Hearing for lawsuits over Downtown Berkeley development set for August

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Mitzi Perez/File

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On Friday, litigation against the city moved forward, setting a hearing date of Aug. 26 for lawsuits concerning the construction of a contentious 18-story building at 2211 Harold Way.

The two plaintiffs — Kelly Hammargren and James Hendry — allege that the City of Berkeley had violated the California Environmental Quality Act, or CEQA, in approving the project in December 2015.

Hammargren, who is representing herself in the case, said in a legal document that the environmental impact report did not adequately address the project’s effect on traffic, noise and affordable housing, among other considerations.

Igor Tregub, current vice chair of the Zoning Adjustments Board, also expressed concerns about the environmental impact report when it was discussed by the board.

“There were numerous concerns from the public that I personally felt were not adequately addressed in the (environmental impact report),” Tregub said. “That’s one of the reasons that I voted against the approval of the project.”

An issue of particular concern for Hammargren is liquefaction underneath the building — or loose, unstable soil —  which she said the report does not acknowledge. City attorney Zach Cowan, however, said the city will oppose the contention of the report’s inadequacy.

“We don’t generally defend litigation unless we think we’re right,” Cowan said. “We think the environmental report was adequate.”

But it is not difficult to find fault with environment impact reports, according to Ethan Elkind, associate director of the Climate Change and Business Program at the UC Berkeley School of Law.

“(Environmental impact reports) are covering such a wide range of subjects that generally it’s not too hard to find an area where they did an inadequate job,” Elkind said.

If the report is found to be inadequate, Elkind said, it could result in either a straightforward fix or fundamental changes for the project, which could delay development. He added that such a delay could cause a project to be financially infeasible. For this reason, Elkind called this area of litigation “controversial.”

“CEQA is all about delay,” Elkind said. “It’s not so much about killing projects … but oftentimes delay equals killing a project.”

Hammargren, however, does not expect that the project will be stopped. Instead, she said she wants improvements to be made, such as improving the building’s sustainability.

“Ultimately, I want to see a better building,” Hammargren said. “I’d love to see the building fall under its own weight and not happen, but I don’t think that’s realistic.”

According to Cowan, litigation involving CEQA is prioritized by courts because the process can undermine projects by delaying their actualization. For this reason, he said, courts try to resolve such cases quickly.

The plaintiffs’ opening briefs are due July 8.

Contact Patricia Serpa at [email protected] and follow her on Twitter at @pserpa_dc.