Stored away in the file cabinets of City Hall is a series of binders dating back to 1916. These binders each contain several hundred pages of systematically organized documents in neat legal language. At the back of each section is a map of Berkeley with a small number on each property – R-1, C-1, M. This is Berkeley’s zoning code.
This living document, which has been revised about once a decade, is the template for development in Berkeley. It contains rules and regulations about how land can be used, where building can occur, what kinds of structures can be built, and how many people can live where. But the bureaucratic guidelines set forth by the zoning plan conceal its history as a tool for racial and class-based discrimination.
The guidelines set out in the zoning code served for many decades to separate the poor from the rich and whites from people of color. Some neighborhoods were zoned to only allow single-family homes; these became havens for the white and wealthy. The code allowed apartment buildings and duplexes in other neighborhoods, turning them into places for people of color and those on the lower end of the economic scale.
Prominent early 20th-century real estate developers “completely succeeded in creating a protected east side of Berkeley… getting the well-to-do away from the people and things and places that they did not like,” said Richard Walker, professor emeritus of geography at UC Berkeley.
The contemporary zoning code and the city itself still reflect the plan’s class and race-based origins. However, the intensifying housing crisis has prompted city officials and others to more closely examine how Berkeley’s zoning code has stratified residents by race, wealth and class. Four City Council members —Ben Bartlett, Lori Droste, Rigel Robinson and Rashi Kesarwani will introduce a series of measures on March 26 that might eventually allow for more density in neighborhoods like the Elmwood, Thousand Oaks, Northbrae and the Berkeley Hills, among others, potentially making them more affordable to lower-income residents.
“We need to reintegrate this city,” said Bartlett, whose legislation will help the “missing middle” such as teachers, restaurant workers, and others. “Trump is preaching this existential philosophy that is symbolized by the wall, this philosophy of division and we [the Berkeley community] fundamentally reject that. However, if we are really going to reject division coming from the White House, we have to reject it in our own communities.”
The history of zoning in Berkeley
The practice of city zoning emerged at the beginning of the 20th century as a result of large demographic changes. UC Berkeley was growing, attracting more students, staff, and professors. The 1906 earthquake in San Francisco drove thousands of refugees to Berkeley. The development of rail and ferry lines made Berkeley convenient for commuters from San Francisco and Oakland. From 1900 to 1920, Berkeley grew from 13,000 to 56,000 residents.
As the city grew, its physical landscape was built out. In the eastern part of Berkeley, which included the hills and the areas just below them, large chunks of land were developed, subdivided, and sold by real estate speculators. These developments were advertised as gated communities of sorts, and have since evolved into distinct neighborhoods. Duncan McDuffie and his company Mason McDuffie Company was one of the most prominent of these “community builders.” He developed the neighborhoods of Claremont, Northbrae, and later San Pablo Park. Other residential parks included Cragmont, owned by the Berkeley Land Company, Thousand Oaks owned by Newell Murdoch Company, and Berkeley Highlands, owned by Meikle, Brock, and Skidmore.
Private deed restrictions that prevented racial minorities from owning or living in the neighborhoods made them mostly upper class and exclusively white. A 1912 pamphlet by the Berkeley Highlands touted how buying property in the Berkeley hills was a good investment because of (1) the amenities of the neighborhood, (2) the restrictions that make it the “cream” of North Berkeley with “No Asiatics or Negroes,” (3) the access to transportation, and (4) the scenery.
In 1915, the Civic Art Commission, which included members of the Berkeley elite, manufacturers, and two UC Berkeley professors, hired a world-famous German architect named Werner Hegemann to suggest a land use plan for Berkeley and Oakland. In his 1915 “Report on a City Plan for the Municipalities of Oakland and Berkeley,” Hegemann recommended developing a “chain of parkways, playgrounds and parks” stretching roughly from Masonic Avenue to Shattuck Avenue and running from the Albany to the Oakland borders. The purpose of this chain of parks was to protect the wealthier and residential parts of east Berkeley from “whatever undesirable feature, may come with the advance of industries on the waterfront.”
Sonia Hirt, in her book, Zoned in the USA: The Origins and Implications of American Land-Use Regulation, wrote, “In the early 1900s, the racially and ethnically charged private restrictions of the late nineteenth century were temporarily overshadowed by the rise of municipal zoning ordinances with the same explicit intent.”
Marc A. Weiss wrote about the role of McDuffie and other land developers in the rise of zoning in Berkeley in a 1986 article published in the Berkeley Planning Journal. In McDuffie’s view, Weiss explained, “the purpose of the Civic Art Commission was to utilize the precedent of private restrictions to create public zoning.” Those private restrictions explicitly barred the inclusion of non-white residents.
“The adoption of a district or zone system by Berkeley will give property outside of restricted sections that protection now enjoyed by a few districts alone and will prevent deterioration and assist in stabilizing values,” McDuffie stated in a 1916 lecture at the University of California.
McDuffie was not the only person who saw zoning ordinances as a way to protect the character of certain districts. Zoning spread throughout the United States at the beginning of the 20th century in large part as a way to protect private property from public interference, wrote Hirt. It was “a public guarantee of the sanctity of America’s most idealized housing form: the detached private home.”
In 1916, the California legislature passed the City Planning Enabling Act that gave cities the power to zone their own land. Berkeley’s mayor asked those who served on the Civic Art Commission to explore creating a zoning ordinance. He appointed McDuffie chair.
“Protection against the disastrous effects of uncontrolled development” with the “so-called zone system,” will prove “of vital importance to every citizen of Berkeley,” McDuffie said in a March 1916 address that was written up in the Berkeley Civic Bulletin. “The fight against the Chinese wash-house [in Los Angeles] laid the basis for districting laws in this State.”
For McDuffie, strategic zoning had the potential to solidify the racially restrictive neighborhoods in which he had a monetary stake. He feared that without this tool, the sanctity of the more affluent, eastern sections of Berkeley would be overrun by development. That might jeopardize the specific character of the residential parks that was so key to their marketability.
“In the United States, private profit as a result of zoning ordinances that preserved and enhanced ‘investment values’ was not only fully expected, it was a major zoning goal,” according to Hirt.
That went for the residents of high-value neighborhoods in Berkeley as well. The Elmwood district, adjacent to Claremont, one of McDuffie’s largest land holdings, is an example of this. It was built between 1905 and 1910 with five-year private deed restrictions. The residents of Elmwood, as well as real estate developers like McDuffie, were anxious about the “invasion” that might ensue when they expired, wrote Weiss.
Berkeley passed one of the first districting ordinances in the country in 1916.
With help from McDuffie and the Civic Art Commission, Berkeley passed one of the first districting ordinances in the country in 1916. The plan included districting much of East Berkeley as low-rise residences, single-family homes, and much of West Berkeley as industrial, non-residential districts. Designed by developers and owners of expensive homes on the east side of the city and developers and owners of factories on the west side, Berkeley’s zoning law primarily benefited them.
The commission was composed of seven people including Duncan McDuffie, B.J. Bither, a West Berkeley manufacturer, J. W. Gregg, a UC Berkeley professor in the landscape architecture department, and Charles Henry Cheney, an architect and a city planning consultant.
In 1919 the Civic Art Commission presented its “Proposed Comprehensive Zone Ordinance For the City of Berkeley, California” to the City Council, which stated purpose was “to ensure the permanency of character of districts when once established, to stabilize and protect property values and investments.” The official comprehensive plan would be extended to the entirety of the city in 1920.
The effects of the plan bore consequences for citizens of Berkeley. Elmwood was the first district to be designated for only single-family residences (the second district to be designated as such was Northbrae, McDuffie’s other large development). The ordinance made it “unlawful to carry on certain trades or callings,” and it was enacted “to prevent a prominent negro dance hall from locating on a prominent corner,” according to Weiss.
Two Japanese laundries and one Chinese laundry were kicked out of downtown because their establishments no longer were legal where they stood, found Weiss, resembling the case of zoning in Los Angeles that McDuffie cited as an inspiration.
A petition to explicitly remove “Chinese laundries” from a district near downtown Berkeley was circulated in 1916, according to a Berkeley Daily Gazette article published on Dec. 15, 1916. Regarding the petition, McDuffie, on behalf of the Civic Art Commission, said “the property owners and residents… should be given protection by the city government against the nuisances from which they have suffered for many years.”
In 1917, the United States Supreme Court ruled in the Buchanan v. Warley decision that it was illegal for municipalities to use zoning for purposes of racial segregation. Yet because Berkeley’s zoning plan was not explicitly racial, the ruling did not stop Berkeley from being zoned for low-density in East Berkeley and high-density in the flats in order to maintain the racial and class order.
“The classic and explicit arguments for zoning were the need to ensure public safety and protect the health and the general welfare of the population,” wrote Hirt. However, “racial and class prejudices played a key part in the emerging zoning story, since it was minorities and the poor who were perceived as the greatest danger to property values in general and to single-family residential areas in particular.”
Zoning was not the only mechanism used by private interests to segregate the city for their benefit. Racially restrictive covenants, which were fundamental to the development of the zoning plan, and later redlining, shaped Berkeley to a large degree. In 1925 and 1926 the California Real Estate magazine praised the Berkeley Realty Board for its “service” to the “community at large” for its ability “to organize a district of some twenty blocks under the covenant plan as protection against invasion of Negroes and Asiatics.”
The vision of McDuffie and the real estate owners of East Berkeley was largely achieved. Through legal means, they created a plan for land use that reinforced the racial and class divisions from which they directly benefited. Unlike restrictive covenants and redlining, the zoning code remains today.
The legacy of early 20th-century zoning laws
What are the effects of this history? To what degree does Berkeley’s current zoning code uphold these racial and class-based divisions? How does it affect the housing crisis?
Over the last century, Berkeley’s zoning code has changed a bit. In 1949, Berkeley hired a consulting firm to revise its zoning ordinance, according to a 1973 article published in the Berkeley Hot Line. The firm proposed to limit single-family housing to the hills and east side, upzoning the flatlands to allow more density, and creating a “buffer” duplex zone around the hills. The City Council adopted these proposals in 1949, continuing the zoning practices that developers such as McDuffie explicitly used to segregate Berkeley.
The broader land use of the city has remained constant. The east side remains exclusively zoned for single-family homes (R-1). The commercial areas of University Avenue and downtown (C) are surrounded by relatively high-density living (R-4, R-5). The flats are mostly zoned for duplexes and multiplexes (R-2, R-3). Most of Berkeley’s industry remains near the waterfront (M and MU-LI).
Changes were instituted south of the campus. After WWII single-family homes were split up into student rentals and a lot of three to six-story apartment buildings moved into formerly single-family neighborhoods.
However, portions of West Berkeley and the San Pablo Park area, two historically low-income districts, were also zoned to allow single-family homes, which is a major departure from the Civic Art Commission’s original plan. Also, the city in its entirety has been down-zoned to less dense residential designations.
Land use maps for years 1949, 1975, and 2016:
Today, the parts of Berkeley that have been zoned for single-family homes and low density, are the most expensive areas and house the wealthiest and whitest Berkeleyans, while areas with higher density generally are occupied by relatively lower income residents. However, even the historically low-income parts of Berkeley are unaffordable for many working-class people.
As Walker describes it, “the hills remain rich and very white and the flats remain the province dominated by workers, employment, and commerce.”
2016 American Community Survey demographic data:
“The problem with zoning is that it tends to try to hold things, freeze the city in its current form,” said Walker, who explores some of these issues in Pictures of a Gone City: Tech and the Dark Side of Prosperity in the San Francisco Bay Area. In that way, he argues, restrictive zoning in Berkeley has helped to solidify the racial and class divisions that have long since existed – designed by early Berkeley developers and maintained by the actions of homeowners, realtors, and the city government.
The history of restrictive zoning and NIMBYism, as Walker sees it, is closely tied to the suburban ethic that Berkeley has long held. Berkeley for a long time was a commuter suburb to Oakland and San Francisco and, as suburbs do, valued a low-density lifestyle. And this has to change, he said.
“Berkeley is no longer a suburb, it is part of the central core city now and it needs to get denser,” says Walker. “We can’t simply cling to that old suburban idol of the past and our same little single-family-homes.”
A New York Times article explains that Berkeley’s zoning code is accompanied by neighborhood activism and procedural roadblocks that make it hard for developers to build.
“Berkeley puts housing developers into a labyrinth of public hearings and appeals that either kills projects or makes them less affordable,” Randy Shaw, a longtime housing activist and author of Generation Priced Out: Who Gets to Live in the New Urban America, told Berkeleyside. “Promoting inclusion and racial diversity by adding housing units has been a subordinate concern.”
Walker is not an advocate for building at all costs. The key, he explains, is to densify the Bay Area in the right way, creating opportunities for middle and low-income-earners to move in and protecting those who remain from displacement. As Walker argues in his book, the sort of building that YIMBYs [supporters of “Yes In My Backyard”] champion will not alleviate the crisis for the lower 80 percent of income-earners. Because there is such a high demand for housing in the Bay Area, rushing to build market rate or luxury housing will do little to alleviate the regional demand, especially for the majority of the population who would not be able to afford market rate housing anyway, he said.
Additionally, if strict zoning rejects large scale development in wealthier, low-density areas, it also leaves vulnerable areas that do not have those protections to neighborhood change and gentrification. Walker spoke about the MacArthur BART housing project, a transit-oriented project similar to proposals for North Berkeley and Ashby BART stations. While the housing project certainly added density, it is now gentrifying and, according to him, the project has probably accelerated that.
“If you’re going to have transit development and force it down the throats of local governments as Scott Wiener, for example, would do, there should be an element of any such bill that provides compensation for anyone displaced or creates a rental freeze for 10 years on all existing properties,” says Walker. “There are ways that you can protect people or cushion the blow for people displaced.”
While exclusionary zoning has often been used by the powerful and wealthy to cordon off districts from the working class, land use restrictions can also be used to prevent the working class from displacement. Walker points to examples such as the Tenderloin, parts of Noe Valley, and Chinatown in San Francisco as neighborhoods of high demand where people have not been displaced in part because of restrictions on development.
“It has been done, it can be done, and it needs to be done in many cases to protect historic neighborhoods or poor neighborhoods,” explains Walker. “You can throw a cordon around them and not allow certain kinds of development in.”
The City of Minneapolis recently voted to end single-family zoning as an effort to breach racial and social barriers within the city that have negatively affected the city’s communities of color. The city has challenged the need for protecting single-family home neighborhood character, and they are not the first.
“Europeans don’t have anything like single-family home zoning,” says Walker. “They have use zoning, protective zoning. You don’t want steel mills next to people’s houses. There is a good reason for that. So they manage to have protective zoning without this incredible emphasis on single-family zoning. And if we get rid of single-family zoning, I doubt that the world will come to an end or our neighborhoods will all collapse.”
The group of City Council members wants Berkeley to study the impact of allowing property owners to add a unit, or several, to single-family homes, as well as to build duplexes, triplexes, courtyard apartments and townhouses on single-family lots. The report could eventually lead to zoning reform.
If homeowners take advantage of those changes in the zoning code, Bartlett would like them to be sold to a “city worker, teacher, or a person of moderate income.” The council members believe these changes will help address the regional housing crisis and displacement and correct historically exclusionary zoning practices.
This initiative, he said, would create an “onramp into the middle class for young families and people of color,” diversify Berkeley, “prevent displacement because owners don’t get displaced,” and “allow our city workers to live in the city they serve.”
“We criticize wealth concentration a lot. We talk about income inequality a lot. But the root wealth and the basis of all wealth is land. And, so when the land is hoarded and concentrated into a few hands, we are playing into that which we criticize. And it’s at the point now that so many people are effectively barred from land ownership.”
Jesse Barber is a lifetime Berkeley resident. He attended Oxford Elementary, King Middle and BHS before going to Brown University where he is currently majoring in Urban Studies. This summer, he received a Royce Fellowship which he used to conduct independent research on the history of race and class-based housing segregation in Berkeley and its effects on the housing crisis today.
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