As building rules tighten in Berkeley, construction pushes back

Unions want to be able to continue building and argue their workers can follow social distancing rules.

A refined shelter-in-place order stipulates only buildings that will make 10% of units affordable are allowed to be under construction. The city is working with contractors to determine this. Photo: Pete Rosos

Last month, as Berkeley adjusted to the COVID-19 shelter-in-place order, typical city sounds still included the hammering, sawing and machinery grinding of construction. Major building projects were in full gear. Smaller residential projects, remodels and renovations were alive.

Since March 31, after the COVID-19 health order was extended, construction sounds have diminished.

The extended order has greatly restricted what kinds of construction are allowed in Berkeley and in six Bay Area counties — Alameda, Contra Costa, San Francisco, Santa Clara, San Mateo and Marin.

In the first shelter-in-place order, issued March 16, construction of housing was allowed to continue, “in particular, affordable housing or housing for individuals experiencing homelessness.”


Under the extended order, the only residential construction allowed is on projects with 10% affordable units. Other construction is permitted on homeless facilities, healthcare projects related to COVID-19, public works projects, and projects necessary for the health and safety of essential workers. Health and safety repairs to homes are OK. All construction must be done with social distancing, or workers staying six feet apart from each other.

Construction trade groups are pushing back. Union groups sent letters last week to Bay Area and state elected officials, as well as health officers, asking to be allowed to do more construction. They claim they can work safely, following COVID-19 prevention measures.

So far, their request hasn’t changed anything in the Bay Area, even with buy-in from Gov. Gavin Newsom.

“We fully understand what the county health officials are doing and we support what they’re doing,” said Andreas Cluver, secretary of the Building Trades Council of Alameda County, which represents union workers. His group is one of those that recently sent a letter to the Alameda County Board of Supervisors.

“Everybody in the trades understands the public health interest supersedes everything, but we strongly believe we can continue to work in a safe way that protects our members and protects the general public. We are not working in an office setting where people are running into each other.”


A North Berkeley hills home construction site. Single-family home projects aren’t allowed under the COVID-19 health order, unless repairs are being made for health and safety reasons. Photo: Kate Rauch

Union workers have agreed to wear protective clothing, not allow food trucks at job sites, and not share lunches or tools — among other measures to reduce the spread of the virus, Culver said. “Safety training is one of the most important things we do,” he said, speaking of unions.

Culver admitted that the promises from the unionized trade groups are moot when it comes to nonunion projects. In Berkeley, these are mainly smaller projects. In addition to conducting safety training, union representatives regularly visit job sites to check on projects. “But who’s going out to these non-union job sites; that’s really the problem,” said Culver.

Housing presents health order challenges

Construction trades want to keep their members employed, and they want to keep up the flow of much-needed housing, Culver said. They were fine with the first order, which allowed housing construction, loosely favoring affordable projects.

“If the decision on the part of the counties is the housing crisis overrides the public health crisis and that’s why they’re allowing the affordable housing [to be built now], what they’re not understanding is that market-rate housing is financing affordable housing, because of all the fees getting collected,” he said.

Berkeley, which requires 20% affordable housing in projects of five or more dwellings, allows developers to choose whether to provide the units or pay into the city’s housing trust fund. The fund is used for affordable housing. Developers don’t have to make this decision until the project is complete.


But contributing to an affordable housing fund in lieu of building units doesn’t qualify under the order. Only projects with 10% affordable housing on-site are allowed to continue, under the expanded health order.

As of Monday, the city had identified four current projects that meet the 10% affordable unit requirement, according to Matthai Chakko, the city of Berkeley’s spokesman. These are at 1500 San Pablo Ave., 2747 San Pablo Ave., 2597 Telegraph Ave. and 2580 Bancroft Ave. They are all multi-story residential projects.

“Those are the ones we’ve verified so far; we’re still going through others,” Chakko said.

“We are reminding contractors that they all need to comply with social distancing requirements,” Chakko said. He had no direct response to the contractor’s letter, but said, “This order was put into place to save lives and I can’t make it any more specific than that.”

Arising from the overall quiet, a scatter of housing projects appear in gear this week, some matching the city list, and some not. Chakko said it’s hard to tell if work is allowed just by looking because contractors are allowed to secure and protect sites.

But the city has started cracking down on violators. An April 3 COVID-19 status update from the city’s emergency operations center lists shelter-in-place violations in a number of categories, including construction projects. The majority are single-family-home construction projects. There have been 48 such violations, said Berkeley Police Officer Byron White, department spokesman.

Clarity on rules is a work in progress

Chakko said the city hopes that contractors will comply with the health order on their own, without prodding. In most cases, he said, developers of large projects already have regular communication with city planning officials as they work through the permitting process. This communication now includes rules relating to COVID-19.


He encouraged people with questions or concerns about an active construction project to email planning@cityofberkeley.info or call 510-981-7410. People should include the address of the project, as well as a description of the construction activity.

“We really need people to comply on their own,” Chakko said. If not, he said, the city will shut projects down.

Under the first Bay Area health order, most construction in Berkeley continued, albeit with confusion about exactly what was and wasn’t allowed.

The extended order attempted to clarify the situation. It also added teeth. Under the order, violators face criminal penalties of up to $1,000 per day, 90 days in jail or both.

But even now, clarity may take a while.

A construction worker April 6 at the future site of The Apothecarium on Telegraph Avenue. Construction is continuing even though cannabis dispensary construction is not permitted in the expanded shelter-in-place order. Photo: Pete Rosos

For example, work continued this week on The Apothecarium project on Telegraph Avenue, a marijuana dispensary. According to Chakko, marijuana dispensary construction isn’t allowed as the use isn’t directly related to the COVID-19 response. Healthcare construction directly related to virus response is permitted.

Berkeleyside reached out to Ryan Hudson, the co-founder and CEO of The Apothecarium, who didn’t respond. But a worker at the site, who didn’t want to provide his name or title on the record, said if they’re asked by the city to shut down, they’ll do it immediately. He pointed out that a city public works inspector had stopped by this week to check the new sidewalk, part of the project, and said nothing about the ongoing work.

Bay Area stricter than other parts of state

Newsom said last week that he favors less restrictive construction regulations, and doesn’t think the Bay Area’s rules are necessary. “We’ve been working very closely with the building construction trades,” Newsom said at a daily briefing, as reported by Politico.

Newsom said he is satisfied with the workforce safety efforts of the state’s construction industry.

Local health orders take precedent over state regulations, so the governor has no power to change the Bay Area rules.

North Berkeley Senior Center under remodel. Construction is allowed on the center as it’s a designated center for disaster response, though the site was quiet this week. Photo: Kate Rauch

The Bay Area’s strict stay-at-home order is being lauded nationally by many epidemiologists, with some data indicating the restrictions have boosted social distancing, considered the major way to stop transmission of the virus. Most experts agree, however, that more data is needed before drawing conclusions on how the measures are affecting the impact of  COVID-19. But several other counties, as well as some states, are modeling their social distancing policies after the Bay Area.

When issuing the updated order, the city’s health officer, Dr. Lisa Hernandez, said “While many people have taken on these responsibilities with care and focus, we need to do even better. Lives depend on everyone taking action.”

One contractor reached by Berkeleyside sounded a bit stunned, probably reflecting a common feeling as businesses adjust to the extended order. “Thank you for reaching out. We don’t have any comments right now, except we’re right in the middle of dealing with all the employee and employer issues that this has brought about,” said Burak Kasapoglu, operations manager of MN Builders in Oakland.

Update, April 11, 10:50 a.m.: In a virtual town hall meeting on Friday, City Manager Dee Williams-Ridley said that the city had told about 80% of the ongoing construction projects in Berkeley to cease and desist building. She said eight non-residential projects are being allowed to continue.

Berkeley has also created a process for people and companies that don’t comply with the shelter-in-place order. They will get a verbal warning, then a written one, and finally they could be subject to arrest on a misdemeanor charge, she said. However, the city prefers voluntarily compliance above all.