UC Berkeley forges on with beach volleyball complex, but project’s fate rests with courts

The new complex is needed to comply with Title IX regulations, but some neighbors say they will violate long-standing covenants the university agreed to.

UC Berkeley wants to build a new $8 million beach volleyball complex on the Clark Kerr campus but some neighbors are suing, saying the project will violate covenants the university agreed to in 1982. Rendering of volleyball complex. Credit: HOK

UC Berkeley will hold a hearing on Feb. 10 on an environmental impact report (EIR) for a new volleyball complex at the Clark Kerr campus, even though the question of whether it can be built is still winding through the legal system.

UC Berkeley wants to replace two sand volleyball courts with a modern complex for UC Berkeley’s women’s intercollegiate beach volleyball team. Chancellor Carol Christ has said the university must do the upgrade to comply with Title IX regulations that prohibit gender discrimination in education.

The proposed $8 million complex would be constructed on an existing recreational softball field at the corner of Dwight Way and Sports Lane in the northern portion of the Clark Kerr campus. It would have four sand courts, a grass spectator area with berm seating for 400, a 3,710-square-foot building with locker rooms, restrooms, coaches’ offices and storage, new lighting, a new scoreboard, and a public address system. The EIR also details plans to tear down a 9,230-square-foot portion of Building 21, the former Wilkinson Lodge, which was built in 1928 as a boys’ residence and is seismically unsafe.

map of proposed volleyball courts at UC Berkeley's Clark kerr campus
The proposed volleyball courts would go in the northern section of the Clark Kerr campus, as marked in yellow. The other yellow mark shows where a portion of Wilkinson Lodge would be torn down. Credit: UC Berkeley Capital Strategies
Rendering of beach volleyball courts. There would be four sand courts, a building with lockers, restrooms, coaches’ offices and more, and berm seating for 400 people. Credit: HOK

The volleyball complex has been embroiled in controversy almost from the moment UC Berkeley announced it in late 2018.

Four neighborhood groups, Save Berkeley’s Neighborhoods, the Claremont Elmwood Neighborhood Association, Panoramic Hill Association, and the Dwight Hillside Neighborhood Association filed a lawsuit against UC Berkeley in February 2019. The suit contended that UC Berkeley’s claim that the project was exempt from CEQA environmental review was wrong. It requested that the university do a full-blown EIR instead of examining the project’s impacts by just adding an addendum to its existing 2005 long-range development plan. Alameda County Court Judge Frank Roesch ruled in the groups’ favor, resulting in the EIR that is currently circulating.

But a larger legal battle has flowed from that EIR fight – one that has the potential to bring a huge change to the neighborhood.

The neighborhood groups expanded the lawsuit in April 2019, alleging that the proposed complex would violate the covenants that UC Berkeley agreed to in 1982 when it acquired the 50-acre property from the state of California. The campus formerly held the Schools for the Deaf and the Blind.

Other groups are also suing UC Berkeley to challenge its growth. Four organizations have filed lawsuits challenging its 2021 long-range development plan, which guides Cal’s growth over the next 15 years. A different lawsuit filed by Save Berkeley’s Neighborhoods prompted a judge to order Cal to freeze its enrollment until it more thoroughly examines the impact of increasing its population by 33.7% from 2005 to 2020.

The covenants are in place until 2032, 50 years after they were signed, and establish restrictions on UC Berkeley’s use, development and occupation of the Clark Kerr campus, which is bounded by Dwight Way on the north, Warring Street on the west, Derby Street on the south, East Bay Regional Park District land and city of Oakland land on the east. The campus, which is listed on the National Register of Historic Places and is named after UC’s 12th president, holds student and faculty housing, the Golden Bear Recreation Center, a conference center, Redwood Gardens, a senior housing complex, and maintenance and childcare facilities. Parts of a 1982 memorandum of understanding (MOU) between UC Berkeley and the city of Berkeley are also incorporated into the covenants.

Specifically, neighbors pointed out in the lawsuit that the proposed volleyball complex would violate two parts of the covenants. One part says that “no facilities for major spectator events will be added.” Another says no new buildings will be added except for senior and affordable housing. The covenants do allow for the replacement of buildings that are “destroyed by fire, earthquake or natural disasters, or are removed due to hazards, or determined to be infeasible to rehabilitate.”

In addition, the neighborhood groups contend that UC Berkeley is breaking other promises embedded in the agreement it signed in 1982. The covenants limited the number of beds on the campus to 843; currently, 972 people live on-site, according to Phil Bokovoy, who is involved in two of the neighborhood group lawsuits against UC Berkeley and is also being sued directly by the school. Cal also promised to provide 491 parking spaces but has fallen short of that, said Bokovoy.

The city of Berkeley had joined the neighborhood groups in the litigation but withdrew from the case after it signed a new letter of agreement with UC Berkeley in July. Berkeley agreed to withdraw from a number of lawsuits in exchange for Cal paying the city $82.6 million over 16 years.

UC Berkeley contends that the volleyball project will not violate the covenants, but it is trying to reform them nonetheless. Section 2 of the covenants says the university may depart from the plans set out in 1982 “to the extent warranted by a change of circumstances as determined by a court of competent jurisdiction,” according to court documents.

There has been a “significant” change in circumstances since 1982, UC Berkeley’s court documents state, including an increase in population in California, leading to an increase in UC Berkeley enrollment and a severe and ongoing housing shortage in the state. In addition, UC Berkeley needs to build the complex to comply with Title IX, which prohibits discrimination based on sex in education, “by improving the training and competition facilities to female student-athletes,” according to an email from UC Berkeley Capital Strategies. In 2017, the federal office for civil rights identified concerns about the adequacy of Cal’s women’s beach volleyball facility compared to the men’s, according to court records.

“The Beach Volleyball Courts project is part of ongoing efforts to provide existing women’s teams with fields, courts, and associated amenities that are similar to what their male counterparts at Cal already enjoy,” Kyle Gibson, director of communication for Capital Strategies, said in an email. “Gender equity is a crucial, overarching value for the campus that demands equitable facilities for its women and men student-athletes.”

UC Berkeley is arguing the proposed volleyball complex complies with the covenants, but it also wants to reform and even get rid of the covenants. The university filed a cross-complaint against the neighborhood groups, Bokovoy and three other community leaders of the neighborhood groups, Joan Barnett, Michael Kelly and Janice Thomas.

“Due to a mistake,” the parties in 1982 did not really mean to impose restrictions and “it is necessary that the Covenants be reformed to express the true intention of the parties when entering the Covenant,” UC Berkeley’s court documents read.

The 1982 covenants can be changed with a court order or with the consent of 51% of those included in the “Benefitted District” created by the covenants. This district includes more than 875 property owners in South Berkeley around the Clark Kerr campus.

Judge Roesch ruled in January 2021 that UC Berkeley had to individually name all the property owners who are party to the covenants for its cross-complaint to proceed.

“UC Berkeley is also, alternatively, invoking a provision in the covenants that allows a court to modify them,” wrote Gibson. “The covenants cannot be altered without everyone who has the right to enforce them being served with formal notice that the court might modify them.”

But UC Berkeley has had a hard time engaging those property owners, leading to a long delay in deciding the fate of the beach volleyball courts.

View of Clark Kerr campus. Credit: UC Berkeley Capital Strategies

On Aug. 2 and 4, 2021, UC Berkeley, working with an independent firm, sent out packets to 870 property owners around Clark Kerr informing them of the lawsuit and asking them to weigh in on their position, according to Gibson. Only 34%, or 295 property owners, replied. Even major institutions, like the Claremont Resort and Spa, ignored the notice.

One problem may have been that the documents were sent out in a plain white envelope. The return address in the top left-hand corner said it came from the Regents of the University of California, c/o Notificationmaps.com LLC in Orange County. UC Berkeley’s name was nowhere on the envelope.

Susan Helmrich, who lives near the Clark Kerr campus, said she and her husband got a thick packet from Cal in the summer that included a letter from Christine Treadway, UC Berkeley’s assistant vice chancellor of government and community relations, informing her that she had an interest in a property that could be affected by a lawsuit and that she was a defendant in the lawsuit. The letter asked property owners to choose among three options: 1) agree to relinquish their right to enforce the covenants and restrictions, 2) agree to abide by whatever the courts decide, 3) acknowledge receipt of the legal documents and agree to become a named defendant in the suit.

“I did nothing,” said Susan Helmrich, who lives two blocks from the Clark Kerr campus. “It was very confusing. I didn’t get it.”

Jessica Broitman, who also lives near Clark Kerr, said she, too, was initially confused by the documents when she and her husband Gibor Basri first received them. “It was quite difficult to understand,” said Broitman. “It wasn’t set up at all to be user-friendly.” But Broitman and Basri spent time studying the documents and eventually concluded they did not oppose the volleyball complex. They did not agree with the argument that it would have a negative impact on the neighborhood by bringing in too much traffic. So, they agreed to option 1, she said.

On Jan. 7, Judge Roesch told UC Berkeley officials to try again to reach more members of the benefitted district. UC Berkeley will now put a legal notice in the weekly Berkeley Voice, a free newspaper distributed by the Bay Area Newspaper Group, for four weeks. It will also do another mailing to the 575 property owners who did not respond the first time around, said Gibson. This time UC Berkeley’s name will be on the envelope.

If a majority of the property owners agree to change the covenants, UC Berkeley can argue in court that it has the right to build the volleyball complex, a question that Judge Roesch will decide. It could also lead to other changes to the campus.

Cal is bound until 2032 by the MOU it signed with Berkeley regardless of what happens to the covenants. The two entities agreed to work cooperatively in planning for “future capital projects on the Clark Kerr campus … and advance projects that will improve the (adjacent) neighborhoods,” according to the July settlement.

Bokovoy and others have suggested that Cal look for a different place to put the volleyball complex, one that won’t impact a residential neighborhood.

“The university’s strategy all along has been to overwhelm the neighborhood with things that cost money in the hope we will back off,” said Bokovoy. “But it’s made people pissed off and made it easier to fundraise. People are outraged by their behavoir, their arrogance.”

UC Berkeley will hold an online meeting at 5 p.m. on Feb. 10 to take comments on the draft EIR. You can access the Zoom meeting from a PC, Mac, iPad, iPhone, or Android device.

Frances Dinkelspiel is co-founder and executive editor of Cityside. Email: frances@citysidejournalism.org.