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Updated: Second Challenge to Downtown Berkeley Harold Way Development Filed

Becky O'Malley
Friday January 15, 2016 - 02:27:00 PM

On Wednesday a Berkeley citizen activist, Kelly Hammargren, filed a challenge to the Berkeley City Council’s December 8 approval of an 18-story project at 2211 Harold Way in Berkeley, on the landmarked site of the historic Shattuck Hotel, which occupies almost the full city block bounded by Shattuck, Kittredge and Harold. Now a second petitioner, Berkeley resident and BART commuter James E. Hendry, has filed another challenge to the same project .

Both plaintiffs have filed, “pro per”, i.e. as individuals not represented by an attorney. 

“Pro per” is a legal concept which allows individuals to represent themselves in court without the need for an attorney. (The term is an abbreviated form of the Latin propria persona, and is also called by another Latin term, pro se, “for one’s self”. ) 

It is not uncommon for suits filed pro per to switch to representation by law firms after filing. A new citizens’ group has been formed to support the lawsuits with volunteer work, including compiling the administrative record, and fundraising for legal expenses. 

The Hammargren "Petition for a Writ of Mandate" alleges violation of the California Environmental Quality act as well as other City of Berkeley legal requirements. In particular, the petition alleges that the council on December 8 failed to even address the mandatory findings required by CEQA and therefore never adopted them as the law requires. It also charges that the 302-unit luxury apartment development proposed for the site would effectively result in increasing housing segregation in Berkeley. 

Kelly Hammargren, a registered nurse who holds an M.B.A and has worked in health care management, was an early participant in the Save Shattuck Cinemas protest, started because the original project plan would have eliminated the 10-screen film theater which is part of the Shattuck Hotel complex now on the site. 

Hendry, an economist by profession, has presented evidence at numerous City of Berkeley meetings regarding deficiencies in the city’s review of the Harold Way applicant’s financial information. 

As opposition to the Harold Way project grew beyond the original focus on the loss of the film venues, Hammargren became a co-founder and convener of the Sustainable Berkeley Coalition, formed to support appropriate development of affordable housing for Berkeley. 

Hammargren’s 75 page petition states that Berkeley “ failed to make necessary findings and violated procedural requirements under CEQA. The approval of this Project constitutes an abuse of discretion, because the City relied upon speculative assessments, rather than required studies and was based upon incomplete, incorrect, deceptive and misleading information.” 

A major CEQA violation alleged is that Berkeley failed to consider all feasible mitigation alternatives as required by CEQA, specifically by failing to consider the “preservation alternative” required when historic structures would be demolished. It says that the City of Berkeley in making this omission relied on the applicant’s erroneous representation of the purchase price of the property as $40 million, when in fact it was $19.8 million, and therefore concluded that a preservation alternative was unaffordable. 

Further, the petition claims that the city of Berkeley as lead agency “violated CEQA requirements by its failure to properly evaluate the Project’s significant impacts upon water, sewage, seismic safety, shadows, wind velocity, transportation, traffic, air quality and noise, affordable housing at all income levels, nearby elementary and high school students, and diversity.” 

The document notes that because the project would contain 302 luxury “market rate” units, but zero affordable “Below Market Rate” inclusionary housing apartments, it would reduce diversity in Downtown Berkeley and the city as a whole. 

It charges violation of California’s the U.S. 1968 Fair Housing Act, saying that “the Project results in further segregated housing in Berkeley by not including very low income to moderate income residents in the 302 unit building...By electing to pay a small, discounted ‘in lieu’ fee to build affordable housing elsewhere long into the future, [Berkeley] is enabling the furtherance of disparity in housing availability for persons of all economic and racial backgrounds. This policy, pattern and practice has contributed to the reduction of persons of color residing in Berkeley, i.e. a racially disparate impact. Such a disparate impact upon persons of color has been ruled by the Supreme Court a violation of the 1968 Fair Housing Act." 

It charges that the project and its construction would adversely impact sensitive neighbors, including two nearby Berkeley Unified School District schools, Berkeley High School and Washington Elementary School, as well as Berkeley City College, the main branch of the Berkeley Public Library and the YMCA. 

Other challenged aspects of the city’s environmental review include: 


  • Traffic, especially as it affects Berkeley High School.
  • Transit, because BART service to downtown Berkeley is overloaded.
  • Seismic risk, particularly because no independent review of excavation under the original 1913 hotel structure was performed, and the design ultimately approved by the city council calls for building film theaters underneath that part of the hotel, which is shown on a state map as a liquefaction zone.
  • Sewer capacity, because the project’s impact on the aging downtown sewer system never received the “site-specific study” which was mandated by the EIR for Berkeley’s Downtown Area Plan.
  • Disruption of Downtown Berkeley small businesses, such as restaurants and retailers, for which the film theater provides an economic engine, during the construction period and after.
The Petition for a Writ of Mandate asks the court to set aside the existing EIR and approvals for the project, and to bar demolition and construction until a legally adequate EIR is approved. 


Her full petition can be found here

Hendry’s petition makes some of the same claims and charges as Hammagren’s, but focusses particularly on the inadequacy of the analysis of the project’s relationship to mass transit in the City of Berkeley’s Environmental Impact Report. It says: 

“A major concern of the Petitioner is the Project’s significant reliance on public transit, while at the same time adopting almost a cavalier attitude about its assumed availability. The stated goal of Berkeley’s Downton Area Plan, as well as for this Project(based on the Statement of Overriding Considerations), has been to promote “transit friendly” development. The Project states it is providing state of the art programs to encourage Project tenants to reduce car usage and use more public transit yet the EIR bases its estimates of transit usage on data from the 2000 U.S. Census, data that is now over fifteen years old. As a result, the estimated increase in public transit usage resulting from the project will be significantly higher than modeled.” 

It lists as a second concern, similar to one in the Hammargren petition, the City’s continued use of information it knew to be inaccurate in assessing the economic feasibility of project alternatives as required by CEQA, despite have these errors repeatedly brought to its attention. 

A third major concern is the lack of analysis of the effect of displacing the Habitot Children’s Center which is now a tenant in the Shattuck Hotel complex. 

Hendry’s petition can be read here





Note: the author of this report is a member of the Sustainable Berkeley Coalition and of the group which has been formed to support these petitions. 

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