UC Berkeley officials believe they’ve side-stepped a judge’s ruling adroitly enough to have removed the last roadblocks to building the Memorial Stadium gym.
Alameda County Superior Court Judge Barbara J. Miller had cleared the project of most of the objections raised by litigants who had sued to block or delay the project, and the university promptly moved to eliminate the rest in papers filed with her court Friday.
With those issues out of the way, the university contends, the judge should lift her injunction against construction, which would allow the university to chop down the oaks and evergreens now occupied by tree-sitters who have been seeking to halt the project.
A hearing on the university’s argument will be heard July 17 at 10 a.m. in her Hayward courtroom.
Most of the potential obstacles cited in Judge Miller’s June 25 decision were changes to the stadium itself, which raised the issue of potential cost limitations, stairway renovations and other restrictions posed by the Alquist-Priolo Act, which governs construction on or within 50 feet of active earthquake faults.
While Judge Miller agreed with the results of tests conducted by university consultants that the Student Athlete High Performance Center (SAHPC) lies outside the act-prescribed boundaries, changes to the stadium itself spelled out in the plans did raise the specter of potential legal hassles.
Another potential obstacle was the judge’s finding that the university had improperly declared that traffic, noise and other impacts from increased special events programs at the stadium were unavoidable parts of its program and thus were properly approved in the Southeast Campus Integrated Projects (SCIP) environmental impact report (EIR).
The university responded to each of the objections by the simple expedient of striking them from the proposal, with the additional events the easiest to ax.
In the case of the proposed physical changes to the stadium, the now-vanished alterations called for new telecommunications openings, changes to stadium stairways and a grade beam designed to reinforce the western base of the stadium while excavations are under way for the four-level gym and office complex designed as a curved touchless embrace of the venerable stadium’s western wall.
The university’s actions leave one other major issue for the future: just how much UC Berkeley can spend on renovations and additions to the stadium itself.
The beam, a concrete span built beneath ground level, would buttress an existing beam that was part of the stadium’s original construction. During the hearings before Judge Miller, university attorneys said the beam was designed to prevent collapse during excavation for the gym, which will be built below the level of the stadium’s base.
In oral arguments, attorney John M. Sanger acknowledged that the beam would be an addition or alteration to the stadium, words that could invoke the Alquist-Priolo Act, which limits expenditures on such changes to half the structure’s existing value, but he said the changes were needed to insure safety during construction of the gym.
Sanger said the cost of the beam was trivial compared to the stadium’s value, but just how that value would be calculated remains an open question, with the university starkly at odds with a hint in Judge Miller’s opinion indicating value should be measured by current market value, rather than as the cost of building a replacement conforming to current building codes as the university contends.
By dropping plans for the beam, the university postpones that thorny issue until later in the development process for the projects included in SCIP.
The current litigation has been a legal battle over the UC Board of Regents’ approval of the SCIP EIR and its decision to permit work on the gym.
While university attorneys invoked the specter of “collapse” during oral arguments in last year’s proceedings in Miller’s courtroom, the university submitted statements from two engineering firms to Miller Friday that speak only of possible “cosmetic cracks” resulting from minor soil collapse during excavation and construction.
The EIR approved by the UC Board of Regents in 2006 stated that stabilizing the stadium itself was the first phase of construction, and the beam was needed for seismic safety reasons and to underpin the western stadium wall during construction of the gym.
At that time, the construction firm hired to manage the gym project was the URS Corporation, of which UC Board of Regents Chair (and spouse of U.S. Sen. Dianne Feinstein) Richard Blum had been a major shareholder until the year before. URS has subsequently withdrawn from the project.
David A. Friedman, a senior principal of Forell/ElSesser Engineers Inc. of San Francisco, wrote a letter in support of the university’s new position, in which he said his firm had been hired by URS to design excavation shoring for the gym.
In his June 25 letter, Friedman said the grade beam was included only to prevent “purely cosmetic” problems during construction—what he called a “belt and suspenders” addition—and not one required by the state building code.
A second letter from Senior Principal Loring A. Wyllie Jr. of the San Francisco office of Degenkolb Engineers offered support for Friedman’s letter, declaring the beam’s purpose was only “to minimize potential cosmetic cracking from minor movements in the soil” during gym construction.
The same contention was raised in the university’s supplemental environmental checklist, an addendum to the EIR prepared last month and signed by Assistant Vice Chancellor Emily Marthinsen and included in the submissions filed with the court Friday.
But Stephan Volker, the attorney who represents the California Oaks Foundation in the lawsuit, said that “the record shows that (university officials) had represented to the regents that reinforcing the western wall was necessary during construction and to insure the seismic safety of the stadium.
“For the university to change its story now and say it’s unnecessary is preposterous,” he said.
Volker contends that construction would pose the risk of serious injuries or loss of life not only to construction workers but also to stadium occupants in the event of a partial collapse.
“That is why the university proposed the initial strengthening of the stadium wall from the inception of the project until last week, when they decided to sidestep their position in response to the judge’s findings,” he said.
Volker said he and the other plaintiffs in the case would have liked time to find an expert to review all the relevant plans and documents to prepare their own response to the university’s new position, but Miller declined to give the additional time requested during Tuesday’s hearing.
However Miller rules, an appeal could come from either side—though one question that remains is that if the university prevails, would the judge agree to a stay of her order in time to save the grove?
Removal of the grade beam and other stadium changes also delays another legal confrontation over the stadium itself.
Alquist-Priolo sets a limit of 50 percent of a structure’s value on any additions or alterations to structures that fall within the act’s 50-foot zone.
Even the university concedes that the stadium itself is physically divided by the Hayward Fault from goal post to goal post, though it argued unsuccessfully that the law didn’t apply to the university itself—an argument the judge rejected.
With the grade beam connecting the two structures, the question of the stadium’s value could have been raised by the plaintiffs.
Miller indicated that she sided with the argument raised by Volker and his colleagues that value should be set at a structure’s current “as is” worth, while the university argued that the price tag should be reckoned as the cost of building a replacement structure constructed according to current seismic and other codes.
Given that all parties agree that the stadium is in poor condition and in need of a seismic retrofit, applying the “as-is” standard would severely limit the extensive, expensive remodeling plans described in the SCIP EIR.
Plans now include gutting and renovating the interior, installing new seating, including a raised bank of seats along the eastern side of the stadium, adding permanent night lighting and building a double-decker press and skybox addition above the western wall.