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SQUEAKY WHEEL: Council to vote on R-1A

Toni Mester
Sunday March 18, 2018 - 09:04:00 PM
2209 Ninth St., Berkeley
Toni Mester
2209 Ninth St., Berkeley

; On Tuesday March 27, the City Council will vote on the R-1A zoning revisions that were recommended by the Planning Commission in November after more than a year of meetings on the issue, including three public hearings. The R-1A comprises about fifty blocks between Sixth Street and San Pablo Avenue plus another ten blocks in the Westbrae around the intersection of Gilman and Peralta. 

The Commission voted 5-4 for the staff proposal on height and setbacks for a rear yard house. The majority, including Jeff Vincent, Christine Schildt, Benjamin Beach, Robb Kapla, and Ben Fong, voted for a two-story 22' height limit, while the minority of Gene Poschman, Rob Wrenn, Prakash Pinto, and Steve Martinot favored a one-story 14' height limit that could rise to 22' with an administrative use permit. Since an AUP is the lowest level of review and easy to get, the Planning Commission vote can be viewed as practically unanimous, as all the other standards were discussed and approved without much controversy. 

But at the end of the process, a developer faction led by a self-interested real estate agent entered the fray to advocate for a return to the old standards, and they have taken over the Berkeley Considers/Peak Democracy platform to lobby against the revisions. It’s time for the broader community to weigh in with a resounding YES vote, despite the reservations that many of us hold about building two-story houses in backyards. Skeptics have another option called OTHER, and a place on the ballot that allows for comment, but whichever, do not vote no or your vote will be co-opted by the developers and YIMBYs who hate zoning restrictions. They want a building free-for-all. 

Time to Compromise 

Our pro-ADU and pro-duplex neighborhood caucus, Friends of R-1A, collected 235 signatures on a Move-on petition known as “Keep West Berkeley Affordable” that advocated for a one-story rear house and a two-story front house, but we were unsuccessful in achieving that goal at the Planning Commission. However, pressure from the community helped to reduce the staff recommended height to 22 feet on the average, measured between the roof ridge and the eaves. The petition is still open for signatures, but it’s more relevant now to vote on Berkeley Considers. Just go to the City of Berkeley website and follow the links on the first page

Most of the other revisions recommended by the Planning Commission were agreed upon early in the process. Staff, ably led by senior planner Elizabeth Greene, proposed a 6-foot side setback for the rear house instead of the 45° “daylight plane” advocated by Loni Gray and other members of the public, including myself. The daylight plane is a building separation used in the zoning code of many California cities including Albany and El Cerrito. The staff alternative is a reasonable buffer between a rear house and neighboring properties to reduce detriments of shadow, noise, and loss of privacy. 

The rear yard setback between 12 and 20 feet provides a small backyard for the rear house where children can play or the family have an outdoor picnic table and lawn chairs. If the eager attendees at the Ecology Center seed swap on Friday night were an indication, newly arrived young urbanites would appreciate space for a garden. The setback is variable to allow for design flexibility that would successfully relate new structures to the different buildings and vegetation that surround each lot. 

In the past, that rear yard setback could be reduced to zero west of San Pablo Avenue but not in the Westbrae, the newer portion of the R-1A. As a result, overbuilding has degraded many properties in West Berkeley, once considered a less desirable section of town where “those people” lived. Both the Commission and staff felt it was time to end this discrimination and treat both sections alike. The proposed uniform setbacks are both flexible and fair, hopefully ending the treatment of West Berkeley as a dumping ground for insensitive construction. 

The separation between the two buildings on the lot was discussed on and off with variations from 8 to 12 feet. At the final vote, the Commission settled on separations consistent with the R-2: 8 feet for one story and 12 feet for the second. 

Unfortunately, the Commission failed to address the heart of the Council and ZAB referrals that brought the matter to them in the first place: the relative scale of the two houses, how the size and proportion of each relates to the other, despite suggestions from the Council on how that could be achieved. Scale could have been regulated through floor area ratio (FAR) but Chair Gene Poschman resisted even discussing this commonly used mechanism and remained wedded to the single story option. One local wag called this “a glorified ADU.” 

The ADU Option 

The R-1A standards passed by the Planning Commission do not replace or erase the opportunity to develop an accessory dwelling unit (ADU) behind a single family home, and from the comments on Berkeley Considers, many people are confused about the ADU option. One of the reasons is that our local ADU ordinance has been in limbo after the state changed the rules in 2016, and the local task force has been developing its recommendations for revision at the same time that the R-1A standards were being discussed. No wonder the public is confused. 

Let’s be clear. The main difference between a second house in the R-1A or the R-2 and R-2A, for that matter, is that a second house can be sold separately, and an ADU cannot through deed restriction. An ADU is approved “over the counter” by the planning staff, called “ministerial approval”, which does not require a public hearing. Also a second house requires off-street parking while an ADU does not. The ADU has a maximum floor area, while a second house does not. The ADU is regulated by a separate ordinance that applies to many zones, while the standards for the second house are found in the rules for the specific zone. Although Berkeley is famous for quaint backyard cottages like the one inhabited by the poet Allen Ginsberg, the ADU standards are relatively new, instigated by state law that requires local jurisdictions to adopt an accessory dwelling unit ordinance. The key word that differentiates the ADU from a second house is that it is “accessory” to the main building. 

In its January meeting, the Planning Commission unanimously recommended new standards for the ADUs that include increasing the height from 14 to 18 feet and the maximum floor area from 750 to 850 square feet, enough for two bedrooms. In other words, the second house and the ADU are beginning to approximate each other in size, reflecting the commitment of the current City Council to zoning equity. The wealthier predominantly R-1 districts have traditionally enjoyed more open space for their homes, while happily imposing density on the flatlands hoi polloi. In 1991, five years after the advent of district elections, the City Council imposed uniform height limits of 35 feet that allowed three story houses in flatland backyards without a single public hearing. For that story, please read my paper on the history of the R-1A zoning. 

Friends of R-1A have been fighting the developer invasion of working class neighborhoods by advocating for the accessory dwelling unit and the “missing middle” duplex as better choices for two units on a lot. The allowance for two main houses incentivizes demolition and accelerates gentrification and displacement of lower income residents by replacing affordable old construction with new condo houses. Thankfully, some of our concerns are addressed in the revised ADU recommendations. We salute the ADU Task Force and the Planning Commission for advancing more equitable standards. 

Cynthia’s Shenanigans 

There are folks who think it’s just fine and dandy to build a three story house in a backyard, and one of them appeared at the Planning Commission hearings last year, Cynthia Tate Eliot, a realtor with Sotheby’s with a specialty in West Berkeley. In early September she sent out an unsigned letter to R-1A property owners stating that proposed changes “will restrict our ability to add additional units on our property and possibly even eliminate in-law units that accommodate familial and retirement needs, ultimately lowering our property values” and signed it “residents of R-1A Against Downzoning.” The telephone number was traceable to her. The Berkeley Oakland Board of Realtors Code of Ethics Article 12 requires that “their status as real estate professionals [be] readily apparent in their advertising, marketing, and other representations…” 

Having thus frightened some owners with these phony doom and gloom alerts, she then put together a list of concerned ‘West Berkeley Neighbors for Family Housing” and came out of the shadows in October to attack Friends of R-1A and advocate for “zoning standards similar to current standards.” In this second manifesto she failed to mention her application for a three-story rear house on Eighth Street that is coming to the ZAB for an initial hearing this Thursday March 22, a project that is opposed by the neighbors, but not surprising, recommended for approval by the staff. 

The downzoning accusation has caught on, creating even more confusion because downzoning is not defined by height. Traditionally the term applies to actually changing the zoning to allow fewer units. The current West Berkeley R-1A was downzoned from R-4 and R-2 in 1967 and Westbrae from R-2 in 1972. Nobody called the jacking-up of heights in 1991 “upzoning” but then again, nobody knew. 

The current short supply of housing means that bedrooms are being rented for $1500 and more, and young people are clamoring for bigger houses to share. It’s no wonder that our poster child for overbuilding, 2209-2211 Ninth Street, drew the ire of its inhabitants, who protested that their shared houses are affordable. But let’s not justify building a type of mini-dorm by calling it “family housing.” 

Preservation Matters 

There are many reasons to preserve the existing housing stock and to make rear yard houses more compatible in scale and design with their neighborhoods. Old construction is generally more affordable, as advocates for new buildings are wont to remind us; the market rate units of today will become the affordable units of tomorrow. Old houses create charm, value, and comfort, set within natural open spaces that provide healthy outdoor living for families and the growth of carbon absorbing and oxygen exuding vegetation. Permeable ground absorbs rainwater and reduces run-off, helping to prevent flooding in low-lying West Berkeley and Aquatic Park. Preserving our traditional neighborhoods complements the development of the avenues that can accommodate denser modern architecture. Great cities should have opportunities for both living environments. 

 


 

Toni Mester is a resident of West Berkeley.