Flash: Berkeley City Council Declines to Appeal University Lawsuit

By Judith Scherr
Thursday July 24, 2008 - 11:45:00 PM

Despite pleas and arguments for an appeal of the city’s lawsuit against the university by an overflow crowd Thursday evening in the Berkeley City Council Chambers, the council went behind closed doors and “decided not to take action,” according to Mayor Tom Bates, who reported the action to the public. 

On Tuesday, Superior Court Judge Barbara Miller ruled on the case, siding with the university, thus permitting the construction of an athletic training facility on the site of an oak grove and next to a football stadium traversed by an active earthquake fault. 

Bates told the public that the council could still appeal within 58 days. Councilmember Kriss Worthington commented that getting five votes—especially without Dona Spring's vote—would be difficult. Councilmember Spring, who died recently, was a strong supporter of the movement to save the grove. 

The trial judge’s injunction which has protected the oak grove at the construction site until now is scheduled to expire on Tuesday. The council’s failure to act at this time means that the university will be free to cut down the trees unless another party is successful in persuading the appeals court to renew the injunction. 

Only a handful of persons speaking to the council at the open session urged no appeal—Roland Peterson, immediate past president of the Chamber of Commerce, and Mark McLeod, President of the Downtown Berkeley Association, both pointed to the high court costs. 

“It’s an unwise use of our tax dollars,” Peterson said. 

Linda Schacht, lecturer at UC Berkeley journalism school, expressed a similar view: asking the council not to continue spending “a huge amount of money on a useless lawsuit.” 

The overwhelming number of speakers supported the appeal. There were about 60 people able to speak but several dozen could not, as Bates ended the public comment period at 6:55 p.m.  

Dan Lambert, who works for the city’s planning department said the cost to the city of providing services to the university was exactly why the city should appeal. “If the university paid its share, we could fill the potholes,” Lambert said. 

Given the earthquake and fire danger, the university should take responsibility to make the area safer, he added. The area around Memorial Stadium “is the most unsafe place in Berkeley,” Lambert said.  

Supporting an appeal, Dr. Ronald Berman also pointed to safety issues. “Part of the stadium is built on 30 feet of fill,” he said. “It’s a prime site for liquefaction.” 

Planet Executive Editor Becky O’Malley said that it did not make economic sense to stop the lawsuit now. “It would be frivolous to undertake a lawsuit and not carry it to the appeal level,” she said.  

Others pointed out that the university was addressing the issue backwards. Since the Hayward Fault traverses Memorial Stadium and since the stadium is in great disrepair, that structure should be the first to be repaired, they said. 

Former Mayor Shirley Dean, opposing Mayor Tom Bates in November, said the university should “stop holding sports camps for young children in the stadium.” 

A number of people spoke to the issue of filing the lawsuit in order to right the power imbalance between the city and university. 

Yvonne Knebel urged the council not “to rubberstamp what the regents tell you to do.” If you do, she said, “You are a puppet government.” 

“This is about normalizing power relationships between the city and university,” Sharon Hudson said. 

The appeal “is the only leverage you have,” Dean said. 

Michael Kelly, president of the Panoramic Hill Association – one of two other entities that joined the city’s lawsuit against the university – told the council his group was appealing the decision and urged the city to join the appeal. 

This led to Worthington’s attempt to question Kelly, but Bates quickly cut Worthington off, despite Worthington’s assertions that Bates was acting contrary to council rules.  

Later, Worthington told the Planet he had wanted to ask Kelly about the cost of the appeal, which would have helped the council in the closed-door deliberations following the open session.  

The cost of the lawsuit to this point is estimated by most observers to be about $300,000. The legal cost for the next step, continuing to press for an injunction to prevent the grove from being destroyed, was estimated by Councilmember Worthington after the meeting at about $10,000. 

Other speakers, such as Jack Gerson of the Oakland Education Association, bemoaned the university going from a world-class center of learning to an increasingly privatized entity, reflecting, Gerson said, “the corporate interests they represent.” 

“If Berkeley doesn’t stand up to them, who’s going to?” he asked. 

Many invoked the name of recently deceased Councilmember Dona Spring, who just a few weeks ago went in her wheelchair with her body in pain to support the tree sitters protesting the university’s plan to cut down the oaks. 

“Do it in Dona Spring’s name,” said Jane Welford. 

“We need you, Laurie, Max, Linda [councilmembers Laurie Capitelli, Max Anderson and Linda Maio] to be Dona’s voice,” said Ayr, who uses one name and has been ground support for the tree sitters for some 600 days.