Berkeley fault lines—literal and legal—dominated long hours of argument Tuesday during an intense hearing in Judge Barbara J. Miller’s crowded Hayward courtroom.
At the end of the day, the Alameda County Superior Court jurist announced she would issue a ruling by Monday afternoon on a case that has brought nationwide attention to the tree-sitters nested in the branches west of UC Berkeley’s Memorial Stadium.
Tuesday’s arguments pitted a world-renowned university intent on developing a massive complex of new buildings near a beloved campus landmark against a city worried about seismic calamities and increased demands on an overburdened infrastructure, neighbors worried about safety and congestion, and environmentalists out to save a grove of threatened trees.
For the university, the main issues are costly construction delays and the need to clear-cut the grove and excavate a construction site before the onset of football season.
Vice Chancellor Ed Denton, the university’s development boss, sat quietly in the audience, scowling once at a reporter who aimed a camera in his direction. Seated across the courtroom from him were Berkeley’s top two city lawyers, City Attorney Manuela Albuquerque and deputy Zach Cowan.
Two strands of legal argument dominated the discussion—allegations that the university had violated key provisions of the California Environmental Quality Act and allegations that Denton’s projects violated—or potentially violated—the Alquist-Priolo Act, which governs construction near active earthquake faults.
What the plaintiffs seek is a ruling by Miller holding that the evidence of potential violations they offered is strong enough to justify a preliminary injunction blocking further work at the grove until she can hold a full hearing and issue a definitive ruling.
Charles Olson, a private attorney representing the regents, countered with claims that the university is fully in compliance with both laws, and that a delay would cost the university $20,000 a day—a figure based in part on construction cost inflation.
Substantial delays now could postpone construction because excavations must be completed before football season and the onset of winter rains, he told the court, with a year’s delay likely to cost between $8 million and $10 million.
Three lawyers presented the opposition case: Harriet Steiner of Sacramento for the city, Michael Lozeau of Alameda for the Panoramic Hill Association, and Stephan Volker for the California Oaks Foundation. Olson responded to each in turn.
All of the plaintiffs urged the delay of the first stage of construction—taking the ax to a grove that includes 38 California live oaks, a protected tree inside city limits but not on campus. Five of the oaks are currently occupied by tree-sitters, as is a doomed California redwood currently inhabited by defeated mayoral candidate Zachary Running Wolf.
The high-profile arboreal activists have drawn the ire of university officials and sometimes heavy-handed surveillance by campus police along with the attentions of reporters and the lenses of media photographers from coast to coast.
One protester was in court Tuesday, and recognized by the judge during an exchange with Harriet Steiner, the Sacramento attorney hired by the City of Berkeley to plead its case.
At issue was a key point raised by the plaintiff’s attorney—whether or not University of California Regents acted legally when they delegated the decision to approve an environmental impact report to a subcommittee.
When Miller asked when the regents opted for a delegation policy, Steiner answer, “The grove has been in existence way longer.”
“And longer than Shirley Dean and those other two ladies,” replied the judge.
Dean, a 71-year-old former mayor, had joined 86-year-old City Councilmember Betty Olds and 90-year-old environmentalist Sylvia McLaughlin for a brief tree sit-in Monday, an event heavily covered by Bay Area media and the New York Times, which featured pictures on the day of the hearing.
Sitting in the audience Tuesday, Dean beamed at the judge’s recognition.
But there were few light moments during Tuesday’s session, which featured a courtroom-spanning table jammed with seven lawyers and a welter of papers, files and binders.
Steiner said the city wants a court order revoking the environmental impact report (EIR) approved by the regents’ Committee on Grounds and Buildings Dec. 5.
That document gave regents the power to undertake seven projects, starting with the 186,000-square-foot, $125 million gym—the Barclay Simpson Student Athlete High Performance Center—at the protest site.
Other projects include a common office and meeting “connection” building for the faculties of the university’s schools of law and business, a 912-space multi-level underground parking lot, and a major retrofit and vertical expansion of Memorial Stadium, recognized as a landmark by the city and state and listed on the National Park Service’s National Register of Historic Places.
The stadium sits directly astride the Hayward Fault, rated by federal geologists as the most likely site of the next major Bay Area quake, and state and federal geologists have urged more testing at the gym site.
The plaintiffs argued that no EIR should have been approved before the sites were cleared of Alquist-Priolo questions, and questioned building an expensive gym near a stadium which the university might not even be able to bring up to seismic code. The parking lot site directly north of the gym has also yet to be cleared.
That issue—strongly contested in Tuesday’s arguments—could trigger a decisive appellate ruling defining just what can and can’t be done to upgrade old buildings on active faults.
Alquist-Priolo limits improvements or additions to structures on fault lines to 50 percent of the structure’s value. But the question Miller must answer is just what “value” means in the context of the law.
While the university claims the term means replacement value at current construction costs, the plaintiffs charge that the value means the worth of the existing structure including all its faults and defects—which both sides acknowledge to be extensive.
Because no California court has decided the issue, whichever way the judge rules is likely to trigger an appeal and a decision that could greatly impact the future of construction in the country’s most fault-ridden state.
Since the new gym was one of the hiring demands of winning Cal Bears football coach Jeff Tedford along with costly stadium alterations that go well beyond simple seismic upgrades, the issue carries significant implications for a university that depends increasingly on the largess of alumni and corporate donors.
The preliminary plans call for major renovations within the coliseum’s interior and the addition of a new ranks of seats above the existing east rim and an elevated structure housing luxury skyboxes—a lucrative source of big-dollar donations—to be built above an elevated press box on the western rim.
Just how much work is feasible depends of the definition of value, the crucial legal issue.
Another issue involves the decision by regents in November to approve funding for the gym before reaching a decision on adoption of the controversial EIR, then to delegate the final decision on the environmental document to the board’s Committee on Grounds and Buildings.
Michael Lozeau, representing Panoramic Hill, challenged the resulting approval because the adoption was made by a vote of seven regents, a total less than a quorum of the full board.
“This was an illegal delegation under CEQA,” he said, making a point that seemed to draw great interest from the judge.
Olson replied that that regents had delegated similar decisions in the past, including a vote to grant the Berkeley chancellor the right to decide on the Foothill Bridge.
The university has been cagey about details of stadium plans since they were first unveiled by Chancellor Robert Birgeneau in November 2005. At the time, Birgeneau professed ignorance of the reasons for the uppermost western level of additions, later revealed by an athletic department representative to be the premium donor boxes.
University staff also showed deceptively bucolic renderings to the city’s Landmarks Preservation Commission early in the following year which showed none of the additions above the western wall, an omission noted by commissioners.
During testimony before the regents, Denton said construction at the stadium was critical to win the support of graduates who had fond memories of Big Games past and other events at the stadium.
All of the funding for the stadium area projects will come from private donors, Olson said Tuesday, because all state construction moneys are already committed to seismic retrofits of existing buildings on the campus.
Berkeley City Attorney Albuquerque was upbeat after the hearing ended shortly before 5 p.m.
“Judge Miller has a tremendous command of the case,” she said, “and I was very pleased with the quality of her questions.”
“It was almost as interesting as yesterday,” said Shirley Dean, referring to her high-profile fling at tree-sitting.