Public Comment

Commentary: Time to Get Serious About the State Density Bonus Law

By Bob Allen
Thursday May 08, 2008 - 10:33:00 AM

The state Density Bonus Law is having a major impact on the face of development in Berkeley. It has resulted in buildings which are substantially larger then those allowed by the Berkeley Zoning Code and which are impacting the neighborhoods along our transit corridors in ways that were not anticipated. While both the neighborhoods and our newspapers like to label the Zoning Adjustments Board (ZAB) and City Council as pro-development and the development community sees both as anti-development, this misses the point. It is the state law that has created these larger buildings. The law is a poorly written document riddled with ambiguities which in itself contributes to the angry debate which is the mode for all Density Bonus project hearings. The approval process on these buildings is all but dysfunctional and we need to address the issue so that ZAB and the City Council can regain control over the development of our city.  

To understand why I say the process is dysfunctional look at the steps we go through. Applicants feel they don’t have clear ground rules. Neighbors are enraged (understandably so) at the size of the projects. The ZAB hearings are very adversarial and take months as ZAB wrestles with the applicants’ and neighbors’ conflicting priorities. The compromises, usually reduction in the building size, are always seen as too little by the neighbors and too much by the applicant. The approved project is then appealed and goes to Council and they often make further modifications. In some cases the neighborhood brings suit to stop the project. In the long run it is the end -ser who suffers most because in an era of double digit inflation, delays in the process increase construction costs as much as 10-20-30 percent, a cost which is passed on to the buyer or renter.  


A little about the state Density Bonus Law: 

• The state Density Bonus Law was put in place to promote the development of affordable housing. The Law does not consider if a city already has an affordable housing element in their zoning code as Berkeley does but is clearly aimed at cities which were not providing affordable housing. 

• That state Law makes it inevitable that our current zoning envelopes can be increased by up to 35 percent. Everyone, the city and the neighborhoods have to understand this so that our discussions can focus not on “do we have to do this” but how this added density will be shaped. 

• The development community maintains that without the density bonus it would not be economical to build in Berkeley. Maybe, maybe not, but you have to ask yourself how so much has been built in Oakland and Emeryville without a density bonus.  

• The Law includes detailed provisions as to how many incentives and concessions are open to the applicant at each level of affordability. There is, however one killer clause. To a non-lawyer like myself it says that in awarding the incentives and concessions the city can not refuse specific incentives that the applicant requests. However, historically the city has interpreted this clause to mean that we cannot refuse any and all incentives and concessions requested by the applicant. It is the zoning equivalent of a baseball game where if the batter doesn’t like the first three strikes he can keep swinging as often as he likes. The most important aspect to Berkeley’s interpretation of the Law is that it brings with it the understanding that if we do not allow all concessions requested by the applicant that the city would be open to a suit. Other cities including Santa Monica interpret the law to mean single concessions rather then all concessions. We need to know if we have that option, too.  


How the current process to review the state Density Bonus Law came about: 

• Three years ago members of ZAB became so concerned with the Density Bonus approval process that they formed a subcommittee to study the situation. The initial focus was on both the state law and how the “base building” (what is allowed by our code and upon which the bonus is added) was calculated. Even the skeptics, myself included, decided that the way the Law was interpreted by the city removed our ability to limit the number of incentives and concessions granted to an applicant. We asked that the city bring in an outside attorney experienced in the state Density Bonus Law to review how Berkeley interprets the law but were told that there was no money available.  

• Several months into ZAB’s work the Council formed the Joint Subcommittee consisting of the ZAB committee, members of the Planning Commission, and members of the Housing Advisory Commission (HAC). The Joint Subcommittee worked for another year and produced their recommendations. The conclusion of a strong majority of the committee members was that without the ability to modify the state law and limit the number of incentives and concessions we needed to look at ways to modify the city’s zoning standards in order to set ground rules for Density Bonus projects. This is viewed by some as an effort to down zone. While down zoning may have been a motivation of some committee members, for many of us the goal was to set clear direction of how we wanted the building envelope to develop in a way that would help mitigate the impacts on the immediate neighborhood.  

• Prior to the November 2006 elections the planning staff brought forwarded a set of their own recommendations. Before the two sets of recommendations could be discussed and hopefully common ground found, under the pressure of having something on the record in case Prop. 90 was adopted both sets of recommendations were sent to the council. This was accompanied by a provision that the recommendations would sunset if Prop. 90 did not pass. Prop. 90 did not pass, the recommendations did sunset and the Density Bonus Subcommittee was disbanded. The recommendations sat fallow for more then a year before the Planning Commission started their study. Then, once again, with the new threat of Prop. 98 both sets of recommendations were sent to the Council who then adopted the Staff recommendations with the same sunset clause as before. 

It is time for the city to get serious about dealing with the state Density Bonus Law. We have worked for 15 years without a (state-required) city ordinance on how compliance with the law will be implemented. The City Council needs to look at the big picture. It’s not enough to just send the recommendations to the Planning Commission for further review. Debating which recommendations should be adopted is like chasing two pilot fish while the whale is going by unnoticed. Even if the city adopts some version of the recommendations, the effect will be relatively meaningless if we do not change how the city interprets the Law.  


What should happen? 

• The City Council should set policy around which the recommendations from the Planning Commission can be formed. Decisions on how the Density Bonus Law is implemented need to be based around the city’s goals for housing and the protection of neighborhoods. We need clear policy on the city’s priorities in these competing areas so the policy can be put in place that everyone understands, the development community, the residents, planning staff, ZAB, council and the Planning Department. Issues to be addressed include; what are the city’s goals for the development along the transit corridors? Is it to maximize housing development to the fullest extent possible? Is it to protect the neighborhoods at the risk of the loss of new housing? Is it to find a balance between the two and if so, what are the ground rules? The lack of clear city policy is producing too many mixed signals. Above all we need clarity. Without a city policy that comes from the top, we will just regress to a slightly altered process from what doesn’t work now. 

• The city should hire an outside attorney to review how we are applying the state Density Bonus Law and advise if we can move to the Santa Monica model which clearly limits the number of concessions and incentives which an applicant can receive. Without this change ZAB and the council’s hands are tied and the dysfunctional process is still in place. 

No matter what is done, nothing will change that fact that the state law allows up to a 35 percent increase above our city zoning standards. What we can do is set clearer planning policy and zoning standards for the transit corridor properties so that the city through staff, ZAB and the council, can better manage the impacts that these larger buildings impose on the city.  


Bob Allen is a member of the Zoning Adjustments Board and the Density Bonus Subcommittee.