Berkeley City Council allegedly violates state ADU law

Photo of a house with an ADU
Kyle Garcia Takata /Staff
Berkeley City Council’s passage of an ordinance that limits the development of accessory dwelling units in Berkeley Hills allegedly violates state law.

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Berkeley City Council’s passage of an ordinance that limits the development of accessory dwelling units, or ADUs, and junior accessory dwelling units, or JADUs, in the Berkeley Hills, may allegedly be in violation of state law.

Due to fire hazard concerns, the City Council approved an ordinance Jan. 25 that restricts properties in the Berkeley Hills to either one ADU or JADU per lot. However, according to California Yes In My Backyard, or YIMBY, Legislative Director Louis Mirante, state law allows for both one ADU and one JADU per lot under certain circumstances, and the specific conditions that allow cities to bypass this law are allegedly not satisfied by Berkeley’s plan to restrict ADUs in the Berkeley Hills.

Mirante reported the alleged violation of state law to California’s Housing Accountability Unit on Jan. 26.

“I think Berkeley violated the law and I wish that the councilmembers who supported the violation would instead work harder to be a part of the solution to their constituents’ housing challenges, rather than being a cause of housing insecurity,” Mirante said in an email to the state’s Housing Accountability Unit.

Councilmembers Susan Wengraf and Sophie Hahn said in separate emails that they proposed the ordinance due to concerns about wildfires and earthquakes in certain regions of Berkeley. Hahn maintained the ordinance is not in violation of state law.

Matthew Lewis, spokesperson for California YIMBY, questioned the city’s concerns about fire safety. Lewis alleged fire hazards in the Berkeley Hills are exacerbated by the amount of vegetation in the area and suggested the city adopt vegetation control laws before limiting the development of any type of additional housing.

“Preserving life safety is the most fundamental job of any City, and the action we took, based on studies, data, and science documenting Berkeley’s extreme hazards, is consistent with the public safety element of California’s ADU law,” Hahn said in her email.

Laws that allow for the development of ADUs are crucial for increasing California’s already limited housing supply, according to Ethan Elkind, director of the climate program at UC Berkeley School of Law’s Center for Law, Energy and the Environment.

Dylan Casey, executive director of the California Renters Legal Advocacy and Education Fund, added that ADUs provide rental housing in neighborhoods that have historically excluded those who are low-income or individuals of color. He expressed that aside from this single issue with the ordinance in question, Berkeley has done a better job than most other cities in mandating ADUs.

However, rather than limiting ADUs to combat fire hazards, Casey said Berkeley should focus on improving evacuation routes, limiting street parking and handling dangerous vegetation.

“I think it’s perfectly legitimate to be concerned about fire danger in the Berkeley Hills,” Casey said. “But I also think these are categories of ADUs that aren’t going to have a lot of impact on fire risk.”

Contact Amudha Sairam at [email protected], and follow her on Twitter at @AmudhaSairam.