BERKELEY — Community activist Kelly Hammargren sued the city in Superior Court Wednesday, contending that city approvals for an 18-story downtown building violate state law by ignoring impacts on nearby schools and small businesses, and by creating a less diverse downtown.
The project, planned for a large portion of the block bounded by Kittredge Street, Harold Way, Allston Way and Shattuck Avenue, will include 302 market-rate apartments, about 10,900 square feet of ground-floor commercial space, remodeled Shattuck Cinemas and 177 parking spaces.
On Dec. 8, the City Council certified the project’s environmental impact report, ratified a permit allowing demolition of portions of the historic Shattuck Hotel and reaffirmed a use permit issued earlier this year.
But Hammargren, who filed the complaint pro per with the help of attorney Doug Carstens with Chatten-Brown & Carstens, contends in the lawsuit that the city violated the California Environmental Quality Act by failing to 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 lawsuit paints a nightmarish picture of consequences on the 3,000-student Berkeley High School, predicting “sewage overflow on BHS grounds stemming from the 302-unit’s lateral pipeline apparently slated to share a mainline with BHS, where sewage overflow is already a problem.
While an agreement between developer HSR Berkeley Investments and the school district says they will meet and confer on the sewage question, the lawsuit argues that “agreement to confer and discuss carries no enforcement.”
The lawsuit also cites increased traffic, noise and poor air quality the high school will endure during construction. That violates state law, the suit charges, arguing the state constitution gives students “an inalienable right” to “a safe, secure, and peaceful environment in order to promote learning.”
The lawsuit claims the new residences will negatively affect downtown diversity. “The project results in further segregated housing by not including very low-income to moderate-income residents,” the suit says. “Such a disparate impact upon persons of color has been ruled by the Supreme Court a violation of the 1968 Fair Housing Act.”
The suit further points out that the Downtown Area Plan calls for “a range of housing opportunities (with) an emphasis on affordable housing and family housing,” while the project includes 70 percent studio and one-bedroom units and just six three-bedroom units.
Hammargren accuses the city of accepting the developer’s land-cost figure of $40 million, contending that costs were actually $19.6 million. Based on cost considerations, developers rejected a more expensive “green” building alternative and the addition of affordable units.
“Such alternatives were deemed ‘not feasible’ based upon the respondents unexamined pro forma documents,” the lawsuit says.
Moreover, the complaint calls the Shattuck Hotel “the most significant historic Cultural Resource in the City of Berkeley” and says its demolition (developers call it an “alteration”) “places the remaining structure at risk by … excavating deeper under this Cultural Resource to construct three new movie theaters.”
The suit claims the underground theater design was approved without studying possible impacts.
Hammargren was not available for comment; Mark Rhoades of the Rhoades Planning Group, which is assisting developers in planning the project did not return calls for comment, and city spokesman Matthai Chakko said the city does not comment on pending litigation.