Housing at Transit: Berkeley Moves to Comply with New State Zoning Law

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In one effort to increase housing near transit, the California legislature passed a bill last year aimed at rezoning parking lots at Bay Area Rapid Transit stations. A.B. 2923 requires BART to establish zoning standards for transit-oriented development at its properties, and it requires local jurisdictions to then rezone those properties to conform to the BART standards.

Some saw the bill as an attack on local zoning control, by giving a regional entity unusual power over its own properties. But others say it is a necessary step towards repurposing some of the vast spaces surrounding BART stations towards higher purposes than just car storage. Cities have used zoning as an excuse to avoid building dense housing, even where it makes the most sense: at transit stations. Opponents can hold housing development hostage by fighting zoning changes. These fights extend over years, slowing and prevent increased density.

Berkeley was one of the cities that opposed A.B. 2923. The city contains three BART stations, and two of those--North Berkeley and Ashby--are surrounded by large parking lots. In the past, merely mentioning the idea of talking about perhaps maybe possibly considering building housing on those parcels caused a huge ruckus, with opponents shouting down housing proponents both literally and virtually. In the case of the Ashby station, neighbors refused to even let the city study the feasibility of adding housing.

But A.B. 2923 passed, and is now a fact of life. So too is the growing acceptance that more housing is desperately needed, and that these large BART parcels are among the best places for it. While questions remain about affordability, avoiding displacement, and how dense the housing should be, the basic premise of building housing at BART stations in Berkeley is no longer greeted with an automatic "no."

This week, Berkeley became the first city to take action to meet the requirements of A.B. 2923 with the city council's unanimous approval a Memorandum of Understanding between the city and BART.

The MOU is a general framework outlining mutual priorities to allow the two entities to work together, aligning their separate processes, over the coming year. Under its terms, Berkeley agrees to begin its rezoning process right away, aiming to complete it in 2021, a year earlier than required by the law. In return, BART will prepare a draft of its guidance in February to help guide Berkeley's process.

BART is required to finish its TOD standards by July 2020. Under A.B. 2923 cities have until 2022 to bring their zoning into alignment with BART's. If they don't, BART can go ahead and build housing to its standards even without their approval. The final zoning standards will apply to up to 34 BART properties that are subject to A.B. 2923, not just those in Berkeley.

Berkeley Mayor Jesse Arreguín decided it would benefit the city to get a jump on the process and guarantee itself a voice in it.

The MOU outlines a process for creating a "vision and priorities" document reflecting both BART and city concerns, which will eventually guide the process of choosing a developer and projects at the stations. That will give the city some say in what developments end up being built. By beginning the process now, rather than waiting, the city also hopes to get a head start on planning, developing, and actually building housing at the stations.

Berkeley also commits to creating a Community Advisory Group to provide input to both the city and BART, including making sure that the proposed zoning conforms to the city's General Plan, the Adeline Corridor Plan, the North Berkeley neighborhood "visioning" process, the Berkeley Bicycle Plan, local area plans, the Climate Action Plan, and other relevant documents.

For example, the Berkeley General Plan says that any development at Ashby BART should "include multi-family, transit-oriented housing and ground-floor commercial space and if feasible, at least fifty percent of housing units should be affordable to low and very-low income households."

The question of how much affordable housing should be part of any development at the stations got some attention at the city council meeting, with some pushing for 100 percent affordable housing on the publicly-owned parcels. But the question is not settled by the MOU, which merely speeds up the rezoning process. BART's systemwide goal is to have at least 35 percent of new units be affordable. If Berkeley commits to fifty percent or higher, it helps BART meet its stated goal even if some other station projects include less than 35 percent.

There are other questions not addressed by the MOU. A.B. 2923 requires BART to create TOD zoning standards that establish "the lowest permissible limit for height, density, and floor area ratio, and the highest permissible parking minimums and maximums." Berkeley has already been asking what exactly that might mean on the ground. While the MOU specifies roles and responsibilities of Berkeley and BART, it does not specify funding sources, financial arrangements, environmental review, or other project-level considerations.

"We want to show that Berkeley is committed to building as much affordable housing as possible on these parking lots," said Arreguín's deputy chief of staff, Lars Skjerping. "We kept it open in the MOU as to whether it would be state funds, city funds, or federal funds" that ultimately pay for the developments. "The city is committed to making a decision about that by next year," he added.

He points out the ways this is a pretty big deal for Berkeley: the city has committed to an extremely aggressive rezoning timeline, especially when you consider this is for a completely new zoning designation. BART giving the city a say in choosing the developer is also a big "get" for the city, he said

"Also, this will help other cities down the road; we're just the first to ask," he said. "We want other cities to be able to build quickly as well."

Once the BART board approves the MOU--likely at one of its January meetings--things will begin to move quickly. The community advisory group will be appointed by the end of January, and Berkeley's Planning Commission will being the process at its February meeting. BART will produce its draft guidance document around that time.

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