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With the specter of Proposition 90 lurking in the wings, Berkeley’s City Council Tuesday passed a conditional new law governing the sizes of apartment and condominium buildings. It attempts to reconcile conflicts between size bonuses offered by the state of California and the City of Berkeley as a reward for the provision of affordable housing. 

The new ordinance will be valid for only two weeks if California voters reject Prop. 90, but will remain in force if they pass it. 

While billed as a measure restricting the eminent domain powers of state and local government, the proposition, which takes effect immediately after the election, strips governments of almost all regulatory powers over land use. 

The measure’s key consequence doesn’t involve eminent domain, a practice in which governments take land from owners for new public and private uses, which it would also limit. Its real impact comes from provisions that allow owners to sue for any potential loss of revenues from any new legislation that in any way restricts the use of their property from what was allowed at the time of the measure’s passage. 

Opponents say they fear governments would be reluctant to impose any tightening of zoning or other restrictions on land use. Passage, Mayor Tom Bates told the council, “would be terrible. It would limit our ability to make any changes. To limit height or density would become extremely costly.” 

As a result, the council wanted something in place before the election, but just what was open to question. 

Members had their choice of two ordinances, one drafted by a joint subcommittee of the Zoning Adjustments Board (ZAB) and the Planning and Housing Advisory commissions and a rival measure prepared by city planning staff. 

In the end, the council opted for the staff version—part of nearly 1,000 pages of documentation—without hearing from either members of the joint commission subcommittee or from the staff. 

The decision 

Betty Olds moved approval of the citizen subcommittee’s proposal, winning a second from Linda Maio. 

Before the vote, Spring said she was concerned that passing a measure that contained a provision to terminate the legislation if Prop. 90 failed could result in a legal challenge if the ballot measure passes. 

Wozniak said he was reluctant to vote on a measure for which he had just received “a thousand pages” of supporting materials the day before. “I don’t think the council has had time to absorb this,” he said. 

Maio said the subcommittee recommendations were “a good starting point, but I don’t feel comfortable” adopting them for the long term without more of a public process. 

Planning commissioners had agreed with Maio’s critique in rejecting the subcommittee proposals, while ZAB members had voted to approve. 

“We have had a public process,” said Olds, who then moved adoption of the citizen panel’s proposal, with Maio offering a second and joined by Dona Spring and Kriss Worthington in support. 

Bates and Councilmembers Darryl Moore and Laurie Capitelli voted no, while Max Anderson and Gordon Wozniak abstained, dooming the measure, since five votes were needed to pass. 

Wozniak then moved adoption of the rival staff ordinance, with Capitelli offering a second. Olds opposed, Worthington and Anderson abstained and the remaining councilmembers voted in support.  

If adopted at its second reading at next Tuesday’s council meeting, the ordinance would become effective Oct. 25. If Prop. 90 failed in the Nov. 7 election, the ordinance would die the following day. 

Avenue impacts 

The main difference between the two versions will be felt along San Pablo Avenue, where the planning staff’s version as passed by the council would effectively allow five story buildings. 

The rival version, drafted by the joint citizen subcommittee, would have kept the structures a story shorter. 

“There was no need to sacrifice the city’s poorest homeowners to the planning staff’s True Belief in Smart Growth,” said Steve Wollmer of PlanBerkeley.org. 

Wollmer’s group focuses on developments along the University and San Pablo Avenue corridors, and has been sharply critical of five story projects abutting residential streets immediately parallel to major arteries. 

Wollmer criticized the council for failing to hear testimony from the subcommittee, which has spent a year-and-a-half formulating the proposal rejected by the council. 

“The staff are sellouts,” said David Blake, a ZAB member who served on the subcommittee, who agreed that the new ordinance’s greatest impacts would be on the CW zones along San Pablo Avenue and on Ashby and University avenues west of San Pablo. “CW zoning is also found along Telegraph Avenue, but there are far fewer project sites available there, so south of campus impacts should be relatively limited,” Blake said. 

Another key difference between the rival ordinances is the degree to which developers can provide mandatory open space on building rooftops and terraces rather than as ground-floor courtyards and yards.  

While the subcommittee wanted a maximum of one third of the mandatory yard space to be permissible atop project roofs, the staff proposal allows up to three-quarters of the total to be allotted above the ground floor. 

Density bonus 

The underlying issue is the so-called density bonus, an incentive which allows developers to exceed the sizes of buildings otherwise allowed by zoning ordinances and city codes in exchange for reserving 20 percent of their units for lower income tenants/buyers. 

Such units are mandatory for all projects of five or more dwellings. 

Half of the qualifying units must be affordable to those making 50 percent of the area median income and the other half for those earning no more than 80 percent. 

As compensation, builders are allowed to add units for rent or sale at market rates to recoup losses incurred in providing the mandated units—although under another measure adopted earlier this year developers can now pay fees in lieu of offering below-market units, with the funds going for building new affordable housing projects elsewhere, or rehabilitating existing structures. 

It is the additional density bonus spaces that would allow four-story “base” buildings in CW zones to rise to five floors under the staff ordinance once the compensatory units are included. 

The three-floor alternative under the subcommittee measure would have allowed for a total of four floors.