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Group challenging Mitch Kapor home wins appeal

February 16, 2012 2:00 pm by Tracey Taylor

Mitch Kapor: a stay has been ordered on his plans to build a home in Berkeley

Plans by Lotus founder and philanthropist Mitch Kapor to build a new home in Berkeley, which have been more than two years in the making, have been put on hold following a court ruling in favor of a citizen group challenging the construction.

The City of Berkeley is to be ordered to conduct an environmental impact report on Kapor’s project, a reversal of a previous decision by the Alameda Superior Court which ruled that Berkeley’s Zoning Adjustments Board had conducted due process in approving use permits for the Kapors to build a home at 2707 Rose Street.

The Feb. 15th ruling, by the First District Court of Appeal, makes Berkeley’s January 2010 decision unlawful.

In its appeal, the Berkeley Hillside Preservation Group argued that the project, which would see a contemporary style home (including a 10-car garage) built on the north Berkeley lot, should not be exempt from environmental review under the California Environmental Quality Act (CEQA). Single family homes are normally exempt, but the group used expert opinion to argue that the construction would have “significal environmental impacts.”

Model of the home Mitch Kapor and his wife Freada Kapor Klein hope to build at 2707 Rose Street. Image: Marcy Wong Donn Logan

Geotechnical expert Dr Lawrence Karp presented evidence of unstudied “massive grading” and potential for seismic lurching of hillside fills. The lot is adjacent to the La Loma overpass, which was built in 1958.

Susan Nunes Fadley, an appelant in the appeal and Berkeley Hillside Preservation Group member, said in a statement: “We are grateful for this comprehensive ruling and look forward to an EIR process that will take an objective look at the project, its environmental impacts, and feasible mitigation measures and alternatives.”

Speaking to Berkeleyside, Mitch Kapor’s attorney, Amrit Kulkarni, said: ”We are really disappointed by the court’s decision and are considering all our options. We feel it is unfair that Mr Kapor has had to undergo so many hardships when his project complied with the city’s development standards for a single family home.”

Berkeley Hillside Preservation will recover all costs of the lawsuit from the Kapors, who will also be required to pay for the EIR.

Read the February 15th ruling by the First District Court of Appeal.

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

104 Comments

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  • Cliff Magnes

    All that is being asked of the Kapors is that they abide by the law if they decide to build a new home on the now vacant lot they bought nearly four years ago. 

    Cut to the heart of this controversy, and set aside all of the specious arguments for and against this project, whether made by neighbors or not, and it comes down to asking the Kapors, and everyone involved with planning and monitoring this project to play by the rules.  Those rules have been codified in Berkeley ordinances and California statutes.  No one is asking them to do any more, or any less, than the law demands.

    One of those rules is that to build anything even close to the project they have proposed, they must comply with CEQA, and central to CEQA is the EIR, which has as its purpose informing the public and government officials of the environmental consequences of decisions before they are made.

    How can anyone object to asking (or demanding) that the environmental consequences are investigated and documented in an open process, and that everyone plays by the rules?

  • Paul W.

    That’s a fair enough reply. And I don’t have a dog in this fight, unlike you, so I respect the level of passion and effort you bring to this. The only point I’m trying to make is that the appeals court simply ruled that an EIR must be done, as a result of the extensive earthwork on this project and the risks presented by such. 

    The court didn’t say that the project violated the general plan, it didn’t say that the zoning ordinance wasn’t followed, and it didn’t say that the Kapors and their agents were being bad neighbors. All it said was that the City needs to do an EIR, and that is the only thing that can legitimately be claimed as a victory by the Preservation group. 

    It will be interesting to see what the EIR says, and what changes, if any, must be made to the project as a result. 

  • Cliff Magnes

    Paul W.

    And your comment seems fair enough as well. 

    The court didn’t address anything more than the central issue at hand, which was whether and EIR was required due to the reasonable possibility the proposed project may have a significant impact on the environment.  The court distilled the case down to the essence of what the appellants were asking for, and granted it. 

    I, and my neighbors, have made the other allegations, but the justices weren’t asked to rule on those allegations.  Just because I/they were correct about this doesn’t mean I/they will be vindicated on all the assertions I/they have made.

    I believe I have a good idea about what the EIR will demonstrate about the environmental impact, but I absolutely agree that it will be interesting to see how the EIR process is handled by the City of Berkeley.  Especially in light of how poorly the process has been handled up to this point.  The same people who erred before will be responsible for getting it right this time.  This will require diligence by the City and oversight by the public,

  • Cliff Magnes

    Mr. Gross:

    You have obviously not yet heeded my advice to read the appellate decision.  You can call the appellants any name you want, you can question their motives, but they were right and you are wrong. 

    If it were a trivial, manufactured, disingenuous argument, and there was NO reasonable possibility of a significant effect on the environment, don’t you think the justices would have ruled differently?  Or are you just so much smarter than they are.

    If you think that this is a joke, I don’t think the Kapors, the Logan-Wongs or the City of Berkeley are laughing, but your grievance is with the courts, not with the appellants.  Maybe you should have argued for the respondents with your keen analysis and pithy logic.

    I doubt you will be surprised to hear that there are many of us who believe that the report will further vindicate the BHPG and the neighbors who oppose this project, but it’s interesting to see how often people bring up the issue of how money will impact this report, I think what you’re suggesting is illegal.  We shall see how the report is prepared, as well as the process used by the City of Berkeley, presuming the Kapors see a way to move forward.

    Now you have made another prediction about the outcome, as so many others have over the last two years.  The opponents of this project appear to have a better record than the supporters, and I believe you will also be proved incorrect. 

    My prediction is that once the conditions of that lot are fully documented in an EIR, the value of this unbuildable, overgrown, rat infested vacant lot will plummet.  This has been a bad investment for the Kapors, but as you say, they have plenty of money to throw at this.  They will need a significant chunk of change just to pay the legal expenses of the appellants..

    Maybe the fair thing to do is to see how the EIR shakes out, now that the juggernaut has been stopped.  Now we have some time to do this right, to do this the way it should have been done from the beginning, and we can all calmly look at the specifics in a transparent process designed to give objective information to the community and to decision makers.

    No matter how it turns out now, the decision to follow the law was a win-win for the BHPG, for my neighborhood, and for the citizens of Berkeley, not to mention the citizens of California.

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