Judge strikes down petitions against 2211 Harold Way project

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Two consolidated petitions against a building project on 2211 Harold Way were denied last week on the grounds that they failed to prove that the city lacked discretion in its approval of the development.

The 18-story mixed use building in Downtown Berkeley has been a source of controversy among the city, the developers and members of the community since before its approval by Berkeley City Council in 2015. Kelly Hammargren and James Hendry filed the petitions in January, raising concerns about the project’s alignment with community interests and California’s Environmental Quality Act.

Neither Hill Street Realty, the developer for the project, nor their representative Mark Rhoades could be reached for comment.

The arguments in the petitions related to the destruction of several city buildings that would result from the project and the construction’s potential effect around Berkeley High School. Hammargren also said her main issue with the project is the developer’s choice to pay $10.5 million for the affordable housing mitigation fee in lieu of creating on-site affordable housing units.

“If it doesn’t go in this building, there’s not going to be affordable housing for a long time,” Hammargren said.  “So we’re getting zero. When you put money into the housing trust fund, then that money isn’t enough to build a building, that’s just money for nonprofits to start putting together plans and grants.”

Hendry said he was greatly disappointed in the judge’s decision against his petition. He alleged that the judge appeared to rely on economic feasibility evidence that was not presented during the City Council’s meeting to approve the project.

“As a result, members of the public were not provided, in advance of the Council’s vote, a reasoned explanation of the Council’s actions, thus reducing public participation,” Hendry said in an email. “It was only during the lawsuit itself, that these other claimed justifications were provided by the City.”

City Council members Laurie Capitelli and Kriss Worthington both voted for the project. Capitelli believes that the developer’s $10.5 million payment will significantly help Berkeley’s push for more affordable housing during an acute housing shortage.

Now that the project is approved, according to Capitelli, construction is still six months to a year away. There is an appeal period of 60 days for the petitioners to challenge the judge’s decision.

While Worthington voted for the project, he said he disapproved of the discounts the developers received on the fees. He said the city reduced the amount of money the developers had to pay by discounting the city’s art fee, the affordable housing mitigation fee and significant community benefits fees.

The developers were originally slated to pay $28,000 per unit in their building toward the city’s housing trust fund, but the city allowed them a discount of $8,000 per unit, amounting to a total cost reduction of $2.4 million.

“The city reduced those fees for this project. It seems to me that this project could afford these fees more than the little projects,” Worthington said. “Those millions of dollars could have been used for important things that the city needs.”

Mayoral candidate Ben Gould said he supports the project and hopes that it can carry on without any more appeals.

“I hope that the petitioners recognize that their claims were thrown by the court and decide not to appeal it,” Gould said. “So we can move forward with this project and continue to revitalize our downtown.”

Hammargren intends to meet with an attorney soon to figure out what the next step in her fight against the development should be.

“How do we balance what the community needs and how do we balance what the developer needs?” Hammargren said. “The city majority that voted for this building at our City Council on Dec. 8, they gave the developer everything.”

Contact Malini Ramaiyer at [email protected] and follow her on Twitter at @malinisramaiyer.