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Berkeley’s homeowners include those who have a secure backyard, those who have-not, and those who wonder how long before they lose what they have now: sunlight, a patch of nature to call their own, privacy, and some peace and quiet.

Those who have a secure backyard own a home in the R-1 zone, located in the northeast hills and foothills; a patch around San Pablo Park (the result of down zoning in 1963), another patch surrounding upper Sacramento Street, and the Claremont, both lower and upper.

Homeowners in the R-1 and other residential zones are allowed to build a small backyard cottage limited to 750 square feet or less, known as an ADU (accessory dwelling unit) that is regulated by an ordinance finalized by the City Council in March, and explained in a flow-chart with Q and A. Since then, an ADU task force has developed under the aegis of Councilmember Ben Bartlett. 

Joanne Sullivan, one member of the task force, explains on the Smart Senior website. “To assist in the rollout of the ADU regulations, newly elected city council member Ben Bartlett formed an ADU Task Force. I am on that task force, as well as other realtors, architects, planners, developers, mortgage specialists and others. May 31, 2017 was the public kick-off for Berkeley’s ADU campaign. We held a panel discussion at the Oakland Berkeley Association of Realtors, which was attended by about 100 realtors. Later that afternoon, a group of us met with the new UC Chancellor and staff from the Terner Center for Housing Innovation to talk about how ADUs could help ease the faculty housing crisis at UC Berkeley.” 

Councilmember Bartlett and the task force held a well-attended community workshop on September 28 at the South Berkeley Senior Center, and six days later at the October 4 meeting of the Planning Commission, a revised ADU ordinance was presented in draft form. The changes include extending the right to build an ADU to owners of a single-family dwelling in the mixed use residential (MUR) and the commercial (C) zones but not the manufacturing zones: the M, MM, MULI; as well as the ES-R and the U. The other proposed substantial change is the height from a maximum of 14 feet to an average of 14 feet. Maximum height is measured to the ridge of the roof, whereas average height is the mean between the ridge and the wall at the eaves. The ADU and the primary unit must each have 400 square feet of usable open space, the entrance to the ADU can be at the front of the house, and other minor policy changes. Other proposed language revisions add clarity. 

In addition, the ADU task force suggested further changes contained in other documents filed for the meeting including greater heights to 18 feet average, modification of the owner occupancy requirements, ease of conversion of other structures like a garage to an ADU, adding building separation, and removing ADUs from the bedroom count. 

These changes arrived at the Planning Commission just two weeks before the final discussion on zoning changes in the R-1A scheduled for Wednesday October 18, a meeting that impends a mighty rumble that will attract NIMBYs, YIMBYs, and a variety of real estate interests explaining to the Commission and the staff their vision of what dwellings belongs in West Berkeley backyards. Who knows what Chair Gene Poschman and company are going to do with this mish-mash of visions from the mini to the maxi. 

The origins of overbuilding 

The homeowners in the R-1A have very little security that they will be able to maintain their backyard sun, peace, and privacy because the current rules allow their neighbors to build a three story building to 28 feet on the average in the rear of a lot, and that height can go higher to 35 feet with an AUP. This allowance known as “uniform height limits” pertains to all residential zones including the low medium density R-2 and the medium density R-2A. Where did such maximum heights originate? 

As I relate in my paper on the history of West Berkeley zoning, the area was zoned R-2 and R-4 in 1949 and downzoned to R-1A in 1963, but in doing so, staff removed the 700 square foot size of the backyard cottage without replacing the restriction with new standards. In 1991, the Council imposed “uniform building heights” of 28-35 feet for all buildings without consideration of their location on a parcel, included in an ordinance that revised standards for building additions. However, the uniform building heights had not been vetted by the Planning Commission, as required by state law, and property owners were not noticed. It’s questionable that the Council itself understood the effects of its actions, although they promised to consult with the Zoning Adjustments Board to “develop written guidelines as to what constitutes an ‘unreasonable obstruction’ of sunlight, air, or views.” 

When the zoning ordinance was updated in 1999, these heights became codified as an allowance for two “main buildings” that can reach three stories on lots as small as 4500 square feet, granting extraordinary rights to applicants at the expense of existing neighbors, many of whom feel that their property rights have been violated since these heights were imposed. 

Neighbors have had few protections in the zoning code other than findings of detriment as required in 23B.32.040: Findings for Issuance and Denial and Conditions 

A. The Board may approve an application for a Use Permit, either as submitted or as modified, only upon finding that the establishment, maintenance or operation of the use, or the construction of a building, structure or addition thereto, under the circumstances of the particular case existing at the time at which the application is granted, will not be detrimental to the health, safety, peace, morals, comfort or general welfare of persons residing or working in the area or neighborhood of such proposed use or be detrimental or injurious to property and improvements of the adjacent properties, the surrounding area or neighborhood or to the general welfare of the City. 

The criteria for determining detriment have never been precisely defined, even though the City Council in 1991 promised to do so. New state laws (the Housing Accountability Act and SB 35) require objective design and development standards rather than subjective estimates of detriment, which throws Berkeley’s approval practice into question, even for low-density projects in the R-1A. For decades, Berkeley has been wedded to a cumbersome two-stage approval process, in which the ZAB not only reviews the design of small projects but also rules on detriment. This is costly to the applicant, who often must pay the architect to redo the plans and suffer the expense of delay. 

An outlandish allowance of two large houses on small lots is unfair to existing neighbors, although staff seems to equate such breadth as “flexibility” while the delay in determining detriment through appeals is unfair to the applicant. Clearly the time has come to better define building standards in the R-1A, with the R-2 and the R-2A to follow. Because conditions can vary, the ZAB should retain the power to review and adjust such standards in particular cases, but more precision is badly needed to achieve a balance of property rights and to satisfy the purposes of the district. 

ADU v. condo  

The search for new standards for a second dwelling is complicated by the ADU whose standards and rules seem to be a moving target if the ADU task force has its way. But it’s doubtful that Councilmembers Wengraf and Droste, who represent primarily R-1 neighborhoods, would support an enlarged two-story ADU. 

The Mayor and his allies are unlikely to waver in their prohibition against renting the ADU short-term (less than 14 days), even though that’s a relatively quick way for an owner to recover the cost of construction. 

The state ADU law sets minimum standards including the intent that an ADU be rented, not sold; Berkeley law prohibits the sale of an ADU as a condo. Parking can be omitted for an ADU; whereas Berkeley requires an off-street parking spot, typically 8'x18' plus specs for different driveway lengths. 

If an owner has the motivation, skill, and capital, it’s more cost efficient and profitable to build a larger backyard house, which can be sold separately as a condo that commands a price of $1 million and more. Smaller or derelict houses are demolished, the lot scraped, and two condo-houses are built for a significant profit. Because of the opportunities that lax building allowances have created, developers snatch up any available lot, and the prices have been going up as a result, placing tremendous pressure on lower income homeowners to sell.  

So while the ADU task force has admirable goals of empowering neighborhoods by encouraging owners to build small cottages, it’s questionable whether lower income owners can qualify for a home equity loan to build them. The situation holds many hazards for neighborhood preservation and control. 

The Friends of R-1A have put forward standards that mimic the best of the ADU: one story but not limited in square footage, which would be regulated by an overall floor area ratio (FAR) for the parcel. Of the 856 parcels that currently have a single family dwelling and qualify for a second unit, 198 are cottages less than 1,000 square feet, so they could only build an ADU that is 75% of the existing square footage. They could build additions, including an attached unit to create a duplex, which is even cheaper to build than an ADU because the foundation, services, and utilities are already in place. 

Both of these options, the duplex and the ADU, preserve more of the parcel’s open space. 

Off-street parking is one of the most destructive requirements for the condo option, as the cars get precedent over family open space and often take up the most precious sunny places. One backyard condo on 2421 Ninth Street is surrounded on two sides by parking, and 1737 Tenth Street has two parking spaces smack in the sunny middle of the lot. Encouraging cars in an area served by public transit runs counter to our climate action plan, and permeable paving is not required, adding to the runoff problem in neighborhoods that are prone to flooding. 

The staff proposal doesn’t address these environmental issues and perpetuates the problem of detriment by not changing the development standards enough to deflect appeals. Residents have a choice to have your voices heard. You can attend the Planning Commission meeting on Wednesday October 18 at 7 PM at the North Berkeley Senior Center, sign the Friends of R-1A Move-on petition, and/or write to the Commission Secretary Alex Amoroso with your concerns: aamoroso@CityofBerkeley.info. 

Toni Mester is a resident of West Berkeley