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Legal updates and Letters to Governor Gavin Newsom and Senator Nancy Skinner, August 5, 2022

August 5, 2022

The First Appellate court ordered today a temporary stay against all construction, further demolition, tree cutting, and landscape altering activities, unless such landscape alterations are necessary for public health and safety reasons. Their order included that our request for a stay on the erection of a security fence was denied, meaning UC can legally erect a security fence. The court said the temporary order is to give them time to review the petition for writ of supersedeas that our attorney filed yesterday at 1 PM. The temporary stay does not affect or extend to activities at Anchor House. The court also deferred any decision on UC’s request that Make UC a Good Neighbor and People’s Park Historic District Advocacy Group post a bond as UC is requesting to cover the increased cost of construction they claim are incurred by this delay. In addition the court ordered that before the parties bring and disputes about the scope of this temporary stay they meet and confer to attempt to resolve such disputes.

August 3, 2022

Our lawyer filed a request for a Writ of Supersedeas at about 1 PM August 3, 2022.. 

The actual wording is:
Petition for Writ of Supersedeas and request for immediate, temporary stay; Memorandum of Points and Authorities; exhibits filed separately
Immediate, temporary stay requested by 3 PM on August 3, 2022; staying demolition, tree cutting, landscape alteration and construction at People’s Park.

A rally and march was held at Sproul Plaza at 5 PM, August 3, 2022. Details to come. 

The university has committed several illegal operations today. Among them are towing the cars legally parked on Haste and Dwight and closing off the streets surrounding the park. The City of Berkeley can not, and did not, relinquish their jurisdiction for those streets to UC. When stopped by an agent (police or security) ask for evidence that they have been granted authority to close the street. When they can offer none you have the right to pass through. Be safe, of course.

Donate: Support the legal actions to save People’s Park with a Venmo or GoFundMe contribution

Letters to Governor Gavin Newsom and Senator Nancy Skinner from Attorney David L. Axelrod

August 3, 2022

To: GOV. GAVIN NEWSOM,
Office of the Governor,
021 O Street, Suite 9000,
Sacramento, CA 95814
Re: DEMAND TO SAVE PEOPLE’S PARK, BERKELEY, CALIFORNIA

Dear GOV. NEWSOM:

Hello. I need to speak to Gov. GAVIN NEWSOM immediately, in order to seek prompt action for the protection and preservation of PEOPLE’S PARK in Berkeley, California, a designated historic landmark. I spoke with Gov. NEWSOM a few years ago about this issue, in Sonora, California, while he was still Lt. Governor.

The threat of the PARK’S destruction by UC Berkeley administrators, police, agents and contractors is now ongoing and urgent. Native specimen trees are being sawed down and community gardens are being ripped up, even as I speak. Please respond ASAP.

THANK YOU.

DAVID L. AXELROD,
ATTORNEY for PEOPLE’S PARK COUNCIL,
PEOPLE’S PARK HISTORIC DISTRICT ADVOCACY GROUP,
and MAKE UC A GOOD NEIGHBOR
1714 Canyon Terrace Lane, Folsom, California 95630

August 3, 2022

To: Sen. NANCY SKINNER,
Capitol Office,
Sacramento, CA 95814

Re: DEMAND TO SAVE PEOPLE’S PARK, BERKELEY, CALIFORNIA

Dear Sen. Skinner:
Hello. I need to speak to you immediately, in order to seek prompt action for the protection and preservation of PEOPLE’S PARK in Berkeley, California, a designated historic landmark. I have spoken with you about this issue many times, in Berkeley, California, including during the period while I served as your appointee to the Berkeley Parks & Recreation Commission.
The threat of the PARK’S destruction by UC Berkeley administrators, police, agents and contractors is now ongoing and urgent. Native specimen trees are being sawed down and community gardens are being ripped up, even as I speak. Please respond ASAP.
THANK YOU.

DAVID L. AXELROD,
ATTORNEY for PEOPLE’S PARK COUNCIL,
PEOPLE’S PARK HISTORIC DISTRICT ADVOCACY GROUP,
and MAKE UC A GOOD NEIGHBOR
1714 Canyon Terrace Lane, Folsom, California 95630

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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

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PRESS RELEASE – Community groups continue fight against secret, illegal agreement between the City of Berkeley and UC Berkeley

For Immediate Release

For Additional Information:
Harvey Smith, peoplesparkhxdist@gmail.com, 510.684.0414

(January 31, 2022) – A coalition of community groups filed a lawsuit to fight the secret, illegal agreement that the City of Berkeley signed with UC Berkeley — giving UC Berkeley a blank check for unfettered growth. The agreement, signed in July 2021, prevents the City of Berkeley from filing any further legal action against UC Long Range Development Plan (LRDP) and withdrew the city’s objection to the destruction of several historic buildings and to the eviction of tenants from their rent controlled homes.

Three community organizations — Make UC a Good Neighbor, People’s Park Historic District Advocacy Group (PPHDAG) and People’s Park Council (PPC) — amended their Petition on January 20, 2022 that challenges the City of Berkeley’s agreement with UC Berkeley regarding their LRDP. The Petition alleges the vote on the agreement violates the requirements of the Brown Act, which mandates local government to conduct business at open and public meetings.

“The residents of Berkeley will be saddled with this onerous agreement long after the Mayor, Chancellor, City Council members and Regents are gone from their positions. The basic principles of open government have been shamelessly tossed aside for purposes of political expediency,” according to Harvey Smith, member of the People’s Park Historic District Advocacy Group.

The agreement prevents the city from taking legal action against the LRDP for the next 16 years. Although the city’s own analysis estimated UC Berkeley costs the city $21 million per year, the agreement will pay the city only $4.1 million per year, 20 cents on the dollar. Therefore, over the 16 years Berkeley taxpayers will be responsible for covering a deficit of over $250 million. Three other cities hosting UC campuses have negotiated much more favorable agreements, including the mandatory production of student housing.

The lawsuit cites the action of the Berkeley City Council to conclude “a secret agreement in closed session, never acknowledged, approved or disclosed in public session.” The Petition to the court also cites Measure L, an ordinance passed by Berkeley voters in 1986, which mandates “That wherever public parks and open space currently exist in Berkeley, such use shall continue and be funded at least to allow the maintenance of the present condition and services.” The agreement violates voter-approved Measure L by collaborating in the destruction of People’s Park, a user-developed and community-controlled open space in the South Campus area of Berkeley.

Additionally cited is Measure N, approved by voters in 1988; the secret agreement is described as running “afoul of the intent and aspirational policies set forth in Berkeley Measure N,” which requires the city to “use all available lawful means to ensure that public agencies abide by the rules and laws of the city and that these agencies pay taxes and fees, comparable to those paid by private citizens and business to support their fair share of city services.”

Although the Berkeley City Council had also resolved on multiple occasions to support tenant rights, and specifically the interests of tenants evicted from 1921 Walnut Street, Berkeley, the agreement bound the City “to not challenge the upcoming 2021 LRDP and UC’s Anchor House [1921 Walnut Street] and People’s Park housing projects.”

The lawsuit further stipulates that the City through its agreement with UC will “induce, aid and assist” in destruction of People’s Park as a student and community park and open space and has collaborated in breach of contract by UC Berkeley. “UC has breached its mutual commitments, promises, and written contracts with responsible People’s Park organizations,” which are included in Exhibits A through L of the Petition.

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Presentation by David Axelrod, Attorney and Founder of People’s Park Native Plant Garden – Canessa Gallery – Saturday, August 21, 2021

Saturday, August 21, 2021, 6–9 pm
Canessa Gallery
708 Montgomery Street, San Francisco

Presentation by David Axelrod, Attorney and Founder of People’s Park Native Plant Garden

David L. Axelrod has filed a Writ of Mandate in Alameda County Superior Court on the Berkeley City Council’s violations of the Brown Act, in formulating and adopting the City’s recent secret “settlement agreement” with the University of California. In the secret agreement, the Berkeley Mayor and City Council surrendered a lawsuit it had already won that had challenged the University’s Long Range Development Plan (LRDP), a plan that seeks to destroy People’s Park and other irreplaceable neighborhood and community assets in Berkeley.

David was involved in the 1970s and 1980s as founder and Field Coordinator of the People’s Park Project/Native Plant Forum (PPP/NPF), a student and community group that executed creative user development of People’s Park, establishing organic gardens and native plant communities in the Park commencing in 1974, and built the People’s Stage in 1979, under leadership of the People’s Park Council (PPC).

During those times, members of PPP/NPF and PPC developed a generally more peaceful and cooperative relationship with the University campus administration on behalf of Park users, gardeners, students and neighbors, concluding several written agreements. David will bring alive the park history of past years, as well as the reality of legal actions of today.

People’s Park is at the center of sixteen other officially recognized city landmarks, which collectively are a de facto historic district. They represent the heritage of the 1960s and the context of the larger theme of a century of town/gown relationships. Berkeley became a major target of the New Right conservative backlash with Ronald Reagan promising to “clean up the mess in Berkeley.” Now preservation of this community-built park is threatened once again by UC Berkeley expansion.

The university has exceeded its agreed enrollment limits, which has created enormous housing displacement throughout the city. The university has responded to years of state budget austerity by monetizing its public assets in a corporate-like overreach that has also become a drain on city resources.

UCB proposes to cover People’s Park with a 17-story concrete monolith, probably to be erected by a private housing firm that will profit from student occupants. This would destroy both a historical and cultural legacy and much needed open space when reasonable alternatives are available.

If Berkeley all but invented the sixties, surely the city and its university should be able to commemorate that decade by preserving People’s Park as the heart and soul of a vital historic district.

The exhibit includes photographs, art work, posters and memorabilia from over 50 years of spirited community involvement in preserving the irreplaceable open space of the park.

Masks and Covid vaccination required.

For more information, contact Harvey Smith at 510-684-0414.

Sponsored by the People’s Park Historic District Advocacy Group.