In a February 22 opinion piece regarding development near the North Berkeley BART station, the author echoes a longstanding Berkeley truism: “the process around development breeds conflict.” One of many reasons for this conflict stems directly from the fact that parts of Berkeley’s nearly 20-year old zoning code are in urgent need of updating.
After a recent year-long experience navigating the labyrinth of Berkeley’s permit appeals process, I discovered that sections of the city’s zoning code that protect existing residents and homeowners against the negative effects of overbuilding are outdated when compared to the codes of other comparable cities in California and the Bay Area.
As Berkeley wrestles with the effects of the region’s massive housing shortages and it’s own lack of affordable housing, the city must find a way to balance the need to increase density and build more affordable housing while still protecting those things that homeowners value in a home.
While perhaps this aspect of Berkeley’s public discourse is the one that often draws the most criticism and ridicule, it is nevertheless an aspect of zoning law that a large number of Berkeley homeowners who I’ve spoken within the last year do in fact deeply care about.
In order to guarantee that residents have proper access to things like clean air and sunlight, or can enjoy a quality of life that they deserve when they invest in a home or rent an apartment, zoning laws are necessary. The specific areas of zoning that come into play revolve around a term that planners and the zoning code refer to as ‘detriment.’
When a developer proposes to build a new structure or raze an existing home, the project is submitted to the Planning Department for a permit and review. Since there is the possibility that the proposed structure would block the light or view of neighboring properties, the project is reviewed and evaluated for its potential impact. If a substantial negative impact or a ‘detriment’ is found, the developer is usually required to modify the plan to correct the problem.
But one of the major problems is that Berkeley’s 20-year old zoning code does not contain objective standards to measure detriment, nor does it use objective terminology to define the conditions which can be considered ‘detrimental.’ In the case of sunlight, the planning staff, the Zoning Adjustments Board, and even the City Council often base their rulings on unverified secondary data like shadow studies, studies which in my case, were inaccurately drawn. They then proceed to base their ruling on a subjective interpretation of whether a project ‘unreasonably obstructs sunlight, air, or views.’ And not surprisingly, they ultimately fall back on precedent, the code word in years past for market-rate development.
Of course, in cases like these, the definition of ‘unreasonable obstruction’ is left open to subjective interpretation, wasting valuable time and city resources on lengthy debates. And in Berkeley, where the planning department is partially funded by developers’ permit fees, an arrangement interestingly referred to as ‘enterprise funding,’ it is no surprise that decisions, particularly those involving sunlight detriment, almost always go in favor of the developer or builder.
In a city where the lack of affordable housing remains a critical problem, Berkeley must come up with creative ways to build housing and increase housing density in such a way that will lead to affordable housing. At the same time, Berkeley must update and evolve its zoning laws to streamline the permitting process and protect the rights of existing home and property owners, whose taxes comprise roughly 1/3 of the city’s general fund revenues, so that residents can enjoy the sunlight and views that brought them to live in Berkeley in the first place.
David Ushijima is a firm believer in the need for affordable housing and the benefits of sunlight. He and his family are longtime residents of Berkeley.