Two years and two lawsuits after an application was lodged to build new housing in West Berkeley a judge has ruled against City Council’s objection.

A judge on Friday ruled that the city of Berkeley must allow the construction of three new housing units on Haskell Street in a case that has dragged on for two years and seen neighbors accused of being Nimbys (Not in my Back Yard) pitted against self-described Yimbys (Yes in my Back Yard).

The city’s rejection of a developer’s proposal to build three new housing units on a lot at 1310 Haskell St. in West Berkeley, replacing a single home, has also taken on symbolic significance at a time when there is a housing crisis in the Bay Area and Berkeley’s Mayor Jesse Arreguín has been criticized for being “anti-development,” (a claim he denies).

Sitting in the Alameda County Superior Court in Hayward, Judge Kimberly Colwell ruled that the project should go back to council to be reconsidered. She stated that in denying approval of the project, the city did not make the findings required by the Housing Accountability Act (HAA). (See the ruling.)

It was the second time the San Francisco Bay Area Renters’ Federation (SFBARF) had sued Berkeley over this case. The city’s zoning board voted in March 2016 to approve project permits at 1310 Haskell for developer Cristian Szilagy to replace one old house with three small new ones designed by Baran Studio Architecture. Neighbors appealed, voicing opposition on grounds including parking and traffic, and council sided with them in July 2016. SFBARF successfully sued to get the project reconsidered, which brought it back to council in February of this year. But council voted it down again, prompting another lawsuit.

“Berkeley is on the cutting edge of law avoidance”

“Berkeley cannot exempt itself from the state’s housing laws,” said Ryan Patterson, the attorney representing SFBARF, after the ruling. “The law says that if a project meets all objective code requirements, it must be approved.” He added: “Berkeley is on the cutting edge of law avoidance.”

Berkeley City Attorney Zach Cowan had made clear to the council during previous discussions that its reason to deny the project did not hold up legally, a fact that was raised by Judge Colwell in the courtroom Friday.

According to the Housing Accountability Act, 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. The council did not base its decision on an adverse impact, however. Instead, Mayor Arreguín said that while the HAA would require the city to issue a use permit for the new project, the necessary demolition permit for the existing single-family house on the site was not covered by the HAA. 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.

The mayor has also stressed since he took office that he wants control over housing plans for the city to be local rather than statewide.

“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 told Berkeleyside in March. “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.

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“My reading is that [the HAA] would encompass whatever discretionary permits are necessary,” Cowan said. “I think that would encompass the demolition.”

In the ruling, Judge Colwell appeared to agree, writing: “It is not a reasonable interpretation of the parties’ settlement agreement that City could avoid the HAA analysis it agreed to perform by denying an ancillary demolition permit (for reasons that did not have to do with detriment caused by the demolition of the existing structure, but the construction of the Project).”

Similar project built in 2013

A similar project built four years ago appeared to meet little resistance in comparison. Designed by the same architects who submitted plans for Haskell Street, three homes were built at 2010 Ninth St. in West Berkeley in 2013. In that case, the lot on which the houses were built was vacant, although a permit had been granted to build a three-story, nine-unit building on it. At a community meeting attended by six local residents, concerns were raised about the three-unit housing project, but there was agreement that it was preferable to a nine-unit building. In October 2011 staff recommended the zoning board approve the project. The three units, each containing a garage, are sited in a row with the front one facing the street. One of the houses sold this week for $1 million.

Another battle over housing brewing?

Meanwhile, another housing proposal up for review may end up mirroring the Haskell case. The plan — to build four new detached single family houses at 1446 Fifth St. — is being appealed by a group of neighbors who argue that valuable parking would be lost as a result of the construction, and that the developer, Matthew Wadlund, may be skirting his obligations towards the Affordable Housing Mitigation Ordinance.

This week Cowan said both the city and the attorneys for the petitioners had contacted Judge Colwell to ask her for clarification on what should happen next with the Haskell case. Her ruling states that the city must now schedule a rehearing of the appeal of the use permit to occur within four months and “conduct an HAA analysis.”

“We have the same agenda,” Cowan said, speaking about parties on both sides of the suit. “We want to verify what she has in mind.”

Szilagy, who submitted the plans for Haskel Street, said he is tired of the back and forth between judge and city.

“I fear it’s going to continue, and it’s discouraging as I have money in the property and I have had to support the property for years,” he said.

Szilagy said he is also frustrated that “the city is treating me as if I were a big developer.” Szilagy has worked primarily as a building contractor in the past, on homes in the East Bay. He helped build the three homes at 2010 Ninth Street mentioned above. In 2014, he worked with developer John Newton at a project at 1911 Ninth St. in Berkeley which saw the demolition of an existing house to make way for three single-family units designed by Tom Anthony. Szilagy did the framing for the homes, he said.

Based on his experience working with developers, he took the opportunity he saw on Haskell Street which was zoned for four units.

“I’m confused — at first they give me hope — and then again a second time,” he said, referring to the early approval of the project and then another ruling in his favor.

He said he assumed the city would now take the maximum four months it is entitled to to bring the project back to council, and he isn’t necessarily optimistic about the ultimate outcome.

“After being denied twice, the city might not approve it a third time because it won’t look good for them,” he said.

SFBARF leader Sonja Trauss said Tuesday that while she was glad the court decision had gone the way it did, it was frustrating that the Haskell project was still not fully approved and might be debated once more by council.

“We have a law, the judge said twice the council should adhere to that law and it didn’t,” she said. Trauss said while her group is ready to organize again if the case goes back for discussion, her ideal outcome now would be a response from Judge Colwell simply granting permission for the three housing units to be built.

This story was updated shortly after publication after we were able to speak with developer Christian Szilagy.