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Council Declines to Appeal UC Lawsuit

By Judith Scherr and Riya Bhattacharjee
Thursday July 31, 2008 - 09:54:00 AM

Despite pleas and arguments for an appeal of the city’s lawsuit against the university by an overflow crowd last 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 July 22, 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, next to a football stadium traversed by an active earthquake fault.  

The council retains the ability to appeal within 58 days of the ruling, Bates said. However, Councilmember Kriss Worthing-ton said that getting five votes to appeal—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 had protected the oak grove at the construction site, was scheduled to expire on Tuesday, but appeals filed by the Panoramic Hill Association and the California Oaks Foundation, along with individuals, have kept the injunction in place until at least Aug. 13, when the two groups submit their reason for the appeal to the court. 

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’s 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, 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 Kelly at about 20 percent of the cost of the lawsuit, or about $60,000. 

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 has been ground support for the tree-sitters for some 600 days.  

When Mayor Bates announced that the council had decided not to appeal the decision, boos and hisses filled the council chambers. 

“Shame on you,” cried out several supporters of the tree-sitters.  

“Shame, Shame, Shame,” chanted a few others in unison.  

“Is this your legacy? Is this your legacy?” asked a young girl from the middle row.  

As the council members prepared to leave the chambers, Ayr asked, “How did you vote?”  

“We are not allowed to tell the public how we voted,” Councilmember Kriss Worthington replied.  

Speaking to reporters inside the City Hall later, Worthington declined to say how he voted.  

“If five people had voted in favor of an appeal, then we would have come out and announced that the city had decided to appeal,” he said. “Now we will be in limbo for 58 days … I have said repeatedly that the city has invested hundreds of thousands of dollars on this. For a tiny bit more the city can preserve that bit of land.” 

Although the council declined to vote on whether to appeal, the injunction preventing construction at the grove was extended Thursday when the Panoramic Hill Association and the California Oaks Foundation appealed. 

“We are not getting involved with the other two groups in their appeals to the lawsuit,” Bates said.  

“We are reserving our right to appeal,” Bates said, “The cost of the appeal is an issue, but we have spent a lot of money in the past, and relative to that, this is not a lot.”  

An appeal would cost the city around $25,000 to $50,000, Bates said.  

“It’s an important lawsuit,” he said. “It’s been going on for 18 months and has cost the university a lot of money. Maybe the next time we can resolve the issue in a better way.”  

Jerry Wachtel, former president of the Panoramic Hills Association, said he was disappointed by the city’s decision.  

“I am stunned, but I am not surprised,” he said, “Maybe no decision is better than a negative decision. But it certainly makes our task more difficult.”  

Wachtel said that apart from the appeal, the group had also filed a motion with the judge to vacate the decision and asked her for a new trial.