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University Sends Mixed Messages Over Stadium

By Richard Brenneman
Thursday August 07, 2008 - 11:46:00 AM

UC Berkeley seems to be telling the Berkeley City Council one thing about its construction plans at Memorial Stadium while telling something different to the state Court of Appeal. 

The university, which an-nounced to the Berkeley City Council on July 24 that it now intends to combine work on Memorial Stadium with the adjacent Student Athlete High Performance Center (SAHPC), said in papers a week later with the state Court of Appeal that stadium work would follow gym construction. 

In the court filing, attorneys for the UC Board of Regents also asked for a $28.6 million bond from the citizens and groups challenging their construction plans in the southeastern quadrant of the campus—or a mere $14.3 million if the court sets an expedited 10-month schedule that includes a review by the state Supreme Court. 

But Stephan Volker, attorney for the California Oak Foun-dation, said that “in my 34 years as a lawyer I have never seen a court impose a bond on behalf of a public institution to be paid by citizens seeking a court review of its actions.” 

Imposing high bonds, he said, “would slam the door on citizens seeking to have the courts review the actions of a public agency.” 

Perhaps the most interesting part of the 77-page document filed with the court’s First Appellate District is this sentence: “The trial court found that the University was not required, at this point, to determine the cost of Phases 2 and 3 of the Stadium project—which will proceed only after both the Center’s construction and action by The Regents on Phases 2 and 3.”  

But in his letter to the City Council a week earlier, Vice Chancellor Nathan Brostrom wrote that the university has developed a new construction and finance plan in which “construction of the second phase”—the western half of the stadium—“would overlap with the construction of the SAHPC and would result in completion of this phase by the 2012 football season.” 

Because the university wouldn’t be able to house stadium occupants in the new gym as originally planned for the second phase of work, simultaneous construction “would impose additional costs because of the need for surge space for Stadium occupants for an extended period,” Brostrom wrote the council. 

Dan Mogulof, the university executive director of public affairs, said that the appeals brief focuses on action already approved by the UC Board of Regents, while the letter is about an offer to the city that hasn’t been approved by the board. 

Michael Kelly of the Panoramic Hill Association, one of the plaintiffs in the litigation, said he was surprised that the university would tell the city one thing while representing the opposite to the city. 

Kelly said imposition of the maximum bond sought by the university, should the court continue to bar construction until the outcome of the appeal, would ensure that construction moved forward—something that he said could still have an adverse outcome for the school. 

“In the real world, it’s very common for projects to go forward while they’re being appealed, but that would involve the risk that a year from now the court might find additional things wrong, and the university would be forced to stop construction and tear down part of what they’ve built,” he said. 

The impacts could be worse for the California Oak Foundation, another of the plaintiffs, for once the trees had been axed, there would be no way to restore them. 

“For a city already short of open space in its developed area, it would be very sad to lose those trees,” Kelly said. 

Of 139 trees at the site, 48 would be preserved under the university’s construction plans, with only two of the four trees that pre-date stadium construction in 1923 remaining. 

“Forget the money,” said Janet Cobb, president of the California Oak Foundation. “Forget their punishing attitude. I wake up in the middle of the night and ask myself, Will the university be able to find its creativity and a way to preserve these trees, which we planted as a memorial to those who lost their lives in World War I?” 

The foundation doesn’t oppose building a center for the athletes: “We just ask, couldn’t they walk a few more feet” from their gym to the stadium?  

Mogulof said the offer to overlap the two phases of construction was in response to a request by the city, and he said that while the university would prefer to follow the sequential process already adopted by the board, the alternative was spelled out in a June declaration by Vice Chancellor Ed Denton to Alameda County Superior Court Judge Barbara J. Miller. 

In the event the city approves the university’s offer, Mogulof said, the university would evaluate the potential traffic impacts and prepare a supplemental environmental review if needed. 


Appeal issues 

In its court filing, the university contends that Judge Miller’s dissolution of the injunction on July 22 “shifts the balance of equities.” 

In their filing, university attorneys Paul D. Fogel and Dennis Peter Maio argued either for a denial of the plaintiff’s request for a writ staying Miller’s ruling because their client has been “too long saddled with the continuing earthquake safety risk and the escalating costs of further delaying construction,” which they said would “cost the university $1,430,000 a month in construction and security costs, including $22 a day for security” on top of $11 million already incurred. 

Assuming the appeal will take the median time of 20 months or 512 days, they wrote, additional costs to the university due to construction delays would reach $28.6 million, or the amount of the bond the regents contend “would be appropriate” unless the court allows for the 10-month expedited briefing, where the regents contend the $14.3 million bond would suffice. 

They declared that the university had prevailed on all but two minor points. The university resolved one set of issues relating to the California Environmental Quality Act by agreeing to abandon plans to hold an additional seven annual high- capacity events at the stadium, after Miller ruled the regents had erroneously adopted an environmental impact report (EIR) which declared that impacts of those events couldn’t be reckoned.  

But the university’s biggest potential legal hit came from Miller’s finding that, contrary to the university’s contention, the University of California is bound by the regulations spelled out in the Alquist-Priolo Act, which governs construction within 50 feet of active earthquake faults. 

“The regents did not violate Alquist-Priolo because it is not subject to the statute in the first place,” the lawyers declared in their appellate filing, and “is confident it could persuade this Court” of that if the appeal moves forward. 

Even if it is subject to the law, the university contends it didn’t violate it, because the regents properly found the gym wasn’t an addition or alteration because, in part, Vice Chancellor Denton said it was designed “to be a stand-alone building,” a contention they say is backed by substantial evidence. 

The more problematic issue is the stadium’s dollar value, a figure that sets limits on how much the regents can spend on renovations—a key feature of the second two phases of planned construction. 

While Judge Miller agreed with the plaintiffs that the value should be set at what the structure would fetch “as is” on the current market, the university charges that the value should be set at its replacement cost if built up to current code. 

The university has set a replacement value of $593 million, which was presented by the university to the regents before the EIR was certified. 

While Miller ruled the university hadn’t selected the proper method of valuation, “it became moot when the University complied with the writ and removed the grade beam” and other elements the judge had cited. The beam was an addition below ground level along the stadium’s western wall, which the university said was needed to support the structure during excavations for the gym, which will be built below the level of the stadium’s base. 

During their discussion of Alquist-Priolo, the attorneys wrote that Miller had held “that the University was not required, at this point, to determine the cost of Phases 2 and 3 of the Stadium project—which will proceed only after both the Center’s construction and action by The Regents on Phases 2 and 3.” 

Brostrom’s letter also raises questions about another contention raised in the university’s appellate filings. 

In the court papers, the university contends prompt construction is needed because, otherwise, women athletes would continue to be forced to change into and out of their athletic garb inside their cars, a barrier to compliance with federal law that mandates equality of treatment for men and women athletes. 

But Brostrom’s letter states that so-called “surge space” can be found to accommodate all athletes under the financing plan that would allow for simultaneous construction. 

Meanwhile, another hearing is scheduled for Judge Miller’s court on Tuesday, on whether a shoring and tieback system linking to the stadium site during gym construction is a stadium alteration, and whether it exceeds 50 percent of the stadium’s value.