UC, City Downtown Settlement Heads to State Supreme Court

By Richard Brenneman
Thursday December 04, 2008 - 09:50:00 AM

The battle over the legal settlement that ended the city’s lawsuit against UC Berkeley’s plans for massive growth off-campus is headed for a higher venue. 

After defeats in trial court and before the state Court of Appeals’ First District, plaintiffs in the suit against both town and gown filed an appeal Thursday with the California Supreme Court. 

The action, brought by Daily Planet Arts and Calendar editor Anne Wagley and neighborhood activists Carl Friberg, Jim Sharp and Dean Metzger, seeks to void the agreement signed in secret by the City Council and university officials that ended the city’s February 2005 lawsuit, which had challenged the university’s Long Range Development Plan 2020 (LRDP). 

In exchange for dropping the action, the city agreed to pay the city $1.2 million throughout the life of the plan and to help fund a new downtown plan that would accommodate the university’s proposed 800,000 square feet of new construction in the city center. 

Stephan Volker, who has represented the plaintiffs at each level of litigation, is handling the appeal as well, while San Francisco attorney Charles Olson, who represented the university in the legal battle over Memorial Stadium and the now-vanished grove, has represented the university in this case too. 

Asked his opinion of the appeal, Berkeley’s acting City Attorney Zach Cowan said Wednesday that while he hadn’t received notice of the suit, “I don’t think the merits have changed” since the state Court of Appeals rejected the appeal in an unpublished decision filed Oct. 21. 

One of the issues in dispute is whether or not the city has the right to grant the university veto power over the new Downtown Area Plan, which Volker contends is a promise by the city to violate the California Environmental Quality Act. 

The appellate court ruled that the settlement agreement did not give the university veto power because the city could prepare its own plan if the university rejected the jointly prepared version. In his appeal of the appellate court ruling, Volker contends that the unanimous opinion drafted by Associate Justice Maria P. Rivera should be reversed “to protect the rights of citizens seeking to challenge present, illegal contractual commitments” before they can be implemented at a later date. 

The city had initially filed the LRDP lawsuit challenging the actions of the UC Board of Regents in approving both the plan and the accompanying Environmental Impact Report. 

The city filed a second action that challenged the so-called Southeast Campus Integrated Projects, which included the stadium and other buildings projects, among them a nearby underground parking garage and a large new building joining functions of the law and business schools. 

The city dropped out of that case after a loss at the trial court level. That decision too is being appealed. 

Meanwhile, the Berkeley Planning Commission is preparing its own version of the Downtown Area Plan. It is significantly rewriting the portion of the plan prepared by a citizen panel appointed by the City Council and augmented by three planning commissioners. 

Both the original plan and the rewrite will go to the City Council, which will adopt a final version by May 25 or risk the loss of $15,000 a month in promised university funding for every month of delay.