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Citizens File Suit Seeking To Overturn UC-City Pact By J. DOUGLAS ALLEN-TAYLOR

Friday September 02, 2005

A group of Berkeley citizens filed a lawsuit against the City of Berkeley and several city officials in the California Superior Court in Oakland yesterday, asking the court to set aside the city’s settlement agreement with the University of California over UC’s Long Range Development Plan because it “contracted away the City Council’s right to independently exercise its police power in the future.” 

The plaintiffs charge that the agreement would deprive the council (and future councils) of independent regulatory and planning powers and also of environmental protection authority, which they claim is in violation of state and local law and contrary to at least three settled lines of legal authority in case law. 

The lawsuit was filed by the law offices of Oakland attorney Stephan C. Volker on behalf of Carl Friberg, Anne Wagley, Jim Sharp, and Dean Metzger. All four plaintiffs are neighborhood activists who live near the university campus. Wagley is a former District 8 City Council candidate, and is the arts and calendar editor for the Berkeley Daily Planet. 

“The suit points out that the city sold its autonomy for the illusory promise of a few more dollars from the university,” Volker said. “The agreement violated the state constitution and the city’s own charter, which forbids the city from delegating its legislative authority to the university. It gave the university veto power over the Downtown Plan and the City Charter prohibits that.” 

Volker said the city’s interests and those of UC are opposed to one another in regards to development downtown. 

“The city sold its independence to another agency and that’s unconstitutional,” he said. 

The suit lists the City of Berkeley, Mayor Tom Bates and Councilmembers Linda Maio, Darryl Moore, Max Anderson, Laurie Capitelli, and Gordon Wozniak as defendants, along with City Manager Phil Kamlarz and City Attorney Manuela Albuquerque. 

Not listed as defendants were City Councilmembers Dona Spring, Kriss Worthington, and Betty Olds. Wagley said that those councilmembers were not included in the lawsuit because they voted against the Berkeley/UC Berkeley settlement agreement. 

The suit requests the court to invalidate the settlement agreement and to reinstate the city’s lawsuit against the university. One of its major contentions is that “the settlement agreement redefines, without any opportunity for city Planning Commission review and approval, or public participation, the Downtown Area Specific Plan boundaries,” amounting to a significant expansion of the downtown area. 

Sybil Parks-Brown, secretary of the Berkeley city attorney’s office, told the Daily Planet that “it is our policy not to comment on any on-going litigation.” 

The roots of the dispute go back to last February, when the City of Berkeley filed its own lawsuit against the university in state court, charging that the university’s Long Range Development Plan (LRDP) violated state law and would sanction a university building boom inside of Berkeley, leaving Berkeley residents to pay for strained city services and clogged roads. The city’s lawsuit contended that the university circumvented the state’s Environmental Quality Act (CEQA) by not disclosing all of the effects the LRDP would have on the city. 

“The university asked us to sign the equivalent of a blank check that would allow it to build wherever, whenever, and however it would like,” said Bates at the time of the filing of the city’s lawsuit. “This lawsuit firmly states that we are not signing anything until we know what we are buying.” 

But the Berkeley citizen plaintiffs in the new lawsuit now charge that when city officials eventually gained that information from the university in closed door meetings, they withheld the information from their own citizens until a binding agreement was reached with the university. 

Last May, after a series of private negotiations between city and university representatives over the university’s LRDP, the Berkeley City Council voted in closed session to approve an agreement with the university that called for, in part, the city’s dropping of its lawsuit. The terms of the settlement agreement were not released to the public before City Council’s vote and were only released after the university approved the agreement several days following the City Council vote. 

Under the agreement, UC Berkeley is required to increase its annual payments to the city from just over $500,000 to $800,000, with the amount increasing by 3 percent every year through 2021. The payments, which will go to sewer and fire services as well as transportation improvement and neighborhood beautification programs, were far lower than the $4.1 million originally sought by the city. 

When details of the agreement were publicly announced, Bates said that he agreed to the settlement because even if the city had prevailed in court against the LRDP, the university “would have still gotten exactly what it wanted with just more stop signs.” 

UC Chancellor Robert Birgeneau said the university didn’t have enough money to raise its offer to the city, and the eventual settlement agreement was the best the university could do. “We’re running a deficit too,” he said.  

Shortly after Berkeley city officials dropped the city’s lawsuit against the university, a superior court judge dismissed a petition filed by Friberg, Wagley, and Councilmember Worthington asking to intervene as a third party in the city lawsuit. 

At the time of the filing of that petition last May, Worthington said that he hoped the court would allow the petitioners to pursue the lawsuit on their own, even though the city was abandoning the effort. “If the city doesn’t address [the issues raised in the lawsuit],” Worthington said, “the community should be allowed to pursue them.” 

The court ruled, however, that the petition came too late because lawsuit had been dropped before action on the petition could be taken by the court. 

The new complaint also charges that by reaching the settlement agreement “secretly, in closed session, without any public notice or participation,” the city broke state law.