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With a smile and a soupçon of praise for the legal talent arrayed before her, Judge Barbara J. Miller retired to her chambers Thursday afternoon to ponder the fate of UC Berkeley’s stadium area development plans. 

The Alameda County Superior Court had just listened to the final day of arguments in her Hayward courtroom by three lawyers challenging the university and the regents’ hired legal gun from San Francisco. 

The last lawyer to speak to the court in the case of Panoramic Hill Association et al. vs The Regents of the University of California was Stephan Volker, whose clients include the California Oak Foundation and Berkeley City Councilmember Dona Spring. 

Volker concluded that his clients will accept the elimination of the 80-year-old and older trees at the grove almost at Memorial Stadium’s western wall and their replacement by three saplings each only “if the university agrees at its next football game that it will field a team of three-year-olds instead of the nation’s number two-ranked team.” 

Earlier Olson had thrown out a few sarcastic one-liners as well, including his admission that the grove “does contain some wildlife, but only after the commencement of this project.” 

His barb was clearly aimed at the tree-sitters who have been occupying the branches in protest of plans to axe the collection of trees, dominated by Coast Live Oaks—a protected species in the surrounding city. 

One short-term tree-sitter, former Mayor Shirley Dean, said she found Olson’s approach offensive. “He’s saying the university can do anything they want,” Dean said. 

One of the university’s most controversial claims is that the regents aren’t bound by the Alquist-Priolo Act, which bars new construction over active fault traces and limits renovations, additions and alterations to existing buildings to half or less of their existing value. 

Not only will Judge Miller have to decide whether or not the law applies to the university, but—if so—just how to calculate the value of the venerable stadium, which is both a city landmark and a structure honored in the National Register of Historic Places. 

But the question of whether or not the university can realize its grand plans for the stadium depends on the judge’s adopting the university’s contention that the stadium should be priced at its replacement cost, not its “as-is” sale value. 

Olson told the court that the university values the stadium at $600 million, but the challengers argue that the figure shouldn’t be considered because it wasn’t cited in the Environmental Impact Reports (EIRs) for either the stadium-area projects or the university’s Long Range Development Plan 2020. 

But the lawyers suing the university said that figure was not included in the environmental documents, and couldn’t be considered as evidence in the case. 

Because determining the stadium’s value is a precondition for two of the three phases of construction planned at the stadium itself—the first is the Student Athlete High Performance Center that would cause the destruction of the grove—the challengers said the university’s plans don’t represent a project as defined in the California Environmental Quality Act. 

But Olson contends his figure leaves $300 million as a budget for retrofit, renovations, a new seating array, new lighting, and a raised press box along the western wall. 

He didn’t mention the luxury skyboxes also included in the press box array for corporations and other deep-pocket donors. 

“The bottom line is, there is no evaluation,” attorney Michael Lozeau said earlier in the day. He represents the Panoramic Hill Association, neighbors who live on the slope above the stadium. 

“The facts seem to be quite malleable in the hands of the regents,” he said, charging that Olson was offering grounds for approval of the project that didn’t exist in the record. 

Lozeau and his colleagues have consistently argued that the athletic center, a four-story partly subterranean gym and office complex, is in reality an addition to or alteration of the stadium itself and thus its $120 million cost should also be factored against stadium retrofit costs. 

Not only that, but the lawyers argue that because the gym complex is an extension of the stadium, it probably can’t even be built given the cost restraints of Alquist-Priolo. 

Olson said the stadium has always been designed as a separate structure, and because it doesn’t sit on an active fault trace, nothing precludes it from being built. 

While the university argues that building the gym is a priority safety measure to get athletes and university staff out of the seismically unsafe gym into a new, earthquake-safe structure, Steiner said the city sees things differently. 

If safety were the university’s first concern, they’d refurbish the existing stadium itself, she said. 

Steiner said the stadium project’s EIR was assembled to hide potential impacts of the gym and the stadium in particular, and failed to offer a stable project description as is required by the California Environmental Quality Act (CEQA), which mandates that projects address significant impacts on the physical and cultural environments. 

Olson said the university had followed CEQA rules when the Board of Regents approved the budget for the gym project and when its Committee of Grounds and Buildings approved the plans and the EIR for all seven of the projects at and near the stadium. 

Other projects include a large underground parking lot near the stadium, a large new meeting and office complex joining staff and functions of the university’s law and business schools, changes to landmarked Gayley Road, demolition of two historic cottages and a lab building and repairs to other buildings. 

Volker argued that the CEQA-mandated project alternatives required of all projects with significant impacts were designed as straw men, intentionally created to fail because they failed to meet vague requirements. 

He cited the example of the rejection of a proposal to building the gym complex near Edwards Field on Fulton Street because it “would not create extraordinary new spaces in the Southeast Campus.” 

Steiner said an alternative that called for relocating the university’s football games to a new stadium located at Golden Gate Fields was also doomed to failure because it called for demolition of the existing stadium, “a poison pill” certain to arouse ire from the community. 

Olson said the university knew in advance that they would face litigation, and had prepared the EIR for the earlier 2020 Long Range Development plan “in full likelihood that we would be sued.” 

Berkeley being Berkeley, he said, a courtroom contest was inevitable. 

While Volker charged that the university failed to give a CEQA-mandated level of concern to the projects’ biological, geological/seismic and archaeological impacts, Olson said the university had followed the dictates of the law and countless court precedents. 

While there are hundreds of court ruling about the application of the CEQA, that’s not the case with Alquist-Priolo. 

While Olson charged that the challengers had improperly conflated the two laws, Steiner, Volker and Lozeau said they had it right. 

The petitioners want Judge Miller to overturn the regents’ approval of the project, while she continues the order barring any work on the project and imposes an injunction while the university is forced to redo the EIR process, which entails drafting a new review that addresses the deficits they allege have doomed the existing document. 

Only then can a revised Draft EIR be recirculated to the public and other public agencies for comments to be addressed in a final EIR. 

The challengers also charge that the regents made a fatal flaw by approving the gym and its budget before the committee had approved the EIR and the plans. They also contend that only the full board—not a subset that contains less than a majority of the full board—can make a legally binding decision to approve the EIR and the plans. 

Judge Miller peppered the attorneys with questions, at one point asking if she could consider taking testimony or affidavits from experts to help her decide the question of whether plans showed the gym was part of or separate from the stadium. 

Olson gave an apparently reluctant assent, but the notion was resisted by all the challengers, who said legal precedent required a ruling based only on the 45,000 or so pages of evidence already before the court.