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The worst fear of city planners, whose affordable housing plan was rejected by the state earlier this summer, may come true. 

A developer, who says the city’s rejected Housing Element doesn’t have to be followed, is threatening to use the courts to prove her point. The challenge could open the door for other developers to skirt Berkeley’s zoning rules. 

Lynda Hart and her mother are threatening the suit. They say that without a valid Housing Element the city must accept their proposed three-story, 16-unit apartment complex at 1155 Hearst Ave. Four of the planned units would be zoned for Section 8 affordable housing. 

In July, the Zoning Adjustment Board denied Hart’s plan.  

The board ruled that the street had been rezoned that year to prohibit new buildings taller than two-stories. Instead of redesigning the development, Hart and her attorney, Rena Rickles, say they will sue the city on grounds that California housing law forbids Berkeley’s zoning regulations to stop affordable housing. 

Hart said the city’s rezoning of her block after she submitted her plan amounted to an illegal constraint because a smaller development would have yielded fewer affordable units. 

Paul Shain, who lives behind Hart’s property, disagreed. He said rezoning the block corrected an anomaly that if not rectified would have encouraged more large apartment complexes, destroying the character of the neighborhood. 

Zoning officials also rejected Hart’s argument, asserting that the California law was designed only for cities that opposed affordable housing. 

Because Berkeley had laws requiring projects to include affordable housing and had produced more than its share of affordable units, the city did not have to approve Hart’s project, ZAB members said. 

But three weeks later, the California Department of Housing and Community Development rejected Berkeley’s housing element plan that aimed to meet the state-mandated goal of 1,269 affordable housing units, saying the plan contained too many development restrictions. 

Hart says the rejection of the plan will help her case. 

“Since they don’t have an approved housing element they don’t have a leg to stand on,” said Hart. 

Although Berkeley officials don’t agree with Hart’s interpretation of state law, Alexander Amoroso, senior planner with the Association of Bay Area Governments, said that without a valid housing element Berkeley is vulnerable to such lawsuits and has the burden of proving that it is meeting its quota. 

If a suit is filed, it will be the first challenge to city zoning regulations based on state housing law. A victory by Hart could usher in more lawsuits, but local developer Patrick Kennedy questioned the suits potential for an impact. 

“We do a lot developments so it’s never been productive to sue the city,” he said. 

Contact reporter at matt@berkeleydailyplanet.net