Public Comment

The superior court’s decision should ensure that the UC-City settlement continues to receive deserved examination, both legally and politically. That is because one premise of the court’s judgment—that the city could lawfully cut the public out of the settlement of a significant CEQA case—conflicts with the leading appellate decision on that subject, and thus deserves its own appellate review.  

Yet another of the court’s bases for decision—that the city did not surrender its land use authority by agreeing to share it with UC in the downtown area—should haunt both the city and university with this overriding question: if Berkeley can agree to share its land use authority with UC on city-controlled land, should not the university in the exercise of its constitutional “sovereignty” also voluntarily agree to share its authority over campus development with the City of Berkeley?  

Because I believe the superior court correctly ruled that the city could enter into the downtown plan agreement, and the city won that point, Berkeley citizens can now rightfully urge their government to insist that UC grant the same shared prerogative over campus lands. In the end, such a voluntary agreement by both town and gown to honor and harmonize each other’s land use plans—a goal that the County of Merced has partially achieved in development of UC Merced and its surrounding community—will produce wiser decisions and make both better neighbors.  

But none of this litigation would have been necessary had Berkeley’s leaders kept their promise to subject the CEQA settlement to public review before it was submitted for final approval by both parties. In 1984 the Sacramento Court of Appeal made clear in the County of Inyo v. City of Los Angeles water dispute that with important public rights at stake, the individual parties were not free “privately” to settle their CEQA case without involving the greater public. Berkeley’s mayor, city council, and city attorney violated the Inyo principle in asserting that UC “forced” them to keep the settlement private until it was too late for citizens to intervene and force public review. By ruling against the four individual petitioners in the present case, the superior court has enabled them to enforce the Inyo principle on appeal. 

Antonio Rossmann has practiced land use and water law for 35 years, including the Inyo and Merced examples cited here, and teaches those subjects at Boalt Hall.