As promised in February, a Bay Area renters group has sued the Berkeley City Council — again — over its rejection of a three-unit infill housing project on Haskell Street.
The rejection, which was a split vote, followed steep neighborhood opposition to the project in recent years. The city’s zoning board voted in March 2016 to approve project permits at 1310 Haskell, to replace one old house with three small new ones. Neighbors appealed, and council sided with them in July. The San Francisco Bay Area Renters’ Federation successfully sued to get the project reconsidered, which brought it back to council in February. But council voted it down again, prompting the new lawsuit.
The renters group has asked for a June 20 hearing, before an Alameda County Superior Court judge, to overturn the council rejection, uphold the zoning board approval and allow the project to move forward, more than two years after it was submitted to the city. The renters group is made up of housing advocates who push for the density they say is needed to combat the Bay Area housing crisis. Many of its members call themselves “YIMBYs” (short for “yes in my backyard”) to distinguish themselves from the so-called NIMBY, or “not in my backyard,” position.
The renters group says the zoning board found the project in line with all city development standards, and that council did not cite grounds to reject it. The group says the state Housing Accountability Act is the legal basis for its lawsuit.
Under the act, “if a proposed housing project complies with a city’s general plan and zoning standards, the city may not disapprove or condition the project at a lower density unless it provides written findings supported by substantial evidence that the project would have a specific, adverse impact” on public health or safety that cannot be mitigated or addressed.
City staff had recommended in February that council approve the needed permits. In a presentation to council, staff from the planning department said the lot is zoned for up to four 3-story units. The proposed project is for three detached 2-story units.
Haskell Street neighbors cited traffic, parking and other issues as among their concerns. Local residents have also questioned the way the housing act is being used by the renters group, and whether it is legitimate.
Council essentially said in February that it could not make the “non-detriment” finding required to approve the demolition permit for the project. As a result, council said, the Housing Accountability Act, or HAA, did not apply. Council voted 3-4-1 to approve the project, then 5-2-1 to reject it.
“The City Council reached its decision primarily, if not solely, because of the pressure … ‘not in my backyard’ (or ‘NIMBY’) protesters put on it,” according to the lawsuit. “The City Council did exactly what the HAA was designed to prevent.”
The renters group said council found no specific, adverse impact, supported by substantial evidence, that could not be mitigated. According to the lawsuit, the council majority was “intent on denying the Project one way or another.” So it “got clever” by saying the housing act did not apply. The lawsuit said the council interpretation, described as “its shenanigans,” was “simply wrong,” and says the city attorney himself said the housing act did apply.
“The City of Berkeley should be ashamed of its blatant underhandedness,” the lawsuit reads.
The group has asked Judge Kimberly Colwell to order the approval of the project if council cannot make proper findings against it.
The city does not comment on ongoing litigation.
The renters group, which sometimes goes by its acronym, SFBARF, embarked last year on a “Sue the Suburbs” campaign to get outlying cities that may be reticent about density to build more in light of the state’s housing crisis. The group sued the city of Lafayette in support of a large proposal there that was reduced in size in response to community concerns. The Housing Accountability Act was the basis for that lawsuit too. A settlement was reached in May.
