AGENDA - Berkeley, California · 2019. 6. 25. · improving enforcement prior to the Council’s October work session. 8. Amendments to B.M.C 19.50: The committee agreed to make this

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4x4 Committee on Housing City Council and Rent Board

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E-mail: [email protected] - http://www.cityofberkeley.info/rent/

AGENDA

4 X 4 JOINT COMMITTEE ON HOUSING CITY COUNCIL/RENT STABILIZATION BOARD

Wednesday, June 26, 2019 – 3:00 p.m.

2180 Milvia Street, 1st Floor, Cypress Room

1. Roll Call

2. Approval of the Agenda

3. Public Comment

4. Approval of June 3, 2019 Committee Meeting Minutes

5. Tenant Opportunity Purchase Act (TOPA) - Presentation by EBCLC and Discussion

6. Proposed Fair Chance Ordinance – Presentation by Just Cities

7. Options for Expanded Rental Registration

8. Update on Implementation of B.M.C. Chapter 13.31 (Housing Discrimination Based on Source of Income)

9. Potential Amendments to Demolition Ordinance

10. Rent Board Recommendation on Use of Cannabis Tax Revenue for Housing Funds

11. Brief Status Updates: a. Anti-Displacement Funding b. Short-Term Rental Ordinance Enforcement c. Amendments to B.M.C Chapter 19.50

12. Discussion of Possible Future Agenda Items Including:

a. Process to Establish Appropriate Charges for IT Related Services b. Potential Amendments to Relocation Ordinance

13. Adjournment

COMMITTEE MEMBERS: Mayor Jesse Arreguín Rent Board Chairperson Paola Laverde City Council Member Cheryl Davila Rent Board Vice-Chairperson Leah Simon-Weisberg City Council Member Kate Harrison Rent Board Commissioner Soli Alpert City Council Member Rigel Robinson Rent Board Commissioner Igor Tregub

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4x4 Committee on Housing City Council and Rent Board

2125 Milvia Street, Berkeley, CA 94704 Tel: 510. 981.7368 TDD: 510.981.6903 Fax: 510. 981.4940 E-mail: [email protected] - http://www.cityofberkeley.info/rent/

Minutes To Be Approved

4 X 4 JOINT COMMITTEE ON HOUSING CITY COUNCIL/RENT STABILIZATION BOARD

Monday, June 3, 2019 – 3:00 p.m.

2180 Milvia Street, Cypress Room, 1st Floor

1. Roll Call: Mayor Arreguín called the meeting to order at 3:06 p.m.Present: Mayor Jesse Arreguín, CM Cheryl Davila (arrived at 3:07 p.m.), CM KateHarrison (left at 5:15 p.m.) CM Rigel Robinson, RBC Soli Alpert, RBC Leah Simon-Weisberg, RBC Igor Tregub (arrived at 4:25 p.m., left at 5:17 p.m.), RB Chair PaolaLaverde.Staff present: Matt Brown, Dominika Bednarska, Steven Buckley, Bill Burke,Timothy Burroughs, Brendan Darrow, Stefan Elgstrand, Jen Fabish, Beth Green,Jay Kelekian, Mathew Siegel, Lynn Wu.

2. Public Comment: There was one speaker. Members of the public also spoke beforespecific items as noted below.

At this time, the members of the committee who were present unanimously approved the agenda with one modification: to hear item 7 before item 6.

3. Approval of Minutes for the May 21, 2019 Meeting: M/S/C (Harrison/Alpert) Approvethe May 21, 2019 meeting minutes as written. Carried 7-0-0-1. Absent: Tregub.

4. 4x4 Committee Regular Meeting Schedule – 4th Wednesdays, 4PM, Cypress Room:the members of the committee who were present tentatively agreed to a regularmeeting schedule of the 4th Wednesday of each month at 3:00 p.m. CM Davila willcheck her schedule and confirm her availability.

5. Discussion and Possible Action: Proposed Fair Chance Ordinance: One member ofthe public spoke. Members of the Fair Chance Housing Coalition provided anoverview of changes to the proposed ordinance prompted by the committee’s May21st discussion, and took questions from the committee. The coalition isresearching the legality of requiring certain providers who deny housing in violationof the ordinance to offer the next available unit to the applicant.

M/S/C (Arreguín/Davila) Recommendation to Council to support the proposed Fair Chance Ordinance with the following changes: (1) eliminate the ADU exemption; (2) add an education and training component; (3) rather than having separate standards for “private” vs. “publically subsidized” housing, differentiate between

Item 4.

19 June 3 4x4 Committee Minutes

“publically subsidized/inclusionary” housing (including privately owned below market rate units) and “private non-inclusionary” housing; (4) specify the level of detail (in addition to existing state law requirements) that must be provided in written explanations for housing denials; (5) any provision (to the extent allowed by law) requiring certain housing providers that violate the ordinance to offer the next available unit to the applicant should state that the unit must be comparable (in rent, size, condition, amenities/accommodations, etc.) to the unit that was denied, and must be available within a reasonable timeframe. Carried 7-0-0-1. Absent: Tregub.

6. Anti-Displacement Funding for FY 2020-2021: Two members of the public spoke.

Staff from the East Bay Community Law Center (EBCLC) and Eviction Defense Center (EDC) presented funding proposals and took questions from the committee.

M/S/C (Arreguín/Laverde) Recommend that Council allocate $900,000 in Measure U1 funds for anti-displacement work for each of fiscal years 2019/20 and 2020/21 (for a total of $1.8 million). Of these funds, EDC and EBCLC will each receive $275,000 per fiscal year. Carried 6-0-0-2. Absent: Harrison, Tregub.

7. Short-Term Rental Ordinance Enforcement: Two members of the public spoke. Bill

Burke provided an overview of the Short-Term Rental (STR) Ordinance enforcement process. The committee’s discussion touched on: STRs that are more than 14 days but less than 30 days; firms renting entire buildings for greater than 14 days, then subletting individual units on a short-term basis; using STR tax revenue to fund additional staff for enforcement; increasing public outreach and education; creating fines specific to STR Ordinance violations; the need for collection agreements with other STR platforms; prohibiting listings on STR websites for noncompliant properties; and enforcement of the nuisance provisions of the STR Ordinance. The committee requested a list of properties that have been cited for violations and the amount of administrative fines collected. Mayor Arreguín asked Mr. Burke, and staff from the Planning Department to provide him with any ideas for improving enforcement prior to the Council’s October work session.

8. Amendments to B.M.C 19.50: The committee agreed to make this a standing agenda item. Dominika Bednarska highlighted issues with the existing ordinance, including the need to extend the reimbursement period, adding a meal allowance, requiring accommodations to be accessible given the tenant’s specific needs, and ensuring that future amendments take into account feedback from stakeholders with disabilities.

9. Discussion of Possible Future Agenda Items Including: a. Process to Establish Appropriate Charges for IT Related Services b. Options for Expanded Registration c. Tenant Opportunity Purchase Act d. Demolition Ordinance

10. Adjournment: M/S/C (Alpert/Simon-Weisberg) Motion to adjourn the meeting.

Carried 6-0-0-2. Absent: Harrison, Tregub.

19 June 3 4x4 Committee Minutes

COMMITTEE MEMBERS: Mayor Jesse Arreguín Rent Board Chairperson Paola Laverde City Council Member Cheryl Davila Rent Board Vice-Chairperson Leah Simon-Weisberg City Council Member Kate Harrison Rent Board Commissioner Soli Alpert City Council Member Rigel Robinson Rent Board Commissioner Igor Tregub

Office of the City Manager

2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099E-Mail: [email protected] Website: http://www.CityofBerkeley.info/Manager

INFORMATION CALENDARJune 11, 2019

To: Honorable Mayor and Members of the City Council

From: Dee Williams-Ridley, City Manager

Submitted by: Kelly Wallace, Interim Director, Health, Housing, and Community Services

Subject: Referral Response: Tenant Opportunity to Purchase Act (TOPA) Ordinance

SUMMARY On November 28, 2017, the City Council adopted the Housing Action Plan, which included as the second High Priority referral to “develop an ordinance modeled after Washington, DC’s Tenant Opportunity to Purchase Act (TOPA) that offers existing tenants in multi-unit properties of three units or more the first right of refusal when property owners place rental property on the sale market, which can be transferred to a qualifying affordable housing provider.”

This memo summarizes staff’s research on TOPA, which incorporates Washington, DC’s ordinance and administration and several studies of the policy and its implementation. Staff conducted multiple interviews with DC staff, as well as tenant advocates, legal advocates, real estate advocates, and other stakeholders to inform the City’s research. As the first step in the referral response, this memo outlines staff research on TOPA and its administration and implementation requirements.

CURRENT SITUATION AND ITS EFFECTSThis report responds to the second High Priority referral from the Housing Action Plan that originally appeared on the agenda of the November 28, 2017 Council meeting and was sponsored by Mayor Jesse Arreguín and Councilmember Kate Harrison. The referral directed staff to develop an ordinance modeled after Washington, DC’s Tenant Opportunity to Purchase Act (TOPA) that offers existing tenants in multi-unit properties of three units or more the first right of refusal when property owners place rental property on the for-sale market, which can be transferred to a qualifying affordable housing provider. In Washington DC, the ordinance complements local funding for building acquisitions to preserve affordable housing.

Washington, DC’s TOPA ordinance provides tenants in multi-family buildings the right to purchase the property in which they reside if the owner opts to sell, and the right to match a third party sale (“right of first refusal”). Tenants can work together as a group (known as a “Tenant Association”) to purchase the apartment building, or transfer their right to another buyer. Tenants may assign their rights to either a market rate or an affordable housing developer at their discretion. Tenants in buildings of five or more

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Item 5.

Tenant Opportunity to Purchase Act (TOPA) Ordinance INFORMATION CALENDARJune 11, 2019

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units must form a Tenant Association to enact their rights. The TOPA ordinance also establishes a process for property owners and tenants to follow prior to selling on the open market, including defined time periods for negotiation and financing.

AdministrationTOPA is managed by Washington, DC’s Department of Housing and Community Development (DHCD) Rental Conversion and Sales Division, which also administers a condo conversion ordinance and a condo warranty program. Primary duties include landlord and tenant education and responding to public inquires, processing complaints, and administration (processing notices, reviewing files, drafting reports, etc). Staffing includes:

One full-time equivalent (FTE) division director; Four FTE attorney specialists; and Three FTE program support specialists for administration (approximately 1.5 FTE

dedicated to TOPA).

DHCD employs attorneys to manage TOPA cases given the complex nature and legal implications of many transactions and complaints. Despite the education and technical support provided by the DC’s Office of the Tenant Advocate and outside agencies, DHCD staff noted the majority of their time is dedicated to public inquires and support.

Enforcement is complaint driven and TOPA transactions are not actively monitored by the District. DHCD staff noted processing complaints and paperwork for each reported sale offer is time consuming, and requires full-time administrative staff. DC can serve a cease and desist order if provided a notice of violation before closing of a third party sale, but holds little power should a sale go through. Following a sale, it is typically the onus of the tenants to pursue a lawsuit. DC staff noted many title companies rely on TOPA compliance reports provided by the DHCD to verify TOPA compliance prior to approving a sale, as a registered complaint could delay a sale for an extended period of time. They noted most title companies will not close with a registered TOPA complaint, but this is not a legal requirement and is the result of years of familiarity with the ordinance.

DHCD staff publish weekly reports with information on all reported TOPA-related offers, assignments, and sales. However, TOPA’s complaint-driven design likely results in transactions occurring off record, and there is not reliable data for all TOPA-related transactions.

While the TOPA ordinance and administration applies to all multi-family properties, the District provides additional support for low-income tenants to exercise their TOPA rights. DHCD staff indicated two specific programs – technical assistance and acquisition/rehabilitation loans – are critical for TOPA to serve as an affordable housing preservation tool.

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Technical Assistance and Tenant SupportResearch indicates tenants typically require significant education and support to exercise TOPA for an acquisition. Interested tenants of multi-family buildings require substantial technical, financial, organizational, and legal assistance. This includes:

Education on rights and responsibilities; Formation of tenant associations; Securing a deposit; Securing loans (acquisition, rehabilitation, etc); Legal services; Identifying property management; and Bargaining with third parties (non-profits/for-profits).

Washington, DC complements the TOPA ordinance by funding purchase and technical assistance programs to support low-income tenants in multi-family properties in exercising their TOPA rights. The technical assistance is administered by non-profit tenant advocate organizations funded via a Request for Proposals. DHCD funded two non-profits to provide these services in the past fiscal year. There are also organizations independent of City funding that support tenants with TOPA rights, including law firms specializing in TOPA law.

In addition to the staff in the DHCD and District-funded community agencies described above, Washington, DC maintains the Office of the Tenant Advocate (OTA), a city department dedicated to providing legal and technical assistance to tenants, which includes navigating TOPA. The FY 17/18 budget for this department is over $3.1M and includes 19 FTE employees.

Acquisition/Rehabilitation LoansDHCD’s Development Finance Division oversees the Department’s financing of eligible TOPA acquisitions, independent of the Administrative staff in Rental and Sales Division. In FY 17/18, 22 of the 62 total projects closed were TOPA acquisitions. They estimate TOPA projects required four FTEs for underwriting project managers and administrative support staff, and project managers can typically close 4-5 projects per year.

DHCD’s loan program provides financing support to projects that have: Five units or more; At least 50% of the residents qualifying as low-income; and Approval of 50% of the Tenant Association

Washington, DC dedicates $10M per year in Housing Trust Fund (HTF) allocations directly to TOPA projects. In addition, their staff noted the majority of current projects are being routed to the recently created public/private Housing Preservation Fund,

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which has $40M for affordable housing preservation (including a $10M per year District contribution).

Most properties purchased with the City’s TOPA acquisition loans have substantial rehabilitation needs, which can serve as a barrier to acquisition. Most projects return to DHCD via a competitive RFP for rehabilitation funding but only one-third of applications are funded. All projects must include a rehabilitation strategy at acquisition if they do not receive additional funding. DHCD staff also noted supporting smaller projects can be a challenge due to a lack of economies of scale.

Staffing and Implementation Recommendations The Council referral calls for a TOPA ordinance to apply to buildings of three or more units, and to be assumed by a qualified affordable housing nonprofit developer. This differs from DC’s ordinance, as it 1) does not include duplexes and 2) limits ownership models to a transition to permanent affordable housing. In this scenario, only buildings with low-income tenants would qualify, and this would significantly limit the scope compared to DC. Ultimately, any implementation recommendations would be based on the scope of an ordinance.

Administration is the only need directly related to the adoption of an ordinance. However, DHCD and local stakeholders indicated the following three-pronged approach is necessary for TOPA to serve as an affordable housing preservation tool. Council’s referral would likely require all three of these components for TOPA to have long term success in Berkeley.

A) Dedicated Staffing for Administration. DC’s Rental and Sales Division staff oversee approximately 163,874 rental housing units, compared to Berkeley’s 26,367 rental units. Using this scale, 1.5 FTE’s minimum would be needed to augment existing staffing to be consistent with their staffing.

B) Technical Assistance. The technical assistance needs outlined above are beyond the capacity of current staff. DC currently funds a separate department, the OTA, in addition to two nonprofit technical assistance providers for tenant support. Council could consider releasing a Request for Information (RFI) to determine the capacity and needs of local tenant advocacy organizations to complete TOPA related work. The City could consider applications from qualified nonprofits to provide low-income tenants with additional technical support outside the scope of the ordinance through the City’s Community Agency Funding RFP process, and evaluate proposals in the context of City funding priorities.

C) Loans and Financial Assistance. In Washington DC, low-income tenants rely heavily on local funding to make acquisition and rehabilitation through the TOPA

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ordinance feasible. In order for a nonprofit affordable housing developer to acquire and rehabilitate an eligible property in Berkeley, they would likely require significant local financial support at a level similar to the City’s new Small Sites program (up to $375,000 per unit). Council could consider funding the Small Sites program for acquisitions and rehabilitations by low-income tenants under a TOPA ordinance.

BACKGROUNDWashington, DC’s TOPA ordinance provides a defined sales process for tenants to purchase the property in which they reside if the owner opts to sell, and for the first right of refusal to any third party sale if they initially decline. TOPA defines a sales process for two rental categories: 2-4 unit buildings and 5+ unit buildings. The DC Council opted to exempt single family homes in March 2018.

Under TOPA, property owners must follow a defined process when pursuing a sale:

1. Owner declares intent to sell by providing a letter to the tenants and City that includes a “bona fide offer of sale”

2. Tenant Response and Negotiation Perioda. Tenants are provided an official amount of time to respond and then

negotiate, respectively, dependent on the size of their building b. Buildings with five or more units must form a Tenant Associationc. Tenants have option to assign their rights to a third party

3. Landlord options: (a) sell to tenants (if tenants invoke right) or (b) move to market for third party sale

4. Tenants have 15 day period to match a third party sale (right of first refusal)

Staff reviewed research and conducted interviews with multiple stakeholders to inform research on ordinance design, implementation and administration. These include:

Apartment and Office Building Association of Metropolitan Washington City of Los Angeles, Office of the Chief Legislative Analyst City of San Francisco, Office of Supervisor Sandra Lee Fewer DC Association of Realtors East Bay Community Law Center Housing Counseling Services (City-funded technical assistance provider) Latino Economic Development Corporation (City-funded technical assistance

provider) Washington, DC Department of Housing and Community Development, Rental

and Sales Division

Staff also attended the Oakland Community Land Trust’s Peoples Land and Housing Convening to hear a presentation from DHCD Development Finance staff and Housing

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Counseling Services on the TOPA ordinance and implementation. Staff presented its initial research to the Housing Advisory Commission in July 2018.

Other Cities and Programs Staff did not identify any other US cities with active TOPA-style ordinances with the exception of a Washington, DC suburb: Takoma Park, Maryland (population approximately 17,000). Their city’s TOPA data is not readily available, and Takoma Park’s has far fewer rental units than DC or Berkeley. The City of Los Angeles’ Council reviewed TOPA in 2007, but the item did not move forward after subcommittee review.

At the time of this report’s writing in April 2019, the Office of Supervisor Sandra Lee Fewer prepared an ordinance for the San Francisco Board of Supervisors modeled on TOPA. This proposal focuses exclusively on establishing rights for nonprofit affordable housing developers. Their ordinance would provide qualifying organizations the first-right-to-purchase, consisting of both a right of first offer and a right of first refusal, over all multi-family residential buildings (and related construction sites and vacant lots) in San Francisco, for the purpose of creating and preserving rent-restricted affordable rental housing. It would also establish procedures for implementation and enforcement, likely to be managed by the Mayor's Office of Housing and Community Development (MOHCD).

San Francisco’s proposal is different from Washington, D.C’s iteration of TOPA as it confers the purchase rights solely to nonprofit developers (instead of tenants) and therefor acquisitions would only be eligible for income-qualifying properties. Staff from the Office of Supervisor Lee-Fewer report this ordinance is intended to complement and support the city’s Small Sites affordable housing acquisition program. As of the time of this writing, the San Francisco Board of Supervisors adopted the first reading on an ordinance.

Berkeley’s condominium conversion ordinance does provide tenants the right of first refusal to purchase their homes at conversion. Santa Monica had a similar but further-reaching ordinance known as the Tenant Ownership Rights Charter Amendment which sunsetted in 1996. TOPA is different than these two ordinances because it applies to all rental housing units, rather than just those requesting land use approvals.

ENVIRONMENTAL SUSTAINABILITYThere are no environmental sustainability effects associated with the information of this report.

POSSIBLE FUTURE ACTIONTOPA’s implementation relies on tenant engagement, loan financing and ongoing legal and administrative processes. Staff recommends developing an implementation strategy prior to or in conjunction with the adoption of an ordinance to identify staffing and administration needs for the ongoing management of a TOPA ordinance.

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FISCAL IMPACTS OF POSSIBLE FUTURE ACTIONCosts associated with additional staffing and administration needs would need to be determined predicated on the scope of an ordinance. Washington, DC also provides significant financial resources to support TOPA in the local community, including tenant advocacy funding and acquisition and rehabilitation loans for low-income tenants in multi-family buildings.

CONTACT PERSONMike Uberti, Community Development Project Coordinator, HHCS, (510) 981-5114

Attachments: 1: Original Referral Report from November 28, 2017

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MEMORANDUM

To: Honorable Mayor and Berkeley City Council Members

Cc: Department of Health, Housing and Community Development;

Housing Advisory Commission;

Measure O Bond Oversight Committee

From: East Bay Community Law Center’s Community Economic Justice Clinic

Date: May 24, 2019

Subject: Analysis and Recommendations on Tenant Opportunity to Purchase Act in

Berkeley

PURPOSE

The Community Economic Justice Clinic (“CEJ”) of the East Bay Community Law Center

(“EBCLC”) is pleased that the City of Berkeley (“the City”) has identified a Tenant Opportunity to

Purchase Act (“TOPA”) and Small Sites Program (“SSP”) as top priorities for combatting

displacement and promoting preservation. We understand that City Staff is scheduled to provide

a TOPA-specific information report to the Mayor and City Council at the June 11 City Council

Meeting. In view of this upcoming meeting, CEJ is writing to share its compiled analysis and

recommendations on a TOPA in the City of Berkeley and respectfully request that the Mayor

and Berkeley City Council incorporate these recommendations when legislating and

implementing TOPA in Berkeley. While we are glad to hear that the City is potentially moving

forward with a TOPA policy, we think it is critical that the City create a plan for funding and

implementation.

We urge the City to maximize TOPA’s potential as an effective anti-displacement and

preservation tool by developing a thoughtful policy and concurrently creating a

coordinated plan for adequate funding and infrastructure to support policy

implementation.

BACKGROUND

Since 2016, we have been monitoring the development of a Berkeley TOPA policy and

engaging with the City at various stages of the process to advocate for a meaningful and

effective TOPA that will help mitigate the displacement of Berkeley’s vulnerable residents. The

following recommendations are based on our extensive research on the challenges and

II I EAST BAY COMMUNITY

LAW CENTER

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successes of TOPA in various jurisdictions, particularly in Washington D.C. We have also

conducted extensive research on how TOPA and SSP can work together to meet Berkeley’s

particular needs, and have previously shared those findings and recommendations with City

Staff. These compiled recommendations are informed by our fellow anti-displacement

community partners and stakeholders in Berkeley, including impacted tenant and resident

groups, as well as, non-profit democratic affordable housing developers, specifically the

Northern California Community Land Trust, and Bay Area Community Land Trust. We are also

working in regional coalition with Peoples’ Land and Housing Alliance (PLHA), a group

composed of tenant organizers, community lands trusts, nonprofit affordable housing

developers, policy advocates, and technical assistance providers, with several members

working on TOPA policies in their respective cities.

We have authored a model ordinance, which we are currently updating to most

effectively address the needs of vulnerable residents of the City. We aim to share our

completed draft with the City shortly. With thoughtful drafting, planning, and

implementation, we are confident that TOPA can serve as one important and effective

strategy for anti-displacement and long-term affordable housing preservation.

RECOMMENDATIONS

Ensure TOPA is a tenant-empowerment tool with the right to assign to a qualified

affordable housing organization

First and foremost, we think it is important that the City pass a TOPA policy over a Community

Opportunity to Purchase (“COPA”) policy. One of the most important and attractive features of

D.C’s TOPA is that the policy, at its heart, is a tenant empowerment tool: it gives tenants the

right to collectively purchase their buildings when they go up for sale and to provide them with

some leverage in a deeply inequitable housing market. Moreover, the policy creates pathways

for tenants to become first-time home owners, and facilitates democratic resident ownership and

grassroots community development models that Berkeley has long supported, such as Limited

Equity Housing Co-ops (“LEHCs”). Therefore, the City should enact a TOPA policy in which the

right to purchase belongs to tenants. However, tenants should be able to choose to assign their

rights to a qualified organization - such as a non-profit or cooperative corporation – to purchase

the home on their behalf, if they wish. This method of assignment is also beneficial for

affordable housing developers because tenant buy-in with regard to their commitment to self-

organization is often critical for their successful management of properties. NCLT and BACLT

report that this is especially true for Berkeley’s generally smaller housing stock. Moreover, in

order to advance the policy of preserving housing for the most vulnerable tenants in Berkeley,

as well as, to have the longest lasting impact, the City’s ordinance should specify qualifications

for the organizations to whom tenants can assign their rights. At a minimum, these qualified

organizations must maintain the housing as permanently affordable, primarily serve tenants

under 80% of AMI, and demonstrate a commitment to democratic residential control. These

qualifications would allow the housing stock to remain both affordable and democratic:

affordable because, prices would be stabilized not only for this generation of tenants, but future

ones, allowing any subsidy being invested by the City to permanently remain with the

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properties; and secondly, it would create democratic institutions for tenant empowerment and

engagement with the future of local development. The City should maintain a list of vetted

“qualified organizations” that tenants can assign their rights to.

Include a second right of refusal for qualified affordable housing organizations in the

event tenants forgo TOPA rights

If tenants choose to pass up on their right to purchase or assign their rights, the list of “qualified

organizations” shall then have an opportunity to purchase the properties outright. It is important,

however, that the right of qualified organizations be subordinate to the right of tenants for all the

reasons explained above.

Protecting tenants’ rights and preserving affordability

Not all tenants may elect to purchase under TOPA. This could mean that some tenants who

exercise TOPA rights may become owners while some remain renters. Alternatively, tenants

may collectively assign their right to a CLT with an agreement to maintain the housing as a

rental property. In any scenario where tenants remain renters following a TOPA transaction, the

City must ensure TOPA advances without compromising the protection and enforcement of

tenants’ rights. To this end, the policy must preserve and extend just cause and applicable rent-

control protections to prevent any internal displacement caused by the exercising of TOPA

rights. Additionally, the City must hold qualified organizations who purchase under TOPA

accountable to manage rental properties to provide decent, safe, and quality housing for

tenants. Furthermore, tenants who do not wish to exercise their right to purchase should receive

legal protection from any potential harassment or intimidation from fellow tenants or other third

parties. Our colleagues in EBCLC’s Housing Practice are currently reviewing the implications of

TOPA on tenants’ rights and rent control and will provide further expertise on how best to

embed tenant protections in addition to what we have proposed.

Mandating and enforcing permanent affordability

In addition to preventing the displacement of vulnerable tenants, TOPA should serve as a

catalyst for preserving affordable housing stock and sustaining permanent affordability for future

generations. In effect, TOPA would level the playing field of the market by legally empowering

tenants with rights and extended timelines to organize and purchase their housing

accommodation or assign their rights to a qualified organization as described above. Moreover,

while we are still evaluating an appropriately balanced approach, a key feature of our proposed

policy would entitle tenants to invoke an appraisal process to challenge the bona fide nature of

an owner’s offer price. The determined appraised value of the housing accommodation would

then establish the existence of a bona fide offer of sale and set the sales price. In exchange for

these TOPA rights, tenants must reciprocally agree to maintain the acquired property as

permanently affordable, thereby protecting properties purchased under TOPA from further

speculation.

The City must play a central role in creating and enforcing permanent affordability standards for

tenants, tenant organizations, and qualified organizations to preserve affordability and prevent

speculative resale. For tenants and tenant organizations, our proposal is that the City’s

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standards restrict the resale price of the acquired property, similar to how LEHC’s restrict their

resale price, to a % which tracks either the Consumer Price Index or Area Median Income Index

to allow for a fair return while also ensuring long-term affordability. Additionally, the City’s

standards for both tenants, tenant organizations, and qualified organizations should prioritize

making the housing accommodation affordable for people at or below 80% AMI and hold these

parties accountable to provide deeper levels of affordability, including 30-50% AMI, whenever

feasible. Permanent affordability restrictions may materialize in a few ways. For example, the

acquired property could be subjected to a Community Land Trust lease – a renewable 99-year

lease with affordability and owner-occupancy restrictions which preserves affordability for both

current and future residents. Another way is for tenants to form a LEHC which is governed and

mandated by state law to limit ownership share price increases to no more than 10% per year.

Together, CLTs and LEHCs offer one powerful way to ensure permanent affordability through

the layers of resident-control/ownership, supervision, and stewardship of land and housing.

Outside of the CLT and LEHC model, other affordability restrictions in leases or other

documents are possible alternatives, so long as the City determines that such restrictions are

enforceable and likely to be enforced by the City or other authorized third party enforcer to

intercept inaction.

Applicability of TOPA & Accountability

TOPA should apply broadly to rental properties in Berkeley, including single family homes and

larger properties alike. There should be limited exemptions, such as for buildings owned by the

government or a hospital, educational institution, convent, etc. Certain limited transfers should

also be exempt, such as transfers between immediate family members or to a beneficiary of a

trust. We have drafted a longer but precise list of exemptions and transfers that we are happy to

share with the City. Moreover, there should be different minimum timelines for single family

homes, 2-4 unit properties, and 5+ unit properties, similarly to D.C.’s TOPA policy. It is critical

that the timelines allow adequate time for tenants to organize, make an informed decision,

secure funding, and close the deal. Carefully crafted timelines are key to TOPA’s success. The

timelines ensure that all parties are executing their rights and obligations and provide a means

for accountability throughout the TOPA process. We currently have crafted timelines under

many provisions of our draft TOPA ordinance that we are happy to share with you.

Adequate funding

There are two primary obstacles to purchasing property in the Bay Area: inflated land values

and the rapid rate at which sales occur. The median price for a single family home in Berkeley is

approximately $1.3 million dollars. The Bay Area also has the fastest turnaround for home sales

nationwide, meaning that housing in this region spends the shortest amount of time on the

market. As these challenges persist, they impact the ability for low to moderate income tenants,

first-time homebuyers, and non-profits such as CLTs to purchase property in Berkeley. While

TOPA addresses one of these problems by slowing down the sales process on rental properties

so that tenants have a right to purchase, this policy does not on its own address the problem of

funding to acquire the properties. Moreover, the policy needs funding to support its

implementation so that tenants can actualize their rights.

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Therefore, City investment in both site acquisition and technical assistance infrastructure is

critical to making a TOPA right meaningful to a wide array of tenants. The proposed Berkeley

Biennial Budget for FY 20-21 states that one of the most important goals for the City is to

“create affordable housing and support services for our most vulnerable community members.”

As it stands, future Measure O and U1 monies will play a large role in the achievement of the

aforementioned goals.

The City should turn SSP into a much more robust and vibrant acquisition fund that can

work in tandem with a TOPA policy. EBCLC recommends that the City make a

commitment to invest at least an additional 4-6 million dollars into its SSP fund. The City

should continue to increase that amount annually with the goal of accommodating

immediate and continuous high need. Additionally, SSP criteria will need to be

reconfigured to allow for low-income tenants to access funds and open access to all

housing accommodations eligible under TOPA.

A TOPA right without dedicated funding would make for a poor anti-displacement tool as low to

middle income tenants would likely need some form of public subsidy to exercise this right and

compete with the open market. Our research and communication with colleagues in DC

revealed that TOPA’s success in DC really began in the last decade when the local government

provided a significant amount of funding towards site acquisition. Over 1,400 units have been

preserved in DC between 2002 and 2013. Similarly, San Francisco’s SSP which began with $3

million in 2014 has now grown to a fund of over $100 million which has directly contributed to

the acquisition of 27 buildings. Moreover, San Francisco recently decided to add $40 million to

its SSP to support acquisitions under its new COPA policy. While we understand that the SSP

fund may need to be built over time, a firm commitment is vital for the future success of TOPA in

Berkeley.

Adequate infrastructure & technical assistance

In addition to funding for acquisitions and rehab, it is critical for the City to create a plan to

provide adequate education and legal and technical assistance (“TA”) to tenants as part of

TOPA implementation. TOPA’s increasing success in recent years in Washington D.C. can be

attributed in large part to the robust funding and TA provided to tenants. For example, in D.C.,

the city funds several community organizations that have full-time staff supporting tenants to

exercise their TOPA rights. These staff physically visit properties where TOPA notices are

issued and help tenants to organize, legally form a tenant organization, understand their rights,

and move through the TOPA timelines and processes. Lawyers then assist tenant groups with

the transactions. Our research suggests that there is also a need for support for low-income

tenants after they purchase, with budgeting, compliance requirements, and management of the

property, to ensure that first-time homeowners are set up for success. The City of Berkeley does

not need to provide this assistance on its own. EBCLC and local CLTs such as NCLT and

BACLT, are poised to use their expertise to help provide this assistance, with capacity-building

support from the City. Moreover, we have had conversations in our regional PLHA group about

possible regional technical assistance for TOPA implementation across cities. If TOPA is going

to be an effective tool to serve low-income tenants and those most vulnerable to displacement,

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it is critical that the City of Berkeley work with community organizations to ensure that there is

adequate education and technical assistance as part of TOPA implementation.

CONCLUSION

We appreciate your consideration and urge you to incorporate these recommendations as you

evaluate and develop TOPA in the City. Our vision is that the City have an effective and

meaningful TOPA that can benefit those most impacted by displacement and preserve

affordability for current and future generations. We will continue to lift up the needs of those

most impacted by the affordability crisis and engage with the Mayor, City Council Members, and

the City at each stage of the process to achieve this vision.

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AMENDED IN COMMITTEE FILE NO. 181212 4/3/2019 ORDINANCE NO. 79-19

[Administrative. Business and Tax Regulations Code~ - Nonprofit Organizations' First-Rightto-Purchase Multi-Family Residential Buildings]

Ordinance amending the Administrative Code to confer upon certain nonprofit

organizations a first-right-to-purchase, consisting of both a right of first offer and a

right of first refusal, over all multi-family residential buildings (and related construction

sites and vacant lots) in the City, for the purpose of creating and preserving rent

restricted affordable rental housinm-. and to establishtA§ related procedures for the

selection of such nonprofits, the preservation of rent-restricted affordable housing, and

other implementation and enforcement; amending the Business and Tax Regulations

Code to exempt rent-restricted affordable housing created under this ordinance from

increased rates of transfer tax; and affirming the Planning Department's determination

under the California Environmental Quality Act.

NOTE: Unchanged Code text and uncodified text are in plain Arial font. Additions to Codes are in single-underline italics Times New Roman font. Deletions to Codes are in striket,½rough italics Times 1'kw Roman font. Board amendment additions are in double-underlined Arial font. Board amendment deletions are in strikethrough Arial font. Asterisks (* * * *) indicate the omission of unchanged Code subsections or parts of tables.

Be it ordained by the People of the City and County of San Francisco:

Section 1. Findings.

The Planning Department has determined that the actions contemplated in this

ordinance comply with the California Environmental Quality Act (California Public Resources

Code Sections 21000 et seq., "CEQA"). This determination is on file with the Clerk of the

Board of Supervisors in File No. 181212 and is incorporated herein by reference. The Board

affirms this determination.

Supervisors Fewer; Ronen, Haney, Mar, Walton, Safai, Peskin, Mandelman, Brown, Yee, Stefani BOARD OF SUPERVISORS Page 1

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Section 2. The Administrative Code is amended by adding Chapter 41 B, consisting of

Sections 418.1 through 418.14, to read as follows:

CHAPTER 41B: COMMUNITY OPPORTUNITY TO PURCHASE ACT

SEC. 41B.1. FINDINGS AND PURPOSE.

(a) The City faces a severe and continuing housing crisis. Many City residents are unable

to obtain or retain a(fprdable housing.

(k) This crisis has profoundly negative effects on the City. It causes dislocation, which frays

the social ties that bind our neighborhoods and communities together. It forces vulnerable residents to

leave their home, the City, for new communities where they are strangers. And it contributes to

homelessness-which is itself a severe and continuing crisis in the City.

(c) The City's housing crisis is caused, in large part, by a shortage of affordable rental

housing. The creation and preservation of such housing is therefore ofparamount public concern.

(d) One obstacle to the creation and preservation of affordable rental housing is rapid

turnover in the City's real estate market. Nonprofit organizations seeking to create and preserve

affordable housing may be willing and able to pay market prices to purchase residential buildings for

sale, but nevertheless find themselves unable to purchase such buildings before they leave the market.

Nonprofit organizations serving the broader public interest must often move more deliberately and

borrow purchase money from non-traditional lenders in such real estate transactions than private

entities concerned solely with profit.

(e) The purpose ofthis Chapter 41B (which may be referred to as the "Community

Opportunity to Purchase Act") is to enhance nonprofit organizations' ability to purchase multi-family

residential buildings, at market prices, within a reasonable period o(time, and to thereby promote the

creation and preservation of affordable rental housing.


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m This Chapter 41 B is intended to complement existing anti-displacement and

preservation programs administered by the Mayor's Office of Housing and Community

Development {the "Agency"}. In particular, this Chapter is intended to complement the Small

Sites Program and Preservation and Seismic Safety {"PASS"} program.

(1) The Small Sites Program was created to establish and protect long-term

affordable housing in smaller properties throughout the City, particularly at sites were market

pressures may otherwise result in tenant evictions and rising rents. By January 2019, the

Small Sites Program had empowered local nonprofit housing organizations to preserve 28

buildings, containing 205 residential units and 13 commercial spaces.

(2) The PASS program provides low-cost, long-term senior financing to fund

the acquisition. rehabilitation. seismic retrofitting. and preservation of affordable multi-family

housing. funded through bond revenues previously approved by City voters. It is anticipated

that the PASS program will preserve up to 1,400 units of affordable housing in the City.

SEC. 41B.2. DEFINITIONS.

For purposes ofthis Chapter 41B, the following definitions apply:

"Agency" means the Mayor's Office of Housing and Community Development. or any

successor agency, department, or office.

"Area Median Income" means the Unad;usted Area Median Income published by the US.

Department o(Housing and Urban Development for the geographic area that includes the City.

"City" means the City and County o(San Francisco.

"Fee Interest" means ownership o(real property in fee simple absolute.

"Multi-Family Residential Building. " or "Building. " means any privately-owned real property

in San Francisco improved with three or more residential rental units (whether or not the property also

includes non-residential uses), any privately-owned real property on which three or more residential


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units are under construction, and any privately-owned vacant lot on which the Planning Code and

other applicable laws would permit the construction o(three or more residential rental units.

"Notice of Special Restrictions" means an agreement executed by a Qualified Nonprofit

and recorded against a Multi-Family Residential Building Purchased by such Qualified

Nonprofit. substantially in the form published by the Agency.

"Purchase ofa Multi-Family Residential Building," or "Purchase," means to acquire any

interest that is transferred pursuant to the Sale ofa Multi-Family Residential Building.

"Purchaser" means the individual, individuals, entity, or entities engaged, or seeking to

engage, in the Purchase ofa Multi-Family Residential Building.

"Sale ofa Multi-Family Residential Building," or "Sale," is defined in Section 41B.3.

"Sell" means to engage in the Sale ofa Multi-Family Residential Building.

"Seller" means the individual, individuals, entity, or entities engaged. or seeking to engage, in

the Sale of a Multi-Family Residential Building.

"Qualified Nonprofit" is defined in Section 41B.4(a).

SEC. 41B.3. "SALE OF A MULTI-FAMILY RESIDENTIAL BUILDING" DEFINED.

(a) General Definition. As used in this Chapter 41B, "Sale ofa Multi-Family Residential

Building, " or "Sale, " means any ofthe following:

(1) The transfer. in exchange for money or any other thing of economic value, ofa

present interest in the Multi-Family Residential Building, including beneficial use, where the value of

the present interest is the Fee Interest in the Multi-Family Residential Building, or substantially equal

to the value ofthat Fee Interest;

(2) ]fan interest in the Multi-Family Residential Building is held by a trust, the

transfer, in exchange for money or any other thing of economic value, of a beneficial interest in the


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trust, where the value of the beneficial interest in the trust is substantially equal to the value ofthe Fee

Interest ofthe Multi-Family Residential Building,· or

(3) Jfan interest substantially equal to the value of the Fee Interest ofthe Multi-

Family Residential Building is held by any kind of corporate entity or partnership (including, but not

limited to, a corporation, limited liability company, general partnership, limited partnership, or limited

liability partnership), and if that interest is substantially equal in value to the total value of assets held

by the corporate entity or partnership, the transfer. in exchange for money or any other thing of

economic value, of a controlling interest in the corporate entity or partnership.

(b) Multiple Owners. For purposes ofthis Section 41B.3, in any instance in which multiple

entities (whether those entities are natural persons, trusts, corporate entities, partnerships, or any other

kind of entity, or any combination of different kinds of entities) hold interests in a Multi-Family

Residential Building, the transfer of multiple interests by or in those entities shall be considered the

transfer ofa single interest, i(the transfers are made in connection with substantially the same

transaction or set oftransactions.

(c) Exclusions. Notwithstanding subsections {a) and (b), "Sale ofa Multi-Family

Residential Building, " or "Sale, " does not include any of the following:

(I) Any transfer made under a mortgage, deed of trust, or deed in lieu of

foreclosure,·

(2) Any transfer made in connection with any bankruptcy proceeding (including, but

not limited to, any transfer made by a bankruptcy trustee),·

(3) Any transfer of an interest in real property held by the Federal government, by

the State government, or by any special district created by State law (including, but not limited to, any

transfer of any such interest held because of a taxpayer's nonpayment of tax),·


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(4) Any transfer by devise or intestacy, or any other transfer made in connection

with a bona fide effort to pass an interest in real property to one's devisees or heirs (including, but not

limited to, such transfers made in connection with a living trust),· or

(5) Any transfer between or among spouses, domestic partners, siblings (including,

but not limited to, halfsiblings, step-siblings, and adoptive siblings), parents (including, but not limited

to, step-parents and adoptive parents) or guardians and their children, grandparents and their

grandchildren, aunts or uncles and their nieces or nephews, great-aunts or great-uncles and their

grand-nieces or grand-nephews, or first or second cousins, or any combination thereof

(6) Any transfer of an interest in a Multi-Family Residential Building income-

restricted at or below an average of 80% of Area Median Income for a minimum of 10 years. if

such transfer is to an entity controlled by a California public benefit corporation, and that entity

also participates in the management. direction, or control of the Building.

SEC. 41B.4. QUALIFIED NONPROFITS.

(a) Annual Selection of Qualified Nonprofits. The Agency shall establish a process for

certi"(j;ing, on an annual basis, nonprofit organizations that meet the following criteria:

(1) The organization is a bona fide nonprofit, as evidenced by the fact that it is

exempt from federal income tax under 26 USC § 501 (c)(3),·

(2) The organization has demonstrated a commitment to the provision of affordable

housing for low- and moderate-income City residents, and to preventing the displacement ofsuch

residents,·

(3) The organization has demonstrated a commitment to community engagement, as

evidenced by relationships with neighborhood-based organizations or tenant counseling organizations;


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(4) The organization has demonstrated the capacity (including, but not limited to,

the legal and financial capacity) to effectively acquire and manage residential real property at multiple

locations in the City; and

(5) The organization has, within the previous #lree_five years, acquired or

partnered with another nonprofit housing development organization to acquire at least two

residential buildings under a "Small Sites" program operated by the Agency consistent 1.vith

Section 415.5(f)(2)(A) of the Planning Code, or_using funding provided by the Agency. or has

acquired or partnered with another nonprofit organization to acquire at least two residential

buildings under this Chapter 41B.

Nonprofit organizations that the Agency certifies as having met these criteria shall be known as

"Qualified Nonprofits." An organization's certification as a Qualified Nonprofit shall be valid for a

period not to exceed one year, but three years. Tthe Agency shall solicit new applications for

Qualified Nonprofit status at least once each calendar year, at which time existing Qualified Nonprofits

shall be eligible to apply for renewed certification as Qualified Nonprofits. In the absence o(new

information raising doubts about whether the organization qualifies as a Qualified Nonprofit, an

existing Qualified Nonprofit 's application for renewed certification as a Qualified Nonprofit shall be

routinely and swiftly granted.

(b) Existence and Publication of Qualified Nonprofits List. The Agency shall publish on

its website, and make available upon request, a list o(Qualified Nonprofits. In addition to such other

information as the Agency may include, this list shall include contact information for each Qualified

Nonprofit. This contact information shall include, but need not be limited to, a mailing address, an e

mail address that the Qualified Nonprofit monitors regularly, and a telephone number.

(c) Disqualification of Qualified Nonprofits. The Agency shall promptly investigate any

complaint alleging that a Qualified Nonprofit has failed to comply with this Chapter 41B. It: after

providing the Qualified Nonprofit with notice and opportunity to be heard, the Agency determines that


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a nonprofit organization listed as a Qualified Nonprofit has failed to comply with this Chapter, the

Agency may suspend or revoke that nonprofit organization's certification as a Qualified Nonprofit.

SEC. 41B.5. GENERAL PROVISIONS.

(a) First Right to Purchase Conferred. This Chapter 41 B shall be construed to confer

upon each Qualified Nonprofit a first right to purchase any Multi-Family Residential Building for Sale

in the City. This first right to purchase shall consist of both a right o[first offer, as set forth in Section

41 B. 6, and a right o[first refusal, as set forth in Section 41 B. 7.

(b) Confidential Information Protected. Any information obtained from a Seller by a

Qualified Nonprofit under this Chapter 41B-including, but not limited to, disclosures made under

Section 41B. 6(c) and (e), and terms and conditions ofan offer of Sale made under Section 41B. 7(b)

shall be kept confidential to the maximum extent permitted by law, except that a Qualified Nonprofit

may, if otherwise permitted by law, share such information with other Qualified Nonprofits to facilitate

Qualified Nonprofits' exercise o[the rights conferred by this Chapter. Nothing in this Chapter permits

or requires the disclosure o[information where such disclosure is otherwise prohibited by law.

(c) Preexisting Rights Unaffected. This Chapter 41 B shall not be construed to impair any

contract, or affect any property interest held by anyone other than the Seller ofa Multi-Family

Residential Building (including, but not limited to, any interest held under a mortgage, deed of trust, or

other security interest: any option to purchase: or any right o[first offer or right o[first refusal), in

existence before the effective date of this Chapter.

SEC. 41B.6. RIGHT OF FIRST OFFER.

(a) General Construction. This Section 41 B. 6 shall be construed to confer upon each

Qualified Nonprofit a right o[first offer with respect to any Multi-Family Residential Building for Sale


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in the City, as set forth in this Section. This right of first offer is cumulative with the right of first

refusal set forth in Section 41 B.7.

(b) Opportunity for Qualified Nonprofits to Submit Offers. Before the Seller of a Multi-

Family Residential Building may offer that Building for Sale to any Purchaser other than a Qualified

Nonprofit, or otherwise solicit any offer to Purchase that Building from any Purchaser other than a

Qualified Nonprofit, the Seller shall notify each Qualified Nonprofit, via e-mail, o[its intent to Sell the

Building, and shall provide each Qualified Nonprofit with an opportunity to make an offer to Purchase

the Building as set forth in subsections (d)-(0. The Seller shall submit this notification on the same

calendar day and, to the extent possible, at the same time. to each ofthe e-mail addresses included on

the Agency's list ofQualified Nonprofits pursuant to Section 41B.4(b).

(c) Related Disclosures. When the Seller, pursuant to subsection (b), notifies each

Qualified Nonprofit, via e-mail, o[its intent to sell a Multi-Family Residential Building, the Seller shall

also provide each Qualified Nonprofit with the following information:

(1)

(2)

(3)

The number ofrental units in the Building,·

The address or location of each rental unit: and

The rate o[rent due for each unit.

(d) Time for Qualified Nonprofits to Express Interest. No later than 11 :59 p.m. on the fifth

full calendar day after a Seller has, pursuant to subsection (b), notified a-each Qualified Nonprofit, via

e-mail, ofits intent to Sell a Multi-Family Residential Building, tfiat-each Qualified Nonprofit shall

notify the Seller and every other Qualified Nonprofit, via e-mail, as to whether or not tfiat-the

Qualified Nonprofit wishes to further consider whether to make an offer to Purchase the Building. It:

after 11: 5 9 p. m. on the fi..fth full calendar day after a Seller has notified each Qualified Nonprofit o[its

intent to Sell the Building, no Qualified Nonprofit has se notified the Seller that it wishes to further

consider whether to make an offer to Purchase the Building, the Seller may immediately proceed

to offer the Building for Sale to, and to solicit offers of Purchase from, prospective Purchasers other


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than Qualified Nonprofits, sub;ect to the right of.first refusal set forth in Section 41B. 7. If: at or before

11 :59 p.m. on the fifth full calendar day after a Seller has notified each Qualified Nonprofit o[its intent

to Sell the Building, each Qualified Nonprofit has notified the Seller that the Qualified Nonprofit does

not wish to further consider whether to make an offer to Purchase the Building, the Seller may likewise

immediately offer the Building for Sale to, and solicit offers of Purchase from, prospective Purchasers

other than Qualified Nonprofits, sub;ect to the right of.first refusal set forth in Section 41B. 7.

(e) Additional Disclosures. If: no later than 11 :59 p.m. on the fifth full calendar day after a

Seller has notified-a~ Qualified Nonprofit o[its intent to Sell a Multi-Family Residential Building,

tAe---any Qualified Nonprofit has, consistent with subsection (d), notified the Seller that the Qualified

Nonprofit wishes to further consider whether to make an offer to Purchase the Building, the Seller shall

disclose to tAe--each such Qualified Nonprofit, via e-mail, the name or names of any tenant or tenants

in each rental unit o[the Building, as well as any available contact information for each tenant.

(0 Time for Qualified Nonprofits to Make Offer. Upon receipt, via e-mail, of the

disclosures described in subsection (e), tAe--each such Qualified Nonprofit (that is, each Qualified

Nonprofit that has, consistent with subsection (d}, notified the Seller that the Qualified

Nonprofit wishes to further consider whether to make an offer to Purchase the Building} shall

have 25 additional calendar days to decide whether to make an offer to Purchase the Building, and to

submit any such offer to the Seller. Any such offer of Purchase shall be presumed to be contingent

upon the Qualified Nonprofit's ability to conduct due diligence and secure financing in a manner

consistent with subsection (g), unless the Seller and the Qualified Nonprofit expressly agree otherwise

in writing.

(g) Seller Free to Accept or Reiect Offer. The Seller is free to accept or reiect any offer of

Purchase submitted by a Qualified Nonprofit under subsection (e). Any such acceptance or reiection

shall be communicated in writing. If the Seller reiects all such offers of Purchase, or if the 25-day

period described in subsection (e) has elapsed and no Qualified Nonprofit has submitted an offer of


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Purchase, the Seller may immediately offer the Building for Sale to, and solicit offers of Purchase from,

prospective Purchasers other than Qualified Nonprofits, sub;ect to the right of.first refusal set forth in

Section 41 B. 7.

(h) Seller's Acceptance of Offer. Jfthe Seller accepts an offer of Purchase submitted by a

Qualified Nonprofit, the Qualified Nonprofit shall have 60 days to conduct due diligence and secure

_financing related to the Purchase, unless the Seller and the Qualified Nonprofit have expressly agreed

otherwise in writing. At the end ofthis 60-day period (or any other period to which the Seller and the

Qualified Nonprofit have expressly agreed in writing), the Seller shall proceed to Sell the Multi-Family

Residential Building to the Qualified Nonprofit in a manner consistent with the Qualified Nonprofit's

offer of Purchase.

SEC. 41B.7. RIGHT OF FIRST REFUSAL.

(a) General Construction. This Section 41 B. 7 shall be construed to confer upon each

Qualified Nonprofit a right of.first refusal. as set forth in this Section. with respect to any Multi

Family Residential Building for sale in the City, as set forth in this Section. This right of first

refusal is cumulative with the right of first offer set forth in Section 41 B.6._which that Qualified

Nonprofit has previously made an offer of purchase under Section 41 B.6(f}. or for which that

Qualified Nonprofit was not previously given the opportunity described in Section 41 B.6(b).

(b) Written Offer of Sale to Qualified Nonprofits; Terms and Conditions Set by Market.

Except as provided in subsection (!), whenever the Seller ofa Multi-Family Residential Building

receives from a Purchaser other than a Qualified Nonprofit an offer to Purchase the Multi-Family

Residential Building that the Seller wishes to accept, and whenever the Seller of a Multi-Family

Residential Building makes an offer to Sell the Multi-Family Residential Building that a Purchaser

other than a Qualified Nonprofit expresses a desire to accept, the Seller shall, before any such offer of

Purchase or Sale may be accepted, offer to Sell the Building to eaeh-any Qualified Nonprofit that has


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previously made an offer of purchase under Section 41 B.6(f} with respect to that Building, or

that was not previously given the opportunity described in Section 41 B.6{b) with respect to

that Building. +A-is Any such offer of Sale to a Qualified Nonprofits shall contain the same terms and

conditions (including, but not limited to, price) as the offer of Purchase previously received by the

Seller which the Seller wishes to accept or the offer o{Sale previously made by the Seller which a

Purchaser has expressed a desire to accept, except that the terms and conditions in the offer o{Sale to

a Qualified Nonprofits shall not be inconsistent with the applicable timeframe described in subsection

(c) or (d). +-Ae--Such an offer of Sale to a Qualified Nonprofits shall be submitted in writing, on the

same calendar day (and, to the extent possible, at the same time), to each of the e-mail addresses

included on the Agency's list of Qualified Nonprofits for any Qualified Nonprofits that have

previously made an offer of purchase under Section 41 B.6(f} with respect to the relevant

Building, or that were not previously given the opportunity described in Section 41 B.6(b) with

respect to that Building. If the Seller has not previously made the disclosures set forth in Section

41 B. 6(c) and Section 41 B. 6(e) with respect to the Multi-Family Residential Building, the Seller shall

include those disclosures with t-A-e-any offer o{Sale required by this subsection (b).

(c) Time for Qualified Nonprofits to Accept Offer, in General. Except as provided in

subsection (d), no later than 11:59 p.m. on the fifth full calendar day after a Seller has submitted an

offer o{Sale under subsection (b) to a Qualified Nonprofit via e-mail, that Qualified Nonprofit shall

notify the Seller and every other Qualified Nonprofit, via e-mail, o{its decision to accept or re;ect the

Seller's offer o{Sale. Il during this time period, any Qualified Nonprofit that has received such an

offer of Sale decides to accept the Seller's offer ofSale, that Qualified Nonprofit shall immediately

notify the Seller and every other Qualified Nonprofit of that decision, via e-mail. After a Qualified

Nonprofit notifies the Seller o{its decision to accept the Seller's offer of Sale, and notwithstanding any

defect in that Qualified Nonprofit 's notice to other Qualified Nonprofits, that Qualified Nonprofit shall


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be deemed to have accepted the offer of Sale, and no other Qualified Nonprofit may accept the Seller's

offer of Sale, whether or not the time period described in this subsection (c) has elapsed.

(d) Time for Qualified Nonprofits to Accept Offer, Absent Prior Opportunity to Exercise

Right of First Offer. Notwithstanding subsection (c), if Qualified Nonprofits have not previously had

an opportunity to exercise the right of.first offer set forth in Section 41 B. 6 with respect to the Sale of a

Multi-Family Residential Building (because, for example, the Seller of the Building has received an

unsolicited offer to Purchase the Building), each Qualified Nonprofit shall notify the Seller and every

other Qualified Nonprofit, via e-mail, o[its decision to accept or re;ect the Seller's offer of Sale no

later than 11 :59 p.m. on the 30th full calendar day after the Seller has, pursuant to subsection (b),

notified the Qualified Nonprofit o(its intent to Sell a Multi-Family Residential Building. If. during this

time period, any Qualified Nonprofit decides to accept the Seller's offer of Sale, that Qualified

Nonprofit shall immediately notify the Seller and every other Qualified Nonprofit of that decision, via

e-mail. After a Qualified Nonprofit notifies the Seller o[its decision to accept the Seller's offer of Sale,

and notwithstanding any defect in that Qualified Nonprofit's notice to other Qualified Nonprofits, that

Qualified Nonprofit shall be deemed to have accepted the offer of Sale, and no other Qualified

Nonprofit may accept the Seller's offer of Sale, whether or not the time period described in this

subsection (d) has elapsed.

(e) Qualified Nonprofit's Acceptance of Offer. It: in accordance with subsection (c) or (d),

as applicable, a Qualified Nonprofit notifies the Seller that the Qualified Nonprofit has decided to

accept the Seller's offer of Sale, the Seller shall proceed to Sell the Multi-Family Residential Building

to that Qualified Nonprofit in a manner consistent with the offer of Sale. A Qualified Nonprofit that so

notifies the Seller (that is, before any other Qualified Nonprofit so notifies the Seller) shall be obliged

to Purchase the Multi-Family Residential Building in a manner consistent with the offer of Sale.

m Qualified Nonprofits' Reiection of Offer. It: at or before the deadline set forth in

subsection (c) or (d), as applicable, each Qualified Nonprofit that has received an offer of Sale has


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notified the Seller that it does not wish to accept the Seller's offer o(Sale, the Seller may immediately

proceed with the Sale of the Multi-Family Residential Building. consistent with the offer of Purchase or

offer o(Sale that the Seller previously received from, or made to, a Purchaser other than a Qualified

Nonprofit, as described in subsection (k). If: after the deadline set forth in subsection (c) or (d), as

applicable, no Qualified Nonprofit has notified the Seller that it has decided to accept the Seller's offer

of Sale, the Seller may likewise immediately proceed with the Sale ofthe Multi-Family Residential

Building. consistent with such offer of Purchase or offer o(Sale. If: however, the Seller does not

proceed with the Sale of the Building in a manner consistent with such offer of Purchase or offer of

Sale, and instead receives from a Purchaser other than a Qualified Nonprofit a materially different

offer to Purchase the Multi-Family Residential Building that the Seller wishes to accept, or makes a

materially different offer to Sell the Multi-Family Residential Building that a Purchaser other than a

Qualified Nonprofit expresses a desire to accept, that materially different offer of Purchase or offer of

Sale shall be considered a new offer of Purchase or offer o(Sale for purposes ofsubsection (k).

(g) Conditional Third-Partv Sales Agreements Permitted. If as described in subsection

(k), the Seller ofa Multi-Family Residential Building receives from a Purchaser other than a Qualified

Nonprofit an offer to Purchase the Multi-Family Residential Building that the Seller wishes to accept,

or i(the Seller ofa Multi-Family Residential Building makes an offer to Sell the Multi-Family

Residential Building that a Purchaser other than a Qualified Nonprofit expresses a desire to accept,

that offer o(Sale or offer of Purchase may be accepted subiect to the contingency that no Qualified

Nonprofit exercises the right offirst refusal conferred by this Section 41B. 7. In such a circumstance,

the Seller and the Purchaser shall each expressly acknowledge, in writing. that the Purchaser's

Purchase ofthe Multi-Family Building will not occur if a Qualified Nonprofit exercises the right offirst

refusal conferred by this Section.


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SEC. 41B.8. PRESERVATION AS RENT-RESTRICTED AFFORDABLE HOUSING: TENANT

PROTECTIONS.

(a) Existing Tenants Protected. Following the Purchase of a Multi Family

Residential Building by a Qualified Nonprofit under the first right to purchase conferred by this

Chapter 41 B, each existing residential tenant in the Building shall be permitted to retain that

tenant's existing leasehold interest according to the terms (including, but not limited to,

duration) of that tenant's existing lease.

(b) Affordable Housing Preserved. Any Multi-Family Residential Building Purchased

by a Qualified Nonprofit under the first-right-to-purchase conferred by this Chapter 41B shall be

maintained as rent-restricted affordable housing in perpetuity. For purposes of this subsection (b).

"rent-restricted a(fprdable housing" shall mean that the mean value of all rents paid by residential

tenants in the Building shall not exceed 80% of Area Median Income, and that the gross household

income of new tenants in the Building shall not exceed 120% of Area Median Income. The Agency

shall establish procedures to ensure that each Building acquired under this Chapter is sub;ect to a

Notice o(Special Restrictions settingJhat: (a) sets forth the manner in which that Building shall be

preserved as rent-restricted affordable housing. and (b) provides that no existing residential

tenants at the time of the Purchase or new residential tenants following the Purchase may be

evicted without just cause consistent with the substantive provisions of Administrative Code

Section 37.9(a}.

SEC. 41B.9. INCENTIVES.

(a) Access to Buyers. The Agency shall endeavor to maintain and publicize the list of

Qualified Nonprofits described in Section 41B.4 in a manner that, to the maximum extent feasible,

promotes the existence of the Qualified Nonprofits as a readily accessible pool o(potential buyers for

Multi-Family Residential Buildings. The Agency shall, to the maximum extent permitted by law and


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otherwise feasible, publicize the existence of this list in a manner intended to facilitate voluntary sales

to Qualified Nonprofits in a manner that avoids or minimizes the need for a broker, other search costs,

or other transaction costs.

(b) Partial City Transfer-Tax Exemption. The Board of Supervisors may, by

ordinance, provide that a Qualified Nonprofit's Purchase of a Multi Family Residential Building

under the right of first offer set forth in Section 41 B.6 is exempt from the increased rate of tax

imposed by Business and Tax Regulations Code Section 1102(d) (f), to the extent permitted

by, and in a manner consistent with, Section 1102. As set forth in Section 1108.6 of the

Business and Tax Regulations Code, the increased tax rate imposed by subsections (d), (e),

and (f) of Business and Tax Regulations Code Section 1102 shall not apply with respect to

any deed, instrument or writing that effects a transfer under Section 41 B.6 of this

Administrative Code, as Administrative Code Section 41 B.6 exists as of the effective date of

the ordinance in Board File No.181212

(c) Potential Federal Tax Benefits. Any Qualified Nonprofit that Purchases a Multi-

Family Residential Building under the right offirst offer set forth in Section 41B.6 shall, to the

maximum extent permitted by law and otherwise feasible. be obliged to work with the Seller in good

faith to facilitate an exchange ofreal property ofthe kind described in 26 USC § 1031, for the

purpose of.facilitating the Seller's realization of any federal tax benefits available under that section of

the Internal Revenue Code.

(d) Information to Sellers. The Agency shall produce an information sheet describing the

benefits ofa Seller's decision to accept a Qualified Nonprofit's offer of Purchase made in connection

with the right offirst offer set forth in Section 41B.6. The information sheet shall further explain that,

even ifa Seller does not accept a Qualified Nonprofit's offer to Purchase a Multi-Family Residential

Building pursuant to the right of.first offer set forth in Section 41 B. 6, the Building will still be sub;ect to

the right offirst refusal set forth in Section 41B. 7. The information sheet shall contain a field in which


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the Seller may acknowledge, in writing, that the Seller (or the Seller's authorized representative) has

read and understood the information sheet. A Qualified Nonprofit that makes an offer to Purchase a

Multi-Family Residential Building under the right of.first offer set forth in Section 41 B. 6 shall include a

copy o[ or link to, this information sheet with that offer of Purchase, but any failure to comply with this

Section 41B.9(d) shall have no effect on a Qualified Nonprofit's exercise ofthe right of.first offer set

forth in Section 41 B. 6.

SEC. 41B.10. ENFORCEMENT.

(a) Seller Certification. Every Seller of a Multi-Family Residential Building in the City

shall, within 15 days ofthe Sale of that Building, submit to the Agency a signed declaration, under

penalty ofper;ury, affirming that the Sale ofthat Building substantially complied with the requirements

of this Chapter 41B. Each such declaration shall include the address ofthe relevant Building; the

Agency shall publish all such addresses on its website at least once per week. Failure to file the

declaration required by this subsection (a) shall be an infraction punishable to the maximum extent

provided by Section 36900(b) of the California Government Code.

(b) Civil Action. In the event that a Seller Sells a Multi-Family Residential Building without

substantially complying with the requirements ofthis Chapter 41 B, a Qualified Nonprofit may institute

a civil action, in a court of competent ;urisdiction, to remedy that violation ofthis Chapter, in a manner

consistent with subsections (c) and (d).

(c) Remedies. Remedies in a civil action brought under this Section 41B.10 shall include,

but need not be limited to, the following, which may be imposed cumulatively:

0) Damages in an amount sufficient to remedy the harm to the Qualified Nonprofit.

There shall be a rebuttable presumption that this amount is equal to the difference between the price of

the relevant Multi-Family Residential Building at the time of the Sale made in violation of this Chapter


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41B, and the price for which the Qualified Nonprofit could purchase that Multi-Family Residential

Building at the time when damages are awarded,·

(2) If the Seller's violation oft his Chapter was knowing or willful, mandatory civil

penalties in an amount proportional to the culpability of the Seller and the value of the relevant Multi

Family Residential Building. There shall be a rebuttable presumption that this amount is equal to 10%

ofthe Sale price of the Multi-Family Residential Building for a first willful or knowing violation of this

Chapter, 20% ofthe Sale price for a second willful or knowing violation, and 30% of the Sale price for

each subsequent willful or knowing violation. Civil penalties assessed under this subsection (b)(2)

shall be payable to the Citywide Affordable Housing Fund established by Section 10.100-49 of the

Administrative Code,·

Reasonable attorneys' fees,· and (3)

(4) Such other remedies as might be available under State law, except to the extent

that any such remedies would be inconsistent with subsection (d).

(d) Limitation on Remedies. Any remedy imposed in a civil action under this Section

41B.10 shall be imposed only against the Seller or a party that has willfully colluded with the Seller to

violate this Chapter 41B. In no event shall any such remedy deprive the Purchaser ofa Multi-Family

Residential Building of any interest in that Multi-Family Residential Building. or otherwise affect any

property interest held by the Purchaser, unless the Purchaser willfully colluded with the Seller to

violate this Chapter.

SEC. 41B.11. IMPLEMENTATION.

The Agency shall have the power to interpret and implement this Chapter 41 B. The Agency

shall, within 90 days of the effective date ofthis Chapter, promulgate appropriate rules or regulations

interpreting and implementing this Chapter, including the establishment ofprocedures to implement


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this Chapter, in a manner that the Agency deems most appropriate. The Agency may thereafter revise

those rules or regulations from time to time.

SEC. 41B.12. UNDERTAKING FOR THE GENERAL WELFARE.

In enacting and implementing this Chapter 41B. the City is assuming an undertaking only to

promote the general welfare. It is not assuming. nor is it imposing on its officers and employees, an

obligation for breach of which it is liable in money damages to any person who claims that such breach

proximately caused in;ury.

SEC. 41B.13. CONSTRUCTION WITH OTHER LAWS.

Nothing in this Chapter 41 B shall be construed to conflict with any State or Federal law, or

with any provision ofthe Charter.

SEC. 41B.14. SEVERABILITY.

Jfany section, subsection, sentence, clause, phrase, or word o(this Chapter 41B, or any

application thereofto any person or circumstance, is held to be invalid or unconstitutional by a

decision ofa court of competent ;urisdiction, such decision shall not affect the validity ofthe remaining

portions or applications ofthe Chapter. The Board o(Supervisors hereby declares that it would have

passed this Chapter and each and every section, subsection, sentence, clause, phrase, and word not

declared invalid or unconstitutional without regard to whether any other portion ofthis Chapter or

application thereof would be subsequently declared invalid or unconstitutional.

Section 3. Article 12C of the Business and Tax Regulations Code is amended by

adding Section 1108.6, to read as follows:


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SEC. 1108.6. PARTIAL EXEMPTION FOR RENT-RESTRICTED AFFORDABLE HOUSING:

COMMUNITY OPPORTUNITY TO PURCHASE ACT.

(a) Exemption from Increased Tax Rate. As authorized by the last sentence of

Section 1102, the increased tax rate imposed by subsections (d), (e), and (f) of Section 1102

shall not apply with respect to any deed, instrument or writing that effects a transfer under

Section 41 B.6 of the Administrative Code, as that Section 41 B.6 exists as of the effective date

of this Section 1108.6. The lower tax rate imposed by subsection (c) of Section 1102 shall

apply to the entire consideration or value of the interest or property conveyed by a deed,

instrument or writing that is subject to the exemption in this subsection (a).

(b) Requirements for Exemption. Every person claiming the exemption under

subsection (a) must:

(1) Obtain from the Mayor's Office of Housing and Community Development, or

its successor agency, department, or office, a certificate confirming that the deed, instrument

or writing effects a transfer under Section 41 B.6 of the Administrative Code.

(2) Submit the certificate described in subsection (b)(1) of this Section 1108.6 to

the County Recorder at the time such person submits the affidavit described in subsection (c)

or (d) of Section 1111 .

(c) Operative Date. This Section 1108.6 shall apply to all deeds, instruments, or

writings that are delivered on or after the effective date of the ordinance in Board File No.

, but on or before the sunset date in subsection (d).

(d) Sunset Date. This Section 1108.6 shall expire by operation of law on June 30,

2024, and shall not apply to any deeds, instruments, or writings that are delivered on or after

July 1, 2024.


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Section ~- Effective Date. This ordinance shall become effective 30 days after

enactment. Enactment occurs when the Mayor signs the ordinance, the Mayor returns the

ordinance unsigned or does not sign the ordinance within ten days of receiving it, or the Board

of Supervisors overrides the Mayor's veto of the ordinance.

APPROVED AS TO FORM: DENNIS J. HERRERA, City Attorney

! /J

/~~ ( By: i \ > ',

JOMGIVNER Deputy City Attorney

n:\legana\as2019\1700436\01349322.docx


City and County of San Francisco

Tails

Ordinance

City Hall 1 Dr. Carlton B. Goodlett Place San Francisco, CA 94102-4689

File Number: 181212 Date Passed: April 23, 2019

Ordinance amending the Administrative Code to confer upon certain nonprofit organizations a first-right-to-purchase, consisting of both a right of first offer and a right of first refusal, over all multi-family residential buildings (and related construction sites and vacant lots) in the City, for the purpose of creating and preserving rent-restricted affordable rental housing, and to establish related procedures for the selection of such nonprofits, the preservation of rent-restricted affordable housing, and other implementation and enforcement; amending the Business and Tax Regulations Code to exempt rent-restricted affordable housing created under this ordinance from increased rates of transfer tax; and affirming the Planning Department's determination under the California Environmental Quality Act.

April 03, 2019 Budget and Finance Sub-Committee -AMENDED, AN AMENDMENT OF THE WHOLE BEARING NEW TITLE

April 03, 2019 Budget and Finance Sub-Committee - CONTINUED AS AMENDED

April 10, 2019 Budget and Finance Sub-Committee - RECOMMENDED

April 16, 2019 Board of Supervisors - PASSED ON FIRST READING

Ayes: 11 - Brown, Fewer, Haney, Mandelman, Mar, Peskin, Ronen, Safai, Stefani, Walton and Yee

April 23, 2019 Board of Supervisors - Fl NALLY PASSED

City and County of San Francisco

Ayes: 11 - Brown, Fewer, Haney, Mandelman, Mar, Peskin, Ronen, Safai, Stefani, Walton and Yee

Page 1 Printed at 10:44 am on 4/24/19

File No. 181212

London N. Breed Mayor

City and County of San Francisco Pagel

I hereby certify that the foregoing Ordinance was FINALLY PASSED on 4/23/2019 by the Board of Supervisors of the City and County of San Francisco.

,

/31/ ff Date Approved

Printed at 10:44 am on 4/24/19

1

June 20, 2019

To: City of Berkeley 4x4 Joint Task Force Committee on Housing

Fr: The Alameda County Fair Chance Housing Coalition: Policy and Outreach Leaders: Ms. Anita Wills with Essie Justice Group; Ms. Sherry with OCO, Our Beloved Community Action Network; Taqwaa Bonner and Katie Dixon with All of Us or None; Coalition Advisors: Tamisha Walker with the Safe Return Project, and Deborah Thrope and Lisa Sitkin with the National Housing Law Project. Coalition Staff: John Jones III & Margaretta Lin with Just Cities and the Our Beloved Community Action Network

Re: Updates on Proposed Policy Terms on Fair Chance Housing proposal

We remain grateful for your partnership to remove housing barriers faced by formerly incarcerated residents. The discussions we have had with you in Committee and individual meetings have helped us refine what we believe will be the nation’s best Fair Chance Housing policy. In addition, we have had invaluable feedback from the Rent Board Executive Director and lawyers, and a former Deputy City Attorney for Oakland. In light of their feedback regarding implementation and enforcement considerations, we have made further refinements to the proposed Fair Chance Housing ordinance.

We look forward to working with Mayor Arreguin and the Berkeley City Attorney’s office on any further modification needs to the proposed ordinance.

COALITION POLICY GOALS:

1. Remove current structural barriers faced by formerly incarcerated people when they apply forprivate or publicly subsidized housing to enable them to be considered on the merits of theirpresent situation, rather than the albatross of their past.

2. Create a due process system that 1) enables formerly incarcerated people the ability tocomplain to the City and also sue to enforce their rights under the Ordinance; and 2) builds onthe City’s current administrative systems and capacity.

3. Design policy terms based upon an understanding of the different application and reviewprocesses by private and multiple kinds of Affordable Housing providers.

4. Create reporting requirements that are streamlined and also helps Affordable Housing providerstransform their current application and review systems.

5. Avoid unintended consequences by not having burdensome or complex requirements forlandlords.

Item 6.Alameda County Fair Chance Housing Coalition

2

MAIN PROPOSED POLICY TERMS: the following is a summary of the proposed fair chance housing policy for your consideration.

Housing Provider Criminal Background Check

Due Process Reporting to City

Potential Remedies for Violations

Private (Non-Affordable Housing Provider)

No City Complaint Sue in Court

None City complaint w/ fine OR City negotiation of next unit. Court action w/ damages or injunctive relief.

Publicly Subsidized, BMR & Not HUD Funded

No City Complaint Sue in Court

Annual certification of compliance

City complaint w/ fine OR City negotiation of next unit. Court action w/ damages or injunctive relief.

HUD Funded After conditional offer, can check on 2 crimes per HUD rules

City Complaint Sue in Court

Annual certification of compliance

City complaint w/ fine OR City negotiation of next unit. Court action w/ damages or injunctive relief.

v NAMED AFTER RON DELLUMS: The Coalition is proposing to name the Fair Chance Housing

policy after former Berkeley City Councilmember, Congressman, Oakland Mayor, world humanitarian Ronald V. Dellums in honor of his legacy and to inspire policymakers across the nation to champion human rights.

v PUBLIC POLICY RATIONALE: California State law may pre-empt local jurisdictions from enacting local housing anti-discrimination laws. However, local jurisdictions are able to enact public health and safety laws. There is substantive and compelling research, data, and lived experience demonstrating the direct public health and safety impacts from restricting the access of formerly incarcerated residents to private and publicly subsidized rental housing. In addition, research and data also shows the direct connection between housing barriers for formerly incarcerated residents and homelessness.

CRIMINAL BACKGROUND CHECKS:

o The proposed ordinance for Berkeley prohibits ALL landlords from: (a) Advertising or using a policy that automatically excludes people with criminal

histories from rental housing, (b) Asking about or requiring disclosure of someone’s criminal history, or (c) Taking adverse action against an applicant or tenant based on his or her criminal

history. o Landlords also have to include in all advertising and application materials the

information that they are not allowed to ask about criminal history or take adverse action on the basis of criminal history except in very limited circumstances.

Alameda County Fair Chance Housing Coalition

3

o Exceptions:

(a) Single-family dwellings where the owner occupies the dwelling are exempt. (b) Landlords of federally assisted housing have a partial exemption from the

ordinance if they are complying with federal regulations that require them to automatically exclude tenants based on certain types of criminal history (lifetime sex offender registration requirement or making meth on a federally assisted housing property).

IMPLEMENTATION & ENFORCEMENT:

1. Private Rental Housing Application & Complaint Process

o Denial: If an applicant has been denied housing, they are entitled to any notices required by state and federal law and can also request that the landlord provide a reason for the denial.

o Due Process, Remedies & Enforcement—See below

2. Affordable Housing Rental Housing Application and Appeal/Complaint Process

o Definition: any housing provider receiving direct local, county, state, or federal subsidy, including private developers with units in Berkeley’s BMR program. We have removed Section 8 landlords from the definition of Affordable Housing provider since the Housing Authority conducts the background checks for Section 8 voucher holders and because Berkeley’s source of income anti-discrimination law potentially makes every landlord a Section 8 landlord.

o Conditional Offer, Background Check, and Denial: For federally funded housing providers, after a conditional offer of housing has been provided, the housing provider may conduct a background check if required by federal requirements. The housing provider must provide in writing the grounds for denial of housing and state whether a criminal records background check was conducted and, if so, what the results were of the check.

o The Viability of Holding Units Open: Our original proposal required that Affordable

Housing providers hold their units open up to 30 days if an applicant files a complaint within 14 days of receiving a denial. However, after important information from Rent Board staff, we realize that it is not possible for someone to file a complaint with the City and to both hold a hearing and have a determination issued within 30 days. Given this reality and the potential impact to other applicants if we required that housing units be held open for 60 or 90 days, the Coalition has decided to remove the


4

requirement of holding units open. Instead, for complaints filed with the City and a City determination of a violation, we strongly encourage the City to waive the fine and instead negotiate for the next available comparable unit as the fair remedy.

o Annual Reports: the housing provider must submit an annual certification of

compliance to the City utilizing a City template. The Coalition would like to work with the City on designing the compliance template.

3. Due Process, Remedies and Enforcement for Both Private & Publicly Subsidized Rental Housing

o Complaint Process: o The applicant would have the right to file a complaint with the City’s Rent Board

within one year from the date of application for housing. o The public and complainant would be informed of available City or community

resources to assist in the filing of the complaint or preparing for the hearing, including the gathering of evidence.

o Similar to current Berkeley tenant law, private right of action and attorney’s fees for the prevailing applicant are provided.

o Berkeley’s current civil penalty system is also integrated into the proposal.

o Landlord retaliation is explicitly prohibited.

o Landlords are required to maintain documentation of any conviction history that they

obtain on applicants for at least three years.

o Effective date of the ordinance is 6 months after its adoption.

o The City Manager or their designee would provide an annual status report to the City Council and public including: a) which Affordable Housing providers submitted an annual certification of compliance; b) number of complaints filed with the City and the resolution; c) information from local service providers and community organizations on the number of court cases filed and the resolution or other compliance information.

_______________ CONTACT: John Jones III, Community + Political Engagement Director, Just Cities, [email protected]; Margaretta Lin, Managing Director, Just Cities, [email protected]


DRAFT

The Ronald V. Dellums Fair Chance Housing Public Health & Safety Ordinance

June 21, 2019

1

To be inserted in the Berkeley Municipal Code

I. Title

This Ordinance shall be known as the “Ronald V. Dellums Fair Chance Access to Housing

and Public Health and Safety Ordinance.”

II. Authority

This Ordinance is adopted pursuant to the powers vested in the City of Berkeley under the

laws and Constitution of the State of California and the City Charter.

III. Findings

(a) The City of Berkeley is committed to equity, dignity, and public health and safety.

(b) The unmet housing needs of formerly incarcerated people in Berkeley are an acute

challenge to the dignity, public health and safety, and equal opportunity for this

population and the broader community.

(c) Research has found that access to housing reduces recidivism, and the lack of housing

can be a significant barrier to successful reintegration after incarceration.

(d) Homelessness is a critical issue in Berkeley and formerly incarcerated people are

disproportionately affected by homelessness. Recent surveys reflect the direct correlation

between housing barriers for formerly incarcerated people and homelessness. In a 2019

survey conducted by the Goldman School for Public Policy at UC Berkeley of formerly

incarcerated Alameda County residents, one third of formerly incarcerated residents

surveyed had experienced homelessness or housing insecurity and 54% had been denied

either housing or the opportunity to live with a family member because of their criminal

record. Another 2019 Goldman Survey of unhoused people residing in East Bay

homeless encampments found that 72% of encampment residents surveyed had been

formerly incarcerated. In the 2017 Point in Time count for Berkeley homeless residents,

one of the top six reasons listed for the primary cause of homelessness was incarceration

(6% of respondents).

(e) Research and community engagement by the Alameda County Fair Chance Housing

Coalition and Just Cities/the Dellums Institute for Social Justice have identified a policy

gap in the city’s treatment of housing providers and their consideration of past

convictions that has generated unfair and harmful barriers to housing for people with past

convictions.

DRAFT


June 21, 2019

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(f) Several jurisdictions, including Cook County, Illinois; Urbana, Illinois; Madison,

Wisconsin; New York, New York; Richmond, California; San Francisco, California;

Newark, New Jersey; and Seattle, Washington have passed policies that restore rights and

remove barriers to housing for people with past criminal convictions.

(g) On or about April 4, 2016, the United States Department of Housing and Urban

Development issued the “Office of General Counsel Guidance on Application of Fair

Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real

Estate-Related Transactions” in which it states that “Policies that exclude persons based

on criminal history must be tailored to serve the housing provider’s substantial,

legitimate, nondiscriminatory interest and take into consideration such factors as the type

of the crime and the length of the time since conviction.”

(h) It has been documented by service providers providing assistance to formerly

incarcerated residents in Alameda County and national researchers that significant first

source housing for people coming out of incarceration is publicly subsidized affordable

housing. {See Corinne Carey, No Second Chance: People with Criminal Records Denied

Access to Public Housing, 36 University of Toledo Law Review 545; Caterina Gouvis

Roman and Jeremy Travis, Urban Institute, Taking Stock: Housing, Homelessness and

Prisoner Re-Entry (2004); and Every Door Closed: Barriers Facing Parents With

Criminal Records, CLASP and CLS Report (Chapter 3, “Criminal Records and

Subsidized Housing: Families Losing the Opportunity for Decent Shelter”.}

(i) Alameda County service providers and national researchers have documented barriers to

access to both private rental and publicly subsidized affordable housing faced by

formerly incarcerated residents. {See Corinne Carey, No Second Chance: People with

Criminal Records Denied Access to Public Housing, 36 University of Toledo Law

Review 545; Caterina Gouvis Roman and Jeremy Travis, Urban Institute, Taking Stock:

Housing, Homelessness and Prisoner Re-Entry (2004); and Every Door Closed: Barriers

Facing Parents With Criminal Records, CLASP and CLS Report (Chapter 3, “Criminal

Records and Subsidized Housing: Families Losing the Opportunity for Decent Shelter”.}

(j) The City of Berkeley’s Housing Element advances fair housing goals. The City Council

in 2018 adopted a resolution supporting the development of a Fair Chance Housing

policy.

(k) Not having a home can prevent a formerly incarcerated person from getting a job, from

visiting with his or her children, and from fulfilling other needs that are fundamental to

reintegrating with community after incarceration.

(l) Mass incarceration is a national crisis and restoring the rights of people affected by mass

incarceration is a national priority.

DRAFT


June 21, 2019

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(m) The United States incarcerates more than twenty-five percent (25%) of the world’s

prisoners while the country comprises only five percent (5%) of the world’s population.

(n) The City of Berkeley has shown a consistent interest in removing barriers faced by

people coming home from incarceration, by adopting policies like the city’s “Ban the

Box” resolution, which removed barriers to employment.

(o) According to the City of Berkeley’s 2015-2023 Housing Element, there are a total of

25,696 rental housing units.

(p) The Fair Chance Housing ordinance is rightly named after former Berkeley City

Councilmember, Congressperson, Oakland Mayor, and global humanitarian Ronald V.

Dellums who passed away in July 2018. For over fifty years, Ron Dellums practiced

courageous and principled leadership to advance the human rights and needs of all

peoples, especially those who have been discriminated against and marginalized. He was

born in 1935 and grew up in a segregated West Oakland. He had a troubled youth and

almost did not graduate from high school. After serving in the Marines, Ron Dellums

became a UC Berkeley trained psychiatric social worker and a community organizer. At

the age of 31, Dellums was on his way to a PhD program at Brandeis when he was

recruited by activists to serve on the Berkeley City Council.

As Berkeley City Councilmember from 1967 to 1970, Ron Dellums championed

progressive values of anti-war, peace, and justice including opposition to the death

penalty, development of the People’s Park and opposition to the declaration of martial

law by then Governor Ronald Reagan, and successfully forcing BART to put train tracks

in Berkeley underground.

As Congressperson representing Berkeley and Oakland from 1970 to 1997, Ron Dellums

was the first African American to represent the district and one of the first Democratic

Socialists in Congress. He was elected to Congress as an anti-Vietnam War activist and a

prominent member of President Nixon’s infamous “enemies list.” Yet, he rose to become

Chair of the powerful House Armed Services Committee, while maintaining his integrity,

activism, and principles. Decades ahead of the “mainstream,” his initially lonely efforts

against Apartheid in South Africa, and against the major nuclear war-fighting systems, all

eventually became the official positions of the nation. He was a staunch critic of

discrimination in the military, a key supporter of gay rights in the military, and

consistently challenged the militarization of U.S. foreign policy, while advocating for

improving the living conditions of military personnel. Ron Dellums also chaired the

House DC Committee where he pushed for meaningful Home Rule and Statehood for the

District of Columbia, and also focused on the problems in America’s cities. He was

equally well known for presenting comprehensive policy proposals including the Dellums

Alternative Military Budget and the Congressional Black Caucus Alternative Budget. He

authored comprehensive bills to provide free healthcare to all Americans, a national

comprehensive housing program, and climate change legislation.

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After leaving Congress, Dellums led the development of his envisioned Marshall Plan for

HIV/AIDs resulting in the federal PEPFAR programs which has saved 17 million lives in

Sub-Saharan Africa, and the Dellums Commission on Boys and Men of Color, the

precursor to President Obama’s My Brother’s Keeper initiative.

Already in his 70s, Ron Dellums was drafted to serve as Mayor of Oakland from 2007 to

2010, where he opened up City Hall for Oakland’s people to develop Oakland as a model

city for the world. To institutionalize civic engagement, Ron Dellums created 41 Citizen

Task Forces that involved over 800 residents and resulted in policy changes such as the

adoption of an industrial lands policy to facilitate economic development and jobs for

Oakland residents and strategies to improve air quality from Port operations. He created

a Re-Entry Services program out of the Mayor’s office that welcomed formerly

incarcerated residents home and helped them find jobs, housing, and support. Ron

Dellums developed a comprehensive public safety plan which resulted in a 38% decline

in homicides and a 25% decline in all Part I (major) crimes. He reformed the Oakland

Police Department and advanced community and constitutional policing. He led

unprecedented City efforts involving business, labor, education, and community leaders

to develop a comprehensive vision for a sustainable and equitable local economy, which

resulted in $550 million of new funding for projects and the generation of over 14,000

jobs during the Great Recession.

By naming the Fair Chance Housing Ordinance after Ronald V. Dellums, we seek to

inspire community youth to believe in their potential for greatness and government

officials to lead with courage, integrity, compassion for the most marginalized, and big

vision for justice.

IV. Definitions

For the purposes of this Article, the following words and phrases shall mean and include:

(a) “Adverse Action” shall mean to fail or refuse to rent or lease Housing to an individual; fail or

refuse to continue to rent or lease Housing to an individual; fail or refuse to add a household

member to an existing lease for Housing; to reduce the amount or term of any tenant subsidy

for Housing; to treat an individual differently from other applicants or tenants such as

requiring higher security deposit or rent; or to treat an individual as ineligible for a tenant-

based rental assistance program, including, but not limited to, the Section 8 tenant-based

voucher program (42 U.S.C. Section 1437f).

(b) “Affordable Housing” shall mean any Housing that (i) has received or is receiving City,

County, State, or Federal funding, tax credits, or other subsidies connected in whole or in

part to developing, rehabilitating, restricting rents, subsidizing ownership, or otherwise

providing rental housing for extremely low income, very low income, low income, and

moderate income households (collectively, “Public Funding”), with the exception of Housing

where the only Public Funding received is in the form of a Local, State or Federal tenant-

based voucher, such as through the Section 8 tenant-based voucher program (42 U.S.C.

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Section 1437f); or (ii) is subject to affordability and related requirements pursuant to the

City’s Below Market-Rate Rental Housing Program, including, but not limited to, the

Inclusionary Housing Ordinance (BMC Chapter 23C.12), the Affordable Housing Mitigation

Fee Ordinance (BMC Chapter 22.20), the State Density Bonus law (California Government

Code Sections 65915-65918 and BMC Chapter 23C.14), and the Low Income Inclusionary

Live/Work Units Ordinance (BMC 23E.20.080).

(c) "Affordable Housing Provider" shall mean any Housing Provider that owns, master leases,

manages, or develops Affordable Housing in the City. Any agent, such as a property

management company, that makes tenancy decisions on behalf of the above-described

Housing Providers, and any government agency, including, but not limited to, the Berkeley

Housing Authority, that makes eligibility decisions for tenant-based rental assistance

programs, including, but not limited to, the Section 8 program (42 U.S.C. Section 1437f),

shall also be considered an “Affordable Housing Provider".

(d) "Applicant" shall mean a person who seeks information about, visits or applies to rent or

lease Housing, who applies for a tenant-based rental assistance program, including, but not

limited to, the Section 8 program (42 U.S.C. Section 1437f), who seeks to be added as a

household member to an existing lease for Housing or, with respect to any Criminal History

that occurred prior to the beginning of the person's tenancy, who currently rents or has a lease

for Housing.

(e) “Arrest” shall mean a record from any jurisdiction that does not result in a Conviction and

includes information indicating that a person has been questioned, apprehended, taken into

custody or detained, or held for investigation by a law enforcement, police, or prosecutorial

agency and/or charged with, indicted, or tried and acquitted for any felony, misdemeanor or

other criminal offense.

(f) “Background Check Report” shall mean any report regarding an Applicant’s Criminal

History, including, but not limited to, those produced by the California Department of

Justice, the Federal Bureau of Investigation, other law enforcement agencies, courts, or by

any consumer reporting or tenant screening agency.

(g) “Conviction” shall mean a record from any jurisdiction that includes information indicating

that a person has been convicted of a felony or misdemeanor or other criminal offense and

for which the person placed on probation, fined, imprisoned and/or paroled.

(h) “Criminal History” shall mean information transmitted orally or in writing or by any other

means, and obtained from any source, including, but not limited to, the individual to whom

the information pertains, a government agency or a Background Check Report, regarding:

one or more Convictions or Arrests; a Conviction that has been sealed, dismissed, vacated,

expunged, sealed, voided, invalidated, or otherwise rendered inoperative by judicial action or

by statute (for example, under California Penal Code sections 1203.1 or 1203.4); a

determination or adjudication in the juvenile justice system; a matter considered in or

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processed through the juvenile justice system; or participation in or completion of a diversion

or a deferral of judgment program.

(i) “Housing” shall mean any residential rental housing, building, or unit in the City of

Berkeley, with the exception of single family dwellings where the owner occupies the

dwelling as his/her principal residence.

(j) “Housing Provider” shall mean any Person that owns, master leases, manages, or develops

Housing in the City. Any agent, such as a property management company, that makes

tenancy decisions on behalf of the above-described Persons, and any government agency,

including, but not limited to, the Berkeley Housing Authority, that makes eligibility decisions

for tenant-based rental assistance programs, including, but not limited to, the Section 8

program (42 U.S.C. Section 1437f), shall also be considered a “Housing Provider”.

(k) “Inquire” shall mean engage in any direct or indirect action, written or oral, intended to

gather information from or about an Applicant for Housing using any mode of

communication, including, but not limited to, application forms, interviews, and Background

Check Reports.

(l) "Person" shall mean one or more individuals, partnerships, organizations, trade or

professional associations, corporations, legal representatives, trustees, trustees in bankruptcy,

receivers, or any political or civil subdivision or agency or instrumentality of the City.

V. Use of Criminal History in Housing Decisions

(a) A Housing Provider shall not, at any time or by any means, inquire about, require disclosure

of, or, if such information is received, base an Adverse Action in whole or in part on an

Applicant’s Criminal History.

(b) It shall not be a violation of this Ordinance for a Housing Provider to comply with specific

Federal or State laws that apply to the particular transaction at issue and that require the

Housing Provider to treat an Applicant as ineligible based on Criminal History, e.g.

Ineligibility of Dangerous Sex Offenders for Admission to Public Housing (42 U.S.C. Sec.

13663(a) and Ineligibility of Individuals Convicted for Manufacturing Methamphetamine on

Premises of Federally Assisted Housing for Admission to Public Housing and Housing

Choice Voucher Programs (24 C.F.R. Sec. 982.553)), provided that if such a requirement

applies, the Housing Provider shall not inquire about, require disclosure of, or, if such

information is received, review an Applicant’s Criminal History until the Housing Provider

has first:

(1) Determined that the Applicant is qualified to rent the Housing under all of the

Housing Provider’s criteria for assessing Applicants except for any criteria related to

Criminal History; and

(2) Provided to the Applicant a conditional lease agreement that commits the Housing to

the Applicant as long as the Applicant meets the Housing Provider's Criminal History

criteria.

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(c) If and when the Housing Provider requests written consent from the Applicant to obtain a

Background Check Report regarding Criminal History as permitted under subsection (V)(b)

above, the Housing Provider must also request consent to share the Criminal History record

with the Applicant and with the City of Berkeley (only for the purposes of addressing a

complaint by an Applicant), and must provide the Applicant offer the Applicant an

opportunity to provide evidence of inaccuracy of information in the Criminal History record.

VI. Requirements for Housing Providers

(a) Housing Providers shall state in all solicitations or advertisements for the rental or lease of

Housing that the Housing Provider will consider for tenancy any qualified Applicant regardless

of the Applicant’s Criminal History except in the very limited circumstances required by State or

Federal law.

(b) It shall be unlawful for any Housing Provider to produce or disseminate any advertisement

related to Housing that expresses, directly or indirectly, that any person with Criminal History

will not be considered for the rental or lease of real property or may not apply for the rental or

lease of real property, except as required by State or Federal law.

(c) The City shall publish and make available to Housing Providers, in English, Spanish, and

Chinese and all languages spoken by more than five percent (5%) of the City’s population, a

notice suitable for posting that informs Applicants for Housing of their rights under this

Ordinance. The notice shall contain the following information:

(1) A description of the restrictions and requirements of this Act;

(2) Instructions for submitting a complaint to the City regarding a violation of this

Ordinance; and

(3) Information about community resources available to assist an Applicant in connection

with a violation of the Ordinance.

(d) Housing Providers shall post the notice described in subsection (VI)(c) prominently on their

application materials, websites and at any locations under their control that are frequently visited

by Applicants.

(e) Housing Providers shall comply with all applicable Federal, State, and Local fair credit

reporting and tenant screening laws and regulations regarding the provision of written notices to

Applicants, including, but not limited to, the Fair Credit Reporting Act (15 U.S.C. Section 1681

et seq.), the California Consumer Credit Reporting Agencies Act (California Civil Code Section

1785 et seq.), and the California Investigative Consumer Reporting Agencies Act (California

Civil Code Section 1786 et seq.).

(f) In addition to the requirements in subsections (VI)(a)-(e) above, Affordable Housing

Providers shall also:

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(1) Provide any Applicant subject to an Adverse Action a written notice regarding the

Adverse Action that includes, at a minimum, the reason(s) for the Adverse Action;

instructions regarding how to file a complaint about the Adverse Action with the City,

including applicable deadlines as set forth in subsection (VII)(d) below; a list of local

legal services providers including contact information; and, if the Adverse Action is

based in whole or in part on information in an Applicant’s Criminal History, a copy of

any Criminal History or Background Check Report obtained by the Affordable Housing

Provider.

(2) Submit to the City an annual certificate of compliance with the requirements of this

Ordinance in the form provided by the City.

VII. Implementation and Enforcement by the City

(a) The Ordinance will take effect six months from the date of the passage of the Ordinance.

In the six-month time period prior to implementation, Housing Providers are required to

prepare and provide to all Applicants written policies compliant with this Ordinance that

include, at a minimum, a description of the application process and of the City’s

complaint process.

(b) The requirements of this Ordinance will apply to all new and existing Housing in the

City. The terms of the Ordinance will be incorporated into all new and existing contracts

between an Affordable Housing Provider and any entity providing Public Funding or that

relate to the City’s Below Market-Rate Rental Housing Program.

(c) Within six months of the Ordinance’s passage, the City Manager or designee is required

to:

(1) Promulgate appropriate regulations consistent with this Ordinance.

(2) Designate hearing officers and other necessary staffing for administrative review

of complaints regarding violations of this Ordinance;

(3) Develop the timelines and procedures for complaints regarding violations of this

Ordinance that include, at a minimum, the items described in subsection (d) below;

(4) Develop notices, the annual compliance certification form, and other

implementation documents, including written materials for Housing Providers and

potential Applicants;

(5) conduct outreach and prepare a plan to provide ongoing training about this

Ordinance to Housing Providers;

(6) Prepare an annual implementation budget and identify funding sources; and

(7) Undertake other elements of effective implementation.

(d) The City’s administrative review process shall include, at a minimum, the following:

(1) Any Applicant subject to an Adverse Action who believes the Adverse Action

was based on a violation of this Ordinance shall have the right to submit a complaint

to the City within one year of the date the Applicant submitted an application to the

Housing Provider or the date of the violation, whichever is earlier. The City will

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complete its administrative review of any complaint, including the hearing and

issuance of a final decision, within 90 days of submission of the complaint.

(2) During the City’s administrative review of a complaint regarding an Adverse

Action, the parties shall have the following rights: to have an advocate of their

choosing to represent them at the hearing; to present any relevant witnesses and

evidence and the evidence will be considered without regard to the admissibility

under the Rules of Evidence applicable to a judicial proceeding; to examine the other

party’s evidence and to rebut and cross examine any witnesses; to request a translator;

to request any reasonable accommodation needed to participate in the hearing

process; and to record the hearing.

(3) Where the City determines that a violation of the Ordinance has occurred, the City

shall issue a determination and order any appropriate relief under this Ordinance.

(e) In addition to providing an administrative review process for complaints, the City is

required to take appropriate steps to enforce this Ordinance and coordinate enforcement,

including by investigating any possible violations of this Ordinance.

(f) The City Manager or designee shall provide annual public reports to the City Council on

the implementation and enforcement of this Ordinance. The annual reports shall include,

at a minimum: information from the annual compliance certifications submitted by

Affordable Housing Providers; the number of complaints filed with the City regarding

violations of this Ordinance and the outcomes of such complaints, the number of notices

filed with the City regarding private court action brought under the Ordinance and the

outcomes of such court proceedings.

VIII. Private Right of Action

(a) Applicants subject to Adverse Actions in violation of this Ordinance shall have a private

right of action to enforce the Ordinance and shall, if they prevail, be entitled to: statutory

damages equal to the greater of actual damages or three (3) times the amount of the

monthly rent that the Housing Provider charged for the unit in question at the time of the

violation; attorney's fees and costs of action; and punitive damages. This private right of

action does not require an Applicant to have filed a prior complaint with the City of

Berkeley.

(b) An award of actual damages under this Ordinance may include an award for mental

and/or emotional distress and/or suffering. The amount of actual damages awarded to a

prevailing plaintiff shall be trebled by the Court if a defendant is found to have acted in

knowing violation of, or in reckless disregard of, the provisions of this Ordinance.

(c) In addition to any other award of damages or grant of injunctive relief, a court of

competent jurisdiction may order that a civil penalty be assessed against the Housing

Provider to vindicate the public interest, which penalty shall be payable to The City of

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Berkeley. The civil penalty assessed against a Housing Provider shall be at least one

thousand dollars ($1,000) and shall not exceed ten thousand dollars ($10,000) for each

violation of the Ordinance. A defendant shall be liable for an additional civil penalty of

up to five thousand dollars ($5,000) for each violation of this Ordinance committed

against a person who is disabled within the meaning of California Government Code

section 12926, et seq., or aged sixty-five (65) or over.

(d) An attorney who represents an Applicant in litigation against a Housing Provider brought

under this Ordinance shall provide notice to the City within ten (10) days of filing court

action against the Housing Provider, and inform the City of the outcome of the court

action within ten (10) days of any final judgment.

IX. Remedies

(a) Any person who commits an act in violation of this Ordinance may be enjoined therefrom

by any court of competent jurisdiction.

(b) Where the City determines through administrative review of a complaint or otherwise

that a violation of the Ordinance has occurred, the City shall, in order to vindicate the

public interest, assess against the Person found to have violated the Ordinance a fine

payable to The City of Berkeley in the amount of the lesser of $1,000 or the maximum

amount permitted under State and Local law.

X. Retaliation Prohibited

(a) No person shall interfere with, restrain, or deny the exercise of, or the attempt

to exercise, any right protected under this Ordinance.

(b) No person shall take any Adverse Action against any person because the person

has exercised in good faith the rights protected under this Ordinance. Such rights include but

are not limited to the right to fair chance housing and regulation of the use of criminal history

in housing by this Ordinance; the right to make inquiries about the rights protected under

this Ordinance; the right to inform others about their rights under this Ordinance; the right

to inform the person's legal counsel or any other person about an alleged violation of this

Ordinance; the right to file an oral or written complaint with the City for an alleged violation of

this Ordinance; the right to cooperate with the City in its investigations of this Ordinance; the

right to testify in a proceeding under or related to this Ordinance; the right to refuse to participate

in an activity that would result in a violation of City, State, or Federal law; and the right to

oppose any policy, practice, or act that is unlawful under this Ordinance.

(c) No person shall communicate to a person exercising rights protected in this Ordinance,

directly or indirectly, the willingness to inform a government employee that the person is not

lawfully in the United States, or to report, or to make an implied or express assertion of a

willingness to report, suspected citizenship or immigration status of an Applicant or a member of

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their household to a Federal, State, or Local agency because the Applicant has exercised a right

under this Ordinance.

(d) There shall be a rebuttable presumption of retaliation if a Housing Provider or any other

person takes an Adverse Action against a person within 90 days of the person's exercise of rights

protected in this Section. The Housing Provider may rebut the presumption with clear and

convincing evidence that the Adverse Action was taken for a permissible purpose.

(f) The protections afforded under this Ordinance shall apply to any person who mistakenly

but in good faith alleges violations of this Ordinance.

(g) A complaint or other communication by any person triggers the protections of this

Ordinance regardless of whether or not the complaint or communication is in writing or makes

explicit reference to this Ordinance.

XI. Records to Be Maintained

(a) Housing Providers must maintain a record for each Applicant that includes any Criminal

History obtained regarding the Applicant, and the determination of eligibility following any

review by the Housing Provider of such Criminal History.

(b) Housing Providers shall maintain full and complete documentation of their compliance

with this Ordinance.

(c) Housing Providers shall

(1) Permit the City to have access to Housing Provider records for the purpose of making

an audit, examination or review of performance data pertaining to this Ordinance; and

(2) Maintain such records for a period of at least three years.

XII. Confidentiality

To the fullest extent permitted by law, any information pertaining to an Applicant’s Criminal

History obtained in conjunction with the rental, lease, ownership, or sublease process shall

remain confidential and shall only be shared with individuals who have a need to know for the

purpose of evaluating an Applicant’s application for Housing.

XIII. Severability

If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this Ordinance is

for any reason held to be unconstitutional or invalid, such a decision shall not affect the validity

of the remaining portions of this Ordinance. The City Council hereby declares that it would have

passed each section, subsection, subdivision, paragraph, sentence, clause or phrase of this

Ordinance irrespective of the unconstitutionality or invalidity of any section, subsection,

subdivision, paragraph, sentence, clause or phrase.

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XIV. Effective Date

This Ordinance becomes effective six (6) months after its final passage and adoption.

Documents

AGENDA - Berkeley, California · 2019. 6. 25. · improving enforcement prior to the Council’s October work session. 8. Amendments to B.M.C 19.50: The committee agreed to make this