When Napoleon Bonaparte Byrne bought 827 acres in the Berkeley hills 140 years ago, he and his wife Mary picked a bucolic paradise beside Codornices Creek for their home. As Mary wrote in 1860, "The spot for the building has been selected and I honestly think that a prettier or more desirable one can not be found on this side of the continent." Today the same bit of land, stretching between Spruce and Oxford streets above Live Oak Park, is nearly as bucolic as it was before the Byrnes built their elaborate Italianate villa, which fell victim to a fire in 1984. The beauty of the 2.2-acre plot is part of the problem: It turns out that many people besides the site's owners, Congregation Beth El, have a vision for its future over the next 140 years and beyond.

The Reform Jewish congregation wants to move its synagogue and school complex onto the site from its current cramped location three blocks away. Their plans, which involve constructing a massive building and a parking lot that would stretch across the creek, are opposed by an ever-expanding group that includes the majority of the neighbors, the Berkeley Architectural Heritage Association, the Sierra Club, the California Department of Fish and Game, and a host of others. That the city has put the project on a fast track to approval--even going so far as to attempt to disable its own Landmarks Preservation Commission--has kept things moving forward even as more and more voices weigh in against the project.

Part of what's interesting about this battle is the integrity and passion of the participants; nobody's a bad guy, nobody's being greedy or craven. When you sit down and listen, many of the sparring parties' visions have important elements in common. How, then, has the situation become so impossibly mired in conflict?

At first glance, what is now called 1301 Oxford Street is a rather run-down bit of paradise. On Oxford Street, a wrought-iron gate and fence front a weedy lot. A big monkey-puzzle tree, a Chilean import popular on 19th-century estates, stands alone beside the ghost of the Byrne mansion, of which no trace remains. Across the lot near Spruce Street are two sheds, the building that formerly housed the Chinese Alliance Church, and an occupied caretaker's cottage. Codornices Creek is visible from Oxford Street, gurgling twentysome feet down a nearly vertical embankment covered in blackberry brambles and ivy; the whole area is roped off with orange plastic hazard fencing. Upstream, the creek disappears into a culvert across the upper two-thirds of the property. The northern boundary follows Berryman Path between Oxford and Spruce, and, walking along the path, you can spot remnants of the community gardens that were tended here until last March. Coast live oaks and bay trees shade the walk and lean over the creek banks.

But what you really see depends on who you are. Members of Congregation Beth El see a spacious, unoccupied lot complete with mature oak trees and a potentially attractive water feature. They envision their future religious home as a welcoming structure that fits comfortably into its surroundings and offers amenities that can't be experienced at the synagogue's current Arch Street location--such as outdoor courtyards, some on-site parking, and a way to drive through the property while dropping off and picking up kids from nursery school, religious school, and summer camp. Some neighbors, when they look at the property, see "a run-down, neglected, hazardous site," and consequently welcome Beth El's proposed transformation of the lot--while other neighbors see a quiet haven graced with browsing deer; and if Beth El moves in, they envision traffic congestion, parking problems, and increased noise in the neighborhood. Other neighbors worry that a vital link with Berkeley's history could be forever erased by the temple's development.

Nothing surprising so far. After all, neighbors are apt to object to any high-density development in a residential area, and many observers have seen the Beth El controversy in exactly that light: as another NIMBY issue unusual only in that it has motivated more dissent than usual. But the fact that the creek crosses the property brings a whole other dimension to the debate. The vision for Codornices Creek is equally powerful, and it is one held by immediate neighbors, residents of the larger East Bay region, and many Beth El members themselves: their petition demanding full restoration of the creek, including daylighting the culverted portion, now has over 2,300 signatures. Though the visions of a welcoming, beautiful religious home and a restored creek are by no means mutually exclusive, the sides have drawn apart as Beth El's plans became more definite. Neighbors who once considered the project feasible--with changes--are now utterly opposed. Beth El members who care deeply about the creek find themselves having to defend the decision to put a parking lot over the culverted portion. The process of compiling the just-completed Environmental Impact Report only deepened the controversy by bringing all its adversarial aspects into sharp focus.

The real estate story starts with Napoleon Bonaparte Byrne himself, born in Missouri in 1817 and so named because his uncle served as an officer in the French general's army. In the tumultuous years leading up to the Civil War, Byrne owned a plantation in the northernmost slave state, Missouri. His second wife, Mary Augusta Tanner (wife #1 died in childbirth), had an adventurous father; when he followed the Gold Rush to California in 1849 to look for investment opportunities, his enthusiastic letters home encouraged Mary to look westward as well. The ensuing years in Missouri brought malaria outbreaks and an economic slump, both of which made the Byrnes think seriously about pulling up stakes. In 1858, "Nap" Byrne made an exploratory business trip to California--the business being a shipment of cattle he had brought there from Missouri via Mississippi River barge to New Orleans, steamship to Panama, an overland cattle drive across the isthmus, and yet another voyage up to San Francisco. Astoundingly, California's boom economy made such a transaction profitable. Byrne found the Bay Area all he had dreamed it might be; on his return to Missouri, he and Mary planned their move.

It is at this point that the known details give us our first glimpse into Nap Byrne's character. Before the move, he freed all his slaves. He also offered employment to any slave who wanted passage to California, and return passage to Missouri or anywhere else should they not wish to remain. Two of the former slaves took him up on the offer and came along on the wagon trip, thus becoming the first African-American residents of the place that would eventually be named Berkeley. Peter Enlow was 32 years old--he later changed his last name to Wilson and moved to Oakland, where he began a plastering business. The freed slave called Hannah was only eight years old at the time of the westward migration. Having no last name, she became Hannah Byrne, and since she was older than the four Byrne children, her first job in California was to help care for them.

The parcel the Byrnes bought stretched from what is now Tilden Park down to the future El Cerrito. It had been part of the land that Spain had granted to Don Luis Peralta in 1820 and was claimed by the US just ten years before the Byrnes came by wagon up the main road through the Peralta Rancho--a road that later would be named Spruce Street. The intersection of Codornices Creek and this road made a practical as well as beautiful home site, with large oaks shading the salmon-filled creek and open grassland fanning out to the bay. Early on, Mary Byrne helped sew a burial shroud for a worker killed here by a grizzly.

The family lived in a small house farther down the hill until the mansion was completed in 1868, meanwhile adding three more children for a total of seven. With its tall, colonnaded porch supporting a second-floor balcony across the entire front of the house, its elaborate arched windows and doors, and the formal symmetry of its every aspect, the eighteen-room mansion immediately became one of Berkeley's grandest and most grandiose homes. Formal gardens highlighted by three circular stone-edged beds carried the house's symmetrical motif into the surrounding landscape.

As a popular destination for parties and picnics, the Byrne estate was a great success. As a working farm, it was another story. Some of the hundreds of trees the Byrnes planted did well--Live Oak Park still has specimens that were planted at that time in a rush of arboreal enthusiasm. But Nap Byrne found that the clay soil of the Berkeley hills was beyond difficult for growing annual crops. Though Mary Byrne could see that the encroaching town would soon make their land much more valuable, Nap had his heart set on farming. "There is no doubt that we are selling our land at the wrong time," Mary wrote in 1873 as the family moved to Venice Island in the Sacramento Delta. Less than a year later, she died suddenly; a few years after that, Venice Island disappeared under a flood. Napoleon Byrne's years as a farmer were over.

He had sold the mansion and most of his property to Henry Berryman and Felix Chappellet, business partners who were developing North Berkeley. The Berryman family moved into the mansion, and the two men set about designing an infrastructure that would attract residential buyers to the plots they subdivided. They built a railroad that went from Oakland through downtown Berkeley and up to the corner of Shattuck and Vine, a stop known as Berryman Station. They laid out streets, naming many of them after family members--Milvia was Chappellet's wife, and Henry Street was named in memory of a son killed in a train wreck. Berryman founded the Berkeley Water Company, piping water from a lake that is now the location of EBMUD's Berryman Reservoir. As streets were created around it, the mansion retained a parcel that went from Spruce Street on the east to Walnut on the west; Oxford stopped north of Codornices Creek and picked up again south of the property.

Napoleon Byrne had retained a small parcel just south of the mansion, and in 1880 he built a home there and moved back with his children to what was fast becoming a town. He became Berkeley's postmaster, and after a protracted fight with post office administrators he managed to hire his son Luke, confined to a chair by multiple sclerosis, to work the counter--making Luke Byrne the first disabled person ever to be hired by the postal service. In the 1890s Nap Byrne ran a stable and coalyard at University and Oxford, until his habitual generosity in giving away coal to the elderly widows among his customers drove him out of business. When the freed slave now known as Peter Wilson tried to offer his former owner the savings from his own successful plastering business, Byrne insisted they instead mount a search for any of Wilson's surviving family members back east who might benefit by the gift of Wilson's money. Byrne died in 1905, poor but appreciated.

The Byrne mansion passed through the hands of many owners over the first fifty years of the last century, settling further into benign neglect. The creek, meanwhile, was suffering its own indignities: In 1909, upstream from the property, the creek was put into an underground culvert so houses could be built more densely east of Spruce. Soon after, the completion of Oxford Street cut the parcel down to its current 2.2-acre size. Also during the 'teens, the city of Berkeley planned to turn Berryman Path into a roadway, linking Spruce and Oxford streets mid-block, but that project met fierce opposition from citizens who presented the city with a petition declaring that they liked having a footpath and did not need a street. This was the neighborhood of the Hillside Club, after all, of such visionaries as Bernard Maybeck and Charles Keeler and their popular ideas about how neighborhoods should be linked closely to nature. The city backed down.

By the 1940s, the property was in the hands of Alice Robinson, whose family controlled much of the real estate of the Hawaiian Islands. When Robinson offered to sell the parcel--and the house, by now boarded up--to the city of Berkeley for $35,000 in 1949, a lively fight ensued. Neighbors wanted the parcel to be the start of a park that would follow Codornices Creek from the hills to the bay, but they were overruled by a City Council that considered Live Oak Park sufficient nearby open space. Robinson instead transferred the property to the People's Church of Berkeley in 1950, in an impressively binding legal document that constrained any future owner of the parcel to use it only for religious purposes in keeping with the doctrines of the Christian and Missionary Alliance, the Robinson family's pet philanthropic interest. (The succession of small churches that owned the property up until it was sold to Congregation Beth El in 1997 have all been members of the alliance.)

It only got worse from there for the boarded-up mansion and the creek. By 1952 the owner of record was the Church of the Cedars, a small congregation that decided to build its sanctuary on the southeast corner of the lot. A church member who was a contractor offered to do the work for free, and permits were acquired from the city to demolish an old pumphouse and construct a 32-by-90-foot concrete building. What happened next remains in the murky realm of hearsay, but the results are plainly visible. Across the upper two-thirds of the lot, Codornices Creek had been filled in with cement rubble, a concrete culvert, and loose soil that may have contained the remnants of the pumphouse and other debris from the building site as well as several trees that had been cut down without the congregation's permission. Apparently, filling in the creek had been the builder's idea, for the church's pastor responded with angry words, and the contractor not only resigned his membership in the congregation, but also sent the church a bill for his services. The culverted portion of the creek is still exactly as he left it.

The mansion moldered unused for decades, casting an aura of elegant decay so romantic and melancholy that even in its compromised condition it became a favorite Berkeley landmark. When the city started officially identifying historic sites, the Napoleon Byrne house and grounds became Landmark #13 on the list in 1976. In 1979 the location was added to the National Register of Historic Places. Several neighborhood groups as well as the Berkeley Architectural Heritage Association labored through the late '70s and early '80s to preserve the mansion. By this time, ownership had passed to the East Bay Chinese Alliance Church, a small congregation without the funds to consider restoration. Pastor Victor Chan agreed to let BAHA take on the project; the church would continue its ownership and would use the restored building for its Sunday school. Garage sales, spooky Halloween parties, and other fund-raising events were held at the site. A planning grant from the National Trust for Historic Preservation, followed by a Community Development Block Grant, got a shoestring renovation project going under the supervision of local builder Michael Korman. By 1984 the foundation had been repaired, a coat of stucco removed from the original wood siding, and some unfortunate later additions--a dormer and several attached outbuildings--had been removed. The first fire was in December of that year--arson, according to the fire marshal--leaving the mansion damaged but not beyond repair. A month later a second arson fire damaged the structure further.

Though no one was charged with starting either fire, gossip leaned toward a particular man who had supposedly bragged about having been responsible for another recent arson. Nobody asked him about the Byrne fires because he was arrested soon after on an especially grisly murder charge. Meanwhile, the arrangement between the Chinese Missionary Alliance Church and the restorationists had already grown testy; the sight of the charred building moved Pastor Chan to declare an end to the restoration experiment. When he applied for a demolition permit from Berkeley's Landmarks Preservation Commission, though, he found that divorce, so to speak, was not so simple. The LPC denied the permit, since the building could still conceivably be saved, and many neighbors, though in shock, wanted to try to raise the huge sums that would be required.

Pastor Chan appealed for help to the national Christian and Missionary Alliance, which hired a consultant to petition the National Register of Historic Places to delist the building. LPC maintained its stance, saying the building remained a landmark. When family heir Bruce Robinson wrote to preservation-minded neighbors to restate the constraints on the deed--that no activity could take place at the Byrne house that was not in the service of God as defined by the Alliance--even the most devoted neighbors began to lose heart. The LPC's stop on demolition could by law only last for one year. After that, the church had the remains of the mansion demolished and hauled away to become landfill.

The last decade of the century started out quietly enough for the little plot of land that had been the focus of so many dreams and so much contention. In 1992 the LPC reaffirmed its continued landmark designation for the site, saying that even without the Byrne mansion, the creek, large trees, and pastoral setting were "a reminder of the early farm days in Berkeley." When the Chinese Alliance Church applied for a modest expansion from the city planning department that year, the congregation of a hundred families was required to provide 26 off-street parking spaces but was specifically prohibited from using the northern half of the property for any development, including parking.

Two years later, landscape architect and celebrated community gardens activist Karl Linn negotiated an arrangement with the church for community gardeners to use that neglected north side. A coalition of three local groups--Spiral Gardeners, Strong Roots, and a collection of neighbors--began improving the topsoil, growing organic vegetables, and restoring native plants to the creek banks and surrounding oak grove. Neighbors gathered informally under the oaks, schoolchildren participated in native plant projects, and the church didn't have to worry about the wild north side of its property being an eyesore.

In 1996 the Chinese Alliance Church approached Congregation Beth El to see if the temple was interested in purchasing the property. From the first, Beth El members felt the deal was meant to be--for years, their location on Arch Street had been bursting at the seams, straining to accommodate the many religious, educational, and social activities of 600 families in facilities built for 250. The Chinese Alliance Church had barely inhabited its two acres while Beth El served six times as many people on a lot one-quarter the size, with a thriving nursery school for sixty, after-school religion classes for older children, evening classes for adults, Friday-evening and Saturday-morning services, a popular summer camp, and various other religious and social gatherings. Its congregation was not only large but also, on the whole, quite affluent--members felt sure they would be able to raise funds for a major building project.

And not only were Beth El members well off--they were also well-informed, well-represented in the community in many capacities, and as well-connected as any group in Berkeley could be. Developer Patrick Kennedy was a member; State Assemblymember Dion Aroner's children attended Beth El's nursery school; Susan Wengraf, Berkeley planning commissioner and aide to City Councilmember Betty Olds, was an active congregant.

Before making the decision to buy the parcel, Beth El hired a traffic consultant who reported that since the new location was in basically the same neighborhood as its current facility, there would be no significant change in traffic volume. And since the new site was large enough to accommodate both parking and a drop-off lane, it would actually improve traffic. After all, at the Arch Street location, drop-offs and pickups are accomplished by cars stopped in the street, and the site itself has only three parking spaces.

Beth El decided it would help to hear directly from the prospective neighbors, so--also before deciding to buy the land--the temple invited residents of the blocks surrounding the property to several meetings where it would present its ideas and listen to neighbors' concerns. At first, traffic and parking did seem the dominant worry, but as more neighbors heard about the possible purchase, and more of them came to subsequent meetings, concerns about the creek took precedence. Neighbors began to gather on their own to talk about what was most important to them about the site, and came up with a list of "core values" that they presented to Beth El representatives.

At the top of the list was "Cooperation--buyers, neighbors, and other affected institutions and groups should set up ways to work together to avoid or resolve problems and help each other meet their goals." This was followed by, "A green corridor should extend along Codornices Creek from Live Oak Park east through the site. This corridor, in conjunction with Berryman Path, should encourage pedestrian and bicycle travel as well as biological links for native plants and wildlife. It should remain possible to someday open up the culverted portion of the creek."

Beth El followed through with the purchase in 1997, in the process managing somehow to lift the restrictions that Alice Robinson had embedded in the deed. Nearby residents continued to meet, formalizing their group as the Live Oak Codornices Creek Neighborhood Association (LOCCNA). The community gardeners were allowed to stay until their lease agreement ran out in March 2000. At Beth El, volunteer committees were organized to shepherd the project--one for design, one for fund-raising, one for permits. The design committee settled with great enthusiasm on the prestigious Los Angeles architectural firm of Moore, Ruble, and Yudell, who designed UC Berkeley's Haas Business School and many houses at Sea Ranch. On a recent tour of the site, permits committee member Martin Dodd emphasized that a main consideration was the architects' ability to create a building that would blend into the site and balance the various needs of the congregation and the neighborhood. He's proud that the design requires no zoning variances and takes up less of the project site than is legally allowed. "I like to think that we've tried very hard to listen to what neighbors have had to say," he says. "I think we've been very responsive."

As chairperson of LOCCNA's Beth El subcommittee, Gould arranged more meetings with temple representatives over the following months. "I realized that though they were meeting with us, there was no communication," he says of this period. Susan Schwartz, a member of Congregation Beth El as well as a neighbor and a longtime creek activist, saw these meetings in a similar light--"There's a difference between holding meetings and saying, ÔThis is what we're doing for you,' and really sitting down and talking," she says. She feels that neighbors also did not come halfway in really considering Beth El's point of view, but that Beth El began the antagonism with its lack of response to the "core values" upheld by the neighbors. "They decided to disregard the first and most important point--the creek," she maintains. In September 1998, neighborhood residents made the point again, sending this message to Beth El's design committee: "Please know that it is the consensus of this neighborhood that the proposed drive between Berryman Path and Codornices Creek is unacceptableÉ. The creek corridor is too precious a piece of nature in Berkeley to relinquish for car accommodations."

Neighbors continued to emphasize that their opposition was not to Beth El but to particular aspects of its project, most especially the roadway and parking lot over the creek corridor. Of many suggestions made, two were repeated most often--underground parking, and the possibility of scaling back the design and keeping Beth El's current location for some of the congregation's programs. Beth El didn't like the underground parking alternative because of its expense, and because of concerns about security (e.g., terrorist car bombers). Karl Linn, who escaped Nazi persecution as a boy, said, "This is embarrassing to me as a Jew" when he heard of Beth El's objection. "What provides Jews security in this country is if you work things out with your neighbors," he maintained, and "if you try to make things better for the community as a whole."

Splitting the congregation's many programs between the two locations--perhaps keeping the nursery school and offices at the current location while building a bigger synagogue, social hall, and other meeting rooms at the new site--became a popular topic of discussion, but apparently not at Beth El. The congregation is hoping to sell its current site to pay part of the $8 million cost of the new development. Though logic indicates that scaling back the new construction could balance out the expense of keeping the old facilities, Beth El did not seem eager to do the math. Still, LOCCNA remained hopeful that its concerns would be substantially addressed in the final plan. According to Alan Gould, "Beth El kept saying, ÔThis plan is just preliminary--it will be different.'"

As the conflict began to seep beyond the immediate neighborhood, Berkeley Design Advocates attempted to mediate. BDA, a local organization of architects and other professionals devoted to improving the quality of designed environments, formed its own Beth El committee, chaired by Karl Linn. BDA President Michael O'Leary reported in December 1998 that "the matter is clearly at a point where the Beth El design team would benefit by sitting down together with community representatives to openly discuss possible enhancements, alterations, or alternatives to the current plan."

O'Leary offered BDA as a facilitator for such a dialogue, and added, "In any event, we hope that a more collaborative approach will be adopted by Beth El and their design team--before the plan is developed any further." Though BDA did have several meetings with representatives of Beth El, the temple never responded to the offer.

Neighbors and the growing circle of concerned community members took heart in February 1999 when Beth El hired the Waterways Restoration Institute to identify options for Codornices Creek. As both a creek-restoration expert and a staunch advocate of community-based consensus planning, WRI director Ann Riley had the respect of all sides. WRI's report provided Beth El with four options, ranging from the greatest degree of restoration (returning the creek environment to its historical status) to the least (keeping the culvert and merely trying to stabilize the eroding south bank). The report urged Beth El to present the four options in a consensus-based planning process that would include all stakeholders, and offered WRI's services to facilitate the discussions. In the meantime, Riley made no public comment on the project. "We felt it was important to retain a neutral role," she says. "But we were never called upon to continue the planning process." Instead, Beth El began to publicly present WRI's "least restoration" option as the only one, calling it the recommendation of "one of the nation's foremost authorities on creek restoration."

In September 1999, Beth El revealed its final plan--and it was virtually unchanged from the first sketches shown in July of 1998. Harry Pollack, Beth El board president through the period, says that since the first design already responded to the neighbors' concerns, it didn't need to be changed: "The original design is remarkable in its sensitivity to issues that were brought up. We wanted to incorporate every reasonable suggestion we could from the start. We wouldn't be true to our own mission if we didn't do it that way." He is referring to such changes as the location of Dumpsters--and also, without irony, to the roadway and parking lot, which will lessen local traffic congestion. Pollack adds, "Many of us do what we consider very socially responsible things as jobs. We're not a private developer. We're not in this for money."

A cooperative planning process open to all stakeholders is an experiment in trust that very few property owners would want to try--apparently not even a nonprofit, community-based religious institution made up of progressive, politically aware, socially responsible citizens. Successful consensus-planning projects, such as the huge Napa River restoration facilitated by WRI, often involve public lands as well as private holdings, and such a complex mix of stakeholders that everyone knows at the start that nothing will be done--positive or negative--until everyone agrees. Apparently, however, Beth El was encouraged to forge ahead without consensus by a city planning department that portrayed the project as straightforward and unencumbered. Buzz around town has had the planning department fast-tracking the Beth El project for the past year, and the release of the Final Environmental Impact Report gives credence to the rumors.

The environmental review process is meant to examine all of a proposal's potential impacts--in this case, historic and cultural resources, impacts to the creek, traffic and parking in the vicinity, noise, pollution, and aesthetic impacts. Usually four alternatives are presented; the aim is to choose the course that most satisfies the applicant's objectives while reducing negative impacts to allowable levels. Mitigation measures for unavoidable impacts are decided. As the applicant, Beth El paid for the EIR; the city of Berkeley hired an independent consultant to prepare the review under the city planning department's guidance. The draft version, completed in July, was greeted with satisfaction at Beth El and consternation in other circles. Those with a different opinion or additional information had two months in which to offer written comments. These comments would then be reviewed by the consultant, who would supposedly make changes in response to the new information. Two weeks ago, the whole two-and-a-half-inch-thick pile of double-sided pages was released as the final EIR. Ideally, everyone's concerns would be addressed by the final result, but in fact, the process often tends to push the players into ever more adversarial positions. And if the agency in charge--in this case the Berkeley planning department--ignores relevant information to push through its own agenda, then the battles may have just begun.

In the parking/traffic realm, a city-commissioned study found results identical to Beth El's previous traffic study--"no significant impact." Some Beth El activities were included, but over a hundred days a year on which two hundred people could be expected to converge on the site were overlooked. The neighbors in LOCCNA believed the draft EIR underestimated parking demand and overstated the availability of street parking, and the group's written comments went on for four pages, detailing inappropriate comparisons and mistakes. The final EIR noted these comments without responding. Others thought the Chinese Alliance Church's 1992 permit application for expansion on the site--the one that required the small congregation to provide 26 parking spaces away from the creek--should have been included in the report as a relevant precedent; those comments were noted without response. And so it went.

When it came to historic resources, the EIR process added several chapters to the ongoing power struggle between Berkeley's planning department and its Landmarks Preservation Commission. The LPC had kept the site's landmark status, even without the Byrne mansion; the draft EIR concluded that because the site had been taken off the National Register of Historic Places, it did not need to be considered a historic resource in the planning process. The LPC objected. For the final EIR, Berkeley planning director Steve Solomon queried the state Office of Historic Preservation, which said that since the site was not listed in the California register, it did not need to be considered under California Environmental Quality Act (CEQA) guidelines.

"We can't believe that we've been outmaneuvered on a technicality," was LPC member Lesley Emmington Jones' response. She went on to say, "Our city government has gone along hand-in-hand with this project without letting our commission do its job." Berkeley developers tend toward the opinion that the LPC has already overstepped its job; Patrick Kennedy dismisses the commission as "NIMBYs masquerading as preservationists."

All that sounds positively cordial, though, compared to the bombshell dropped last Monday by City Attorney Manuela Albuquerque. In a dazzling escalation of hostilities, Albuquerque, acting on the directive of deputy director of planning Vivian Kahn, disqualified four Landmarks Preservation Commissioners from further participation in the Beth El planning process, claiming they have a conflict of interest. Three commissioners are on the board of directors of the Berkeley Architectural Heritage Association, and a fourth is a part-time employee; BAHA submitted a criticism of the Beth El draft EIR during the public comment period. The city attorney's opinion was delivered a week prior to the LPC's scheduled meeting on Monday to review the project's final EIR.

This maneuver has repercussions far beyond the city and the Landmarks Preservation Commission, and one commissioner noted how ironic it was to originate in Berkeley, in what she calls the cradle of free speech. "Most people on commissions in Berkeley are on the boards of other organizations," says Carrie Olson, one of the LPC Four. "We are people who like to serve our community." At Monday's packed LPC meeting, when over a hundred people waited to discuss the commission's recommendation in regard to the Zoning Adjustments Board's certification of the final EIR--the next step on the road to building the project--two hours were instead given over to the ramifications of the city attorney's move. When all four "disqualified" commissioners indicated they intended to vote on the matter in spite of the city attorney's ruling, Albuquerque said that in that case she would advise the Zoning Adjustments Board to disregard the LPC's recommendation. She went on to add the threat of personal liability as a consequence of their continued participation--in plainer words, if Beth El were unhappy enough with the outcome to sue the city, then the city could attempt to blame the LPC Four and could refuse to pay their legal fees or defend them. At this point the commissioners seemed to realize the impossibility of their situation; with apologies to the assembled citizens, they adjourned.

Particularly worrisome is the seeming overreaction--the LPC had reached its own public decision on the inadequacy of the draft EIR a full month before BAHA's comments, and in both cases what was being criticized was a planning document, not the Beth El project itself. LPC members have not advocated stopping the Beth El project; they wanted to have historic and cultural resources included in the development plans. No one insisted that the bare ground where the former Byrne mansion once stood remain forever empty in memorial. Suggestions were made to allow a UC Berkeley urban archeology team to conduct an excavation before building began, since occupation of the site goes so far back, and since garbage collection didn't begin in Berkeley until 1945. Dismissive remarks like Patrick Kennedy's--"I find it bizarre that LPC can claim jurisdiction by virtue of a landmark that has since burned to the ground"--serve to obscure the fact that LPC bases most of its "claim" on the present-day cultural resource that is the creek. And the creek is where the real conflict lies.

Of course, the city, too, seems remiss. After all, Berkeley has had a creek ordinance since 1990 that states: "It is in the interest of the City of Berkeley to encourage the removal of culverts and channels, prevent channel riprapping, and to restore natural watercourses whenever safely possible." Along with Albany, El Cerrito, and Richmond, Berkeley adopted a Joint Watershed Goals Statement in 1995 that also advocates "restoring our creeks by removing culverts," as well as "restoring creek corridors as natural transportation routes with pedestrian and bicycle paths along creekside greenways." Codornices Creek is Berkeley's largest, least culverted waterway; sections of it have been the focus of five different restoration projects in which the city has enthusiastically participated. It is the logical creek to become a parkway to someday link the hills and the bay, and it is Berkeley's most promising habitat for salmon restoration.

Even in cases in which Berkeley cannot mandate creek restoration--its creek ordinance has no legal teeth--there are large-toothed government entities that do have jurisdiction. In September, the University of California was ordered by the Regional Water Quality Control Board to participate with the cities of Berkeley and Albany in the restoration of Codornices Creek on the border of its University Village site; the university has been given until next March to come up with a plan. And the entire length of Codornices Creek has been designated by the National Marine Fisheries Service as a critical habitat for restoration of the endangered steelhead salmon.

In Berkeley city offices there are people who know of and support these developments, but these people are apparently not to be found in the planning department. The Beth El draft EIR summarily dismissed WRI's "full restoration" alternative on the grounds that it did not allow Beth El to meet all its program objectives. While negative impacts of the culvert were noted--its placement has gouged the bed of the creek deeper across the western section of the property and caused the slides on the south bank--the culvert was nevertheless treated as "an existing condition" that did not need to be corrected. The presence of steelhead in Codornices Creek, officially documented as recently as this spring by Cal professor Tom Dudley, was discounted as a probable rainbow trout population. (Rainbow trout are nonseagoing, genetically similar to steelhead, and they look much the same as juvenile steelhead.)

Kier is not the only steelhead supporter. The National Marine Fisheries Service, enforcer of the Endangered Species Act, responded to the EIR in similar fashion, calling the culvert an impediment to steelhead passage and its continued operation a "take" of a listed species. The response went on to say that "the paving over of the culverted portion of Codornices Creek for the project's parking and traffic plan will have the effect of foreclosing upon future opportunities to restore this reach of stream." NMFS warned that the project as proposed will require an Army Corps of Engineers permit, and that because an endangered species is involved, the Army Corps will have to consult with NMFS. "During this consultation, the fish passage problem at the existing culvert and future creek restoration opportunities must be considered by NMFS and the Corps as interrelated and interdependent effects of the proposed action."

Not to be left out, the California Department of Fish and Game also sent a reminder that any work within the banks of a creek, "including road crossings and culverts, will require a Streambed Alteration Agreement from this Department." Fish and Game made its position clear: "The Department recommends that consideration be given to present and future creek restoration possibilities, that projects incorporate enhancement and restoration actions where possible, and that projects not preclude future restoration activities." The Regional Water Quality Control Board also weighed in with its strong recommendation that the culvert be removed.

Astonishing as it may seem, the final EIR registered no substantial changes as a result of this input. The report maintained that rainbow trout and steelhead could only be differentiated by DNA analysis. "I was a little browned out by that," Bill Kier admitted, adding, "I've spent over forty years on these streams, and I'll stand by my statement." Kier felt that the way the city has handled the project has been in no one's best interest--"When legitimate information is simply dismissed, it doesn't serve the client and it doesn't serve the city of Berkeley. It just leaves these things to be decided in court."

As if to emphasize this turn of events, the Sierra Club, a frequent litigator in environmental suits, just passed an iron resolution: "The Sierra Club opposes any project proposed for 1301 Oxford Street that does not include restoration of Codornices Creek as it crosses the site (restoration means creation of habitat suitable for recovery of the steelhead, and includes but is not limited to daylighting)." The resolution goes on to suggest that if full creek restoration is not compatible with Beth El's goals, "the Sierra Club urges the City of Berkeley to work with the applicant to find an alternate site."

Whether or not the project--or the LPC controversy--ends up in court, the process has by now created resentments that, with hindsight, were avoidable. Beth El members who by and large really do care about making a positive contribution to the community feel they are being portrayed as greedy developers or worse--they especially don't want to be implicated in the city attorney's latest caper, and at least one of the commissioners made a point of saying that she knew the impetus behind the conflict-of-interest charge was not coming from Beth El members. Neighbors are resentful on two fronts--that, as Diane Tokugawa put it, their "sincere respect for Codornices Creek is considered a NIMBY issue"--and that their opposition might be construed as anti-Semitic. Half the LOCCNA activists I interviewed are themselves Jewish; several mentioned their discomfort that Beth El's Rabbi Ferenc Raj has been making more references than usual to the Holocaust and persecution of Jews in his talks to the congregation.

When I asked Rabbi Raj if he thought anti-Semitism played a part in opposition to the project, he said, "This is not the first time some people would blame the Jews for everything--America is different, but anti-Semitism is everywhere." Rabbi Raj acknowledged that his perspective remains heavily colored by his childhood in wartime Hungary, where he was one of the children saved by Swedish diplomat Raoul Wallenberg. "You can imagine how happy I am to be building a synagogue when I saw in my lifetime the desecration and destruction of so many synagogues," he says. Regarding his congregation's attitude toward the creek, the rabbi offers, "We would like to preserve whatever we can, and at the same time we'd like to serve our religious community."

A few dreamers still hold out for a future in which the temple and a restored creek share the site in a way that honors the past, respects the neighborhood's quiet character, and celebrates Beth El's vital contribution to the community. Karl Linn feels that "the temple has betrayed its religious roots" by failing to embrace restoration of the creek as an integral part of its new home. By changing course now, Linn believes that Beth El could "become part of an emerging Jewish movement that experiences nature as sacred and holy, and considers ecological integrity and action as central to Jewish life."

WRI's Ann Riley also hopes Beth El will experience a major shift in its approach. She believes it's not fair that the temple should both lose the right-of-way needed for daylighting the creek and pay for the restoration as well; she suggests that some agreement be negotiated in which the larger community could buy back the creek corridor and make restoration and maintenance of the creek and banks an ongoing public responsibility. "If Beth El were to do this, they'd be setting an example for the city of Berkeley," she says. "They'd have the high moral ground."

The project's immediate future promises to be a choppy voyage at best. The Zoning Adjustments Board opens its hearings on the final EIR Thursday, November 9, at 7:00 p.m. on the second floor of Old City Hall. The next moves for the LPC are still unknown; when asked what recourse the commissioners had, Albuquerque answered, "There is only one city attorney." According to the city's schedule, both the ZAB and the LPC must cast their final votes by January 11. In the case of the ZAB, the decisions are whether to certify the final EIR and whether to grant the project's use permit. The LPC has only one decision to make, on an alteration permit for the site.

However the votes are cast, the one sure thing is that the decision won't be the final word. There may yet be a chance for everyone who loves this little bit of paradise to sit down and talk about its future--and if that doesn't happen, there's always the possibility that its future will be decided in court.

[END STORY--(not)]