Flash: Appeals Court Rules for Berkeley Hillside Preservation--City Must Do a Full EIR on Mitch Kapor's Proposed House

By Becky O'Malley
Wednesday February 15, 2012 - 09:46:00 PM

Today the California Court of Appeals ruled that the City of Berkeley must do a full environmental impact report on software entrepreneur Mitch Kapor's plan, with his wife Freada Kapor-Klein, to build a house of close to 10,000 square feet with a ten car garage at 2707 Rose in the Berkeley Hills.

The court reversed a lower court decision by Judge Frank Roesch that an EIR was not required, and supported the contention of a group calling itself Berkeley Hillside Preservation, with named appellants Susan Nunes Fadley and Lesley Emmington Jones, that the proposed construction was not categorically exempt under the California Environmental Quality Act (CEQA) and that environmental concerns should be reviewed in an environmental impact report (EIR). 

The court's decision said that the preservation group "presented substantial, and virtually uncontradicted, evidence that the proposed single-family residence to be constructed was unusual, based on its size... Of more than 17,000 single-family residences in Berkeley, only 17—or a tenth of a percent—are larger than 6,000 square feet, whereas the proposed construction will result in a residence that is more than 9,800 square feet." 

The court further concluded that because the proposed house was such an unusual size, and "because there was substantial evidence in the record to support a fair argument that the proposed construction will have a significant effect on the environment ... the application of a categorical exemption [exempting single family homes from CEQA review] was inappropriate here, and the trial court erred in denying appellants‟ petition for a writ of mandate." 

The trial court has been ordered to issue a writ of mandate directing the City to set aside the approval of use permits and its finding of a categorical exemption, and to order the preparation of an EIR. 

Appellants, represented by attorney Susan Brandt Hawley, were also awarded their costs on appeal,which means that attorney's fees must be paid by the defendants and respondents, the City of Berkeley, the Kapors and the firm of their architect, Donn Logan. 

The full text of the decision can be found here

Background information can be found here.