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SQUEAKY WHEEL:The NIMBYS of middle-earth

Toni Mester
Friday March 24, 2017 - 04:26:00 PM

Are Berkeley flatlanders living in the missing middle? That’s the term used by local architect Daniel Parolek to describe a range of housing types that fit between detached single-family homes and mid-rise apartment buildings.

Just a glance at the logo of his website produces a flash of recognition because the flatlands are indeed caught between R-1 low- density neighborhoods and new construction along the commercial corridors, between one and two story houses and five story mixed-use developments, just like the diagram shows.

But the difference between the logo’s concept and reality is that roofs do not rise in a tidy procession like a line of school children arranged by class but constitute a jumble of types and heights. Some streets are more regular than others.  

The mix is due to the peculiar history of Berkeley neighborhoods, a blessing or a curse depending on whether the building next door blends in or shadows your garden, whether or not the inhabitants and their vehicles interrupt the peace of your street.  

Promoters of growth call the discontents NIMBYs as a pejorative to put neighbors on the defensive. It’s best to grow a thick skin against this name-calling because in truth most people including developers object to sudden alteration of their habitation, unless they do it themselves.  

More NIMBYs live in the flatlands because that’s where most of the development is happening. But any perusal of past zoning appeals shows that hills dwellers are just as likely to protest any change in their landscape, from residential additions to new homes, and their disapproval can be equally virulent, as revealed by the recent appeal hearings about 1441 Grizzly Peak and 2706 Shasta Road.  

The difference is that the hills have enjoyed the privilege of zoning stability for fifty years, whereas changes in flatlands zoning occurred without widespread awareness. Both situations have stimulated negativity. As Councilmember Susan Wengraf observed, the empty parcel on Grizzly Peak had created “the luxury of an undeveloped lot.” The neighbors got used to the open space. 

Negative surprise has fostered reaction to development in the flatlands as residents learn about the density bonus and now the Housing Accountability Act. At the same time, two and three story houses have been cropping up in unexpected places like formerly open back yards. How did that happen? 

Residential Additions and Uniform Heights 

Researching the history of R-1A zoning in tandem with Planning Commission discussions, I uncovered the origins of the allowance for these backyard houses in a controversy over residential additions and accessory units that began in 1985 and resulted in the first “subsidiary” dwelling unit ordinance (5695) that December. The following is an excerpt from my history. 

In 1986 district elections were instituted, changing the composition and priorities of the City Council. The new Council minority, Mary Wainwright (D2), Shirley Dean (D5), Alan Goldfarb (D6) and Fred Weeks (D8) were drawn from the moderate Berkeley Democratic Club while Mayor Loni Hancock, Nancy Skinner (D1), Ann Chandler (D4), Don Jelinek (D7) and Maudell Shirek (D3) from the progressive Berkeley Citizens Action slate retained a slim majority. 

The Council returned to the subject of residential additions in April 1990 because people were adding height and bulk to existing buildings in increments without use permits. Council referred the matter, and in February and March 1991, the Planning Commission held public hearings on residential additions that addressed façade removal, the definition and size of a major addition, use permit requirements, and a definition of demolition. 

“Mansionization” was a hot topic. Some people wanted an administrative use permit for any residential addition over 300 feet while others decried excessive regulation, expense, and delays for families who had purchased a small cottage and wanted to add a bedroom and a bath. This hill-centered controversy dominated the zoning dialogue for years so that the vocabulary of the R-1 dispute became the template for the rest of the residential districts, specifically the use of the term “main building.” 

On May 28, the Council held a public hearing on zoning amendments for residential additions and revised notice requirements. A subcommittee of Chandler, Dean, and Wainwright were to consider “general revisions of the zoning ordinance” for the Planning Commission to consider. 

When the text of an ordinance was brought to the Council on July 16, 1991, the content of the bill (ordinance 6086) went beyond the recommendations of the Planning Commission.  

In addition to defining a major residential addition as 500 square feet, establishing notices to neighbors, and requiring a use permit, the Council included uniform building heights of 28 feet by right for all new construction in the residential districts R-1, R-1A, R-2, and R-2A and requiring an AUP above that to 35 feet. They also passed a new finding that “in order to deny a permit for an addition or a structure that otherwise meets all ordinance standards, the Zoning Officer or Zoning Adjustments Board must find that it would unreasonably obstruct sunlight, air, and views.” Both of these changes to the zoning codes had not been discussed and recommended by the Planning Commission and would have deep and lasting effect on the flatlands. Nancy Skinner and Maudelle Shirek, representing D1 and D3, respectively, voted no. 

The Planning Commission and the Zoning Adjustments Board were supposed to develop “written guidelines as to what constitutes ‘unreasonable obstruction’ of sunlight, air, or views,” according to the Council minutes of July 16, 1991. In a recent public records search, I requested such guidelines as well as a definition of detriment and was informed that no such written standards exist. Without objective specifications, staff have resorted to arbitrary and subjective interpretation of unreasonable detriment. 

Reporting back to the Planning Commission on this vote, Director Gil Kelley maintained his equanimity. The Council, he wrote, “voted to approve text amendments to the Zoning Ordinance. These differed from the Planning Commission’s initiated March 27, 1991 action in several ways.” 

The problem is obvious. By jacking up the height limits of all new residential buildings except for accessory dwelling units, the Council left the other standards such as setbacks and separations intact, if they existed at all, creating problems of scale, proportion, and harmony. It was one of the most irresponsible zoning decisions of any Council in the last fifty years. 

The Council failed to consider the problems of allowing three story houses in the back of relatively small lots and failed to follow-up on the guidelines about unreasonable obstruction. The fact that these changes were passed without public hearings at the Planning Commission meant that few people in the flatlands knew about these changes. So much for citizen participation! 

No other major changes to the R-1A were made during the rest of the 1990’s. But when it came time in 1999 to retire the old zoning ordinance and codify 50 years of amendments, the writers of the new ordinance didn’t know how to describe these newly allowed two and three-story houses because the definitions hadn’t been debated, and so they fell back on the language of the single family districts (the R-1) and called them “main buildings.” They also kept the 1991 finding that demands approval unless the application “would unreasonably obstruct sunlight, air, or views” without specifying the meaning of such terms, which had never been decided by a joint committee as recommended. 

In 2006, the Council revisited the height limits of main buildings and once again amended the size of residential additions upward. 15% of the lot area or 600 square feet became the new definition of a major addition requiring an AUP. Council members Anderson and Moore voted no. The reopening of this subject could have included the problem of “main buildings” in flatland back yards, but we just weren’t aware of the opportunity. 

The poor zoning of the R-1A is a result of piecemeal amendments, lack of focus and attention, the imposition of uniform height limits on new construction, and the politics of race, class, and geography implied in district elections; a triumph of inequity and resistance to land-use innovation. These problems impact all the zones in the flatlands. The proliferation of many building types and sizes is evidence of zoning instability and should not be used as an excuse for “anything goes.” 

Reforming the Zoning Code 

I wrote the history to provide background for the discussion of a revision of the R-1A. Over the years, more and more impacted residents of this West Berkeley area complained to the Council about the unfair and unclear zoning that allowed for the proliferation of two large houses on skinny lots. There were two Council referrals in 2010 and 2015 to the Planning Commission and one from the Zoning Adjustments Board in 2016. The Commission’s public hearing on the subject is scheduled for April 19th

It’s difficult to know what the Commission will do, as the current R-1A is no longer an intermediary zone between R-1 and R-2 but a bastard brother of R-2 due to the imposition of uniform height limits. In fact, many of the two house projects that are coming to the ZAB in the R-1A and the R-2 are similar. 

Many residents perceive height as the dominant zoning standard and forget that unit size is crucial to the shape of a building, especially in low and medium density zones. That’s why accessory dwelling units are height and area specific: 14 feet and 750 square feet or less to protect the spacious quality of the R-1 zones, which have been privileged since 1949. 

Up-zoning refers to increasing the number of units, which could be a studio apartment or a three-bedroom house. In a sense, the ADU has up-zoned the R-1 to two units but with size limitations. The R-1A and the R-2 are not so lucky. It’s an equity issue. 

In these neighborhoods, developers are squeezing in two houses that are 1,000-2,000 square feet with three bedrooms each to provide “family” housing but leaving precious little usable open space outside for gardens, trees, places for children to play, or for family outdoor activities like a Bar-B-Q. It’s not healthy for people to live indoors all the time. 

Parolek’s missing- middle schema proposes a variety of building forms that are not supported by our current codes, especially since the imposition of the uniform heights. The least dense of these types is the duplex, stacked or side-by-side. A duplex can provide two family-sized units that share a foundation and a roof, making the construction less costly than a stand-alone house. Clever floor plans can place kitchens and bathrooms in a configuration that also saves on installation of plumbing and other services. More compact buildings allow greater open space, some private and some shared. 

We’re all living cheek by jowl anyway, so we should stop building houses that belong in the suburbs, squeezing out precious open space, and start providing standards for duplexes, courtyard apartments, bungalow courts, and other compact cluster forms that integrate with single family homes. 

Missing middle housing makes it possible to create greater density AND save our back yards. That’s as good as it gets: guilt-free NIMBYs, like no- sugar chocolate and meat free hamburgers. 

Toni Mester is a resident of West Berkeley.