Opinion: Berkeley City Council is exploiting the demolition ordinance

With the case of 1310 Haskell St., the council is making a misguided attempt to circumvent state law and obstruct the development of housing in our city.

By David Kellogg

David Kellogg is Berkeley resident and graduate of UC Berkeley.

The Berkeley City Council is exploiting the demolition ordinance in a misguided attempt to circumvent state law and obstruct housing development.

The recent fight between the Berkeley City Council and the San Francisco Bay Area Renters Federation (SFBARF) regarding the proposed development at 1310 Haskell St. provides a enlightening perspective on the council’s approach to housing and the extent to which the council is willing to stretch its powers to fight development that doesn’t satisfy its personal preferences.

In the Haskell project, a developer purchased a single family home after its owner died. The developer has proposed tearing down this vacant and dated home and replacing it with three two-story residences, each of which would have off-street parking. The zoning code would permit four three-story residences on the lot. The project satisfies all the zoning ordinance requirements such as open space, parking, setbacks, height, unit count, etc. As a result, the California Housing Accountability Act, or HAA, effectively mandates approval of the project. (The HAA serves to prevent cities from imposing unofficial zoning requirements based on the personal preferences of local officials.) The City Council concedes these facts.

The opposition to Haskell had numerous concerns with the project, including claims of reduced street parking, increased traffic and shading of the neighbors’ yards. Even if these concerns are valid and substantial, the HAA says they are not enough to deny a project. The City Council concedes this fact.

Faced with a state requirement to approve the project, the City Council is now exploiting the Berkeley demolition ordinance to justify denial of Haskell (see the City Council’s latest legal brief). The Council is doing so in spite of the professional planning staff, who stated in an open meeting that they believed the HAA applied to demolition permits.

Berkeley’s demolition ordinance is somewhat unique, from a national perspective, in that it is a discretionary permit. A demolition permit for a single-family home can only be granted upon a finding that “the elimination of the dwelling unit would not be materially detrimental to the housing needs and public interest of the affected neighborhood and the City.” This squishy language provides the City with the ability to exercise reasonable discretion. The City Council argues this discretion is needed to preserve the city’s “stock of existing affordable housing and to protect its architectural and historic resources” and to “prevent the loss of older, more affordable housing.”

In its brief, the City Council argues that if the HAA applied to demolition permits, it would be required to approve demolition of a 100-unit apartment complex to make room for a 10-unit luxury condo development. The Council’s straw man argument is just silly. The current demolition ordinance lists demolition to allow construction of an equal number of units as an objective criterion allowing demolition. If the HAA were applied, the council would still be free to reject such a ridiculous request from a developer, for failing that objective criterion.

The City Council abused its discretion under the demolition ordinance in its denial of the Haskell’s demolition permit. The Council based its denial of the demolition permit citing the reasons that are legally insufficient under the HAA for the construction permit. The Council never even bothered to come up with arguments grounded in the demolition ordinance. This is an abuse of discretion.

The single-family home at Haskell is not architecturally or historically significant and is not affordable housing. The home may be older and dated, but it would never be rented out in its current state. Since the home will either be renovated or replaced with more units regardless of the demolition decision, there is no justifiable reason to deny demolition of the existing home other than the Council’s personal opposition to increased density in the neighborhood.

While we await the Superior Court’s decision, consider some possible outcomes of the legal battle. SFBARF could prevail on a finding the council abused its discretion in denying the demolition permit or a finding that the HAA applies to demolition permits. In contrast, the City Council can only truly prevail if the court exempts the Berkeley’s demolition ordinance from the HAA, giving cities statewide legal ammunition to pass similar laws and thereby undermining the entire purpose of the HAA. Which seems more likely?

The City Council should approve the Haskell project, grant or deny demolition permits on factors actually related to the demolition, and stop wasting money fighting responsible property owners. Developers and homeowners alike deserve certainty about what they can build on their properties.