Residents sue city over environmental assessment of Harold Way Project

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Two Berkeley residents filed lawsuits against the city of Berkeley last week, alleging that the city failed to adequately assess the environmental impacts of the controversial development at 2211 Harold Way.

Plans for the major Downtown Berkeley project were approved by City Council on Dec. 8, despite numerous appeals from community members. Kelly Hammargren, who has spoken against the project at past council meetings, filed the motion Wednesday. According to Hammargren, Wednesday was the last permitted day to file a legal challenge.

Cities are required by the 1970 California Environmental Quality Act to compile an environmental impact report, or EIR, for construction projects that will likely have significant environmental consequences. The report requires the city to propose alternatives to mitigate these impacts and notify the public of the EIR findings in advance.

According to Hammargren’s lawsuit, the city violated the CEQA with inadequate evaluations of the 2211 Harold Way project’s impact on water, air quality, noise and nearby elementary and high school students, among other factors. 

“If you really get into reading the Harold Way EIR, it is pretty sloppy,” Hammargren said in an email. “When one really gets into studying the project, it is no wonder there is a flood of community letters and hours upon hours of public testimony in opposition.”

Over the last three years, community members have contested the project at public meetings with concerns about affordable housing and the preservation of long-standing businesses such as the Habitot Children’s Museum and Shattuck Cinemas, which will be displaced by construction. The proposed building, at 18 stories tall, would be one of the tallest buildings in Berkeley, leading to concerns about its size.

In 2012, three neighborhood associations filed a suit against the city alleging that the Downtown Area Plan, which includes the 2211 Harold Way development, lacked an adequate EIR, arguing that a 2009 report hadn’t been altered to account for significant changes in the project’s designs before 2012.

Another Berkeley resident, James Hendry, filed a suit challenging the project’s EIR the following day, after the city’s reported deadline. His suit argues that the report didn’t evaluate the project’s scope or its potential impacts on public transit or historical preservation and failed to consider alternatives for construction.

“We think the process has been driven toward its conclusion with the entitlement (that) the project would be approved,” Hendry said. “Vital concerns raised along the way have been ignored.”

Hendry said the major concern raised by his lawsuit and community members is that the city knowingly relied on incorrect and outdated information provided by the project’s developer.

According to Hendry’s lawsuit, the council approved the EIR that encompassed the project in March 2012, but because of delays from a referendum most of the report’s analysis is based on data from 2009, including data from a 2000 U.S. Census for conclusions on public transit usage.

Hendry said he hopes a judge will rule in their favor and require the city to conduct a new EIR to “correct the errors” of the current version.

Alexander Barreira is the lead schools and communities reporter. Contact him at [email protected] and follow him on Twitter at @abarreira_dc.