Commentary: Clarifying My Position On By-Right Projects By LAURIE CAPITELLI

Friday January 13, 2006

Recently there has been a good deal of discussion about the “by-right” exemption to Berkeley’s general policy of discretionary review for conforming residential additions under 500 square feet. Since there seems to be quite a bit of misunderstanding about my position and about the limited scope of the proposals being considered by the City Council, I’d like to make clear my own view of the matter. 

I do acknowledge that there is a problem, and that the current “by-right” exception has flaws that should be addressed. I am all too familiar with the litany of second story additions, primarily in the hills, that have seemingly intruded into views and privacy, leaving festering wounds in previously amicable neighborhoods. It is painful to witness and consumes tremendous amount of staff resources and constituent goodwill.  

But, as a general principle, I’m opposed to adding new layers of discretionary review to the Berkeley permitting process. Such a review adds significant time and expense to the planning process, and may not be warranted with most of the small projects requesting approval. In my many years as a member and chair of the Planning Commission and the Zoning Adjustments Board I saw first hand the unnecessary costs and discord that are created by unending review of new projects. Our highest priority should be a process that is fair, predictable and efficient, so that citizens can plan their time and their resources accordingly. 

Berkeley’s General Plan directs us to both encourage construction of more housing space (in part through residential additions) and to protect the quality of life in our neighborhoods through careful zoning decisions. The dilemma in regulating these small projects is that homeowners want some envelope for expansion free from bureaucratic oversight, expense and public scrutiny, while “neighbors” (often the same property owners) want some consideration regarding adjacent structures that could impact their light, their view and their privacy. But no one has an absolute legal “right” to stop an addition, nor an absolute “right” to build one without consideration of the public good. This is a quality of life issue for everyone, that leaves city staff, and ultimately the City Council, with a Solomon-like challenge to create balanced zoning laws that protect rights for all the city’s citizens.  

The issue now before the City Council is a narrow one and involves a relatively small percentage of “by-right” projects: those in which a second or third-story addition less than 500 square feet would significantly impact surrounding neighbors by drastically changing their access to light, air, privacy or views—whether from the flatlands to the Berkeley hills or from the hills to the Bay. The current law is completely one-sided because it gives no consideration of these impacts to the affected neighbors. That is just as wrong as it would be to give those neighbors the right to veto a proposed addition. 

I believe we can do this fairly, avoid costly discretionary review, and build good neighbor and neighborhood relations. Some possible ways to accomplish this are to adopt objective standards for second story and higher additions based on the slope of the land and other measurable factors (as some neighboring cities have done); require neighborhood notification prior to the project; make frivolous and unreasonable appeals significantly more expensive in order to reflect their true cost to the city, and by reforming the entire permitting process so that it moves expeditiously in all cases. (In 2003-04 I chaired the mayor’s Task Force on Permitting and Development and created a plan to streamline Berkeley’s cumbersome permitting process. I’m proud that our proposals are now being considered and adopted by the Council.) 

Though the emergency moratorium on these projects proposed by Councilmember Olds did not find the adequate council support, she deserves credit for bringing this issue to the front burner, after years of inattention. Good policy-making shouldn’t take years, and I intend to ensure that is the case here. I’ve proposed a six-month deadline for adoption of a final ordinance addressing this issue, and I look forward to the planning director’s report on Jan. 17 and his recommendation as to when the Planning Commission can have a proposal to City Council ready for adoption. 


Councilmember Laurie Capitelli represents Berkeley’s District 5.