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Berkeley city officials turned thumbs down on a request by UC Berkeley officials to build yet another fence surrounding the tree-sitters encamped near Memorial Stadium. 

The university needed city approval because they wanted to build the enclosure—which would have been the third concentric ring of woven wire around the protest site—because part of the fence line would intrude on the city’s right of way along Piedmont Avenue to the west of the site. 

“The university requested the extension based on safety concerns along the sidewalk area,” said Deputy City Manager Lisa Caronna. 

“They are very concerned about the safety of the people in the trees as well as the safety of people on the sidewalk being hit by things falling from the trees,” said the city official. 

“Yeah, like Chicken Little,” said Karen Pickett of the university’s contention that measures were needed to protect passing pedestrians from debris from the trees. 

Pickett, of Bay Area Coalition for Headwaters, is a prominent supporter of the protest who has helped organize events at the Grove. 

“If they were really concerned about the health and safety of the tree-sitters, they wouldn’t be denying them food and water,” she said. 

But Dan Mogulof, executive director of the university’s Office of Public Affairs, said that “when we talk about public safety, we talk about the safety of the 30,000-plus students on campus, faculty members and other employees and members of the community. Our concern for the health and safety of the people in the trees isn’t at the top of our list. 

”The people in the trees can’t have it both ways, “ he said. “If they continue to violate the law and court orders, they must be willing to accept the consequences.” 

But Caronna said the city denied the request “because we didn’t see the need for any sidewalk closure, and because we didn’t have the authority to close the sidewalk based on the information we had,” Caronna said. 

The city has jurisdiction over the sidewalk, but has no say over what happens on the adjacent university property—though the city is fighting a court battle challenging the legality of the university’s approval of environmental documents which would pave the way for a slate of building projects in the area. 

The tree-sitters, who first ascended the branches of the grove west of the stadium more than 13 months ago, are demanding that the university relocate the $125 million high tech gym now planned for the site. 

A legal challenge by the city, neighbors on Panoramic Hill and environmentalists contends the UC Board of Regents improperly approved the projects in votes last November and December. 

They contend the Student Athlete High Performance Center—the four-level gym and office complex planned at the grove—violates state law governing construction with 50 feet of an active earthquake fault. 

The stadium sits directly on top of the Hayward Fault, judged by federal geologists as the likely origin of the Bay Area’s next major earthquake. 

The battle over approval of construction of the gym and the broader environmental impact report covering the gym, a large underground parking lot northwest of the gym and a large nearby office and meeting complex joining functions of the university’s law and business schools is currently under consideration by Alameda County Superior Court Judge Barbara J. Miller.  

Judge Miller must make one key decision before ruling in the case, and that is whether or not to take new expert evidence to help her decide a key issue raised in the legal arguments by both sides. 

The plaintiffs charge that the two buildings are connected, with the gym being an extension of the stadium. The university contends the buildings are separate. 

Stephan Volker, the plaintiff’s attorney representing California Oak Foundation, said the petitioners have argued that the judge should decide the case based on evidence already received. 

Attorneys for both sides made their arguments during a hearing last Friday, with the university supporting the judge and the plaintiffs opposed. The judge promised a quick decision. 

“We’re confident that there’s no basis for the court to reopen the record,” Volker said. But if the judge does seek expert statements, he said “we are confident that we can introduce expert testimony that they are interconnected and interdependent,” he said. 

In December, two months after both sides had rested, Miller ask both sides to present declarations from building code experts to help her decide.  

If she finds the gym to be an extension of the stadium, her ruling would place severe restrictions on the amount of money the university could spend on the project. The Alquist-Priolo Act limits the cost of additions or renovations to buildings within 50 feet of faults to half of the value of the existing structure.  

Just how to establish the value of the aging and ailing stadium is another key question in the case, the university pushing for replacement value for a new up-to-current-code structure, while the plaintiffs are arguing for the appraised resale value of the current structure. 

Mogulof said the university has used the delays caused the legal challenge to explore a variety of options about project construction methods, seismic safety issues and timing—and to address needs of both the public and students who will be using the facility. 

If the judge gives the green light, Mogulof said, “we will be able to begin construction immediately.”