If good fences make good neighbors, Dan McLoughlin doesn’t think the folks who are moving next door look too promising.
When the Berkeley resident returned to his home on Spruce Street from a morning run Wednesday he found construction workers, hired by his new neighbors, had sawed off and hauled away his vine and flower-covered wooden fence that divided the two properties and replaced it with about 100 feet of chain link construction.
“I asked the construction crew, ‘Who told you to do this?’” McLoughlin said. “‘They said ‘Call [the owner’s] lawyers.’”
Sounds like a minor neighborhood dispute?
Not when the new neighbor happens to be Temple Beth El, which fought stiff local opposition to build their new home beside McLoughlin’s, and when the broken fence comes one day after McLoughlin filed suit against the congregation and its contractor, BBI Construction, seeking to halt construction on a portion of the new $8 million, 33,000-square-foot synagogue.
“It seems like my lawsuit caused this vandalism,” McLoughlin said. According to a property survey he commissioned, the fence sat partly on both properties.
Until recently McLoughlin had gotten on well with Beth El. In the summer of 2001 when neighbors, environmentalists and preservationists were in the midst of a three-year battle with the synagogue over its development plans, McLoughlin remained on the sidelines. He had withdrawn his opposition to the project in March of that year as part of an agreement with Beth El regulating how far it could build from his property line.
The agreement, signed by both parties, specified that the new building would be set back 20 feet from McLoughlin’s property line. The setback space would be intended as “a landscaped area for quiet, passive uses by Beth El,” and Beth El would have to consult with McLoughlin over landscaping along the boundary, according to the agreement.
But within months after the congregation broke ground in May 2003, McLoughlin said he realized the synagogue being built wasn’t the one that was promised.
His complaint, filed Tuesday in Alameda County Superior Court, claims that Beth El is building a concrete staircase 10 feet from his property line. Next to it will sit an air venting system, also already under construction, and just four feet from the dividing line the synagogue is planning to build a concrete pathway from the sanctuary to Spruce Street.
In his complaint, McLoughlin claimed he had to spend $4,398 on a lawyer and architect to disprove a claim by Beth El member and Planning Commission Chair Harry Pollack that the city required the stairs, venting system and walkway to be located within the setback area so the congregation couldn’t legally comply with the agreement.
Pollack said he wouldn’t comment on the matter during the Jewish New Year holiday, which began Wednesday at sundown and ends Friday at sundown.
“All I wanted was a quite area,” McLoughlin said. “That’s what I thought I had, but that’s not what they’ve done.”
Not only has Beth El violated its agreement, he said, but the construction workers, by removing mature trees at the site of the new synagogue, have severed electrical lines that powered part of his house, damaged his gutter and roof and broken his sewer line.
“We have to flush the toilet about two or three times now,” he said.
McLoughlin insists he tried to work with Beth El to lessen the impact of the new construction and get them to pay for damages, but congregation leaders rebuffed him.
The complaint also charged that congregation leaders assured him that the concrete stairway and walkway would only be for emergency access and that the venting system wouldn’t be audible from McLoughlin’s property, but they refused to put it in writing.
“If they had done that I wouldn’t have sued them,” McLoughlin said. “But I’m not going to let them trample all over me and lie to me. I think if the congregation knew how these guys are acting they’d be quite appalled.”
The suit asks for a declaration that Beth El breached its contract, a preliminary and permanent injunction preventing the synagogue from construction in set back area and trespassing in his property and an unspecified amount of compensation for damages.
McLoughlin said he would file a separate motion asking a judge to halt work on the setback area on Monday when the Jewish New Year had ended.
Beth El attorney Jonathan O’Donnell said “Temple Beth El has complied with its agreement,” but added that he had just received the complaint wasn’t prepared to address McLoughlin’s accusations.
Pollack was a leading player in the 600-member congregation’s three-year struggle to beat back opposition to their move from their current home at the corner of Arch and Vine streets to the new site at 1301 Oxford St. The address is landmarked and was once home to the Napoleon Bonaparte Byrne Mansion, which burned down in 1985 and once served as a working farm for free slaves before Berkeley was incorporated as a city.
Opponents charged the synagogue and its proposed 32-space parking lot resting over a creek bed would increase traffic in a residential neighborhood and eliminate any hope on unearthing that section of Codornices Creek. An eleventh-hour settlement that moved the parking lot and scaled down the synagogue spared the City Council from ruling on the project.
Alan Gould, a neighbor and leader of opposition to the project, said in addition to McLoughlin’s issues, neighbors have complained that construction crews have started before 8 a.m. and that they park their trucks and keep heavy equipment on top of the creek bed, which he said could damage culverts directing the flow of the creek.
“Our compromise didn’t say much about what they could do during construction,” he said. “Much to our chagrin they’re pretty much running roughshod over the creek corridor.”