2902 Adeline housing project forges ahead after South Berkeley land deal, lawsuit

A rendering of a proposed view of 2902 Adeline, looking southwest from Adeline and Russell streets. Image: Trachtenberg Architects

Developers who hope to build a six-story, 50-unit housing complex on Adeline Street in South Berkeley say they are moving forward with their plans, having recently bought the project property and won a lawsuit brought by neighbors last year.

Escrow closed Aug. 31 for the land where Aw Pottery used to operate, on the west side of Adeline just south of Russell Street. Broker Seet Thang, with Coldwell Banker Bartels Realtors in Pinole, confirmed that the $4.225 million land deal, for three contiguous parcels at Adeline and Russell, had closed between developer Realtex and the Aw family.

Cody Fornari, CEO of San Francisco-based Realtex, said Friday that completing the land purchase was “a big step” for the project. He said the team was “fairly excited” about having won the lawsuit, too.

Robert Lauriston, one member of the South Berkeley group that filed the lawsuit under the name “2902 Adeline St. neighbors,” said the deadline to file an appeal doesn’t pass until next week. He said, as of Monday, no decision had been made about next steps.


Fornari said the project team will now focus on construction drawings, and hopes to break ground between eight months and one year from now. He said there will likely be a neighborhood meeting in 2019 to bring the community up to speed before groundbreaking.

Fornari said the project is moving ahead despite increasing construction costs that are “certainly rising faster than I think anyone has expected or predicted.”

A bird’s eye view of 2902 Adeline looking south from Milvia and Russell. Image: Trachtenberg Architects

He dismissed recent rumors that have circulated, regarding the use permit deal city officials approved last year, alleging the deal might have been too generous to pencil out.

“It’s a fine balance to make these projects work. I hope we haven’t tipped over that with rises in construction costs,” he said. “We’re still fairly confident we’re OK at this point. We’ll have to see what the future brings.”

Fornari said Realtex absolutely plans to build 2902 Adeline rather than sell the land and leave construction to someone else: “We’re certainly excited to be an official neighbor, a good neighbor, in the area.”

That may be a tough sell for some, including the nearly three dozen local residents who appealed the project’s approval by the zoning board in 2016. Project critics, as an unincorporated nonprofit neighborhood association, then sued the city and the developer in August 2017. They alleged that the city should not have granted the project a density bonus because more than 60% of the renters on-site previously were low-income tenants, and the project is not providing the same percentage of those units in the new complex.

Alameda County Superior Court Judge James Reilly ultimately sided with the city, in his July 10 ruling, and said there wasn’t substantial enough evidence presented by the neighborhood association to make that case.

“Evidence is not substantial merely because, viewed in isolation, it supports a challenged finding. Rather, the trial court must ‘consider “the whole record” in reviewing the evidentiary basis for the administrative decision,'” he wrote, citing earlier legal precedent about the meaning of the term “substantial evidence,” which “‘must be of ponderable legal significance. Obviously the word cannot be deemed synonymous with “any” evidence.'”

Neighbor Lauriston said the judge “was just repeating the same mistake the city made” in dismissing documents that indicate low-income renters once lived on the property, which includes three parcels: 2902 and 2908 Adeline and 1946 Russell. The neighbors argued that there have historically been low-income tenants at 2908 Adeline and 1946 Russell, and provided online listings and other materials as evidence.

“We weren’t required to prove it,” Lauriston said. “They put the onus of proof on neighbors when it was supposed to be on the property owner and the city.”

The city argued that statements from the property owners — which said the properties were owner-occupied or occupied by people who were not low-income — constituted the substantial evidence it needed to grant the density bonus, and said the neighbors who appealed only provided hearsay and incomplete information about tenant income levels and dates of occupancy.

Lauriston disagreed, and contends the judge “just rubber-stamped what the city said,” adding, “They don’t necessarily like to go against elected officials if they can avoid it.”

The City Council voted 8-0-1 (Cheryl Davila abstained) in favor of the project after the East Bay Community Law Center, representing the group Friends of Adeline, struck the deal in May 2017 for 50 new units with nine affordable (four at 50% of the area median income, or AMI, four at 80%, and one at 120%); a payment of $68,000 into the city’s Housing Trust Fund to build affordable units elsewhere; a “voluntary donation” of $100,000 to help create a “community advocate” position at the law center to fight displacement and offer other assistance; and monthly meetings with Harriet Tubman residents — senior housing across the street — during construction.

The deal, brokered by Councilman Ben Bartlett with some help from Mayor Jesse Arreguín, has been described as “innovative” and “incredible” because it included community benefits that are not required by the municipal code.

Lauriston said it remains to be seen whether the neighbors who filed the lawsuit will have to pay for the developer’s attorney fees from the nearly year-long legal battle.

“That’s a matter for discussion,” he said. “That is to be negotiated with Realtex.”

[Note: Berkeleyside added a slight clarification after publication regarding the work of the East Bay Community Law Center and the group it represented. Friends of Adeline is made up of many neighbors of 2902 Adeline, most of whom supported the final deal. The Law Center was not involved in the subsequent lawsuit against the project.]