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UC vs. City: Stadium Suit Nears Decision

By Richard Brenneman
Friday October 05, 2007

The law barring construction and substantial renovations of existing buildings perched atop active earthquake faults doesn’t apply to the University of California, one of its lawyers said Thursday. 

That’s because the only mandatory provisions in the Alquist-Priolo Act refer only to city and county governments, John M. Sanger told Alameda County Superior Court Judge Barbara Miller. 

Sanger is one of two San Francisco attorneys defending the UC Board of Regents in litigation now underway in a Hayward courtroom that seeks to overturn Board of Regents decisions paving the way for a massive construction program at and around Berkeley’s Memorial Stadium. 

Three attorneys representing the City of Berkeley, Panoramic Hill Association, the California Oak Foundation, City Councilmember Dona Spring and other Berkeley residents are challenging approval the Southeast Campus Integrated Projects (SCIP). 

Harriet Steiner, Stephan Volker and Michael Lozeau are pitted against Sanger and partner Charles R. Olson in a case that focuses on two seminal laws governing real estate development in the state. 

By the close of court Wednesday it was all over but a tour of the site by Judge Miller and the lawyers, a day of final argument next Thursday and the judge’s decision—due within 30 days after the lawyers have had their final say. 

At issue are the Alquist-Priolo Earthquake Fault Zoning Act, legislation first passed in 1972, and the California Environmental Quality Act, adopted in 1970. 

The former governs construction on or near earthquake faults which have been active within the last 11,000 years, while the later governs impacts of construction projects and their remedies. 



Passed in the wake of the disastrous Feb. 9, 1971 San Fernando earthquake—a magnitude 6.6 temblor that collapsed two hospitals and killed 65 people—Alquist-Priolo bars new construction within 50 feet of an active fault and limits additions or alterations to existing buildings within the zone to 50 percent of a structure’s value. 

The fight over Alquist-Priolo is critical to the future of the Barclay Simpson Student Athlete High Performance Center—the four-story office and gym complex the university wants to build along the stadium’s western wall. 

The site is occupied by a recently fenced grove of coastal live oaks and other trees, several occupied by protesters who hope to save what the university acknowledges are more than three dozen specimen-quality trees.  

The judge’s rulings will determine if the university is bound by the law, and, if so, whether or not the 50 percent ruling should be fixed at a level the city and its allies contend would block its extensive renovation plans. 

Another crucial issue is whether the gym-and-office complex is part of the stadium or a separate building. Olson and Sanger have contend the structures are separate, noting that earlier plans that would have installed them in a six- or eight-floor structure replacing part of the stadium’s western wall were rejected. 

If the judge holds that Alquist-Priolo applies to the university and that the gym and stadium are one, the issue of the stadium’s value becomes critical. 

Project foes contend the stadium’s worth should be set at its current market value—arguably somewhat tarnished by the building’s age and the fact that the Hayward Fault slices through its walls, in Steiner’s phrase, “from goal post to goal post.” 

The university claims that replacement costs should be the standard, give a fat 50 percent margin that would encompass new seating, a lavish new elevated press and luxury skybox array, permanent lighting banks and other renovations—even with new gym added to the mix. 


Beaming up 

Sanger acknowledges that one aspect of the gym construction project will result in an addition or alteration: installation of a new “grade beam” at the base of the western wall to strengthen the structure. 

The university says the beam is needed to prevent possible collapse during excavation of the athletic and office center, and that the cost is trivial compared to the stadium’s value.  

Some of the session was taken up with dueling diagrams, displays on the courtroom screen of drawings each side used to bolster their claim that the gym was or wasn’t part of the landmarked stadium. 

Unlike CEQA, which has spawned a torrent of legislation and higher court rulings, there’s only one binding Alquist-Priolo decision, and it doesn’t deal with the critical issues before Judge Miller. 

Adding to the complexity of the case is the wording of the law itself. 

In court Wednesday, Lozeau pointed to the law’s preamble, which declares the state legislature’s intent “to provide policies and criteria to assist cities, counties, and state agencies in their exercise of responsibility to prohibit the location of developments and structures for human occupancy across the trace of active faults.” 

Sanger responded by pointing the statue’s specific implementation sections where the common phrase is “cities and counties shall ...” with nary a mention of the state or its agencies. 


CEQA claims 

California passed its law months after Congress passed the National Environmental Protection Act, legislation encompassing federal projects with similar environmental protections. 

At its heart are environmental documents that evaluate the impact of construction on biological, geological, historic, cultural, esthetic and other “resources,” spelling out mitigations for any adverse effects, and looking at alternatives that would avoid them. 

The most thorough going report, the one generally required of major projects, is the environmental impact report (EIR), a document which can run more than a 1,000 pages. 

The SCIP EIR is a massive document which includes the stadium upgrade, the gym, a nearby underground parking lot, renovations of Piedmont Avenue and some historic buildings, demolitions of other buildings, a new office and meeting complex joining functions of Boalt Hall law school and the Haas School of Business and repairs to the existing buildings of both schools. 

Adding to the complexity as well as the mass of paperwork stacked on tables along the jury box in Miller’s court is the fact that the SCIP EIR is a sub-document of yet another EIR. 

In legal lingo, the SCIP projects are “tiered off” the university’s 2020 Long Range Development Plan, which itself generated its own lengthy EIR. 

The result is a confusing maze of paperwork as impacts are sought first in one document then the other. Both documents also deal with multiple projects, adding to the twists and turns of the paper trail. 

The final two days of the hearing focused on the SCIP EIR’s sections devoted to project objectives, alternatives and the findings cited to justify the approval of both the EIR and the SCIP projects themselves. 


Poison pills 

Olson said the projects were bound together to maximize synergy, design and fundraising. “I admitted it was unusual,” he told the court, but the university had done it twice before in recent years. 

But the judge noted that descriptions of objectives included in the earlier bundled projects “are a little more concrete than some of the rather vague objectives included in the current projects.”  

While the project foes have charged that the EIR failed to give serious consideration to relocating the stadium elsewhere—perhaps to Albany, Richmond or the Oakland Coliseum, Olson said CEQA doesn’t require the university to look for other sites. 

“The university has the unfettered ability to define its own projects,” he said. 

Volker said that when it came to justifying some of the most hotly disputed projects, the EIR relied on the least objective, least measurable rationales—namely “to enhance historic places,” “to create extra-ordinary new spaces,” and “to increase the functionality of existing spaces and facilities.” 

“The objects are designed to eliminate a range of alternatives,” Volker said, and particularly, were used as “poison pills” to kill off any possible alternatives to its plans for the stadium. 

At the meeting where the regents’ Committee on Grounds and Buildings approved the SCIP EIR, Vice Chancellor Ed Denton had told the board keeping the stadium at its present site was critical because of the fond memories it stirred in the hearts of alumni. 

“There was no good-faith discussion of alternatives” said Steiner, and the stadium alternative—relocating to Golden Gate Fields in Albany—“was designed to be eliminated.” 

Thus, she said, the university failed to provide that reasonable alternative mandated by CEQA.