David,

You say you don’t understand my claim that “If you’re right, and there is no requirement for an EIR, there will be no EIR, no expenses incurred, and nothing to apologize for.” What I meant is that there will be no cost to the Kapors to do an EIR if there is no requirement to do one.

There is an expense to those who want to put the decision before a disinterested third party, but that’s only an expense to the Kapors if they’re right. Do you have a problem with that? Aren’t you the one that claimed to know Mr. Kapor enough to be unable to “imagine he’s the kind of person who’s going to sue the city to get his house built?” You really think he would appeal that decision? I mean, it would be his right, but then he would be appealing the decision that the neighbors were right and an EIR was required, and he would be on the back foot as well.

I agree with you that “everyone who buys real estate for construction is a “developer,” How you come up with the conclusion that “Mitch Kapor is not a developer [and you are] not a developer” (after claiming that you have purchased homes “simply for the land value beneath them”) is somewhat beyond me, but here’s the point: Mitch Kapor IS a developer, and I guess I inferred you were from the above quoted statement. And from your previous statements about having an axe to grind with “meddlesome busybodies …[who] try to tell [you] they know better than [you] do what [you] want.”

The real point is that most of the people who buy in this neighborhood now are not “developers.” They are people who want to live in the home they bought. They might want to fix that home up or add on to it, but they are actually improving the existing housing stock, not tearing it down and starting over. The Kapors would be welcomed with open arms by everyone if he were proposing to rebuild the existing house, even raise it up a few feet (less than 6) to expand it and get a better view.

I believe my elected representatives passed CEQA to address situations like this, where we disagree about the environmental impact. You dismiss the environmental concerns, but my neighbors and I have been active in environmental protection for decades. A foundation was even formed to buy up the two lots directly below 2707 Rose SPECIFICALLY to PREVENT development on those lots. There are huge, privately owned open spaces that are generously left open to the public to visit hidden waterfalls, redwood groves, entire urban forests.

Like I said before, you simply do not understand this community, and what it is we are working so hard to protect. Your arguments remind me of the people and interests who proposed filling in the bay, who also had little sympathy for preservation, who felt that once you owned the land you could do anything you wanted with it. Yet a small group of people, including members of my family and my neighbors had a different idea about the Bay, one that has become widely accepted: We are all just stewards of the land we think we “own.”

Now, part of the reason that this house is being proposed to be constructed the way it is, with massive earthworks to raise its height, is to have a view of that bay that was saved by their efforts. I find that passing ironic, but I accept it as the danger of unanticipated consequences, just as I want to get a good look at what the unanticipated consequences of building this structure will be.

I agree with you that “everyone who buys real estate for construction is a “developer,”

Absurd. I said exactly the opposite, you aren’t agreeing with me. A (real estate) developer is someone who is engaged in the business of renovation or new construction. People who build private residences for their own use are not developers.

There is an expense to those who want to put the decision before a disinterested third party, but that’s only an expense to the Kapors if they’re right.

No, even frivolous lawsuits have a high cost. If an actual lawsuit is filed, it will cost the Kapors and the city of Berkeley a lot of money to deal with it. But the cost is still negligible to the Kapors, they care about the delay. The city is more affected by the cost.

What bothers me the most is not the delay or the cost. I am obviously not impressed that anyone would consider filing a frivolous lawsuit just in order to punish the taxpayers of Berkeley by costing them money, and punish the Kapors by costing them time. But in the grand scheme of things, it’s small potatoes. What bothers me more is the abuse of important legislation like CEQA, which serves a valid purpose, and is needed to deal with real environmental harms. Every time such tools get used frivolously, they are weakened for when they are really needed.

CM

You say “…I don’t want to get too far off point by arguing “democracy,” but I think your analogy is the one that is limping.”

Thank you. ‘Limping’ implies the presence of two legs, that’s two more than your CEQA argument has. I see you’ve chosen my third option to “…keep flopping around like the Black Knight in Monty Pythons Grail movie. A dismembered argument shouting for ’satisfaction’. ”

(For those unfamiliar with the reference see:
http://www.youtube.com/watch?v=2eMkth8FWno
The relevant portion starts at 3:01)

But that doesn’t mean it won’t make someone famous for it’s unintended consequences…

The squabble on Rose St. uncovered lessons from previous local disasters and blessed Berkeley with the opportunity to deliver itself (in advance) from a most terribly divisive and unscrupulous scheme.

I don’t just mean the hodgepodge build-outs that followed the 1991 firestorm. Far worse in terms of city wide accord was the deal cut giving the upper crust hill dwellers a pass on capital gains tax – at the direct expense of their poorer non-relations in the flatlands.

If that’s of interest read on…

The whole story is here:
http://press.princeton.edu/chapters/s6796.html
The relevant portion reads:

“…They organized self-help groups, about fifty in all, known as Phoenix neighborhood associations. These newly minted activists weren’t interested in reviving the barn-raising tradition of an earlier West, summoning the unscathed to pitch in and rebuild what their neighbors had lost. Instead, they conceived their mission as one of persuading state and federal politicians to amend the tax codes and so rescue the former residents from the calamity of having to pay hundreds of millions of dollars in capital-gains taxes.

When the refugees turned to local public agencies for emergency relief, they offered their suffering as proof of their worth and courage. They said, in effect, “We’ve been through hell. Now we deserve all the help you can give us.” But because California cities are routinely bankrupt, some of the demands could be accommodated only by subtracting services from the residents of the flatlands.

In a city as racially segregated as Oakland, where the fire did its worst work, the fire survivors’ plaint reawakened long-abiding hostilities between the less-affluent majority who lived in the flats and those who lived in the hills. In a letter to the Oakland Tribune, flatlander Joyce Owens-Smith insisted that she wouldn’t pay “for people in the hills to have a clean, safe environment while I and the other poor, minority people live in squalor, abandoned by the same government and corporate entities making this audacious request.”

Such thinking wasn’t well received at the higher elevations. “We’ve paid for their police protection and fire protection long enough,” the prevailing argument went. “Now it’s our turn.” A group of hillside residents proposed seceding from Oakland and founding a new city named Tuscany. Oakland, it was said, was famous only for “baseball scores and murder counts.”

Flatlands residents recalled the scant attention paid by government officials to the people made homeless by the 1989 Loma Prieta earthquake, and they remembered bitterly that in 1978 the precincts in Oakland that voted for Proposition 13, the initiative forcing California’s cities to cut property taxes, were situated in the hills. Now these same landowners were appealing to the municipality they’d helped to bankrupt, asking and receiving help from a city with a reputation for shabby public services. The bitterness of the flatlanders was ignored. Retired Admiral Robert Toney, president of the Oakland Chamber of Commerce, told the Montclarion, a local paper, that the refugees were “a very desirable part of the population,” leaving the flatlanders wondering just how the admiral regarded their presence.”
_____________________

The great legacy of this Chez Kapor debate could be our affirmation, as a city, of our moral strength and unity by passing legislation to prevent this double dealing from happening here. Email the city council to start proposals now.

David,

You two are just talking past one another. You keep asserting things like:

“You’ve got some kind of bias against replacing buildings rather than remodeling them. But the one is not better than the other just because you like it more.”

What we’ve actually legislated in these parts is a bias against construction that alters certain views, construction that is likely to change use, construction that poses new earthquake hazards, construction that poses new landslide hazards, razing that destroys historically significant structures, construction that significantly alters the “character” of an area characterized by historically significant structures, and so forth. The larger number of neighbors who received notice only two weeks before the hearing are (per legislation) supposed to be part of the process. They’re supposed to have the opportunity to contribute to the judgment calls (such as views, and historic significance). They’re supposed to have the opportunity to scrutinize and inform some of the more objective calls (e.g., landslide hazards, etc.).

The complaints about this structure, broadly stated, include that (a) a defective notification process denied some the ability to properly scrutinize and contribute input to the ZAB findings; (b) the information considered by ZAB and later Council arguably contains serious defects such as would inform an erroneous decision; (c) ZAB and Council arguably incorrectly applied the legal standard for a two story house, leading to some exemptions under CEQA that may not be appropriate.

Factors such as views, historic character, use, landslide and earthquake considerations, etc. are all CEQA issues. ZAB’s staff reports that drove the decision making arguably (pretty good arguments, too, if you ask me) contain defects which precisely coincide with supposed exemptions from an EIR.

Behind all the rhetoric (from both sides) in these Berkeleyside discussions lies a pretty straightforward set of legal questions, driven by existing legislation. Vitriolic character assassination slung around by both sides doesn’t change that basic underlying issue.

And remember, the original remedy sought by opponents at the ZAB hearing was nothing more than a 30-day continuation. If ZAB’s decision could stand scrutiny, and given that the notice process was arguably defective, that would hardly have been an unreasonable request. That is why my first observation in this case was that it would have been clever and wise of the Kapor’s to show up at that ZAB meeting, stand up, and say “Yes, please. That’s fine. 30 days.”

The grand ideological debates you and some others are invoking just aren’t all that relevant here. There are a long list of factual questions that pertain to legislated process.

You also write:

“I’m skeptical there even will be a lawsuit. If there is, it will obviously go nowhere.”

I share your skepticism that there will be a lawsuit but it is too early to tell. Council’s decision set a CEQA clock ticking – I believe the deadline is a strict 90 days from that for a CEQA-based suit (though I could be mistaken). A CEQA-based suit is not the only option.

As for whether or not such a suit would go anywhere: neither of us really knows. It sure looks like the opponents could have a pretty strong case to me. The main question in my mind is what remedies look like. I would guess it most likely that a quite similar project would eventually win approval, but only after substantial modifications. I would guess that the second most likely outcome is that the landslide hazards imposed by the proposed excavation and the earthquake concerns relative to the size and location of the building are enough to kill off anything like the proposed structure. I suppose that in a worst case, defects in the process and perhaps historic significance could result in an order to restore (and perhaps expand) the existing structure (though I doubt that that’s likely).

In passing, I’ll mention two other recent largish constructions in Berkeley. One was highlighted in the S.F. Chronicle real estate section this past weekend: a place in the hills that was substantially rebuilt and enlarged more or less beyond recognition. So far as I know, that process went through without much controversy at all. (From the pictures, it looks like they did a lovely job, too.)

Another took place a few years back in which small structure was taken apart, raised two stories (yielding a three story structure) and — that one ran into some serious problems. That project won zoning approval based on misleading applications. It got building permits. Construction started. At a certain point people looked at it and said “Hey, that’s not what the applications described.” And, indeed, in that case stop work orders went out and very late court battles ensued. It took years to sort out. Eventually an “everybody loses” compromise was put in place but not before the owner spent a lot more and took a lot more time building than was planned for. That project is an example of why I say the Kapor’s would have been wiser to cooperate with the opposition as early in the process as possible – they risk going down one of those rat-holes.

My spidey senses are tingling, a new article/update is on its way! More opportunities to make the same old arguments (no offense to the author of the articles, which are excellent, but the commentary, including my own, is getting old due to repetition). I’m not sure how much I’ll contribute this time around, now is the time for harmony of pen and sword. Feel free to quote me as saying “I would be very surprised if there was not a lawsuit.”

I would double check that statement about “Kapor is now free to begin tearing down the property at 2707 Rose St., a 1920s home that has been abandoned for several years.” I see he has applied for the permit (the Monday after the council meeting, as a matter of fact) but not that it has been granted. (It looks like he forgot about the garages he wanted to tear down, too, and came back the next day to get them, but that could just be a processing issue.)
http://map.ci.berkeley.ca.us/ppop/ (enter 2707 Rose).

I think it would be the final proof of bad faith, however, by the city and by the Kapors, because if the EIR mandates changes that the Kapors don’t want to have to implement, it would forever foreclose the possibility of someone restoring that beautiful house. Also, because one of the issues that council members discussed was whether this came before the LPC properly. With the final plans not yet approved, and no proof that the building they are proposing to be build can be built on this lot, it is hard to believe the city would actually issue them a demolition permit.

Also hard to believe it would be legal to issue that permit before the appeal period on the CEQA exemption had run its course, but as another commentator (elsewhere) opined, “I thought the Neighborhood Preservation Ordinance barred that.” (I’m not sure it does, myself, but I agree with the last part of the comment:) “But this particular applicant may be more equal than others similarly situated.”
http://www.berkeleydailyplanet.com/issue/2010-05-07/full_text