Update, Sept. 20: The City Council deadlocked late Tuesday night on a regulation requiring property owners to provide off-street parking in order to build accessory dwelling units in the Berkeley Hills. Councilmembers voted to revisit that issue and the full set of updates to the ADU ordinance on Oct. 3.
With only eight of the council’s nine members present Tuesday night, there were four votes — Mayor Jesse Arreguín and councilmembers Sophie Hahn, Rigel Robinson and Susan Wengraf — in favor of the parking requirement, which was the most contentious provision of the regulations. Four other councilmembers — Ben Bartlett, Mark Humbert, Rashi Kesarwani and Terry Taplin — voted against it. Councilmember Kate Harrison, who was out of town for a conference, can break that tie at the Oct. 3 meeting.
Original story, Sept. 18: Berkeley is poised to loosen restrictions on building backyard cottages and in-law apartments in the hills after state housing authorities shot down an attempt to limit them last year.
But some are warning the city’s latest effort to draft regulations that balance housing needs and wildfire risk might draw another rebuke from Sacramento.
Meanwhile, city leaders are also considering dialing back a requirement for those who want to build so-called accessory dwelling units to notify their neighbors about their plans.
The City Council is scheduled to take up those issues and more Tuesday night in a set of updates to Berkeley’s regulations for accessory units, which have exploded in popularity over the past several years as new state laws and local ordinances have made it easier for people to build in their backyards. Property owners can get fast-tracked approval from city planning staff for accessory units, with no requirement for a public hearing or opportunity for a board or commission to reject their proposal, so long as it complies with zoning rules.
But the city has been grappling for years with regulations for accessory units in the Berkeley Hills, where officials are concerned that adding more housing, people and cars would make it even harder to evacuate during a fast-moving wildfire.
The City Council passed a set of regulations in 2022 that established tighter rules for accessory units in the hills than those in the flatlands, limiting each homeowner to building just one type of accessory unit — either a smaller attached unit, known as a “junior ADU,” or a detached cottage — rather than allowing someone to build both on the same property. Nine months later, the state Department of Housing and Community Development told Berkeley its rules violated California’s ADU law, which requires that cities allow both types of units to be built on a single property.
Rather than challenge the state housing agency, which in recent years has toughened its enforcement of laws meant to boost housing production, the updated regulations that will go before the City Council this week drop the attempt to limit homeowners to a single ADU in the hills.
City officials are still considering more stringent regulations for ADUs in those neighborhoods, however, including a requirement that hillside property owners provide off-street parking for each accessory unit.
Councilmember Susan Wengraf, who represents much of the Berkeley Hills, said that requirement is a “critical” step to limit the number of people who park on the narrow, curving roads in the area, which can impede access for emergency vehicles and could add to bottlenecks during an evacuation.
But the regulation would change Berkeley’s recent approach to parking requirements, as the city has slashed mandates for developers to include off-street spaces with new housing because they add to construction costs.
And perhaps more importantly, state regulators might find that it violates California’s ADU law.
At issue is a provision in the law that prohibits cities from requiring parking to build an accessory unit if the property is within half a mile of a public transit stop, which is defined as any bus or train station.
Wengraf and others say just because homes in the hills are near bus stops doesn’t mean people can get around without cars. Years of AC Transit service cuts mean some buses run as infrequently as once every 80 minutes, Wengraf noted, and don’t have any service during evening hours or on weekends.
“The hills are not well-served by transit,” she said.
City staff have proposed that Berkeley could craft its regulations using a different definition of public transit that appears elsewhere in state law, consider the frequency of bus service and use that as a justification to require off-street parking to build an ADU in the hills.
But staff warned in materials submitted to the City Council ahead of Tuesday’s meeting that it is “unclear whether or not HCD would support this interpretation.” And if the agency doesn’t support it, Berkeley could receive another letter like the one it got last fall ordering further changes to its ADU rules.
“They will probably also take issue with this ordinance,” predicted Dylan Casey, executive director of the California Housing Defense Fund, which successfully sued Berkeley over housing regulations under its previous name, the California Renters Legal Advocacy and Education Fund. Casey said the question of whether parking requirements should be in effect for the hills given their limited transit options is “a valid policy debate to have,” but contends the law is clear that Berkeley isn’t allowed to impose the mandate it’s considering.
On Monday, Councilmember Rashi Kesarwani filed a supplemental item to the City Council that recommended pausing consideration of the parking mandate, saying members need to receive “more information about whether the proposed ordinance is creating new legal risk.” Kesarwani’s item calls for the city to undertake a legal analysis of the regulation, consult with the Department of Housing and Community Development and complete a planned study analyzing how new accessory units could affect emergency evacuations, before considering the requirement.
While Wengraf said she isn’t sure how state regulators will react to the requirement if adopted, she argues it would be worth challenging the housing agency in court over its approach to wildfire safety.
“I can’t predict what HCD is going to do,” she said, but “I’m so concerned about public safety, I think it’s time for cities to start challenging HCD on some of these things — there are cities throughout the state of California that are very concerned, and I think that all of those cities should get together and challenge HCD on some of their mandates.”
Notification rules could change
The council voted last year to require city staff to send notifications to neighbors and any tenants of a property where an ADU is proposed, following complaints from residents who felt blindsided by projects that began without a heads-up from their landlord or neighbor.
But Berkeley’s Planning Commission earlier this year recommended the city drop the requirement to send notices to neighbors about proposed accessory units, and only require notification of any tenants living at a property being eyed for an ADU.
City staff say neighbors and tenants who receive notices have in some cases mistakenly believed they can challenge projects. And unlike other housing proposals, ADU applications aren’t available online, meaning anyone who wants to review their neighbor’s plans must visit the city’s Permit Service Center in person and have a worker show them the documents, which takes staff time.
It’s unclear whether the City Council will agree with the Planning Commission’s recommendation. Wengraf said she supports notifying adjacent property owners about ADU plans, and Councilmember Kate Harrison called the policy a “common sense and neighborly requirement” in a newsletter Monday.
“It’s simply about preserving relationships between neighbors and establishing mutual understandings about a given project,” Harrison wrote.
