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New: Panoramic Hill Neighbors Settle Memorial Stadium Lawsuit with UC

By Riya Bhattacharjee
Wednesday April 07, 2010 - 07:18:00 AM

A lawsuit filed by a Berkeley neighborhood group over UC Berkeley’s controversial Memorial Stadium expansion project has been settled out of court. 

The lawsuit, originally filed by the City of Berkeley, the Panoramic Hill Association and the California Oak Foundation in fall of 2006 against the University of California, challenged the seven projects included in the Southeast Campus Integrated Projects. 

Although the City of Berkeley, which was concerned about a massive parking garage proposed in the Integrated Projects, dropped out of the lawsuit mid-way by reaching an informal settlement with the university, Panoramic Hill Association and the California Oak Foundation battled on. 

But on Tuesday, Michael Kelly, president of the Panoramic Hill Association, said his organization had reached an agreement with the university “that involves the use of the stadium in the future.” 

Kelly said that as mandated in the agreement, both PHA and UC Berkeley were working on a joint statement which would be released over the next couple of days. 

“There were a lot of different issues in the lawsuit involving impacts on the neighborhood, impacts on the city,” Kelly said. “We will address everything in the statement.” 

UC Berkeley also declined to make any comments as of Tuesday. 

“The settlement was just completed and we are currently working with PHA on a joint statement that will detail the provisions and impacts of the agreement,” said university spokesperson Dan Mogulof.  

According to an email sent to the lawyers of the California Oak Foundation by PHA’s attorney Michael R. Lozeau and the university’s Charles Olson, the settlement agreement does not alter the existing Superior Court judgment regarding the Memorial Stadium project or the foundation’s pending appeal. 

However, the email says that the lawsuit “does resolve PHA’s pending [attorney] fee claim, and includes conditions regarding future events, stadium operations, an emergency vehicle on Panoramic Hill, complaint system, noise analyses, and various procedural interactions between PHA and the university.”  

Kelly said provisions such as no amplified music concerts or NFL events at Memorial Stadium had already been specified in the project’s environmental report. 

According to the settlement agreement, UC Berkeley has agreed to pay PHA’s attorney’s fees amounting to $75,000. Both parties have also agreed to waive claims of certain other costs. 

Steven Volker, the attorney representing the California Oak Foundation, sent a letter to the university’s lawyers saying that he objected to one of the settlement’s provisions which he felt might detract from any subsequent ruling in the continuing appeal. 

Volker asked both attorneys to confirm that the settlement “has no effect on California Oaks' separate lawsuit and appeal in the California Appellate Court.” 

“... If California Oaks’ legal challenges are sustained in whole or in part by that court or by the California Supreme Court, then such judicial resolution of those challenges will constitute the ‘final judicial determination’ of the validity of these projects and approvals,” not the agreement signed by the university and the Panoramic Hill Association, Volker’s letter said. 

The lawyers for the parties to the recent settlement assured Volker in an e-mail that the agreement would have no effect on the California Oak Foundation’s case and the pending appeal.  

Meanwhile, Stand Up for Berkeley! and the Council of Neighborhood Associations—comprised of Berkeley residents and Panoramic Hill neighbors—filed a new lawsuit in February challenging what they said were a list of substantial changes to the stadium construction project released by the university in December.  

They also objected to an "addendum" to the Environmental Impact Report, which they contend can only be approved when the changes proposed don’t have any significant environmental impact.  

“We sued saying that these changes clearly do have significant impact,” said Nigel Guest, a Panoramic Hill resident who is on the steering committee for Stand Up for Berkeley!  

Guest said that the university was proposing to completely remodel Witter Field in Strawberry Canyon which is an environmentally sensitive area.  

It is also planning to lower the playing field by two feet for better views from certain stadium seats which would involve “a very large earth moving exercise," he said. 

Guest said that an addendum was not subject to formal public comment. He said that the appellants wanted to see the addendum replaced with a "supplement," which is a much lengthier document and requires public comment. 

When asked about what he though of the settlement agreement, Guest, who is a member of the Panoramic Hill Association, said “it stinks.” 

“All the negotiations were conducted in total secrecy,” he said. “I only found out about the settlement by accident. I wasn’t informed by the board. The PNA has given up its right to take legal action against UC, which is why I joined Stand Up for Berkeley!” 

Both appellants are also suing over an amendment to the state’s Omnibus Bill, which exempts Memorial Stadium and other state historic structures from legal restrictions on building across earthquake faults.  

The university succeeded in convincing lawmakers to include this amendment to the Omnibus Bill, which has traditionally included only non-controversial subjects.  

UC has defended its action by saying the provision would only apply to retrofitting existing structures, and not to new construction. 

However, critics of the Memorial Stadium project say that it is more than just a retrofit project. 

Guest said that the appellants were also challenging the amendment on constitutional grounds because they are furious it was slipped into a local government Omnibus Bill. 

“And it has nothing to do with local government,” Guest said. 

Guest met on Tuesday with Assemblymember Roger Neillo (R-Fair Oaks) in Sacramento, who is proposing to convert the amendment into a single-subject bill to comply with conditions outlined by Gov. Arnold Schwarzenegger when he signed off on it in October. 

Concerned about the modifications to Alquist-Priolo, the main earthquake protection statute in the state which regulates and prevents building on earthquake faults, the governor asked the proponents of the amendment 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.  

However, Guest said that he didn’t think the language in the proposed bill was addressing the governor’s concerns. “I think it’s being done to void out our lawsuit,” he said. “We are trying to get Neillo to amend the bill.”  

The proposed bill is scheduled to come up for a first committee hearing next week.