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Article written by Michael Smearer

Summary

Every city struggles with the balance of preserving the character of its neighborhoods and allowing for more growth, and Berkeley is certainly no different. The City Council recently considered a number of changes to its zoning regulations that were significant in both number and scope. The regulatory changes were prompted by a need to implement California's 'Density Bonus' law, with special consideration to the transitional areas where commercial and residential properties meet. The changes and new regulations can all be considered 'downzoning', or more restrictive regulations, much to the objection of those who wish to increase density along San Pablo and other transit corridors in Berkeley.

Given the potential impact of Proposition 90, the City Council passed all of the zoning changes recommended by the city staff just before the November ballot. Citing a need for more study, however, the motion passed with a clause that indicated the changes would be repealed should Proposition 90 fail in election. Since that was indeed the case, the matter will be up before the Planning Commission and City Council once again within the next few months.

Additions and Amendments to the Code [1]

• The allowable height of a mixed-use building is lowered from 50ft to 40ft
• The second story and above of a building next to a residential district now requires an average setback of 20ft and a minimum of 15ft
• The fourth story and above of a building next to a residential district now requires a minimum 30ft setback
• 75% of a building's open space requirement may be located on a roof top
• In commercial buildings 75% of parking may be lift parking
• In mixed-use buildings, 75% of residential parking may be lift parking
• In mixed-use buildings, 100% of commercial spaces must be at grade
• Detailed specifications around the use, size, and height of the ground floor in a mixed-use building

Background

For at least a decade, all municipalities in California have been operating under California Government Code Section 65195, the 'density bonus law.' [7] Under this law, developers were allowed to build a number of units over that which is allowed under a city's zoning ordinance if a percentage of the units were set aside as affordable housing. In addition, the developer may have sought (and most often received, due to the cumbersome denial process) a concession or waiver from the municipality in order to complete the project.

In order to promote development to house the huge volume of people moving into California, the state legislature passed SB 1818 in 2004, an amendment to the density bonus law. [8] Effective January 1st, 2005, the new law moved the required number of affordable units to qualify for a density bonus from a fixed percentage to a sliding scale and increased the maximum allowable concessions and waivers. The state legislature's intent was to allow a greater variety of projects to take advantage of the density bonus and thus increase the amount of available housing, both market-rate and affordable. [9]

Though the City of Berkeley has long-standing 'inclusionary' regulations that promote the building of affordable housing, SB 1818 compelled the city to revisit its zoning laws. Berkeley currently utilizes 'strip zoning,' a practice where the street-facing buildings of an artery are zoned commercial and the buildings behind it may be zoned residential. Given these changes, the city was afraid that residents may suddenly find themselves next to looming 5 or 6-story buildings in an area zoned for 4-story buildings. In September of 2005, a joint committee formed from members of Zoning Adjustments Board, Housing Advisory Committee, and the Planning Commission began meeting to draft recommendations. [10]

One year later, the city council received two sets of recommendations, one authored by the joint committee and one authored by city staff. [11] Specifically, the recommendations include setbacks in transitional areas, specifying the uses for ground floor space in commercial and mixed-use buildings, setting limits on rooftop area allowed to be used as open space, and restrict mechanical parking lifts. The committee had additionally recommended dropping the allowable height by one story. Everyone involved had expected a generous amount of time to study the issue, a lively public debate, and ample resources for the city council to make a well-informed decision. Just a month prior, however, it was learned that the potential effects of state Proposition 90, scheduled for the November 7th ballot, could derail the entire process.

The idea behind the regulations is that by reducing a project's overall scope, or 'base envelope,' the city can more effectively manage growth through permits. However, many developers, both for-profit and non-profit, have unequivocally stated that because investors do not include the need for expanded use permits in their analyses, the regulations make new projects unfeasible and would effectively bring a moratorium on new housing. Thus the city's effort to promote 'smart growth,' which includes promoting socio-economic diversity and reducing pollution, would essentially be no growth. While the city staff had provided analysis that concludes the changes would reduce the overall number of projected units by a significant but acceptable percentage, developers were quick to highlight the lack of research on the implications for single projects. [12] For example, would it still be feasible to build a new 30 unit mixed-use building with affordable housing on San Pablo Avenue? For the developers, the answer is no.

It is worth noting that the new ordinances seem counter to the vision of city's General Plan, which calls for increasing the amount of housing along the commercial corridors. [13] The regulations also seem counter to the wish of Berkeley voters, who rejected Measure P in November of 2002. [14] By an 80% margin, the citizens of Berkeley defeated the measure that would have restricted building heights in major commercial zones.

Timing is Everything: Proposition 90

If passed, Proposition 90 would have effectively removed the city's ability to 'downzone.' It stipulated that a municipality must accordingly compensate a landowner for any losses resulting from new regulations. [15] Thus Berkeley would have faced an immense financial burden if Proposition 90 had passed before the city council voted in favor of any 'downzoning' ordinances. Citing the need for more study, discussion, and public input, the motion was put before city council with a sunset clause, which stipulates that these new regulations will be quickly repealed, should Proposition 90 fail.

Now that the November election is over and Proposition 90 failed to pass, all parties have a window in which to carefully consider this complicated issue. One thing is clear: more research, deliberation, and citizen input are needed. We very much encourage you to join the discussion.