Some Berkeley city officials and residents are outraged that, despite questions raised by legislative staff in Sacramento, the University of California was able to convince lawmakers to add an amendment exempting Memorial Stadium on the Berkeley campus and other state historic structures from legal restrictions on building across earthquake faults to the state’s Omnibus Bill, which traditionally contains only non-controversial provisions.
District 4 Councilmember Jesse Arreguin contends that the “implied rule of an omnibus bill is that it can only include changes that are non-controversial.”
Opponents claim that the amendment poses a threat to the safety of Berkeley residents and are furious that it was passed in the face of pending litigation against the proposed projects at Memorial Stadium.
Arreguin on Monday proposed an agenda item for the Dec. 15 City Council meeting requesting Berkeley City Manager Phil Kamlarz to report on Berkeley’s involvement in SB113, also known as the Local Government Omni-bus Act of 2009, which
was signed by Gov. Arnold Schwarzenegger on Oct. 11, 2009.
Every year the State Senate Committee on Local Government introduces an omnibus bill—also known as a “clean-up bill”—as a money-saving way to streamline local government law.
But a lawsuit by the Panoramic Hill Association, a neighborhood group that has sued the university for proposing to build on the Hayward Fault, makes the amendment controversial, Arreguin said, and thus inappropriate for inclusion in the Omnibus Act.
“It directly affects the whole purpose of the lawsuit and the parties of the lawsuit,” he said. The suit is currently waiting to go before the state appellate court.
UC Berkeley spokesperson Dan Mogulof defended the university’s decision to request the amendment.
“It really depends on how you define controversy,” Mogulof said. “We rarely see anything in the state or the city that’s non-controversial. There’s little controversy over a project that desires to spend private funds to make a seismically unsafe structure safe.”
Mogulof added that the provision would only apply to retrofitting existing structures, and not to new construction.
The Alquist-Priolo Earthquake Fault Zoning Act prohibits new projects in defined earthquake fault zones, but allows for an “alteration or addition” to a project “if the value of the alteration or addition does not exceed 50 percent of the value of the structure.”
The retrofitting and expansion of Memorial Stadium has been the subject of at least four lawsuits and a tree-sit which made national headlines.
Because these projects fall within an earthquake fault zone, the provisions of Alquist-Priolo would apply to them without the amendment. The amendment also seems to apply to other state historic structures, though exactly how is still unclear.
Mogulof said that construction on Memorial Stadium itself would begin after the UC regents voted on approving it in January. The adjoining Student High Performance Athletic Center, which is being built on the former site of the stadium’s oak grove, does not benefit from the amendment because it would not straddle an active fault and does not connect to the stadium, he said.
Arreguin’s memo says that the university requested that the Senate Local Government Committee pass the amendment to “specifically enable the university to move forward with” the Memorial Stadium projects.
Campus officials started planning seismic and disability-access improvements after a 1998 seismic study gave it a “poor rating.”
In her proposal to the committee, UC’s Senior Legislative Director Happy Chastain wrote that the university believes that Alquist-Priolo “is vague regarding exemptions for state entities.”
She said that there was ambiguity in how the act applied to retrofiting Memorial Stadium.
“Statutory clarity needs to be provided to avoid future litigation,” her proposal said. “Because of the historic nature of the stadium, we expect diverging opinions regarding the value of the stadium and whether the cost of the improvements will exceed 50 percent of the stadium’s existing value. For public health and safety reasons, the seismically and accessibility deficient stadium needs to be retrofitted and the proposed amendment would eliminate any delay in implementing the retrofit resulting from expected litigation resulting from a valuation determination.”
Chastain, who did not return calls for comment, said in her proposal that she had contacted the Department of Parks and Recreation and the State Historic Preservation Office, who were reviewing the language.
She said that the Building Standards Commission, the Sierra Club and League of Conservation Voters had not expressed concerns about the exemption.
But in a May 13 letter to Chastain, Peter Detweiler, Chief of Staff for the Senate Local Government Committee, wrote: after “thinking about your request, I am not sure that it’s going to survive the review process ... Our motto is ‘if it’s not consensus, it’s not omnibus. If anyone raises an eyebrow, even if they don’t object to the substance, the request doesn’t go into the committee’s omnibus bill. Sometimes a reviewer will say, gee, that’s a fine idea but it deserves more attention than getting stuck into an omnibus bill. Compared to the other items in SB 113, your request looks more substantive.”
He said in the letter that he intended to send the proposed amendment to more than 125 reviewers for comment.
He added that if the amendment had been a separate bill, as a policy committee consultant he would have wanted information on how many buildings are already on the state Register of Historic Resources, and of those, how many were owned by the state, in order to determine where the amendment might apply.
“We don’t know what we are exempting,” Detweiler wrote. “I don’t want you to be surprised or disappointed if someone objects (or even raises an eyebrow).”
When reached Wednesday, Detweiler said Chastain had not gotten back to him about whether the State Historic Preservation Office (SHPO) had reviewed the language in the amendment.
“When I reached SHPO, they didn’t express any opinion about the language because I didn’t ask them about it,” he said. Detweiler said he had received an approximate list of buildings on the National Register from Chastain but didn’t have it anymore.
He said that barring one legislative staff member, none of the reviewers—including lobbyists, legislative analysts and staff—had objected to the amendment as the bill was moving forward.
Chastain’s proposal also implied that the university had informed neighbors of the Memorial Stadium about the amendment but does not directly state that she did so. Michael Kelly, president of the Panoramic Hill Association, denied that neighbors had been informed.
“That would be us and we didn’t hear from anyone,” Kelly said. “I am suspicious about who they reached out to about this. They are demolishing the entire stadium except for the exterior walls and calling it a retrofit. That’s not a retrofit.”
Arreguin said that various state agencies and Berkeley residents did not become aware of the amendment until it was passed by the legislature.
“The stadium projects have been very controversial and were even subject to a lawsuit by the city,” Arreguin said in his memo to Kamlarz. “Given the controversy it is inappropriate for this amendment to have been included in an omnibus bill, and there is a lack of transparency in the manner in which this amendment was introduced.”
Detweiler said that Lynn Suter, the city of Berkeley’s lobbyist in Sacramento, had told him that the city of Berkeley had “no objection” to the amendment.
“If this is true, it raises important questions about whether the city was aware of the university’s request,” Arreguin said. “Did the city express a position on the bill? If so, how was the position determined? And who expressed the position on behalf of the city?”
Detweiler said that Senator Loni Hancock’s office had not objected to the amendment either.
Suter’s office said she was in Cambodia and could not be reached for comment. Mayor Tom Bates and Senator Loni Hancock are on vacation in Vietnam and calls to their staff and the Berkeley City Manager’s office were not returned by press time.
Arreguin complained that even though the committee staffers were concerned about the controversial nature of the provision, UC Berkeley and the city of Berkeley contended that it was non-controversial.
“My big question is, why was the council not informed?” Arreguin asked. “The university’s proposed project could put the public in danger. Most important, this amendment is not limited to the Memorial Stadium, it has implications for the whole state.”
Former Berkeley Mayor Shirley Dean, who has been closely following the issue, said that she was very unhappy about the lack of a proper public process.
“How can you take a project that had four separate lawsuits and one lawsuit pending and say it is not controversial?” she asked.
“Not only are there safety risks in the stadium, there are safety risks for the city—we are the first responders to anything that would happen. This represents what is wrong with university and city relations.”
Dean said that the council should have been asked to review the amendment.
Berkeley resident Doug Buckwald said that he had asked his local representative, Assemblywoman Nancy Skinner, who voted to pass the bill, to conduct a thorough investigation into the issue.
“This is not about stealing a loaf of bread or six packs from the corner grocery store,” Buckwald said. “Democracy has been stolen from us. It’s a serious violation of public trust, a clear abuse of the legislative process.”
A Nov. 13 internal e-mail between Skinner’s legislative director Liz Mooney and her senior field representative Maha Ibrahim, after the bill was passed, shows that Mooney had not been aware of the pending lawsuits.
“This is the first I have heard of any lawsuit,” Mooney said in response to Ibrahim’s question about how to tackle questions from the public on the amendment and pending litigation by Panoramic Hill.
Calls to Skinner’s officer were not returned by press time.
Arreguin said that Schwarzenegger expressed hesitation before signing off on SB 113 in October because of the modification to Alquist-Priolo.
In a signing statement, the governor mentioned that the proponents of the amendment had made a commitment to send a letter from UC Berkeley Chancellor Robert Birgeneau to both Hancock and Skinner stating that the university will “seismically retrofit the California Memorial Stadium” as required by law.
The governor added that UC Berkeley would also have to introduce a bill in January which would satisfy concerns from his Office of Planning and Research, the Department of Conservation and the Seismic Safety Commission.
Schwarzenegger also directed his staff to work with the legislature to make any changes to SB 113 that were necessary to address his administration’s commitment to the “safety and well being of the citizens of California.”
Arreguin said a copy of the letter could be sent to lawmakers as early as next Tuesday.
“We will be keeping a close eye on Sacramento to see what legislation gets introduced in January,” he said. “Meanwhile we are waiting for some answers from the city.”