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Mitch Kapor, founder of Lotus Development Corp., wants to build a house in the Berkeley Hills.

A group of Berkeley residents has filed suit against the City of Berkeley for failing to follow due process when it approved an application, by Lotus founder and philanthropist Mitch Kapor, to build a new home near the Rose Garden in the Berkeley Hills.

The newly formed Berkeley Hillside Preservation group filed a petition in the Alameda Superior Court yesterday stating that the city improperly exempted the Kapor application from an environmental review that is mandated under the California Environmental Quality Act (CEQA).

"This application was approved without following environmental laws,” says Susan Brandt-Hawley, the attorney representing the Hillside Preservation Group.

Kapor’s attorney, Rena Rickles, said she was not in a position to comment.

Brandt-Hawley says the Berkeley Hillside Preservation is made up of Berkeley residents, some of whom live close to the Kapor site. She says the group is asking that the court issue a peremptory writ ordering the city to set aside its approval of the project pending compliance with CEQA.

At the heart of the petition is the issue of grading. The group cites expert evidence from geotechnical engineer Dr Lawrence B. Karp, which states that a grading study is necessary to ascertain whether massive grading and foundations would be required to prevent seismic lurching of the hillside lot.

According to one source "seismic lurching is the movement of a soil or rock mass toward an unsupported free face such as a sea cliff, road cut, or steep natural hillside."

An environmental review would also consider impacts relating to demolition, traffic and aesthetics.

The plan by Mitch Kapor, who is also an adjunct professor at UC Berkeley, to build a home for himself and his wife, Freada Klein, in north Berkeley, has been dogged by controversy from the outset. This despite the fact that many of the immediate neighbors of the proposed Rose Street site support Kapor’s proposal for a home there.

On April 27, Berkeley’s councilmembers voted to green-light construction of the home after rejecting an appeal against the January approval for the project by the city’s zoning board. The consensus was that the application was exempt from environmental review because it was for a single family home.

The Berkeley Hillside Preservation lawsuit points out that exemptions cannot be used when there is expert opinion that a proposal may have environmental impacts, and that the size of the proposed home — 10,000 sq ft when including a 10-car garage — means the project is not a typical low-impact single-family project.

"We worked arduously on our appeal to the City Council, focusing on issues of process and the unstudied impacts of this project," Berkeley neighbor and co‐petitioner Susan Nunes Fadley said in a prepared statement. "Now we look to the court to address them.”

Before this latest development, Kapor's next step would have been to seek a demolition permit to take down the abandoned 1920s-era house at 2707 Rose Street.

Should he decide to pursue this, Brandt-Hawley says the Hillside group will seek a court order to stop it.