Details about possible legal challenges to the Middle Housing Ordinance investigated by Build a Better Berkeley:

1. Noticing requirements.
Because the Supplemental was introduced in a Special Session of the council, the notice requirement was only 24 hours, and the city satisfied that.

2. Neighborhood Preservation Ordinance
The Neighborhood Preservation Ordinance is no longer in effect, since it addressed deficiencies in the zoning ordinance that were long ago corrected. All the provisions for notice to all residents, limitations on what could be permitted, etc., were interim measures put in place to bridge the gap between when the NPO passed and when its deficiencies were corrected. There was nothing in the ordinance that carried those measures forward after the deficiencies were corrected, or to prevent the council from passing the new Middle Housing Ordinance without going to the public first.

3. Housing Element Environmental Impact Report
The law establishes that the city itself gets to decide if the EIR it is relying on is sufficient to support subsequent actions, and the staff report to the middle housing ordinance stated that the EIR produced for the Housing Element was, in fact, sufficient. The question was whether we had submitted substantial evidence to create a fair argument that the upzoning would have significant impacts that were not analyzed or that are more significant than those analyzed in the Housing Element EIR (HE EIR). We needed to have put into evidence data establishing the scope of the project analyzed in the HE EIR, including maximum density and number of units; whether the upzoning adopted exceeds that level of development; and that the environmental impacts caused by the increased development under the upzoning went above and beyond what was analyzed in the HE EIR. And it had to have been done before the measure was passed. We did our best, but this was simply beyond the skill set of any of us working on this.    

4. AB131
The new law signed by Newsom (AB131), which basically exempts all housing development from EIR consideration, provides some exceptions to the exemptions. One provides that dealing with contaminated sites can't be waived under the new law. Berkeley has a number of contaminated sites that are situated in residential zones (often old gas stations, cleaners, and other businesses that used toxic substances). The toxic sites would have been a good issue if the city were arguing that the upzoning is exempt under AB 131.  But it their argument is that the upzoning was adequately analyzed in the prior HE EIR. That is a different argument, and it does not hinge on the existence of contaminated sites, so this argument is not available to us.

5. AB2904
The law that went into effect in January (AB2904) extends the required period of notice from 10 days to 20 on issues regarding zoning. However, it only applies to Planning Commission meetings; city council is still governed by the 10-day notice rule. Further, Government Code Section 65093 states: "As used in this title, “notice of a public hearing” means a notice that includes the date, time, and place of a public hearing, the identity of the hearing body or officer, a general explanation of the matter to be considered, and a general description, in text or by diagram, of the location of the real property, if any, that is the subject of the hearing."  So, the precise text did not need be provided in advance, making CM Kesarwani's Supplemental package okay to introduce, despite the substantial last-minute changes it offered to the council and the public.