Page One

In a prior column that ran on the Daily Planet Web site, I wrote about the genesis of state law mandating an easier local process for the development of in-law units in single-family homes, and about some of the factors to be considered in Berkeley as we implement the state-mandated changes. 

The Planning Department and Planning Commission, working with unusual speed (to meet the purported state deadline of July 1, 2003), have produced a draft of proposed changes and are holding a public hearing on May 14.  

Following are some comments and questions with respect to the proposed changes for accessory dwelling units (ADUs). 

Under current zoning rules, all habitable accessory space that is rented, contains cooking facilities, or is used as a dwelling unit is effectively subject to the use permit/public hearing process. Under the proposed ADU rules, the standard of review will, for the most part, move down to an administrative use permit (AUP)/zoning officer level. There will be some instances when all that is involved is a by-right zoning certificate (issued with the building permit). 

However, under the current Berkeley permitting process, the AUP itself is potentially subject to appeal, ZAB review, public hearings and City Council. But, given the existence, mandate and direction of the mayor’s Permitting Task Force, the AUP process may well change in the direction of little or no opportunity for appeal. 

Parking! Under current ADU rules, one goal of the strict set of parking requirements is to avoid the worsening of parking problems and to reduce the amount of on-street parking. But larger city parking policy is in a cycle of change and we have no way now of knowing how the larger city parking policy will interact with old and new ADU rules. For example, are we going to establish auto limits per residential dwelling or per registered driver? Are we going to encourage more parking off-street and in garages? And so on. The proposed ADU rules call for a determination by the fire department that the new ADU is located on an “unconstricted street.” What does this mean now and what will it mean in the future? Hypothetically, we could ban all cars, then all streets would be unconstricted. Or we could force everyone to actually park in their garages—but then this would diminish the opportunity for garage conversion to an ADU! Although I personally support some reasonable limit on the number of cars per household, my nightmare is the elimination of a homeowner’s right to either own a car or to park it gratis in front of their highly taxed home. 

While the proposed ADU procedure for approval of “tandem parking” is explicit, there is also a provision for a complete “parking waiver.” I believe that a parking “waiver” is an entirely new ADU concept and one not required by AB1866. This certainly needs more discussion. 

The draft ADU rules appear to contain no reference to any findings of “detriment” to neighbors. Does this mean that an ADU is now entirely exempt from review of detriment (i.e. impairment of light and air for neighbors)? There is also no larger reference or citywide policy context for the ADUs. For example, will the new ADUs be subject to regular rental safety inspections or simply treated as a private adjunct to the private home? What about rent control and ADA requirements? 

I have noted that the state Legislature is having some second thoughts about the various new laws limiting local control of “development” and promoting state-imposed superceding guidelines, all in the name of “affordable housing” and all supported by a cozy but not necessarily unholy alliance of developers and advocates for increased population density. In fact, the timetable for the new ADU rules may have been moved back by another year. This should be carefully researched by our planning personnel before we rush pell-mell into new rules.  

Barbara Gilbert is a Berkeley resident and occasional contributor to the Planet’s Commentary Page.