See update at the foot on story.
The two majestic houses that sit side-by-side on Hawthorne Terrace in North Berkeley are not identical, but are so similar as to be fraternal twins. Designed in 1924 by the famed architect Henry H. Gutterson for James C. Sperry and his widowed sister, the two houses both have an English country home feel, with large windows, stucco and wood exteriors, and terracotta tile roofs. A garage with apartments above and a shared patio below physically links the structures.
Hidden from the street on the west side of the properties is a common garden designed by Mabel Symmes, who also designed Blake Garden in Kensington. With its sweeping lawn, contoured paths, rose bushes, hedges, rock walls, fountain and a spectacular view of San Francisco Bay, the city and the Bay Bridge, the garden offers an escape from the urban bustle.
The garden is bucolic, but it has become the center of a legal battle between the owners of the side-by-side houses at 1450 and 1440 Hawthorne Terrace. Once jointly enjoyed by Sperry and his sister, Marion Marsh, and then by succeeding owners, Donald and Sylvia McLaughlin (he was a UC Berkeley professor and regent; she co-founded Save the Bay) and Hugh and Marion McNiven (he was a professor of civil engineering at Cal), the common garden is now contested ground. Allegations of elder abuse, coercion, and lying to the city of Berkeley swirl in emails and three court cases.
To further exacerbate matters, the Landmarks Preservation Commission will consider landmarking both houses Thursday night. City staff has said both structures fit the criteria for becoming city landmarks because of their architectural and historic merit. If the designation is made, it is sure to complicate the legal fights now playing out in Alameda County Superior Court.
Twin houses built after the 1923 fire that destroyed North Berkeley
The Sept. 17, 1923, fire that ripped through North Berkeley destroyed the house that once sat on that portion of Hawthorne Terrace. Sperry, born in 1874, purchased the land. He was the son of James L. Sperry, a large landowner and the owner of a plot of majestic old-growth redwood trees in what was called Calaveras Big Tree Cove. The elder Sperry cut a hole through one of the most massive trees so tourists could pass through. The “Tunnel Tree” became an international sensation and tourist attraction. It toppled in 2017.
Sperry, who worked for Magnavox, hired Gutterson to design the twin houses. They were so grand and expensive that Berkeley newspapers wrote about their construction. The houses were an architectural departure in Berkeley, too, which until that time had been dominated by brown shingle homes. Gutterson used fire-resistant materials, such as stucco walls and tile roofs, and designed the two properties in a Period Revival Style. Gutterson also designed a number of other significant homes in the area, as well as the Berkeley Community Theater and the fountain in Civic Center Park.
To complement the house, Symmes, one of the first students in UC Berkeley’s department of landscape architecture (she enrolled in 1914) and a rare female in the field at the time, was brought in to design a garden. Symmes had also worked with her sister, Mrs. Anson Blake, to design the garden at what is known today as the Blake House, long the official residence of the University of California president.
Sperry died and the McLaughlins purchased the house in 1955 and moved in with their children George and Jeanie. When Marsh died, the McNivens purchased her house in 1959. Their only child, Carolyn, was born there.
The McLaughlins and McNivens became good friends, joining one another for dinners and celebrations. Parties often took place in the common garden and the families would invite one another to join in, said Carolyn McNiven. When Jeanie got married in the garden, Carolyn was in the bridal party.
“We were very close,” said McNiven. “The McLaughlins were like my grandparents. It was a wonderful relationship.”
It was from the window of her house at 1450 Hawthorne Terrace that Sylvia McLaughlin got so mad she decided to launch Save the Bay. The house offers views of the bay’s edge, which in 1961 was lined with dumps and factories. The Army Corps of Engineers had announced a plan to add more fill to the bay to accommodate houses and industry. The city of Berkeley wanted to fill it as well.
Concerned about the loss of the bay, McLaughlin and two friends started an organization that many historians consider the beginning of the modern environmental movement. Using grassroots tactics, Save the Bay managed to stop the filling of the bay. Now the park along the Oakland-Emeryville-Berkeley-Albany shoreline is known as the McLaughlin Eastshore State Park.
The death of Sylvia McLaughlin triggers a dispute
While the McLaughlins and McNivens had enjoyed the common areas their houses shared, the death of Hugh McNiven in 2009 (Donald McLaughlin had died in 1985) and the aging of the women made their children realize they needed to explore what to do with the common garden and garage. In October 2013, as a first step, Moran Engineering surveyed the properties, according to an affidavit by Carolyn McNiven. In 2015, both Sylvia McLaughlin, 98, and Marion F. McNiven, then around 81, had health scares, prompting their daughters to realize more needed to be done.
This is where the narratives diverge. According to Carolyn McNiven, she and Jeanie McLaughlin Shaterian, who was living in one of the apartments over the garage, exchanged multiple emails about the situation and discussed with their mothers what to do with the common garden. They even consulted Bebe McRae, a neighbor and well-known real estate agent in Berkeley. The families decided they wanted to preserve the common garden and shared garage by creating a legal document, according to Carolyn McGiven. She sent Berkeleyside some emails that showed the discussion began as early as 2010 and continued into 2015. This one was dated April 20, 2015:
At long last here is the draft agreement regarding your apartment and the shared back area. I was not sure how your mom’s house is titled, so left that blank. Please feel free to fill it in or send me the language you want. I will drop off a hard copy with the attachments for you to review later today. Let me know what you think. lf it seems to fit the bill, please go ahead and sign. Carolyn.”
On Aug. 31, 2015, a mobile notary arrived at the houses. McNiven’s husband, Andrew Sohn, an attorney who worked in real estate, had drawn up the restrictive covenant.
The document described the two houses’ joint features, including the lawn, the roses, the hedges, a 90-year old wisteria vine and trellis, and a concrete patio right by the garage. The “Declaration of Restriction Covenants” both of the older women signed in front of the notary essentially said that, as long as any heirs of the women still lived in either house, no changes could be made to the joint garden. The document also said no fence or privacy screen could be erected in the garden to separate one property from another. If either owner breached the agreement, the non-breaching party could file for an injunction and if they prevailed, they were entitled to attorney’s fees.
Sylvia McLaughlin signed the document in handwriting that looked very shaky. She was 98 years old, needed 24-hour care, could barely see or hear, according to court documents, and would die about five months later on Jan. 20, 2016.
McLaughlin’s mental and physical state has become the central issue in one of the lawsuits. While Carolyn McNiven has said the covenant was signed after years of discussion, the people who bought McLaughlin’s house after her death got her son, George McLaughlin, to assign his rights to them. They have filed a lawsuit against the McNivens. The suit contends that the McNivens coerced and manipulated the then 98-year-old McLaughlin to get her to sign a document that would benefit the McNivens and make it more difficult for the McLaughlin heirs to sell their mother’s house. They contend the covenant is invalid.
“When Sylvia was a few months shy of her death, Ms. McNiven, a prominent criminal defense attorney, exerted undue influence to convince the aging Sylvia to sign over valuable property rights by executing a covenant that the McNivens claim prevents any changes in, on or near the ‘common’ garden at the rear of the two houses and preserves that area for use by the McNivens,” Chris Wade, an attorney hired by the new owners of 1450 Hawthorne Terrace, wrote to Berkeley in a letter pushing back about the proposed landmark designation, which the McNivens are promoting. Other legal documents use the term “coercion” and “elder abuse.”
Carolyn McNiven says she was not present when Sylvia McLaughlin signed the restrictive covenant and consequently could not have bullied her into anything.
One fact the suit brings up to support the contention that McLaughlin was manipulated is that the covenant was not registered with the Alameda County Recorder’s office until Jan. 21, 2016, less than 24 hours after Sylvia McLaughlin died.
The McNivens “waited to record the document to avoid alerting George McLaughlin to its existence until Sylvia McLaughlin had died, and she could no longer contest the signing of her Declaration or her understanding (or lack thereof) of its complex legal and factual consequences,” the suit contends.
George McLaughlin states in legal documents that he did not know about the restrictive covenant until he put his mother’s house on the market in the summer of 2016 for $3.85 million. A buyer made an offer that George McLaughlin accepted. It was during the title process, in which a title company examines historic deeds and other legal documents of a property, that McLaughlin first learned of the restrictive covenant, according to court records. That buyer pulled out and McLaughlin had to lower the sales price since an appraiser told him that the value of the house with the restrictive covenant went from $3.5 million to $3.225 million, a $275,000 drop in value.
However, Carolyn McNiven disputes this. She provided Berkeleyside with an email to George McLaughlin dated Aug. 15, 2016, in which she told him about the covenant.
George McLaughlin declined to comment to Berkeleyside.
In December 2016, Michael and Karen Dreyfus purchased the property. They paid $3.1 million in cash, according to documents provided in discovery in one of the court cases. Michael Dreyfus knew about the restrictive covenant at the time of the purchase as he referenced it in his email to McRae, the real estate agent with the listing.
One person who may have been able to shed light on how much Sylvia McLaughlin knew what she was signing Aug. 31, 2015, was her daughter, Jeanie. However, Jeanie McLaughlin Shaterian was diagnosed with brain cancer after her mother’s death. She died on Dec. 17, 2017.
The new owners plan major renovations to 1450 Hawthorne Terrace
When Michael and Karen Dreyfus purchased 1450 Hawthorne Terrace, they knew they needed to make major renovations to the property. They had ample experience in improving large homes. Michael Dreyfus was a long time real estate broker in Palo Alto and he merged his company with Golden Gate Sotheby’s, a luxury Realtor, in 2013. He and Karen had purchased a property at 590 Whiskey Hill in Woodside for $6 million in 2013, renovated it and sold it for $7.85 million in November 2016.
From the start, Carolyn McNiven said she thought the Dreyfuses had purchased the Hawthorne house just to “flip” it and pointed to the Whiskey Hill renovation as an example. Legal documents suggest another reason for the purchase. They said the Dreyfuses moved to Berkeley to get away from the Silicon Valley lifestyle. Their 16-year-old son enrolled in Maybeck High School in Berkeley for a year and a half. The Dreyfuses lived at the home until they vacated it for renovations.
In a Jan. 23 deposition Michael Dreyfus said that upon buying the property he knew he wanted to erect a fence to divide the common garden, despite being aware of the covenant. On April 16, 2017, Karen Dreyfus indicated that in an email to McNiven:
“After several months in our new home, we’ve concluded that our preference would be to also divide the yard along the property line, rather than share the common space.”
In the deposition, Michael Dreyfus testified that dividing the two properties would increase the value of both houses.
Michael Dreyfus “makes clear that they wanted to be able to build a wall down the middle of the yard because they believed doing so would improve the property value,” McNiven said in an email to Berkeleyside. “This is why, in my view, they are trying to invalidate the Covenant and undermine the landmarking of the garden.”
Erecting a wall along the property line would completely change the character of the garden, which now feels spacious, almost like a park. A wall would cast a shadow on the McNiven’s side and impede the view of the bay, McNiven said.
Unbeknownst to McNiven, the Dreyfuses had submitted plans to the city of Berkeley to renovate their home and had gotten a permit. The plans included the construction of a large terrace or deck at the back of 1450 Hawthorne Terrace. The McNivens believed this would violate the terms of the covenant since the structure would encroach on the common garden. Despite discussion and negotiations between the neighbors, no compromise was reached.
The McNivens asked an Alameda County Superior Court judge for a temporary restraining order, or TRO, to prevent the construction of the deck. It was granted Dec. 12. There will be a hearing in late February about a permanent injunction.
The Dreyfuses did not contest the TRO, according to Wade, their attorney.
The attorney for the Dreyfuses said she did not think it would be in their interest to talk to Berkeleyside.
An accusation of undervaluing the cost of the renovations
As the animosity between the neighbors has increased, so has the mistrust. McNiven now says the Dreyfuses intentionally deceived the city of Berkeley about the scope of their planned renovation to save money, specifically to avoid sending a notice to neighbors who might object to their plans, to avoid a public hearing as well as an examination by the Landmarks Preservation Commission, according to court documents. For example, Berkeley requires an administrative use permit (AUP) issued if any changes are made on a property line or if there are significant changes to the exterior. McNiven said the Dreyfuses want to remove some exterior stairs and a light well in the common concrete patio behind the garage, but admitting that would have triggered a permit request and the notification of neighbors. So the Dreyfuses’ designer, Gustav Carlson of Berkeley, did not include the light well in the drawings presented in the city, said McNiven in court papers.
The designer, Carlson, appears to support McNiven’s contention in an email he sent to the Dreyfuses on June 20, 2017:
“Currently, the light well on the front of the house is not shown on our plans. I intentionally left this off, since my ‘first round’ of drawings was supposed to be an easier approach to permit to not involve the Planning Dept. with window and door replacement. My intention was to submit that as an aspect of renovation.”
The McNivens also say the Dreyfuses tried to conceal the true extent of their renovation plans by submitting plans for a modest renovation and then expanding the scope with further revisions to the plan. Carlson submitted the first building application in April 2017 and said the plan was to remodel and expand the kitchen, add a family room, renovate a second-floor bathroom and relocate the laundry — for a cost of $25,000. In November 2017, he amended the plans to add remodeling the powder room, adding some bathrooms and replacing some windows at a cost of another $30,000 for a total of $50,000.
On Nov. 22, 2017, the city of Berkeley told Carlson the renovation costs were “understated” and put them at $300,000.
On March 1, Carlson submitted another revision, which included the new deck. Carlson said the additional cost would be $25,000, bringing the total renovation budget to $325,000.
This is still significantly less than the true cost, the McNivens contend. (The cost of a building permit in Berkeley correlates with the cost of the building project). While telling the city it would be $325,000, the renovations would really cost about $2.5 million, according to an estimate provided by Ceram Builders to the Dreyfuses and released during the discovery process.
Carlson told the Dreyfuses he had deliberately understated the true cost in emails surfaced during discovery.
“Just a clarification on City fees, the fees are based on the cost/amount of construction,” Carlson wrote Karen Dreyfus on Feb. 22, 2018. “We actually lowballed the value of the entire house remodel construction at 300k (which is extremely low) but the City went with our number, so I feel like the fees paid to the City were in your favor! There will be an additional fee now for revision #3 (the wood deck), but we will also low ball this estimate and it will not be as high as this second revision fee.”
At no time did the additional renovation applications prompt the city of Berkeley to take a broader look at the work being done and determine that the neighbors should be notified or an AUP hearing held or require a new zoning certificate, according to a lawsuit the McNivens filed Sept. 20 against the city. The McNivens approached the planning department to complain about how the Dreyfus permits had been issued but were informed they had no recourse, according to the lawsuit.
The McNivens sought to landmark 1450 Hawthorne without informing its owners
As the Dreyfuses proceeded with plans to renovate their home — with the issue of the common garden in dispute — Carolyn McNiven applied to Berkeley to landmark both houses. (Steve Finacom, chair of the Landmarks Preservation Commission, initiated the petition for 1450 Hawthorne, but McNiven later took charge). She did not inform the Dreyfuses of her efforts but assisted in circulating a petition to gather 50 signatures in favor of the idea. The Dreyfuses were notified by the city of Berkeley about the action. A hearing on both houses is scheduled for 7 p.m. Thursday at 1947 Center St.
“There was something menacing and upsetting about how it was done,” said Evette Davis, whose public relations firm Berg & Davis is working with the Dreyfuses. “Even if it was done with a greater purpose.”
Davis said the purpose of the landmark application “is to undermine the remodeling project,” since McNiven’s other efforts did not stop it.
The action reflects part of what concerns the Dreyfuses: that the restrictive covenant is an infringement on their private property rights, according to Wade.
McNiven prepared the landmark application for both houses. She argues that 1450 Hawthorne Terrace is not only eligible for architectural reasons, but for cultural ones as well. She makes the point that Donald McLaughlin held a UC Regents meeting in the house during the turmoil of the 1964 Free Speech Movement. Sylvia McLaughlin was inspired to fight bay fill by what she saw out of the window. Sperry fought to save old-growth redwoods and was an early member of Save the Redwood League, according to the application.
In their response to the landmark application, the Dreyfuses mainly address whether the common garden deserves landmark status. The firm they hired to review McNiven’s application suggests it does not. Page & Turnbull say Mabel Symmes, the garden designer, was not really a professional designer, worked for others more than herself, was of minor importance, and probably worked for free. “Symmes does not have a broad body of documented work and did not, as an independent practitioner, demonstrably influence the work of others in her field,” the Page & Turnbull memo noted.
For this reason, the common garden should not be landmarked, Wade, attorney for the Dreyfuses, wrote in a letter to the landmarks commission Jan. 19.
“Although the Dreyfuses did not enter into this landmark process voluntarily and would prefer that their private home not be subject to the many restrictions and additional procedures associated with landmark status in the City of Berkeley, they are willing to concede before this Commission that the house at 1450 Hawthorne Terrace qualifies as a landmark in the City. The garden and grounds surrounding that home, however, do not qualify and should not be designated either independently as a landmark or as contributing in any way to the historic significance of the home itself.”
Three pending court cases surrounding the garden and renovation of 1450 Hawthorne Terrace
Carolyn McNiven, her mother and her family trust filed a lawsuit against Michael and Karen Dreyfus on Aug. 29, 2018, for breach of the restrictive covenant. The Dreyfuses filed a cross-complaint for financial elder abuse and slander of title on Jan. 3.
“The elder abuse claim is nothing more than a thinly veiled attempt to smear me (and my 86 year old mother) and distract from what is actually going on here – namely two real estate speculators from the Peninsula attempting to pull a fast one over on the City and their neighbors,” McNiven said in an email.
The McNivens also filed a lawsuit against the city of Berkeley on Sept. 20 for how it handled the building permit applications.
The opponents disagree over what the impact will be if the commission designates the houses and common garden as city landmarks. Wade said Berkeley has already issued a building permit for the deck, so any landmark decision will not impact that. McNiven disagrees.
“It may or may not matter,” said McNiven. “It depends on what the city view of it is and whether they prevail in the lawsuit.”
Update Feb. 8: The Landmarks Preservation Commission continued the hearing until its March meeting. The commissioners will take a field trip to the gardens to get a better sense of them.
Update Sept. 9: The Landmarks Preservation Commission awarded city landmark status last week to two houses on Hawthorne Lane whose owners are embroiled in lawsuits. The commission also called out certain aspects of their adjoining garden to be preserved.
The board unanimously voted Sept. 5 to add 1440 and 1450 Hawthorne to Berkeley’s list of landmarked homes. Both were recognized for their architectural merit – the architect Henry Higby Gutterson designed them – and 1450 was also recognized for its cultural merit. Sylvia McLaughlin, the founder of Save the Bay, lived there for decades with her husband, Donald, a Regent of the University of California. The builder of the property, James Cameron Sperry, was a notable inventor
The board declined to landmark the entire garden but voted to designate a grove of redwoods, a Giant Sequoia tree, a rhyolite stonewall along Vine Street, some shared patios and a trellis that connects the two houses as special landmarked features.
The two families are still embroiled in a lawsuit over the restrictive covenant Sylvia McLaughlin and the McNiven family signed.
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