Page One

The City Council will meet in closed session Tuesday to discuss a developer’s threat to sue the city over its affordable housing ordinance. 

John DeClercq, senior vice president of TransAction Companies, is threatening to sue the city if an appeal, which is currently before the City Council, is not decided in his favor. DeClercq filed the appeal against his own 175-unit project known as the Library Gardens at 2020 Kittredge St., which was approved by the Zoning Adjustments Board in November.  

DeClercq’s appeal asks that the City Council exempt Library Gardens from the Inclusionary Housing Restriction, which requires all developments of five or more residential units to include affordable housing. 

During the meeting, the council will confer with the City Attorney’s Office about the validity of DeClercq’s legal challenge. 

The basis of the threatened lawsuit is that the Inclusionary restrictions in the city’s Zoning Ordinance are inconsistent with an element in the Costa-Hawkins Rental Housing Act that requires residential development built after 1995 not be subject to rent control. 

Neither DeClercq nor his attorney returned calls to the Daily Planet on Friday.  

Councilmember Polly Armstrong said she was unfamiliar with the particulars of the case but said the lawsuit, if successful, could potentially damage diversity in the downtown area. 

“I always thought the Inclusionary Housing ordinance was a wonderful thing for downtown diversity,” she said. “But this is something that needs to be straightened out. We need to find out what’s legal.” 

Councilmember Kriss Worthington said if the affordable housing requirement is stricken from the Zoning Ordinance, it could have a devastating effect on the city’s affordable housing stock.  

“It’s a pretty drastic threat to the ability of Berkeley or any other city to integrate affordable housing throughout the city,” he said.  

DeClercq won approval by the ZAB to build the Library Gardens, a 176-unit apartment building with 9,000 square feet of ground-floor commercial space and 455 parking spaces in the heart of downtown Berkeley. The ZAB approved the project on Nov. 11 by a vote of 7-1. 

But despite having the project approved, DeClercq has taken the unusual step of appealing the ZAB’s decision. The appeal is asking the council to remove the affordable housing requirement.  

The Director of Housing Stephen Barton said the city’s Inclusionary Housing Requirement mandates that one in every five units be set aside for low-income tenants. He said half of those set asides are required to go to Section 8 tenants and the other half for tenants who earn 80 percent of the areas median income. 

According to Barton, 80 percent of the median income in Berkeley is $45,000 per year for two people, an income that would require them to not pay more than $1,045 for a small two-bedroom apartment. 

Barton said that about 64 jurisdictions in California that have Inclusionary zoning ordinances.  

“An adverse ruling on Berkeley’s Inclusionary ordinance could have negative effects on a lot of places,” he said.