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Legal Setback for Marin Ave. Change By RICHARD BRENNEMAN

Tuesday January 24, 2006

A Hayward judge has handed down a mixed victory for Raymond Chamberlin’s lawsuit challenging the reduction of traffic lanes on Marin Avenue. 

Unless the city complies fully with the California Environmental Quality Act, Berkeley will have to restore the roadway to its earlier, two-lane condition, ruled Alameda County Superior Court Judge Bonnie Sabraw in a decision filed on Jan. 13. 

Or will it? 

Neither Chamberlin, a Berkeley resident, nor city Deputy City Attorney Zac Cowan says he is quite sure what the judge’s ruling means. 

“Language is sometimes an imprecise instrument,” Cowan said. 

The ruling has no impact on the City of Albany, which conducted similar work on its portion of Marin Avenue, because Chamberlin missed the 90-day cutoff period before filing his challenge. 

In an effort to slow traffic on the roadway which parallels the highly congested Solano Avenue, the Albany City Council voted on Nov. 18, 2004, to approve narrowing the street from two lanes in each direction to one, while adding bicycle lanes. 

The project affects the length of Marin Avenue from San Pablo Avenue in Albany to The Alameda in Berkeley, where 85 percent of the traffic had been clocked at 35.6 miles per hour, more than 10 m.p.h. faster than the posted limit of 25. 

Albany had first prepared an initial study on the project—an environmental review document required by the California Environmental Quality Act—and adopted a negative declaration three days before the council vote, which held that the project carried no significant environmental impacts. 

Berkeley conducted its own hearings on the project and adopted a negative declaration of its own on Jan. 28, 2005. 

Chamberlin filed suit one month later, challenging the negative declarations, but did not seek to halt the project until July 8—the month after Berkeley removed the two cement islands from the median strip at the intersection of Marin and Colusa avenues. 

Superior Court Judge Bonnie Sabraw ruled July 25 that Chamberlin had filed his original petition too late to challenge Albany’s decision, and allowed that city’s work to continue. 

However, Sabraw also ruled that the action could continue against Berkeley—though denying his attempt to halt work on the project. 

While the judge ruled that Chamberlin had offered little evidence to support his claims that the reshaping of the Marin/Colusa interchange presented a threat to pedestrian safety or that it would impede emergency responses—both the Berkeley Police and Fire departments said it wouldn’t—the impact of slowing traffic was a different matter. 

Relying on a finding in the city’s initial study, Sabraw ruled that the document contained enough information “to support a fair argument” that reduced traffic times on Marin Avenue might send impatient drivers to side streets “and thus cause a significant adverse impact.” 

“Berkeley’s City Council appeared to have recognized the existence of this argument prior to approving the negative declaration,” Sabraw wrote. 

The judge cited comments from City Council members who worried that the project would “cause a disaster with great congestion” and the “the EIR (environmental impact report) is not a good EIR ... It’s flawed.” 

The fatal flaw in the approval, however, was the city’s request for an EIR only after it approved the reconfiguration project, rather than before. 

“CEQA, however, does not permit deferring evaluation of environmental impacts until after adoption of a negative declaration,” wrote the judge (emphasis in original). 

And here Chamberlin was supported by the one bit of scientific evidence he had provided, a study by the University of North Carolina which showed that on streets that carried more than 20,000 cars a day—which Marin Avenue does—a reconfiguration can lead motorists to divert to other, less congested streets. 

Cowan, Berkeley’s deputy city attorney, argued that the study was too general to be considered, but Sabraw wasn’t convinced. 

Furthermore, the city’s environmental study failed to consider traffic on “the network of quieter and more narrow streets immediately adjacent to Marin,” Sabraw wrote. 

“In light of this existence of this fair argument, Berkeley should have prepared an EIR ... prior to deciding whether to adopt the reconfiguration project....Failure to have done so was in violation of CEQA.” 

Studies conducted since the reconfiguration have failed to show the hoped-for five-mile-an-hour reduction in speed, and the city is now conducting another study to find out why. 

Under the judge’s ruling, the city must now rescind its original approval of the project, along with the negative declaration, and start the CEQA anew. 

Chamberlin said he’s not entirely happy with the process and is now considering an appeal, seeking to restore the action against Albany. He argues that under CEQA, projects should be considered as a whole, and that one part of the project cannot be separated from the other. 

A retired electronic engineer, Chamberlin represented himself in court—though that wasn’t his original intent. He’s now looking for a community-minded attorney to help with the appeal. 

“I’m not in a position to handle that level of expense,” he added. 

For Chamberlin, the basic issue remains pedestrian safety, and the diversion of traffic was the lesser issue. By doing away with the medians in the Colusa/Marin intersection, the city eliminated a stopping area for slower pedestrians, he said. 

“The judge said that pedestrian crossing safety wasn’t an issue, but I see it as an ongoing problem,” Chamberlin said. .