1A. At the beginning of 1991 the Planning Commission began to discuss revising the standards for residential additions and held a public hearing in February. But when the recommendation reached the Council, they passed a resolution applied average building heights of 28-35 feet to all the low to medium density residential zones regardless of the existing development patterns and scale. 

Heights of Buildings, average and maximum, are defined in Chapter 23F.04. Maximum is usually the tippy-top of the roof ridge, but the calculation of average height on a slope differs from that of a level lot and changes with roof types. The range of 28-35 feet originated in the hills to accommodate a sloped lot, but when those numbers are applied to the flatlands, a house with an average height of 35 feet can actually rise to 40 feet maximum, shadowing a one-story cottage next door. 

To make matters worse, the Council imposed a new required finding, “…to deny a permit…that otherwise meets all...standards, the Zoning Officer or Zoning Adjustments Board must find it would unreasonably obstruct sunlight, air, or views,” using the troublesome legal concept of the reasonable person standard

Recognizing that the application of the new heights might impose detriment to neighbors in a variety of situations, the Council promised to develop guidelines as to what constitutes unreasonable construction. That never happened. 

In other words, the Council deliberately passed potentially detrimental height standards on the R-1, R-1A, R-2, and R-2A neighborhoods, laying the groundwork for a two-step approval process that can delay construction of a housing project for over a year while the applicant and neighbors battle over detriment. 

I have heard many times how this process is supposed to work, but it doesn’t. Appeals and remands consume time and money. Such delays are blatantly unfair to both the applicant and the neighbors, who must endure the anger and anxiety that uncertainty produces, and expensive for the City as such prolonged suffering gobbles up hundreds of staff hours. 

Vision and Revision 

The current affordable housing crisis requires a thorough revision of Berkeley’s zoning code because of the activation of the Housing Accountability Act, which limits the ability of a jurisdiction to deny housing projects that comply with local ordinances. That means we should replace sloppy allowances with more precise standards that are balanced and fair to both the applicant and the neighbors and that protect the City from HAA lawsuits. 

Wise old King Solomon had something to say about this situation. “Where there is no vision, the people perish; but he that keepeth the law, happy is he.” That’s the King James version of Proverbs 29:18 with its typical snappy alliteration. But my Jewish bible has a more accurate translation, “Where there is no vision, the people cast off restraint….” 

Applying this wisdom to the Berkeley zoning code, we should understand that where there is an imbalance between allowance and restriction, developers will max out the building envelope. And if anybody objects, they will sue under the HAA. That’s why we need to bring this monster to ground. 

 

Toni Mester is a resident of West Berkeley.