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City Prepares To Sue UC Over Stadium Expansion

By Richard Brenneman
Friday September 29, 2006

In an 8-1 vote, Berkeley city councilmembers voted Tuesday to hire a lawyer to prepare for legal action challenging UC Berkeley’s massive stadium area expansion plans. 

The lawsuit would target the environmental impact report (EIR) on the project, which the university plans to release 10 days before the Nov. 15-16 meeting of the UC Board of Regents. 

The city contends that the document fails to adequately address project impacts, fails to offer critical mitigations, and was prepared without offering the city and public critical information that the university had failed to disclose. 

A victory in court “could kill the project,” said Mayor Tom Bates after the closed-door session in a sixth-floor conference room in City Hall, “but it’s a crap shoot.” 

Bates said the cost of legal counsel could run more than $250,000. 

The mayor contrasted the litigation to last year’s litigation challenging details of the university’s Long Range Development Plan (LRDP) through 2020. 

“Unlike that suit, this one could stop the stadium projects,” said Bates. 

Because the EIR is slated for consideration and probable adoption at the Nov. 15-16 meeting of the UC Board of Regents in Los Angeles, the council needed to act quickly, said City Manager Phil Kamlarz. 

Should the regents vote to accept the controversial document, the city would be forced to file a legal challenge within 30 days. 

“Conceivably the university could break ground right after it’s adopted, so it was critical to act,” said Bates. 

UC Berkeley Director of Community Relations Irene Hegarty said she wasn’t surprised at the council’s decision. 

“We understood that the city has some strong concerns,” she said. 

Should the city sue, Hegarty said the response will be determined by the UC Office of the President. “Sometimes they use our own attorneys, and sometimes they hire outside counsel who are environmental specialists,” she said. 


Lone dissent 

The council’s action carried on an 8-1 vote, with Kriss Worthington in opposition. 

The dissenting councilmember said he was unwilling to vote to hire a lawyer and incur the additional expenses for taxpayers when nothing in existing city ordinances blocked a possible secret settlement agreement. 

The city’s last suit against the university—the LRDP litigation—was resolved by a settlement approved by the council in a closed session before the terms were shown to the public. 

“I don’t want to repeat that ever again,” Worthington said. 

He said that he would like to see language included in the sunshine ordinance scheduled to be presented to the council at their next meeting that would mandate presenting all proposed settlements to the public at least 10 days before council action. 

Worthington said he had proposed similar language in 2001 when the council voted to ask the city attorney and city manager to draft an ordinance for council consideration. 

“It’s a principle of good government to let the public know,” Worthington said, “and right now there’s nothing that would prevent another secret settlement.” 


The fault issue 

In addition to the California Environmental Quality Act (CEQA), which mandates the EIR process, the city is also considering filing under the Alquist-Priolo Act, which governs construction on or adjacent to active earthquake faults. 

“There are not that many cases that have been filed under the law, so we don’t know what our chances are,” Bates said. “Part of the problem is that the law is pretty vague.” 

The Alquist-Priolo Act governs structures built within 50 feet of active faults, and bars construction of new facilities that are occupied 2,000 or more hours a year. 

Among the significant unavoidable impacts cited in the draft EIR released in May is the “risk of loss, injury or death resulting from rupture of a known earthquake fault” and similar dangers resulting from “strong seismic ground shaking” even if the fault were not ruptured. 

No mitigations could eliminate the danger, the report stated. 

In addition to a major seismic retrofit and refurbishing of Memorial Stadium itself, the Southeast Campus Integrated Projects (SCIP) addressed in the EIR include a proposed multi-level parking structure immediately adjacent that would house at 911 vehicles and a 132,500-square-foot Student Athlete High Performance Center planned adjacent to the stadium’s western wall. 

While the center itself—scheduled for use throughout most of the day—would be more than 50 feet from the fault, the structure would be physically connected to the stadium itself, raising questions about whether or not it would be impacted by the law. 


Other impacts 

The EIR covers projects totaling more than $250 million, including the stadium retrofit, the training center, the parking garage, an office and meeting complex joining function of the university’s law and business schools. 

The report included a 15-page section listing potentially adverse impacts, many affecting surrounding residential neighborhoods and other parts of the city as well as the campus itself. 

Among impacts cited are: 

• Increased demands on the city’s wastewater collection and treatment systems. 

• An increase in noise and traffic for nearby residents caused by the addition of seven more events a year held at the stadium. 

• Demolition of two historic landmarks, the alteration of a third, the stadium itself, and the demolition of a fourth potential landmark, the Calvin Laboratory. 

• Significant adverse change to the landmarked Gayley Road streetscape. 

City Planning and Development Director Dan Marks drafted two blistering critiques of the EIR and its precursor documents. Both were adopted by the City Council.  

The EIR was drafted by Design Community & Environment, the Berkeley consulting firm that drafted the controversial LRDP. 


United stand 

During the brief public comment period before the doors closed on the council discussion, councilmembers were presented with a letter endorsing action submitted by a coalition of community and neighborhood groups. 

Presented by Joanna Dwyer, the letter bore signatures of representatives of the Sierra Club, Urban Creeks Council, Berkeleyans for a Livable University, the Berkeley Architectural Heritage Association, United We Stand & Deliver, Council of Neighborhood Association and the Claremont-Elmwood, Dwight-Hillside, Daley’s Scenic Park and Panoramic Hill neighborhood associations. 

“That includes all the neighborhood associations for the impacted areas,” said Dwyer. 

Dwyer is also active on another stadium issue: preservation of the stand of native California coast live oaks that would be hacked down to make way for the training center near the western stadium wall. 

“We’ve been handing out leaflets at all the home football games,” she said. 

Save the Oaks at the Stadium (SOS) has enlisted the support of the Sierra Club, the California Native Plant Society and environmental activist Julia Butterfly Hill. 

They have a web site at