Court date moved in next stage of Mitch Kapor home saga

The original 1925 home on the site of Mitch Kapor's proposed new home at 2707 Rose Street has been demolished. Photos: Tracey Taylor

Update, 01.31.12: Both parties in the 2707 Rose Street case, which went to appeal and was heard in the First Appellate District, Division 4, California Court of Appeal in San Francisco on January 24th, are now waiting to hear the outcome. In the meantime Berkeley Hills Preservation group alerts us to its website which contains full details of its case.

Original storyMitch Kapor is no closer to being able to begin construction on his new home in the north Berkeley hills after a court date set for tomorrow, January 10th, at which opponents to his plans were to have appealed a December 2010 ruling against them, has been moved back 14 days.

Meanwhile, Kapor, the philanthropist and founder of Lotus, and his wife Freada Kapor Klein — who received approval approved use permits from the City of Berkeley City of Berkeley’s Zoning Adjustments Board two years ago this month to build a new for a 6,478 sq ft home with 10-car garage at 2707 Rose Street — have voluntarily agreed not to undertake any construction activities at the site.

The lot has, however, been cleared in anticipation of a possible build. The original home at the location, a 2-story 2,477 sq ft 1925 house, abandoned for many years, has been removed, as well as a garage at street level, leaving merely foundations in their place.

The Berkeley Hills Preservation Group’s appeal rests on the argument that the build will have “a significant effect on the environment due to unusual circumstances” (California Environmental Quality Act Guidelines [14 Cal.Code Regs.]), and therefore warrants a CEQA environmental review — something not normally required for the construction of single family homes.

Potential construction at 2707 Rose Street awaits the outcome of latest court case on Jaunary 24th

The appeal describes the proposed home, for which blueprints have been drawn up by Berkeley architects Marcy Wong Donn Logan, as being “akin to an office building in both design and scale.”

A report produced by geotechnical expert Dr. Lawrence B. Karp stated that construction of the residence “would entail extraordinary amounts of earthwork, including removal and shoring of 1,500 cubic yards of soil and removal of many trees.” Dr. Karp determined that such an excavation “had never before been accomplished in the project area outside of reservoirs or the University of California campus and Tilden Park.”

Immediate neighbors to the Kapors’ proposed home have been supportive of his plans, however. Writing on Berkeleyside on May 2nd, 2011, Digit Master Inc said: “I’m one of the neighbors of this project. As far as I know all of us are in support of this project. The former building was a source of much undesirable activity for the neighborhood. The people who oppose this project don’t even live on the same street! The new home, regardless of its architectural flaws/merits will not even be visible from these people’s home.”

That view was echoed by Rose St. neighbor who wrote: “I live on Rose Street and I think it’s great that they’re building a fine new building there. A large garage will keep cars off the street for bikers and pedestrians when they have guests. Sounds like a good plan, and a big improvement over what was there.”

Councilmember Susan Wengraf, whose district includes the location of the proposed build, has also said she would like to see it go ahead.

The BHPG will present its oral argument in the First Appellate District, Division 4, California Court of Appeal in San Francisco on January 24th. (Read the appeal document in full.)

Update, 01.10.12: Read also the appelants’ reply brief, served on September 6th 2011, following  the initial appeal document of June 15th 2011 to which we link above. In the reply, the issue of the seismic safety of the La Loma overpass, built in 1958, and which is sited close to 2707 Rose Street, is raised by geotechnical expert Dr. Lawrence B. Karp.

Related: Berkeleyside’s full coverage of the Rose Street case since January 25, 2010.

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  • Cliff Magnes

    This is actually an excellent question, one that will be answered by an EIR.  My complaints about this have been well documented in prior comments (please feel free to search this and other sites to find them) but my main complaint is that this has sailed through without the kind of scrutiny that the process demands.  Now that the court has agreed with the neighbors who raised these concerns, that will happen. 

  • Cliff Magnes

    Well, it has not been very well maintained since the Kapors bought it, and not without good reason.  The more they let it deteriorate, the more of an eyesore and a nuisance it became.  Then the Kapors could come in and offer to clean up the mess they helped to create.  Now they have torn down the house, a house that could have and should have been rehabilitated, and the property looks like hell.  That’s not a good sign of good neighbors.

  • Cliff Magnes

    Excellent analysis.  It appears that is exactly what the appeals court did.  Well thought out.

  • Cliff Magnes

    No, I don’t think I will stop worrying about what other people are doing.  If my neighbors are being assaulted, I will call the police, I might even get directly involved. If my non-neighbors try to use all their power and connections to try to become my neighbors, and they demonstrate that they will lie and stop at nothing to build a structure that will affect me, I may just go to court to try to effect that.  I may even enjoy it.  I certainly don’t enjoy pointing out how illiterate some of our guests are.

  • Cliff Magnes

    Not anytime soon, Not with an EIR to complete.  I am not just fighting for my home, I am fighting for my neighborhood.  Do you know anything about my neighborhood?  Do you know anything about the history of my neighborhood, or the planning that went into it when it was being built?  Do you know about the ethos that makes my neighborhood so desirable?  It’s not because houses are so expensive, it’s because of a movement by neighbors to preserve the natural beauty of the hills.  Not to terraform them and build the monstrosity that sailed through the ZAB and City Council. 

  • Cliff Magnes

    The issue is this is BS.  It’s a BS justification for a 10,000 sq. ft. house that was illegally exempted from CEQA and an EIR.  Fortunately, this error has now been rectified, and an EIR will be done.

  • Cliff Magnes

    Mr. Gross,

    It appears this is now a moot point.  The appeals court not only found Mr. Karp’s arguments and comments most persuasive, they cited them extensively in their opinion.  If you wish to have any credibility, perhaps you could tell us how the court erred, in your expert view.

  • Cliff Magnes

    UPDATE:  The Court of Appeals has reversed the decision of the lower court.  They have ordered the lower court to order the City of Berkeley to do what they should have done in the first place, which is to prepare an EIR.  The approval of all use permits and their finding of a categorical exemption to the CEQA requirement is set aside.  Berkeley Hillside Preservation will recover all costs of the lawsuit from the Kapors, who will also be required to pay for the EIR.

  • Cliff Magnes

    You don’t know jack about who lives in the Berkeley hills, but stereotyping is easier than thinking, I guess.

  • EarlyMorningCoffee

    I disagree on the first point. I agree on the second.

  • Bruce Love

    Thanks.   Brandt-Hawley’s appeal petition is an entertaining and lucid document that makes an evidently strong case.   I haven’t read the decision but I guess you’re saying that it accepted her theory of legal error by the lower court and didn’t need to find different facts (for Brandt-Hawley’s “in the alternative” back-up argument).

  • Cliff Magnes

    Once again, spot on.

  • Cliff Magnes

    Even more edifying, and irrespective of any comments (including my own) is the decision by the court of appeals.  Rather than looking at this as who won and who lost, it seems to me that the neighborhood group who was fighting on behalf of the neighborhood has been vindicated in their convictions.  Berkeley did NOT follow the law, the Kapors exploited this, and they weren’t the only ones who wrote off a group of dedicated neighbors as NIMBY’s or just nosy troublemakers who should just butt out of other people’s business.  Good neighborhoods don’t simply appear, they must be nurtured. 

  • Cliff Magnes

    Let me begin by stating my conviction that 1) only an EIR can meaningfully answer that question; 2) the Kapors have misrepresented numerous aspects of their project; and 3) that the city has failed at all levels to apply the same standards to Mr. Kapor that are applied to other developments.

    Having said that, let me address the impacts to the neighborhood:

    1)  Substantial changes in grading and topography of the existing hillside, including but not limited to massive grading and seismic lurching, which would change the existing slope from ~42 degrees to ~50 degrees, substantial earthworks which must be benched and keyed into the existing hillside, shoring and major retaining walls (including multiple 12 foot walls) not shown on the plan.  All of these could destabilize the hill and potentially cause a massive land slide into both public roads and rights of way, private lands held for the benefit of the community by a local foundation, and private property. 

    2)  Extensive removal of trees and vegetation on the existing hillside not disclosed in the plan;  This will profoundly impact the views of numerous neighbors.

    3)  Extensive trucking, drilling, and crane work not anticipated in the plan as submitted.  This in addition to the additional time and extensive use of machinery would adversely impact neighbors, especially compared with the impact of remodeling the house, which is no longer an option, thanks to the Kapors bad faith. 

    4) Inadequate drainage for the intended project.  All of the above should be placed within the context of the topography of the site, which is immediately above a protected creek and an open space maintained by a private foundation for the benefit of the entire neighborhood,  Inadequate drainage could also cause destruction to the hillside deleterious to neighbors, the neighborhood, to the creek and the neighborhoods it flows through, to the bay, and to the Pacific ocean.

    5)  Significant environmental impacts, due to the many unusual circumstances in this project, including being in a known slide or “creep” zone, the proximity to known faults,and other unusual geotechnical impacts, as well as the proximity to the creek, and the proximity to historical structures. 

    6)  The size of the structure which is so out of proportion and out of character with the surrounding homes is inconsistent with the visionary planning that went into the development of this neighborhood by some of the most well respected architects and civic leaders at the time.  The Hillside Club was a major proponent of this enlightened era before it became a harmless, toothless, (and irrelevant to its original mission), but otherwise still valuable community institution.

    7)  The unusual aesthetics of the project, the impact to our neighborhood as a cultural and architectural resource, the effect on the water supply of the creek, and the health and safety of neighbors around this project.

    In summary, this project has been poorly planned, poorly shepherded through and easily manipulable process.  It has been misrepresented and it will not add to our neighborhood, it will be deleterious.

    This is just off the top of my head.  I will try to give a more complete answer as this discussion continues.

  • Cliff Magnes

    Fair enough.  Then maybe you could enlighten us with some facts that might either challenge or confirm the stereotypes which so many people appear to love to bash our neighborhood with.  We have the decision of the courts, but there is still a lot of room for trying to understand each others points of view.

  • EarlyMorningCoffee

    As I write this, it’s from a one bedroom apartment, housed in a soft story building on the flat side of town. I have a child due any day now, and worry that I will have problems paying the rent in my rent controlled space, because my wife will be taking 3 weeks off from work. I’m sure that if I had 1/5 of the money you have, I would be so much better off. I don’t fret, my hope is this is temporary. Do you hope your situation is? Where are you typing your replies? I’m sure it has a nice view. I don’t.