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Legal Update on People’s Park – January 12, 2023

On January 12, 2023 the Court of Appeal heard Oral Arguments on the CEQA case of Make UC a Good Neighbor and People’s Park Historic District Advocacy Group VS the Regents of the University of California. There were not any points in the arguments of either side that were different than the briefs and supporting letters that had previously been submitted by the parties. The attorney/justices interaction was very interesting. The entire 82 minute hearing is at:

https://jcc.granicus.com/player/clip/3368?view_id=41&redirect=true&h=e8920a278fccbe9f40ea13a15f093f12

For us interested in preserving People’s Park as an open space in perpetuity the hearing is very reassuring. The UC lawyer tried to gain traction for their contention that the “revitalization” (read destruction) of the park was always the core goal of Housing Project #2 and therefore the Environmental Impact Report had no obligation to analyze other alternate sites for that housing because only by building on People’s Park could the project revitalize the park. Justice Burns was especially unaccepting of this claim and interrupted and contradicted their lawyer continuously. In short, it would be very surprising if we don’t win on the alternative site issue, which would mean the EIR has to be redone.

The other meaningful exchange was about the issue of noise. Our contention that Housing Project #2 would have a significant negative impact on noise levels in the neighborhood because of the common occurrence of student parties is being critiqued as a “social” impact as opposed to an environmental impact. UC claims that the burden of predicting, analyzing and mitigating for these kinds of social noise is discriminatory and that it will delay or stop new building projects. Even the Chief Justice Terri Jackson asked about the possibility of a new building for a church being made to analyze the effect of tambourine shaking.

Our lawyer made the point that noise is noise. He also made the point that the fair argument standard should be applied. Finally he noted that anti-discrimination law is an established means by which any environmental impact can be evaluated.

This question of whether social impacts should be included in CEQA suits is complex and can be looked at from many angles. It seem to be the way developers and their political allies are going to attempt to weaken or throw out CEQA.

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Court Support for People’s Park Arrestees being arraigned, Friday, September 2, 2022, 2 PM

Friday, September 2, 2022, 2 PM: Court Support for People’s Park Arrestees being arraigned.
Wiley W. Manuel Courthouse, 661 Washington Street in Oakland

If possible please meet at 1:30 PM outside the courthouse to go inside together, and allow for getting through security. The goal is to show the judge that arrestees have community support, which in some cases has been helpful in influencing judges positively. This is not a protest. Please recognize a protest that is not requested by arrestees can have negative effects.

If you want help from the National Lawyers Guild, they request that you fill out this form: https://arrestee-form.nlgsf.org/
Note from the NLG: This form is end-to-end encrypted and goes only to the NLG legal team. We can provide lawyers to advise and represent most people in misdemeanor cases for free, but only if the arrestees get in touch with us by filling out the form, emailing demonstrations@nlgsf.org or if needed, by calling the legal hotline 415-909-4NLG (4654).

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Update on legal action to protect People’s Park, July 21, 2022

The First Appellate Court with the help of the People’s Park Historic District Advocacy Group has just taken down another of University of California’s (UC) attempts to take the park. On Friday, UC had asked Judge Roesch for permission to erect a fence around the park and Roesch denied them, saying I’Il see you both in court on July 29, 2022.

Well, UC was back with another complaint on Saturday demanding an expedited rehearing or Motion to Remand and saying they were improperly denied their request for a bond to cover increased construction cost incurred by the stay.

Today the First Appellate court said: NO REHEARING OR REMAND, and NO BOND. Their order instructed our team to file a response to UC Motion to Remand by August 3rd. We may see that response sooner than August 3rd. Remember the trial on the merits is July 29, 2022.

Letter from David L. Axelrod, Attorney for the Petitioners

July 21, 2022

To:
The PEOPLE,
PEOPLE’S PARK COUNCIL,
MAKE UC A GOOD NEIGHBOR, and
People’s Park Historic District Advocacy Group

Blurb – For Immediate Release

Re: Make UC a Good Neighbor, et al. v. City of Berkeley, et al., and U.C.

The above-referenced case started out as a Petition in Alameda Superior Court by People’s Park advocacy groups for a Writ of Mandate against Berkeley City Council, the Mayor, and the City itself, for violation of the Ralph M. Brown Act by the City’s adoption of a secret sell-out agreement with the University of California (UC) in violation of applicable California open-meeting laws.

Soon thereafter, the Court, by Judge Frank Roesch, expanded the action to include the University of California (UC), and later permitted or encouraged causes of action against UC for breach of contractual agreements with People’s Park representatives, namely the People’s Park Council and People’s Park Project/ Native Plant Forum.

As of today, July 21, 2022, in ruling on the City’s Demurrer, Judge Roesch has thrown out the Petition against the City, while the Complaint against UC remains intact. In doing so, Judge Roesch declined to enforce Berkeley’s Measure N, and also concluding that Berkeley’s Measure L does not apply to People’s Park. On behalf of the Petitioners, we argued that the City Respondents have violated Measure N by surrendering to UC, rather than upholding applicable laws, including the California Environmental Quality Act (CEQA) and Measure L, which expressly applies to all “vacant public land . . . used de facto as open space . . .,” whether or not owned by the City.

Judge Roesch also ruled that the Petitioners had failed to file a government claim within six (6) months of the City’s wrongful act. On behalf of the Petitioners, we argued that The Government Claims Statute does not apply to our Petition for Writ of Mandamus, which simply seeks a stay, declaratory judgment, and other equitable relief, rather than being a claim for monetary damages resulting from foreseeable losses that have not yet actually occurred.

Judge Roesch also ruled in favor of a Motion to Strike large segments of the amended Petition, even though the Motion had been untimely filed five (5) days after the deadline approved in a Stipulation of the parties and an Order of the Court.

Robert Perlmutter, attorney for the City, tried to keep the City in the case as a “real party in interest,” but the Court denied this request. Accordingly, the City Respondents are now totally excluded from this case.

The only question is whether to appeal now, based upon the dismissal of all causes of action against the City entities, or to appeal after final judgment is entered in the case in chief. The only remaining now is the Defendant UC. This lawsuit, like People’s Park itself, appears to be hanging by a thread at this time.

As requested by the Petitioners, Judge Roesch did properly take Judicial Notice of the Stay Order issued by the Court of Appeal in a closely-related CEQA case, temporarily preventing destruction of the Park by UC. But he also stated that the Order was “irrelevant” to the Demurrer. Perhaps a similar order, but broader and longer lasting, can be sought in what is the newly revamped and evolved iteration of our case at law aiming to save the Park.
May 1000 parks bloom!!

For Plants and Peace,

DAVID L. AXELROD,
Attorney for the Petitioners,
PEOPLE’S PARK COUNCIL,
MAKE UC A GOOD NEIGHBOR, and
People’s Park Historic District Advocacy Group