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The legal battle over the grove where tree-sitters and a now-threatened injunction have stymied UC Berkeley’s growth plans has entered a new forum—minus, for now, one litigant. 

Panoramic Hill Association and the California Oaks Foundation have appealed last week’s order by Alameda County Superior Court Judge Barbara J. Miller, which gave a conditional win to UC. Their move comes after a controversial university settlement offer delivered to the City Council the same night as that body declined—at least for the moment—to join the appeal. 

In the settlement letter,  

UC Berkeley Vice Chancellor  

for Administration Nathan Brostrom announced that in addition to a quick start on construction for the four-level gym planned at the grove site, the university also wants to accelerate work on the adjacent Memorial Stadium so that work on both projects occur at the same time. 

Zach Cowan, Berkeley’s  

acting city attorney, said Brostrom’s letter was the first time he had seen a written proposal to tackle both projects at once, though he believed “the idea has been out there for some time.” 

Cowan said he believed the project’s environmental impact review also didn’t consider the possibility of simultaneous construction projects, “though they could do a supplemental EIR.” He said he also didn’t recall the proposal being mentioned during the litigation in Miller’s court. 

Earthquake concerns 

Just how much the university can spend on the stadium remains in dispute in light of Miller’s ruling that the Alquist-Priolo Act and its limitations on construction costs apply to the stadium. 

“They don’t even know if they can do it,” Cowan said. 

The university had argued that it was exempt from Alquist-Priolo, though its spokesperson, Executive Director of Public Affairs Dan Mogulof, said the argument had been made only after it was raised in a question by the judge herself. 

Alquist-Priolo bars new construction within 50 feet of active faults and limits repair and renovation costs to 50 percent of the building’s value. The 85-year-old stadium itself sits directly over the Hayward Fault. 

The 59-page appeal filed with the first district of California Court of Appeals Friday charges that construction of the Student Athlete High Performance Center, the official moniker of the four-level semi-subterranean gym and office facility, would subvert both Alquist-Priolo and the California Environmental Quality Act (CEQA). 

While the plaintiffs contend—and the university’s appellate attorney Paul D. Fogel has conceded in a written statement to the higher court—that the appeal triggers an automatic 20-day stay that keeps the current injunction against construction in place, the plaintifffs are asking the appellate court for a writ that will keep the injunction which has protected the grove in place “[t]o assure that this Court’s jurisdiction does not succumb to the university’s chainsaws and bulldozers.” 

In addition to the appeal, the plaintiffs have also filed a motion with Miller asking her to vacate her decision and grant a new trial. A hearing on that motion—a pro forma part of the appeal process—is set for Aug. 12. 

Stadium plans 

The gym complex is the first of three proposed phases of a costly construction agenda at the stadium. The second phase, the one which the university now proposes to begin while work on the gym is under way, calls for a major retrofit of the western half of the stadium, installation of permanent night lights for televised games, a new sound system, a multi-level press and luxury sky box addition above the western wall and new plazas to the north and south of the stadium. 

The third phase would see renovation and retrofitting of the stadium’s eastern half and construction of a new concourse and an expansion of seating above the current level of the eastern rim. 

In his letter to the city, Brostrom wrote that parking, which is required for staff and faculty who worked in the southeast campus and visitors to the Optometry Clinic, would be displaced as the gym projects, referred to collectively as the Southeast Campus Integrated Projects (SCIP), move forward.  

He added that although the city and UC Berkeley had agreed on a specific number of additional parking spaces in the 2020 Long Range Development Plan settlement agreement, the university had agreed to conduct a comprehensive review of alternatives, including exploring possibilities for developing, funding and/or sharing parking with the city on the west side of the campus and downtown, before it developed new parking on the east side.  

“In any event, we will not develop additional parking as part of the SCIP projects until completion of Phase II of Memorial Stadium,” Brostrom's letter said.  

Brostrom also reminded the council of numerous changes the university had made to the stadium project, and the subsequent phases of the stadium renovation to address the city and the community’s concerns over the course of the lawsuit.  

The list of changes included a construction and financing strategy which would accelerate the renovation and seismic retrofit of the Memorial Stadium by over 18 months.  

Under this plan, the construction of the second phase would overlap with the construction of the Student-Athletic High Performance Center, which would lead to its completion by the 2012 football season, the letter said.  

“This approach would impose additional costs, because of the need for surge space for Stadium occupants for an extended period, but we believe that our financing plan—which solely utilizes private dollars—can accommodate these increased costs,” the letter stated.  

The list also included the university’s promises to plant three trees for every tree removed from the areas around the stadium, to cancel the seven “additional capacity” events now scheduled for the stadium and to work with residents of Panoramic Hill to minimize the effects of the university's programs in and around the stadium.  

The university, according to the letter, would also work with Panoramic Hill representatives to create an emergency access route for Panoramic Hill during football games.  

At the end of the letter, Brostrom said the university had adopted these positions in response to concerns from neighbors and the City of Berkeley and that the changes continued “to hold in the face of the judge's decision in the case, contingent on the city's agreement not to file an appeal to the current litigation and not to file any future legal challenge to the Memorial Stadium project.”  

The university, Brostrom said, be-lieved it was “time to end the cost and adversarial relationship inherent in these legal proceedings” and redirect its efforts towards “working together in the best interests” of the community.  

One question raised by the university’s consolidation of the first two phases—the gym and the western half of the stadium—is whether the impacts of construction on traffic and access to nearby residential neighborhoods were adequately addressed in the EIR approved by the UC Board of Regents’ Committee on Grounds and Buildings on Dec. 5, 2006. 

Before certifying the EIR, the regents building committee had given thumbs up to a $112 million budget for the gym—though costs have now soared to an estimated $140 million.  

Three days earlier, Zachary Running Wolf and a crew of tree-sitters scaled a redwood and several oak trees in the grove, kicking off an arboreal occupation that still continues despite countless arrests by campus police, the installation two layers of barbed wire-topped chain link fencing and a barricade blocking off the sidewalks along the eastern side of Piedmont Avenue along the stadium frontage. 

Meanwhile, the tree-sit picked up another celebrity endorsement over the weekend, with superstar James Taylor offering tributes to the branch-borne activists during his performance Sunday night at the nearby Greek Theatre and musing “I wonder if they can hear me now.” 

He dedicated one number in each of his two sets to the protesters, reported Doug Buckwald, one of the named individual plaintiffs and a supporter of the tree-sitters.