February 23, 2024
The state rejected Berkeley’s housing plans. What occurs subsequent?
A housing construction site in downtown Berkeley
A development website in downtown Berkeley. Credit score: Kelly Sullivan

State regulators rejected Berkeley’s eight-year housing plan this week, with a letter telling town to go additional in its deliberate work to upzone rich neighborhoods and make different modifications to show it could actually plan for practically 9,000 new properties by 2031.

The choice by officers in California’s Division of Housing and Group Improvement means Berkeley has missed the deadline Tuesday to place in place a plan, referred to as a Housing Factor, that state officers choose to be a practical roadmap for assembly bold progress targets.

The state has signed off on solely two Bay Space cities’ Housing Parts, these in Alameda and San Francisco, that means Berkeley and scores of different native governments that haven’t been permitted at the moment are in an unsure place.

Cities have been warned that lacking the deadline may have drastic penalties, together with a provision in state legislation that strips them of virtually all zoning authority. Underneath the penalty referred to as the “builder’s treatment,” builders can get approval for housing tasks of any measurement in cities that don’t have a compliant Housing Factor, as long as at the very least 20% of items within the constructing are inexpensive.

A spokesperson for the Division of Housing and Group Improvement indicated Berkeley is now topic to the penalty. Many advocates who need town to construct considerably extra housing agree.

However Berkeley’s planning director contends town will not be topic to it. And Ben Metcalf, the managing director of UC Berkeley’s Terner Middle for Housing Innovation, stated a choose would doubtless aspect with town if a developer tried to suggest a undertaking by invoking the penalty.

“I feel a builder could be loopy to attempt to act underneath the builder’s treatment” in Berkeley, Metcalf stated, “and I don’t suppose anyone will.”

What appears clearer from the letter regulators despatched town Monday is that the state expects Berkeley to make additional modifications to its Housing Factor past the dedication the Metropolis Council made final month to zoning for extra density alongside main streets in North Berkeley and the Elmwood District.

“What we’re seeing on this Jan. 30 letter is, in truth, that the amendments that I launched didn’t go far sufficient,” stated Councilmember Rashi Kesarwani.

State calls for firmer commitments to constructing in rich areas

The four-page letter signed by Housing and Group Improvement Senior Program Supervisor Paul McDougall takes challenge with Berkeley’s plans on a number of fronts. Nonetheless, Metcalf stated that in comparison with different California cities — a lot of which have gotten longer letters from the division laying out extra important issues with their plans — Berkeley seems pretty near getting state approval.

“In case you grade on a curve right here, they’re doing fairly properly,” he stated.

McDougall wrote that Berkeley should present extra specificity about its plans for rezoning rich neighborhoods, equivalent to by setting targets for the variety of new properties inbuilt these areas. The letter additionally advised Berkeley that its Housing Factor ought to embody a dedication to guage progress towards assembly its objectives in future years, and make extra modifications to its insurance policies if town falls behind.

Metcalf stated these are important directives, sending a message to town that “HCD goes to maintain wanting over your shoulder” over the subsequent eight years.

“This isn’t only a planning course of, that is truly a efficiency commonplace,” Metcalf stated.

McDougall additionally advised Berkeley to enhance its processes for dealing with housing purposes, and higher justify its claims for the place new tasks will be constructed.

Housing Parts should embody a listing of the properties metropolis officers consider could possibly be became new properties; in Berkeley, like different cities, that stock contains some vacant tons and different properties at present occupied by companies. Critics allege that cities usually listing occupied websites to falsely declare they’ve sufficient capability for brand new housing with out altering zoning guidelines, after they truly don’t.

In his letter, McDougall, in impact, advised Berkeley to put out extra proof for why it believes sufficient of these occupied websites will probably be redeveloped as housing. And, if that additional evaluation reveals town doesn’t have the capability to fulfill its housing mandate, town may have to alter its zoning to make up the distinction.

Planning Director Jordan Klein has lengthy maintained that Berkeley doesn’t want to alter its zoning guidelines to adjust to the mandate to plan for 8,934 new properties by 2031, however that town is taking up work to zone for larger density in virtually each neighborhood anyway.

In an emailed assertion Wednesday, Klein wrote that planning employees at the moment are “fastidiously evaluating” the letter to find out how Berkeley will proceed.

HCD spokeswoman Alicia Murillo wrote in an announcement that builders may invoke the “builder’s treatment” provision in any Bay Space metropolis that the company has not declared in compliance by Tuesday’s deadline. She didn’t particularly point out Berkeley within the assertion, nevertheless it suits that definition.

Matthew Lewis, a spokesman for California YIMBY who emphasised that he was talking in his private capability as a Berkeley resident, stated his understanding of state legislation is that town is now topic to the builder’s treatment; Ben Gould, an advocate with the pro-density group Berkeley Neighbors for Housing and Local weather Motion, stated the identical.

However Klein stated town’s stance is that, with the amendments made by the council final month, Berkeley’s Housing Factor is “considerably compliant” with state legislation — and due to this fact it’s not topic to the builder’s treatment. HCD’s letter to Berkeley was in response to a draft of the Housing Factor that Berkeley submitted final November, Klein wrote, and didn’t handle town’s discovering that it’s considerably compliant.

“Town will search further clarification from HCD to find out what enhancements could also be essential to realize state certification past native findings of considerable compliance,” Klein wrote. “Town will proceed to work to realize state certification as rapidly as doable.”

If a developer decides to check town’s argument, housing consultants and advocates agree the query would nearly actually wind up in a authorized battle.

“Earlier than it’s been adjudicated, I don’t suppose anybody can say they know for certain what’s going to occur with the builder’s treatment,” Lewis stated.

Metcalf’s interpretation was that Berkeley stands a great probability of prevailing in a court docket case over the supply due to language within the letter that seems to grant town 120 days to make additional modifications to its plans.

The differing interpretations of what the state’s letter means for Berkeley’s native zoning authority are a testomony to this unprecedented second in California’s housing disaster.

For many years, native governments submitted Housing Parts that confronted little scrutiny from state regulators. Because the Division of Housing and Group Improvement toughens its requirements for approval with this spherical of housing plans, although, untested elements just like the builder’s treatment are coming into play.

The Los Angeles Occasions reported in October that builders proposed 1000’s of latest residences in Santa Monica by invoking the penalty after state officers shot down that metropolis’s housing plan.

Metcalf was skeptical, although, that Berkeley would see an analogous rush. He famous that even when builders know they’ll invoke the builder’s treatment, they nonetheless face hurdles to getting tasks constructed, together with necessities for doubtlessly prolonged environmental critiques, which may discourage them.

And builders may also make a political calculation that attempting to invoke the penalty, and taking their combat to a courtroom, isn’t well worth the unwell will it may purchase them with native governments.

Metcalf stated builders doubtless figured there was little price to utilizing the builder’s treatment in Santa Monica, figuring that town was unlikely to ever approve their tasks underneath regular circumstances. In Berkeley, which builders see as extra welcoming to greater and taller residence tasks, he stated they could resolve “it simply wouldn’t make sense to get cross-wise with [the city] for those who don’t must.”