Court considers challenge to Berkeley high-rise

James Hendry and Kelly Hammargren await the start of the court hearing on their challenge to the 2211 Harold Way project. Photo: Frances Dinkelspiel — James Hendry and Kelly Hammargren await the start of the court hearing on their challenge to downtown Berkeley’s 2211 Harold Way project. Photo: Frances Dinkelspiel

Two opponents of the 18-story apartment complex planned for 2211 Harold Way in downtown Berkeley made a case in court Friday that the approval of the 302-unit building should be revisited.

Kelly Hammargren and James Hendry appeared before Judge Frank Roesch in Alameda County Superior Court to argue that the environmental impact report for the building was so deeply flawed that the project should be stopped.

Read complete coverage of 2211 Harold Way on Berkeleyside.

The packed hearing, which brought out many of the long-time opponents of the project, lasted four hours. Neither Hammargren nor Hendry had legal representation, and clearly struggled with how to frame their legal arguments. Hammargren, for example, asked to introduce a map delineating the area west of the project. She wanted to show how close Berkeley High School is to 2211 Harold Way as part of her argument that Berkeley and the developer should have considered the impact of diesel particulates from fuel exhaust on the high school.

The judge denied her motion because the map was not part of the administrative record, which includes 15,000 pages of documents from Berkeley’s consideration of the project, as well as notes, videos, and tape recordings from many of the 37 public hearings. The CEQA hearing could only focus on what was already part of the record, not other evidence, he said.

Hammargren, who has devoted more than two years of her life to stopping the project, often tried to persuade the judge using an argument she might have made in front of the Berkeley City Council. The judge repeatedly told her to stick to legal issues and not make political speeches. He also reprimanded audience members when they burst into applause after Hammargren made a point.

“This is a court of law,” said Judge Roesch. “We don’t applaud anyone. We don’t think that political speeches are very helpful in solving the puzzle.”

HSR Berkeley Investments, the LLC backing the development, and Rhoades Planning Group, were represented by two attorneys from Manatt Phelps & Phillips, a San Francisco law firm. City Attorney Zach Cowan represented Berkeley. Both sides had submitted extensive briefs arguing their positions.

Judge Roesch said he will rule on the challenge to the EIR within 90 days. But comments he made throughout the hearing suggest that he is not inclined to rule in Hammargren and Hendry’s favor. If he denies their petition, construction on the project could proceed.

Project first proposed in December 2012

Joseph Penner of Los Angeles’ Hill Street Investments submitted an application to redevelop the old Hinks Department store in December 2012, shortly after the Downtown Area Plan, which allows three 180-foot and two 120-foot buildings, went into effect. Penner hired Rhoades to steer the entitlement process, which took three years. Many elements of the project were controversial: its mass, the fact that the Habitot Children’s Museum would have to relocate, the impact of the height of one of the towers on the view from the steps of the Campanile, and the reconfiguration of the Shattuck Cinemas, among other issues.

Proponents pointed out that the project would bring many benefits to Berkeley, however, and those considerations prompted the council to give the go-ahead to the complex on Dec. 8, 2015. Berkeley wants to cluster housing around transit corridors, which the project will do. The developer will pay $10.5 million into Berkeley’s Housing Trust Fund, guarantee union labor will be used (to which the city ascribed a $6 million credit), and will pay into a streets fund. In addition, Hill Street Investments has agreed to pay $1 million into an arts fund with $250,000 going to assist Habitot with its relocation.

Numerous people opposed to the project for 2211 Harold Way came to the court hearing on Friday. Photo: Frances Dinkelspiel

Joseph Penner (second from left), the developer of the project, attended the court hearing as did Mark Rhoades (fourth from the left). There were so many people in attendance that some had to sit in jury seats. Photo: Frances Dinkelspiel

Hammargren and Hendry filed two separate challenges in January to the city’s approval, but their cases were folded into one. While neither had attorneys to represent them, they found moral support from Landmark Legal Action, an association of volunteers who banded together to raise funds for the legal fight. Hammargren also got some behind-the-scenes advice from an attorney volunteering his time, said Hendry. He wanted to represent himself, he said, because he has participated in a number of administrative law hearings as part of his job as an economist.

Hammargren and Hendry made about 14 different challenges to the EIR. Judge Roesch organized the hearing to go through each methodically. A number of the arguments centered around the fact that the plaintiffs thought there should have been more site-specific studies of the impact. The attorneys for HSR Investments and Berkeley made the case that the impacts of 2211 Harold Way had been studied, both in the project’s EIR and the EIR Berkeley did for the Downtown Area Plan.

The 18-story building in downtown Berkeley is set to include 302 residential units, 177 underground parking spots and more than 10,000 square feet of commercial space, including a 10-screen movie theater to replace Shattuck Cinemas.

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Project first proposed in December 2012

Frances Dinkelspiel