The state of California is pushing back on Berkeley City Council’s attempts to limit construction of accessory dwelling units, or ADUs, in the Berkeley Hills, alleging that the council’s actions violate state law.

The city of Berkeley defines ADUs as smaller independent units with provisions for sleeping, cooking and sanitation built on properties with existing or proposed dwellings. While ADU construction provides more living space, it also increases density in urban areas, according to Berkeley City Councilmember Susan Wengraf.

Berkeley City Council adopted an ordinance in January 2022 to limit the number of ADUs on each property in the Berkeley Hills in part as a precaution against potential fires. Councilmember Rigel Robinson noted while he and Councilmembers Rashi Kesarwani, Terry Taplin and Lori Droste voted to adopt the ADU requirements set by state law, there was not enough agreement to form a majority.

“The more population density and car density that you have in an extremely vulnerable fire area, the more people you’re putting in harm’s way,” Councilmember Susan Wengraf said.

Were the Berkeley Hills to contain more residents and living spaces, it could complicate an already challenging evacuation process, Wengraf added. Car-dependent residents and tight, winding roads could prove to be fatal risks in the case of a fire.

However, the California Department of Housing and Community Development is alleging that the ordinance limiting ADUs in the Berkeley Hills violates state law.

“While HCD is sympathetic to concerns about fire safety and the need to ensure adequate evacuation in the event of a fire, the City has not (allegedly) adequately demonstrated that new ADUs will actually impact public safety in the VHFHSZ (very high fire hazard severity zones),” the department wrote in a letter to the city of Berkeley’s Planning and Development Department.

HCD also noted that the original ordinance, which largely relied on evidence from a UC Berkeley study regarding traffic flow in the hills, allegedly did not provide enough data about future construction of ADUs or what impact such ADUs would have on evacuation.

Wengraf responded similarly that state law did not allegedly provide sufficient guidance either.

“I think that the state law was very poorly crafted,” Wengraf alleged in response to the letter. “There was a lot of ambiguity, and we were told that there could be exceptions in cases of health and public safety.”

Wengraf also highlighted the anxiety that fire risks provoke in residents of the Berkeley Hills. Residents, she noted, are supportive of limiting ADUs as a means of taking precaution in the case of an evacuation.

As the case between the city of Berkeley and the state moves forward, Wengraf noted that she and elected officials from other jurisdictions are working on legislation to further protect residents from notorious California wildfires.