The Berkeley City Council voted Tuesday night to embark on an intensive project to develop extensive new development standards to preserve the city’s discretion over land use decisions, and “the cost could be substantial,” staff said.
City attorney Zach Cowan, set to retire at the end of the month, told council the city has previously favored language about development that allowed for “maximum flexibility.” The new proposal, from Mayor Jesse Arreguín and Councilwoman Sophie Hahn, seeks to define density standards per parcel across the city; specify standards for views, shadows and “impacts that often underlie detriment findings”; and adopt new standards related to design review and health and safety issues.
Arreguín previously removed an item from the proposal about “downzoning” that prompted widespread public outcry from housing and density proponents. He said his goal is to make sure the city can still shape projects and respect neighborhood apprehensions without stopping development in the city.
In addition to acknowledging the substantial costs and time it will take to complete the work outlined in the proposal, officials debated Tuesday night about what the impacts of defining those standards will be. Proponents of the plan said it will make the city’s rules clearer for everyone, which will have a positive impact. Critics — council members Lori Droste and Ben Bartlett — said the new standards will slow down development and make it harder to build the housing Berkeley critically needs.
In November, officials asked Cowan for an opinion on the state’s Housing Accountability Act after the Bay Area Renter’s Federation sued the city over council’s rejection of a 3-unit proposal at 1310 Haskell St. The group said the project complied with city code so council did not have the authority to reject it. The group won a new hearing before city officials, but council again rejected the proposal, and a second court battle is underway.
Councilwoman Hahn said the idea is to close loopholes in the code because the Housing Accountability Act has limited the city’s discretion to shape projects in some cases. Defining the standards related to detriment, design review and other issues will preserve more local control, she said.
“We have a code that was designed with discretion as part of it. And all of a sudden we find, oh, we don’t get that discretion anymore. We better look at how that operates,” Hahn said.
Councilwoman Susan Wengraf — whose district includes the Berkeley Hills — said it would be helpful to have clearer standards related to views and how much those views can legally be impacted, which might lead to fewer appeals and a more efficient process. And she said parcel-specific density standards would also be useful. Berkeley is one of the few cities in the state that does not have them, officials said.
Wengraf said she was also nervous, however, about the scope of the work, which could take several years. The city’s planning department is already “struggling to just keep up,” she added.
“This is a huge undertaking. It’s probably as big as the General Plan itself because you have to go area by area, zone by zone, and it will take a long time,” Wengraf said. “I’m concerned about the financial implications of this.”
In his memo, Cowan noted that “the cost could be substantial” to flesh out the standards, but did not go into further detail.
Droste said the new standards, if adopted, will “lead to layers upon layers of discretion which will increase rents, make housing unaffordable, and will lead to more displacement.” She said there are already extensive codes, requirements and review boards in place. She expressed particular unease about making the detriment standards more specific.
“I argue that a shadow impact is not as important as providing homes for people. I strongly believe that,” Droste said. “These provisions just provide more of a basis to deny zoning-compliant housing in a housing crisis of epic proportions.”
Arreguín said Tuesday night that three of the ideas in the item came straight from the city attorney’s office.
Droste took issue with that. She said it was misleading to suggest the city attorney had given any direction to council about how to proceed.
“Yes, the city attorney provided an informational report, but he also doesn’t provide policy recommendations,” she said.
In fact, the Cowan report told council “No action is required,” and used careful language to describe “A few possible approaches” officials might take, rather than making specific recommendations. And the final idea from Arreguín and Hahn, to create more codified detriment standards, was not part of the memo.
Council members Wengraf and Linda Maio said they were sympathetic to Droste’s concerns about slowing down housing development, but said the item will come back later for a vote before anything can become part of the code. Wengraf said she believes the city’s ambiguous zoning ordinance has created “a great deal of turmoil.” She said she hopes clearer standards will simplify that for everyone. Councilwoman Kate Harrison said the idea is to “cut down on the bureaucracy.” The majority of the council agreed.
“We do want to have a much more predictable and expedient process,” Arreguín said. “We do want to get housing built.”
Councilman Bartlett said he generally would support those ideas, but is worried about the proposal’s potential negative impacts on housing, and its emphasis on the needs of homeowners over tenants. He also expressed concern about what the rules might do to limit the equitable spread of new housing throughout the city.
“I’m very wary of slowing down. And continuing this multi-decade tradition of exclusion, and corralling people into certain parts of town,” he said. “And, you know, this idea that, because you are a landowner, you have more right over this place than someone else, I just have a problem with. And I disagree with it fundamentally.… I want to move this body towards a more progressive housing policy. So I cannot support this.”
Bartlett and Droste opposed the proposal, and Councilman Kriss Worthington voted against the detriment item because he said he didn’t think the language included enough nuance. The ideas will now go to the Planning Commission, Design Review Committee, Zoning Adjustments Board and staff for further discussion and review before coming back to council for a vote that could change the code.
Worthington went to bat, early on in the meeting, for Arreguín, who took heat in the press last month for the downzoning idea in particular. Worthington said prior Mayor Tom Bates had upzoned and downzoned parts of the Southside district and downtown Berkeley without facing the same criticism.
“Jesse Arreguín says, ‘Let’s consider possibilities,’ and somehow he’s the devil incarnate,” said Worthington, who also decried the “sensationalistic responses to this topic, and what I see as the very unfair characterization of the mayor’s proposals.”
Arreguín said his primary goal is to provide “some clarity to existing rules that are in place that will be clear for developers and clear for the community — and preserve some flexibility for us to enforce our laws. And comply with the Housing Accountability Act.”
“The law is the law and we have to comply with the law,” he said. “We want to at least start the conversation around some of these issues.”