Flash: Judge Rules for UC Berkeley in Oak Grove Case

by Richard Brenneman
Tuesday July 22, 2008 - 07:10:00 PM

Berkeley’s treesitters and Memorial Stadium neighbors who had sued to block construction of a gym at the site of the adjacent oak grove were dealt a resounding setback Tuesday. 

Alameda County Superior Court Judge Barbara J. Miller issued a judgment that upholds the university’s plans for a four-level gym at the grove site and hits the litigants—including the city and the late City Councilmember Dona Spring—with an order that they pay most of the university’s legal bill.  

Her order also ends, on July 29, the injunction which has blocked construction and the destruction of the grove. Construction could begin immediately after that date unless the plaintiffs are able to win a stay from the state appellate court.  

She also divided costs for the litigation, which produced over 40,000 pages of documentation and lasted 18 months, with 15 per cent to be paid by the university and the remaining 85 percent divided equally between: 

• The city of Berkeley, represented by Sacramento attorney Harriet Steiner; 

• The Panoramic Hill Association, represented by Alameda attorney Michael Lozeau, and 

•A group of plaintiffs represented by Oakland attorney Stephan Volker, which includes Spring, the California Oak Foundation and several other Berkeley residents. 

Just what those costs will include remains uncertain, with one university official stating that attorney fees probably wouldn’t be included. Volker agreed. 

The judgment and order, which follow Miller’s June 18 decision on the case, don’t hand the university an unequivocal victory. 

The judge rejected a claim by the university that the Alquist-Priolo Act, which governs construction within 50 feet of active earthquake faults, does apply to UC construction projects. 

That decision won’t affect the gym project, since the university eliminated three features connecting with gym project with the stadium which Judge Miller had ruled in June were governed by the law. 

She also gave the city a minor victory, denying the university’s contention that traffic, noise and other impacts from a planned seven additional events at the stadium were unknowable. The university sidestepped the issue by a decision to drop the planned events. 

“We are very pleased by this decision,” said Dan Mogulof, the university’s executive director for public affairs. 

“We see it as a vindication and validation of the process which led to our decision about where and how to build a facility that is absolutely necessary for the safety and well-being of our student athletes,” he said. 

Volker said he will be filing an appeal on behalf of the plaintiffs he represents within the next few days, though he couldn’t speak for the city or the Panoramic Hill Association. 

The appeal has to be filed within the next seven days, while the injunction is still in effect, in order to win an automatic 20-day continuation of the injunction, he said. 

“It is our belief the judge misread the law and has misapprehended the facts of the case,” said Volker. 

“The public has a vital interest in preserving the outstanding oak grove, and we believe we will be ultimately vindicated by the courts,” he said. 

Steiner is on a vacation in Hawaii and was unavailable for comment, and Lozeau is out of state attending a family reunion, Volker said, while Zach Cowan, Berkeley’s acting city attorney, is scheduled to be out of town Wednesday through Friday. 

But City Councilmember Linda Maio said the council will meet in closed session Thursday, “and we won’t recess until we’re done with this. Clearly, there are issues for us to deal with.” 

Maio said the recent adoption of the state’s green building code also raises new issues.  

Doug Buckwald, Director of Save the Oaks at the Stadium, issued this statement on Tuesday night:  

"Today (Tuesday, July 22, 2008) at 4:30 pm, Judge Barbara Miller issued her final judgment in the case of the Memorial Oak Grove dispute in Berkeley, California. The timing of her decision is highly prejudicial to the Petitioners, and this will make it difficult for them to exercise their legal right to an appeal. 

"Judge Miller issued a ruling which dissolves the injunction protecting the trees in seven days (calendar days, not business days) and so the university will be able to cut the trees down unless an appellate court issues a new injunction. That means that Petitioners will have to get a motion into appellate court as soon as possible to have any chance of saving the trees. Petitioners’ difficulty is magnified by the fact that two out of three of their attorneys are away on previously-scheduled vacations, and so they will be unable to participate fully in the process.  

"Also, the Berkeley City Council will be in a summer recess after tonight’s council meeting. They, too, will have to grapple with making a decision about how to proceed in a very brief amount of time. 

“Unfortunately, the timing of the court's decision makes it particularly difficult for us to proceed to the next step in the judicial process. The ruling has forced our legal team to rush into court with minimum time to consult with all clients and to prepare legal papers. 

“I believe that we have a strong case to take to the appellate court. It would be a real tragedy to lose the beloved oak grove now, and then win in court later when it would be too late to save the trees. You can’t put stumps and sawdust back in the ground and make things all better again. Those beautiful, majestic oaks would be gone forever. 

“Irrespective of the unfair time constraints of the judicial process, the university still could choose to do the right thing and spare the trees until the appellate court rules. That approach would be cooperative and would ensure that the legitimate interests of the city and community were not shortchanged on a legal technicality.  

“I can only hope that university officials have listened to the many people in this community who have spoken out in favor of the trees for the past two years--a coalition which includes a broad spectrum of Berkeley society--and they will realize the severe and lasting harm that will come of any rash action on their part to cut the trees down while we may still be standing at the courtroom door asking to be heard. Ignoring the wishes of the community like this would be counter to its paramount obligation to the public it serves. If it does so, the University of California will be forever stained in the eyes of many people who have supported it in the past. “