An ADU built behind a home in Berkeley by McDunn ADUs. Owner Dan McDunn said the regulations around building ADUs are so complex, “it is impossible to know it all.” Photo: McDunn ADUs

“Frustration.” That’s the word Leon Wong uses to describe his feelings as he tries to get a clear answer on whether he can put a second story on the accessory dwelling unit he plans to build behind his South Berkeley home.

New Berkeley city ordinances purport to make it easier to build such units, often known as granny flats or in-law apartments. Homeowners, builders and advocates say that while in many ways the new ordinances smooth the way, rough spots remain, as Wong’s situation shows.

“The ADU laws are changing so fast, it’s hard for experts to keep up with them,” said Wong, who is working with longtime Berkeley-based ADU builder New Avenue Homes. Also, “my architect warned me permitting could take four to six months. I’m hoping that’s not true,” the tech worker said.

Meanwhile, Wong is scouring city documents in hopes of finding a loophole that will allow him to build the second story. If he can’t find one, he’ll have to demolish the 240-square-foot detached garage he had hoped to remodel and build from scratch.

The California legislature in 2016 amended state laws, requiring cities to make it easier to build ADUs. Last year, the Berkeley City Council amended the city’s ADU ordinance to comply with the state law. Another, more recent change: The council passed a new ordinance in May allowing ADUs to be up to 850 square feet, up from 750, and clarified some design guidelines.

The good news: The numbers show that the 2017 changes have already had an impact. In 2016, Berkeley permitted 14 ADUs. Last year, that number more than quadrupled to 57. City officials estimate that more than 100 applications were filed in 2018.

On the other hand, Wong and others seeking to build ADUs in Berkeley have encountered long delays and other problems.

An architect who was a pioneer in building ADUs said it’s a mixed bag.

“I think some of what we have seen is that yes, at the planning level it has gotten easier if you meet all the requirements,” said Carrie Shores of Oakland’s Larson Shores Architecture and Interiors, which has been designing ADUs for about nine years.

However, Shores said her firm has several clients who have gone to the city about building an ADU “and the city planners aren’t exactly sure and are changing their minds about what to enforce and not to enforce.”

Another challenge: “Clients are getting different information depending on (which clerk) they talk to,” the architect said.

Dan McDunn, the owner of McDunn ADUs in Berkeley, said the regulations are so complex, “it is impossible to know it all.”

A planner brought out her ADU ‘cheat sheet’ and it was a one-inch-thick binder.

On a recent visit to the planning desk, when McDunn asked a question of a planner, “she brought out her ADU cheat sheet and it was a one-inch-thick binder. It’s the multitude of rules and regulations that have existed historically coupled with changes that have been fluid. There have been multiple changes post-state law.”

Under those circumstances, it’s understandable that some clerks might interpret the changes differently than others, McDunn said.

Eric Haesloop, a partner at architects Turnbull Griffin Haesloop, designed and built an ADU in the backyard of his Elmwood home in 2014, before the new ordinances came into play.

“We have a typical Berkeley lot, deep and narrow – longer than it is wide,” he said. “We wanted to show that with good design and ingenuity, you can build denser and improve your site.”

The architect designed an ADU flooded with light. “You can do cool things with bringing light in, making it airy. It’s filled with light and has views on both ends. The gable makes it feel tall, even though it’s only one story.”

Haesloop spoke highly of the assistance given him by planners but said the process would have been much faster if he had done it in 2018.

“The new laws have made it substantially easier to build an ADU,” Haesloop said. “And they have removed one significant cost barrier, the sprinkler system.”

When the architect built his ADU, he was required to install a sprinkler system, a significant cost item. The new state law says fire sprinklers cannot be required if they are not required in the primary unit, and Berkeley ordinances echo this.

Haesloop also had to add a parking space, a requirement that no longer exists. The planners helped him get a variance which involved tandem parking, but this involved a number of steps and slowed the process down, he said.

Architect Eric Haesloop built an ADU in his Elmwood backyard in 2014 when the rules were more stringent. “The new laws have made it substantially easier to build an ADU,” he said. Photo: David Wakely

The new state law prohibits parking requirements for ADUs if they are located half a mile from public transit.

“In Berkeley every single home is somewhere within half a mile of some kind of transit stock and therefore, for literally every single-family home in Berkeley, the city cannot require additional parking when they build an ADU,” said Loni Gray, a member of the Accessory Dwelling Unit Task Force, a Berkeley group of advocates and businesses that build ADUs.

Gray speaks regularly to homeowners, architects, buyers and government agencies about the new state law. Overall, Gray is bullish on the law, which she sees as a potent new tool.

She says the new law has empowered cities to partner with their residents to add housing, and that it and other changes to Berkeley’s ADU ordinances have made the process easier because barriers have gone away.

However, she acknowledged that Berkeley’s new rules aren’t perfect.

While the new law says the planning process must take no more than 120 days from submission to approval, the law doesn’t have provisions for enforcement, the ADU advisor said.

Gray is hoping the legislature will address this. Meanwhile, she acknowledged that it still takes a long time to get a permit to rebuild.

There are different voices at the planning desk, meaning people get different responses about what they can and can’t do, she said. To address this, Berkeley should designate one dedicated ADU expert at the planning desk.

Another regulation seems to doom Wong’s dream of building a second story: “You cannot build a second story (in Berkeley) because you need 18 feet or so,” said Gray, and in Berkeley, the height limit is 14 feet.

However the city is set to examine garage-to-ADU conversions more closely, so some changes may be forthcoming.

“One of the directions the City Council has given city staff is to look further at the process of converting garages to ADUs,” said Timothy Burroughs, director of Berkeley’s planning department. “Council and planning staff understand that the process of converting garages can be clarified and streamlined and these are steps we will be taking in 2019.”

Burroughs added that the council has been modifying the ADU law as it becomes clearer about what works and what doesn’t. That is one reason that the maximum size went from 750 to 850 feet. Berkeley also no longer requires that ADUs have to be smaller than the main house. Council also expanded the zoning districts in which ADUs are allowed beyond residential districts to include commercial and mixed-use residential, Burroughs said.

“With the pace of change, it’s hard to keep up with the rules.” — Planning Director Timothy Burroughs

With regard to Gray’s comment about inconsistent information, Burroughs said: “State law and city law have changed quickly. I think there are cases where people came in and asked for information about the processes around the rules, and in the interim, the rules changed. I can see how this would cause confusion for the applicants,” Burroughs said.

The planning director said, “With the pace of change, it’s hard to keep up with the rules.”

Regarding McDunn’s comment about the Byzantine laws governing building, he said: “The rules around any type of development an applicant might wish to build, whether a home, an apartment or an ADU, the rules are very complex, the zoning codes and development codes are complicated.”

The planning director said his department is working on providing as much information as possible to applicants when they show up at the counter. To that end, a FAQ section has been posted on the city website.

Burroughs also acknowledged that the department has seen some turnover. “We are hiring at the beginning of the new year,” he said.

A former planning director said the new rules are a work in progress.

“It’s like playing whack-a-mole,” said Debra Sanderson, who now chairs the ADU task force. “When you come up with ways to make something easier, other obstacles become apparent and then you have to go through another round of legislation to remove those obstacles.”

Janis Mara covers East Bay real estate as a freelancer for Berkeleyside. She has worked at the Oakland Tribune, the Marin Independent Journal, the Contra Costa Times, Adweek and Inman News, an Emeryville-based...