Public Comment

Commentary: Zoning Board Must Protect Rent-Controlled Housing

By Randy Shaw
Friday January 18, 2008

On Thursday, Jan. 24, the Berkeley Zoning Adjustments Board will decide whether to allow the demolition of five sound rent-controlled housing units at 1923 Ninth St. and their replacement with condominiums. The case potentially represents a dangerous precedent in a city whose economic diversity depends on rent control, and whose single-family home prices have skyrocketed in recent years. The ZAB should follow San Francisco’s lead and only allow the demolition of sound rent-controlled housing when the units are replaced with new rent-controlled housing on-site, an outcome readily achievable at 1923 Ninth St. 

The scenario at 1923 Ninth St. is all too common: An owner seeks to increase density on what they perceive as an underutilized site. When increasing the number of housing units on a site brings accompanying social benefits, this is a good thing. But as currently proposed, approving the demolition of rent-controlled housing at 1923 Ninth St. is both bad policy and a violation of city law. The ZAB must reject this outcome. 

Let’s start with the policy.  

No city that cares about preserving economic diversity should allow the loss of rent-controlled housing. Absent rent control, Berkeley’s population would be far whiter and wealthier, and more closely resemble Mill Valley than the racially and economically diverse city it has been since the 1960s. 

San Francisco understands the value of rent-controlled housing. A recent experience at the Trinity Plaza Apartments at 8th and Market Streets provides a model for the type of “win-win” solution available at 1923 Ninth St. 

Trinity Plaza currently consists of 370 units, 360 of which are rent-controlled. In 2003, Trinity owner Angelo Sangiacomo announced plans to demolish Trinity and replace it with 1,400 new units. This proposal would have eliminated the rent-controlled housing, and displaced over 100 tenants. 

In response to this plan, I drafted an anti-demolition ordinance that barred the destruction of sound housing. The measure passed the Board of Supervisors, only to be vetoed by Mayor Newsom. We then proceeded to take the measure to the November 2004 ballot, only to have it removed from the ballot by an anti-tenant judge. 

Tenant groups felt strongly enough about saving Trinity’s rent-controlled housing that we began a new signature drive to hold a special election on our anti-demolition initiative. But before we could get started, Sangiacomo agreed to replace all of the rent-controlled housing on site. 

The result is that construction will soon begin on a 500-unit building that will contain 360 rent-controlled units. Since state law prohibits rent controls on newly built housing, this restriction must be part of a development agreement and rent limitations included in the deed. 

None of Trinity’s tenants will be displaced. Instead, all will stay in their homes until the new building is completed, and then move to the much finer apartments at their same rent. 

The 1900-unit complex at the new Trinity Plaza will be San Francisco’s largest new apartment development in over 50 years. It was made possible because the rent-controlled housing at the site was preserved. 

1923 Ninth St. is capable of a similar solution. The city can increase its housing supply from five to fifteen units without sacrificing rent-controlled units or permanently displacing existing tenants. 

All the ZAB has to do is encourage the owner to make five of the 15 new condos subject to rent control via a development agreement and deed restrictions. If tenants must be temporarily displaced by the demolition, the owner must subsidize their rents until they can return to units in the new building. 

Unfortunately, some, and perhaps a majority, of ZAB members appear to believe that eliminating rent-controlled housing can be mitigated by the owner’s payment of replacement housing fees. But there are two problems with this.  

First, there is no certainty that such fees will actually create the same number of affordable units as the rent-controlled units lost.  

Second, such funds are typically allocated to projects that would have been built anyway, so a net loss in rent-restricted housing occurs. 

In addition to the policy reasons for preserving rent-controlled housing, city law appears to require denial of the owner’s proposal. 

A series of opinions from the city attorney’s office makes it clear that Sections 23C.08.030 (E) and (F) of the Berkeley Demolition Ordinance apply to the rent-controlled units at 1923 Ninth St. In order to approve the demolition, the ZAB would have to find that denial of the project would either effectively constitute a “taking”—a claim that has never been suggested and could not succeed, or that the building’s condition is so deteriorated that demolition is necessary—which also does not apply to 1929 Ninth Street. 

The legal obstacles to demolition should encourage the owner to support a revised project that maintains five rent-controlled units on site. 

Rents in the San Francisco Bay Area rose 8.6 percent in 2007, well above the inflation rate. There could not be a worse time for Berkeley officials to encourage the elimination of rent-controlled housing. 

As 2008 begins, the ZAB could help set a new tone in Berkeley’s land-use wars by encouraging a solution that increases density while protecting tenants and rent-controlled housing. If Angelo Sanciagomo, whose rent increases in 1979 spawned San Francisco’s enactment of rent control, sees the wisdom of preserving rent-controlled housing, there is no reason the same outcome should not occur at 1923 Ninth St. 


Randy Shaw is the director of the Tenderloin Housing Clinic and editor of the online daily newspaper He can be reached at