Berkeley Neighborhoods Council


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Neighborhood Forum

2707 Rose Street, Construction Model
In this Section, BNC publishes articles that are written either by a neighborhood representative without editing or is summarized from material which has been submitted to us.  We will tell you when an article has been written by a representative or when it has been summarized.

This month's post is about a City of Berkeley development issue that was approved some three years ago by the City Council and is now awaiting hearing before the California Supreme Court.  It concerns a single family home of approximately 10,000 square feet (including a 10-car garage) which is proposed to be constructed on a steep hillside lot on Rose Street in the north Berkeley Hills.  The following was written by a neighborhood representative and is published without editing.  The graphics have been reproduced from public documents and have been added by BNC.

2707 Rose Street:  A Cautionary Tale

by Susan Nunes Fadley

Note:  The California Supreme Court will soon decide whether the City of Berkeley violated the California Environmental Quality Act (CEQA) when it exempted from environmental review a 10,000 square foot mansion proposed for the Berkeley Hills.  Whatever the outcome, the decision will reach far beyond the neighborhood where the dispute began.  This is a personal account of how it started…and why.

Before you tonight is a project that meets or betters the city zoning standards.
Marcy Wong, architect, January 28, 2010.

Surrounding Shasta and Tamalpais Roads and the architectural gems of Greenwood Common and Rose Walk is a wooded enclave nestled against a hillside above Codornices Park.  Tree-lined roads trace the contours of the land, and the shingled houses tucked into the hillside fit seamlessly into the green terrain.  Many were built in North Berkeley's earliest years, and they are said to exemplify a philosophy that sought to build with nature.  This is where I live.

In January 2010, the City's Zoning Adjustments Board (ZAB), chaired at the time by Mayor Tom Bates' appointee, Deborah Matthews, did what would have been unthinkable in another time.  It approved zoning permits to construct a 10,000 square-foot building in the middle of this neighborhood.

The permit applicants, Mitchell Kapor, cofounder of Lotus Development Corporation and the Electronic Frontier Foundation, and his wife Freada Kapor-Klein, had bought the wooded lot with its 1917 Craftsman house in 2007.  Since that time the house was neither secured nor maintained.  Left to deteriorate, it attracted squatters and became a neighborhood nuisance and eyesore, conditions the owners cynically noted two years later to justify tearing it down.  They wanted to replace it with a design by Berkeley architects Marcy Wong and Donn Logan that some people felt was better suited to an office park.

This house fits with the neighborhood….It does not stand out.
Rena Rickles, attorney and permit facilitator for the Kapors.

Because of the building's reduced setbacks, increased height, and the demolition of the 1917 Craftsman house, the Kapor's project required multiple use permits.  The City is supposed to issue such permits—as opposed to routine building permits—after evaluating how a project fits into a community.  The process can at times be frustratingly slow here, but most people accept the slowness when the rules apply equally to everyone.

The 2707 Rose Street project was one of the largest ever proposed in the city.  It was to be built on a steep hillside lot a stone's throw from historic Greenwood Terrace and Greenwood Common and within the shadow of elevated La Loma Road, connecting the hills to the urban core.  In the eight months after the initial submittal, the application moved quietly through the planning process.  In mid-January 2010, it was poised to be approved.

The hitch was, none of my neighbors knew about it — not even our council representative, who lives right down the street.

On January 14, 2010, the City had posted and mailed a “Notice of Public Hearing” to residences within a 300-foot radius of the project.  But one posted notice was attached to a telephone pole located at the end of Rose Street, facing away from foot traffic, where no one would see it.  If there were others posted in the vicinity, I never found them, and I regularly walk the neighborhood.

Our home on Tamalpais Road is located a few feet outside the notification radius.  I happened to learn of the hearing because a hearing notice was mailed to the Codornices Foundation at my address.  This neighborhood organization, on whose board I serve, has for forty years shepherded an open space on Shasta Road, almost directly downhill from the property in question.

The news was alarming.  Deadlines for submitting written testimony were fast approaching.  The Zoning Adjustments Board (ZAB) staff was recommending approval, and the owners of the four “abutting and confronting” properties were “very supportive” of both the project and design.  Put bluntly, the ZAB would decide the fate of an entire neighborhood before anyone knew about it.

I distributed flyers around the neighborhood, and word quickly spread.  In a matter of days, people living on Tamalpais and Shasta Roads, Greenwood Terrace, Le Roy Avenue, and Buena Vista Way submitted more than two-dozen letters of opposition or concern.

On January 28th, a half dozen of us attended the ZAB hearing, thinking we could at least get a continuance.  There we learned that the planning staff hadn't distributed our letters to the ZAB members — letters that had been delivered according to City protocol — until minutes before the meeting began.  The letters could not possibly have been read, let alone adequately assessed before the vote.

It was a bad sign.

Nevertheless, in view of the large neighborhood response, which we described in our oral testimony, we asked the ZAB to grant two modest requests:  (1) a month's continuance to learn more about the proposal, and (2) the erection of story poles to show the width, depth, and height of the structure in the interim.  Continuances have been for years a standard operating practice when there is significant community opposition or concern.  They allow the parties a chance to work at a solution.  Story poles are intended to give people a sense of a building's mass and visual impact, and they are required by the Planning Department for hillside construction.

Had we gotten notice a little earlier, I am sure we would have been able to get together with the owners and architects and reach, for the most part, amicable understandings.
Neighbor Frederick Wyle

We were naïve.  The applicants treated our questions as attacks and characterized our efforts as troublemaking.  Not a single ZAB member asked us a question — though there were many softball questions for the owners, who were also praised for their philanthropic work.  This was a project that appeared fast-tracked for approval;  little we could say would alter that course.

Seven board members voted to approve.  There were no dissenting votes, though one member, Sara Schumer, abstained because of her concerns about the story poles.  Why, she wondered, had the city not required them here?

Welcome to Berkeley, and what took you so long?
Zoning Adjustments Board member M.  Alvarez-Cohen to the owners after casting his vote to approve.

Looking back, I think it's safe to say that this charade of a public process was what ignited the neighborhood effort that stands before the state's highest court today.  What fueled it was the City's handling of the appeals process.  What sustained it was the commitment of a group of neighbors who decided that challenging the City was something worth doing.

Ours was never a dispute with project supporters who didn't agree with us.  Our dispute was with a city that didn't do the right thing.

On February 19, 2010, thirty-four neighbors and residents signed an appeal challenging the ZAB's decision.  The 15-page petition was supported by more than 100 pages of exhibits.  We questioned the way such an unusual project could have been approved when there were so many problems with the submittals.  We cited myriad deficiencies — legal, procedural, environmental, aesthetic, geotechnical — and provided supporting evidence.

The structure would tower 55 feet above the natural grade and loom almost 80 feet above Shasta Road.  It would be more than 100 feet in length — one-third the size of a football field.  Though the lot was large, the building would cover three to five times the developed area of nearby homes and exceed the maximum height limits of the City's Municipal Code.  It was one of the most massive and intrusive projects ever proposed within a Berkeley residential area.  Because it was in an area defined by an “aggregation of historically and architecturally significant buildings,” it was also subject to a special Berkeley General Plan policy requiring that new development be compatible in design and scale.  Yet the City did not even require story poles!

(Remember, story poles are erected at key points on a building's footprint to show the height and mass of the proposed structure.  It's a curious term — story poles show the number of stories in a building.  And because they are dimensional, they reveal what architectural drawings, elevations, and photo simulations can hide.)

The proposed building would sit next to a major trace of the Hayward Fault and within an earthquake-induced landslide hazard zone.  The hillside was exceedingly steep, and the excavation and earthwork would take place directly beneath the elevated La Loma Road, which was already damaged and cracked by “fault creep” of the hillside.  No engineering study of the structure at its final proposed size of almost 10,000 square feet had been done.

The project complies with or betters all Berkeley zoning standards….It is less visible than the average Berkeley house.
Marcy Wong, project architect.

Fourteen months of construction would require the demolition of the 1917 Craftsman house, the reconfiguration of a hillside, the removal of trees, soil and debris, the pouring of concrete for a massive foundation, the transport of materials in and out of a site that was accessed by a narrow, single lane road that was no wider than 20 feet.  It would involve the removal of huge quantities of soil, trees and vegetation, and the hauling of debris down narrow hillside roads through residential neighborhoods.

The submittal documents had masked the true height of the building and the manner in which it would visually tower over Shasta Road.  Trees that didn't exist on the site plan were superimposed on the elevation drawings to obscure the mass of the building.  A three-story structure (according to the municipal code's own definition) was described as only two stories.  A three-story building would have to meet higher earthquake standards.

In the weeks before the City Council was scheduled to hear the appeal, we formed a working group that met every Sunday.  By then the case had garnered media attention.  More neighbors submitted testimony, both for and against.  The New York Times weighed in with an article on “greenwashing” that questioned whether a 10,000-square-foot mansion built for two people could possibly be sustainable, as the applicants claimed and the City had accepted.

The Berkeley Architectural Heritage Association (BAHA) submitted written testimony declaring that the City had erred in accepting the applicant's assertion that no architect of significance had designed the existing 1917 house.

Dr. Lawrence Karp, a geotechnical engineer, studied the plans and the site and submitted a report describing the dangers of excavating and constructing the proposed building on a steep hillside so close to the elevated road alongside.  The huge house could cause the concrete roadway or hillside to collapse.

We consulted with public interest attorney Susan Brandt-Hawley, an expert on the California Environmental Quality Act (CEQA) law, who become our advocate.  She reviewed our appeal and submitted testimony reminding the Council that CEQA guidelines required an environmental impact report (EIR) if the city was presented with a fair argument that the project may have a significant effect on the environment.

As the April 27 hearing date neared, we spoke individually with Mayor Bates and most council members and provided them with documentation for our claims.  This, in a nutshell, was what we asked for:

  1. A revised project application that met the requirements of the General Plan and related ordinances, and that was accurate as to such things as height requirements, planned uses, architectural history, and so forth.
  2. An environmental impact report that would consider and mitigate the impacts of the project.
  3. Story poles verified by a licensed surveyor.
  4. A transparent process, fair treatment by the ZAB, and a final decision based on accurate information and analysis.

We wrote hundreds of e-mails, hundreds of pages of text, and countless letters.  We submitted a lengthy addendum to the appeal.  In the hours before the hearing, we rebutted the City's arguments, and rebutted the rebuttals.  It was an amazing, exhilarating effort.

And we lost.

The 6-2 vote was not unexpected.  In the weeks before the hearing, it became apparent to us that a block of six council members, including our own district council member Susan Wengraf, had made up their minds regardless of environmental problems.

Now therefore, be it resolved by the Council of the City of Berkeley that the Council hereby … affirms the decision of the ZAB to approve Use Permit No.  09-10000038 … and dismisses the appeal…
City Council Resolution No.  64,860-N.S., April 27, 2010

No one in the beginning ever dreamed that this case would someday be argued before California's highest court.  But we always believed that the legal issues it raised had merit.

In May 2010, Berkeley Hillside Preservation was formed to seek judicial review under CEQA, represented by Susan Brandt-Hawley.  The Alameda Superior Court agreed that there was substantial evidence that the project would have significant geotechnical effects and impacts related to inconsistency with the Berkeley General Plan, but nonetheless upheld the City's approval.

That persuaded us to appeal, and we were successful.  In February 2012, the First District Court of Appeal in a published precedent-setting case reversed the trial court and unanimously declared the City's approval unlawful.  But in the meantime, the Kapors were allowed to demolish the old house.

Now the case is indeed being reviewed by the California Supreme Court.

As we await the ruling, we look back at those junctures where an informed and fair process might have led to a different outcome.  The City had many opportunities.  Yet it chose not to take them.  Why? Where would we be today had the ZAB continued its decision and allowed story poles? Or if the Council supported a fair airing of a neighborhood's concerns and implemented an environmental review rather than declaring this impactful project exempt from state law? Might the project—though in much altered form—have been built by now?

I wonder.

Perhaps that uncertainty is why I keep a 5-inch by 3-foot sign taped to a support beam in my living room.  It reads, “Story Poles.” It was handed to me four years ago at the 2010 council hearing by a local architect who was of immeasurable help to our cause.  People are always asking about it.  I tell them the sign is a token of a grand effort.

But it's also a reminder of the questions that will remain unanswered no matter how this case is finally decided:  Why didn't City staff members and officials require story poles for 2707 Rose? What were they afraid of? Was it that they knew how the public would react if the poles were allowed to…well…tell their story?

That story still remains to be told, within a fair, open, and objective environmental process that involves us all.

For a complete documentation of the 2707 Rose Street case, see

BNC will follow this story and let you know the outcome.