Berkeley City Council Tuesday night upheld the appeal against the Zoning Adjustments Board’s March 2016 decision to approve a three-unit housing project at 1310 Haskell St. The decision seems certain to provoke a civil suit against the city.
Normally, a small housing project does not take a year to wend its way from ZAB to the council. This one involves replacing a single-family home with three new detached two-story homes. But the Haskell Street project was in fact rejected by the council in July 2016. That decision triggered a civil suit – Bay Area Renter’s Federation et. al. v. City of Berkeley – based on the state’s Housing Accountability Act (HAA). Last October, the city settled the suit by agreeing to rescind its July decision, hold a new public hearing, and to comply with the HAA in its decision at the rehearing.
City staff had recommended the council approve the use permit. In a presentation to the council, staff from the planning department said that the lot was zoned for up to four three-story units. The proposed project was to build three two-story units.
According to the HAA, if a housing development meets a city’s zoning and planning guidelines, it can only be denied if it has a “specific adverse impact on public health or safety.” According to the city staff, there were no issues that would disqualify the project.
A long line of Haskell Street neighbors disagreed, citing traffic, parking and other issues.
The council majority sided with the vocal neighbors, but did not base their decision on an adverse impact. Mayor Jesse Arreguín said that while the use permit would be required by the HAA, the necessary demolition permit for the existing single-family house on the site was not covered. He said if the project kept the existing house and proposed another three units on the site, eliminating the need for a demolition permit, it would not raise any issues.
“Council came to the conclusion because we are granting additional discretionary permits, we determined that we are not obligated to have to follow the act with respect to the project,” Arreguín said to Berkeleyside. “Code doesn’t require a demolition permit. That’s an additional permit that the applicant is requesting.”
City attorney Zach Cowan disagreed when questioned at the council meeting.
“My reading is that [the HAA] would encompass whatever discretionary permits are necessary,” Cowan said. “I think that would encompass the demolition.”
Both Arreguín and Cowan agreed that there is relatively little case law on the issue.
Arreguín’s motion to deny the use permit passed 5-2, with only council members Lori Droste and Susan Wengraf opposing the motion. Council member Sophie Hahn recused herself from the matter since she had been on the ZAB when the original decision was made. A prior motion to deny the appeal failed 4-3, with Droste and Wengraf joined by Councilman Kriss Worthington (Worthington voted yes both to approve and oppose the project in the two separate motions).
Brian Hanlon, co-executive director, California Renters Legal Advocacy and Education Fund (CaRLA), which funded and was party to the civil suit last year, told Berkeleyside that a new suit was certain.
“As far as I’m concerned, the City Council violated the stipulated order that they signed,” Hanlon said to Berkeleyside. “They did not make specific adverse findings that this project would have a negative impact on health and safety. It was mostly rather vague. We’re now going to have to go back to the court to enforce it. We’re going to ask the court to take remedial action.”
Hanlon said CaRLA would seek an expedited decision from the courts, but timing of the suit was not yet certain.
Others involved in the Bay Area Renter’s Federation (BARF) were equally certain of legal action.
— Victoria Fierce (@tdfischer_) March 1, 2017
— SFBA Metro Observer (@MetroObserver) March 1, 2017
At the heart of the dispute between the council majority and CaRLA, BARF and other advocates is the extent of city discretion on approving or denying housing projects.
“It’s important that we understand what our rights are as a city under the Housing Accountability Act and that we exercise our discretion to shape the built environment of our city,” Arreguín said. “SF BARF has a political agenda to tie the hands of cities. I think it would be more appropriate if they focused on Danville and Moraga and other cities that have not met their fair share rather than going after Berkeley and trying to strip the city of its land-use authority. I think we made the right decision.”
Hanlon disagrees with Arreguín’s perspective.
“The Housing Accountability Act used to be known as the anti-NIMBY law,” Hanlon said. “The point of the act is the legislature way back in 1982 saw that localities were denying housing for any number of reasons. The legislature said we’re not going to take away your discretion. The act preserves local land use and local zoning. All it says is localities have to follow their own laws.”
Hanlon said Arreguín’s statements at the council meeting amounted to “faux populist fear mongering.”
“It shows you how absurd the situation has become in places like Berkeley,” he said. “You have massive organizing at the local level to obstruct three homes. That some people think this is a social justice effort is completely asinine. These types of actions over and over again are why we have a housing shortage.”