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Berkeley non-profit developer Affordable Housing Associates (AHA) is one step away from breaking ground on a long-delayed senior-housing project after the city won its latest court battle against a group of neighbors. 

In a strongly worded opinion, a three-judge panel of the California Court of Appeals dismissed the neighbors’ complaint which asked Berkeley to perform the most stringent type of environmental review for the development scheduled to rise at 2517 Sacramento St., the former Outback Clothing Store.  

The neighbors sued the city last year over the development, arguing that in approving the project, the city neglected the possible existence of toxins at the site, misapplied state housing law and failed to consider the aesthetic effects of a building that rises up to 50 feet near a residential community of 17-foot-tall homes. 

They wanted the city to perform an environmental impact report (EIR), requiring the developer to respond to resident complaints or consider alternatives to the project. As it does with most infill housing projects, the city required the less-stringent mitigated negative declaration. 

Lead Plaintiff Marie Bowman didn’t return phone calls to the Daily Planet after the ruling was released. Previously she had indicated she might appeal the case to the California Supreme Court. Bowman has until Nov. 1 to petition the high court to hear the case. 

Bowman’s decision last year to appeal a superior court ruling against the neighbors—a rare step in Berkeley development battles—has proven costly to the city. AHA Housing Manager Kevin Zwick, though, said the added hassle might be worth it. 

“We think the opinion is so strong it will deter other groups from trying to go down this route,” he said. If the Supreme Court opts not to hear the possible appeal, Zwick said, AHA could begin construction on the 40-unit affordable housing complex by November. 

AHA is now asking Berkeley for $727,000 from the city’s housing trust fund to offset added costs from construction delays, Berkeley Housing Director Steve Barton said. Should the Supreme Court choose to hear an appeal, he said, further delays could cost the city an additional $500,000. 

On the key question of whether concerns over the development’s aesthetics were enough to require an EIR, Justices Laurence Kay, Timothy Reardon and Maria Rivera sided with the city. 

“We do not believe that our legislature in enacting CEQA... intended to require an EIR where the sole environmental impact is the aesthetic merit of a building in a highly developed area,” they wrote. “To rule otherwise would mean that an EIR would be required for every urban building project...if enough people could be marshaled to complain about how it looks.” 

The justices also found that there was no risk from hazardous materials at the site, which is a former gas station, and that the city’s need to meet its state-mandated quota of affordable housing units justified its calculation of bonus units given to the project as part of a state law.