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 after receiving a set of assurances to its concerns from the university in July 2008, 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, 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 Lozeau and the university’s lawyer Charles Olson 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! (SUBF!) and the Council of Neighborhood Associations (CNA)—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 them by accident. I wasn’t informed by the board. The PHA has given up its right to take legal action against UC, which is why I joined Stand UP for Berkeley!”
SUFB! and CNA are suing over an amendment to the state's Local Government Omnibus Act, which exempts Memorial Stadium and other state historic structures from legal restrictions on building across earthquake faults.
Memorial Stadium straddles the Hayward Fault.
The university succeeded in convincing lawmakers to add 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.
The UC Regents approved $321 million for the 87-year-old Memorial Stadium renovation and retrofit in January which is expected to be completed by the beginning of the 2012 football season.
Seventy percent of construction costs are directly tied to retrofitting and code compliance, Mogulof said.
The stadium will be closed during UC Berkeley’s 2011 football season when Cal will play at another venue.
Alternate locations proposed by the university include the Oakland Colosseum, Candlestick Park and AT&T Park.
Mogulof said that the project will be funded mainly by sales of long-term rights to 3,000 of the approximately 60,000 seats in the renovated stadium.
This is being done through the university’s Endowment Seating Program, he said, acknowledging that it is something more common in professional football stadiums.
A March 30 article in the San Francisco Chronicle by David Downs underscored the precarious financial position the intercollegiate athletic department is currently in. It is presently being heavily subsidized by the university.
“Intercollegiate athletics will be responsible to pay off the debt over the next 30 years,” Mogulof said. “Their funding will be enhanced with revenue from the Endowment Seating Program. We expect the project will place no burden on intercollegiate athletics because revenue from the renovated stadium is expected to exceed the project’s total costs.”
The university has already sold 60 percent of the seats, raising $150 million.
"We are way ahead in our financial model even in the current economy,” Mogulof said.
He said most of the people who were buying the seats were individual donors.
"We have sold 60 percent of the seats 30 months before the stadium will open," he said, comparing it with other public university endowment seating programs which have been less successful this year.
Guest said that the appellants were 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 and SUFB! member Hank Gehman met on Tuesday with Assemblymember Roger Niello(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 Niello to amend the bill.”
The proposed bill is scheduled to come up for a first committee hearing next week.