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Top Legal Talent Battle in City-University Confrontation

By Richard Brenneman
Friday September 28, 2007

The courtroom battle over UC Berkeley’s stadium-area building boom pitted the city’s hired legal gun in a Tuesday showdown against the university’s own sharpshooter-for-hire. 

When the smoke cleared, both were still standing, awaiting the next round a week hence. 

The courtroom maneuvers now underway in the Hayward courtroom of Alameda County Superior Court Judge Barbara J. Miller are scheduled to end on Oct. 11 with closing arguments. 

Then it’s up to the judge, who is expected to rule sometime in the following 90 days. 

Harriet A. Steiner represents the city in its battle with the university. A shareholder in the prominent Sacramento law firm of McDonough Holland & Allen, she also serves as city attorney for another UC host community: Davis. 

It was as the legal advocate for Davis that she submitted a friend-of-the-court brief in a landmark case that held California universities need to mitigate the impacts of new development on surrounding communities. 

City of Marina and Fort Ord Reuse Authority v. Board of Trustees of the California State University has been hailed as a major victory for local governments struggling with the impacts of growth by agencies that are literally laws unto themselves. 

In that case, the state Supreme Court held that mitigations were required under the California Environmental Quality Act, one of two laws being used to challenge UC Berkeley’s stadium area projects. 

Her courtroom opponent, Charles R. Olson, is one of the two founding principals of Sanger & Olson, a San Francisco law firm specializing in real estate law. 

In addition to the University of California, the firm’s clients include the elite Starwood Hotels chain, the John Stewart Company, West Bay Builders and Pier 39, as well as the Salvation Army and the National Farm Workers Service Center. 

Olson is also representing the university in other cases challenging its development plans in Berkeley, and served as legal counsel to the university for preparation of its Long Range Development Plan (LRDP) 2020. 

That document and its accompanying environmental impact report (EIR) are playing leading roles in the current dispute over the Southeast Campus Integrated Projects (SCIP). 


Disclosure issues 

One of the key legal questions Judge Miller must decide is just what information the university must disclose about its projects and their impacts, and to what level and in what form. 

Olson contends the university met all its obligations in “tiered” environmental impact reports prepared both for the LRDP and the SCIP projects—which include, besides the four-story stadium-side gym and office complex renovations to the stadium, an underground parking lot, and a new office and meeting complex joining the nearby law and business schools. 

While Steiner said there was nothing wrong with including multiple projects in an EIR, “you have to make sure you’re doing a project-level EIR” for each development. 

“This EIR lacks that kind of project-level description.” she said, referring to the document prepared for the SCIP projects. 

As for the Student Athlete High Performance Center, “from the very get-go they stepped forward on the wrong foot” by offering vague descriptions of the project and its impacts and by failing to provide well-reasoned alternatives. 

“They told the public, this is your one shot to address the impacts and mitigations” of all the projects. 

Steiner charged that the stadium projects EIR failed to adequately address the potential impacts of building in an earthquake hazard zone (a definition from the Alquist-Priolo Act, which governs construction in seismic hazard areas) “next to a known fault” which “will most likely” be the source of a major earthquake “within our lifetimes.” 

One issue raised repeatedly by the plaintiffs—who also include City Councilmember Dona Spring, the Panoramic Hill Association and the California Oak Foundation—is whether or not the EIR’s impact findings are valid if, in fact, the university finds it can’t do the major renovations and retrofit plans for Memorial Stadium, which straddles the Hayward Fault. 

While Olson acknowledged that “even with mitigation,” the hazards of bringing people to a fault “cannot be reduced to less than significant and remains significant and unavoidable,” the stadium work would make things safer for the university, stadium users and the surrounding neighbors. 

But the question for the judge is, can the work be done?  

Alquist-Priolo limits new work on buildings within 50 feet of an active fault to half of their value. 

But is “value” the market price of the existing building or the cost of building a new one? And does the 50 percent limitation apply to seismic retrofits?  

And what about work needed to make the stadium compliant with the Americans with Disabilities Act (ADA)?  

Olson, the university’s lawyer, argues that retrofit and ADA costs shouldn’t count and that replacement cost, not market value, should be the governing baseline. 

Not so, say Steiner and the other plaintiffs. And if the stadium work can’t be done, they argue, the threat of collapse would endanger access by emergency workers and escape by residents of Panoramic Hill and other neighborhoods. 

And given the uncertainty of the future of the stadium, why build a gym immediately adjacent to it, one that could be pummeled by debris from a quake-ravaged stadium? 

And is the gym itself a potentially unlawful addition or alteration to the stadium, and thus to be counted toward the 50 percent Alquist-Priolo limit? A judge must come up with answers to this question and more. 

Judge Miller again reminded Olson that the courts are obliged to follow common ordinary definitions in applying the law, which could limit the building’s value to its sale price rather than its replacement cost. 

“I don’t necessarily agree that case law gets us to that point,” Olson said.  

And as for safety, Olson said provisions for moving temporary restroom and concession facilities now sited on game day on a temporarily closed Stadium Rimway along the eastern wall to new permanent spaces beneath the east banks of seating would clear the road for traffic, making the area safer. 

Unlike EIRs for single projects, which are individual documents that stand alone, the university’s projects are “tiered off” more comprehensive EIRs. The SCIP is itself tiered off the EIR for the 2020 LRDP’s EIR—the source of much of the information without which the SCIP’s own EIR can’t be understood.  

Olson acknowledged that the combined project EIRs tiered off from LRDPs were “unusual but not illegal.” 

Twice before, he said, UC Berkeley had adopted a similar tactic—in the case of the Southside projects which include Underhill parking structure and other buildings and with the so-called Nexus bioscience projects on the north side of the campus, tiered off from the 1990 LRDP and its EIR. 

But the plaintiffs are challenging the adequacy of both EIRs, particularly the broader 2020 LRDP document, which covers not only the entire campus area but plans for expansion into downtown Berkeley as well. 

The end result of the complex process is represented by the 17 boxes stacked along the edge of the jury box, filled with 198 “volumes,” some consisting of two of more binders—45,000 pages of documentation. 

In the current battle, Berkeley’s largest developer is also its own regulatory agency—with only the courts offering the hope of recourse. 

Olson said additional review will be undertaken if any substantial changes are made to the projects or if new information surfaces to suggest the environmental impacts may be different from those set forth in the EIR, possibly leading to a supplemental report or an addendum. 

Court will resume Tuesday morning. 

Meanwhile, a day earlier and in a Fremont courtroom not far away, Superior Court Judge Richard Keller will be hearing another case which focuses on the same gym site that has so consumed the legal talent in Judge Miller’s courtroom. 

UC Berkeley will be presenting its case for a court order ending the ongoing tree-sit at the grove along the stadium’s western wall, where protesters took up residence in the branches on Big Game day last December. 

During a hearing Sept. 12, the judge refused the university’s bid for a temporary restraining order that would have given the university the court’s backing to clear the branches. 

That hearing begins at 2:30 p.m. 

Judge Miller herself will pay a visit to the site next Thursday, scheduling her visit from 2 to 6 p.m., so she can see firsthand what all the fuss is about.