Public Comment

EDITOR'S NOTE: Kelly Hammargren was one of the original organizers of Save the Shattuck Cinemas, and she was one of the unsuccessful plaintiffs in lawsuits challenging the project's Environmental Impact Report. This week she completed her review of more than 800 pages of the public record of the City of Berkeley's dealings with the project backers of 2211 Harold Way, which is attempting to get a fourth renewal of its use permit grant from city staffers in the City of Berkeley Planning Department before Monday, January 20.

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. If you are having trouble keeping track of what is happening with the project proposed for 2211 Harold Way, here is what seems to be the latest, along with some history for context, information I acquired from making a Public Records Act (PRA) request[1] which resulted in 808 pages of communications between the City of Berkeley and the developer and developer’s representatives/agents.

The December 31, 2019 email from Joe Penner of the HSR financial firm, the current property owner and holder of the use permit which has already been approved, said:

“…The city believed that development projects are a never ending piggy bank."

Was this a ploy to get Timothy Burroughs, Director of the City of Berkeley Department of Planning and Development, to give the Harold Way project developers a fourth extension of time to get their act together? The third extension granted by Timothy Burroughs [link to Burroughs letter] expires on January 20 if the developer doesn’t pay the building permit fees.

Members of the Save Shattuck Cinemas group said all along that Harold Way developer Joseph Penner, founder of Hill Street Realty, /[2] was a speculator who would be selling the project after it was entitled (approved). Lawsuits[3] delayed the for-sale posting, but by December 31, 2016, the announcement was up on the Arbor Realty Capital Advisors website with the drawing of the project listed as 2200-2240 Shattuck Ave, not 2211 Harold Way[4] and the statement “coming soon.” While Arbor has updated its website since 2016, the Harold Way for-sale ad is can still be seen there today.

Even though the Harold Way developers won the 2016 lawsuits, the problems identified by the public through testimony at dozens of meetings and in their hundreds of letters didn’t go away. 

One was water: not the well-known regional drought, not overloading of the sewer system during the rains [link EBMUD letter from DEIR}, not even the sewage backup into Berkeley High School (BHS) buildings and onto school grounds with the agreement of the developer with BHS that the Harold Way project would not use the same sewage line as BHS. None of these were the source of the water problem for the underground garage. 

That was the warning given of the existence of ground water at the site by well-informed residents back in 2015, finally acknowledged in 2019 in the revision of the project plans. An old riverbed runs through the property, and the water table is too high to make a third level of parking feasible. Even with the river culverted under Allston Way, water remains a problem, so the promised third level of underground parking was eliminated. 

Probably no one will cry over losing the 59 spaces in the third underground level of parking. However a huge traffic congestion problem is looming if the project is built. 

A 471-square- foot room for holding package deliveries was added for the residents in the latest project revision[5] with no description or plan for how or where the delivery vehicle will park when dropping off all those packages. 

This package room is in addition to a 333-square-foot mail room. 

Harold Way is a narrow street, only one short block long with the YMCA and Post Office on Allston Way at the north end, the Central Library on Kittredge at the south end, and the Milvia Project Bikeway[6] just one block away to the west. As online shopping grows, the number of deliveries in neighborhoods is skyrocketing, as anyone can tell from the trucks doubled-parked in the street and empty boxes from deliveries stuffed into recycling containers. Now add deliveries for 500-600 new residents, quite possibly more[7], in a confined area one block from Berkeley High with more than 3000 students, taxis to the Shattuck Hotel, rideshare vehicles (Uber, Lyft), pedestrians, bicycles and no plan. 

This block and the surrounding streets have just turned traffic congestion into a nightmare, a nightmare that needs new traffic studies and further California Environmental Quality Act review. 

After weeks and months of only rare email exchanges visible in the 808 pages of PRA request documents, there was a September 3, 2019 letter from Kristina Lawson, attorney for Harold Way. [link to Lawson letter] It included a chart of changes (“minor modifications”) to the plan (though the package room was not in the list) with instruction to Planning Director Timothy Burroughs that the Zoning Officer has the authority to approve such changes from the Use Permit[8], which would serve to keep the developer’s demands out of the eyes of the public. 

It is a slippery slope when the Department of Planning and Development steps in to approve such significant changes from the Use Permit[9] --that makes the Zoning Adjustment Board (ZAB) irrelevant. It sets the stage for developers to call whenever a developer desires to escape from a condition imposed in the Use Permit by ZAB. 

Some members of the public say it has always been this way in Berkeley, with the Planning Department staff undoing in private what was approved before the public. The changes proposed to Planning Director Burroughs in this letter are far down that slippery slope: not just a minor tweak. And even with the contentions by the developer’s attorney, skirting ZAB doesn’t pass muster. 

The plan that developed between COB Planning staff and the developer for Harold Way, as can be seen in the public records, was to usher the revised project through the Landmarks Preservation Commission (LPC) on December 5, 2019 and Design Review Committee (DRC) on December 19, 2019. 

Anne Burns, Secretary for the Design Review Committee (DRC) wrote on October 21, 2019 to developer’s agent Mark Rhoades and Fatema Crane, staff secretary for the Landmarks Preservation Commission (LPC), cc’d to architect Mia Perkins and city planning staffers Steven Buckley and Shannon Allen, 

“Mark: …I’m still working on this review of the October 4^th submittal and had penciled this in for the December 21^st DRC meeting. We would like the best package possible going into our public meetings. This is a very complicated project. That being said, I did hear where you are working on submitting the building permit in December. Final Design Review is not going to hold up your building permit submittal.” 

Interesting! It looks like the developer and Planning staff expected all the changes to slide through, making any potential opposition from the DRC irrelevant. 

The December 5, 2019 LPC presentation did not go as staff planned. Instead it culminated in the unanimous vote by the LPC to continue 2211 Harold Way to a date uncertain and not to forward the project to the DRC. Commission Chair Christopher Adams instructed the Commission Secretary never to bring a project known to be so incomplete to the LPC again. 

Even the absence of LPC approval did not stop the march to complete the building permit submission before the end of December 2019. That was stopped by Joseph Penner. The rush to push the Harold Way project through the LPC and DRC before January 1, 2020 was to apply for the building permit before the year’s end to lock in 2019 building codes. That would presumably avoid more stringent 2020 standards, especially as regards environmental/climate electrification requirements. 

But it is not within the normal scope of the LPC or the Design Review Commission to review building interiors or monitor the significant community benefits which are required by Berkeley’s Downtown Plan for the limited number of extra-tall buildings which could be approved. That responsibility belongs to ZAB. 

ZAB needs to review more in the proposed changes than the added traffic, the loss of community benefits from eliminating four of the promised theaters, the reduction of developer costs through eliminating a floor of underground parking, and the increase in revenue by adding more bedrooms per unit. 

There is also the elimination of 10 floors of a stairwell. In the original design, that stairwell went from the 18^th floor to the ground. Now that stairwell stops on the 13^th floor and is picked up again on the 2^nd floor. Slipping through such changes without ZAB supervision cements them into the plans. 

And cement of a different kind is exactly the worry: that the building’s actual foundation will be laid without review of whether it will support the inclusion of the ten-theater Shattuck Cinemas which was supposed to be a mandated Significant Community Benefit. 

Attached to Kristina Lawson’s September 3^rd letter to Timothy Burroughs is the August 19, 2019 letter of intent from Michael Fant of Landmark Theatres, the current tenant, to formalize discussions with Joseph Penner of entering negotiations for a 20-year lease in the proposed complex. Included is not the promised 641 seats in 10 theaters, but approximately 800 seats in six theaters. [link to Michael fant letter] 

While some of the Commissioners and developer representatives would like the community and decision makers to believe that film is a dying business, Landmark Theatres seems to have upped the number of seats in their theater plans. The PRA material doesn’t indicate whether Landmark’s Shattuck Cinemas requested fewer theaters or they are making the best of the hand they are dealt. Watching film on the big screen for movie patrons is like watching live performance of plays, concerts, the ballet and other arts events. Losing Berkeley’s share of Landmark’s annual 10 million patron business would be a huge blow to the survival of downtown businesses, especially during downtown Berkeley’s present chaos, with multi-unit apartment buildings under construction in what feels like everywhere. 

The Shattuck Cinemas’ annual share of patrons is in hundreds of thousands. Petition signatures indicate that 60% of those patrons travel to Berkeley from the greater Bay Area for the independent and foreign films offered here. It is all of this that drove hundreds of people to attend numerous Harold Way hearings and to write letters that expanded the records in the environmental impact lawsuit to around 10,000 pages. The public insisted that if the Shattuck Cinemas were destroyed for this project they must be rebuilt in full. 

Several of the theaters promised for the original use permit were to be below ground, under the historic Shattuck Hotel. This seemed risky given the underground soil and water situation there. 

David A. Lopez, Architect, Assistant Building Official, Building and Safety Division was reassuring in our conversation. He said when documents come in that don’t match the Use Permit, the developer is given a choice: either build what was approved or go back to the planner and go through the process again. He also said that the Building and Safety Division never accepts that the applicant has properly checked the box of whether or not the project is in a landslide, liquefaction or fault zone as shown on the Environmental Constraints Map: The Division always checks the map. It was another reassuring comment, since the applicant did check “no” to this condition, and according to the Environmental Constraints Map, Harold Way does contain a liquefaction zone. 

As much confidence as David Lopez instilled in the Building and Safety Division’s commitment to safety, they can’t be on site every minute. We know from Library Gardens, where six young people died and seven were injured, that shortcuts by unscrupulous contractors can result in terrible tragedy.[10] Even well-intentioned highly trained people make mistakes with tragic outcomes. 

The Harold Way project is very unusual in that it includes demolition, excavation and construction under a historic property (the hotel guest rooms) that is not owned by the developer. There is the question of just how much construction stress can be absorbed by the Shattuck Hotel before there is damage to the structure, which leads to more questions. If structural damage occurs from construction will the guests and workers in the historic Hotel be safe? Will the companies engaged in the design and construction be adequately insured to pay the Shattuck Hotel damages? One would hope so and certainly the public would hope that the City of Berkeley isn’t seen as deep pockets to augment payouts if damage occurs. The other lingering question: Is it the intent for the disruption to bankrupt the Shattuck Hotel? 

At this point the message is that the Shattuck Hotel will stay open for business during construction. Realistically the volume of the hotel business will depend on the willingness of hotel guests to accept demolition and construction next to and under their hotel room. Pile driving near your hotel bed seems to be a stretch. 

When building fees provide the financial support to the City of Berkeley Planning Department, the pressure to push through projects should never be underestimated. It is obvious that the investor did not do his due diligence. Is it the City’s responsibility to rescue an investor who chose the wrong site to purchase? Just how long should the City propose a flawed project? The request for yet another extension follows a long chain of failures to find a buyer or to sustain investors to rescue the financing. 

There have been recent opinions and quotes in other media about how this must go forward, how difficult it is for this project to cover its costs and how this project should even be relieved of some of the conditions of the project approval. But according to Berkeley’s Downtown Plan, to be permitted to build one of the three buildings allowed to be above the usual 75 foot height limit at 180 feet, the developer must provide significant community benefits of some kind. 

Will this project provide more affordable or even low cost housing? There are no affordable housing units in Harold Way. A developer can remedy this lack by paying a per-unit mitigation fee in lieu of including affordable units. 

It is an interesting coincidence that after the land purchase was announced[11] and eight days before the building application was submitted, the Berkeley City Council reduced this in-lieu mitigation fee [12] by $8000/unit, saving this project $2,416,000. The special conditions spelled out in the ordinance exactly fit the time frame for Harold Way: submission of the application after the passage of the discount and approval of the project before 2016. This locked in the 2013 discounted fees. 

There is a seedy underside to the Harold Way promotions. It goes beyond the faux homeless youth who were dropped off in the morning and picked up in the evening from a large black pickup truck while the protests were going on. These youth with their disheveled appearance filled the sidewalk in front of the Shattuck Cinemas with clutter, blew smoke in patrons’ faces and turned up their boom boxes, all to make going to the Shattuck Cinemas unsettling. Once the City Council dismissed the appeals and approved the Harold Way project these characters vanished. 

In 2015, the Harold Way developer was caught misstating the land cost in the pro forma, the document of projected costs and income used to assess whether the Significant Community Benefits were too burdensome to prevent a reasonable return on investment. [13] Mark Rhoades brushed off the listed inflated cost of $40,000,000, saying they were just listing the land cost as what was expected to be the land value after construction. A revised pro forma was never required. It did become the subject of one of the appeals. 

There is construction of multi-unit housing going up all across the downtown and along the San Pablo corridor. The bulldozers are clearing the way for the project at Durant and Shattuck as this is being written. Berkeley is in a housing building boom that can be seen by walking through the downtown and along San Pablo Avenue. 

There has been enormous energy poured into trying to rescue the Harold Way project. Letting go of it would open the door for another developer to submit a proposal for a site that isn’t so problematic. It wasn’t just Save Shattuck Cinemas members who questioned why a project proposal for the most contentious block in Berkeley was being pushed so hard. It was also brought up from the dais at City Council that there should be competition for the selection of the limited number of tall buildings to be approved. 

It certainly is time for businesses to return to the building with the security of not being threatened with eviction, for hotel guests to bask in the luxury of sleeping in, for restaurants to feel more secure in weathering current downtown construction knowing that the Shattuck Cinemas will be in continuous operation all through it, and for the rest of us to watch documentary and independent films on the big screen in the beautiful Shattuck Cinemas theatres. 

There is more that could be said, but enough for one sitting.