New state housing laws curb power of Berkeley homeowners

Yvette Bozzini looks out her bedroom window to a vacant lot on San Pablo Avenue where a developer wants to build a six-story apartment building. Bozzini and many of her neighbors have tried to block the project, but two city boards have approved it. Credit: Ximena Natera, Berkeleyside/Catchlight

When a developer’s plan to build a six-story apartment building next door to her house came before Berkeley’s zoning board earlier this year, Yvette Bozzini and her neighbors turned out to try to block it.

They argued that the 66-unit building proposed for what is now a vacant lot at 1201 San Pablo Ave. would be too big for their block. That it would overwhelm their neighborhood with traffic from new residents’ cars, putting pedestrians and bicyclists at risk and making it harder to find parking on the street. That it would cast shadows on their yards and one resident’s solar panels.

But while the neighbors expressed plenty of fury about the proposal, it didn’t prompt a fierce debate among the members of the Zoning Adjustments Board, and there was little doubt as to how the April meeting would end.

That’s because of a 2019 state law, SB 330, which requires local governments to approve housing developments that comply with zoning and design rules in most cases, and limits the number of hearings they can be subject to. The project at 1201 San Pablo Ave. met those rules, which meant zoning board members had to approve it that night — and they did.

The law is one of several recent pieces of state legislation prompted by California’s housing crisis that have combined to limit local governments’ authority over many development decisions, joining mandates to speed up approvals for affordable housing and backyard cottages, end single-family zoning and allow apartment buildings at BART stations. By extension, those laws have also shifted power away from homeowners and neighbors in deciding what gets built.

A rendering shows the view along Harrison Street of the planned apartment building at 1201 San Pablo Ave, with Yvette Bozzini’s 650-square-foot white house next door in the foreground. Credit: Trachtenberg Architects

To their proponents, the laws are a necessary change to prevent cities and existing residents from arbitrarily denying, delaying or scaling down efforts to build the housing California needs.

"Neighbors got used to having a very, very high level of say in these projects," said Mark Rhoades, a consultant whose firm Rhoades Planning Group works with developers to guide projects through Berkeley’s approval process.

"But when you give folks that much authority over what can and cannot go somewhere, you’ve set yourself up for what became the most significant housing crisis in California history," Rhoades said. "Now we’re unraveling it."

To Bozzini, though, her experience at the zoning board felt "insulting." Its members discussed the project that could sit beside her 650-square-foot house for about half as long as they’d deliberated earlier in the night over a couple of sheds on a property in the Berkeley Hills.

"Nobody cares about us," she said. "We got nothing."

Laws take hold as development ramps up

Supporters of SB 330 and other efforts to ramp up housing production throughout the state contend that the approval process for specific projects isn’t the right place to debate what kind of development belongs in a neighborhood.

Ben Gould, a member of the pro-density group Berkeley Neighbors for Housing and Climate Action, said those discussions already happen during the zoning process, and can be further refined by setting design standards for new buildings. That’s how cities should address potential conflicts, Gould said, "Rather than trying to litigate every project that comes forward because these neighbors don’t like the look of this particular feature."

State Sen. Nancy Skinner, who represents Berkeley and authored SB 330, wrote in a statement provided by a spokesman that her legislation "is based on a simple premise: Once a community has set their local rules, housing that meets those rules should get the green light and not face years of unnecessary delays."

And while many of the homeowners who live nearby think the project proposed for 1201 San Pablo Ave. is too big for their neighborhood, it’s in line Berkeley’s vision for the corridor’s future.

Berkeley’s plans call for building new apartments up and down San Pablo Avenue. The vacant lot where a developer wants to build a 66-unit apartment building is along several AC Transit routes and within walking distance of three grocery stores. Credit: Ximena Natera, Berkeleyside/Catchlight

The city considers San Pablo a priority area for new development and a transit corridor. Buses bound for UC Berkeley, downtown Oakland and San Francisco stop a few steps from the vacant lot next to Bozzini’s house, and the neighborhood has multiple grocery stores, restaurants, wineries and breweries within walking distance.

Apartments are under construction or in the planning process up and down the avenue, including on the former site of a fast-food restaurant across the street from 1201 San Pablo, where the city has approved a developer’s plans for another six-story apartment building.

"We think this is the future of San Pablo Avenue, as a kind of gateway," architect David Trachtenberg, whose firm designed both projects, told the zoning board last April.

These plans amount to a significant change for San Pablo and the residential neighborhoods that sit just off the avenue, which are mainly made up of single-family homes.

Put together, the two projects Trachtenberg designed would bring 170 new apartments to the intersection of San Pablo and Harrison Street. Each takes advantage of another state law, California’s "density bonus," which allows developers to exceed local zoning limits if their project includes a share of affordable units. And after Berkeley’s City Council voted to eliminate rules requiring apartments provide a minimum amount of on-site parking, plans for the project at 1201 San Pablo Ave. call for a garage with no more than 28 spaces — another source of tension with its neighbors.

"None of us can figure out how the neighborhood is going to function" if the projects are built, said Bozzini, who derides the buildings as "tower blocks" and "monoliths."

Bozzini and many of the project’s neighbors stressed that they want new homes to replace the fenced-off, overgrown lot. Still, their vision for what she described as a "neighborhood-appropriate" project at the site — perhaps townhomes, or a two- or three-story apartment building — would provide far less housing than the city and advocates for denser development believe is appropriate for an area with so many amenities.

"We chose to live in a single-family home area, or a one- or two-story apartment area," Becky Dalton, another neighbor of 1201 San Pablo Ave., said in comments to the zoning board. "We did not choose to live in an area of high density."

A rendering shows the view looking north along San Pablo Avenue toward two apartment buildings proposed for the avenue’s intersection with Harrison Street. The projects would bring a combined 170 apartments to the neighborhood. Credit: Trachtenberg Architects

Laws outflank resistance

Despite opposition from its neighbors, the project at 1201 San Pablo Ave. has cruised toward approval with SB 330 on its side.

In addition to significantly reining in cities’ authority to deny housing projects outright, the law also prohibits local governments from subjecting them to more than five public hearings. To comply with that limit, staff in Berkeley’s planning department created an expedited approval process for proposals that comply with the law — 14 projects are now awaiting review in the process, most of which are large developments with at least 50 apartments.

That process can feel a world away from Berkeley’s reputation for extensive community input and discussion. But without the law, housing advocates and developers say, neighbors and the leaders elected to represent them too often used their power to reject new housing. In other cases, construction costs rose as projects worked their way through hearing after hearing in multi-year permitting battles, and by the time a proposal was finally approved it was no longer financially feasible.

A sign in Yvette Bozzini’s window displays her opposition to a developer’s plan to build an apartment building next door. Bozzini rejects the "NIMBY" label, and says she wants to see housing built on the site. But the housing she has in mind is much smaller than what Berkeley’s zoning allows. Credit: Ximena Natera, Berkeleyside/Catchlight

"An easy way to prevent a project from ever developing is to add time to the project and make it more costly," said Muhammad Alameldin, a policy associate for UC Berkeley’s Terner Center for Housing Innovation.

Alameldin, a Berkeley resident who previously worked for the housing advocacy group California YIMBY, said there has not yet been an extensive analysis of whether the law and others like it have accomplished their goal of boosting the state’s housing supply. But he said it removes one of the biggest impediments neighbors and local governments have long used to delay or block proposals they didn’t like.

"There is the assumption, rightly so, that this bill has helped with the production of housing," Alameldin said.

Councilmember Sophie Hahn said she is concerned the new laws make it harder for cities to capture the "constructive comments and helpful input" neighbors can have about proposed developments. Hahn said she would like to see the city do more to inform residents of how the approval process works, as well as how they can get involved in efforts to set local zoning rules.

"All of that is a complete unknown to most people," she said.

The development team behind the 1201 San Pablo Ave. project declined to comment for this story; the site’s owner is listed in city records as Milpitas resident Su Lanhai, though the property and plans for the project are on the market for $5.5 million.

Trachtenberg, who represented 1201 San Pablo Ave. before the zoning board, acknowledged in his comments that there is a "baked-in conflict" because the apartment building will sit alongside single-family homes. Still, he told the board, "We have followed all the rules that the city of Berkeley provides for us."

The project’s neighbors have appealed the zoning board’s approval to the Berkeley City Council. But their appeal, which will be heard later this year, doesn’t ask the council to reject the project or reduce the building’s size — even though its height and density are at the core of their opposition. That would be a hopeless cause, because SB 330 also prevents cities from ordering changes that would reduce the number of homes in a project, and bars governments from changing zoning rules once a project has been proposed.

"Given the way the law is written I don’t think we could stop it from happening," said Dan Hayes, a neighbor who helped write the appeal.

Instead, the neighbors are asking the council to tie several conditions to its approval of the project, including that the development team fund traffic safety measures around the building and move the entrance to the parking garage so that it isn’t next to Bozzini’s house. It also requests the developer pay an unspecified amount of money to both her and another neighbor whose solar panels could be affected by shadows the building would create.

Will new direction stick for California and Berkeley?

Some of the neighbors said they were hoping Berkeley leaders sympathetic to their concerns would have sought to reject or slow down the project, even if doing so means violating state law. That’s a strategy some California cities have tried in an effort to subvert the recent crop of state mandates and wrest back their authority over housing decisions.

But those efforts are running into a state government that is backing up its new laws with expanded enforcement — California’s Department of Housing and Community Development has launched a Housing Accountability Unit to ensure cities follow mandates, and Attorney General Rob Bonta has taken an active enforcement role in housing policy.

"The state is getting serious," Alameldin said.

Moreover, while Berkeley has tried to push the boundaries of California’s housing laws in the past, city leaders appear to have less appetite for such a challenge these days.

Many chalk that up to Berkeley’s unsuccessful attempt five years ago to block a developer from building three homes on a lot at 1310 Haskell Street after neighbors similarly raised concerns over traffic, parking and shadows. The San Francisco Bay Area Renters Federation, a group of Yes-In-My-Backyard activists, sued the city twice and won both times; the homes were built, and Berkeley had to pay the group’s legal fees.

"We learned our lesson from Haskell Street," said Mayor Jesse Arreguín, who at the time backed Berkeley’s attempt to block the project.

Now, Arreguín said, the city recognizes that "the law is the law." And while he once fiercely opposed efforts to pare back local authority over housing, Arreguín said his thinking on the issue has shifted as the housing crisis worsened — he endorsed SB 330 in 2019.

"I have come around to the recognition that if local government is not going to act, the state needs to act," he said.

Arreguin and Councilmember Rashi Kesarwani, whose West Berkeley district includes the 1201 San Pablo Ave. site and its surrounding neighborhood, declined to comment specifically on the project ahead of its appeal before the council.

But they both broadly support the direction of the state’s new housing laws. Putting the desires of existing residents and homeowners at the center of housing conversations, Kesarwani said, has historically made it difficult for local elected officials — who rely on those voters for support — to think about their community’s broader needs.

"Without the requirement to pass these projects, I think the record shows that they often did not get approved," Kesarwani said. "The actions of the state Legislature, I think, are trying to course-correct for the greater good of the state as a whole."

Opponents pushed Berkeley to block a developer’s plan to build three homes on Haskell Street in South Berkeley. Credit: Emilie Raguso

A YIMBY group sued Berkeley over its denial of the project twice, and won each time. The homes were built, and the city had to pay the group’s legal fees. Credit: Ximena Natera, Berkeleyside/Catchlight

A key question now is whether California’s current direction on housing laws will last. Half a century ago, backlash to destructive urban development policies helped lead to a push for more community input and greater local control. Now, in the grips of an affordability crisis fueled in part by communities using that discretion to block housing, the state has dialed back local power.

"I think the pendulum has swung too far," said Hayes, the neighbor of 1201 San Pablo. "Ultimately, I think it will probably swing back the other way a bit, I would hope, so that the people whose communities are affected can have some say."

Advocates for greater local control are laying the groundwork to make that shift with a statewide ballot initiative that would gut California’s new housing laws by making it so that local zoning and land use regulations trump those from Sacramento. No current Berkeley leaders have endorsed the campaign, called Our Neighborhood Voices, but dozens of other city governments and elected officials have signed on.

The measure’s backers, who initially tried to get it on this November’s ballot but pushed their plans back to 2024, argue the state’s laws amount to a giveaway to developers that will worsen residents’ quality of life while failing to resolve the housing crisis. Gould and others, who contend cities like Berkeley need to build more housing or risk walling themselves off to anyone who isn’t a longtime homeowner or very wealthy, say California won’t be able to solve that problem if local governments and existing residents continue to wield the authority they’re used to having.

"Local control has not worked for getting housing built for the communities that need it," Gould said. "We really need an approach that ensures we get housing production up to the level we need it to be to meet demand."

That approach might rub some the wrong way — but Rhoades, the development consultant, said a growing number of people in Berkeley and across California believe efforts to block or scale down projects are unsustainable in a housing crisis.

"We just don’t have the ability to sit back and hope that somebody can build the housing that everybody is going to agree to," Rhoades said, "because it just doesn’t exist."

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