Jodi Nishimura is looking forward to enjoying a view of the Berkeley Hills from a corner window in the house she’s planning to build in her Elmwood District backyard.
Zaytuna College, a small Muslim institution high in the hills, hopes to provide affordable housing for faculty and staff by building a duplex on a vacant lot near its campus.
Tamara Manik-Perlman isn’t planning to build anything right away, but wants to split the lot where she lives into two parcels so she could eventually add another home for her mother.
Those are a few of the projects put forward by Berkeley property owners looking to take advantage of the highly touted state law known as SB9, which eliminated single-family zoning throughout California.
But for all of the attention the law received when it was passed in 2021, it has gotten off to a slow start across California and here in Berkeley.
As of mid-March, the city’s planning department had received just 12 proposals to build housing under SB9 since it took effect at the start of 2022, according to data obtained by Berkeleyside. None of those projects has been built.
The law requires cities to automatically approve proposals to build up to two homes on a property, or split a larger parcel into two lots. It’s meant to allow slightly more dense development in neighborhoods that were long zoned exclusively for single-family homes, and also makes the approval process faster and simpler for would-be builders.
Nishimura, a real estate agent, had mulled the idea of building a smaller cottage in her backyard for years — until SB9 came around.
“I basically scrapped that plan and pivoted to SB9, because it’s just better for my family’s purposes,” Nishimura said.
She hopes to break ground on her new, more energy-efficient house later this year, and plans to live there while renting out her current home to family or a tenant.
While interest in SB9 has been tepid, city officials are working now to develop new local zoning regulations that would be much more permissive than the state law in allowing smaller apartment buildings in Berkeley’s less-dense neighborhoods. Those rules, which could be adopted later this year, may prove more enticing to builders.
Still, the list of a dozen projects proposed under SB9 so far reveals some interesting trends about where and what Berkeley homeowners want to build under one of California’s most sweeping and controversial housing laws.
There aren’t many SB9 projects in Berkeley
Supporters of SB9 argued the law would be a significant step toward resolving California’s housing shortage. But it has a long way to go before it lives up to that potential.
The 12 Berkeley projects that sought approval under the law would create a total of 19 new homes — if they were all built.
By comparison, in 2022 the city issued permits for 180 accessory dwelling units, the popular housing category that includes backyard cottages and basement apartments.
And two of Berkeley’s SB9 projects, representing five homes, are in limbo. Berkeley planning staff told one property owner their plan to build a house and ADU on a vacant lot in the Berkeley Hills didn’t qualify for fast-tracked approval under the law because it called for cutting down a protected coast live oak. Another proposal, to build a three-unit building in a North Berkeley backyard, is the subject of ongoing negotiations between city staff and the would-be builder.
Oakland has similarly seen very little new housing proposed under SB9, and UC Berkeley’s Terner Center for Housing Innovation also found few projects sought approval through the law in an analysis that covered 13 cities across the state.
Muhammad Alameldin, a policy associate at the Terner Center who co-authored the analysis, said it’s not surprising that more people are trying to build ADUs than use SB9.
The law only applies to properties that were previously zoned exclusively for single-family homes — a zoning category covering about half of Berkeley — while ADUs can be built in any residential neighborhood. And Alameldin noted an entire industry has sprung up to help homeowners build backyard cottages, and the state and local rules governing ADUs have been revised several times over the years to make them more permissive.
“ADUs are so much easier,” he said. “It’s smaller, it’s less of a financial lift and they’re eligible on a lot more parcels than SB9.”
Berkeley Planning Director Jordan Klein echoed those points. SB9, Klein said, “is still relatively new — and it’s not the simplest piece of legislation in the world.” He also noted economic conditions such as rising construction costs could be making projects too expensive for homeowners to pursue.
Alameldin’s analysis recommends local governments and the state Legislature adopt laws and regulations that would further clarify and loosen rules for developments under SB9, a step Berkeley is taking with its planned zoning changes.
“If they keep doing reforms, similar to what they did with ADUs, I can imagine a lot more SB9 developments,” he said.
Most proposed projects are in wealthy areas, particularly the Berkeley Hills
When SB9 was being debated in Sacramento, one front of opposition to the law came from groups that worried it could fuel speculation and gentrification in California. Many worried developers looking to take advantage of the law would focus on less-wealthy neighborhoods, scooping up homes and properties for cheap and redeveloping them to reap profits.
So far in Berkeley, though, the law hasn’t played out that way.
Ten of the 12 proposals are on lots in ZIP codes where median household income is over $100,000 — including eight in the North Berkeley hills and two in the Elmwood District, the neighborhood where single-family zoning was pioneered more than a century ago.
Only one proposal is in a neighborhood where UC Berkeley’s Urban Displacement Project estimates low-income renters are especially at risk of displacement: Manik-Perlman’s plan to split the lot she owns in Southwest Berkeley.
Alameldin said his research found a similar pattern around California, as more homeowners submitted applications for projects in the wealthy suburbs of Danville and Saratoga than in far larger cities such as San José and Sacramento. He said that could be because SB9 projects are more attractive in wealthy suburban areas, where higher property values mean landowners have more to gain from splitting parcels or building new homes.
To Alameldin, the concentration of projects in wealthy Berkeley neighborhoods is a sign the law is working as intended to provide more homes in communities where single-family zoning and high housing prices have historically been a means of exclusion.
“It’s adding homes to wealthier places, or formerly exclusionary areas,” he said. “It allows more people to live in these higher-opportunity areas.”
Berkeley’s zoning map is likely also playing a part in this trend.
Remember, SB9 only applies in areas that had single-family, or “R1,” zoning — most, though not all, blocks with that designation are in historically wealthy areas, such as the hills. Many of the city’s less-wealthy neighborhoods, including most of South and West Berkeley, were already zoned for greater housing density, so projects there aren’t eligible for streamlining under SB9.
It remains to be seen whether this pattern will continue once Berkeley adopts its local zoning changes, which would apply in every residential neighborhood.
Single-family homes are still the norm
Opposition to SB9 also came from suburban cities that feared the law would change the character of their neighborhoods by opening the door to greater density. The law would allow the owner of a single-family lot to split the property into two parcels and build a duplex on each — creating four homes where once there could be only one.
No projects in Berkeley have taken SB9 to that extent. And it is hardly fueling an explosion of density: nine of the 12 proposals seek approval to build detached houses, five of them with ADUs.
Ironically, the law widely viewed as moving California away from single-family homes has made them easier to build.
“The provision to allow streamlining for single-family homes seems incongruent with the stated intent of the law,” Klein said. “That part confuses me a little bit.”
More pointed critics regard that as a loophole. Some neighbors of a home on Indian Rock Avenue designed by the architect Walter Ratcliff have complained that a proposal to demolish the house and build a new single-family home in its place was fast-tracked for approval under SB9, noting the project wouldn’t create new housing.
The home’s owner, Greg Emerson, says the tear-down is necessary because of extensive problems with mold and the foundation of the home he bought in 2019, plus requirements to bring it up to modern fire safety codes. Emerson said he submitted plans for his project expecting to go through the longer use permit process, only to learn from planning staff that SB9 would speed up approval.
“It was news to us,” he said.
Those factors could also change with Berkeley’s planned new zoning rules.
A draft proposal presented to the City Council last fall would speed up the permitting process for a much wider variety of multi-family housing than SB9. While the state law only goes as far as allowing duplexes and giving them a path to by-right approval, under the proposed Berkeley regulations someone could automatically get the OK to build a three-unit building on a 5,000-square-foot lot zoned R1, or a six-unit apartment building on the same sized lot in areas zoned R2A.
The regulations are expected to go before the Planning Commission this fall, Klein said, and could get final approval from the City Council before the end of the year.
One kind of housing would be more difficult to build under the new rules, however: single-family homes.
Property owners could still build houses under the law, but Berkeley’s regulations would require them to go through the use permit process for approval. The days of SB9’s streamlined permitting would be over.
