BERKELEY — The landlord of an apartment house slated for demolition near the UC Berkeley campus is suing the city in federal court, contending that city-imposed mitigation fees and other conditions are so onerous as to be unconstitutional.

The city has filed a motion to dismiss the case, contending that the municipal demolition ordinance, and its intent to mitigate the loss of affordable housing, fulfill a public purpose in accordance with the Constitution. The city cites an array of technical grounds as well in its motion to dismiss.

OPCHA LLC wants to tear down a vacant three-story, rent-controlled building with 18 apartments at 2631 Durant Ave. and replace it with a new five-story building with 56 apartments.

On June 28,the City Council approved a permit for demolition and new construction, subject to a fee, yet to be determined pending a nexus study,﻿ to mitigate the loss of affordable units.

OPCHA, its managing partner Clifford Orloff, and Olga Orloff sued the city in June, a year after the Zoning Adjustments Board approved the project with the assumption that it would include four below-market-rate units in addition to 20 rent-restricted units with limits on future increases.

The ZAB approval prompted an appeal on behalf of the Associated Students of the University of California, which contended that the owner had deliberately allowed the building to deteriorate to the point of inhabitability to get out from under rent control. The owner additionally had invited the Berkeley Fire Department to do training exercises in the building in late 2014, which involved cutting holes in the roof, walls and ceiling, ASUC representatives noted.

OPCHA, as well, appealed the ZAB ruling, challenging that board’s assumption about the number of below-market and rent-restricted units. That assumption became moot, once the council approved the permit subject to the yet-to-be determined demolition fee. The project also is subject to an Affordable Housing Mitigation Fee of $28,000 per unit; in lieu of that fee, the owner can make 10 percent of the new units affordable.

The Orloffs and OPCHA are represented by attorney David Trotter, who also is a Moraga Town Council member. The suit was filed June 6 in U.S. District for the Northern District of California, San Francisco Division. The city’s motion to dismiss was filed July 15.

In a reference to the city’s demolition ordinance, revised by the City Council in March 2016, the plaintiffs fault Berkeley for “its enactment of legislation that illegally and unconstitutionally requires property owners to transfer massive sums of money to the City and tenants in order to exercise an essential right of property ownership: the right to develop property.” They seek, among other relief, a declaration from the court that the ordinance violates the Fifth Amendment of the Constitution and its Due Process Clause, and is therefore invalid.

The city, in its motion to dismiss, argues that there is a definite nexus between mitigation fees and the public purpose of mitigating the loss of affordable housing; that numerous provisions of the ordinance, which the plaintiffs want struck down in its entirety, do not even apply to the plaintiffs; and that challenges to the fees as being excessive are premature, or “unripe,” since the fees have not been set yet.

A court hearing is set for Sept. 2.

Contact Tom Lochner at 510-262-2760. Follow him at Twitter.com/tomlochner.