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Members of the Sustainable Berkeley Coalition were rebuffed at Berkeley City Hall on Wednesday, July 8, when they attempted to file an appeal at the Berkeley City Clerk's office on a portion of the controversial 2211 Harold Way project in Downtown Berkeley.

Kelly Hammargren and Tree Fitzpatrick sought to present the Clerk with a detailed appeal letter over Hammargren's signature, as well as a petition signed by more than 30 Berkeley residents living 300 feet or less from the Harold Way site asking that the Zoning Adjustments Board's(ZAB) certification of the project Environmental Impact Report (EIR) be appealed to the City Council as provided in California law. 

Hammargren's letter cites numerous flaws, omissions, inaccuracies, out-of-date information, and other problems with the EIR process, which was rushed through the Zoning Adjustments Board on June 25. 

Typically the City allows 14 days after a decision by the ZAB for appealing to the City Council. July 9 would have marked 14 days. 

However, the City Clerk's staff refused to accept the petition and appeal letter, stating that appeals are not accepted by the Clerk until City Planning staff issue a "Notice of Decision" for the EIR certification. No Notice of Decision has been forthcoming for the Harold Way project. 

"What does that mean?" Hammergren asked. "It means that before the Notice of Decision is issued we can't accept an appeal because the decision doesn't formally exist," said a Clerk's staffer at the counter.  

The staffer referred the petitioners to the co-secretary of the Zoning Adjustments Board, City planner Shannon Allen.  

"I'd like you to sign a notice saying we tried to submit and you wouldn't accept it," Hammargren replied, proffering a written statement. "I'm not able to sign that," the staffer responded. She went back to the Clerk's private offices, and returned some minutes later with City Clerk Mark Numainville. 

Hammargren then asked Numainville to sign the statement saying that she had tried to present the appeal to his office, and had been refused. "I wanted to show that I made it here before the fourteen days are up," Hammergan explained.  

Numainville also said he would not sign, but then asked Hammargren to wait. Several minutes later he returned to the conference room and gave Hammargren a letter over his signature (copy attached) that stated "this letter certifies that as of 3:30 pm on Wednesday, July 8, 2015, a Notice of Decision for the EIR Certification for 2211 Harold Way has not been received by the City Clerk Department. Thus, no appeal may be filed at this time." 

The City's process of receiving appeals has been controversial because Planning Department staff have pushed the Zoning Adjustments Board to "certify" EIRs for controversial projects well in advance of other project approvals.  

The certification vote appears, to the layperson, to end the EIR process and begin the appeal period but, as Numainville stated in his letter, appeals are prohibited until a Notice of Decision is issued by the Planning staff. 

A similar answer was given to a lawyer who went to the City Clerk's office in June to file an appeal on another controversial development project's final EIR. That attorney was also turned away with the same explanation from the Clerk's staff.