SQUEAKY WHEEL: American NIMBY Warriors

Toni Mester
Friday November 03, 2017 - 02:56:00 PM
to be demolished and replaced: 2129 Ninth Street
Toni Mester
to be demolished and replaced: 2129 Ninth Street

The revision of the R-1A zoning may finally come to a vote at the Planning Commission at the third and hopefully last public hearing Wednesday November 15 at the North Berkeley Senior Center. A discussion on a related topic, accessory dwelling units, is also scheduled for that meeting. The agenda should be available on-line at the Planning Commission webpage on Friday the 10th

The Friends of R-1A Move-on petition has 235 signatures from neighbors who support equitable zoning to allow the bulk of development at the front of the lot and a one-story home in the backyard. We also endorse the regulation of the over-all floor area in proportion to the lot size, a variable standard known as the floor area ratio (FAR), which encourages flexibility in the design of two units as either separate buildings or a duplex. 

The Southside Neighborhood Consortium, a group of long established neighborhood associations including the Claremont-Elmwood, the Dwight-Hillside, Willard, Piedmont/Parker, Bateman, and Stuart Street/Willard, has submitted a white paper recommending a one-story limit for the rear unit, retaining the 20-foot rear yard setback, creating larger side setbacks for the rear unit, and imposing a maximum FAR of .5. They added that the “second unit exterior must relate to the main house in building materials and other design details.” 

For many years, the current zoning in the R-1A has created distress and conflict among neighbors, as the allowance for two three-story buildings on one lot is an excessive entitlement that favors the applicant over the adjacent property owners because buildings of that size located in the inner block produce detrimental effects such as shadows, noise, and loss of views including the sky. Since 2010, the City Council and Zoning Adjustments Board have three times referred the R-1A zoning to the Planning Commission. 

In the original referral in 2010, the Council suggested that one building be 75% in floor area of the other and that FAR, lot coverage, and setbacks be considered. In the eight discussions so far, the Planning Commission has only agreed that the two sections of the R-1A, West Berkeley and Westbrae, be zoned the same, which would eliminate the differential in rear setbacks that currently exists, and that 4500 square feet would remain the minimum lot size for a second unit. However, that minimum does not apply the Accessory Dwelling Units (ADUs), which are allowed on single-family residence lots of any size. 

Rather than providing the flexibility of FAR, the Commission discussion has boiled down to whether the rear building should be one or two stories. And while a one-story building in the rear would be less detrimental, the height of the rear building alone is not a sufficient response to the Council referrals, as the existing patterns in West Berkeley are widely variable because of its zoning history. In 1949, most of West Berkeley was zoned R-2 and R-4 and down-zoned to R-1A in 1963 but without specifying the dimensions of the second unit. When in 1991 the City Council adopted “uniform height limits” for all buildings, regardless of where they are located on the lot, the height of a rear unit could go as high as 28 feet on the average or 35 feet with an administrative use permit (AUP). That height limit also regulates all houses in other zones and has proven problematic for neighbors in the R-2 and R-2A as well. 

While critics of the Friends of R-1A have charged us with “down-zoning” the passage of the uniform height limits was not an “up-zoning” because the designation of the area was not changed upwards in density to R-2, R-2A or greater. Two units remained the same, but the dimensions were altered to a greater height, a change which was not vetted in public hearings at the Planning Commission, as required by California planning law (§65103), even though the change had the potential to reduce the owners enjoyment of their private property and its value. 

Another common regulation that is used elsewhere in the Bay Area, the daylight plane, has also been neglected even though some Council members requested that it be considered, and staff included several examples of the daylight plane in the July meeting staff report. The daylight plane of 45º ensures that adjacent properties will not be deprived of sunshine when a new building goes up, either in the front or rear of a lot. 

Regulating floor area will not restrict the number of households that can be located in West Berkeley, but it does ensure that both larger and smaller households will be provided for. Most East Bay households, about 80%, are three persons and fewer, and over half are either one or two persons. Two large houses of the same size on the narrow lots of West Berkeley will exceed the limit of four bedrooms per parcel. A fifth bedroom requires an AUP and more than five requires a use permit with a public hearing. Although the staff routinely recommends approval for excessive bedrooms, such buildings can easily become mini-dorms rather than housing for two larger families, as most of the demand for housing in Berkeley comes from students. As UC continually increases admissions without providing a comparable amount of new student housing, the potential for building mini-dorms can become a problem for neighborhoods. 

Keep West Berkeley Affordable 

Friends of R-1A have been criticized for labeling our petition “Keep West Berkeley Affordable” and accused of misleading the public. In that case, the UC Urban Displacement Project must also be misleading because our assumptions are based on their research as well as our first hand experience fighting gentrification in our neighborhood. 

The excessive entitlements of three-story uniform heights, have initiated instances of demolition of low-income houses and rent-controlled apartments. An example of attempted displacement was John Newton’s application in December 2016 to demolish 2212 Tenth Street, a 1080 square foot home inhabited by a family of four - two educators and two school age children - and build two houses of almost 2,000 square feet each. After the initial hearing, the ZAB approved a revised project in a split vote in February. The neighbor to the south appealed to the City Council, who remanded the project to ZAB in June with instructions to further reduce the rear house and investigate whether the tenants were informed of the pending demolition. When the matter returned to the ZAB in August, the staff recommended approval of a smaller rear house but after reviewing the evidence, said that since the tenants had not been informed of the impending demolition as required by City law, they could only leave voluntarily. The ZAB also wrote a codicil prohibiting the owner from harassing the tenants into leaving. 

Another example is Mark Rhoades’ application to demolish two buildings, one with six rent-controlled apartments, and build seven new buildings with 18 units total at 1155-1173 Hearst, in the R-2A zone. Although the current tenants were assured that they would be given precedence to rent in the new development, that promise was withdrawn just before the hearing in September, resulting in the ZAB continuing the hearing off-calendar. 

According to the Southside Consortium, “UC Berkeley Planning Professor and former Planning Commissioner Karen Chappel has published academic research that finds that expanding the inventory of high-end housing in traditionally lower-income neighborhoods encourages gentrification by sending ‘signals to the market that such neighborhoods are desirable and safer for wealthier residents.’ A simple truth is the larger the unit, the more it costs to develop and the more it subsequently costs to rent or buy; and adoption of the SNC recommendations would best achieve the City’s goal of encouraging more affordable housing by making land values more affordable for the construction of smaller, more affordable (unsubsidized) units while also respecting the original purpose of the R-1A Zoning District.” 

West Berkeley has traditionally been one of the poorer sections of town and still has a high proportion of low-income residents. The latest ACS (American Community Survey 2011-1015) estimates that 7.5% of the total Ocean View population is below the poverty level and a whopping 20.2% in the Rosa Parks area. About 10% of whites in both sections live in poverty, while 16.7% of Hispanics in Ocean View and 35.3% in Rosa Parks. With higher income residents moving in, displacement of the poor becomes a real problem as the people who are employed washing dishes in the restaurants, cleaning houses, doing construction, and learning English at the Adult School are forced to find housing in places like East Oakland, Richmond, Vallejo, Antioch and further and commute in to work. 

Ultimately, it will fall on the Council to decide a basic issue of zoning equity. They could start to unravel the uniform heights debacle by abolishing the current allowance for two houses of equal heights in the R-1A and creating more livable standards or they can reinforce the division between the haves in the R-1 and the have-nots in all the other residential districts. The R-1 will continue to have two and three- story houses at the front of the lot and a smaller ADU in the rear, assuring privacy, open-space and sunshine for those families. In the R-1A, the great majority (68%) of the houses are small one-story and less than 1500 square feet. If a two-story rear house is allowed, the cheapest way to add area would be to keep the small front house and add a bigger rear house that would tower over it and all the adjacent properties, removing privacy, open space, and sun; just the reverse of what the R-1 enjoys. 

NIMBYs of Berkeley, unite! All you have to lose is ass-backwards zoning. 


Toni Mester is a resident of West Berkeley.