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Housing Advisory Commissioners are weighing in on one of Berkeley’s hottest political potatoes, laws that grant developers bigger buildings in exchange for including affordable units. 

HAC members Thursday heard from one of their own members who is currently fighting a legal battle against one such project, the Trader Joe’s building—or the Old Grove as its developers call the project planned for the northwest corner of the intersection of University Avenue and Martin Luther King Jr. Way. 

Steve Wollmer, HAC member and Friends of Berkeley Way litigant, agreed with city staff that the city’s inclusionary and density bonus status needs reform, but he doesn’t agree with some of the policies he said staff take as givens. 

City staff, he said, are operating on 2002-2003 guidelines which they used to allow developers Chris Hudson and Evan McDonald to add to the mass of their five-story project. 

Jesse Arreguin, who was elected HAC chair for the coming year, said he disagreed with the staff’s position that the developers should be allowed 25 more housing units to make up for the costs of adding the additional parking they said was needed to make the popular grocery store a viable business at that location. 

“The city’s interpretation was inconsistent with the spirit of the state density bonus law and with the spirit of the city’s housing ordinance,” Arreguin said. 

By adding market rate housing, the staff interpretation—which was adopted by the Zoning Adjustment Board—didn’t lead to a gain in affordable housing, he said, which is the real reason for the density bonus. 

As one of her last acts as chair, Marie Bowman had sent a letter Thursday morning to City Manager Phil Kamlarz urging adoption of revisions soon, because of the resurrection of the state eminent domain initiative, narrowly rejected by California voters last year and scheduled for a return to the ballot in June. 

Passage of the initiative would impose heavy costs on state and local governments for enacting any land use law changes that could reduce the potential earning power of property. 

Inclusionary housing by definition reduces potential profits by requiring developers to rent or sell at below market rates to tenants and buyers who couldn’t otherwise afford them. 

Bowman’s letter also asked that members of the Joint Density Bonus Subcommittee, formed of appointees from HAC, ZAB and the Planning Commission, be granted the opportunity to weigh in on whatever proposals the city planning and legal staffs eventually bring to the City Council for adoption. 

The subcommittee met for more than a year until it was ended by the council last May, and all its recommendations were adopted by 9-0-1 votes, with only Planning Commissioner David Stoloff abstaining. 

Bowman said one important issue is student eligibility for low-cost housing, and the implementation of measures to ensure that it is only the genuinely needy students who receive it. Given that currently children of well-to-do parents can qualify because they themselves are full-time students and not generating income, one possible solution is a means test for applicants. 

“Upwards of seven-eighths of affordable housing produced in Berkeley is being rented by students,” said Wollmer. That conflicts with the city’s own policy of trying to bring more working class families into downtown housing, he said. 

“We really need to find an equitable way to house students who really need help, but it is not the city’s responsibility to house UC students,” Wollmer added. 

“It would be good if we could get legal opinion from the city attorney,” said Arreguin, who made the transition into community activism from his activism as a UC Berkeley student. 

Another issue is federally subsidized housing, where low income tenants pay a fraction of market rate rents, with the federal government picking up the difference. 

Bowman said that because landlords receive market rate or close to it for Section 8 tenants, those tenants should not be counted toward the current 20 percent requirement for inclusionary housing in new buildings of five or more units. 

Jill Dunner said she wanted assurance that by separating out Section 8 renters, it wouldn’t make it harder for these poor would-be renters to find housing in the city. Dunner also said she would like to hear from city planning staff at an upcoming meeting. 

Commissioner Vincent Casalaina said he didn’t see a problem with requiring a full 20 percent inclusionary requirement. “It’s really a way to have much more affordable housing without increasing the number of Section 8 vouchers,” he said. 

The subcommittee opted for a proposal that includes a pair of menus, one of waivers that could be granted projects without the need for a developer to show financial necessity for the changes and a second set that would require the developer to prove they impacted the proposal’s financial viability. 

Justification would be needed for increase in building heights of more than 10 percent of allowable levels, increase in stories beyond the maximums set for each zoning district, reductions in parking over 20 percent and cutbacks in open space of more than 35 percent, decreased setbacks along residential perimeters, increased floor-to-area ratios and any reductions in size, furnishings, bedrooms and locations of inclusionary apartments or condos.