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The City of Berkeley scored a first-round legal victory when a judge dismissed a lawsuit challenging the City Council’s agreement with UC Berkeley that paved the way for the new downtown plan. 

Alameda County Superior Court Judge Jo-Lynne Q. Lee signed her opinion April 3 and filed it two days later, but the lawyers for both sides only received notice Tuesday. 

“We’re real happy about it,” said Deputy City Attorney Zach Cowan. “It was not one of those one-liner decisions that simply says ‘we find for the defense.’ It was a very long, careful decision, and she cited everything.” 

Stephan Volker, the attorney who represented the citizens who challenged the settlement, said he will appeal as soon as a final decision is signed by the court. “We have reviewed the court’s ruling and we feel it is profoundly flawed,” he said. 

The plaintiffs—including Daily Planet Arts and Calendar Editor Anne Wagley—had challenged the legality of the agreement that ended the city’s own lawsuit challenging the legality of the university’s latest Long Range Development Plan (LRDP). That plan covers university expansion plans through 2020. 

The plaintiffs did win one element of their case when Lee rejected the city’s claim that any legal challenge to the settlement was premature prior to the adoption of the new downtown plan. 

But on the key point, the claim that the city council illegally surrendered its land-use regulatory and police powers, Judge Lee ruled that the May 25, 2005, agreement didn’t violate the city’s powers because the city has no ability to regulate development on university-owned land downtown. 

She also ruled that the university’s veto power over the revised Downtown Area Plan (DAP) now in preparation wasn’t unlawful but merely a recognition that the plan “must meet the ‘joint’ needs of the parties” and noted that the city could prepare a plan on its own if the joint plan doesn’t meet with their approval or university acceptance. 

Nothing in the agreement, she wrote, “suggests that the joint DAP will not be subject to the full panoply of public hearings and proceedings required of any land-use decision or project undertaken by the City.” 

While Wagley and co-plaintiffs Dean Metzger, Jim Sharpe and Carl Friberg charged that the city violated the Brown Act, which governs public meetings in California, Lee ruled that nothing in the negotiations and deliberations violated the law because the plan resulting from the settlement will be subjected to the full statutory range of hearings and reviews before it can be adopted. 

The judge also ruled that the settlement doesn’t violated city code governing adoption of plans, because the law allows the City Council to direct the Planning Commission to propose and prepare a plan. 

Lee also held that the plaintiffs didn’t prove their claim that the city violated the state Public Records Act by denying or unreasonably delaying their requests for documents. 

After reviewing the documents in questions, she held that all the withheld documents either fell under attorney/client privilege or had been simply overlooked and were provided later. 

The decision doesn’t become final until the city prepares a formal judgment for Lee to sign. Once she signs, Volker said, he will begin preparing the appeal. 

He cited three possible grounds for appeal “off the top of my head”: 

• The agreement violates the California Environmental Quality Act (CEQA) because it gives the university veto power over the environmental impact report required before a new downtown plan can be approved. 

• The settlement agreement that ended the city’s legal challenge of the LRDP violates the Berkeley City Charter and state planning law because it gives UCB veto power over the adoption of a new Downtown Area Plan. 

• The settlement agreement violates CEQA requirements for a state-owned university to pay local agencies to mitigate the costs of police, fire, traffic, parking, sewer and other public services required to serve university off-site developments. 

A recent state supreme court ruling in the case of City of Marina v. Board of Trustees of the California State University requires payments to local governments when they are the only realistic means of mitigating the impacts, Volker said.  

Cowan rejected the notion that the city had given up its sovereignty. “How could anyone think that?” he said, recalling his reaction when he first saw the suit. Lee “is a very smart judge,” he said, “and she spent a great deal of time going through the issues in great detail.” 

Simply because the city and university met civilly to resolve the issues in discussions leading up to the settlement didn’t mean the city was giving up anything, he said. “You have two grown-up agencies trying to act like grown-ups rather than fighting for the sake of fighting,” Cowan said. 

The notion that the city would capitulate needlessly is disproved by the ongoing legal battle between the city and the university over the impacts of the university’s plans for major development projects in the stadium area, he said.