Urban planning

City of Berkeley sued over Mitch Kapor home

May 28, 2010 6:00 am by Tracey Taylor

The proposed home, by Marcy Wong Donn Logan Architects.

A group of Berkeley residents has filed suit against the City of Berkeley for failing to act with due process when it approved the application, by Lotus founder and philanthropist Mitch Kapor, to build a new home at 2707 Rose Street.

The newly formed Berkeley Hillside Preservation group filed a petition in the Alameda Superior Court yesterday stating that the city had exempted the Kapor application from an environmental review that is mandated under the California Environmental Quality Act (CEQA).

“This application was approved without following environmental laws,” says Susan Brandt-Hawley, the attorney representing the Hillside Preservation Group which, she says, is made up of Berkeley residents, some of whom live close to the Kapor site. Brandt-Hawley says the group is asking that the court issue a peremptory writ ordering the city to set aside its approval of the project pending compliance with CEQA.

At the heart of the petition is the issue of grading. The group cites expert evidence from geotechnical engineer Dr Lawrence B. Karp which states that a grading study is necessary to ascertain whether massive grading and foundations would be required to prevent seismic lurching of the hillside lot. An environmental review would also consider impacts relating to demolition, traffic and aesthetics.

The plan by Mitch Kapor, who is also an adjunct professor at UC Berkeley, to build a home for himself and his wife, Freada Klein, in north Berkeley has been dogged by controversy from the outset. This, despite the fact that many of the immediate neighbors of the proposed Rose Street site support Kapor’s proposal for a home there.

On April 27, Berkeley’s councilmembers voted to green-light construction of the home after rejecting an appeal against the January approval for the project by the city’s zoning board. The consensus was that the application was exempt from environmental review because it was for a single family home. The lawsuit points out that exemptions cannot be used when there is expert opinion that a proposal may have environmental impacts, and that the size of the proposed home — 10,000 sq ft when including a 10-car garage — means the project is not a typical low‐impact single‐family project.

In a prepared statement, Berkeley neighbor and co‐petitioner Susan Nunes Fadley said: “We worked arduously on our appeal to the City Council, focussing on issues of process and the unstudied impacts of this project. Now we look to the court to address them.”

Before this latest development, Kapor’s next step would have been to seek a demolition permit to take down the abandoned 1920s-era house at 2707 Rose Street. Should he decide to pursue this, Brandt-Hawley says the Hillside group will seek a court order to stop it.

Kapor’s attorney, Rena Rickles, said she was not in a position to comment.

Read all of Berkeleyside’s coverage of the Mitch Kapor home issue.

55 Comments

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  • EBGuy

    Wow — the allegedly third floor is the crux of the appellant’s case? I’ve already made my opinions on the third story clear on this thread. I think the plaintiffs will get the book thrown at them for that one — but hey, IANAL.
    That said, it looks like the Margarido eco-villa fell out of contract; Mitch Kapor, here’s your chance…

  • JNG

    It will be amusing to see how a pile of dirt that is not even enclosed is going to qualify as a “story,” that’s for sure.

  • Cliff Magnes

    EBGuy: A third floor is the crux of their petition? Have you read the petition? I think that issue comes up once, at the end of paragraph 11 on page 5. I don’t see that as the crux of it, just one of many issues in the petition. http://www.berkeleyside.com/wp-content/uploads/2010/05/Berkeley_Hills_Petition_FInal.signed.pdf

    JNG: Amusing? I think there will be all kinds of surprises that come out of the EIR.

    As for “considering the fact that Kapors are the ones who already underwent several months of costly review with architects, engineers and city planners to get the project approved in the first place,” it cannot have escaped your attention that there is a dispute over whether “they passed that administrative review and complied with all applicable requirements.” Berkeley Hillside Preservation has laid out their case rather thoroughly, and they would disagree with that statement.

    “Presumptively entitled now to their permit?” I’m still learning about CEQA, but it appears to me that the Petitioners are presumptively entitled to their Writ of Mandate. Once the writ is issued, the city will still have time and opportunity to explain thier side of all of the problems in this process, such as why they did not grant an extension of time, why they didn’t require story poles, why they didn’t correct errors in the record, and why they did not require an EIR.

    No need to extend the “benefit of the doubt as the result of having gone through the hoops just like any other permit paying citizen” when the facts of the case can easily be established by the court. Liberally paraphrasing Anotole France, the law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread … and to change the shape of the hillside with possible deleterious environmental consequences without doing an EIR.

    “After-the-fact second guessers with too much time on their hands will always invent some new reason to complain immediately after getting one concession.” Wow, the pretty much says it all about your low opinion of these people, who are doing more than just blogging. You make a lot of assumptions in that statement, but of course, that is all it is, your assumptions and your projections of people you don’t know, who you can’t understand.

    I think it’s just as easy to see Berkeley Hillside Preservation members and supporters, of which I am one (but not a spokesman) as more in the mold of “before-it’s-too-late prescient citizen preservationists who are concerned about their community.” We have a long tradition of environmental preservation in our community, and a record to prove it.

    Do you honestly believe that the people who oppose this project are “inventing new reasons to complain” and that they are doing it because the have “too much time on their hands?” I think that says more about your world view than it says about me and my neighbors.

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