New Appeal Filed In Stadium Lawsuit

By Richard Brenneman
Thursday August 28, 2008 - 04:31:00 PM

The legal battle over UC Berkeley’s building plans at Memorial Stadium is back in the state Court of Appeals for the second time. 

The litigation pits environmentalists and neighbors against a cash-starved university which says it needs the buildings to open the wallets of donors and meet the needs of its athletes. 

The latest round of litigation features the California Oak Foundation and the Panoramic Hill Association and a group of Berkeley citizens against the UC Board of Regents. 

The City of Berkeley, a plaintiff at the trial court level, did not join the appeal after the City Council declined to join with its former co-plaintiffs. 

The first issue before the three-judge panel of the appellate court will be whether or not to bar the university from cutting down trees and starting construction before they have had a chance to decide the case, a process than often takes more than a year. 

The trees at the grove have been the scene of a treesit that began on Big Game Day 2006. The presence of the protesters led the university to construct fences around the site that remain as the Cal Bears hold their first home game Saturday.  

“Our case is fundamentally sound and we are confident that the court of appeals will reverse the lower court’s position,” said Oakland attorney Stephan Volker, who represents the oak advocates. 

“We’re eager to get into the appellate court to get these legal issues resolved,” said Michael Kelly, president of the Panoramic Hill Association. 

Kelly said the case was important because it would resolve critical legal and procedural issues. 

Alameda County Superior Court Judge Barbara J. Miller ruled largely in favor of the university in the final decision handed down late Tuesday. 

But her decision, while clearing the way for a construction of a four-level gym and office complex west of Memorial Stadium, also challenges the university’s plans to renovate the stadium itself. 

Miller rejected the university’s contention that they could value the stadium at the price of building a new facility in conformance with current earthquake safety standards and sided with the plaintiffs’ position that cited current market value of the existing building as the value. 

What might seem an otherwise arcane semantic point becomes a major real-world concern in light of the Alquist-Priolo Act, which governs construction within 50 feet of active seismic faults. 

While Miller agree with the university that the gym—formally the Student Athlete High Performance Center—lies outside the zone, the stadium itself sits directly over the Hayward Fault. 

That fault has been deemed the most probable source of the region’s next major earthquake by state and federal geologists. 

Alquist-Priolo limits renovations and repairs to existing buildings within the 50 percent zone to half of the existing structure’s value, and if Miller’s contention is accepted, the university’s extensive plans for the stadium could be severely hampered. 

The new appeal is essentially the same document filed last month, which the appellate court rejected on the grounds that Judge Miller had yet to resolve one issue in the case. 

With Miller’s jurisdiction over the case concluded as of Tuesday’s ruling, the plaintiffs were again free to file their appeal. 

Dan Mogulof, the university’s spokesman on the legal fracas, said that the administration has made a binding commitment not to begin construction until the higher court has ruled on the immediate issues of whether to impose a stay on construction activities and issue a writ of supersedeas assuming jurisdiction over the case. 

“We’re optimistic about the outcome,” he said. “Based on the exhaustive and detailed nature of Judge Miller’s ruling, we’re optimistic that the court of appeal will clear the way for construction to begin in short order.” 

Michael Lozeau, attorney for the Panoramic Hill Association, said the appeal filed this week is essentially the same document that had been filed earlier. 

For more information on the previous filing, see http://www.berkeleydailyplanet.com/issue/2008-07-31/article/30708.