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Judge Issues Key Ruling In UC Stadium Lawsuit

By Richard Brenneman
Friday December 14, 2007

Superior Court Judge Barbara J. Miller handed UC Berkeley a legal setback Monday evening, denying its claimed exemption from state law governing buildings on earthquake faults. 

Her nine-page order was faxed to lawyers in the legal battle over the university’s plan to build a four-story high-tech gym next to Memorial Stadium—the site of the ongoing tree-sit in the grove of oaks that would be axed to make way for the gym. 

John M. Sanger, one of two San Francisco lawyers hired to represent the UC Board of Regents in the case, had told the judge that the Alquist-Priolo Act doesn’t apply to the university. 

Passed by the California Legislature in 1972, that statute bars new construction within 50 feet of existing faults and limits the cost of additions or renovations to 50 percent of an existing building’s value. 

In Monday’s order, Miller wrote that she “has concluded that the Act does apply to the University as a state agency with the responsibility to prohibit the location and development of structures for human occupancy across the trace of active faults.” 

The judge said that nothing in the evidence before her indicates the university ever considered: 

• whether the Student Athlete High Performance Center (SAHPC) was an addition to California Memorial Stadium (CMS) under the terms of the act; 

• “whether the cost to construct the SAHPC might violate the Act’s valuation limitations,” or 

• performing a valuation analysis on the gym in relation to the stadium. 

The ruling is critical because the stadium itself is split from end zone to end zone by the Hayward Fault, the seismic fissure federal geologists say is the most likely source of the Bay Area’s next disastrous earthquake. 

University-hired experts say the gym site is outside the Alquist-Priolo Act’s 50-foot zone, exempting the structure from the law’s provisions. 

“We’re quite gratified that the court has rejected the university’s contention that the Alquist-Priolo Act doesn’t apply to them,” said Stephan Volker, one of the attorneys who brought the litigation against the university. 

He said he is also pleased that the court agreed with the plaintiffs in the action that the university had failed to prove their contention that the gym and stadium were two separate and distinct buildings. 

“The university is backed into a corner,” he said. 

Dan Mogulof, executive director of UC Berkeley’s Office of Public Affairs, said, “While it’s going to engender further delay, we welcome the opportunity to provide the court with additional evidence from architects and engineering experts who we believe will support what we have said all along—that the Student Athlete High Performance Center and Memorial Stadium are separate buildings.” 

Mogulof said the university had from the beginning directed its engineers and architects to design the gym as a separate structure, following the provisions of the state building code, “and we are confident that the experts will confirm that for the judge.” 

Volker represents the California Oak Foundation and City Councilmember Dona Spring, two of several plaintiffs who have challenged the university in arguments in Judge Miller’s Hayward courtroom. 

The other lawyers are Michael Lozeau, whose clients in the case include the Panoramic Hill Association, and Harriet Steiner, representing the City of Berkeley. 

Sanger’s partner and the lead attorney for the university in the case is Charles Olson. 


Expert opinions 

Judge Miller’s order requires the lawyers to submit written opinions from experts about whether or not the gym and stadium are separate structures, or if the gym and stadium constitute a single building under terms of the California Building Code. 

If she finds that they form a single building, the outcome could have profound effects on the university’s development plans by limiting the total amount that can be spent on the gym and the planned retrofit and refurbishing of the landmarked stadium itself. 

The judge ordered all evidence to be submitted by Dec. 31, with a deadline for objections to any of the submissions of Jan. 7. Her final Notice of Decision, barring any additional extension, will come by Feb. 6. 

Mogulof said the university has been continuing with “the huge amount of preparatory work needed before construction begins, so if we get the go-ahead from the court, construction can begin almost immediately.” 

One key issue, not addressed in the judge’s order, is the value of the stadium itself, by all accounts a structure in need of repairs and a seismic retrofit. The stadium bears obvious signs of neglect, with unrepaired breeches in the concrete and its wooden flagpoles and fixtures shedding layers of peeling paint. 

The university claims that the Alquist-Priolo Act’s 50 percent limitation applies to the cost of replacing the existing building, while the challengers claim the limitation is based on the structure’s current sales value—potentially a nine-figure difference that could starkly limit the university’s options. 

The challenge to the stadium/gym project is encompassed in the larger legal question of whether or not the regents met all the legal steps required to adopt the gym’s budget and approve the environment impact report (EIR) for the full suite of projects included in what UC Berkeley has called the Southeast Campus Integrated Projects. 

Those projects, in addition to the gym and stadium retrofit, include an underground parking lot at the site of Maxwell Family Field northwest of the stadium, a new “connector building” housing offices and meeting space for the university’s law and business schools, repairs to the law and business school buildings, work on the Piedmont Avenue/Gayley Road street scape, repair of some historic buildings, and demolition of some historic residences and Calvin Hall.