The stay on new construction will remain until the case works its way through the appeals process.
It’s People’s Park legal update time once again. It appears as though the August 3 tree cutting violates the 1966 National Historic Preservation Act (NHPA), which was written expressly to preserve historic properties whose integrity is threatened by a project that is receiving federal funds. The supportive housing component of the planned development on People’s Park, through the Berkeley Housing Authority, has 27 project-based vouchers committed to it from the U.S. Department of Housing and Urban Development (HUD). However, these vouchers cannot be released until an environmental review of the project is completed. With UC’s demolition of the trees covering the site of that supportive housing component, before the environmental review process has even begun, release of those funds are now in jeopardy.
Following UC’s August 3 mass tree demolition, HUD Environmental Protection Specialist Stanley W. Toal wrote:
“Please note that if environmental clearance cannot be provided, then the reservation of the project-based voucher by the Berkeley Housing Authority would need to be withdrawn. There would be no HUD assistance. The Berkeley Housing Authority, Resources for Community Development and now UC Berkeley have been made aware of the risk UC Berkeley’s actions may pose to HUD’s approval of the project-based vouchers.”
Considering these warnings by HUD, UC’s premature and reckless site clearance has jeopardized the supportive housing needed by the homeless people UC has said it wants to serve. The People’s Park Historic District Advocacy Group (PPHDAG) and Make UC a Good Neighbor (MUCGN) have always supported the goal of providing supportive housing and student housing on one of the many feasible alternative sites owned by UC, not on People’s Park.
Now for the nitty gritty details of the case that is working its way through the appeals court. Previously, the petitioners—PPHDAG and MUCGN—said that the Court of Appeals of the State of California had requested that the parties in the case present their arguments in a structured fashion. The petitioners were asked to submit arguments within 30 days of the Court’s order. The University would then respond to their brief within 20 days. And they would get a final opportunity to file a rebuttal brief within 10 days. The Court would then make a decision in the case.
The legal team for PPHDAG and MUCGN filed the first brief on September 6, 2022. UC’s response was filed September 26, 2022. And the rebuttal brief from the Park’s legal team was filed on Thursday, October 6, 2022. The petitioners were expecting a decision on the case before the end of the month.
Instead, the lead attorney for the Park said that the legal team expects the court to request to hear oral arguments from both sides. The next two possible oral argument dates are October 26, 2022, and November 17, 2022. It seems likely that the hearing would be called for one of those days and that the Court would issue a decision within 20 days after that.
You might be wondering if any this affects the current stay on UC construction on the Park. It does not affect the stay at this time. And the Park community, of course, wants the stay to last as long as possible.
The most recent stay was issued on August 19, 2022 and states:
“Unless otherwise ordered, the stay will dissolve on the finality of the opinion on appeal to this court.”
So what the heck does that really mean? And the answer is, it depends. There are multiple things that could happen to affect the stay on construction. And how long the stay might be extended if the decision is favorable also depends on multiple factors.
There are four points being appealed in this case. The Court could decide in our favor on one or more of the points. If that is what happens, the Park’s lawyer expects that they will state whether the stay on construction stands after its decision. If a decision is made in favor of the park, the duration of the stay could depend on which issues points are upheld.
If the Court doesn’t include the continuation of the stay in their decision order, the legal team will write a motion to request the stay be extended until the Court of Appeals issues its remittitur (the document that ends the jurisdiction of the Court of Appeals and transfers the case back to the original trial court for final disposition).
If the Appeals Court rules against the Park, the stay will be dissolved when their ruling becomes final. That finality would occur 30 days after the decision. The stay would dissolve on the 30th day.
The lead attorney for PPHDAG and MUCGN expects that the case will be appealed to the California State Supreme Court no matter which side wins here. The Park’s legal team will appeal if necessary. That could be a lengthy process and a further stay on construction.
In the meantime, let’s hope and pray that UC finds themselves on the losing side in the upcoming decision.
Our legal team continues to do a fabulous job defending People’s Park. Please help keep our legal struggle funded, if you can! Donate online here.
Let 1,000 Parks Bloom!
Lisa Teague is a Berkeley resident and member of the People’s Park community. Harvey Smith is a member of the People’s Park Historic District advocacy group and the author of “Berkeley and the New Deal” from Arcadia Publishing.