Berkeley City Council Special Meeting: Zoning Ordinance Amendments to Demolition and Dwelling Unit Controls – June 25, 2024

At a special meeting on June 25, 2024, at 3:30 PM, the Berkeley City Council conducted a public hearing and voted on proposed amendments to Berkeley Municipal Code Chapter 23.326 (Demolition and Dwelling Unit Control Ordinance). The ordinance aims to recodify local affordable housing preservation and tenant protections while aligning with state law (SB 330). After extensive discussion and public comment, the council adopted first reading of the ordinance with two clarifications.

Public Comments & Testimony

• Planning staff (Jordan Klein, Justin Horner) presented the proposed ordinance, explaining the background, key changes (e.g., removal of fee-in-lieu option, expanded protections for units removed via no-fault eviction, and tiered replacement requirements for protected units). They recommended approval.
• Councilmember Rashi Kesarwani presented a supplemental package of amendments, developed after stakeholder outreach, intended to balance tenant protections with project feasibility. Key elements included: using CHAS data to assume 61% of rent-controlled units with unknown tenant income are low-income (requiring BMR replacement for that share); exempting unpermitted units not tenant-occupied from replacement if financial hardship is shown; and aligning the definition of “comparable unit” with state law.
• Rent Stabilization Board Chair Leah Simon‑Weisberg spoke against the amendments, arguing they would weaken tenant protections and violate the spirit of rent control. She urged adoption of the original staff version, which she said had been vetted over years and requires one‑for‑one replacement of all rent‑controlled units regardless of tenant income or vacancy status.
• In‑person public speakers:
  • Bryce Nesbitt (consultant) supported Kesarwani’s amendments, noting the ordinance should distinguish between small owner‑occupied projects and larger developments; warned that low-income preferences could discourage renting to low-income tenants.
  • Debbie Sanderson supported the amendments, arguing that freezing vacant units would harm housing production and that unpermitted units should not be forced to be replaced at great cost.
  • Andrew Fisher (consultant) supported the amendments, stating that many unpermitted units are created incidentally and that the original ordinance would impose huge costs on small property owners.
  • Sally Albert (Vice Chair of Rent Board) opposed the amendments, asserting that SB 330 requires replacement of all protected units (including vacant rent‑controlled units) and that the original ordinance is legally sound and tenant‑centered.
• Zoom public speakers:
  • Blair Beekman supported the amendments and urged clearer ADU policies.
  • Cheryl Daville (former councilmember) opposed the amendments, calling them “in the pocket of developers” and urging strong tenant protections.
  • Kelly Hammergren supported the original ordinance but raised concerns about developers sitting on approved permits for years.
  • Bridget Schenck (architect/developer) supported the amendments, particularly allowing administrative use permits for owner‑occupied single‑family replacements without a net density increase.
  • Kathleen Crandall supported the amendments, citing unintended consequences for low‑income homeowners and the insurance crisis.
  • Matthew Lewis (Berkeley Tenants Union) strongly opposed the amendments, stating they would gut tenant protections, violate state law, and incentivize harassment of tenants to create vacancies.

Discussion Items

• Presentation and Council Deliberation: The council heard detailed presentations from planning staff and Councilmember Kesarwani about the proposed ordinance and amendments. Members discussed the interplay between state law (SB 330), local rent control, and inclusionary housing policies. Key points included:
  • Whether rent‑controlled units should be replaced with BMR units or rent‑controlled units; the current rent stabilization ordinance does not allow imposing rent control on new construction.
  • The concern that requiring BMR replacement for all rent‑controlled units could make redevelopment infeasible, especially near UC Berkeley where students often do not qualify for BMR units.
  • The risk that tying protections to current occupancy could incentivize landlords to keep units vacant or harass tenants to vacate.
  • The importance of preserving rent‑controlled units as a source of naturally occurring affordable housing and community stability.
• Councilmember positions:
  • Mayor Arreguin and Councilmembers Tregub, Hahn, Bartlett, and Lunaparra expressed support for the original staff proposal, emphasizing strong tenant protections and the need to avoid actions that could weaken rent control or encourage displacement.
  • Councilmember Hahn argued that rent control runs with the unit, not the tenant, and that all rent‑controlled units should be replaced regardless of tenant income; she opposed means‑testing protections.
  • Councilmember Tregub noted that rent-controlled units are a form of “missing middle” housing and that the original ordinance reflects years of careful balancing.
  • Councilmember Lunaparra made a substitute motion to pass the original ordinance without amendments, suggesting that after a potential November ballot measure to restore rent control on new units, the council could revisit the Southside issue.
  • Councilmembers Kesarwani and Humbert supported the supplemental amendments, arguing they would better align with state law, protect small property owners, and ensure housing projects remain feasible while still providing substantial tenant protections.
  • Vice Mayor Wengraf asked questions about administrative implementation.

Key Outcomes

• Substitute motion (to approve the original staff/Planning Commission version without amendments): failed in a 2‑4‑2 vote (Yes: Bartlett, Lunaparra; No: Kesarwani, Taplin, Wengraf, Humbert; Abstain: Tregub, Mayor Arreguin).
• Main motion (to approve the staff proposal with two amendments): carried 6‑3 (Yes: Taplin, Bartlett, Tregub, Hahn, Lunaparra, Mayor Arreguin; No: Kesarwani, Wengraf, Humbert). The two adopted amendments were:
  1. Revising the definition of “comparable unit” to conform to the state law “equivalent size” standard (Councilmember Kesarwani’s proposal).
  2. Clarifying that when tenant household income is unknown, the presumption of low-income occupancy shall be based on the proportion of low‑income renter households citywide rather than all households (staff’s clarification).
• The council adopted first reading of the amended ordinance. A second reading will be required for final approval.
• The special meeting then adjourned at approximately 4:45 PM to reconvene at the 6:00 PM regular meeting.