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Stadium Ruling Invites Various Interpretations

By Richard Brenneman
Thursday June 26, 2008 - 09:22:00 AM

No sooner had Judge Barbara J. Miller ruled on the California Memorial Stadium projects lawsuit last week than all sides were spinning her June 18 decision faster than a pool hustler’s cue ball. 

Victory, declared campus officials. We’re ecstatic, said opposing counsel Stephan Volker. The plaintiffs prevailed, announced supporters of the ongoing tree-sit.  

Meanwhile, UC Berkeley police escalated their ongoing war with the tree sitters Thursday evening, renouncing their previous official policy of not grabbing them from the branches. 

The change came less than two hours after campus spokesperson Dan Mogulof had told a press conference police wouldn’t be going after protesters in the trees because the university didn’t want to endanger them. 

“If we can remove them safely, we will,” he said after the first of two tree sitters was snatched from the branches Thursday evening. “The change happened because there is a sense here that the fight is going out of some of them.”  

The first aerial snatch happened Tuesday, soon after another Mogulof press conference where he had reiterated the no-snatch policy.  

But that capture was made by the university’s contract arborists, employees of a Watsonville company that has covered all their logos and the license plates of their trucks—a violation of the state Vehicle Code if the trucks are driven on public streets. 

Mogulof refused to name the company during Thursday afternoon’s press conference, but a local arborist was quickly able to identify the company and even obtained the phone number of one of its employees and spoke to him as he was working in the grove west of Memorial Stadium. 

The university official said the name was being kept confidential because firms engaged in similar operations had been the targets of threats and vandalism. 

But protesters quickly discovered the name for themselves—Williams Tree Service—and were urging supporters to flood papers with letters blasting the purported conduct of its workers. 

Mogulof and the protesters differ sharply on the conduct of the arborists. While activists L. A. Wood and Matthew Taylor said the tree-sitters had been threatened—and in the case of the first snatch, possibly endangered—by the arborists, Mogulof said their restraint had been “truly admirable.” 

A reporter had observed a tree-sitter apparently endangered when one of the cranes repeatedly struck the line she was suspended from, but Mogulof said the arborists themselves had been assaulted with urine and human feces. 

Carol Strickman, an Oakland attorney who represents the treesitters, charged that the arborists had hurled sexist taunts at Dumpster Muffin, the treesitter who has occupied the highest perch of all, in a short coffin-like box atop a massive evergreen. 


Whose victory? 

While all sides have called Alameda County Superior Court Judge Miller’s decision a victory for their respective camps, the reality, of course, is something murkier and more complex. 

There’s no doubt that UC Berkeley will have to amend its design for the high-tech gym and office building it wants to build next to the landmarked stadium, and nothing in the ruling blocks either its eventual construction or the axing of the oak trees that protesters are struggling to save. 

But, as Berkeley Planning and Development Director Dan Marks told city planning commissioners last week, her ruling warns of major obstacles to the university’s plan for refurbishing the Cal Bears’ home playing field. 

From the university’s perspective, the most troubling element of the 129-page decision by the Alameda County Superior Court jurist may lie in her strong suggestion that the university might be forced to use a far lower value for Memorial Stadium than it would need to make the contemplated renovations and additions to the fault-striding structure. 

Judge Miller also declared that the UC Board of Regents erred in declaring that some of the impacts—earthquake risks as well as noise and traffic impacts of an increased slate of capacity events at the stadium—were unavoidable. 

Finally, she dismissed the university’s contention that it wasn’t bound by the Alquist-Priolo Act, which governs construction on or near active earthquake faults: “[T]he Court’s careful reading of Alquist-Priolo leads it to conclude the statute does apply to state agencies.” 

She found that the Student Athlete High Performance Center (SAHPC)—the official title of the semi-subterranean gym—doesn’t lie within the earthquake law’s danger zone, which includes everything with 50 feet of an active fault. 

But Alquist-Priolo’s restrictions on new construction also apply to additions and alterations to existing structures that fall within the zone where new construction would be banned. 

While Judge Miller ruled that “substantial evidence supports” the university’s claim that the gym isn’t an addition to the stadium nor is it an alteration to the stadium as such, “several parts of the SAHPC project do constitute alterations to” the stadium. 

The specific features she pointed to were: 

• Changes to stadium stairways to accommodate the gym. 

• So-called “ground slab floor penetrations” that allow the gym’s telecommunications system connection with the stadium. 

• A “grade beam” along the stadium’s western wall” which the university’s attorneys said is needed to prevent possible collapse during excavation for the SAHPC. Charles Olson, the university’s lead counsel, told Miller that the beam’s cost is trivial compared to the stadium’s value. 

The day after the decision was released, Olson told reporters that the proposed changes leading to the first two objections have been eliminated. While the grade beam could also be eliminated, he said, installation is “something the structural engineers think is prudent.” 

In invoking the term “value,” Olson had attempted to confront a key argument of the university’s challengers that focused on Alquist-Priolo’s cost limitations on alterations and additions to existing structures within the 50-foot zone. 

The university argued that the stadium’s value should be set at the price of what it would cost to build a comparable new building today, while the challengers argued that the cost should be set at current market value—arguably somewhat tarnished by the building’s age, its rundown condition and the fact that the Hayward Fault slices through its walls, in the words of Harriet Steiner, the Sacramento attorney hired to represent the City of Berkeley, “from goal post to goal post.” 

While not reaching a final conclusion, Judge Miller was clear that she was skeptical of the university’s claim, looking instead to section 820 of the California Evidence Code, which sets value at “the cost of replacing existing improvements minus whatever depreciation or obsolescence the improvements have suffered.” 

Applying that section would severely hamper the university’s massive renovation plans, which include gutting and refitting the stadium’s interior, installing new seating, raising the eastern side of stadium seating, installing permanent night lighting and building an elevated two-level press box and luxury private boxes above the western wall. 

Judge Miller said that using replacement value as a cost basis “may be contrary to the spirit of Alquist-Priolo,” but without a clear indication of what valuation basis the university intends to use, “the court declines to prescribe any particular method at this time.” 

Olson on Thursday dismissed the judge’s contention, and said replacement value—rather than current market value—is the standard used in the state Building Code, the code the judge had cited in other parts of her decision not relating to value. 

Olson said the university accepts a figure of $590 million as the building’s worth, though Mogulof said the structure’s status as a recognized and treasured landmark should raise the value even higher. 

But the city of Berkeley’s planning director said the thrust of Miller’s argument could spell bad news for the university’s plans to renovate the stadium should her standard be the determinant, given its current dilapidated, seismically unsafe condition. 

The judge also ruled that the university properly followed most of the procedures spelled out in the California Environmental Quality Act (CEQA), which mandates that major construction projects be analyzed for their impacts on the physical, natural and human environments. 

When the plaintiffs’ lawyers charged that CEQA had been violated in multiple instances, Judge Miller rejected their claims except in the case of the seven new major public events the university said it plans to add to its schedule at the stadium. 

Because the university’s environmental impact report does not offer an explanation for why the additional events were needed, “It cannot point to any evidence that would support a finding that the earthquake related risks, additional noise and traffic impacts associated with the additional events are unavoidable,” she wrote. 

But Olson said Thursday no additional events are planned until the stadium itself undergoes a retrofit, and only then will the university decide if it needs to amend the EIR to add the additional events. 


Law and order 

It was UC Berkeley Police Chief Victoria L. Harrison who announced the more aggressive enforcement policies Thursday night, and the chief even took to the air in one of the cherry-pickers the Watsonville firm is maintaining at the site. 

Reporters attending the press conference got a taste of what was to come when Matthew Taylor, a student and writer who had attended the meeting, was confronted by a police sergeant as he left. 

The officer thrust a stay-away order at him, and another officer with a video camera recorded the event as he refused to accept the paper. Other protesters were also served. 

Ayr, one of the leading spokespeople for the protesters, was arrested Friday. 

Meanwhile, the lawyers for the plaintiffs who sued the university are busy preparing an order they will submit to Judge Miller by Tuesday. 

That document will spell out the terms of her decision in an enforceable form, and could include a continuance of her current order barring any effort to demolish the grove or begin construction until the case is finally resolved. It does not bar the university from evicting trespassers, however. 

Olson said that an appeal could take from 12 to 18 months, and construction would begin almost immediately afterward, subject to the conditions of the ruling. 

One law-and-order question remains open. To what extent has the strong police presence at the grove contributed to the rise of violent crime on campus? 

Simple assaults—attacks on another without deadly weapons—skyrocketed in 2007, the first full year of the tree-sit, jumping from 95 in 2006 to 170. 

While Mogulof insisted last Thursday that the constant police presence at the protests wasn’t responsible, Berkeley City Councilmember Dona Spring said Sunday that the connection was clear and direct. 

Crime, said Mogulof, resulted from a complex set of socio-economic factors, and the police presence at the grove included administrative personnel and hadn’t detracted from regular patrol activities around the campus area. 

Not so, said Spring. “They’re not going after the real criminals,” she said. “They’re focusing on trying to stop the tree sitters and the property of the university, which they think is more important that the safety of their students.”