Lawsuit alleges Berkeley City Council illegally revoked housing development permit

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Kimberly Veklerov/File

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The Berkeley City Council has unknowingly violated a state housing development law for years, as alleged by an Oct. 7 lawsuit filed by the San Francisco Bay Area Renters’ Federation, or SFBARF.

The lawsuit alleges that the council violated California’s Housing Accountability Act, or HAA, when it revoked the approved zoning permit for a housing development at 1310 Haskell St. after neighbors complained that the proposed project would not fit into the character of their neighborhood.

The law states that a city or county cannot deny the approval of a housing project that complies with its general plan and zoning ordinance without substantial evidence that it will negatively impact public health or safety.

Councilmember Kriss Worthington said he and his fellow council members were aware that the HAA existed but were not aware of a 2011 court decision that clarified that the act applies to all housing developments, rather than exclusively to affordable housing developments, as previously thought. He said the council had not been considering this precedent in its decisions.

“I’m sure that they didn’t know,” said Sonja Trauss, a petitioner on the suit, the founder of SFBARF and cofounder of the California Renters Legal Advocacy and Education Fund, or CaRLA. “They are not professionals — the point is that we have a citizen-led government. … They don’t know the law a lot of times.”

As of press time, city spokesperson Matthai Chakko and Baran Studio Architecture — a real party in interest in the case — had not responded to interview requests. CS Development and Construction Inc., another real party in interest, declined to comment.

On July 12, City Council held a public hearing at which neighbors voiced their concerns about the project, after which the council voted — with five yes votes, zero no votes and four abstentions — to revoke the permit for the project.

The Zoning Adjustments Board had previously approved the permit for the proposed development in March because it complied with the neighborhood’s R-2A zoning standards and would not be detrimental to neighboring properties.

“We have not been given adequate access to the materials that we would need to always make the best decision,” said Sophie Hahn, ZAB member and candidate for the City Council District 5 seat. “This may not be the only law that is brought to our attention — I don’t think it’s unusual or a unique outlier.”

SFBARF is an unincorporated club organizing for density renters in the Bay Area. CaRLA is an incorporated nonprofit that funds SFBARF’s efforts in enforcing the HAA, which, according to Trauss, the group found out about last year.

“Everything is really cut and dry. No harm, no foul,” Trauss said. “I don’t feel like anyone’s taking it personally.”

Trauss said the issue is resolved to an extent — the council admits wrongdoing and, according to Trauss, agreed that the planning staff will from now on include a section on the law in staff reports.

Worthington said the law requires the approval of virtually all applications for housing developments, only allowing City Council to force a modification or reject a proposal under extreme circumstances.

“If we consider (the HAA) in relation to every project, it will change the whole development process in Berkeley,” Worthington said. “This is going to change the nature of Berkeley’s consideration of zoning cases.”

Contact Aleah Jennings-Newhouse at [email protected] and follow her on Twitter at @ajn_dc.

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  • Solo

    Good for Lori Droste who voted against the appeal on Feb 28, 2017, and BAD for ALL all of the other Council members who voted to uphold it. For shame- whether you knew the law or not. Get a backbone and do the right thing- we need housing! But now of course, now you don’t need have a backbone. All you “progressives”.

  • powerbus

    The HAA does not require approval of any housing development that “is inconsistent with both the jurisdiction’s zoning ordinance and general plan land use designation as specified in any element of the general plan as it existed on the date the application was deemed complete,” Since most of the big developments outside of the downtown area do not comply with the adopted Zoning Ordinance, the Council shouldn’t worry about its role in upholding local law. For example, last week the ZAB approved a development at 2902 Adeline, which Staff had determined was allowed 18 units under current Zoning. With 2 BMR units, they were allowed an additional 7 units for a total of 25. But they approved the project for 50 units, far beyond that allowed under current Zoning and not in keeping with the scale of the neighborhood. The Council can deny that excess with no concern for lawsuits.

  • paxallen1067

    Yep, another friendly push from those poised to invade (the Pods).

  • Rivendell Dweller

    Isn’t it great when someone like Sonja Trauss rolls into SF from Philadelphia and instantly creates BARF and thena legal wrecking crew in CARLA to begin suing cities for minding their own business? She is a lawyer’s daughter and self-described Anarchist who moved here on a whim, but now is forcing her politics onto Berkeley along with other East Bay cities. I guess that now all we can discuss is how much in bed with BARF and developers such as Realtex our city council members are, not what long-term property owners would like our city to look like. All Ms. Trauss needs to do now is find our local equivalent of Donald Trump to fully destroy what’s left of our once peaceful and quiet city of homes. I never imagined when I moved here 45 years ago that there would ever be such a radical laissez-faire movement promoting unlimited unrestricted growth actually controlling our city. I feel sorry for future generations who will be living in these human ratholes.

    • Edward

      I will agree with you the day that the City Council of Berkeley refrains from having its own foreign policy.

    • “…a radical laissez-faire movement promoting unlimited unrestricted growth actually controlling our city.”

      You are forgetting that we still control our zoning ordinance and our General Plan. HAA requires cities to follow their own rules, which seems reasonable enough.

    • EBGuy

      At a certain point, I have no doubt, I will tire of the BARFers as I’m getting older and the cranky pants are getting tighter. However, it was unconscionable for the the City Council to reject the permit for 1310 Haskell as the project had already been vetted by ZAB. The new homes had flat roofs and made an effort not to negatively impact their neighbors. It created much needed family housing on an underutilized lot. On occasion, the council does succumb to the mob mentality, and I was livid when they shutdown the Haskell project. Thank you BARF for taking up this cause.

  • JP

    “They are not professionals — the point is that we have a citizen-led government. … They don’t know the law a lot of times.”

    Uh, that’s why the position of “City Attorney” exists.

    • eean

      I believe Trauss was throwing shade.

  • Robbin Noir

    Rich people have never had difficulty finding a place to live. Working class people, that is, the labor force that makes each functioning work day possible, have a problem finding housing and that is the vast MAJORITY of people in the Bay Area (and everywhere else actually.) Let the rich people build their own custom houses as they always have, and save what land & building we have for people trying to get by on $15 an hour or less. STOP SUBSIDIZING THE WEALTHY.

  • justiceplease

    Councilmembers Droste, Capitelli, and Moore subscribe to the East Bay Forward twitter feed. East Bay Forward is the Berkeley branch of SF BARF, and they used to be called Berkeley BARF. One of their members is Greg Magofna, assistant to Mayor Bates. Magofna previously issued an email arranging for BARF projects in the Mayor’s office. BARF members were also responsible for lobbying the Mayor’s office to rearrange the agenda for a major City Council Meeting on Housing in order to promote the Mayor’s by-right housing proposal and suppress the affordable housing proposals offered by Arreguin and Worthington. While the Mayor re-arranges agendas for political purposes all the time, doing it in response to an outside lobbying group raises questions about the effectiveness of the Agenda-setting committee. This HAA law as BARF is presenting it seems to be a back door for the Mayor’s by-right development scheme, and if it’s passed it would be a total victory of Big Development over the local community/constituent voice in Berkeley.

    Council Members Droste, Moore, and Maio have made either regular or substitute appointments of BARF members on City Commissions. Capitelli, Bates, and Wengraf have preferred direct representatives of Big Development: but once a young BARF member like the current chair of Livable Berkeley attains some prestigious position, expect Capitelli, Bates, and Wengraf to continue to stuff commissions with BARF lobbyists for market rate development. City Council could limit BARF influence just by eliminating anyone who gets or seeks City government consulting gigs, but don’t expect that any time soon. This is all about the deep reach of Big Development and Tech money into our City government.

    Haskell is in Moore’s district. I hope this community group notices his support for BARF. Moore has been actively channeling BARF and overriding community groups in other districts. It was hypocritical for him to suddenly respect the community voice in his own district. I hope the Haskell community will appreciate what other communities have been going through because of BARF/East Bay Forward.

    Most recently East Bay Forward attacked a community group that was trying to get Realtex, a known property-flipping operation, to provide a community benefits package (that included more affordable housing and support for local community agencies) to mitigate gentrification. The community is represented by the East Bay Community Law Center in this endeavor, and the EBCLC has gone so far as to find social impact funding that could collaborate with the project in building affordable units. Realtex was only supported by form letters (primarily BARF members) from all over the region, and East Bay Forward/BARF showed up at the commission meeting and played Twitter drinking games the whole time. ZAB ignored the community and Realtex’s shady history in favor of pushing the current City Council’s market-rate ideology: Chair Pinkston even claimed that “all” the literature supported that opinion after she had heard quotes from the UC Berkeley Urban Displacement Project, ABAG, MTC, the White House Housing Development Tool Kit, and BART’s 2016 strategy about the need for subsidized housing for the sake of equity in Transit-Oriented Development.

    People can do their own research about the Machiavelli-quoting Sonja Trauss, her Big Tech funded social media organizing of neoliberal market ideologues. Perhaps they will reconsider whether they want Councilmembers who are reading their snarky attacks on seniors from the dais while the constituents they ostensibly represent try to make their public comments.

    I hope this lawsuit raises awareness of BARF in Berkeley: this 2016 election needs to be a referendum on their influence.

    • Hobo Catsuit

      This is not about “the deep reach of Big Development and Tech money into our City government.” This is about whether or not we, as a region, are going to build enough housing to accommodate our children as they grow up, and the many economic migrants that come to the Bay from all over the US and the world to work and live.

      It’s very simple. People —> Need housing —> Let’s build housing.

      When you oppose the Realtex project, or 1310 Haskell, you’re opposing housing. Evidently you already have housing, so you don’t care whether other people have housing or don’t. It’s a shame that already having housing isn’t enough for you. It’s a shame that you can’t just be happy having something that a lot of other people need, that you can’t be happy unless you prevent other people from having housing too.

      • justiceplease

        So you can afford the $6000/mo. apartment for housing? Shame on you for advocating for speculation in low income neighborhoods so rich people can have housing.

        • Hobo Catsuit

          What do you think “speculation” means?
          Also, where do you think rich people live if we don’t build new housing for them?

          • Robbin Noir

            Rich people have never had difficulty finding a place to live. Working class people, that is, the labor force that makes each functioning work day possible, have a problem finding housing and that is the vast MAJORITY of people in the Bay Area (and everywhere else actually.) Let the rich people build their own custom houses as they always have & save what land & building we have for people trying to get by on $15 an hour or less. STOP SUBSIDIZING THE WEALTHY.

          • Diego Aguilar-Canabal

            Great idea! Let’s charge market prices for parking and repeal Prop 13. Subsidizing the wealthy is bad policy.

          • justiceplease

            I’m all for repealing prop 13. For now charging market price for *all* parking is just going to penalize poor people who – according to Chapple’s research – have a greater need for cars than rich people. Fix the public transit system first.

          • ekoontz

            I agree with justiceplease, all we need to do is fix every other problem in California first, and then we’ll be ready to consider possibly building in Berkeley.

          • justiceplease

            Whatever – as long as we start with public transportation first. Many low and fixed-income people are dependent on that,

          • Chicken and egg. We’re already subsidizing public transit very heavily. We need to stop subsidizing parking if transit is going to improve.

          • justiceplease

            That’s like saying we need to take away housing and make people homeless if we want people to start subsidizing affordable housing. People need to get to work to support themselves.

          • No, it’s more like saying we need to stop giving away free drugs if we want to reduce the number of new addicts.

          • OpenFullHeart

            ekoontz, do you seriously think public transit is not central to sane housing policy, to workforce housing and getting the work done that the rich want done, i.e. the servant class needs housing and transit

          • Diego Aguilar-Canabal

            They can go back where they came from and leave our idyllic underinvested paradise in peace. No change is better than less-than-perfect change.

          • Zoe

            Not every single apartment in this building would be 6000 dollars a month, maybe you should think of the middle class families who need housing as well. One of these apartments could have been for low income families, had governor Brown’s trailer bill been approved. The bottom line is the so called liberal ideals of homeowners in Berkeley really stop at their doorstep. This is the extent of their inclusiveness and sense of justice. “I believe in equality and democracy, but when it comes to including people without the means to buy a house as expensive as mine in my neighborhood, I am a selfish, greedy and ruthless individualist who will stop at nothing to kill every housing project in the bud.” You all should be ashamed of yourselves. Don’t you have children? Don’t you remember what it was like to be young and to struggle with money? Or has old age and comfort made you blind to the reality of other people struggling to put a roof under their head?

          • justiceplease

            Rich people can build their own housing.

      • OpenFullHeart

        This article is not about Realtex. Do you have attentin deficit disorder? Why bring up an unrelated project?

    • Diego Aguilar-Canabal

      Excuse me– I was watching the meeting from home while tweeting about my drinking game.

      • Maura Lenard

        You are such a dirtbag.

        • Diego Aguilar-Canabal

          Lol. I’d be a dirt bag to you anyway if I went to express my serious opinions in person, because I’m “not from the neighborhood.” If I drink beer and express my opinions sardonically online, as the 1st and 21st amendments allow, nothing changes for you.

          There is no sense of logic underlying the moral high ground for your loony crowd. Up us down, the sky is green, and only new housing is “luxury” no matter what prices 100-year old houses can fetch.

          Gimme a break. Berkeley deserves the reputation it has earned as the most smug place on earth.

    • Maura Lenard

      Moore is up for re-election, which explains why he suddenly has taken an interest in his district.

    • Diego Aguilar-Canabal

      Say what you will about the Big Money Shills you love to hate, at least they engage in more effective advocacy strategies than responding to every single comment on every Berkeleyside article. Have you canvassed or phonebanked for your preferred candidates and ballot measures?

      • justiceplease

        Yes to phone-banking and other media services, though I’ve only tried canvassing once – my mobility issues don’t make me suited for that job. Are you done with the strawman projections yet?

        I participate in multiple community groups: it’s fun getting to know my neighbors instead of playing drinking games on Twitter.

        • Diego Aguilar-Canabal

          Trust me it is more fun to do both :)

          • justiceplease

            Twitter communities don’t count as “neighbors”: though you could al all be neighbors if you chipped into an Elon Musk project to found a colony on Mars. We need more housing density on other planets!

          • Diego Aguilar-Canabal

            You think I don’t invite my literal next door neighbors to drink with me? Now who’s projecting?

            What someone comments online is hardly indicative of how they spend their everyday lives. But you, as an anonymous username, surely know that.

          • justiceplease

            Well, cheers to your drinking game with all your Twitter buds and the guy you invited over.

          • Diego Aguilar-Canabal

            “guy”? Male, singular? My you’re particularly presumptuous tonight.

          • justiceplease

            You got me there. I do address most group emails as “Hi, guys!” (male and female). But, yes, I probably did imagine it was a guy you invited over to share your Twitter drinking game.

          • OpenFullHeart

            You are so boring. I am amazed justiceplease bothers to interact with you. Snore. . . .

          • Diego Aguilar-Canabal

            Me too lol

      • OpenFullHeart

        The only ‘effective advocacy’ the big money shills engage in is bribery disguised as campaign donations. They buy councilmembers, mayors, judges, assembly reps, state senators with their fat PACs and they spend fortunes mailing out lying deceitful propaganda to confuse voters so voters have trouble navigating the ballot.

    • Edward

      The Housing Accountability Act was passed in 1982. This is not a matter of “if passed” as you stated.

      It was thought to apply only to low income housing until the judicial ruling of Honchariw v. County of Stanislaus (200 Cal.App.4th 1066). This 2011 ruling of The California Court of Appeal stated that the Act applies to all housing projects, not just affordable projects. That is why everyone is sitting back and taking notice. The city council has very limited powers to change ZAB decisions and the ZAB can only rule on whether or not the zoning rules have been followed. The only exceptions are if health or safety of the neighborhood are affected, and that is a very high bar to meet.

      • justiceplease

        Perhaps a better way to state that is “if BARF wins the lawsuit”. BARF sure found a good way to curry favor with the Governor as well as local Big Developer Money politicians such as Mayor Bates and Councilmember Capitelli.

        ZAB has far greater leverage than ruling on zoning laws. Zoning laws say that you can only build 3 stories on the Adeline Corridor. ZAB had the “discretion” to give Realtex an additional 3 stories of permits to resell. My understanding is ZAB considers requests for discretionary use permits and waivers all the time. They also often send developers back to mediation with the neighbors. How would the HAA ruling treat ZAB’s discretionary decisions?

      • powerbus

        No, it doesn’t apply to “all housing projects”, just those that are in compliance with the current zoning ordinance, and that leaves the Realtex development, and most all high density projects in South and West Berkeley. Downtown already gone, build as high as you want there, but if you want greater density in areas that are already under adopted Specific or Area Plans, then go through the public process of changing the Zoning Ordinance. Stop picking and choosing which developers are allowed to ignore the law.

  • AlbertoRogers

    About time this law was enforced!