Judge tosses out legal challenge to Berkeley high-rise

An Alameda County Court Judge tossed out two legal challenges to 2211 Harold Way, paving the way for the 302-unit complex to proceed. Image: MVEI Architecture and Planning

2211 Harold Way is one of several tall building proposals in the pipeline that must offer "significant community benefits" under the Downtown Area Plan. Image: MVEI Architecture and Planning — An Alameda County Court Judge tossed out two legal challenges to 2211 Harold Way, paving the way for the 302-unit complex to proceed. Image: MVEI Architecture and Planning

An Alameda County Superior Court judge on Wednesday denied numerous challenges to the Environmental Impact Report prepared for 2211 Harold Way, meaning that construction of an 18-story, 302-unit building with 10,000-square feet of retail space and new movie theaters in Berkeley’s downtown can proceed – unless the decision is appealed.

In a 16-page ruling, Judge Frank Roesch denied the 15 claims Berkeley residents Kelly Hammargren and James Hendry had filed in January to stop the project. The two had filed separate challenges which were combined. Roesch conducted a four-hour court hearing on the challenges on Aug. 26.

In December, the city council approved the complex, which will be the largest construction project built since Berkeley adopted the Downtown Area Plan in 2012. Under the plan, density downtown was increased and Berkeley sanctioned the construction of seven towers ranging from 120 to 180 feet high. In exchange, developers were required to provide extraordinary community benefits.

City officials ordered the developer of 2211 Harold Way, HSR Berkeley Investments, to make a $10.5 million payment into the Housing Trust Fund, with another $1 million going into an arts fund. Habitot Children’s Museum, which will be displaced because of the project, will receive $250,000 of that money. The developer has also agreed to use union labor and to rebuild the Shattuck Cinemas. Berkeley applied a $6 million credit for the labor agreement and a $5.5 million credit for the theater. The developer will also have to pay into a streets fund and a childcare fund.

The first $2 million of that payment will be made when HSR Berkeley Investments obtains its building permit. Half will go into the housing fund then, and the other half to the arts fund. The developer will have to pay $3.5 million – or post a bond or otherwise guarantee payment – when it gets its occupancy permit.

‘The project team is pleased with the decision as it reinforces our perspective that the lawsuits were specious to begin with,” said Mark Rhoades of Rhoades Planning Group, which assisted Penner in the entitlement process. “The decision also reinforces the voters’ desires for the Downtown Plan as it is reflected in this project after more than 35 public meetings. The project team is currently in discussion on the next steps but the strength of the decision likely means that the project will move forward even IF there is an appeal.”

Hammargren said she was disappointed by the judge’s ruling, in part, because it would decrease the diversity of the downtown. She said this was a betrayal of the principles of Measure R, the advisory measure for the Downtown Area Plan, adopted in 2010.

“The big disappointment is that this building is not going to have inclusionary housing and our teachers and service workers won’t be able to live in this building,” she said. “It’s a real slap in the face to what voters approved.”

Hammargren said she did not know if she would appeal. She has 60 days to decide.

The developer of 2211 Harold Way will tear down Landmark Theatres and build a new theater complex. Photo: Sharon Hahn Darlin

Hammargren was not able to find an attorney to represent her in the August hearing. Hendry wanted to represent himself.

Hendry could not be reached for comment.

Hammargren had filed 13 causes of actions, all of which were tossed out. She had argued that the EIR was not adequate because it did not separately analyze the impact on Berkeley High, Berkeley City College, and the city’s sewer system. The judge ruled that the impact had been studied, either in the project’s EIR or the EIR prepared for the Downtown Area Plan.

Hammargren had also argued that the EIR did not evaluate the seismic hazard of a portion of the site. The judge ruled that it did; the developers will remove the fill soil along Strawberry Creek and replace it with more stable material. Hammargren also said the project violated the DAP because, with a parapet and mechanical structures, it was taller than 180 feet. The judge said the Berkeley Municipal Code allowed for those additional features. There were other causes which were dismissed.

Hendry had challenged the data in the EIR assessing the impact the project would have on public transit. He had also said the $250,000 payment to Habitat means that its move was part of the project so it should have been studied in the EIR. Hendry had also said the financial pro forma submitted by the developer inflated the price he paid for the land so the city council assessed a community benefits package based on the wrong information. Judge Roesch said none of those arguments were correct.

Read the judge’s ruling here.

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Frances Dinkelspiel