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Activist Files Motion Calling UC Deal ‘Extrinsic Fraud’ By RICHARD BRENNEMAN

Tuesday June 28, 2005

Berkeley activist Peter Mutnick has escalated the battle over the settlement of the city’s suit over UC Berkeley’s controversial Long Range Development Plan 2020 by filing papers asking the court to issue an order ruling that the lawsuit was dismissed by an act of extrinsic fraud. 

If successful, his motion could send the case back into the litigation that came to an end with the settlement negotiated by Mayor Tom Bates and UC Berkeley Chancellor Robert Birgenau. 

His strongest endorsement comes from Berkeley City Councilmember Dona Spring, who signed a six-page declaration in support of Mutnick’s motion. 

The motion asks for a hearing on or before July 20 in the courtroom of Alameda County Superior Court Judge Bonnie Lewman Sabraw, the jurist who handles litigation under the California Environmental Quality Act. 

In an attached memorandum filed with the court, Mutnick blasted “the two-fold effect of a fraudulent confidentiality agreement” that barred the public from seeing or commenting on the agreement before the City Council approved it on May 24. 

Spring’s declaration says that she wrote it because of “my concerns over several potential serious illegalities” with the agreement. 

“Was the Brown Act violated in keeping this agreement from the public,” she asked, “giving them no opportunity to comment or intercede legally particularly since the agreement dealt with land-use development standards normally the purview of ordinances?” 

Spring said the agreement itself “violates state law and the City of Berkeley Charter” and violates CEQA law by giving the university power to unilaterally veto adverse findings in environmental impact studies and their proposed mitigations. 

The agreement creates a joint planning process for the downtown area, while UC retains immunity from city land use regulations on properties it builds downtown.  

Unless the city completes the Downtown Area Plan and the accompanying Environmental Impact Report in 48 months, the university’s agreed-on compensatory payments to the city will drop by $15,000 for every month of delay. 

The agreement also calls for Downtown Plan and EIR hearings before Berkeley commissions and the City Council to be coordinated with the university, which Spring sees as a loss of autonomy for the city. 

Mutnick’s own declaration states that he “tried in vain to prevail upon the [city] to abide by the requirements of the Brown Act... There was a core lie or deceit or fraud that the Mayor and the City Attorney were operating under and claiming as their justification.” 

Exclusion of the public from negotiations and settlement review process, he charged, was a “criminal act [that] was a crime against the Proposed Interveners, all citizens of Berkeley, the system of democracy and the integrity of the court.” 

Mutnick, who is not an attorney, filed his motion “in pro per,” meaning that he will represent himself in the litigation. 

“I feel confident of victory on July 20 or soon thereafter,” he wrote in an e-mail Saturday to three councilmembers and others in the community interested in his action. “We are right this time and we will win.” 

At least one other challenge to the settlement is reportedly in the works, but no documents have as yet been lodged with the court. 

Spring said she had made the statements contained in her declaration to many individuals and groups in the city, and agreed to sign it at Mutnick’s request. 

“It feels good to do it,” she said late Monday afternoon, “but it feels bad that it’s come to this.” 

She called the settlement “a scar on the civic body that will not heal until this agreement is struck down.” 

Spring called the pact “part of a trend allowing city government to sell or give away broad municipal power,” an act she described as “directly contrary to the City Charter.” 

Spring said she was particularly concerned that the council was only informed that City Attorney Manuela Albuquerque and Mayor Bates had agreed to a joint planning process in the body’s first executive session in May. 

“Only then did we discover that the city attorney had gone beyond protecting the city’s financial interests in reaching the settlement,” she said.