Editorials

Here is an instant critique of the UC-city settlement. While one should be humbled by Theodore Roosevelt’s dictum that it is not the critic who counts, but the man in the arena, in a democracy critics (especially those who volunteered to participate but were excluded from the arena) have an obligation to speak up. While the passage of time may bring greater perspective, at the moment one asks if the city is worse off with this settlement than if they had never filed the CEQA lawsuit in the first place. T he city has limited its future environmental and fiscal options notwithstanding changes in the law—such as the Cal State Monterey Bay case pending before the California Supreme Court that could give the city a CEQA opportunity to exact full mitigation for UC’s impacts—and obtained little prerogative or improvement in return. 

In rough order: 

1. The settlement lacks the legitimacy and validation that would have come with public participation in its formulation. 

2. Although the city’s lawsuit led with the compelling claim that the university’s system-wide Master Plan has been adopted without environmental review, the settlement imposes no duty on UC to conduct such review. UC can continue to insist on a statewide mandate that the Berkeley campus continue to expand, without having justified or mitigated that growth. 

3. While the settlement reduces the planned parking somewhat, new parking measured against existing conditions (and not past “paper parking” approvals) is still overwhelming. The university st ill escapes a commitment to “no new net trip generation,” the policy adopted by Stanford and University of Washington to enable university growth with no increased traffic impacts. In essence UC assigns all responsibility for transportation improvement to the city (e.g., the questionable Telegraph Avenue bus corridor) rather than shouldering responsibility for its own impacts. Is it not significant that in the recitals only the City of Berkeley, and not UC, supports alternative transportation measures? 

4. The asserted joint downtown plan, presented as a new benefit, appears to drive down a one-way street: UC can block any environmental impact report or mitigation measures proposed by the city, but even after that and once a plan is adopted by the city, U C is not bound by it (only “guided,” to use a well-worn land-use weasel word). If the plan were truly joint, UC would act as CEQA responsible agency, the UC Regents would be obligated to adopt the plan, and UC then be expressly bound by it. Instead, UC re peatedly reaffirms its asserted “autonomy” from local regulation on sites off the main campus. (A true joint planning effort would relinquish that autonomy on UC projects within the city’s downtown, and would also provide for parallel city participation i n UC planning for its on-campus projects.) 

5. The city signs off on the new Southeast Academic Commons, with no definition of that project or limitations on its design. (The one limitation is that it be consistent with the long-range development plan, bu t one of the city’s compelling legal claims is that the LRDP failed to include that project even though it was announced a week after LRDP approval.) While as a member of the law school faculty I hope the Academic Commons can be both quickly and satisfact orily completed, the agreement’s failure to define that project’s constraints right now only invites future controversy. 

6. The city leaves unresolved concerns that have motivated the high degree of community concern. Residents surrounding the campus will likely find many of their issues simply unaddressed: new UC projects on the Northside, and Memorial Stadium. Particularly since the stadium project will commendably retain its historic footprint and design, one wonders why the city did not extract from UC a commitment to no permanent lighting, and restrictions on non-football stadium use, so that the stadium controversy could be put to bed and renovation proceed with no further impediment. 

Despite these critiques, one has to express empathy for city of ficials, facing at once budget shortfalls (reducing motivation to litigate worthy claims, and increasing the attractiveness of “half a loaf” UC reimbursements), and also the university’s constitutional immunity from any local land use regulation. As a law yer I can’t recommend a cure for the former, but as to the latter the question must be raised: do we need more proof for a state constitutional amendment to remove UC’s exemption from the local governance the rest of us, including private universities, must honor? 

Antonio Rossman is a land-use attorney and Boalt Hall professor. Becky O’Malley is on vacation.  

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