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UC Gym Lawsuit Raises Legal Tensions

By Richard Brenneman
Friday August 03, 2007

As the date for the courtroom showdown over UC Berkeley’s Memorial Stadium gym draws closer, a paperwork blizzard has begun to blow. 

Along with a slew of filings in advance of the Sept. 19-20 hearing scheduled by Alameda County Superior Court Judge Barbara J. Miller, the university has spawned a little storm of its own. 

UC Berkeley planner Jennifer McDougall stole a march on the City of Berkeley with a July 19 Freedom of Information Act and California Public Records Act request that produced letters from the U.S. and California geological surveys to Berkeley City Manager Phil Kamlarz. 

Those documents, based on reviews of reports by a university-hired geological consultant, bolster the school’s claim that the site of the Student Athlete High Performance Center may lie outside a crucial earthquake hazard zone. 

The Alquist-Priolo Act bars new construction within designated fault zones, which typically encompass 50 feet on either side of a seismic fissure that has been active within the last 11,000 years. 

The gym site lies immediately adjacent to the western wall of Memorial Stadium, an aging landmark that is literally divided end-to-end by the Hayward Fault—the fissure dubbed by federal geologists as the most likely source of the Bay Area’s next major shaker. 

Questions of seismic safety rank foremost among the concerns raised by Harriet Steiner, the attorney hired by the city to represent its interest in the multi-party action in Judge Miller’s court, and figure prominently in the arguments of the other attorneys challenging the university. 


CEQA concerns 

All the litigation is focused on alleged violations of the California Equality Act (CEQA), and the alleged inadequacies of the environmental impact report (EIR) the university prepared—using Berkeley land use activist David C. Early’s DCE consulting firm. 

The lawsuits, filed by the city, residents of Panoramic Hill and a coalition of environmental and preservation groups and individuals including City Councilmember Dona Spring, all seek an order overturning the Dec. 5 vote of the UC Regents Committee on Grounds and Buildings to approve the EIR for the Southeast Campus Integrated Projects, or SCIP. 

While the vote encompassed a series of projects, the university is moving forward with the one that figures prominently in the contract of Cal Bears football coach Jeff Tedford. 

While the contract spells out a base salary of $1 million a year, plus a $1 million signing bonus and a variety of escalators depending on numbers of games won and titles captured, another bonus gives him $250,000 if he’s still coaching the Bears when the four-story, high-tech gym is finished—plus another bonus of the same size if he’s still here when the western half of the stadium has been remodeled. 

Leaving before completion of the gym would cost him $150,000 a year for the remaining years on his contract, and $300,000 a year if the gym has been finished and occupied. 

Once the gym is complete, he can’t sign on with any other Pac-10 team till the contract term expires. 

If all goes according to the contract, the coach would get a maximum payout by the fifth year of his contract of $4,285,000—all paid by grateful alums. 

Stewart’s latest filing noted that on Jan. 7, 2004, then-Chancellor Robert Berdahl said that stadium improvements were critical to keeping the coach, who has transformed the Cal team from losers to bruisers. 

All of the SCIP projects will be bankrolled by private donors, and Vice Chancellor Ed Denton, the university’s construction czar, told regents last December that keeping the team at the existing stadium was critical to maintaining the fond memories of alums, and, presumably, the pliability of their wallets. 

But the city and their co-litigants contend that in the rush to build, the university has failed to give adequate consideration to the hazards of building on the fault. 

Construction of the gym means cutting down about 100 trees, including many Coastal Live Oaks, a key point with the environmentalists, who maintain that the stand represents a unique resource. 

Attorney Stephan Volker charged that that EIR “never address the biological significance of this impact. The reader is left to wonder whether this loss would harm wildlife or eliminate important genetic legacies.” 

All of the litigants charge that the university failed to seriously consider other alternative sites for the gym, and for the stadium itself. They also claim that stadium retrofit and expansion plans exceed the maximum 50 percent value of improvements allowed by the Alquist-Priolo Act. 

One major concern of the neighbors, cited in the papers submitted by attorney Michael Lozeau, is the impact of permanent stadium lighting—long a bone of contention between Panoramic Hill residents and the university—as well as the planned doubling of events at the stadium. 

The university had planned to start construction of the gym in January, but was stopped when Judge Miller issued an injunction that effectively blocked construction for a year. Vice Chancellor Denton estimated the year’s delay would cost between $8 million and $10 million. 

Other projects in the SCIP include a nearby underground parking garage, a new “connector building” bridging offices and functions of the university’s law and business schools, renovations to other buildings and changes to the landmarked Piedmont Avenue/Gayley Road streetscape. 

Only the gym has been approved for imminent construction. 


Geology reports  

The university scored a minor coup of its own, when McDougall obtained letters from the two geological surveys written to Berkeley’s city manager July 2—then released them to the press. 

Both the U.S. Geological Survey and the California Geological Survey had questioned the adequacy of an earlier report by the university’s consultants, which lead to a second survey that included taking core samples near the northeastern end of the gym site. 

State geologist William A. Bryant, manager of the Alquist-Priolo program, wrote Kamlarz that the new data indicated a “very small” chance of a potential tilt at the stadium site, and found no evidence for surface faulting within 25 to 30 feet of the gym. 

The language used by federal geologists David Schwartz and Tom Brocher expressed the same conclusions in virtually identical language. 

Volker said Thursday that he hadn’t seen the letters, and couldn’t comment on their specifics before his own geologist had reviewed them. 

“But they are too little, too late,” he said, “because the university was obliged to provide a full seismic review before the public comment period started for the EIR rather than attempting to sidestep review” by providing the needed research after the regents had already acted.