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Builder looks to state law for approval

By Kurtis Alexander, Daily Planet Staff
Thursday July 11, 2002

Interprets law to mean the city
cannot deny the proposal 


Expecting a residential project on Hearst Street to be shot down by the city’s zoning adjustments board tonight, the project applicant is questioning the city’s right to deny housing at a time when the city needs it more than ever. 

Because the proposed housing complex includes four affordable-housing units, the applicant claims that the city must approve the 14-unit complex even though it is larger than the current zoning regulations allow. 

California housing law forbids a city's zoning laws from blocking the building of affordable housing, and that’s what’s happening on Hearst Street, said Rena Rickles, the attorney for project applicant Lynda Hart. 

No one has ever used the state housing statute to defend a development in Berkeley, zoning board officials said.  

Many fear the law, if enacted, could undermine the zoning board’s ability to exercise control over all new housing projects in the city. 

Rickles said the city by law must approve the project. If it doesn't, her client, the daughter of the property owner at 1155 Hearst Ave., could take the city to court. 

The zoning board, though, says the state statute does not apply to Berkeley and is not afraid to be challenged. 

“The law is designed for cities that are not supportive of affordable housing,” said boardmember Andy Katz. Berkeley is aggressive enough in affordable housing, he said. 

City planners said they’re on their way to meeting the state requirement of 1,269 housing units be built in Berkeley by 2007. Furthermore, city zoning law requires that all residential complexes with five or more units be built with at least 20 percent of the units as affordable. 

The city’s housing element, which provides a blueprint of future housing, is currently being reviewed by the state’s Department of Housing and Community Development. 

Rickels says the city’s numbers are all wrong. The city counts projects that are in various planning stages as meeting the state's requirement, instead of the “number of new housing units approved for construction,” she said. 

“Something in the pipeline is highly speculative to rely on as a housing unit that can be built,” Rickels said. 

She said that California law is on her side. Until the city can prove that it meets state requirements, the Hearst Avenue project by law cannot be denied, she said. 

Another point of contention, Rickels said, is that the city changed zoning laws at the Hearst Avenue site after her client submitted her project proposal. 

A March decision by the zoning board reclassified the Hearst Avenue property and nine others as R-2A from R-3, meaning the number of living units allowed at site is eight instead of 14. 

While Rickels says the action undermines the necessary push for housing. City planners contend that housing is not needed in that neighborhood.  

“The board concluded that the 74 affordable units approved by the board so far this year, in addition to the approximately 75 affordable units pending board action, were more than enough to meet the regional fair share housing target,” a recent staff report read. 

With the city convinced that it has met state guidelines, the zoning board tonight will not discuss the state housing statute – California Government Code Section 65589.5 d. Instead, the board will consider the Hearst Street project based on its compliance with zoning law.