The City Council has dropped a proposal that would have required property owners to provide off-street parking if they build a cottage or in-law unit in the Berkeley Hills, backing away from a potential conflict with housing regulators who said the requirement violated state law.
But the years-long debate over how to regulate accessory dwelling units in the fire-prone hills appears to be far from over. A set of updated regulations for the popular dwellings, approved by the City Council late Tuesday night, included a call to consider further changes to those rules once Berkeley has the results of a study now underway to examine how new housing could affect emergency evacuations from hillside neighborhoods.
The council also voted to:
- Raise the height limit for detached cottages in the hills to 20 feet, matching the cap in the rest of the city.
- Require homeowners citywide who want to build a unit in their front yard to set the dwelling back from the property line by 10 feet if they have enough space, a provision meant to prevent a repeat of projects like an ADU on Harper Street that sparked opposition from neighbors because it was built along the sidewalk.
- Keep a requirement enacted last year to notify the residents of adjacent properties when their neighbor seeks a permit to build an accessory unit.
- Ask city staff to collect more data on how accessory units are used and, in the case of units that are leased to tenants, how expensive they are to rent.
The question of whether to mandate parking for ADUs in the hills was the most contentious piece of the new regulations, though.
And the decision not to impose that requirement left Councilmember Susan Wengraf, who represents much of the hills and had pushed for the mandate, frustrated with both the city’s direction and guidance Berkeley received from the California Department of Housing and Community Development, which enforces state housing law.
“I’m actually disappointed that the council has not shared and respected my concerns,” Wengraf said during a lengthy discussion of the regulations Tuesday night. “I’m disappointed that this council is not willing to push back against HCD, which as I’ve said is uninformed, or misinformed, about the conditions in the hillside zone.
“I look forward to the results of the evacuation study, and I’m hoping that this entire council will support changes to the regulations in favor of the safety of our residents,” she added.
California’s ADU law prohibits cities from requiring property owners to provide off-street parking for an accessory unit if the property is within half a mile of any public transit stop, which is the case for all homes in Berkeley, leaving it up to the builder to decide if they want to include parking.
But Wengraf and others contended that the city — which has slashed parking mandates for other kinds of housing development — should require ADUs in the hills to include an off-street space to limit the number of cars that park on the area’s narrow roads, where they could block first responders or emergency evacuations.
Proponents of the mandate pushed for the city to employ a different definition of public transit that takes into account the frequency of service. Years of cuts to AC Transit have left the Berkeley Hills with sparse bus service, meaning that under the other definition, most properties in the area would have to provide parking for each new accessory unit.
“Why put more cars on the street when we have an option not to?” Wengraf asked her colleagues at a Sept. 19 meeting where the council first took up the regulation.
Other council members argued there are more effective ways to reduce the risk of fire and blocked roads than scrutinizing the roughly 20 ADU projects that are put forward each year in the hills, such as vegetation management or a program to prohibit parking at dangerous chokepoints that has long been in the works. They warned the attempt to impose a parking mandate is prohibited by state law and would not pass muster with housing regulators, who closely scrutinize local development rules and last year shot down another attempt to limit accessory units in the Berkeley Hills.
“The state ADU law is clear on this point,” Councilmember Rashi Kesarwani said at the Sept. 19 meeting. “I am very concerned that we are creating new legal risk.”
Four members of the council — Wengraf, Sophie Hahn, Rigel Robinson and Mayor Jesse Arreguín — voted to enact the parking requirement at that meeting, saying they believed the city’s rules would hold up to a challenge from the state. Four others — Kesarwani, Ben Bartlett, Mark Humbert and Terry Taplin — voted against it. Councilmember Kate Harrison was out of town at a conference, leaving the body deadlocked and pushing the issue to Tuesday’s meeting, two weeks later.
Between those meetings, the city got confirmation that state regulators weren’t on board with the parking mandate: Jamie Candelaria, a senior housing accountability manager with the Department of Housing and Community Development, sent Berkeley Planning Director Jordan Klein an email on Sept. 23 saying the proposed regulation violated state law. If it was adopted, Candelaria warned, the department would order Berkeley to change its ordinance.
City planning staff issued a new recommendation ahead of Tuesday’s meeting that in effect abandoned the parking requirement. The City Council could have tried to forge ahead with the mandate and mount a challenge to the state housing agency, but no members tried to do so on Tuesday.
“I think that every single person on this council has a sincere desire to balance the needs of providing both housing and fire safety,” said Humbert, whose district includes Panoramic Hill. “I believe there are differences regarding what actions are going to give us the most bang for our buck in terms of fire safety [and] whether going to bat against the state is the ideal approach — I don’t think it is.”
The council adopted the new ADU regulations with seven members voting in favor; two, Hahn and Wengraf, who had split with the rest of the council on other provisions of the regulations, abstained.
