California Supreme Court overturns previous decision on Berkeley Hills construction proposal

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After years of litigation between the city and a local preservationist group, a California Supreme Court ruling Monday ordered further examination of a local entrepreneur’s plans to build a new home in the Berkeley Hills.

The ruling reversed a 2012 decision by the First District Court of Appeal, which ordered the city of Berkeley to conduct an Environmental Impact Report for a property plan put forth by Lotus Development Corporation founder Mitchell Kapor. The court determined that the 2010 decision was based on “legally insufficient” information — meaning that Kapor’s home may not need an impact report.

The proposed plans are for an approximately 10,000-square-foot property with a 10-car garage, designed by Berkeley’s Marcy Wong Donn Logan Architects.

Single-family homes are often exempt from environmental review, and the city’s Zoning Adjustment Board approved the Kapor development in 2010 without requiring it. But the Berkeley Hillside Preservation group, an association of city residents, argued that the project would have significant environmental impact on its surroundings and ought to be reviewed.

The Court of Appeal’s decision was based partly on findings by UC Berkeley professor and geotechnical expert Lawrence Karp. In a 2010 letter to City Council, Karp emphasized the “very significant” environmental impact of the construction and service of the property “due to the probability of seismic lurching of the over-steepened side-hill fills.”

The state Supreme Court, however, found Karp’s evidence to be “legally insufficient,” as his opinion was not based solely on the aspects of the project that had been approved.

It also disagreed with the way the Court of Appeals held the proposed construction as an “unusual circumstance” requiring environmental review.

The decision “clarifies an issue that had been uncertain for several years,” said city attorney Zach Cowan in an email.

Monday’s ruling will direct the courts to reconsider the case “based on the project as approved by the City, not the project as the petitioners alleged it would be built,” according to Cowan, who said the city is pleased with the decision.

The case will be re-examined by the Court of Appeal at a future date.

“We are optimistic that upon remand to the Court of Appeal, the Berkeley Hillside Preservation group will prevail and an environmental study of the Kapor project will be required,” said Berkeley Hillside Preservation attorney Susan Brandt-Hawley in an email. “We also plan to seek rehearing in the Supreme Court. The case is not complete.”

Contact Cassie Ippaso at [email protected]ycal.org.