Public Comment

The Berkeley city attorney has stated that false claims have been made against the city in the lawsuit over the settlement agreement with the University of California (Friberg v. Bates, case no. 05230715).  

As one of the plaintiffs in this case, I take such allegations seriously, and appreciate the opportunity to respond. 

Let me begin with putting this in context: 

On May 17, 2005 the Berkeley City Council was presented with the proposed settlement agreement with the University of California. This was in closed session, council members were not allowed to make copies of the agreement, and were not allowed to discuss the agreement with their constituents prior to voting on it at the next City Council meeting. No councilmember, other than Mayor Tom Bates, had been party to the negotiations of this settlement agreement. 

We, the public, later learned that there was a confidentiality agreement between Mayor Bates UC Berkeley Chancellor Robert Birgeneau, further precluding the council’s and the public’s participation in determining the content of the settlement agreement. 

On May 24, 2005, again in closed session, City Council voted to approve the settlement agreement, with Councilmembers Worthington, Spring and Olds voting no. 

The following morning, the Regents of the University of California approved the settlement agreement and the document was released to the public. 

It came as a great surprise to those of us who had been watching and commenting on the university’s development plans to realize that the majority of the settlement agreement was devoted to explaining the process of creating a new Downtown Area Plan for the City of Berkeley. 

The idea of a new Downtown Area Plan had not been raised by the University in their Long Range Development Plans, and not by the public in commenting on those plans. It had not been raised by the public at City Council meetings prior to the settlement agreement, and not by any council member nor at any council meeting that I know of. And it had not been raised at the Planning Commission, the city’s body charged with developing new area plans for the City of Berkeley. 

This was a new concept never before raised in public. And now it was the law, the settlement agreement having been filed with the Superior Court, Alameda County. 

And, as of December 2006, we still do not know where the idea of a new Downtown Plan came from, despite numerous Public Records Act requests and discovery relating to the lawsuit. 

Most disturbing to us, and the reason for our lawsuit, is the powers given to the university in the settlement agreement to craft and approve a new plan for the city’s downtown. 

The university may be the most important power in the city, but they do not have the legal power to plan or approve development in the City of Berkeley, any more than any other entity, the Downtown Business Association, the Berkeley Architectural Heritage Association, the bicycle riders, the neighborhood groups or the arts venues. All deserve a seat at the table in drafting a new area plan, but none has more power than any other, and none has power over city council. 

The specific powers granted to the University of California in the settlement agreement are as follows. I will quote directly from the agreement, which is exactly what you and the Regents approved: 

“UC Berkeley will participate in a joint City of Berkeley/UC Berkeley planning process for the Downtown Area of Berkeley.” (Section II, p. 5) 

This new Downtown Area is larger than the area covered by the current Downtown Plan. This came as quite a shock to the residents of the newly incorporated areas, as there had never been any discussion about including them in the downtown. 

“Staffing for the preparation of the Downtown Area Plan shall include at least one … city planner and one ….UC Berkeley planner…” (II.A.1) 

“All public meetings regarding the Downtown Area Plan … must be jointly planned and sponsored by the City of Berkeley and UC Berkeley. All DAP and EIR meetings before all city commissions and the City Council will be coordinated with UC Berkeley.” (II.B.5) 

“…because the DAP is a Joint Plan, there shall be no release of draft or final DAP or EIR without concurrence of both parties.” (II.B.6) 

“Any mitigation measures included in the EIR must be acceptable to UC Berkeley …” (II.B.6) 

“UC Berkeley reserves the right to determine if the DAP or EIR meets the Regents’ needs. The basis for making such a determination would be that the DAP or EIR does not accommodate UC Berkeley development in a manner satisfactory to the Regents.” (II.B.7) 

Unfortunately the settlement agreement does not include the equivalent statement the UC shall not build projects that do not accommodate the needs of Berkeley in a manner satisfactory to the City of Berkeley. 

The quotations above are the exact words City Council approved. These are the exact words the Regents approved, and these are the exact words filed with the Superior Court of Alameda County. There is no ambiguity, and no confusion over the intent of the settlement agreement. 

This is the plain language and it is quite extraordinary in its delegation of powers to the university, and even more extraordinary that Berkeley City Council approved this. (With the honorable exceptions of Councilmembers Worthington, Spring and Olds).  

So you can see why residents of the City of Berkeley, who value public participation and community involvement in determining the future of our city, should be so horrified by the terms of the settlement agreement. 

We did not elect the Regents, they may not even live in Berkeley, and their plans are not subject to our laws, so why are they given the power to approve what may happen in our downtown? 

Someone had to sue the city for improperly giving away our planning powers. But it is not an easy decision to sue one’s own city, and the people we have elected to represent us. It is even more daunting to include in the suit the very powerful UC Regents. 

But what was approved in the settlement agreement is illegal, wrong, violates our own planning processes, and is detrimental to the valued democratic tradition of public participation we have in our city. 

This is the whole truth, and nothing but the truth. 

Anne Wagley is a Berkeley resident and works for the Berkeley Daily Planet. Further information on the lawsuit can be found at www.berkeleyblue.org.