Software mogul Mitch Kapor can crack open the champagne. At last night’s City Council meeting Berkeley’s council members voted to reject the appeal on his approved application to the Zoning Application Board to build a new home in our city. His plan for a contemporary, 6,478 sq ft house at 2707 Rose Street now has the green light.

The item was passed 6 in favor, 2 against and one in absentia. Commenting on the long, divisive debate that preceded last night’s meeting — which has been extensively documented on Berkeleyside — council member Linda Maio said that in her 20 years of serving the city, it was the first time she had seen immediate neighbors be so supportive of a land-use application – while other neighbors, who lived further away, were being so vocal about the project’s detriments.

Council member Susan Wengraf, who said she lived within 800 feet of the proposed new home, said she hoped the wounds opened on the issue between warring neighbors would heal soon. “Delaying the motion would delay the healing,” she said. She also spoke about the “celebrity” factor, saying: “This application is not about the ‘who’ but the ‘what’.”

Council member Laurie Capitelli said as the proposed home was not on a ridge line, would not block views and would go unnoticed from many points nearby, so he was standing by the ZAB decision.

Opposing the motion, council member Kris Worthington cited the issue of absent story poles (discussed in our comments over the past few months) and a letter from the Landmark Preservation Commission which he felt should have been given more consideration. He said he believed there were several mistakes in the application.  Council member Jesse Arreguin also voted against the motion saying he didn’t feel he had enough information to make a decision.

Several comments were made about the appealing aspect of District 6, the part of north Berkeley where Mitch Kapor, an adjunct professor at UC Berkeley, and his wife Freada Klein may soon live. Mayor Tom Bates said: “It must be one of the most beautiful places on the planet”, and cited “all the Phds” who lived there.

Tracey Taylor

Tracey Taylor is co-founder of Berkeleyside and co-founder and editorial director of Cityside, the nonprofit parent to Berkeleyside and The Oaklandside. Before launching Berkeleyside, Tracey wrote for...

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70 Comments

  1. Cliff (“the real”?),

    You asked what I thought of the proposition of a legally binding agreement regarding reconstruction after a disaster. I think that lifelongberkeleyans’ post-catastrophe thought experiment is kind of a cheap rhetorical trick that has nothing to do with the Kapor project. I think the proposition of such a legal arrangement among owners is unrealistic on technical grounds (i.e., would be hard or perhaps impossible to construct in any solid way, even if all of the owners agreed). I also think that if the hills were to burn flat we should consider the option of not rebuilding there at all.

  2. Thomas Lord,

    I noticed that, too. Not sure how that happened, but once again probably my fault, typing too fast. It’s really me, though.

    What do you think of lifelongberkeleyans’ last post? I think those are valid issues, and worth commenting on, and will do so later.

    Just my first take after a quick read is that if there was a way to voluntarily enter into legally binding agreements with my neighbors to restrict our post-apocalyptic homes to their current size and appearance, I would do it.

    I think it’s a great idea, and more of an argument for saving 2707 Rose than it is for tearing it down and starting the supersizing before the apocalypse arrives. Especially if it meant pre-approved post apocalypse building permits! What a deal! I think an even better model for our concerns is what happened in the Oakland Hills after the fire. Very sad.

  3. s z underwood:

    I’m serious, you need to write this up as stand alone article for people to comment on. Look how much people want to comment on this general topic, yet we’re just a few people gnawing on the bones of the Kapor project.

    I am aware that the area AROUND the area in which I live was devastated by the great fire of 1923, my family lived through that fire. Our house survived, and so did the existing house at 2707, yet houses just blocks away burned to the ground. The area wasn’t as built up at the time, but many of those jewels (some of them diamonds in the rough like 2707) are still here.

    Not all of the houses in our neighborhood fell to the fire, that’s part of what makes it so special. So your guess is incorrect, the homes in my immediate neighborhood were not all rebuilt. There was a big building boom in the 20s that filled in most of the empty lots, with the final boom in the 50s and 60s on the less desirable lots.

    You are correct that there are some newer, more incongruous homes. Two of them are right next to 2707, and are the least vocal of the four supporters of the project that signed off on the plans. You see, that is all part of the dynamic. Once you’ve built an ugly monstrosity, the argument against other ugly monstrosities is harder to make, because you’ve changed the standards of the neighborhood. It’s a slippery slope from LaLoma to Shasta, in more ways than one.

    My grandparents lived here when Hume Castle and the Temple of the Wings were built, and my family knew both families and went to parties there. My mother took dance lessons at The Temple of the Wings and loved the house and the family. Given my present mindset, yes, I would have supported both projects, as my grandparents did.

    Your point about whether Berkeley is “a place which can accept a dose of modernism or just the odd, incongruous entity, and whether the spirit of conformity, continuity and convention so strong now in Berkeley (the ‘home of free spirits’) that we can’t tolerate in our midst some architectural novelty, diversity and innovation,” is a good one.

    Not that it is entirely relevant, but it is worth noting, since you ask, that this isn’t novel, diverse or innovative. It’s Bauhaus worker housing that belongs in an office park, supersized shoe boxes, section 8 or Motel 6, it’s K-Mart or Wal-Mart on Rose. Just my opinion, but there it is. Not that design review is part of the approval process, but since there have been so many violations of the approval process, it’s just one minor factor.

    I think the real question is will my grand children, or great grand children, who may still be living in our family home 100 years from now ever seek to landmark Casa Kapor and preserve it as a “unique and irreplaceable part of our architectural heritage” when some new owner wants to tear down and start over?

    I wouldn’t think so, but you never know. They grow up and make up their own minds, and maybe by then things will be so bad in this neighborhood that people will want to preserve as a monument the “house” that started it all.

  4. It looks like Don Logan and Marcie Wong commissioned a new 3D model of this monstrosity!
    I’m not really sure this is a new model; I think it’s just the old one and they added color to the house and ‘aged’ the trees using rip and replace. Plinth, what plinth?

  5. This post is not in response to, nor directed at, any previous poster on this thread. If no new poster responds, please just ignore it.
    _______________________________

    Repackaging my earlier post for wider consideration…

    Here’s a test to identify latent property rights conflicts which may be clouding your judgement on the Kapor project…

    Read the excerpt from David L. Kirp’s book. Two pages, essential for anyone living in the North Berkeley hills. It’s a cautionary tale of how others dealt with a disaster we will (not may) be facing when (not if) the quake and fire come. Most pertinent to our discussion is the account of how suddenly commitment to a unique community and irreplaceable historical environment was swept away in a flood of insurance settlements. – http://press.princeton.edu/chapters/s6796.html

    How is this relevant to the Kapor House debate?

    This thread (and the many letters submitted to the city in opposition to the Kapor House) suggests similar commitments are deeply and widely held near 2702 Rose St. and somewhat beyond.

    If that’s true, why not act now to eliminate even the possibility of individual greed defacing these hills. How? Simply by voluntarily entering into legally binding agreements with your neighbors to restrict your post apocalyptic homes to their current size and appearance. The reward, beyond virtue itself, could come as pre-approved post apocalypse building permits, dramatically shortening your families dislocation.

    If the sound of that makes you nervous.
    If you’d like to keep your options open.
    If you think change might improve things.
    If you think you better ask your adult kids first.
    If you think “Hey it’s my property, what would I do with some real dough from the insurance”.

    Then you may be more sympathetic to the Kapors than you think.

  6. “I’m also getting tired of seeing the same old view of this thing as it mutates.”

    My feelings exactly about the alleged “discussion” of the merits.

    This continues to degenerate into a strained attempt to find legal fault with the project simply because there is a clear and now less veiled aesthetic bias.

    Since repetitiveness seems to be a virtue here, let me repeat as well: its their house to live in, and it meets the code requirements, as agreed by the citizens of this city who are in charge of such affairs. I suggest you get over it already and move on to the next cause.

  7. OK, I see there is a slightly larger version of the picture at http://www.insidebayarea.com/portlet/article/html/render_gallery.jsp?articleId=14980085&siteId=181&startImage=1 but it is a very low resolution picture, so that’s how I missed the fact that the LaLoma roadway IS still there, it’s shielded by new mature trees … on the public roadway below.

    It appears that the Kapor project has now expanded to incorporate more of the street, but it is difficult to tell because of the slight difference in the angles of the two pictures, and due to the “age enhancement” of the trees.

    How exactly is that street going to be abandoned and subsumed into the Kapor project as shown in the new model? Will it be a public park, like the pocket parks required in other large developments in recent years? Don Logan did reference doing some landscaping with city permission, but if they are proposing to incorporate public property, I would think that is one more argument for an EIR. http://berkeley.granicus.com/MediaPlayer.php?publish_id=629 time reference 1:51.

    Also, it is difficult to tell with the perspective of the two dimensional picture, but isn’t the building taller than both the roadway AND the handrail on LaLoma? Didn’t the applicants specifically say it wouldn’t be? And that it wouldn’t be visible from the road above? Not visible because of the new trees being proposed, or not visible because of the angle of view from the roadway? Either way, it looks very visible to me.

    Don Logan said they would be “three to eight fee below” either the road above or the handrail height (I’ll give him the benefit of the doubt and say he’s referring to the handrail height), which would make it 1′ above or 4′ below the Laloma roadway, but I’m not seeing it in the picture. Same link as above, time reference 1:53.

    I’m also getting tired of seeing the same old view of this thing as it mutates. This is a three dimensional model, and Don Logan himself said that this was “an artificial view … you would have to be hanging 60 feet above Shasta to see this view” (time reference 1:53). So let’s see some realistic pictures of what it will look like from the front, from the back and both sides. It’s a 3D model! Just rotate it and show some realistic views. Why are they always showing the artificial views, and dismissing the critics who will have real views?

    What’s with all the confetti on the roof? Are those supposed to be leaves in the fall? Trees in the spring of 2030 with leaves from the fall of 2029? Also, the new picture of the model does not show the entire property all the way down to Shasta, as the old one did.

  8. Cliff:

    Thank you for your approbation and for your suggestions which I sincerely appreciate and will take under advisement. I do think your earlier intuition that this thread was becoming a little wearisome and pointless were more on the mark, but I understand you are animated by a strong current of outrage about this project (“monstrosity” … “horrible office building” etc.).

    As you doubtless know, the area in which you live was devastated by a wildfire in 1923. I am guessing therefore that most of the rebuilt homes in that area are fairly uniform in design, scope and style. However, there are some newer, more incongruous homes and there are also some properties which are very architecturally distinct.

    I don’t know if you recall the novel or the film, “The Shining”, but there is a memorable scene near the end where Jack Torrence looks at an old photo captioned “Overlook Hotel, July 4th Ball, 1921” and spots himself in the foreground.

    http://en.wikipedia.org/wiki/File:Overlook_hotel_1.jpg

    Just to humor us, I would like you to imagine yourself back in the mid-1920s for a moment and confronted with plans to build near your house either the Hume Castle on Buena Vista Ave.

    http://www.dupontcastle.com/castles/hume.htm

    or the so-called Temple of Wings

    http://www.berkeleyheritage.com/berkeley_landmarks/temple_of_wings.html

    Given your present mindset, do you think that you would have supported either of these projects as a good fit for the neighborhood?

    Even if we accept that Cliff’s Point promises to be an eyesore (which I agree with, BTW) is Berkeley a place which can accept a dose of modernism or just the odd, incongruous entity? Is the spirit of conformity, continuity and convention so strong now in Berkeley (the “home of free spirits”) that we can’t tolerate in our midst some architectural novelty, diversity and innovation? Will the Cliff Magnes of 100 years from now seek with equal passion to landmark Casa Kapor and preserve it as a “unique and irreplaceable part of our architectural heritage” when some new owner wants to tear down and start over?

  9. Welcome to our new audience coming to Berkeleyside from The Berkeley Voice to compare the pictures of the old 3D model on this page to the new 3D model that has been prepared and is on the front page of the Friday, April 30, 2010 edition.

    The article is here: http://www.insidebayarea.com/my-town/ci_14980085

    Paraphrasing my comments on the new model, a picture really is is worth a thousand words. It looks like Don Logan and Marcie Wong commissioned a new 3D model of this monstrosity!

    Compare it to the old model shown on this page by going to
    http://www.insidebayarea.com/portlet/article/html/render_gallery.jsp?articleId=14980085&siteId=181&startImage=1

    The picture is captioned “Above photo shows model fo the proposed 6,400 square foot home,” does that mean that the 3,394 square foot ten car garage is not shown? I also see that the Laloma structure is gone, so we have no comparisons to the height of the roadway, or the height of the handrail, which were such important parts of the representations made by the developers to the neighbors, the ZAB, and the city council.

    Look at all those trees! Of course, this is the view of the house that the proponents have said you would have to be 60 feet above Shasta to even see, but look at all of those trees! My, that IS an improvement. Also mossy green instead of blinding white, and it looks like that third floor has been well disguised. with a new wall and some vegetation. Also a small triangular screen, if I’m not mistaken. You see how valuable neighborhood input can be? We haven’t stopped this project, but we’ve already improved the model, and planted dozens of new mature trees!

    Unfortunately, if this horrible office building/K-Mart “house” ever gets built, it will NOT look like this. The trees are the big give away, compare them to the landscaping plan submitted to the City of Berkeley by going to http://www.ci.berkeley.ca.us/ContentDisplay.aspx?id=48944 (2010-01-28_ZAB_ATT2_2707 Rose_Project Plans and Applicant Statement).

    If this thing gets built (and I think it’s an even bet it won’t), I will take a picture from this point of view and for comparison. I’m going to do some more analysis to see what’s wrong with this picture, but I think I’ve caught at least a few of the biggest misrepresentations, but I’m sure I haven’t caught them all.

  10. To lifelongberkeleyan:

    What a great comment … on an article s z underwood may or may not write for berkeleyside to a wider audience about a broader issue (and maybe as you said “the truth and Berkeleyans like [him] shall set [you] free.”)

    Meanwhile, here on what you called Cliff’s Bluff and I call Cliff’s Point, we’re commenting on “Welcome to Berkeley Mr Kapor: Appeal is voted down.” Having eliminated the false analogies, let us return to Casa Kapor, and the true analogies.

    I will restate my question: If you want to compare apples to apples, why not do an EIR? Why is everyone so afraid to get the facts out before this is built, instead of after it’s too late? I’m willing to bet that the EIR resolved many of the competing statements of the proponents and opponents of some of these larger projects that you are concerned about, as well as helped to mend fences between neighbors.

    Picking up the frayed thread of your earlier posting I would be honored to be remembered as someone who helped to preserve this neighborhood.

    After the quarry shut down right next to and above the proposed Casa Kapor, it was neighbors, working with the city, who turned it into a magical park, the Glendale-LaLoma Park. You can get there off of Laloma, you can walk from the front door of 2707 Rose St. in less than 5 minutes, or you can climb up the secret path from Shasta (currently being restored by the BPWA, see below), but either way, there is a great view of the lot that is being proposed for development from the viewpoint at the edge of the park.
    http://www.ci.berkeley.ca.us/ContentDisplay.aspx?id=12504

    At the turn of the last century (the 19th to the 20th) another group of neighbors urged developers and City planners to lay out streets to follow the contours of Berkeley’s hills, with “footpaths above and below [with] connecting steps for pedestrians.” These footpaths, formed by easements on private property (like sidewalks) were used for many decades, but eventually become overgrown and nearly forgotten until four local heroes formed a group that would eventually become the Berkeley Path Wanderers Association. They helped to map, restore and maintain these paths, including the one up to Glendale-LaLoma Park.
    http://www.berkeleypaths.org/index.htm

    When developers threatened the hillside just downstream from the beautiful house that was built over Codornices Creek at 2645 Shasta Rd. http://www.acme.com/jef/creeks/codornices/ neighbors banded together to buy the land to prevent further development on this hillside. Now the new developers at 2707 Rose have labeled it a “park” on the maps site map submitted by the Kapors, but it is in reality owned by a 501(c)(3) foundation that holds that land in trust to prevent any further development.
    http://www.taxexemptworld.com/organization.asp?tn=1369032

    I did not start any of these organizations, I provided no leadership, but I am proud to be associated with 2 out of 3 of them. If I am able to contribute to preserving our unique neighborhood by preventing this awful shoe box from being built, I would be proud to be a part of that effort.

    Not Cliff’s Bluff, not Cliff’s Point. But not Kapor’s Folly, either.

  11. Uh, lifelongberkeleyan, aren’t you being a bit fast and loose with your numbers there? Are you making a joke?

    2,777 homes were lost in Oakland.

    In Berkeley, 69 homes were lost. (This per your link #3.)

    By 1993 (again, per your link), 39 permits had been issued to rebuild some of those 69 homes.

    Again, per your link, a third of the combined group of Oakland and Berkeley owners decided not to rebuild. We don’t know exactly how many of those were in Berkeley but using the 1/3 number, we estimate 23.

    Thus, in the case of Berkeley, 39 out of a statistically expected 46 permits had been issued within two years of the fire. That’s about an 85% build rate compared to the expected number.

    Per your link, 2,777 homes were lost in Oakland. At the same 2/3 expectation rate, we would expect about 1,851 rebuilds. In Oakland there were 1,368 permits by 1993. That’s about a 74% build rate compared to the expected number.

    So, if what you were trying to prove is that in the aftermath of a disaster Berkeley’s process will obstruct rebuilding less than Oakland’s process – you’ve provided some circumstantial evidence for that conclusion. Even though Berkeley gets a good grade the question is probably moot because in the aftermath of a large disaster in which thousands of Berkeley homes are lost, the process for rebuilding would likely not be business as usual.

    You pose “185 years of citizen review. […] Should we be concerned?” It’s remarkable how with a straight face you got to that 185 years.

    To answer your question, though: yes, we should be concerned. The abuse of statistics preying on an uncomfortably high level of mathematical illiteracy in our society is a cause for concern, absolutely.

  12. Berkeleyside…per the above.

    A suggestion for enlarging this discussion on planning process from limited interest to all consuming general imperative with tragic recent precedents –

    1. Read this excerpt from David L. Kirp’s “Almost Home: America’s Love-Hate Relationship with Community, Princeton University Press, 2000 see: http://press.princeton.edu/chapters/s6796.html

    2. Note that according to ‘city-data.com’ Berkeley issued 15 single-family new house construction building permits in 2008, see: http://www.city-data.com/city/Berkeley-California.html

    3. Also note that in the two year period following the Berkeley/Oakland Hills firestorm “…1,368 building permits had been issued for the 2,777 residential sites that had burned…” see: http://www.csulb.edu/~djeffrey/hazards/human_impact.html

    4. The hazards for North Berkeley Hills remain basically unchanged, see: http://proceedings.esri.com/library/userconf/proc95/to200/p175.html

    Fire or quake, or, fire and quake, history and science claim it’s inevitable. 2,777 new houses, 15 building permits granted annually equals 185 years of citizen review.

    Should we be concerned?

  13. s z underwood,

    (If this posts twice, I may have erred by putting the berkeleyside website in the website field.)

    Sorry to post three times in a row, but with honest respect, why waste your 4:51 posting on the small group of people still following the 2707 issue? (No offense to the unknown number of people still following this here).

    If this is a broader issue that you would like to put before the entire community, your well written (latter) posting, with only some minor editing, would make an excellent stand alone article for the entire Berkeleyside audience. Then other’s could comment on the larger issue (it’s deductive, s z, not inductive). After all, as the tag line says: “Berkeleyside is Berkeley, California’s news site.”

    A brief quote from the “About Berkeleyside” tab (above):

    “We don’t aim to be comprehensive (yet), but we want to show the extraordinary diversity of people, issues, events, food and environment in our city on the Bay.

    If you want to contribute to Berkeleyside or just have some ideas you want to share, please let us know, and read through the Notes for Contributors below.”

    https://berkeleyside-newspack.newspackstaging.com/about-berkeleyside/

  14. s z underwood:

    Well THAT makes a hell of a lot more sense than your previous posting. When you put it like that, your concerns make a lot more sense (in my own humble opinion). Seems to me that this would have been a good way to broaden this discussion in the first place.

    I have a huge personal stake in THIS project, but that only puts me on the same footing as the four “immediate neighbors” (they have disputed this point).

    I think a better process would be an EXCELLENT start. Something along the lines of, oh I don’t know, a general plan. Something that had been worked out over years with many opportunities for citizen input and careful consideration by all stake holders before being adopted by the council, and which would guide development. What about that idea?

  15. Rachel A.: I too am surprised by how compelling this debate has been (not just in this posting, but ever since mid-January when the Kapors revealed what they had been secretly planning for over a year). I often wonder what the ratio of lurkers to posters is on issues and stories like this. Only your webmaster knows for sure.

    You spotted it in one, I am a neighbor, and this project impacts me directly. Not sure where the pissing match is, but it’s not puddling up at my feet (oh, is it BRT?).

    For the record, I have no other personal, professional or political (or any other kind of) connection with the Kapors or any member of their team, but I do think Firefox is a better browser than IE.

    Thomas Lord: Wow, that was one of your better postings. Very introspective and refreshing.

    I think most of your response was to Rachel A., but I will just make some brief comments about 2707 from your posting. I too am not in the NOPE (not on planet earth) category on the Kapor project, I just believe that my back yard is not the place for it. Yes, that’s what I said, not in my back yard, not in any of our back yards. NIMBYism often refers to things in people’s back yards that they and everyone else benefit from, but they don’t want to have to be next to. Like power lines and nuclear waste dumps.

    I think I would benefit much more from someone who fell in love with the existing house and wanted to fix it up and live in it again, but the Kapors have a better idea: Tear it down and build a monster house. This is the future of the Berkeley hills, boys and girls. Everything is about to get supersized.

    I think Mr. Kapor is a swell guy, too, he and his team spent half the time in front of the ZAB selling that sizzle, because there was no steak (at least that’s what we thought at the time, now we’ve learned that the steak was rotten through and through). I just don’t think he’s been a very good neighbor so far. It’s in his interest to allow that lot to continue to be a public nuisance, an eyesore and a fire hazard. So that’s what it is. Other people have made different choices about how to steward their land for the brief time they own it.

    I used to think that his core group of “immediate neighbors”, were good neighbors, too, but I have been forced to question that recently, and THAT is what has caused the divisiveness in the neighborhood.

  16. Hi Rachel:

    Thanks for your insightful question. For my part, I have absolutely no stake in the outcome of this particular project. I am not, per se, a proponent of the current design. I was the one attempting to broaden the discussion in order to see if we (as a community) could establish any patterns in these recurrent development or redevelopment battles which support the thesis that erecting a large new house for example in place of an old ramshackle structure on a private lot as the Kapors propose to do or a sprawling religious sanctuary like Beth El or a new shopping market like BBW or a pseudo-high-rise (like the so-called Gaia building) etc. actually leads to the many detrimental impacts which opponents of these projects ceaselessly and predictably warn us about (often in an extremely shrill and belligerent manner).

    Almost every new project in Berkeley entails costly litigation, years-long delays, a tortuous approval process and bitter internecine feuding (note the hapless fate of the old Iceland structure inter alia). I wonder to what extent these obstructionist tactics are warranted and defensible? It may not be apparent to everyone, but someone is paying dearly for all of these complications and delays. Tax payers, our beleaguered and underfunded university system, religious communities, developers, entrepreneurs, merchants, home owners and builders all foot the bill for every EIR, law suit, hearing, appeal, reappeal etc. All of these social costs to our collective may be a worthwhile price to pay if we can demonstrate convincingly that the mostly familiar and repetitive objections of serial anti-developers are borne out after the fact. I am still waiting for some type of evidence…

    I do have a passionate stake in seeing Berkeley revitalized and regenerated. I think this community is stuck in an awful malaise and torpor which inhibits positive growth and change. As others have noted on this forum, the anti-development sentiment, for the most part, is a fundamentally protectionist, reactionary and conservative one – the polar opposite of what Berkeley supposedly embodies. I would like to see a more reasonable and rational process developed which would actively promote Berkeley’s renewal as our housing stock ages, our commercial and communal infrastructure decays and crumbles.

    A truly “progressive” community is one not only open to dynamic change, but actually actively pursues new opportunities for growth and development. Just as we in Berkeley can clearly perceive that many communities in the so-called “Bible Belt” who style themselves as moral guardians are anything but that, I would likewise suggest to you and anyone else reading this that Berkeley is fooling itself (and others) by assuming the mantle of being “progressive”. Many of us who have lived here for a long time know better and we refuse to be silenced or marginalized any longer.

  17. Rachel A.,

    My concern for this issue is the same I have in many recent civic debates: The demagogy starving Berkeley into a coma seems to be weakening. Wherever signs of awakening appear – the science labs retained, the sport center at the stadium now under construction or the Kapors fighting NIMBYism – me and my dog will be there.

  18. Rachel:

    To answer the most direct part of your question: I have pretty much no personal stake beyond that which I think is shared by all residents of Berkeley. I live in SW Berkeley. I’m fond of some aspects of the view of the hills. From biking trips in the past, I’m fond of the building that has been neglected and will likely be torn down — years past I actually fantasized about buying that particular property. In business, I’ve (very briefly – like “just a handshake” territory) met Mr. Kapor once and spent a long afternoon in a software shop he was running. My professional take-away from the meeting was they (that shop) were off on a loony path, technically, but were well meaning. I noted with bemusement the “too much money, too little direction” absurdity of that office and I noted with admiration and appreciation the noble effort and the evidently quite fair, erring towards overly generous treatment of the workers. For the record, I think a home along the lines proposed is kind of swank and well worth doing – though I also think it is entirely inappropriate for the site. For the record, my impression is that Mr. Kapor is a very nice guy although doesn’t always make the best choices about how to deal with his wealth. To the extent that I have a “dog in the fight” – I’m *pretty sure* that my motivation is simply (a) a general wish to see the quality of Berkeley politics improve; (b) a generalized concern about development plans in Berkeley (where I have lived off and on for 20 years, feeling the impacts of decisions in these matters).

    You might notice that in these Kapor-project threads and in the BRT threads I’m accused of a few things. Being a bore AND scoring some excellent points. Being some kind of hippie obstructionist AND being a relentless defender of car culture. That interests me. The City runs on such rhetoric, to a large extent, and yet it is all complete crap. Since I have already and apparently will continue to invest much of my life living around this place – the dysfunctional political climate seems worth poking at.

    I have enough respect for Mr. Kapor that I openly suggested here, back when these threads started, that he ought to *himself* ask ZAB (and later Council) to back off on the permits and extend the period of community consultation. He would have become an overnight hero and he would have been on the path of successful projects (like Berkeley Bowl West and Beth El). Spit in the rain, I guess. It’s his money. It’s his reputation. It’s he who as to sleep at night with his decisions here.

    Don’t mistake me, though, for someone attempting to adjust their halo of invincibility and righteousness. I do have a strong prejudice that in disputes like this, the wealthier and more swaggering party tends to be in the wrong. I’m not simple-minded in class warfare issues but neither am I neutral. If you’re looking for biases that will cloud my judgment, that might be the place to start.

  19. Surprising even myself, I have read all of these posts. And I find myself curious about the four of you–Cliff Magnes, Thomas Lord, Lifelongberkeleyan and s z underwood–who are posting a lot about it and I’m wondering what your dog is in this fight. (It seems Mr. Magnes might live near the lot-in-question.) Sometimes many intellectual arguments are made from an self-assumed “rational” position and yet there are real-life, personal connections to the issue– family, economic interest, got fired from a job at Lotus, etc. I don’t think that these connections necessarily undermine or gird an argument but I think the transparency is ultimately illuminating.

    (I’m thinking of the thread about the Elmwood where Mr. Knoble appropriately clarified that an impassioned poster had, in fact, a formal role in the Elmwood. It was important information for this reader.)

    I’m particularly curious since there seems to be animus between two of you on another thread. It might lead newly-informed reader to consider discounting opinion/ideas assuming that the whole exercise is a continuation of a pissing match started elsewhere.

    Curious Berkeleyans want to know: What’s your dog?

  20. Once again, somehow the fact that my previous comment was directed to s z underwood and lifelongberkeleyan got cut off (my fault, not Berkeleyside’s fault), but since Thomas Lord posted in between, I didn’t want there to be any confusion.

    Speaking of which, an excellent point, Mr. Lord, especially about the requirement for an EIR! How did I miss that one? Just goes to show that I am not in command of all the facts. I have tried to become as familiar as I can with Casa Kapor, but I am not as familiar with these other projects.

    So, s z underwood and lifelongberkeleyan, if you want to compare apples to apples, why not do an EIR? Why is everyone so afraid to get the facts out before this is built, instead of after it’s too late? I’m willing to bet that the EIR resolved many of the competing statements of the proponents and opponents of both Beth El and Berkeley Bowl West, and made both better projects, as well as helped to mend fences between neighbors.

    Two important issues to reply to now, maybe I underestimated the life left in this thread.

  21. (Sigh). OK, I’ll bite, but only because I have an abiding faith in logic and reason, even when it has been proven that this faith is unfounded.

    I stand by my statement that this thread is dead (but maybe it’s just so frayed that it will break at any moment). There’s no one here but us, we’ve driven everyone else away, their eyeballs having long ago rolled far back in their heads.

    Just to be clear, what you’re asking for is some kind of incontrovertible proof that those who raised concerns about Beth El and Berkeley Bowl West had legitimate concerns (i.e. a concern they raised about these projects that they raised prior to the projects being built came to pass after the project was built), in order to judge whether the opponents of Casa Kapor have raised legitimate concerns?

    Your rationale is that these are not false analogies, as I have suggested, but that the opposition to Beth El, Berkeley Bowl West and Casa Kapor are actually as similar to each other as one of the wars in the “middle east” (Iraq? Afghanistan? Palestine? Israel?) is/was to the war in Viet-Nam?

    Furthermore, if I can’t supply that incontrovertible proof regarding Beth El and Berkeley Bowl, it is reasonable to dismiss all the issues I have raised?

    Is that a fair restatement of your question?

    I’m not folding, I’m calling, but once again I’m enjoying deconstructing your postings, lifelongberkeleyan. I’ll wait for s z underwood’s reply before I post my next nugget on “Magnes Cliff.” It’s actually a fascinating area!

    (No doubt about it, I need to think twice about checking the box that says send me further replies on comments!)

  22. I think Beth El and Berkeley Bowl West make for fine comparisons.

    Both of those projects involved extensive and patient community outreach, a long and deliberative zoning process, EIRs, and quite substantial project plan changes as a result of those things.

    They are very good examples to bring up in this debate, especially if your point is that the Kapor’s project has been handled poorly.

  23. to sz underwood,

    Thank you for calling Cliff’s Bluff. The Kapor’s might consider that as a name for the project. You ask him to produce one single tiny piece of fallen sky and he folds.

    Attacking the test after failing it is common here. Ask the faction of our local educators who claim standardized testing is irrelevant.

    The truth and Berkeleyans like you shall set us free.

  24. s z underwood,

    Oy vey, again with Beth El! Analogy this, precedent that. Now we’re off to Berkeley Bowl West, Viet-Nam and the middle east. Next year in Jerusalem, but maybe not on Rose Street.

    I’m tempted to try to separate the sophistry and speciousness from the fatuousness in your posting (nothing personal, but your logic really eludes me), but I just can’t wade into that quicksand again. These are all false analogies! You’re connecting meaningless dots and data and coming up with GIGO.

    Using your reasoning, what the hell do we need the courts for? Let’s just do away with juries and triers of fact and base our decisions on previous cases that you say are connected, or illustrative, or somehow meaningful to the case at hand. Better yet, let’s just make our decisions based on probability and statistics.

    This conversation has gone off the rails, and I think this thread is dead, but I hope Berekeleyside will post the next development in this saga.

    Perhaps the one thing we can all agree on is what a valuable resource Berkeleyside is for all of Berkeley’s diverse communities, who might not otherwise have a source of balanced coverage, as well as a forum to discuss it. Kudos to Tracey Taylor, Lance Knobel & Frances Dinkelspiel. This is a pretty major undertaking, but I think you have more than met your mission statement so far.

  25. Cliff:

    Pardon the tardy reply to your exhaustive rebuttal (I have one of my own!), but I may not attach the same burning urgency to Casa Kapor as you appear to. Although you write well and seem to have a fine rhetorical knack, I think your last response relies more on obfuscation than marshalling any evidence to buttress the validity of your concerns. Of course, I understood very well that you reject out of hand any parallels or analogies to the Beth El project, probably because the outcome of that project reveals an “inconvenient truth” about your argument. I am not obligated to accept the parameters of this discussion which you dictate.

    I would respectfully suggest to you that you reconsider the fundamental concept of “precedence” both in our jurisprudence and in our body politic. When a legal decision cites precedence as dictating an outcome, the exact facts and issues between the new case and the legal precedent are never identical. In fact, they often differ markedly in various particulars and specifics (sometimes strikingly so), but there is a general parallel between the two cases which is of paramount significance in reaching a just and reasonable conclusion.

    When I evoked Beth El, I was looking for some type of local precedent which might help us better judge how plausible the predicted negative outcomes may be to the Kapor project. I argued then and still maintain that to my knowledge (please correct me if I err), there is no better parallel case to cite. Both of these projects are in the same neighborhood (within about ½ mile of each other) and the Beth El project is in the recent past. Both involved very contentious and disputed ZAB hearings and a City Council appeal. There were several private law suits filed (as there may be with the Kapor house) and there was intense public controversy and scrutiny about the merits of both projects. Even the modernist architectural styles of the two projects became a tangential, but visceral issue. I showed you earlier that many of the specific complaints and fears of the Beth El neighbors were similar to those now being voice in certain quarters about the direful negative impact on the quality and character of the neighborhood if the Rose St. project goes forward as currently envisioned.

    Let me give you another obvious analogy about precedence from our body politic as well. When the previous presidential administration proposed to install “democracy” by force in the Middle East, many in Berkeley immediately invoked the legacy of Vietnam in anticipating what a disastrous failure this occupation would prove. Now, according to strict Cliff Magnes logic, any analogy would prove specious. Vietnam was 40 years earlier; it’s in a totally different region of the world and occurred in a totally different geo-political climate (“The War on Communism”). Yet, it is now obvious to most that while there were significant differences between the two wars and occupations, the nature of the insurgency and so forth, the actual parallels to the Vietnam morass are actually remarkably telling.

    Now, let’s say for the sake of argument that a developer intended to erect on upper Rose St. a towering section 8 oriented housing project and Cliff Magnes cried foul about such a project being a potential disaster for the neighborhood. If I or others demanded that you furnish some credible evidence that low-income public housing projects slapped down in the midst of an affluent area often have a deleterious impact on the surrounding neighborhood, you could easily furnish reams of compelling evidence.

    The real reason you reject any analogy to Beth El is not that there is no meaningful parallel, but rather because there is (as far as I know) no evidence at all that Beth El created the manifold problems it was accused of precipitating. These charges were baseless, false and (frankly) libelous as well. Most likely, so are all of the complaints you peddle ceaselessly about Casa Kapor!

    Berkeley Bowl West is further afield, but it also was opposed by the usual suspects (most of whom did not reside in the area) as a doomsday project for the whole neighborhood. BBW required a major zoning variance and clearly went against the obvious intent of the West Berkeley Plan. We were told that BBW would harm neighboring small businesses and craftsman, that it would create gridlock and a parking nightmare in the area. Have any of these predictions come true to your knowledge? Can someone else who reads this blog and who lives in the vicinity of BBW please comment on how life has changed since the store opened (for better or worse)?

    You claim to be a long time Berkeley resident. Doubtless, over the years you have followed many controversial building projects, some of which came to fruition in the end despite bitter opposition. All I am asking is for a single, credible example that the anticipated problems from a new construction actually materialized. Is this a fundamentally unfair or unreasonable request? I contend that you essentially ridicule this whole line of argument as “off topic” because you can’t actually produce any credible evidence from past building controversies to buttress your current claims.

    No doubt, if you choose, you will have the last word here on this point. I am checking out of this discussion for the time being. When all is said and done, maybe we can compare notes again down the road and see which perspective had more truth and merit? Until then, I wish you all the best.

  26. lifelongberkeleyan: Thank you for your comments, I look forward to future postings.

    Thomas Lord:

    Agreed, the City of Berkeley rebutted the appellants argument by pointing out that they had been selectively enforcing this for years. The city attorney also added his own testimony that enforcement had not only been selective but capricious. There may be added liability, there may even be an argument that a similar project was not required to have story poles, but there is evidence in the record that similar projects (without “view corridors”) were required to have story poles. An EIR resolves all those issues by applying a rigorous and unbiased state standard to all claims and arguments.

    As for CYA, I think this is one of the most pernicious problems exposed by this process. I believe that the city’s process is designed for CYA. In this case, the developers (the Kapors and their A Team) worked with the city and only the 3 neighbors that abutted the property, and 1 neighbor across the street–for over a year, without informing anyone else in the neighborhood.

    The reason that I have characterized these neighbors as keeping this information secret is that they are part of a larger neighborhood group which owns two lots on Shasta which are being held in trust to PREVENT development. One of them is the head of this foundation, and I believe that individual had a responsibility to at least inform the rest of us that this massive development was being planned.

    But they hide behind the excuse that this project only impacts them, and their neighbors really aren’t part of the “immediate neighborhood.” CYA

    Planning and Zoning staff are required to prepare a staff report and a set of findings, but in reality, they are provided with a great deal of assistance from the applicants and developers. They are still supposed to double check all the information that is provided, so that they aren’t left with egg on their face when the applicants don’t find what they aren’t looking for (like the historical record of the house). However, if there are any errors, the public can bring those to the attention of the ZAB. CYA

    Two weeks before the entire plan (full of errors and misrepresentations) was to go before the ZAB, and after the applicants got a year head start to lobby the ZAB and the council, signs were posted, letters went out to neighbors within 300 feet (a standard lot is 50 feet wide, in this neighborhood, many lots are much wider), and the rest of the neighborhood learned about this project. Even though the opponents have raised some issues about irregularities (like posting the plans inside a private garage posted “No Trespassing”), this satisfies the letter, if not the spirit, of the law. CYA

    In two weeks, everyone was supposed to get up to speed on a project that had been planned for a year, to see what kind of impact it would have on them, and on their neighbors–and many were horrified. Anyone interested in seeing everything submitted by the developers had to go down to the Planning Department to review them, and any concerns had to be submitted in writing to the ZAB prior to the meeting Many protests were submitted at the deadline. Some of those letters pointed out the errors that the city has now admitted, but the ZAB didn’t read those letters and simply rubber stamped the erroneous findings and approved the project (after gushing over the applicants). CYA

    The appeal process allows anyone who objects to the process to request a redress of their grievances from the full city council (also a first amendment right, coincidentally enough), but once the opposition became clear, the lobbying efforts on council members was redoubled. The council member’s nominees are appointed to the ZAB, and the ZAB is a springboard for future council members. Even though city staff and the ZAB had rubber stamped numerous errors, the council voted 6-2 to support the ZAB’s decision (to their credit, it was less of a rubber stamp than than the ZAB). CYA

    This whole process has been CYA! The Kapors promised the city and the immediate neighbors that they would be welcomed as liberators (well, as good neighbors), for tearing down that old wreck of a house that has been the source of so many problems for the neighbors. Actually, when you think about it, they’ve done a pretty good job of preserving it as a problem property, which their mega-structure solves. The reaction of the rest of the neighbors hasn’t quite turned out the way the developers anticipated, but the wheels had already been greased, so the whole process is now getting the City of Berkeley’s full concierge service.

    Regarding your realpolitk considerations, the real missed opportunity was to send it back to staff and the ZAB to correct all the errors, then to hold a hearing. At least they would not have left themselves open to the charge that they made their decision based on erroneous information, and even though your analysis makes sense from a cost/benefit-least-costly-financially- and-politically-choice, they blew their chance for CYA, so maybe it’s time for some new letters, like EIR.

    This whole process has been fast tracked, but the developers are trying to take that curve over Rose too fast! We begged him to go slow, but whether he heard, we’ll never know. Look out! Look out! Look out! Look out! I felt so helpless, what could I do? Remembering all the things we’d been through. I’ll never forget him, the leader of the PAC.

    Well – the last thing I remember, Doc, I started to swerve, and then I saw the house go into the curve. I know I’ll never forget that horrible sight, I guess I found out for myself that everyone was right: You won’t come back Rose Street Curve!

  27. Berkeleyside,

    Thanks for the opportunity to participate in this forum. I’ll post again when developments warrant.

  28. PS: My last post (pretty obviously) should have been addressed to s z underwood.

    Thomas Lord: Two interesting postings and observations, I started a reply, but your CYA observation took me into some strange territory. Will post shortly.

    lifelongberkeleyan: Disagree, disagree, disagree, agree, disagree. We shall see.

  29. Thanks for the sincere compliment, but artful dodging? Wasn’t my primary point that you couldn’t compare Beth El to Casa Kapor? If I didn’t make that clear, then I don’t deserve any compliments for a “rhetorical masterpiece.”

    Did I call the neighbors of Beth El “victims?” I don’t think so. I use quotation marks to indicate that I am quoting someone, usually the person I am responding to, sometimes myself, not as a rhetorical flourish, but maybe that’s just a Strunk and White issue.

    In any case, for all of your questions asking for further clarification requiring comparison between the two projects, let me refer you to my first paragraph. You continue to point out the dissimilarities, then ask me to reconcile the commonalities, and it just can’t be done. At least I can’t do it.

    As for “inadvertently underscoring a critical fallacy in [my] own reasoning” let me address an issue I thought I had already gently addressed in an earlier posting in this thread. I did not “’imply’” in side stepping the question about Beth El, only the immediate neighbors are really in a position to know or comment accurately upon its impact,” you inferred that. I stated “only the neighbors who fought that battle can [determine how] “many of those dire predictions came true”. Part of this controversy is what defines people who have a legitimate right to have an opinion on this project. The proponents define their neighborhood so narrowly that it is the “immediate neighbors” i.e. the ones they share property lines with, or would if there were no street between them, but not the neighbors of those neighbors. The opponents have a broader idea of what makes a neighborhood.

    If there is, as you posit, a very large “fall out zone” around Beth El, I think I am in the outermost ring of that zone, so whether the dire predictions of the opponents or the promises of the proponents came to pass, I am not impacted directly enough to know. Once again, this is not the Beth El project, it is a completely different project. If there is a “fall out zone” around the proposed Kapor project, I think I am in the innermost ring.

    You are correct that four of the six “confronting and abutting neighbors” approve of the project, two of them are so supportive that they presented the Kapors case at council. These were the neighbors who were taken into the Kapors confidence and cone of silence early on in the process, and who breathed not a word of it to their neighbors until two weeks before the ZAB hearing. As I … implied in an earlier posting, who knows what the Kapors promised in return for their support? Several council members did comment on how unusual it was to see such enthusiastic support for a project like this.

    As to your question of the greater good (greater social utility and importance?), I would say that compliance with zoning trumps any eelymosynary efforts by anyone, not just the Kapors. Should we check the Forbes 500 list in order to make land use decisions? What are we, selling indulgences here? If so, someone needs to nail up some theses to the doors of city hall.

    Is that the city you want to live in? A city where zoning laws and due process are waived for those who give generously to their own foundations? (Or, perhaps more to the point, contribute generously to political campaigns—because that’s the system we already have). We’re all equal under the law, but some of us are more equal than others? I mean, I know as a practical matter that is the way of things, but I hardly think we need to further encourage this kind of thinking.

    On the other hand, are you saying that in opposing this project I am forcing “low income or under-represented students who against very difficult odds succeed in qualifying for a first rate university education be … to work two or three side jobs or longer and longer hours to support themselves, so that [I and my] ilk might not suffer some occasional extra traffic near his house, parking aggravation, noise of clinking wine glasses, mirthful laughter carried to his porch on a foggy night or whatever other horrors charitable dinners or lunches might subject you to?” (The quotation marks tell you that this is a rhetorical question.)

    Man, what a bastard I must be to oppose this project! Unfortunately, the straw man who would object to such nobility of purpose for such trivial impacts doesn’t exist, (though I cannot speak for my ilk, who, for all we know, also torture kittens at the mere mention of mirthful laughter).

    I’m not objecting to “fund raising dinners” either. Straw food for straw guests. I brought this issue up in the context of how much of this structure would be used for business purposes, potentially violating the R1-H zoning requirements. The size, the design, the parking–all have raised questions about whether the Kapors will be running their foundation out of this “house.” Mr. Kapor’s public statement, as quoted in the February 23 article in the Daily Californian didn’t reassure anyone. He said “that a substantial part of the home would be used to raise funds for community and campus groups, including scholarship programs for low-income and under-represented students enrolled at UC Berkeley.”

    That’s an odd way to put this idea that he would be having fund raising dinners at his houe, but who knows? Maybe they send out engraved invitations inviting people to dinner “in a substantial part of [their] home.” I guess the strategy here is to ridicule this idea by reducing it to it’s most absurd exposition, rather than looking at how hard the proponents are working to even deny there is a third floor to install offices in.

    Lastly, consider this: For what the Kapors already have into this project (excluding any costs from TODAY forward), they could have already bought a beautiful, huge, ready made house in the Berkeley hills on a gigantic lot, with three bridge views and lovely gardens and, if not a ten car garage, room to expand to the 10,000 (green) square feet they just have to have.

    Even if they couldn’t find the perfect house to expand, I’m sure there have been better properties for this development on the market in the last few years (and better value). Their furniture would already be moved by now, their huge art collection already hanging on the walls, and they could be pondering what noble purpose to devote all the money they saved by not pitting neighbor against neighbor on Rose St. How much is that? What do you suppose, 8 figures? How many more deserving people could that have helped?

    Come on. Is this really where you want to take this conversation?

  30. Mr. Magnes,

    Actual (not self imagined) environmental heros and protectors of our historic assets would by sickened by the tawdry use of their legacy in NIMBY squabbles like this one.

    That this isn’t obvious to some illustrates how common it’s become in Berkeley to trivialize progressive principals by bending them to personal agendas.

    Unfortunately the victim of all this crying wolf with be CEQA itself. As i said “…the Kapor project supplies the perfect combination of facts and funding for litigation exposing this abuse”. The neighbors are handing the courts an invitation to narrow the statute.

  31. lifelongberkeleyan,

    OK, I see where you’re going. If the OPPONENTS are perjuring themselves, manufacturing evidence, committing fraud (illegal actions which apply to everyone), then that would be abuse, and if it was proved in court, there would be a heavy penalty, whether it was about CEQA or any other state statute.

    Gotcha.

    So, using the same logic, I could say that if the PROPONENTS are perjuring themselves, manufacturing evidence, committing fraud (illegal actions which apply to everyone), then that would be abuse, and if it was proved in court, there would be a heavy penalty, whether it was about CEQA or any other state statute.

    By not mentioning that the same standard applies to BOTH sides, but singling out one side and suggesting that there are heavy penalties for illegal actions which it is not clear EITHER side has yet taken, you are able to justify your comment: “But it is still true that the proven abuse of CEQA (or any other state statute) incurs a heavy penalty.”

    Man. That argument is lame on so many levels. I keep telling you, bring your A game to this discussion and we’ll get more light and less heat.

    Moving on to something nice I can say about your posting on 5/1 at 9:10 PM, I think this is at least the third time we have inadvertently and unintentionally agreed on some comment you’ve made, though for completely different reasons.

    The Kapor project does supply the perfect combination of facts and funding for litigation exposing abuse. While I’m not so much hoping that it goes to court, I think the city and the Kapors have foreclosed all other options, and have handed the appellants the right to an EIR on a silver platter. Just as it was a foregone conclusion that the council would rubber stamp it, a court challenge may be another foregone conclusion.

    If you think about it, whether you’re for or against this project, an EIR would really be a public service, since it would definitively answer and settle all the questions that people are arguing over. It would certainly address s z underwood’s concerns, and it would give everyone the satisfaction of unbiased report about all the “hysteria,” no matter which side you were on. It’s already clear that the city, the ZAB and the council screwed this up, so why not do an EIR and get the facts? It’s not like it will cost tax payers anything, and it’s not going to be a financial burden on the Kapors. What’s the argument against doing an EIR? We don’t want to know the facts?

    “Amateur historians and merit badge naturalists?” Nattering nabobs of negativism it’s not, but you’re probably no Spiro Agnew (or William Safire) and I mean that as a compliment. It’s kind of catchy — I like it. It’s got the dismissive disdain of “eco-freaks, enviro-maniacs, little old ladies in tennis shoes, even almond cookie revolutionaries,” but the heroic reference to the kinds of historians and naturalists who saved the bay and redwoods, and removed that horrible smog layer that some of us still remember. “Amateur historians and merit badge conservationists” may have preserved some of the things we treasure most about this incredible neighborhood, city and bay area.

    Furthermore, and in defense of amateur historians everywhere, if the Kapors had hired even an amateur historian (like the one who discovered the true history of the house:-), then they wouldn’t have misrepresented the facts to the city, which would not have misrepresented those facts to the ZAB, which would not have misrepresented those facts to the council, which is one of the reasons the appellants have a right to an EIR.

    As for me, I will wear the amateur historian and naturalist “merit badges” with pride (not that I care much for the association with the boy scouts). I wonder if there is a CEQA “merit badge?” I’ll have to look into that.

  32. Mr. Magnes:
    Thank you for the rhetorical masterpiece (I mean that sincerely) and the logic lesson. Still, with all of your rhetorical finesse, I would characterize your response as “artful dodging.”

    You stated, “I can’t answer the legitimate part of the question you pose, which is how many of those dire predictions came true, only the neighbors who fought that battle can. After the project was approved, they had to choose to either live with it or move.” This being Berkeley, where angry and aggrieved neighbors rarely go gently into that good night, it beggars belief that any supposed “victims” of Beth El would quietly be forced out of their homes or continue to suffer grave aggravation without registering their outrage in a public forum. The Berkeley Daily Planet, for example, was an important and broadly sympathetic forum to the critics of this sanctuary for many years. Surely, one would surmise, its pages remained open for the parting shots of those neighbors forced to move out due to the obnoxious nuisance posed by the newly built Temple. I do not recall, nor could I find anything of this sort in the public record. Let us know if you can.

    But your response also inadvertently underscores a critical fallacy in your own reasoning. Unlike the building the Kapors propose to construct, Congregation Beth El serves about 500 households, holds almost daily functions of one kind or another (one of which regularly attracts a couple of hundred indigent and homeless people to the area (http://www.bethelberkeley.org/homelessmeal.html) – how does that compare with the “nuisance” of well-heeled fundraising events? — is a much larger building, has many more parking spaces and, all in all, must have a far greater residual impact than the Kapor project. If, as you imply in side stepping the question about Beth El, only the immediate neighbors are really in a position to know or comment accurately upon its impact, it seems that you are admitting there is not a very large “fall out zone” even from a project the size of Beth El. According to what I have read, the immediate neighbors of Mr. Kapor’s property are either strongly supportive of his proposal or have not raised any strong objections (or their objections have been accommodated).

    And since you brought up again with alarm the fact that the Kapor’s envision using their new home in part as a fundraising venue, I feel compelled to ask you in the abstract what is of greater social utility and importance: The very remote possibility that these occasional fundraisers would somehow diminish the quality of life for Cliff Magnes who supposedly lives an uncertain distance away from this residence or raising money for bright and promising underprivileged students to facilitate their college admission and success? I don’t know if you have any direct experience in organizing charitable fundraising events, but securing an appropriate venue often eats substantially into the bottom line of the fundraiser.

    This is not an idle question in this case. Every dollar that goes to renting a space at the Claremont is one less dollar going to a deserving student. Should low income or under-represented students who against very difficult odds succeed in qualifying for a first rate university education be forced to work two or three side jobs or longer and longer hours to support themselves, so that Cliff Magnes and his ilk might not suffer some occasional extra traffic near his house, parking aggravation, noise of clinking wine glasses, mirthful laughter carried to his porch on a foggy night or whatever other horrors charitable dinners or lunches might subject you to?

    http://www.mkf.org/collegeaccess/index.html

  33. Regarding all of the legal arm-chairing above, a realpolitik consideration seems to have been missed:

    Many of us seem to agree that had the City reversed the approval, there is a good chance that the City would wind up in court defending against the Kapor’s.

    Conversely, with the action Council took, there is at best a lesser chance it will wind up in court vs. the appellants, not least because they might have better recourses.

    The facts of matter so far support a cynical hypothesis that the appeal failed politically because its rejection presented the lesser risk to elected officials.

  34. Cliff Magnes,

    On the story poles issue:

    You reading of the ordinance is plainly correct and, indeed, only a lawyer could argue to read it otherwise … but for one problem.

    In the staff rebuttal to appellant arguments I understood staff to be reporting that “in the past” (recent years, I suppose?) they had *not* been enforcing the district H story pole requirement. That makes it a muddier issue for if staff lacks any good excuse for not enforcing it in the past, and try to enforce it now, the City might up its liabilities to the Kapors on equal protection grounds and up its liabilities to other district H residents regarding past projects.

    I speculate that, at some level, the current claim by the City that story poles aren’t necessary is pure CYA.

  35. No, these are not new penalties. Abusing the “citizen lawsuit” feature of CEQA, through perjury, manufacturing evidence, fraudulent claims in sworn proceedings leads to serious consequences. If you’re wondering how often such things occur, Google: “citizen suits” for personal gain.

  36. lifelongberkeleyan:

    “But it is still true that the proven abuse of CEQA (or any other state statute) incurs a heavy penalty.”

    Uh, not so fast. Before we move on so quickly to your opinion, let’s cover this non-factual statement. Exactly how does one abuse CEQA in such a way that would incur a heavy penalty? Are you back on “punishable by large judgments for attorneys fees,” or is this some new heavy penalty?

  37. s.z. underwood (& JNG):

    I don’t know the answer to your specific question about Beth El, but I think I can easily refute your assertion that this has any bearing on “the various claims (like [mine]) now being proffered which prophesy catastrophic consequences to the whole character and quality of life if the Kapor house is built as currently approved.”

    First, let’s keep in mind that no building permit has been issued for the Kapor “house,” so there are still a lot of questions about resolving the land use approval with the “house” that is being proposed. The model (which has yet to make an appearance at any of the public meetings) and the plans (which contradict themselves, as well as the zoning approval) will have to be “resolved” at the building permit stage. With all this fuss, that is probably going to be closely scrutinized, so I think there are still a lot of unresolved questions about what the final structure would look like, if it ever got built.

    Second, as you yourself point out, the Beth El project was very different from this project, a false analogy by your own admission – but I don’t reject your point out of hand simply on that basis. I am presuming that every project raises different issues. I am just guessing that sometimes the fears of those who object prove to be well founded, and sometimes they don’t. I doubt that the scent of fabric softeners will be a big issue in this project, but it was a big issue for the people opposing the Laundromat that came before the ZAB the same day this one did. I am also guessing that just going through the city process, flawed as it is, helps to resolve at least some issues prior to construction.

    Third, I think there is (at least one) fundamental logical flaw in your assertion that we can deductively extrapolate from other controversial projects to learn anything meaningful about the merits, or lack thereof, of those supporting or opposing this particular project. Dicto Simpliciter.

    When there is a proposal that will make a substantial change in the status quo, especially when the status quo is presumed to be quite desirable, there are often objections. Those objections (as well as the arguments in support) will fall somewhere on a range from, say, highly plausible to absurd. Some Cassandras will be correct, others completely wrong. The same will be true of Pollyanas. Just because a lot of people complain about big projects doesn’t mean all those complaints can be dismissed because not everything turned out as bad (or as well) as people feared (or hoped). Cum hoc, ergo propter hoc.

    Having rejected the premise of your question, I think what is left of your point is a good one, so long as you are comparing apples to apples. I can’t answer the legitimate part of the question you pose, which is how many of those dire predictions came true, only the neighbors who fought that battle can. After the project was approved, they had to choose to either live with it or move (allowing space for new residents who are not “contaminated with the past”).

    Having referenced JNG’s comment, and to avoid two separate postings, let me quickly cover the absurd and fallacious oversimplification being advanced. Here is the full context: The use of the “house” is a legitimate zoning issue. If the Kapors want to provide space for their foundation in that structure, that would be a non-permitted use, a zoning violation.

    Yet “[Mitchell] Kapor said in an e-mail that a substantial part of the home would be used to raise funds for community and campus groups, including scholarship programs for low-income and under-represented students enrolled at UC Berkeley” in the February 23 article in the Daily Californian.

    Would that be a substantial part of the 6,478 square foot “house” or the 9,872 square foot building? Either way, Mr. Kapor chose rather odd phrasing for the use of his home for dinner parties to raise funds, but perhaps that’s why his highly paid publicity team are advising him not to speak publicly anymore. It does, however, allow the proponents to ridicule the question of the ultimate use of this structure as “well, they may have too many fundraising parties.” Now that is sillygism.

    One important issue that the opponents have raised is how much of the building will be used for business purposes. Part of that issue is the third floor, which city staff maintains, with a straight face, mind you, that it doesn’t count as a floor because it’s not enclosed. Yet.

  38. Mr. Magnes,

    I very much appreciate your personal comments. But it is still true that the proven abuse of CEQA (or any other state statute) incurs a heavy penalty.

    Moving on, S.Z. Underwood (above) strikes at the heart of the matter. My characterization of the circumstances the post describes and their potential consequences follows:

    NIMBYism, masquerading as historic preservation and concern for the environment is rampant in Berkeley. Cases of a more pernicious strain, NIYBYEism (Not In Your Backyard, Either), are on the rise.

    The Kapor project supplies the perfect combination of facts and funding for litigation exposing this abuse. If I was a developer in Berkeley (either a professional or an individual building their own home) I would be praying this case goes to court. There is a great chance the test for applying CEQA will be made more specific and therefore certainly more difficult. Our amateur historians and merit badge naturalists will have to find another pastime.

  39. I am a new neighbor to Beth El (right down the street) so I guess my observations are apt for one reason: I’m not contaminated by the past. The temple was already there and I don’t have a reference to gauge the neighborhood before. But I can say, to my perception anyway, they are a very good neighbor and I don’t think they are at all a blight, burden or hassle. As this person rightfully points out, the typical naysayers rely on hyperbole, hysteria and every manner of theoretical nonsense to contest these projects. There is nothing that is too far fetched in their imagination to present as an argument – the most recent for the Kapors, of course was “well, they may have too many fundraising parties” – how silly can you get.

  40. Mr. Magnes:

    If I may pose a broader question here? Berkeley has endured in recent years a regular litany of law suits and other forms of obstructionist tactics against new construction projects (both residential and commercial). Among many examples one could cite, the years-long divisive battle to relocate Temple Beth El to its present site which is in the same general neighborhood as the current controversy. Temple Beth El was not a private residence, but many similar objections were raised to building a large religious sanctuary on this property, both by some neighbors and others in the general vicinity and beyond.

    Now in place for several years, could you corroborate after the fact that the various concerns and objections of the neighbors and other detractors of the Beth El project have been borne out? Has the quality of life in the immediate area declined? Is street parking often impossible? Are there frequent noise or other nuisance complaints? Does trash pile up? Have the privacy rights of the neighbors suffered? Has Spruce or Oxford St. near the Temple been transformed into a congested artery?

    In short, is there any credible evidence whatsoever that the fear mongering (some of which bordered on hysteria) over the construction of Temple Beth El at its present location was valid? This is an important point to establish now as we try to ascertain the plausibility of the various claims (like yours) now being proffered which prophesy catastrophic consequences to the whole character and quality of life if the Kapor house is built as currently approved.

    Samples from the Berkeley Daily Planet

    BETH EL

    Editors, Daily Planet:
    I am a property owner who has lived at 1237 Oxford Street since 1965, right next door to the monstrous complex that Temple Beth El is currently constructing in what used to be a very nice neighborhood. The activities that will take place in this huge complex are threatening to have a very negative impact on the lives of those of us who live here unless Beth El will live up to the legally binding agreements it has made with LOCCNA, the neighborhood association.

    […] Of the three famous Victorians, the oldest—the Napoleon Bonaparte Byrne House (1868)—is gone and replaced by the neighborhood-incompatible Temple Beth El, whose rear elevation on Spruce St. resembles a supermarket loading dock. The Byrne grounds, designated along with the house, have been largely stripped bare and covered with asphalt.

    […] Not only do I pay taxes to the city, but I have invested a substantial amount of energy and money in my property to help improve both the appearance and the morale of the neighborhood. I expect the city to provide essential services and protect my interests. The Beth El project will have major negative impacts on my neighborhood. An area that already has parking issues without the introduction of the new CBE buildings.

    […] The hostility of the opposition to Congregation Beth El’s three-block move into a new building on the long-abandoned property at 1301 Oxford St. is extreme, even by Berkeley standards. It is a pitched battle in which neighbors don’t want fellow Berkeley citizens to park on public streets in accordance with existing parking regulations. It is a campaign complete with a proliferation of signs on Oxford and Spruce Street lawns. Obviously those signs are meant to foment public opinion against our 60-year-old North Berkeley institution, but they have an additional, vulnerable audience: The children and youth of Congregation Beth El.

    […] Beth El has gone to extreme lengths to satisfy conflicting neighborhood demands. For example, when one neighbor demanded that we remove some trees whose roots were damaging his foundation and threatened to sue, while another neighbor demanded we keep the trees as a screen, while other neighbors insisted we not remove any trees, Beth El absorbed the tens of thousands of dollars it cost to replace the trees with new ones that everyone finally accepted.

    […] We have also arranged for alternate parking sites and have agreed to insert draconian parking messages in our event invitations. We have agreed to spend hours before, during and after our events counting empty parking spaces in the neighborhood to attempt to measure our parking impact and ensure that we do not use more than 50 percent of the spaces left unused by our neighbors and others. This means that our members might be forced to park blocks away while parking spaces near our site remain vacant throughout the event.

    etc.

  41. Hi Cliff – don’t worry about it, I don’t take any offense at your comments, you’ve been very civil to date in my opinion – we all bring our perspectives and biases to our public voices here and none of us are immune. I was only pointing out that have my own experiences and my attitude is not “make everyone pay like I did” but rather “geez don’ t put anyone else through that” – if you’ve gone through it before the stakes are somewhat higher and I think you appreciate more the stress and cost associated with what some people think are well intentioned actions. It looks like you are a good and responsible neighbor which is always a good thing.

  42. PS to lifelongberkelyan & JNG: Just wanted to point out that my original reply that generated your last replies was to lifelongberkeleyan’s assertion that “false CEQA [claims are] punishable by large judgments for attorneys fees.” This is still not true, though one’s own attorney’s fees can obviously be high.

    Also wanted to thank you both for your measured responses, and will try to dial back my own snarkiness. I see that JNG is an attorney, and it sounds like a good one, so my comment about being chosen to defend the Kapors was more personal than I want my comments to be. I believe lifelongberkeleyan to be what she claims, and has strong feelings to which she is entitled.

    It is difficult sometimes to argue the issues without making unintended (or intended) ad hominem comments, but please don’t confuse my lack of respect for ideas or assertions that I have attacked for any lack of personal respect for your right to propound your opinions.

    I will endeavor to stick to the issues and the facts, and will assume that everyone posting on this issue is doing so because they believe in their position – and are posting in good faith – until proven otherwise (I’m talking to you “Clif Magnes”–and maybe a few others).

  43. JNG and lifelongberkelyan,

    Excellent research, excellent posts on the same issue. My esteem for both of you is somewhat restored. Maybe you guys are bringing your A game.

    Just keep in mind that this was the APPELLATE decision that allowed the parties who would ordinarily be called the losers to recoup some of their expenses (because the project was approved anyway once the city was forced by the lawsuit to provide a remedy for their grievance). The tragedy is that it took a lawsuit to get the city (of Berkeley!) to fulfill their duty to due process.

    Also, the plaintiffs in that case were arguing one of the weakest of the appellants arguments, since the city process is DESIGNED to create these kinds of problems. The Kapors chose to exclude anyone except their immediate neighbors from the discussion, so when it became public, neighbors had a strong reaction. Keep in mind that most people got TWO WEEKS NOTICE that there would be a hearing on this project.

    There are other statutes and case law on CEQA as well which apply to this situation, but I doubt the opponents would go ahead unless they were pretty sure they would win. They have some pretty strong arguments. The City is sure going to a lot of trouble to make it easy, since their decisions have been based on factually incorrect information, which was acknowledged, but not corrected, at the council meeting.

    In my mind, the city council is forcing a lawsuit in the same way that the Kapors forced an appeal. They could have taken some small additional amount of time to send it back to staff and the ZAB to correct all the errors, instead of giving the appellants all that ammunition, but keep in mind that this project is no ordinary project.

    In more ways than one.

  44. JNG:

    Man, pretty slim pickins today. Maybe this is a case of those who are talking don’t know, and those that know aren’t talking. Maybe everyone is preparing for a lawsuit, leaving the rest of us to opine on things we know not of. Odd bodkins indeed.

    OK, so you disagree with Ms. Susan Brandt-Hawley’s suggestion that if there is “…any evidence before you, facts or reasonable assumptions based on facts or expert opinions, that there might be a significant environmental impact, you can’t exempt this from CEQA. Period.’”

    I reject your interpretation of CEQA, but why waste bandwidth on uninformed opinions when there is an entire website maintained by the State of California to offer guidance on CEQA.
    http://ceres.ca.gov/ceqa/ The link to the statute starts at 21000 at http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=prc&codebody=&hits=20

    Are you really an attorney? You’re going to run with “if there is no EIR required under explicit state guidelines, you can’t make an applicant go through it anyway by simply presenting “any evidence” of your choosing effectively?” That’s your defense? You’re not going to even address the categorical exemption requirements and justified and non-justified exceptions? I bet the appellants hope that the Kapors hire you as their attorney!

    On story poles, again, rather than arguing opinions of language that no one seems willing to quote, here is the exact language we’re discussing: “7. Story Poles: Required for new buildings and stories in the H district, or as determined by the project manager.” (III-Additional Requirements, A-Plans and Graphics, Zoning Project Submittal Requirements, effective April 27, 2009, City of Berkeley, Planning and Development, Land Use Planning.) Note that “Required for” is bolded.

    http://www.ci.berkeley.ca.us/uploadedFiles/Online_Service_Center/Level_3_-_General/I.ZoningProjectSubmittalRequirements_04-20-07.pdf

    You’re going with the code was “poorly written?” “Ambiguous?” Not “THE most reasonable interpretation … but broad enough to be read in the manner the Applicant is suggesting? Wow, you say that with about as much conviction as Mr. Cowen advising the council about whether they were required to require an EIR last Tuesday!

    While I think there is little hope that anyone who listened to Mr. Worthington’s remedial English lesson at council will understand what they are willfully trying not to see, let me see if I can illuminate this discussion by looking at it from two different aspects.

    First, let’s apply your argument to the actual requirement by substituting the actual words for your “A” and “B”. Here is YOUR argument for the interpretation of the following language: Story Poles: Required for new buildings and stories in the H district, or as determined by the project manager.”

    “It basically says the requirement for no story poles OR the requirement for story poles can be applied to any project; well, one permissible and reasonable interpretation is that the Applicant can pick either option. If he does not want to do the mandatory poles in an RH district (option A), he has the option of convincing the staff (option B) as the latter have discretion to require them or not. So here the parties agreed on choice B. ”

    Not the most reasonable interpretation? Man, that interpretation was water boarded! I’m not even going to bother with analogies for such a ludicrous statement.

    Now, let me try it another way. Again here is the language we’re trying to “interpret:” “Story Poles: Required for new buildings and stories in the H district, or as determined by the project manager.”

    It basically says that there is a requirement for X (story poles) in the H district, and an option for story poles (X), or no story poles (Y) in any other district. Your “two options, A & B” argument applies to all districts … except the H district WHERE THEY ARE ALWAYS REQUIRED.

    Disagree? OK, here’s the definitive test: If your argument is right, why mention the H district at all? Why single it out? Why not just say “Story Poles: Required for new buildings and stories as determined by the project manager.” I mean, that is YOUR argument in a nutshell, why not just put it that way in plain English?

    The requirement says what it means, and means what it says, and all this parsing is nonsense. This is not complicated, but the proponents want you to believe it is. To do so, they have to torture language, logic and common sense to get the interpretation they want. One more reason to bring this before a disinterested third party for resolution.

    If you were in the H district years ago, and you had a new building or were constructing an additional story, you were required to put up story poles. Staff had no discretion, but maybe you didn’t have the right connections, either. Maybe if you hired the same team the Kapors have hired, they could have found a way around that for you. I don’t know what circumstances prompted the EIR, but that too may have been required (and gotten around with the right team). Either way, it sounds like you did it rather than fight it, which is what Mr. Kapor may have to do.

    I do want to give you credit, however, for making one excellent observation, and a point that no one should ignore: That the Kapor neighbors who are supporting this project may indeed be considering that if they support this illegal project and process, they may benefit by using the precedent set here to ignore their own illegal projects, planned or completed, and to skirt the process, “when it comes time.”

    Since the Kapors needed those four households’ support so much, there’s no telling how many resources they could devote to assisting their supportive neighbors with their development plans.

    I hope someone posted in between my last post, I hate having two long posts in a row, but someone has to point out just how absurd these arguments are. If anyone wants to bring their A game to this discussion, I would welcome something a little more challenging. Don? Marcie? Rena? Mitch? Freada?

    No, I didn’t think so.

  45. Mr. Magnes

    see:

    http://ceres.ca.gov/ceqa/cases/2005/Bowman_v._City_of_Berkeley_(edit).htm

    part of paragraph 2 sec. 1.Background is excerpted here:

    “the Neighbors had been billed $96,592, and had paid $89,696.50, for legal services in the case. The Neighbors also submitted a memorandum of costs in the amount of $5,761.37. The City opposed the motion for fees and moved to tax costs. The court determined that the Neighbors were entitled to fees and costs incurred in connection with the due process issue litigated at the outset of the case, and awarded them $17,314.35 in fees and $979.00 in costs.”

    $96,592.50 – ($17,314.35 + $979.00) = $78,299.15

    I hope the $18,293.35 relief CEQA afforded these “Neighbors” made the other $78,299.15 easier to pay.

  46. Greetings Cliff

    I just read the case you mentioned, at least as it is reported here:
    http://ceres.ca.gov/ceqa/cases/2005/Bowman_v._City_of_Berkeley_(edit).htm

    The plaintiff in that case was not really determined to have “lost” the whole case – they were deemed to still qualify as the successful plaintiff b/c they had one on one small part of their action. So, the Court gave them a fraction of their fees:

    “….The motion was supported by invoices showing that the Neighbors had been billed $96,592, and had paid $89,696.50, for legal services in the case. The Neighbors also submitted a memorandum of costs in the amount of $5,761.37. The City opposed the motion for fees and moved to tax costs. The court determined that the Neighbors were entitled to fees and costs incurred in connection with the due process issue litigated at the outset of the case, and awarded them $17,314.35 in fees and $979.00 in costs. ”

    Thus the neighbors invested some $100k+ and got back less than $20k b/c of the partial victory. I suppose if you can live with that kind of a risk its ok to challenge, but at least for me those would not be acceptable odds. Note also that the attorney got paid upfront before there was any determination of whether there were ever going to be fees awarded – the neighbors ate the rest of the bill.

    At the same time, I am not aware of any statute that would award fees by the CITY against the folks appealing the decision – but I generally practice in federal, not state court, so I am not as familiar with the law here.

  47. lifelongberkeleyen: Wow, I have really lost respect for your postings (but not your right to make a fool … to post). I had to read your short posting a couple of times to make sure you had actually said something so fatuous.

    Not only are you absolutely, 100%, categorically and unequivocally WRONG, the truth is just the opposite! CEQA was DESIGNED to PROTECT public interest lawsuits! Attorney’s fees can be recovered even if the appellants LOSE!

    No, no, wait, it gets better!

    The appellate case that established this doctrine? Bowman v. City of Berkeley!

    The attorney defending Berkeley? Zach Cowan, the current city attorney!

    The attorney defending the plaintiffs in Bowman v City of Berkeley? Susan Brandt-Hawley! Yes, the same Susan Brandt-Hawley who presented the case for the appellants at the kangaroo council meeting! Look it up for yourself, here is the citation: 131 Cal. App. 4th 173 (2005)

    I don’t know whether you just make this up and post it thinking no one would know any better, or no one would challenge you, or no one would look it up, but you’ve got a computer right in front of you, it’s connected to the internet, so I don’t see any excuses for misrepresenting such a material fact.

    I’m really disappointed in you.

    Now let’s see what JNG has to say. At least he/she is representing themselves as an attorney, so maybe there’s something to chew on in that posting.

  48. I disagree entirely with Ms. Susan Brandt-Hawley’s suggestion that if there is “…any evidence before you, facts or reasonable assumptions based on facts or expert opinions, that there might be a significant environmental impact, you can’t exempt this from CEQA. Period.’” That is completely untrue – CEQA is completely regulated by state statute precisely to avoid the kind of gamesmanship she is proposing where one can try to force an EIR. Stated another way, if there is no EIR required under explicit state guidelines, you can’t make an applicant go through it anyway by simply presenting “any evidence” of your choosing effectively. That’s why we have state experts who provide the guidelines, not local agencies, and certainly not biased, self-interested “advocates” who want to invent their own standard as it suits their clients. If that’s her theory for thinking a court will impose an EIR, she is grossly mistaken.

    As for the story pole code; as I said before, it is poorly written. While it may *seem* clear, it is in fact ambiguous. It basically says A OR B can be applied to any project; well, one permissible and reasonable interpretation is that the Applicant can pick either option. If he does not want to do the mandatory poles in an RH district (option A), he has the option of convincing the staff (option B) as the latter have discretion to require them or not. So here the parties agreed on choice B.

    I’m not saying its THE most reasonable interpretation, but that’s not the standard. The standard is whether it is broad enough to be read in the manner the Applicant is suggesting. Here that is also true.

    Please note that years ago the staff would not interpret the code that way for my project – we had to put up story poles. Moreover, they made us do an EIR even though it did not meet CEQA requirements – it is extremely expensive and time consuming.

    But with all that, I’m not one for making the Kapors go through the same thing just b/c I got treated differently – and the Kapor neighbors should consider if some day they may want reciprocal treatment.

  49. Thankfully, pulling false CEQA alarms is punishable by large judgements for attorneys fees.

  50. There’s an interesting editorial in today’s Daily Planet by Becky O’Malley titled “Skipping EIR on 2707 Rose Might Cause Berkeley Council Future Problems”

    http://www.berkeleydailyplanet.com/issue/2010-04-30/article/35187?headline=What-s-the-News-Today-i-Or-i-Skipping-EIR-on-2707-Rose-Might-Cause-Berkeley-Council-Future-Problems

    Because Ms. O’Malley discusses the importance of sources of local news like Berkeleyside, I thought it was appropriate to post not just the link, but a few choice quotes about why the council made such a bad decision last Tuesday night:

    “The city staff and the council majority chose to blithely ignore the very clear requirements of the California Environmental Quality Act, a reckless decision that may well come back to haunt the city and us taxpayers.”

    “Here’s what [Susan Brandt-Hawley, the attorney who presented the case of the appellants] told the council: ‘If there is any evidence before you, facts or reasonable assumptions based on facts or expert opinions, that there might be a significant environmental impact, you can’t exempt this from CEQA. Period.'”

    “‘It’s really a legal question, and I don’t think Mr. Cowan [the City Attonney] disagrees with me, or Ms. Rickles. The lawyers here agree,’ she said. She went on, and no one contradicted her, that ‘it’s the fair argument’standard:…what you’re looking for here tonight is whether in fact there may be a significant environmental impact.’”

    “In other words, if anyone has made a fair argument that the project may violate some aspect of CEQA, an Environmental Impact Report (EIR) to examine the data is required. Not optional. As City Attorney Zach Cowan knows full well, which is why he waffled inconclusively when someone asked him about it on Tuesday.”

    “Only Councilmembers Arreguin and Worthington demonstrated a mature, intelligent grasp of the legal questions which were before the body. Their colleagues offered inexpert opinions on architecture, aesthetics, history and traffic, with very little data and a lot of speculation on matters clearly beyond their personal expertise.”

    “If disgruntled neighbors who could afford it decided to sue to require the city to enforce the California Environmental Quality Act requirements on the applicant, it could be a very costly boondoggle for the taxpayers.”

    None of these quotes have been taken out of context, nor have I included the entire article, which is well worth the read in its entirety.

    I believe this is just one of many examples of how the more you pay attention to the legitimate arguments that the opponents have raised, the harder they are to ignore or dismiss. Give up defending in public, yes, but the facts will not be ignored or dismissed by a disinterested third party and finder of fact.

  51. Related case to keep an eye on:

    Preservationists seek to block demolition of Apple CEO’s mansion
    By Jessica Bernstein-Wax
    Palo Alto Daily News
    Posted: 04/29/2010 10:15:42 PM PDT
    Updated: 04/29/2010 10:15:43 PM PDT

    Apple CEO Steve Jobs’ years-long struggle to knock down his crumbling Woodside mansion hit a new roadblock Thursday when a preservation group appealed a March court decision to let the town issue him a demolition permit.

    In March, San Mateo County Superior Court Judge Marie Weiner upheld the Woodside Town Council’s 2009 decision allowing Jobs to demolish his enormous 14-bedroom Spanish Colonial Revival mansion known as the Jackling House, which he has long sought to replace with a smaller home.

    Jobs got permits from the town to raze the 17,250-square-foot building in 2004, but preservationists formed a group called Uphold Our Heritage and fought the decision in court, contending the initial environmental report did not demonstrate that preserving the house would cost more than replacing it. On Thursday, Uphold Our Heritage appealed Weiner’s ruling just days before a May deadline, said Doug Carstens, the group’s attorney.

    “We respectfully disagree with the court’s decision, and we have all along,” Carstens said by phone.

    http://www.insidebayarea.com/oaklandtribune/localnews/ci_14988958?source=rss

  52. lifelongberkeleyan: All I’m saying is it’s not over until it’s over. Our administrative and elective bodies have approved this project based on false information in the staff report. Isn’t the ZAB supposed to catch that kind of thing, not just rubber stamp the errors? Is there any question now that this is exactly what happened? I wonder if Ms. Wengraf’s appointee to the ZAB still stands behind his statement that nothing would be learned if a 30 day continuance had been granted, when it might have resolved these issues with less enmity?

    JNG: I think you’re saying essentially the same thing, but your first point seems right on. We’ll see if they put their money behind their convictions, or just bow to the inexorable steam roller of the Kapor machine. As to Kriss Worthington’s understanding of the code, I don’t think you need a law degree to understand the code. A basic understanding of English is sufficient, which was his whole point.

    If you’re an attorney, I’d love to hear your argument for parsing this language in the ZONING PROJECT SUBMITTAL REQUIREMENTS Effective April 27, 2009 “7. Story Poles –Required for new buildings and stories in the “H” District, or as determined necessary by the project planner.” Directly quoted from the city of Berkeley website, if you want to check. http://www.ci.berkeley.ca.us/uploadedFiles/Online_Service_Center/Level_3_-_General/I.ZoningProjectSubmittalRequirements_04-20-07.pdf The court of public opinion is ready for your argument, sir.

    I think “these guys” have more to go on than the property being within the CGS “hazard” zone, but don’t worry about the city spending money on the lawsuit, the Kapors will pay for that. Even the cost of the project so far has been underwritten by the Kapors and the Logan/Wongs, who have assisted with the findings, the reports, and the rebuttals. None of our tax dollars are going to be wasted on this.

    Thomas Lord: There are time limits for the next step in the process, so we will know soon which way this is going to go.

  53. Hey James,

    I didn’t think you meant “pro-life or anti-gay” … but I didn’t think you meant “one-track mind that will reflexively oppose any change whatsoever out of blinding irrational fear and exaggerate the dire consequences to Armageddon-like levels …that it is destroying our local government along the way …” so thanks for clarifying that. You are aware that there are numerous other projects in our neighborhood that require AUPs, aren’t you?

    How about a color blind definition of “conservative” (no red state blue state nonsense) as “one who conserves?” I prefer “conservationist.” More of an environmentalist meaning, along the lines of stewardship of the earth during our brief moment of strutting and fretting during our brief hour on this planet.

    I disagree, it’s not just a house. It looks like a commercial building, it will be used as a commercial building, and it quacks like a duck. The more we talk about it, the harder it will be for the Kapors to enclose the third floor and use it for offices, so by all means, let’s continue discussing it.

    You missed my analogy completely. Let me walk you through it one more time: You and I are not neighbors (I don’t think), but we could be. Just as the Kapors waltzed into our neighborhood, he’s my neighbor simply because he bought the property that my neighbor lived in for 50 years. That’s all it took for him to buy the rights you are defending, and it’s the same way that you and I could be neighbors. With me so far?

    If I have enough pocket change, I can buy ALL the properties around you, and create a gigantic lot which would allow me to build a huge mega-structure. My question is are you OK with me doing whatever I want with those ugly old dilapidated houses on those properties around you? They’re not? Well, I say they are, and they have no historical value, and I say they need to go. I want to tear them down and build new ones. You don’t like the aesthetics of my proposal and you say I’m abusing the process and violating the zoning code? But all my immediate neighbors support me! Who are you to object? (I chose shipping containers and double wide trailers because I thought that might be a universally disliked style, but hey, fill in the blank of the style you would least appreciate living next to–maybe it’s those awful landmarked houses that staff somehow missed in their original report).

    OK, follow me just a little further. Remember, just like the Kapors, it’s MY land, MY houses, so I can do with as I please, according to you. I asked you to then consider that you weren’t my immediate neighbor (right next to all the surrounding property I bought around you), but that you were one of the neighbors of the immediate abutting and confronting neighbors that I had been meeting with behind your back, and buying their support.

    Now, here comes the zinger: Two weeks before I go before the ZAB to get the city’s permission for my project, you get notified of my plans. Keep in mind that the report by staff is factually incorrect and full of errors, but you have to do a lot of research in a short period of time to realize that the project is being misrepresented, staff is wrong because the applicants wrote the report and did the research, and staff just signed off on it. What are going to do about it?

    If your answer is doff your cap and pull your forelock, bow and scrape in deference to me, my wonderful wife, our many foundations and our wonderful plan–“beggin yer pardon Mr. Kapor, sir, but the wife and me is privileged to be your new neighbors”–then I respect the consistency of your logic and your integrity. But if you answer that you might question whether I had an absolute right to do what I was doing, then we’re making progress.

    “Every step of the way so far has proven you wrong and him right and not by a small margin?” Oh, I can’t let you get away that.

    Did you watch the council meeting Tuesday night? Story poles are required in the H-1 district and weren’t installed. Two confronting neighbors were not consulted. The plans mis-represent the project and cannot be built as designed, and most importantly, is not exempt from CEQA. The historical record of the home was just a lie (see “If You Don’t Want to Find It, Don’t Look Anywhere at http://www.berkeleydailyplanet.com/issue/2010-03-25/article/34927?headline=If-you-don-t-want-to-find-anything-don-t-look-anywhere.

    You know, the entire appeal and my comments, as well as the comments of other opponents and supports are extensively documented on Berkeleyside at the link in the article above.

    Have you noticed that almost every single article on Berkeleyside, including this one, shows the very expensive 3-D model prepared by the Marcie Wong and Don Logan, but that it never gets brought out to the public? It wasn’t at the ZAB, it wasn’t at the City Council. It’s supposed to represent the building, but perhaps it is too fragile to be brought out into the full light of day–in more ways than one.

    I would say my track record is pretty damned good, I stand behind everything I have said, and am willing to take on all comers who wish to challenge anything I have put forward. Don Logan sends his errand girls, Marcie Wong tried and gave up, and Mr. Kapor learned a valuable lesson about foot in mouth disease when he commented in the NYT. He knows he can count on his spokespeople, and they’ve done a land office business in red herrings.

    I am human and can make mistakes. I hope I am as able as the imposter who tried to impersonate me to admit those errors, and I will do so if and when you or someone else can point them out. Alas, such has not been the case so far. To the contrary, it appears that I am slowly being proved correct, as the non-unanimous vote in the council may (or may not) have demonstrated.

    It’s not that I’m “in too deep”, I am honestly open to the possibility that I am in error, that I have misrepresented the facts, or that I somehow got something wrong. It’s going to take more than the kind of general statements that you’ve made, though, so you better bring your A game and give me some specifics to address.

    I guess if this is entertainment, the real fun will come if the “evil modern house” get’s built.

    One point I will concede to you and the world is that you are right, I am concerned about the value of my property, but not in the pecuniary way I think you accuse me of. If you talk to the realtor who just sold the house up the street from 2707 and supports this project, she will tell you that the Kapor house will increase everyone’s property value, and that’s why she’s for it. I disagree, and she knows better. That’s not going to be a comp to anything in the neighborhood. What I was saying is that it’s going to be harder to sell your property if construction actually begins, so if you believe this house is going to be built, now is a good time to sell.

    You’re wrong that it’s not a big deal, the value of my property is directly tied to the value of my neighborhood, which is directly tied to the values of my city, which is directly tied to the values of my country, which is directly tied to the value of my planet. You see how calling all of them mine makes the hair on the back of your neck stand up? That’s because they’re all part of the same world we have to live in, and we all share these resources. We are but stewards of that which we think we own.

    Again, I urge you to go back and consider my analogy above, and ask yourself whether the value of your property would be adversely impacted by the project I have proposed around you, and then honestly tell me that I do not have legitimate concerns.

  54. Some of the comments above express the sentiment that we’ll now see how serious the opposition is and that any further appeal will be “Appellants v. City of Berkeley”. I would like to offer an observation to the contrary:

    The opposition is entitled to stage its fight by the most economical means available. If it would, indeed, be found in court that the City Council decision was in error – that does *not* obligate the opposition to press that case at this time or perhaps ever.

    It seems to me that we will see how serious the opposition is only quite slowly as the permit processes for demolition and construction play out. The least costly way to prevent the development is, at this stage, probably at that level.

    If an injunction is ever sought, I would imagine that that would only happen quite late in the process when and if the trucks ever start moving. Given that, it appears to be to the advantage of the opposition to not immediately challenge the City Council decision but, rather, to wait for additional (alleged) errors to accumulate. It will remain an option to challenge the Council decision for quite some time.

    Moreover, to challenge the Council decision at this stage is to raise the question of appropriate remedy. It seems quite plausible that, at this stage, the main remedy available would be a requirement to put up the story poles, perhaps require some fairly unsubstantial plan changes vis a vis hight. *Perhaps* a finding would be made that the building is actually three stories but (as I understand it) such are not forbidden in that zone. Once those remedies were made, we’d be right back where we are today – and the opposition would have “spent” a card they could have reserved for an eventual emergency injunction, should one be needed.

    So it is an interesting drama to watch play out but it is premature to think that, at this stage, the game is over. Time will tell.

  55. Cliff: unless the “appellants” want to spend more good money on lawyers, the issue will die here. We’ll see exactly where their priorities lie very soon.

    In terms of Kriss Worthington’s understanding of the code, well, all I can say is that when Mr. Worthington starts to practice law then maybe I’ll give more deference to his opinion. Until then I’ll stick with my interpretation based on 20+years of practice.

    The ONLY hope these guys have, as I mentioned on another thread, is to point out that the property IS within the CGS “hazard” zone, and go from there. But, even then, the code allows the local agencies a lot of discretion in terms of how to apply it, so IMO they are SOL. Its a waste of their money, and it will be a waste of ours as well if the City has to spend our taxes on the lawsuit.

  56. Mr.Magnes,

    It’s time to take the Kapors off the grill. Our administrative and elective bodies have approved this project. If the opposition chooses to appeal, it will be titled “Appellants v. the City of Berkeley”

  57. Hi Cliff.

    By “conservative” I don’t mean pro-life or anti-gay necessarily, I simply meant to allude to the one-track mind that will reflexively oppose any change whatsoever out of blinding irrational fear and exaggerate the dire consequences to Armageddon-like levels by, for instance, saying that a single house will forever change the face of Berkeley and that it is destroying our local government along the way.. and so on. That’s all.

    It’s a house. Get over it (or don’t). He’s not buying up the neighborhood. He’s not painting your house or using trailers or instituting death panels. He’s building his own house on his own land with some of the most established local architects you can get, and every step of the way so far has proven you wrong and him right and not by a small margin. But don’t worry about your track record, there’s no doubt you’ll be proven right about state law and probably federal law too.

    I know that you’re in too deep to admit this reality to anyone or to yourself so I look forward to the entertainment of watching you continue on your quest to stop the evil modern house, it’s been quite a knee-slapper!

    I do however appreciate you confirming that the real issue is your perceived property value. I know it’s no big deal and it was pretty obvious from the start, but in this case as with most, people tend to not admit their true intentions when trying to make their silly cause sound just and principled, so well done on that point.

  58. I was at the council meeting last night, so I think this is a very fair and balanced report. My only criticism is that the article makes it sound like the action of the city council has settled the matter once and for all. If I understood the appellants attorney, this project violates State law, not just Berkeley law, so a flawed city council decision is not going to resolve the matter any more than a flawed ZAB decision. Don’t forget they haven’t gotten the building permit, which will further demonstrate that this monstrosity can’t be built as proposed.

    As usual, I am most interested in the comments of those who are following this issue and posting here on Berkeleyside.

    To Rachel A: I think what was being implied, or at least what I inferred, was that it was a beautiful neighborhood with many accomplished individuals. All neighborhoods have some beauty, and all have many accomplished people. This neighborhood just happens to have many people with doctorates, which is only one way of measuring accomplishment. I wouldn’t infer too much from that comment.

    To James Hanson: I don’t think this is a liberal or conservative issue, it’s a land use issue. What he wants to do with “his own house” is tear it down and replace it. Is it OK with you if I buy the houses all around you, tear them down and build something new? I mean, it would be my land than, would I have the right to do whatever I wanted, right? Just to make this a fair question, let’s just say you’re not one of the abutting or confronting neighbors, you’re one of their neighbors, and you first learned about the plan two weeks before I went to the ZAB for my approval. Still OK by you even though what I want to build is homes made out of shipping containers and old double wides? I’ll paint them so they blend into the hillside … and while I’m at it, I’ll paint your house, too. Hey, that’s just the kind of neighbor I am.

    At the meeting, both supporters and council members took note of what a problem that house has been for the last few years. Years that Mr. Kapor owned it and allowed the problems to get worse; so much the better for his new “house” which would solve those problems. So far, he hasn’t been a very good neighbor, just an absentee owner who doesn’t take care of his property.

    To JNG: No, the story poles were the reason that neighbors got so upset that the process was not being followed. Kriss Worthington was pretty articulate about the law being flouted in this case, they are required in this district, as anyone who can read and understand English knows. No one will ever know what might have happened if the Kapors had followed the planning guidelines and tried to reach out to the entire community.

    There is something else that story poles, drawings and models won’t convey, either, and that is the real thing, if it ever gets built. It will become an all too visible monument to folly and shortsightedness. Fortunately, I do not believe that is a foregone conclusion yet.

    The proponents may try to boil this down to something simplistic and meaningless, but it is not. The problem is that the issues that have been raised can’t just be boiled down to a bumper sticker, which is not to say we shouldn’t at least try to understand the points made by both sides. Last night, the city council publicly acknowledged that there were numerous misrepresentations and errors in the information provided to the public and the ZAB. What does that tell you about the process?

    As I recently posted, my first reaction was how hideously ugly it was, but since I have read the appeal, I now see that there is so much more to dislike about this project. It’s so much easier to just blame it on spite and class jealousy than to examine the real issues that were raised. Not to worry, this will come up again, since the Kapors are trying to set a new standard for development in Berkeley.

    To Eric P: Again, this stereotyping of our community is not helpful, and tells us more about you than you can tell us about ourselves. Everyone is not rich, everyone does not own a big fancy house, but this sure paves the way for insuring that this becomes that kind of community. We are a diverse community in every way, including economically, socially, culturally, racially and ethnically, and we will not be party to your class warfare fantasies.

    Are you suggesting that the council was wasting its time to have an appeal process, or just that it was a waste of time to go through it? Or is it the tired old argument that since there are so many other pressing problems out there, we shouldn’t be wasting our time on trying to insure that there is fairness for all? Thank you, comic book guy.

    To Thomas Lord: I couldn’t agree more, this building will have huge land-use impact that long survives all of the neighbors and the Kapors–if it gets built. The neighbors who are supporting it are the ones who will be most impacted, let’s see which one is the first to put their house up for sale. Remember, supporters, once the work begins, it’s going to be much harder to sell, interest rates are low and property values still quite high …

    To EB Guy: Ah, the tree sitters, everyone’s favorite group of silly idealists. You know, one of those tree sitters was Sylvia McLaughlin, who is now acknowledged as one of the three women who started the Save the Bay Campaign, and protected the view that Mr. Kapor is so desperate to have from his new Xanadu on Rose. They were also dismissed and ridiculed as “impractical idealists, do-gooders, posy pickers, eco-freaks, enviromaniacs, little old ladies in tennis shoes and almond cookie revolutionaries,” but it is generally acknowledged that they were visionaries, who questioned whether filling in the bay was really “progress.”

    This house is not progress, it’s not an improvement to our neighborhood, and if it ever gets built, we won’t have to guess about what the impact will be, we will all have a chance to evaluate this for ourselves. Prove me wrong, Mr. and Mrs. Kapor, prove me wrong.

  59. Time to bring in the tree sitters; perhaps they can make a platform at the height of the missing story poles. I’m sure someone at the Panoramic Hill Association has some phone numbers…

  60. Eric P,

    Yup. Well, except that there is a legit concern here of greater interest – this building will have huge land-use impact that long survives all of the neighbors and the Kapors.

  61. Rich people with big fancy houses trying to stop another rich person from building a big fancy house–best use of City Council and media airtime evah!

    Thank goodness we privileged Berkeleyans have already solved all of the city’s and the world’s problems and can devote so much of our energy to aesthetic disputes guilt free!

  62. The story pole argument was always a ruse. These guys had no intention of changing their mind no matter what the applicant might have done. It was spite, plain and simple, with some tinge of class jealousy tossed in. There is little a story pole will tell you that the drawings and models didn’t already convey.

    The opponents main grievance borders on the petty – reduced to its essence it basically boils down to “I don’t like your house because I may have to drive by and see it for 5 seconds a day, and that offends my sensibilities”

    Its good that the City stuck to the law and struck down this challenge based on some inconsequential aesthetic slight.

  63. What a relief!

    It was getting disturbing that people would try so hard to control what someone could and couldn’t do in his own house just because they don’t like his aesthetics.

    “Charity work on that next block is simply horrendous for my property value”

    Sometimes we Berkeleyans can be so conservative.

  64. I’m not a District 6 resident nor a Rose Street neighbor, but I do find the lack of correct process concerning (the story poles, etc.) The result is a troubling concern about the transparency of city government.

    Having not been at the meeting, I might be missing the context, but I find the “all the Phds” comment really odd. What is that supposed to infer? They’re smarter about where they live? I’m perplexed.

    I live in the vicinity of what was a long standing tree dispute between neighbors; it’s not a fun neighborly experience. I hope that the Rose Street neighbors find ways to make some peace.

    Thanks to Berkeleyside for providing a way for residents to follow this.