Column: The Public Eye: The City and UC Berkeley: The Honeymoon is Over By Zelda Bronstein

Tuesday December 20, 2005

After only seven months, the ballyhooed “new partnership” between the City of Berkeley and the University of California appears to have hit the rocks. Last week Berkeley City Manager Phil Kamlarz sent UC Principal Planner Jennifer Lawrence a 19-page letter blasting the ethics and the legality of campus planners’ initial environmental reports on the massive development slated at and around Memorial Stadium. Prepared by Berkeley Planning Director Dan Marks, the letter says that the university’s descriptions of the proposed projects—the Student Athlete High Performance Center, the new Law and Business School academic commons, an 845-car garage and the stadium renovation and expansion—are so vague that the city cannot adequately comment on them.  

It wasn’t supposed to be this way. Last May the city dropped its lawsuit over UC development and joined the university in an alliance that Chancellor Birgeneau and Mayor Bates hailed as a model for other California communities with UC institutions. Town and gown, they repeatedly assured us, had entered a new era of mutuality and cooperation.  

But this marriage was headed for trouble from the start. As so often happens, the two partners had disregarded some basic incompatibilities and rushed into a relationship that allowed one to dominate. After reading the litigation settlement agreement, you’d think that the university had sued the city, because the city made all the concessions. The council majority essentially surrendered the city’s legal right to plan and regulate development. The mayor has repeatedly contended that, given the university’s exemption from local zoning and planning laws, this is the best deal the city can get. Translation: If we want the university to work with us, we have to play by its rules.  

The problem is that the university’s rules are very different from the city’s. The city is governed by a democratically elected mayor and council who determine Berkeley’s land-use laws and policies based on recommendations from the planning commission, whose members they appoint. University officials, on the other hand, are appointed by and accountable to the Regents, not the public.  

The university is also internally undemocratic. UC administrators generally operate behind closed doors, without public notice or review. City officials, by contrast, are subject to California’s sunshine law, the Brown Act. It’s illegal for a quorum of any legislative or judicial city body to meet or take action in secret or without adequate public notice.  

The Brown Act, however, does not apply to city staff. Legally, staff can and do meet in secret. Consider, then, that the litigation settlement agreement lodges responsibility for preparing the new Downtown Area Plan (DAP) with the city and campus planning directors, instead of where it legally belongs, with the city’s planning commission. Every other area plan—West Berkeley, South Berkeley, Southside and the existing plan for downtown—was drafted by a broadly inclusive stakeholders’ group overseen by a planning commission subcommittee.  

The university’s disdain for open, community-based planning is scarcely news. But in the current push for UC expansion, city staff have also been sidelined. Clearly Phil Kamlarz and Dan Marks hadn’t been briefed, much less consulted, about the stadium area projects. And it’s not just UC officials who’ve left the city’s planning staff out of the loop. Marks and his colleagues have also been bypassed by Mayor Bates.  

E-mails exchanged by city and university staff last summer offer a rare inside glimpse of both UC maneuvering and Bates’ roguish style. On Aug. 23, UC Principal Planner Kerry O’Banion e-mailed Marks concerning the block bounded by Oxford, Center, Shattuck and Addison in downtown Berkeley. The east portion of the site is slated for a new University Art Museum, Pacific Film Archive and underground garage. On the western end, the university is planning a 12-story hotel and convention center to be developed by Richard Friedman’s Carpenter & Co. That portion is privately owned and thus subject to city law. In spring 2004, a citizens’ task force convened by the planning commission formulated guidelines for the hotel and conference center project. (I was a member of that task force.) 

“As you know,” O’Banion wrote to Marks, “we and the prospective hotel developers have been working with SMWM [a design firm] on an ‘urban design study’ of the hotel/museum block….The study will include suggested guidelines based to a considerable extent on the hotel task force report and the city’s downtown guidelines.” Nevertheless, he noted, “the hotel is a very sensitive issue for the city, given its scale and the mayor’s desire to exempt it from the downtown area plan. I would expect the last thing you need is for a study that describes the potential hotel project to be released to the public before you have the politics in place—particularly one that may create the impression the campus is trying to control the agenda….How ‘public’ the study becomes on the city side is an open question at this point, but we definitely do not want to prematurely ‘out’ the project.” 

O’Banion invited Marks to meet and discuss “how to position the study to serve both our interests.”  

Later that day, Marks forwarded O’Banion’s e-mail to Bates’ chief of staff, Cisco de Vries, along with a cover message. Marks wrote: “I don’t know how much contact Tom has with Friedman—but … I’m very concerned that (we) city staff have had no contact with the hotel developer in over a year. I hear thru my grapevine that Tom has told Friedman that he need not get caught up in the Downtown Plan—but I’m not sure that’s possible. I do know that if we want to try and bifurcate the hotel from the DAP, we have a lot of thinking to do—preferably with Friedman…[I]f Tom has made representations to them about process, we probably all do need to sit down together to discuss the process.”  

Apparently the meeting sought by O’Banion did take place, with Bates in attendance. Last week UC Capital Projects senior planner Kevin Hufferd announced that the university is seeking an architect for the UAM/PFA project. As reported by Richard Brenneman in the Dec. 9 Daily Planet: “Hufferd said Carpenter & Co. officials held meetings with Mayor Tom Bates, City Manager Phil Kamlarz and the city planning staff in the fall. He added that the mayor had also offered to place the hotel complex on a fast track for development independent of the Downtown Area Plan process mandated in the settlement of a city suit against the university earlier this year.”  

The first step in getting out of a bad relationship is to face the facts. Here are some hard ones. UC is proceeding with campus expansion exactly as it did before the settlement agreement—unilaterally. Mayor Bates’ shifty, Ron Gonzales-like behavior is reinforcing the university’s presumptuous attitude toward the larger community. Nothing in city law or policy authorizes the Berkeley mayor to cut backroom real estate deals, especially deals that violate city law or policy. The settlement agreement has actually weakened the city’s position vis-à-vis the university. It legally ties the city’s hands, even as it provides both UC administrators and the mayor with rhetorical cover for their imperious ways.  

These realities leave conscientious city officials with only one honorable course: Do what is necessary to nullify the agreement. Then pursue a relationship with UC that genuinely respects the rights and needs of Berkeley citizens. And tell the mayor that for any such relationship to work, he has to play by the rules—the city’s rules.