CITY OF BERKELEY, | No. 779444-7
|
Plaintiff, | JUDGMENT
|______________________
v. |
|
ALTA BATES MEDICAL CENTER, a |
nonprofit corporation. and DOES 1-50, |
|
Defendants. |
|
______________________________________|
|
ALTA BATES MEDICAL CENTER, a |
nonprofit corporation |
|
Cross-Complainant, |
|
v, |
|
THE CITY OF BERKELEY and DOES 51- |
75, |
|
Cross-Defendants. |
|
______________________________________|
IT IS HEREBY ORDERELD as follows:
1. Within seven (7) business days of approval by the City Council on April 15, 1997, ABMC shall file with the City an application for a Review or, if necessary, modification of its existing Ashby Campus Use Permits ("UP") for the construction activities in Exhibits A and B . The provision of this information is referred to herein as the "Application for Initial Review" and the City review of such Application is referred to as the "Initial Review." All future activities at the Ashby Campus of ABMC that require a building permit shall be undertaken only after final approval by the City as provided in this Judgment, except as provided in paragraph 10 . This action is as a result of a compromise and settlement. It is not an admission by the City or by ABMC and may not be used as if it were an admission.
2. Upon approval by the City Council on April 15, 1997, the City shall notify ABMC, OSHPD and DHS Licensing & Certification that it has no objection to the licensing, construction and occupancy of the following activities shown on Exhibit B . This action is as a result of a compromise and settlement. It is not an admission by the City or by ABMC and may not be used as if it were an admission.
3. The City shall consider, review, process and otherwise take all actions it deems necessary and appropriate (collectively 'actions") with respect to ABMC's Application for Initial Review in an expedited manner, and shall make every effort to render its final City decision on the Application no later than August 1, 1997. ABMC shall cooperate fully and pay the costs (including up to $2,500 of overhead) to the City of hiring a person (the "Planner") to specifically assist the Cily in its action relating to such Application for Initial Review, subject to the following: City shall demonstrate to ABMC's satisfaction that the Planner has the appropriate level of experience necessary to perform the tasks required and ABMC shall only be responsible to pay that portion of such actual costs to the City that are equal to that on of the Planner's total time spent on such actions relative to such Application, plus overhead related to supervision of the Planner (up to the aforementioned $2,500). ABMC shall also pay those City
processing fees and charges relating to such City actions on the Application for Initial Review, including costs of environmental review, provided such processing fees are not duplicative of those ABMC is already bearing by way of this Judgment (e.g., the Planner and the above-mentioned $2,500 fee).
4. In considering ABMC's Application for Initial Review, City shall determine the magnitude of the impacts of the Exhibits A and B facility modifications on the Berkeley community in relation to the lesser of: (1) the maximum impacts that have occurred to date as a result of operation of (but not the impacts of construction contractor activities at) the Ashby Campus or (2) the impacts that reasonably could have been projected based on information contained in the 1983 Environmental Impact Report (hereafter "Baseline Impacts'). The measurements will be based on aggregate impacts using hospital industry standards and other criteria that the City deems appropriate and shall not be based on any "tattoo" of floor plans, or similar documents such as Certificates of Need. The parties will meet to discuss the nature of these standards and criteria and the most appropriate way to compare historical data to current data. While nothing herein limits the type of normal impacts the city might consider, these discussions are intended to insure that these measurements and analyses are reasonable and appropriate. City shall base all such determinations upon substantial evidence in the record of the proceedings of the initial Review.
5. If the City determines (based upon the above-described Initial Review) that the activities will result in greater impacts on the Berkeley community than the Baseline Impacts, then ABMC shall reduce those impacts to a level equal to (or less than, in ABMC's discretion) the Baseline Impacts. Such actions by ABMC may include in its discretion and without limitation any combination of: (a) the "decanting" of existing programs from the ABMC Ashby Campus to other locations to the extent necessary to reduce the impacts of the activities on the Berkeley community to a level equal to (or less) than the Baseline Impacts consistent with the 1983 Neighborhood Agreement and applicable laws; (b) the reduction of the size of the "East Building" described in the l983 UP only to the extent necessary to reduce the impacts of these activities on the Berkeley community to a level equal to (or less than) the Baseline Impacts; (c) replacing employee designated parking with alternative transportation methods to the extent necessary to reduce the impacts of the activities on the
Berkeley community to a level equal to (or less than) the Baseline Impacts; (d) any such other mitigation measures approved by the City that result in a reduction of the impacts of the activities on the Berkeley community to a level equal to (or less than) the Baseline Impacts. The measures described in (a), (b), (c) and (d) above are collectively referred to as Community Impact Mitigation Measures. City may impose monitoring or reporting programs to ensure that the Community Impacts that may result from the new projects do not exceed the Baseline Impacts. If the final ABMC proposal, including Community Impact Mitigation Measures, does not result in impacts greater than the Baseline Impacts to date, then the City shall approve this proposal without requiring any further mitigation measures.
6. ABMC shall file with the City no later than July 1, 1997 an application seeking a Master Use Permit, Development Agreement, or other entitlements (collectively "Master Plan Permit") that shall provide ABMC with flexibility in developing and modifying its facilities to meet the changing needs of medical care and compliance with federal and state law. ABMC agrees to pursue to completion this application for Master Plan Permit. This Master Plan Permit shall establish a compliance standard that is not based on past or future specific floor plans, layouts, configurations, certificates of need or uses, but instead is based on pre-determined aggregate impact levels (including those of the Emergency Facilities), performance standards and mitigation measures (which, of course, may require changes in floor plans and uses). However, the Master Plan Permit may include physical standards relating to building location, envelopes, size and site design. The Master Plan Permit shall provide the City with the enforcement power it needs to ensure that the external impacts of thc Campus do not exceed the levels established in the Master Plan Permit. The City shall process ABMC's Application for a Master Plan Permit on that basis, and for those purposes. ABMC's commitment to file and pursue this Application for a Master Plan Permit to completion is a material term of the settlement pursuant to which this Judgment is entered and a major inducement underlying the City's agreement thereto. This
Master Plan Permit shall not impose any mitigation measures that unlawfully abridge the rights previously granted by City to ABMC.
7. ABMC's application for the Master Plan Permit may seek a level of use that exceeds that approved by UP and the approvals recognized in the Initial Review, but ABMC anticipates that it will not seek approvals for projects that create impacts beyond those contemplated in the 1983 Neighborhood Agreement . Any environmental review that the City prepares on the application for the Master Plan may consider as part of the "project" for purposes of environmental review the entire W&IMP (see Exs. A & B) plus any decanting or other impact reducing steps taken by ABMC. The environrnental review and the Master Plan Permit may also revisit and modify the approvals recognized in the Initial Review, but thc City may not impose mitigation measures or modify the UP in such a way as to unlawfully abridge the rights previously granted by City to ABMC.
8. Upon its approval and the running of all applicable statutes of limitation, the Master Plan Permit shall supersede all then existing City approvals on the same topic, as well as (Paragraph) 10 of this Judgment, to the extent it is consistent wilh the goals of (Paragraph) 10.
9. While neither ABMC nor the City of Berkeley shall challenge this Judgment, nothing herein shall limit or otherwise adversely affect any right ABMC or any other person might otherwise have to bring a legal, administrative or other proceeding (including a challenge under CCP Section 1094.5 ) challenging any final City action, decision or determination on an application contemplated by this Judgment.
10. ABMC presently knows that it will implement the construction projects listed in Exhibit C that relate solely to facility maintenance, utilities, life safety and compliance with federal or state mandates that will have no external impacts in the Berkeley community. Upon approval by the City Council on April 15, 1997, City shall notify DHS and OSHPD of City's non-opposition to those projects. Concurrent with submitting an application for a building permit to OSHPD for any construction activity that ABMC believes relates solely to facility
maintenance, utilities, life-safety and compliance with federal or state mandates that does not increase Berkeley community impacts, ABMC shall notify the City's Zoning Officer, who shall have ten (l0) calendar days to administratively review and inform OSHPD and ABMC if in the City's judgment that the project will create extemal Berkeley colnmunity impacts in excess of the Baseline Impacts.
11. If there is any dispute between the parties, they will meet promptly to discuss whether to submit to arbitration as an altemative to judicial remedies.
12. Each side shall bear its own costs and attorneys' fees to date.
DATED: __________, 1997
___________________________
JUDGE OF THE SUPERIOR COURT
Last update: May 11, 1997.