Appeals Court to Rule on Senior Housing Project

Friday July 23, 2004

A Berkeley Housing Commissioner and her supporters Tuesday took their concerns over a planned affordable senior housing complex before the California Court of Appeals. 

Lead appellant Marie Bowman is asking a three-judge panel to overturn last year’s Superior Court ruling exempting the city from conducting the most stringent type of environmental review for Sacramento Senior Homes, a 40-unit, 13-parking space complex at 2517 Sacramento St., the site of the former Outback clothing store. 

The appeals panel must submit a ruling within 90 days. 

Should Bowman prevail, Berkeley Assistant City Attorney Zach Cowan warned the justices that virtually any new housing project would require a costly and time consuming environmental impact report, which he said would add a year and $150,000 to the cost of developments.  

“This is a practical barrier and the court should acknowledge that,” he said. 

Councilmember Linda Maio said delays from Bowman’s lawsuit, filed after the council first approved the project in 2002, have already cost the city’s housing trust fund $750,000 in carrying costs, legal fees and rising construction prices, which would jump to $1.2 million if construction on the $10.5 million project was further delayed until next year. 

Bowman said Wednesday that should they lose, she would confer with her co-appellants on whether to take the case to the state Supreme Court.  

As with most infill housing projects in Berkeley, the city issued a Mitigated Negative Declaration for Sacramento Senior Homes. This is a limited form of environmental review which doesn’t require the developer to respond to residents’ concerns or consider alternatives to the project as proposed. 

Conceived in 1999 as affordable housing for families, the five-story building that steps back to three stories in some sections has gone through numerous incarnations and design changes as the developer—Affordable Housing Associates (AHA)—and neighbors failed to settle their differences. 

Roughly two minutes into the appellants’ remarks, Justice Maria Rivera asked Bowman’s attorney—Susan Brandt-Hawley—why the justices should require an EIR when the city has already considered alternatives. 

“That is not the question before you today,” Brandt-Hawley replied. “If the court said no to an EIR, that would turn 30 years of case law on its head.” 

The appellants argued that the city had failed to consider the possible existence of toxins at the site, a former gas station, misapplied state housing law, and failed to mitigate the aesthetic affects of a building that rises up to 50 feet beside a residential community full of 17-foot homes. 

Days before the hearing, justices Laurence Kay, Timothy Reardon and Lopez asked attorneys for both sides to be ready “to discuss the relevance to the aesthetics issue” of six state and federal design review cases. Most of their inquiries, mainly directed at Brandt-Hawley, focused on whether the city’s extensive review of the design, despite objections raised by neighbors and design experts, satisfied its legal obligation under the California Environmental Quality Act (CEQA). 

In a joint brief, Ellen Garber, representing Affordable Housing Associates, and Cowan argued that comments from architects cited by the appellants were subjective opinions and didn’t constitute the “substantial evidence” needed to mandate an EIR. They also held that CEQA is concerned with substantial, adverse effects on scenic resources and visual quality, not the design of housing in an urban area. 

“While a 40-unit affordable senior housing project on less than one-half acre might conceivably have a significant aesthetic impact if built in Yosemite National Park, its proposed location...will hardly interfere with a scenic vista or substantially degrade the visual quality of the area,” the joint brief read. 

Brandt-Hawley, in her brief, countered that aesthetics of California cities have always been protected by CEQA along with natural wilderness areas.  

“There is nothing in [CEQA’s] construction that declares urban aesthetics unworthy of consideration along with ocean views and Sierra vistas,” she wrote. She added that even though her expert testimony from architects could be characterized by some as “subjective,” they still “indisputably qualify as fact-based evidence.”