Flash: Judge Gives Stadium Win to Cal; Losers Say They’ll File an Appeal

By Richard Brenneman
Tuesday August 26, 2008 - 05:41:00 PM

The first round of the legal battle over the Memorial Stadium ended late Tuesday, and lawyers for the losing side are preparing their appeal. 

Michael Lozeau, attorney for Panoramic Hill Association, said he was already working on the documents to file with the state Court of Appeal. 

The decision by Alameda County Superior Court Judge Barbara J. Miller followed a brief hearing in her Hayward courtroom Monday morning. 

Lozeau and Stephan Volker, attorney for the California Oak Foundation, were opposed by Charles Olson, the San Francisco attorney who led the university’s defense in the lengthy and complex hearings in Miller’s Hayward courtroom. 

Also present was Harriet Steiner, the outside counsel hired by the City of Berkeley to represent the city’s interests in the case. The city council declined to vote to appeal Judge Miller’s first version of her ruling late last month. 

“Judge Miller gave us five minutes,” said Volker after Monday’s hearing. “We said that we wanted the university to confirm that if we filed an appeal in two days that they would maintain the status quo until the appellate court ruled on our writ of supersedeas.” 

Volker said the university gave its assurances, though the judge had declined to state whether she would enforce their promise with the power of the court. 

The writ the plaintiffs want would halt enforcement of Miller’s ruling while the appellate court was mulling the merits of their challenge to the lower court’s decision. 

They have until Thursday to file the appeal, and even then there is some question whether or not a 20-day ban on new construction activity—including tree-clearing—would be automatically granted, given that Miller’s ruling Tuesday dissolved her earlier injunction against new construction. 

During Monday’s hearing, the university agreed to a two-day delay to give the losing side time to appeal, and university spokesperson Dan Mogulof Tuesday confirmed the university’s intention to honor the delay.  

The lawsuit, filed in December 2006, challenged the regents’ approval of the Student Athlete High Performance Center, a four-level high tech gym and office complex planned immediately to the west of the landmark stadium. 

On a broader level, the plaintiffs challenged the environmental impact report for a group of projects the university has dubbed the Southeast Campus Integrated Projects. 

Plaintiffs, who also included a group of Berkeley residents, charged that the project violated the California Environmental Quality Act (CEQA) and the Alquist-Priolo Act, which governs building within 50 feet of active earthquake faults. 

Judge Miller found that some aspects of the university’s original plans violated the seismic law, but withdrew her objections after the university scuttled the parts of the plans she had cited. 

While she also upheld the city’s challenge, which had charged the university wrongly certified that it couldn’t detail the impacts of seven new annual events planned for the stadium, she allowed the project to move forward after the university removed the events from their plans. 

An earlier filing with the state Court of Appeal was rejected after judges there declared that Miller had issued her first ruling before she had finished with the case, making an appeal premature. Then the plaintiffs withdrew their motion for a new trial, clearing the way for Monday’s hearing. 

Miller promised at the end of that hearing to rule promptly on the case. 

The university’s plans for the gym require the leveling of most of the trees in the grove now located at the site—inspiring the ongoing tree-sit that has keep campus police busy at a time when crimes of violence at Cal have been soaring. 

While Miller’s decision would pave the way for construction of the gym, it raises serious questions about just how much work the university can do on the stadium itself. 

The judge sided with the plaintiffs on one of their key contentions, that the university could spend no more on the extensive renovations it plans than half of the stadium’s current market value. The university’s lawyers argued that replacement value should be used. 

The aging stadium sits directly over the Hayward Fault, which federal scientists say is the most likely site of the Bay Area’s next major earthquake. All sides agree the stadium is in poor shape and in need of a seismic retrofit if it is to become comparatively safe in a major temblor. 

The university’s planned renovations to the stadium include a complete interior retrofit, the addition of a new press box topped by luxury sky boxes for big ticket donors along the western wall, as well as a new bank of raised seating on the eastern side, as well as replacement of all the existing seating throughout the stadium. 

The university plans to overlap work on the western half of the stadium with construction of the gym complex.  

The long legal battle thwarted one of the university’s hopes, a landscape cleared of tree-sitters by the time of the first home game of the Cal Bears. 

With the protesters still aloft and little likelihood of their disappearance before the Bears tackle the Michigan State Spartans Saturday, Athletic Director Sandy Barbour, campus Police Chief Victoria Harrison and Vice Chancellor Nathan Brostrom have posted an open  

to attendees on the campus website.The letter promises that “we will have a robust police presence around the stadium to deter and to respond to any unlawful behavior.” 

Because of the elimination of access through the grove, the university has added eight new gates and 91 entry and exit points, with a concentration both above International House and at the north end of the stadium near Maxwell Family Field. 

Kickoff is slated for 5 p.m. 

At the tree-sit itself, the week has passed in relative calm, following in the wake of the university’s aggressive moves last Thursday. 

During the morning, contract arborists moved to isolate the protesters by slicing off all the lower branches of their last remaining stand in a redwood in the northern part of the grove. The crew, working for a Watsonville firm, also sliced off strategic branches from two nearby oaks, further isolating the treesitters. 

Later in the day the arborists were back, stripping away the weatherproof tarps used to shield the tree-sitters’ supplies and removing some of their belongs—a move university spokesperson said was aimed at making sure the protesters had no weapons.