The city of Berkeley filed a lawsuit against UC Berkeley Friday, contending that the university did not adequately analyze, in a supplemental EIR prepared for a housing development on Hearst Avenue, the impacts of a more than 30% enrollment increase on city services.
UC Berkeley should have done a separate environmental review of the projected increase in enrollment to 44,735 students by 2022-23 instead of folding it into the SEIR for the housing project, the lawsuit states.
The environmental review is deficient because it only looked at how the population increase impacts the campus. It ignored the impacts on city services, the lawsuit contends.
Berkeley has previously stated that the cost of providing services to UC Berkeley is now around $21 million a year, up from $11 million in 2003 — but UC Berkeley officials said the university has not seen firm figures backing up that figure. As part of a legal settlement hammered out in 2005 when UC Berkeley did its last long-range development plan, UC Berkeley agreed to pay Berkeley an annual fee to offset its impact. In 2019, the payment, which has increased with inflation, is about $1.8 million.
“The SEIR attempts to sweep the environmental impacts of this dramatic enrollment increase under the rug in direct violation of CEQA [California Environmental Quality Act],” according to the lawsuit.
In a press release, the city said that a legal deadline of June 17 forced it to file the lawsuit, although it would have preferred to negotiate a settlement, and still hopes to do so.
“This course of action was pursued as a last resort to preserve the City’s rights,” according to the release. “The City submitted detailed comments to the FSEIR pointing out its many deficiencies and is committed to working with UC to resolve our differences despite filing the lawsuit.”
Dan Mogulof, a UC Berkeley spokesman, expressed disappointment over the lawsuit and said UC had offered to extend the legal deadline until July 1 to give the two sides an opportunity to hammer out a deal. He challenged Berkeley’s contention that the city had to file the suit or lose its chance to do so.
Moreover, he said Berkeley had been slow to engage in settlement discussions.
The two sides first met May 8, the week before the UC Board of Regents approved the final supplemental environmental impact report for the Upper Hearst project, which would add a new academic building for the Goldman School of Public Policy and a new housing complex with 150 units for professors and graduate students. Berkeley didn’t agree to negotiate until May 22 and asked for a first formal meeting to be set on May 31, “more than three weeks after the campus asked to start immediate negotiations,” said Mogulof. Berkeley made its “first pre-litigation settlement demand” on June 12 and the campus sent a counter-offer on June 14. Berkeley filed the suit late on June 14.
“The City sued without accepting the offer of additional time to negotiate before filing and without even acknowledging receipt of the campus’s counteroffer,” Mogulof told Berkeleyside in an email. “It’s hard to see how this can be honestly represented as being “forced” to sue by statutory deadline.”
The two sides are scheduled to meet in Alameda County Superior Court at 9:15 a.m. on Monday.
UC Berkeley released details of the settlement discussion to Berkeleyside to show that it made an attempt to address some of Berkeley’s concerns by paying the city more money. But the amount considered fair by each side differed vastly.
UC Berkeley offered to bump up its annual payment to Berkeley by 30% a year, the approximate increase in student enrollment over the number agreed to in the university’s 2005 Long Range Development Plan. That plan originally projected there would be 33,450 students at Cal by 2020. Now Cal is saying there will be around 11,000 students more than that. Most of the new students are already on campus.
Cal offered to pay an additional $529,000 in 2019-2020, according to documents released by the university. UC contends that the amount is more than adequate as it believes the university’s impact on the city has decreased in recent years, not increased. The supplemental EIR released in February acknowledged that a mandate by the Regents increased enrollment. But Cal has put conservation methods in place that have led to a 21% decrease in campus water use from 2004 to 2016, a 33% drop in the amount of solid waste created, and a 21% reduction in wastewater discharge, among other statistics, according to the SEIR.
“This 30 percent increase should fully resolve the disagreement between the Campus and the City concerning the increase in projected enrollment,” according to a settlement letter sent to Berkeley. “These new funds paid by the Campus, while not justified by any specific data that the City has provided regarding increased demand for City services, could be used by the City to address concerns that have been expressed by the City in its first settlement demand (sent on June 12).”
Berkeley sees the situation differently, according to the lawsuit. UC stresses “overtaxed public services,” according to the lawsuit. For example, the percentage of calls to the Berkeley Police Department from within the university environs went from 14% to 19% between 2003 and 2018, according to the lawsuit. About 37% of the calls to which the fire department responded in 2018 were calls to the campus. The final SEIR failed to consider those impacts, along with impacts related to greenhouse gas emission, noise impacts, the impact of a larger population on streets, and the sewer and storm drain systems. In addition, the population increase has further stressed the housing market.
“UC’s recent population increase has expanded the direct costs to the City far beyond the City’s capacity to carry those costs, compromising other essential municipal services and putting the Berkeley population – including UC’s own students, faculty, and staff – at risk,” according to the city press release.
Mogulof said UC has asked for, but not yet received, proof of those figures.
(In a call to Berkeleyside after this article was published, Matthai Chakko, a city spokesman, said Berkeley provided the figures to Cal as part of its 450+ page response to the SEIR. Chakko said it is UC Berkeley that made a monetary offer not backed by data. “What we want is a data-driven process, he said.)
Berkeley asked UC Berkeley to pay an additional $21 million a year on top of the university’s current payments, to offset the impact, according to a letter sent by the university counsel. This is more than a 1,000% increase over what the university currently pays.
“An annual payment of $21 million by a campus to a city would be unprecedented not just for Berkeley and every other UC campus … but also for every university in every city in this country,” according to a statement put out by UC.
UC Berkeley began the supplemental EIR to examine the impact of the complex it wants to build on Upper Hearst. Berkeley said in its press release it is not opposed to that complex and is not challenging it.
“The City is challenging UC’s legally deficient analysis of its population increase to seek a commitment from UC to pay its fair share, not to stop the Upper Hearst project,” said Berkeley Vice Mayor Susan Wengraf in the press release.
But Berkeley asked Cal in its counteroffer to appoint a new architect — one that the city approves of — to redo the proposed façade of the Upper Hearst housing complex, according to UC documents. City officials and preservationists are concerned about the bulk of the building and its modern exterior. It abuts a neighborhood known for its wood-shingled buildings constructed in the First Bay Area style. The new building is too out of character and should be redesigned, the city has said in communications to Cal. The lawsuit alleges that Cal “failed to mitigate the impact of the (Hearst Avenue) project on historic resources.”
A neighborhood group, Save Berkeley Neighborhoods, is also suing UC Berkeley, claiming the campus did not follow CEQA law in examining the impacts of increased enrollment on campus.
“The SEIR fails to acknowledge that the Project would substantially increase the local population and exacerbate inadequate housing conditions for university students and for City of Berkeley residents or to lawfully assess the environmental effects of these changes,” that lawsuit alleges.
UC Berkeley has to do a new long-range plan and told the city that would be the best time and place to do another thorough analysis of UC Berkeley’s impact. Berkeley is planning to hire a consultant to delve into the issue, and UC pledged to share figures and be transparent in that process, Mogulof said.
“Regarding the future, the campus has also offered, in writing, to put everything on the table, acknowledged our responsibilities, and made clear that we were ready to negotiate without preconditions or limitations,” according to a campus press release. “The City has responded by pursuing litigation. We remain open to dialogue and negotiation.”
Mayor Jesse Arreguín also said he hopes the conflict will be settled out of court.
“The City is committed to negotiate in good faith with the University to develop a lasting agreement that is rooted in fairness and collaboration,” Arreguίn said in the press release. “The agreement should encourage and empower the University to provide housing for its students and staff, ensure fair compensation to the City of Berkeley for the services it provides to the University service population, and preserve the financial security of both organizations. Berkeley’s taxpayers deserve this and as stewards of the City’s resources, it would be irresponsible for the City not to take legal action to preserve its rights.”