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Berkeley’s patchwork policies show how state housing goals complicate ADU rules

Berkeley’s patchwork policies show how state housing goals complicate ADU rules

On paper, it’s never been easier to get plans for accessory dwelling units approved in California.

But state lawmakers’ ongoing effort to streamline development of ADUs, which include in-law units and granny flats, frequently butts up against local concerns, especially in places like Berkeley where housing is in short supply, as are plots of land suitable for safely building these minuscule homes.

In a marathon race to keep up with complex, ever-evolving state law, Berkeley’s planning and legal departments have stayed busy crafting — and recrafting — byzantine ADU regulations and policies since at least 2019, when state lawmakers started slashing red tape and simplifying approvals for ADU projects that met broad lists of state requirements.

And the nearly three-hour legislation session during Tuesday’s City Council meeting offers the rest of the state a peek at what practical implementation of the state’s revised ADU rules actually looks like.

In a 7-0 vote, with two members abstaining, elected officials approved a list of policy updates that, in part, set a citywide 20-foot maximum height limit, loosened restrictions for projects in a property’s front yard, and preserved requirements to inform adjacent neighbors of proposed ADU projects — even though there’s no way for residents to appeal.

The council also decided to not mandate any on-site parking for ADU tenants or existing property owners. While officials from the California Department of Housing and Community Development (HCD) recently reminded the city that this stance aligns with state law, debate about how a lack of parking might increase congestion and bottleneck wildfire evacuations along steep, degrading streets in the Berkeley hills deadlocked elected leaders last month.

The latest tweaks to Berkeley’s ADU policies will return for a second read and potential approval at a future council meeting.

Councilmember Rashi Kesarwani, who helped author several of the approved changes, emphasized that the 20-foot height limit may help increase separation between structures in the hills, and Berkeley Fire Department Chief David Sprague said it would not pose additional hazards.

Additionally, Kesarwani said having a uniform standard citywide will streamline construction of new homes that are physically better equipped to withstand wildfires.

“If somebody is wanting to create an accessory dwelling unit in the hills, we are better off giving them the option to go up instead of out,” Kesarwani said. “We have some relevant statistics from Paradise California — 51% of the homes built after 2008 were undamaged. Only 18% of the homes built prior to 2008 were untouched.”

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Councilmembers Sophie Hahn and Susan Wengraf — who both represent largely built-out communities in the Berkeley Hills that are dominated by single-family homes, and face the highest risks of wildfires from the adjacent forests in Tilden Park — abstained from weighing in on the first reading of these changes.

The duo both said they wanted stronger protections that pushed back against state mandates. Specifically, Wengraf pointed to HCD’s own handbook that allows local agencies to consider public safety in their decision making for ADUs.

Noting that there are more than 900 calls to 911 emergency services in the Berkeley Hills each month, and that the area has been devastated by wildfires in the past, Wengraf said she’s concerned about the city’s upcoming evacuation study, which the council agreed to consider and potentially make additional changes to ADU policy in the future.

“I haven’t seen any indication that (state housing officials with HCD) will fulfill that promise or that they will respect it,” Wengraf said. “I’m actually disappointed that the council has not shared and respected my concerns. I’m disappointed that this council is not willing to push back against HCD, which I think is uninformed or misinformed about the conditions in the hillside zone. They seem to be oblivious to the realities that we’re dealing with.”

This ongoing policy debate hasn’t stymied ADU construction in Berkeley.

Between 2018 and 2022, the City issued 528 building permits for ADUs and Junior ADUs, and entitled an average of 78 ADU permits per year, according to a report from Jordan Klein, the city’s director of planning and development.

Yet, Councilmember Kate Harrison was frustrated that the state’s current one-size-fits-all requirements don’t allow local officials to develop solutions that combine regional housing and safety needs with community input.

“Clearly, I think that this whole issue has become sort of a small example of what is a bigger issue of development in the hills,” said Harrison. “But the little mighty ADU is not the problem.”