Legal Challenge to Downtown Berkeley Mixed-Use High-Rise Struck Down


By Jacob Bourne

On October 19, Alameda County Superior Court judge, Frank Roesch, denied petitions brought forth against a large mixed-use residential project in Downtown Berkeley, which challenged the certification of the environmental impact report. The Residences at Berkeley Plaza project at 2211 Harold Way, was approved by City Council on December 8, 2015. Property owner HSR Berkeley Investments, LLC, represented by Mark Rhoades of Rhoades Planning Group, plans to build an 18-story building with 302 market-rate rental units and over 10,000 square feet of commercial space in a prime Downtown location nearby BART, Berkeley City College and Berkeley High School. The project falls under the Downtown Area Plan adopted in 2012.

The slated development will cause the existing Habitot Children’s Museum to relocate and demolish the historic Shattuck Cinemas. The project includes plans for a new 20,000 square foot theater and a community benefits package to issue a $6 million project labor agreement, $5.5 million for the theaters, and another $5.5 million to Habitot, arts fund and Housing Trust Fund. In lieu of providing onsite affordable housing units, $10 million will be paid in impact fees.

In January, Berkeley resident petitioners, Kelly Hammargren and James Hendry, filed lawsuits against the City’s approval of the project’s EIR. The major points in Hammargren’s argument were that impacts on nearby schools weren’t studied, the project was incorrectly designated as an “urban infill development project” and thus subject to an abbreviated CEQA review process, and the building’s height violated zoning limits. Hendry argued that the project’s infill status doesn’t justify the demolition of historic landmarks at the site, analysis of impacts on public transit were inadequate and the City Council knowingly evaluated the project using incorrect data from the developer.

The consolidated actions of Hammargren and Hendry were countered by a consolidated joint opposition consisting of Manatt, Phelps & Phillips, LLC attorneys Kristina Lawson, Andrew Bassak, Robia Crisp and Christopher Rheinheimer as well as City Attorney Zach Cowan and Deputy City Attorney Savith Iyengar.

[contextly_sidebar id=”3P7r0GO1DPLv8pQtpeq7OCOSaak086Cb”]“This is a notable project,” remarked Bassak. “It had 34 months of public scrutiny and 35 or more public hearings. It’s one of the most scrutinized projects I’ve ever seen. It’s been looked at from every conceivable angle. We’re very pleased that we were able to get this case from the filing of the petition to the order in 9.5 months.”

The opposition addressed all issues raised by the petitioners and asserted, among other points, that the project was accurately determined as an infill development, the Downtown Area Plan’s EIR had already analyzed transit impacts, the project’s EIR adequately addressed impacts including those on schools, and the building’s height meets zoning requirements.

Bassak stated that Berkeley had completed an EIR for the Downtown Area Plan, and under the infill streamlining CEQA rule, these projects don’t have to go through redundant environmental review. He also explained that the statute of limitations for CEQA is relatively brief, between 30 and 120 days, so the period in which the petitioners could have opposed the Downtown Area Plan’s EIR had long passed.

“What’s interesting to me about this is that groups that are anti-development are typically rallying around a specific project,” said Bassak. “If these people want to see a different outcome they’re going to have to be involved in the part of the process that’s more abstract. They’ll have to look at land use changes and get involved at an earlier stage. Those discussions are more abstract and don’t get as emotional as these specific projects.”

Kriss Worthington, Berkeley City Councilmember, wasn’t supportive of the arguments brought forth in the lawsuit but had made a motion at the December 8 Council hearing to approve the project’s use permit along with a more robust community benefits package. The motion failed but was supported by two other Councilmembers. Worthington also cited the project as evidence of the need for zoning ordinance reform.

“The public got blamed for delaying this project but much of the delay was for staff to sort through the convoluted zoning ordinance for several years,” offered Worthington. “The project took four or five years mostly due to the convoluted and contradictory sections of the zoning ordinance. We recently had $300,000 approved to reform the zoning ordinance, which will start in 2017. This will help speed up the planning process.”

According to Rhoades, the development team will probably submit for building permits in about nine months, with an estimated completion in 2021. MVEI Architecture and Planning and PGA Design have also been involved in the project.

Berkeley Mayor Tom Bates had expressed at the Council hearing, “This is the most important project that we will have probably in the next 10 to 15 years. This is a project that turns things around and says that Berkeley is interested in doing something about climate change; they’re putting their money and efforts where their mouths have been — building this kind of a structure with LEED Gold that’s going to provide $10 million for affordable housing. That $10 million for affordable housing gets matched by almost three to one when it goes to the nonprofits. We’re going to end up with really an exceptional project, an exceptional, important milestone for the City.”

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