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Neighborhood groups file lawsuit against city's Downtown Area Plan

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MAY 30, 2012

Neighborhood groups filed a lawsuit against the city of Berkeley for alleged violations of environmental procedures in a contentious development plan recently approved by Berkeley City Council.

The petition — which was filed May 3 at the Alameda County Superior Court — alleges that the city “improperly approved” the Downtown Area Plan, which aims to revitalize the Downtown area of the city, without analyzing the full extent of the plan’s environmental impacts in the city’s environmental impact report, as required by the California Environmental Quality Act.

According to the act, following an initial review of the potential environmental effects of a city project, a more in-depth review may be conducted in the form of an environmental impact report. If alternative or possible mitigation measures to reduce environmental impacts are not considered, a project like the Downtown Area Plan may not be approved by Berkeley City Council.

“These are going to be big decisions, and they are going to affect and determine the future of the city of Berkeley, and these decisions should be made in public,” said Hank Gehman, a Berkeley resident. “The community should have some say in this and should be informed of what the plans are.”

If the petition — which may be amended and will be evaluated before a judge at a hearing where neighborhood groups, city residents and the City Council will be present — is approved by the court, the city may be required to halt action on the plan until it complies with the act and supplemental environmental impact reports are prepared.

The current version of the plan now includes fewer tall buildings than previous versions of the plan in conjunction with guidelines from Measure R, which aims to concentrate housing and jobs near public transportation, promote green development standards and set maximum building heights.

Although the initial version of the Downtown Area plan was approved by the council in July 2009, it was rescinded the following year after a referendum campaign against it garnered 9,200 signatures. As an alternative, Measure R enabled the Downtown Area Plan to be put to the public for a vote, and it was approved by voters in November 2010 to go to council.

The current Downtown Area Plan was passed by the council on March 20 and allows for the construction of seven tall buildings, creates green buildings and establishes open space requirements and outlines a “green pathway” program — a process that simplifies and streamlines the often complicated permit process required to move forward with city developments.

Within the green pathway, construction of buildings 75 feet or less in height are not subject to a public hearing with the council but are required to have additional upper-story setbacks and necessary review from the city’s Landmarks Preservation Commission and Design Review Committee within certain time limits. For buildings more than 75 feet tall, the Zoning Adjustments Board would grant approval within certain time constraints in order to determine the development’s historical value.

However, according to the suit, the green pathway was not considered in 2009 but still incorporated into the 2012 Downtown Area Plan without its environmental effects being adequately evaluated. The petition also alleges that due to the potential impact on cultural and historical resources, the green pathway must be subjected to further environmental review.

“I do think that there were problems with the Downtown plan, but I don’t know if the lawsuit is what’s going to fix them or not,” said Councilmember Kriss Worthington.

According to Worthington, the council will have a legal briefing with the city manager and the city attorney regarding the petition within the next few weeks.

Daphne Chen covers city government.

JUNE 04, 2012

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