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In ruling for Malibu citizens against their city council last week, the Los Angeles-based Court of Appeal set aside a secretly-negotiated and secretly-voted-on CEQA and land use settlement on two grounds: the Malibu City Council unlawfully contracted away its future police power over a specific project, and the council unlawfully committed to future governmental action that independently requires a public hearing. (Trancas Property Owners Assn. v. City of Malibu, No. B174674, Sept. 26, 2005.) 

In the court’s words, “It therefore appears compelling that the statutory allowance for settlements in closed session not override extrinsic requirements for public proceedings.”  

In lay terms and common sense: more important than settling city litigation is the right of citizens to learn in advance and influence the settlement terms. 

If anything the case against the secretly-negotiated deal between UC and the City of Berkeley is stronger on the Malibu Court’s first ground, in that Berkeley categorically surrendered its independent authority to control land use throughout the downtown area. But more fundamentally, Berkeley erred by committing to these future actions while depriving its public of an opportunity to learn of and comment on them before the city acted. 

Berkeley should now suspend all action to implement the settlement with UC pending finality of the Malibu case. Finality would come after the opportunity for Supreme Court review has come and gone with no review granted (minimum of 60 days), or after Supreme Court review (if granted), which could extend another year. 

Even without finality of this decision, the city could elect now to abide by its sensible reasoning and withdraw from the settlement, setting it for public hearing and review if the council wished to reconsider it. 

The city’s and UC’s counsel had one set of instincts about their course of conduct; Berkeley neighbors had another. Let’s be grateful that the Court of Appeal has vindicated ours, which should restore the public’s right to review and comment on the UC-city deal before it becomes legal and final. 

Antonio Rossmann is a local resident who practices law in San Francisco and teaches land use at UC Berkeley’s Boalt Hall School of Law.u