Neighbors v. neighbors in Mitch Kapor home case

One group of neighbors is pitted against another in an ongoing discussion about a proposal by software mogul Mitch Kapor to build a new home at 2707 Rose Street. The plan has been rubber-stamped by the city. But an appeal looms on April 27.

On March 15  we published a letter from a group of immediate and adjacent neighbors to the property expressing its “strong support” for the proposed project. They included a letter written by architect Marcy Wong whose firm, Marcy Wong Donn Logan Architects, designed the blueprints for the proposed home (model pictured above).

Today we publish a letter and “rebuttal” from another group of Berkeley neighbors who have objections to the issues she raises therein. [For the back story, and for links to the plans and appeal documents, skip to the end.]

2707 Rose Street

A Letter from Appellants

March 27, 2010

Since January, we’ve kept in touch with more than fifty neighbors about the 2707 Rose Street project.  Many of them wrote letters of concern to the Zoning Adjustments Board back in January.  Thirty-four people signed the appeal.  Of those, all but four are residents of the neighborhood.

We are a pretty diverse group, but from the time we first learned about the proposal we’ve shared a concern about the way the project was handled. After the Zoning Adjustments Board, in a surprising departure from usual practice, ignored our request for a continuance and story poles and approved this uniquely massive residential structure, we had no alternative but to appeal.  Subsequent study of the architect’s submitted documents and the planning staff material have yielded all manner of errors, inconsistencies, and unsupportable conclusions.

This is not a neighborhood fight.  Our appeal challenged the process and the application; it did not challenge neighbors who might not share our views.

To maintain a constructive dialogue on this issue, we have attached our response to the architect’s recent critique of our appeal, which we feel has simply repeated many of the same errors, inconsistencies, and unsupportable conclusions that have clouded this project from the beginning.

Our appeal is on the City Council agenda for its April 27th meeting. We are allowed seven minutes to make our case, and no other public testimony is allowed. If anyone wishes to submit a letter in support of a fair process for this project, it should go to the Mayor and City Council, c/o the City Clerk by April 19th, via regular mail (2180 Milvia Street, Berkeley 94704) or email ( Attending the hearing in support of an open, fair and transparent process would also be most helpful.

Susan Nunes Fadley

Charles S. Fadley

Dawn Hawk

Paul Newacheck

Frederick S. Wyle


A Reply to the Architects of 2707 Rose Street

1. ARCHITECT’S ASSERTION: The notification of the neighborhood with regard to mailed notices within the standard 300′ radius, and the posting of several bright yellow posters met if not exceeded Zoning Ordinance requirements. Moreover the owners secured and continue to enjoy the approval of all of the immediate neighbors.

REPLY: The notification of the neighborhood did not exceed, or even meet in some instances, the Zoning Ordinance requirements.  The primary yellow notification poster at the site was located inside one of the garage structures, which sported a NO TRESPASSING sign.  The primary poster is supposed to be located within 5 feet of the front property line of a proposed project so that the attached 8-1/2” x 11” documents can be easily read. Since this issue was raised in the appeal, the sign has been moved to a spot on the ground leaning against the building, more visible, but still in violation of the posting requirements.

The city of Berkeley supplies a simple diagram to applicants delineating and defining the confronting and abutting properties whose owners must be approached to sign the drawings used for the Use Permit Application.  The owners secured the approval of the owners of four abutting and confronting properties.  However, there are two, possibly three, additional abutting and confronting properties on La Loma whose owners have not signed the plans.  One of these will have a prime view of the aircraft-carrier-like roof of the proposed building.

Additionally, the vicinity map submitted by the applicant labels two parcels across Shasta Road as “park.”  One is an abutting and confronting property (owned by the people at 2645 Shasta who have already signed the plans).  The other is held in trust as open space for future generations by a group of neighbors, the Codornices Foundation.  Only when this group received a ZAB notice two weeks before the hearing did many neighbors became aware of the project.

Few walk up the unprepossessing dead end of Rose Street or venture beneath the La Loma viaduct fronting the property, so few would have seen the poster in the garage or the hearing notice tucked out of view at the top of the Rose Street Steps.  Thus, the project caught most neighbors by surprise. If they were within the 300-foot hearing notification radius, they learned about it two weeks before the ZAB was poised to approve the project (about eight months after the four confronting and abutting neighbors had signed off on the plans).  If they were steps outside that radius, they got no notification at all.  The staff had the discretion to expand the radius of notification for projects of extraordinary size and impact.  If not expanded for a 10,000 square-foot project, then when would it ever be?

2.  ARCHITECT’S ASSERTION: The Planning Department’s application form indicates that the decision of whether to require story poles is at the discretion of the staff. The standard practice has been to require story poles when a neighbor’s protected view may be impacted by a structure. Staff is not required to mandate story poles because someone from afar, who is clearly not impacted by the project, demands that it be done. Story poles were not required for this project, because the project is completely lower than the elevation of the La Loma Avenue structure, and does not impact any protected views including those from neighbors above and directly adjacent sides.

REPLY: Story poles are required in the ‘H’ district.

Page 9 of the Zoning Project Submittal Requirements states: “Story Poles – Required for new buildings and stories in the ‘H’ district, or as determined necessary by the project manager.”  The discretion of the project manager applies to story poles that may be deemed necessary in other districts (i.e., districts that don’t require them).  The city policy does not say that story poles are always at the discretion of the project manager.  And surely it cannot be saying that story poles are required in the “H” district except when they’re not required, which is the illogical reading given this sentence by the architect.

And whatever incorrect reading of this sentence has been practiced by the Planning Department, if ever there were a structure that cried out for story poles, this is it.  Why was there such an effort to deny the neighbors an opportunity to judge for themselves?

Our Appeal asserts further that this building fails to conform to the applicable General Plan requirements regarding respect for context, compatibility, size and environmental sensitivity, and that only story poles would give the community a sense of how massive it is.  Though the poles would have to be erected before a new ZAB hearing, and prior to the clearing of the lot and the removal of 11 mature trees, they should still convey a good impression of the extent of the proposed construction and its impacts on the neighborhood.  Since the site is covered with mature trees, the poles should be painted day-glo orange to aid visibility. Also, since the maximum building height may have been misrepresented in the drawings, a licensed surveyor should verify them.  It would also be useful to indicate which trees will be removed, and to have the poles clearly delineate the height of the earthwork base or plinth as separate from the house itself.

3.  ARCHITECT’S ASSERTION: The application for demolition and new structure was available to the LPC per the usual procedure and standard practice of the Zoning Department. Applicant provided Planning staff with a six- page history of the 2707 property.

REPLY: Staff did not supply the Landmarks Preservation Commission (LPC) with any such report.  Nor did it list 2707 Rose as a demolition on the monthly list of projects it supplies to LPC, breaking from usual practice. When a building is to be demolished it is so noted on that list.  In the case of 2707 Rose, any mention of demolition was excluded consistently over a period of months. This exceptional oversight deprived the LPC the information it needed to perform its public duty.

Although no six-page Structure History was included in the documents available online to the public, a physical search of the planning file turned up a two-page Structure History with four pages of photos.  It states: “There were no architects or landscape architects, renowned or not, who were associated with the site…..”

But in fact, the original City Application for a Building Permit obtained from the Berkeley Architectural Heritage Association (BAHA) lists the architect as  “A. Appleton.”  Abraham Appleton (1887-1981) was a distinguished San Francisco architect who worked in his early years with Bernard Maybeck, John Galen Howard, and William C. Hays before opening his own partnership.  He is described as “one of the titans in the local architectural world” in his Examiner obituary of August 25, 1981. 2707 Rose may thus be the only example of his work in Berkeley.

These omissions incorrectly deny that the building has any history attached to it that might warrant a review by the Landmarks Preservation Commission (LPC).

4. ARCHITECT’S ASSERTION: Architectural style for single family residential structures is not a Zoning Ordinance use permit issue. To make it an issue in this case would be to deviate from the department’s purview. The City’s own records show that the size of the house, whose livable area is about 6,500 s.f., is far from “unprecedented.” The lot is very large and could contain a house four times the size of the proposed project or four houses with “granny units” in a subdivision.

REPLY: Although the project proponents have no doubt struck fear into the hearts of neighbors by suggesting that an alternative development would include four houses and eight total units (without showing how issues of access for such a development could be feasibly solved), it is also the case that this single-family house, with nearly 10,000 square feet of developed area is quite unique in the City.  Only one other single-family home of that size shows up in the Realtors Multiple Listing Service.  Even at “6,500 square feet of livable area,” there are only about ten single family homes that size or larger out of Berkeley’s over 17,000 homes.  This house will be one of the largest residences ever built in this city and it will dwarf any building in its vicinity.  Its height and bulk are unprecedented in the neighborhood.

Contrary to the architect’s claim, new homes must conform to the requirements of the General Plan (or should, since every other citizen’s house has to…) which explicitly deal with issues such as respect for context, compatibility with neighboring architectural design and scale, environmental sensitivity, height, massing, material, color, detail and ornament.  What a house looks like is expressly within the purview of the Zoning Ordinance and this Use Permit application.  That this building willfully violates every one of those provisions should not have been overlooked.

5. ARCHITECT’S ASSERTION: The report does describe the excavation and cites specific numbers of cubic yards of cut and fill, along with the slope of the site. Detailed issues about execution and engineering of excavation are dealt with during the building permit phase rather than the zoning use permit phase. All projects on steep hills have these issues; they are technical issues that are routinely addressed to meet life safety standards. See item 6) below.

REPLY: Like the size of the development, the amount of earthwork proposed on this site is nearly unprecedented in Berkeley residential architecture.  The planning guidelines written to control the height of structures did not anticipate the possibility of this scale of earthmoving.  Projects on steep hillsides do not usually move 1,500 cubic yards of soil and create 20-foot walls retaining hundreds if not thousands of tons of fill in order to establish a new ‘grade level’ from which to measure the height of the structure. To suggest that this is business as usual in Berkeley is outrageous.

This project is extraordinary and yet it seems to have attracted less staff scrutiny than the average residential addition.  The project architects have indicated that construction will likely begin in October.  Many cities, Oakland for example, impose a grading moratorium during the wet winter months. In Oakland only 50 cubic yards or less can be excavated; what is proposed here is 30 times that amount.  With such an immense scale of environmental intrusion it is not too early to begin to question the requirements that should be put in place.  The Use Permit approval can, and should, be issued with conditions that address and resolve these issues.

6. ARCHITECT’S ASSERTION: The use permit that is being contested includes City of Berkeley imposed conditions that must be met in this regard [relative to grading or excavation].

REPLY: As noted previously, these conditions may prove to be wholly inadequate and should be reviewed and modified accordingly.  The proponents state that the site is not in a Landslide Zone, contradicting the City of Berkeley’s Landslide Zone map, while not providing any supporting documentation for that conclusion.  Pursuing a project of this scale on such a steep slope in the middle of winter is a recipe for disaster unless stringent conditions and requirements in addition to the norm are imposed.

7. ARCHITECT’S ASSERTION: The City Ordinance defines the relevant historic resources as being “adjacent” to a subject property. None of the adjacent properties are historic resources. The historic resources named in the appeal are Greenwood Commons and the Hume House, which are hundreds of feet away.

REPLY: Adjacent lots simply lie near to one another, according to the dictionary.  The Hume House is only 260 ft, away (within the minimal 300 ft notification radius and within the Planning Department’s own vicinity map for the project).  Greenwood Common is about 450 feet away, within 1-2 minutes walk of the 2707 Rose Street lot.

The staff report states that there are “no locally designated historic resources in the vicinity.” But if one defines “vicinity” as a walk of up to three minutes you will be taking in the work of Bernard Maybeck, John Galen Howard, Joseph Esherick, William Wurster, Rudolph Shindler and others.  You would also be able to enjoy the Greenwood Common and the LaLoma Park Historic District, as well as houses on Tamalpais Road that are listed on the State Historical Resources Inventory.  In fact, one of the four confronting and abutting properties (2645 Shasta) is in fact listed on this inventory!

The point here is that the proposed house will have an effect beyond the four immediate neighbors, perhaps far beyond, and that it is situated in one of the most historically and architecturally rich areas of the City.  These statements have been amplified recently in a letter to the Council from the Berkeley Architectural Heritage Association that supports our Appeal.

8. ARCHITECT’S ASSERTION: As part of the use permit application, the existing structures were researched and a history of  the structures was submitted to the City. (See response to #3 above.)

REPLY: Once again, a search of the project file turned up a one and a half page report (with four pages of photographs showing the deterioration of the existing house), claiming there was no architect of record for the property.  The “report” was not included in the staff report, nor were its conclusions evaluated by the LPC. The name of a well-known architect appears on the building permit.

9. ARCHITECT’S ASSERTION: The project is not in a landslide zone; this has been verified by a licensed geo-technical  engineer. Therefore, the project is not and never was subject to and has not been “exempted” from the Alquist Priolo Act.

REPLY: The City of Berkeley’s Parcel Conditions Report for 2707 Rose Street indicates that the site lies in both the Landslide Zone and the Earthquake Fault Rupture Zone.  If there has been a geotechnical report by a “licensed geotechnical engineer,” why has that information not been made part of the public record?  Without it, it is not possible to know if the report is based merely on a map analysis (e.g. the Nilson, Graymer or Kropp data) or on a thorough on-site exploration. Such a study would determine the level and rate of creep of the hillside (which appears to have already crept onto Shasta Road, reducing its width).  In any event, it would also be prudent to buttress such a report with a second opinion before contradicting the City’s own study including the site in the Landslide Zone.

The provisions of the Alquist–Priolo Act are triggered by the inclusion of a property in the Earthquake Fault Rupture Zone (not the Landslide Zone). Though inclusion in the Landslide Zone is of deadly importance, it is the inclusion in the Earthquake Fault Rupture Zone—particularly since the project contains three stories—that triggers the requirements of the Act.  The reply to comments in item #10 below we believe shows that the proposed building is a three-story building and subject to the Alquist-Priolo Act.

The Alquist–Priolo Act exists for good reason: it requires that geotechnical explorations be conducted to, among other things, detect whether trace earthquake faults exist on the site for the sake of public safety. Although there has been much creative interpretation used to justify exempting the building from these safety measures, it is clear that they are not only required but extremely prudent. If the Act didn’t apply to a building such as this, whenever would it apply? With its extraordinary height and bulk, its three stories above a 20’ high retaining wall, and its large earthworks, it seems obvious that this project is exactly what the Act was instituted to regulate.

10. ARCHITECT’S ASSERTION: The project is a 2- story building. The drawings show 2 stories. The upper level is entirely living area, the lower of two levels has both an subterranean garage built into the hill, as well as living area daylighting to the north. There is no 3rd level.

REPLY: The project is a three-story building.  A story is defined in the Berkeley Municipal Code 23F.04 thusly: “If the finished floor of level directly above the ceiling of a basement, garage structure, cellar, or unused underfloor space is more than six (6) feet above the existing grade at any point, such basement, cellar, or unused underfloor space shall be considered a story.”  Staff itself refers to two stories and another “level” below.

The finished floor above the underfloor space (called a “level” by staff) that exists under the two finished living floors is consistently 9 feet above the FINISHED grade, and in places as much as 18 feet or more from EXISTING grade.  Whether there is a plan to develop this space in the future is immaterial to whether it is considered “a story.”  It does bear mentioning, however, that this story would have a standard 8’ ceiling height and could be enclosed in the future to create yet more habitable space. Although no floor plan of this third story was submitted as part of the application, both the internal stair and elevator appear to serve the bottom story.  The inclusion of this level as developed space could easily push the size of the project past 12,500 sq. ft.

11. ARCHITECT’S ASSERTION: The project heights –both average and maximum – are at or under the City standards. Moreover,  the height of the building blocks no protected views, poses no shadow or other detriment and is not  objected to by any of the immediate neighbors.

REPLY: This is incorrect. The AVERAGE height requested (31.5 feet) exceeds the average height standard of 28 feet.  The required Tabulation Form submitted with this project does state that the average height of the building is 25 feet, but that contradicts the 31.5-foot average height cited by the architects elsewhere.

The stated MAXIMUM building height of 35 feet (measured from the top of a new earthwork terrace that rises to more than 20 feet) is also incorrect. The true maximum height of the building is either 39 feet or 45 feet, depending on which of the architect’s drawings you consult. The hundreds of cubic yards of earth moved to create a base for the building would allow one to skirt the intent of the height requirement, except for one thing: one area was left undisturbed.

Our Appeal found that the maximum height of the building occurs at the northwest corner of the Living Room / Master Bedroom wing, where the parapet, measured to finished grade 5 feet from that wall, yields a height of 39 feet (if the info on the architect’s sheet 5 is consulted) or 45 feet (if the info shown on the architect’s sheet 11 is consulted).  Maximum Height is defined in BMC 23F.04 as “The vertical distance of a building at any point, within a given plane, from finished grade [emphasis added] to the top of the roof or parapet walls.”  Finished grade is defined in BMC 23F.04 as “The lowest point of the finished surface of the ground between the exterior walls of a building and a point five (5) feet distant from said wall….”


Even though the drawings are inconsistent, every representation shows a maximum height in excess of 35 feet. NO PERMISSION TO EXCEED THE MAXIMUM HEIGHT WAS GRANTED BY ZAB.

12. ARCHITECT’S ASSERTION: The appeal authors appear to be confirming that our method of calculating height is consistent with what is prescribed in the Zoning Ordinance.

REPLY: Not really. The appeal is pointing out that great amounts of effort and money are being used to create a reprofiled site that allows the height of the building to be measured from on top of what is essentially another 20-foot is high building (the earthwork terrace). It’s sort of like telling a man he’s only four feet tall after measuring him from the knees instead of the ground.

And no, the appeal does not suggest that the height of the building is in accord with the Zoning Ordinance, because it isn’t (see #11 above).  The building as presented does NOT comply.  Yet the project was approved.

13. ARCHITECT’S ASSERTION: The project exceeds the required points under the City’s “Build-It-Green” program as it has  about twice as many points as the minimum required. The Build-It-Green program (which the City of  Berkeley has adopted for its green standards) involves a Green Point check list for single family homes.  Under this system, a home is considered green if it earns at least 50 points. This project has thus far a score of 91 points, which may ultimately be even higher as the design  develops.

REPLY: This is a very important point, one that was discussed using this building as an example in an article published recently by Fred Goldstein in the New York Times, March 12, 2010 (“How Green Is My Mansion?”). In short, to build a project of nearly 10,000 square feet to serve just two people is by definition not green and cannot be described as sustainable in any way. To add up points for eco bells and whistles and then lay claim to the high ground of sustainability makes a joke of the process.  The proposed building, while pre-wired for solar panels, doesn’t include them.  In this, one of the most benign climates on the planet, this very large building is also air-conditioned.

The New York Times article suggests, correctly, that the equation for greenness needs to include more than just addition. If your house is twice the size of the average house in the vicinity you should divide your points in half.  If the number of people housed is only half of the local average then you should divide your points in half again. If this somewhat crude version of a green reality check were to be applied to the proposed Rose Street building, its 90 points would shrink to somewhere south of 25, less than half of the minimum required to be Green. The claim that the proposal is somehow a model of sustainability makes a joke of the City’s environmental aspirations.

14. ARCHITECT’S ASSERTION: The average size house in the area is well above 2,000 sq. ft. In fact, the houses immediately surrounding the site average well over 3,000 sq. feet and in some cases exceed 4,000 square feet. Some of the most cherished houses in the neighborhood are over 6,000 square feet in area.


The assertions by the architect about average house size “in the area” are simply not correct.  Let’s start by being specific about the term “in the area,” (so it doesn’t expand and contract to suit an argument).  A survey of 115 single-family homes on Rose, Shasta, Greenwood Terrace, La Loma, Buena Vista, Maybeck Twin Drive and Tamalpais Road within a 750-foot radius of 2707 Rose yields an average house size of 2,309 square feet, which is a little below the national average.  Three of these homes (not “some cases”) slightly exceed 4,000 square feet (4,118, 4,213, 4,226), two are in the 5,000 square foot range (4,965, 5,064), and only one house, the landmarked Hume Castle property dating to 1932, is listed at 5,746 square feet.  There are no 6,000 square-foot homes in the defined area.

As for the houses “immediately surrounding the site,” the four designated “abutting and confronting” properties are indeed larger than the average: 2,734, 2,560, 3,808, and 3,778 square feet.  But the more correct average size of these four properties and the existing house of 1,556 square feet is 2,887 square feet, less than half of the proposed 6,478 residential portion of this project.  It is a very big house, with only about 10 single-family homes in over 17,000 total in Berkeley that are larger than this. The neighbourhood has a right to see just how big it is via story poles.

15. ARCHITECT’S ASSERTION: The implication of the appeal is that houses should be invisible as one looks up at or across hills. However, visibilities of houses across a canyon are not violations of protected views, as defined  by the City of Berkeley’s Municipal Code. Moreover, this site is one of the most hidden and tree-screened  properties in the hills. It will be less visible to its neighbors than the vast majority of houses in the Berkeley Hills.

REPLY: No, the implication of the appeal is that views are important in the context and vernacular of the neighborhood.  If one looks at the photos that the architects have supplied of their model (which they neglected to bring to the ZAB hearing), the large and imposing structure is not masked by trees but rather will be visible from many angles and from quite a distance. Landscaping plans and the rendered elevations of the building are full of inconsistencies, for instance the elevation facing Shasta Road shows the building shielded by trees which either don’t exist or are being cut down according to the landscaping plan.

No one expects the building to be ‘invisible’, but there IS an expectation that the building should be in accord with its context as per the General Plan requirements.  The point here is not the rules about “protected views” but about what the presence of this very large structure will do to its surrounding context. This brings us back to the provisions of the General Plan which are ground into the dust by this proposal.

It also brings us back yet again to the need for story poles.



The back story: on January 28, Berkeley’s Zoning Adjustments Board approved a plan submitted on behalf of Mitchell Kapor to build a new home at 2707 Rose Street. The approval is being appealed. Berkeleyside first drew attention to this issue on January 25. We then published an explanation of the thinking behind the appeal, written by architect Gary Parsons, here. The original application can be viewed here and drawings associated with the application can be seen here. The full appeal can be viewed here. The zoning board is due to hear the appeal on April 27.

Update/08.43: The Berkeley Architectural Heritage Association (BAHA) is supporting the appeal. Read BAHA President Daniella Thompson’s letter outlining BAHA’s stand here