Election Section

In her column of Aug. 2, Zelda Bronstein aptly referred to violations of the municipal code in the agreement between the city and UC but failed to suggest that there might be any other legal problems involved. Although I make no claim of expertise in this area, here are some thoughts on the matter. 

The settlement agreement of May 25 between the University of California and the City of Berkeley served to terminate the lawsuit that the city had brought in response to the environmental impact report of the new Long Range Development Plan of the university. The settlement involved, in part, the city effectively selling to the university (ostensibly for services) certain powers of municipal decision-making, including a veto capacity over land-use plans in the downtown until the year 2020. 

The city’s action of conferring power to UC appears to be in conflict with the city charter, which vests the city’s officials with exclusive responsibility for governance: “The council shall be the governing body of the municipality. It shall exercise the corporate powers of the city” (section 38) and “The City of Berkeley shall have the right and power to make and enforce all laws and regulations in respect to municipal affairs” (section 115). 

Nowhere in the charter are city officials authorized to delegate legislative or administrative powers to an extra-municipal party. If they were allowed to do so, then the City Council could give or sell zoning and planning powers to developers, real estate companies or anyone else.  

What the mayor and five members of the City Council did was transfer a quantity of formal power to a non-elected, non-accountable party outside of the city. The charter does not allow for the abrogation of civic autonomy by any means, including the delegation of sovereign powers. 

At the state level, it is questionable whether UC has the authority to establish a shared jurisdiction with a charter city. 

Another dubious facet of the settlement is that the residents and property owners of a substantial portion of District 4 (the downtown area) are to be subject to different authorities, standards and processes of planning and zoning than those in the other districts of Berkeley. This clearly constitutes a violation of their right to due process. 

Also, the settlement agreement appears to violate the California Environmental Quality Act. The settlement recognizes that the city is the lead agency for preparation of the Downtown Area Plan (DAP) and its environmental impact report, but then allows an outside agency, UC, to intervene extensively in the planning and execution of the EIR. It even allows UC to extort $15,000 per month if the city fails to complete its own Downtown Area Plan and EIR by an arbitrary deadline. 

The settlement states, “Any mitigation measures included in the EIR must be acceptable to UC Berkeley and applicable to all projects in the Downtown Area, regardless of ownership.” It seems to me very doubtful that CEQA would allow the city council to confer its responsibilities to another party. The settlement further states, “UC Berkeley reserves the right to determine if the DAP or EIR does not accommodate UC Berkeley development in a manner satisfactory to the Regents.” The settlement’s provisions that dispose the EIR analysis to conform to a pre-determined conclusion, regardless of the nature of the data or the public input, may well be in violation of CEQA. 

Dennis Walton serves as an aide to Councilmember Dona Spring. 

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