Posted on

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.

Posted on

Lawsuit Update, November 22, 2022

On PROGRESS (or lack thereof) in the Matter of MAKE UC A GOOD NEIGHBOR, PEOPLE’S PARK HISTORICAL DISTRICT ADVOCACY GROUP, and PEOPLE’S PARK COUNCIL vs. BERKELEY CITY COUNCIL, MAYOR JESSE ARREGUIN, CITY OF BERKELEY, and REGENTS OF THE UNIVERSITY OF CALIFORNIA d.b.a. UNIVERSITY OF CALIFORNIA AT BERKELEY, Alameda County Superior Court Case No. RG21105966:

Our lawsuit on behalf of three (3) People’s Park groups commenced over a year ago, August 2, 2021, as a Petition for Writ of Mandate against the Berkeley City Council and Mayor for violation of the California open-meeting law (the Ralph M. Brown Act) and for violation of certain laws, including Berkeley Measure L and Measure N (true copies of which are attached to this email message).

Berkeley Measure L and Measure N (PDF)

The case, originally a Petition against the City Defendants, has now morphed essentially into a Complaint for Breach of Contract against the University of California (“UC”).

Under the purview of Hon. Frank Roesch, an Alameda Superior Court judge, People’s Park’s pleadings have now been amended four (4) times in response to demurrers and other motions designed to defeat the people’s efforts to challenge the Berkeley City Council and Mayor’s secret agreement with UC, a deal by which the City corruptly colluded with UC to sell out the public interest in controlling overcrowding, in receiving equitable compensation for City services, in maintaining low-income housing, and in preserving parks and open space within the City limits, most notably, People’s Park.

On behalf of People’s Park Council and the two other non-profit community groups, I filed the 4th Amended Petition and Complaint on November 17, 2022, and directed a copy to David M. Robinson, Chief Campus Counsel for UC Berkeley. I then appeared before Judge Frank Roesch the following morning in a Zoom hearing for Case Management and Compliance. The next Case Management Conference is set for February 3, 2023, at 9:00 a.m. in Dept. 17.

The current incarnation of this People’s Park lawsuit, namely the 4th Amended Petition and Complaint, largely consists of an action against the Regents of the University of California (UC) alleging breach of contact. Specifically, UC breached multiple agreements with People’s Park Council and with the founding Park gardening group, People’s Park Project/ Native Plant Forum, agreements that date back as far as 1978 and 1979.

At least two (2) of these agreements were written and signed by representatives for People’s Park and the UC Berkeley campus administration, the Letter of Agreement dated May 8, 1978, and the Letter of Understanding, dated January 5, 1979. Some of the other agreements, both written and verbal, expressed and implied, were described in an open letter dated August 31, 1979, from Associate Vice Chancellor T. E. “Ted” Chenoweth to his boss, Vice Chancellor R. F. “Bob” Kerley. True copies of all three (3) contractual “Letters” are attached to this email message.

3 Letters of Agreement – University of California, Berkeley Campus Chancellor’s Office and the People’s Park Project/Native Plant Forum (PDF)

UC had systematically breached its solemn agreements with People’s Park organizations for many years, even before the most recent wanton and tragic acts of destruction, especially those wrought last summer, 2022. We will pursue the ongoing action for breach of contract, as well as planning to claim property damages in a separate proceeding.

Breach of contract may not be a crime, it’s true, but destruction of property and vandalism ARE indeed crimes. UC has wantonly and brazenly acted to destroy People’s Park, harming and killing trees, shrubs, wildlife habitat, and many other landscape features, including damage to the ramp for the People’s Stage.

These living items belong to the people, by and through the People’s Park organizations and volunteers who created them, bought and paid for them, installed and planted them. These items were and are NOT the property of UC or the Campus Administration. The People’s Park agreements that UC has violated are proof of UC’s knowledge, intent, and malice that underlie their recent wave of senseless damage, destruction, and desecration.

UC has willfully stifled and vandalized the fruits of our creativity. UC has also heartlessly employed unfortunate social ills and challenges, such as homelessness and drug use, as a cynical weapon to discredit and defame People’s Park and the Park community, blaming the victim for the very problems of neglect that UC has fostered and focussed upon the sacred ground of People’s Park.

With unity, persistence and love, we can hold UC accountable for these wrongs, and commence the process of transforming the Berkeley campus administration from a purveyor of public corruption and higher ignorance, into an institution of higher learning and public cooperation.

Wishing good luck and a happy holiday to all,

David

DAVID L. AXELROD,
Attorney at Law

Documents:

Berkeley Measure L and Measure N (PDF)

3 Letters of Agreement – University of California, Berkeley Campus Chancellor’s Office and the People’s Park Project/Native Plant Forum (PDF)

Posted on

Opinion: Breaking the impasse on People’s Park

This statement is published at:
https://www.berkeleyside.org/2023/01/10/opinion-peoples-park-student-housing-alternate-site

We suggest UC Berkeley commence construction of the student and supportive housing planned for the park on an alternate site as soon as possible.

By Shirley Dean and Gus Newport
Jan. 10, 2023, 8:01 a.m.

Although UC Berkeley has stated it wants to build 8,000 student housing beds as soon as possible, the university has picked a site, knowing it would be vigorously opposed, and now has caused months of delay. We suggest it commence construction of the student and supportive housing planned for People’s Park on an alternate site as soon as possible. Indeed, UCB has identified up to 15 alternative sites.

The National Register of Historic Places has recognized the value of People’s Park. The park has an over half-century legacy of cultural events; town, gown and political events; a biosystem of flora and fauna; a surround of highly significant architecture; and a role as an everyday community recreation site.

UC has been defeated in the courts in many of the California Environmental Quality Act challenges to its campus development plans. These court decisions have made it clear that UCB is not doing an adequate job of identifying and mitigating the impacts of its development in Berkeley.

Additionally, UC’s reckless demolition of most of the historic trees in People’s Park on Aug. 3 has threatened a key element of the HUD funding for the supportive housing portion of the project due to the lack of agreement to do the required federal environmental review, thus putting that project in jeopardy.

UCB’s almost 50% increase in enrollment (almost 15,000 students) means that the Southside of Berkeley desperately needs the open space of People’s Park. Based on the city’s recent population growth, concentrated in the areas nearest the campus, and the city’s standard of 2 acres of park and open space per 1,000 residents, the Southside neighborhoods need approximately 18 acres of new, accessible open space.

City planners agree increasingly dense urban areas need more parks, not fewer. Furthermore, the park is needed as a shelter during earthquakes, fires and pandemics – Berkeley will face them all again.

Now is the time to develop a feasible plan of action based on cooperation between the state, the University of California and Berkeley residents who host its flagship campus.

The park’s future should include proper maintenance, user development, and interpretation to provide Berkeley residents and visitors with information on all aspects of People’s Park — Berkeley’s incredible architectural legacy and the political and cultural history of activism on the Southside. Like other parks, it should become a welcoming recreation resource for anyone in the community – housed or unhoused city residents, students, and visitors of all backgrounds and income levels.

Both the city of Berkeley and UC Berkeley celebrate the Free Speech and Sixties history of the Telegraph Avenue corridor. It is an asset to the city and the university and draws visitors from around the globe to Berkeley. Preserving and enhancing the park can only add to its value as a treasured Berkeley attraction.

With the park’s permanence assured, its future could evolve in collaboration with the People’s Park Council, the long-standing consensus-based group of stewards and advocates for the park, with California Indian tribes, and with a land trust or conservancy. Financing for this vision could be through federal or state funds for parks.

Whatever future model is adopted for People’s Park, it is clear that the plan to destroy the park and the possibility of continuing conflict between park users and the university are neither desirable nor inevitable. Community members can develop a partnership with an enlightened public agency to preserve and enhance People’s Park in a way that honors its culture and heritage and provides valuable open space for the Southside neighborhood. With goodwill and hard work, this future is possible.

Shirley Dean and Gus Newport are former mayors of the city of Berkeley.

Posted on

Response to Chancellor Carol T. Christ’s August 15 message to students about People’s Park

In the dead of night, UC moved on the park — barricading city streets, blocking access to sidewalks, and fencing the park. Protected by riot police, heavy equipment was brought in. Peaceful protesters sat in front of that equipment to keep the park open and prevent further deforestation of the trees, which UC last did in 2018. People peacefully demonstrated against the heavy machinery and destruction of the trees. They had already witnessed the changing climate in the park after much of the east side forest was demolished by UC just a few years before. Students — of UC Berkeley, local colleges, and high schools — and other community members, including Berkeley neighbors and former residents of the park were outraged by the violent closure and destruction of this community resource.

The university has presented the project as an all-or-nothing: either people will sleep in squalid conditions on the street, or they will build housing on the park. This is a false dichotomy. The park is a vibrant community center, park and recreation space — one of the few accessible and open to everybody, including the poor who suffer within a rapidly gentrifying East Bay. Hundreds of people use the park daily, gathering to play basketball or music, to share food, and community. None of these resources are preserved in the university’s plans, which would turn our park into a sterile dorm lawn. Maximo Martinez Commons is a courtyard just one block north and similar to the one proposed for People’s Park. When was the last time you or your friends used that space?

We need People’s Park to remain a community-run, user-developed and user-defined park. That is why dozens of community groups — such as the Berkeley Student Cooperative, the largest non-profit provider of affordable student housing in the city — stand with People’s Park in opposition to the university’s plans. Homeless advocacy groups such as Consider The Homeless, Berkeley Outreach Coalition, Suitcase Clinic, Berkeley Free Clinic, Berkeley Copwatch, and others stand in solidarity with the park defense.

The UC Regents actually refused Capital Strategies’ attempt to have a $53 million contingency fund available for crowd control, and unforeseen relocations of new residents, and other circumstances in the demolition of People’s Park. Those millions could instead be spent acquiring land for supportive housing sites right in Berkeley, or adding additional housing on a site recommended by the Chancellor’s Housing Commission. And what about the Ellsworth garage, equally close to campus, which has to be demolished due to earthquake danger? In their survey not long ago, 92% of undergraduates did not rank People’s Park as their top site for housing development. If building housing was the university’s top priority, they could have already begun construction on a different site equally close to campus.

Over decades, the UC has approached the park with malice and destructive intent. In spite of this, people have stewarded the land and grown more gardens, community, and lifelong relationships. For 53 years, every time the fences have gone up, they’ve come down! People’s Park is not just some empty real estate lot. People’s Park remains a user-developed park, open for everyone to gather, host events, or hang out and have lunch. Nothing has changed. Come out and see for yourself. We will rebuild once again. Help repair the park according to your own desires. Re-connect with the land!

— People’s Park Council (PeoplesPark.org)

Posted on

On People’s Park, Democracy, and Politics

by Memory
Saturday, June 25, 2022, 5:46 PM

Berkeley city council-member Rigel Robinson released a recent article championing the UC’s proposed redevelopment project on People’s Park. This article was accompanied with a statement from council-member Lori Droste’s legislative assistant. The statement compared People’s Park activists to the January 6th insurrectionists.

PART 1:

(https://www.berkeleyside.org/2022/06/23/opinion-how-berkeley-is-housing-the-people-of-peoples-park)

Berkeley council-member Rigel Robinson released an article centered around the need to redevelop People’s Park for support programs and housing. He praises the UC and city council (including himself) for this grand act of charity. However he doesn’t make a strong case as to why these services have to be built on People’s Park. The buildings of UC’s Anna Head complex (directly one block north from People’s Park) are falling apart. They are unsafe, and costly to maintain. Over the past 2 years, this complex has had 4 fires. Why couldn’t this site be razed, and replaced with the proposed new housing complexes? Why not tear down the UC’s Crossroads cafe, and replace it with a dorm? Why not introduce a new dorm in the core part of campus? Could the supportive housing project be built at the eastern edge of Ohlone Park, across the street from the North Berkeley senior center. This would place the building closer to BART, the library, city college and other civic services. (Ohlone Park is significantly larger than People’s Park. A building would fit there with less impact). These are just a few examples to show other other options exist.

This redevelopment project is politically tied to the conquering of People’s Park. It is not a case of the government acting purely for the sake of the greater social good. This development project is conditional to once-and-for-all stamping out a hub of social rebellion and social experimentation. The city could have built a new supportive housing and services hub on the former Telegraph Avenue location of C.I.L. (Center for Independent Living). It was a perfect opportunity the city passed on. Now the location is market-rate housing. The city didn’t care about supportive housing then, because it didn’t achieve the same political goal that building on People’s Park achieves.

The council-member refers to People’s Park as a “a gathering place for [the] unhoused”. Opponents of maintaining People’s Park as a 2.8 acre open space in South Berkeley, often will insinuate (or outright say) that the only people who use the park are homeless. This is factually untrue. Pre-pandemic, the majority of people who visited the park were not unhoused. The park was a refuge for houseless people, but most people who came to the park had places to stay at night. Most of these people came to the park for social reasons, to garden, to play chess, to use the basketball hoops (often students), to grab a free meal (Food Not Bombs), or to vibe (sativa, indica or hybrid). It is a fact that when the pandemic hit, the population shifted more towards the unhoused, as the park became a place where activists and service providers could coordinate mutual aid response for the unhoused. However, pre-pandemic the park was more economically and socially diverse.

Rigel calls People’s Park an “ungoverned space”. There is a truth to this, but the council-member fails to criticize the institutions who walked away from their responsibilities to manage park operations. Robinson seems to place the blame on activists and park preservationists. A decade ago, the UC disbanded the People’s Park Community Relations commission. There was a promise to reinstate the board, with new members and a new focus on community partnership; it was never reinstated. The UC’s main presence in the park is it’s police department, not it’s College of Natural Resources, nor the school of social welfare.

The UC Police had no real oversight, which resulted in systemically abusive behavior that drove a rift between park advocates and the university. Officers would humiliate people with mental-health disabilities. UC police would sporadically harass people handing out food. The department would actively intimidate people who dared to tend to the garden. More egregious behavior by UC police officers over the decades has included: excessive use of force, physical abuse, and at least one known case of an officer with substance-abuse issues shaking down people for drugs.

The city is also responsible for People’s Park being an “ungoverned space”. The city used to lease the park, and co-manage the park with the university. The city broke any commitment it had to People’s Park. There was at one point, many years ago, a plan for the UC to sell People’s Park to the city for one single dollar. However, the state government doesn’t permit any piece of university land to be sold for below market value. The state would not make an exception for People’s Park.

Rigel also wrote: “Changing anything at the park has been a political third rail… for decades”. The only changes that the UC attempted to make to the park did not include input from the People’s Park community. This lack of communication, and lack of community partnership lead to tensions. Most infamously, in 1991 the university had a plan to tear down the free-speech and concert stage, and replace a large swath of the open field with 2 sand-volleyball courts. This was not a concept developed though community discussions. When people protested the changes, UC police shot at people with wood slugs and rubber bullets — an action which only escalated tension. After being erected, the sand-volley ball courts weren’t even used, and the UC itself took them down. (Ironically, the UC would 20+ years later tear down another sand-volleyball court on the north side of campus. This court was popularly used by students and faculty.)

A little over a decade ago, the university once again proposed tearing down the People’s Park stage. A new stage was proposed, but the UC stipulated that the park community could not rebuild it. The old stage was built and donated by activists. The UC wanted the new stage to fully be university property. The new stage would also be more restricted in terms of use. As in 1991, the university made the mistake of not collaborating in a community partnership. The old stage remains.

Rigel says that park has been “frozen in time” since the park protests of 1969 and 1972. That is completely untrue. In 1974, an organic gardening course was created by university students. That same year, a project was started to plant California native species. In 1979 the first iteration of the stage was built, and a vegetable garden on the west end of the park was established. In 1984, the slide and swings were brought into the park. In 1989 the Catholic Workers brought in a trailer to serve as a cafe, which later was towed away by UC police. In 1991, Food Not Bombs began delivering food into the park. In subsequent years in the later 90s, the 2000s and the 2010s, planter boxes and garden beds have come and gone, various plants swapped in and out by various gardeners. More benches were created. There’s been concerts held by various organizations, including UC student groups.

Part II:

(https://www.berkeleyside.org/2022/06/23/opinion-how-berkeley-is-housing-the-people-of-peoples-park#comment-5896527980)

Eric Panzer is the is the legislative assistant of Berkeley council member Lori Droste. He attached a statement to Robinson’s article. He asserts that advocacy for preserving the openness of People’s Park is anti-democratic. He makes an insulting, and ridiculous comparison between Park activists and the January 6th insurrectionists.

The UC is not a democratic institution. For decades, there has been a call to democratize the UC regents. In 1993, the Committee for a Responsible University proposed that half the UC regents should be chosen by California voters through electoral process. The Presidency of the UC is not democratic. When criticism was raised about former Homeland Security Chief Janet Napolitano (who had no experience in the field of higher education) being chosen as UC President, there was no direct democratic action available to stop her appointment. Likewise, the respective chancellors of the different UC campuses are not democratically elected.

Any comparison to People’s Park advocates and the January 6 insurrectionists is insulting and stupid. The Jan 6th insurrection was planned in part by the Proud Boys. While founded in the state of New York, the Proud Boys came to prominence during a series of rallies known as the Battles of Berkeley. During one of these rallies, the Proud Boys marched from Sproul Plaza down to People’s Park for the purposes of threatening people there. The advocates of People’s Park were in direct opposition to the Proud Boys, Patriot Prayer, and the Alt-Right in general.

To follow Panzer’s argument, any protest against any government agency or institution, is tantamount to insurrection and advocacy for fascist dictatorship. Any past or future protest against the University of California, according to Panzer, is treason. The Memorial Oak Grove protest, the Occupy Cal encampment at Sproul Plaza, or any of the numerous building sit-ins that occurred in the 2010s were all acts of conservative fascism by Panzer’s definition. The only true progressive act is to not protest against authority.

The redevelopment of People’s Park is being challenged in court. In part, that is why the UC hasn’t sent in the riot police to shut down the park. Access to the courts is part of the democratic process, and a fundamental freedom. As for direct action on the ground, that too is part of democracy. People have the right to assembly, and the right to take a stand. The UC itself set rules on engaging protest encampments, after the police violence against Occupy Cal. It remains to be seen if the UC follows their own regulations, or if they shut down the park with a burst of extreme violence.

Lori Droste’s assistant wrote: “the Park’s supposed boosters foisted a policy of malignant neglect upon the Park”. This is a dishonest assessment. The neglect has come from the university, the city and the state government. Park advocates for years been the people trying to keep the park from falling apart. They have maintained the plants, and other aspects of the park infrastructure and amenities. They have demanded that the sick, the downtrodden and the destitute be given assistance by the government. It is the government that has ignored these pleas for years, only now to respond on the condition that People’s Park be redeveloped. This bargain is manipulative, dishonest, and uses the needy as pawns in a political game for the purpose of greatly disrupt activism in Berkeley and on campus.

Part III (Conclusion):

The debate is being presented as a false dichotomy. Either the redevelopment plan goes through, or the park’s current conditional state is maintained. In truth, there are other options. Housing and supportive services can be built elsewhere, and there can be a commitment to improving the park through community partnerships and mutual communication.

Another option is compromise, for those who are willing to explore such a path. Perhaps the supportive housing and a service center gets built on People’s Park, and the dorm gets built elsewhere. This puts a new building on site, but leaves more of the open space available for gardening and recreation.

Park advocates aren’t happy with houseless people needing to find refuge in the park. Park advocates aren’t happy with people with ailments going untreated. Yet, Robinson and Panzer are presenting a fallacy that advocates are fighting for this to be the status quo. They insinuate that people are advocating for the continued suffering of others. Their arguments are disgusting at their core, and don’t reflect the type of mutual aid and advocacy that activists in People’s Park have had to offer out of compassion and necessity.

( This article was originally published on IndyBay.org : https://www.indybay.org/newsitems/2022/06/25/18850696.php )