Update, 3.19.15: The Berkeley Hillside Preservation Group is asking the Supreme Court for a rehearing of its case. It filed its petition on March 18. The Supreme Court recently appointed two new justices, following two retirements, and the group is hoping a reconsideration of their arguments might bring a different result. The vote was 5-2 for the defendant at the first hearing. A decision on whether the court will grant or deny a rehearing will be known by May 29. Read the Petition for Rehearing.
Original story: The California Supreme Court today ruled in favor of the city of Berkeley and philanthropist and Lotus founder Mitch Kapor, and against a group of preservationists who have been fighting for five years a proposal from Kapor and his wife, Freada Kapor Klein, to build a new home at 2707 Rose St.
In a ruling issued Monday morning, the court said it was reversing a Court of Appeal’s decision that had effectively said the 6,478-square-foot home (with a 3,394-square-foot garage) should be subject to an environmental impact report (EIR). Single-family homes are normally exempt from EIRs, which fall under the California Environmental Quality Act (CEQA).
The decision is a blow to the Berkeley Hillside Preservation group, which has argued over the years that the proposed North Berkeley home, designed by Berkeley’s Marcy Wong Donn Logan Architects, is exceptionally large and also in a landslide zone. That, and the fact that construction of the home would, they say, require extensive work to widen the roadway, amounted to unusual circumstances requiring environmental review.
However, the Supreme Court found that a core part of the BHP group’s case — evidence supplied by geotechnical expert Lawrence Karp — was lacking as it did not pertain to the Kapor project itself, which was approved by the city, but rather a similar, speculative project. “Insofar as Karp thus based his opinion regarding the project‘s potential effects on side-hill fill that has not been approved, his opinion is legally insufficient,” wrote the court in its decision (page 44). 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.
The court also ruled that the Court of Appeal, in this case, Alameda County Superior Court, did not correctly interpret the standards of review relating to “unusual circumstances” and the impact of the project, and it has remanded the case back to the Court of Appeal for it to redo its analysis. Sending a case back in this way is standard procedure if the referring court is seen by the Supreme Court to have made an error.
“It’s good news for the city,” said Berkeley city attorney Zach Cowan. “The court agreed that you can’t challenge a project that was approved by the city with one that was conjured up by an expert.”
Had the court ruled in favor of the preservation group, its decision could potentially have redefined the scope of California’s environmental laws. The CEQA exemptions, which include single-family homes, are relied on across the state, and a ruling in favor of BHP could have opened the floodgates for challenges to many projects approved by city planners.
Attorneys for BHP and Mitch Kapor did not return Berkeleyside’s calls asking for comment.
Kapor, who founded Lotus Development Corporation, is now a venture capitalist and, with his wife, a major philanthropist. Through his eponymous foundation — and initiatives such as the Level Playing Field Institute and the recently launched Kapor Center for Social Impact in Oakland — he funds and supports underrepresented students in higher education, as well as budding entrepreneurs, with a focus on people with low incomes and in communities of color. The couple has a home in Oakland’s Jack London Square as well as in Healdsburg.
Given that the Court of Appeal has been asked to reconsider its argument, the case is not completely closed. However it would likely require entirely new evidence to lodge another appeal now that the Supreme Court has determined that the city of Berkeley’s decision was right. As Cowan put it: “We have fewer hoops to jump through.”
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