Judge Nears Final Athletic Center Ruling

Judge Hears Formal Responses From Petitioners, UC to June 18 Ruling

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Though the judge mediating the legal battle over UC Berkeley's proposed athletic center did not lift the injunction prohibiting construction at a court hearing last week, she indicated that she would be issuing a final judgement in the near future.

Alameda County Superior Court Judge Barbara J. Miller used the hearing to question attorneys on both sides of the dispute about their formal responses to her June 18 ruling, but ultimately said the university is the winner of the suit.

"I do see the university here as the primary prevailing party," Miller said at the hearing. "They have prevailed on all but a handful of issues."

The university has been entangled in legal proceedings over the university's plan to build a student athletic center near UC Berkeley's Memorial Stadium since late 2006, when the city of Berkeley, Panoramic Hill Association and the California Oak Foundation claimed plans violated a variety of environmental and earthquake zoning laws.

Miller issued an injunction in 2007 preventing the university from beginning construction of the athletic center for the duration of the lawsuits.

At the hearing, the petitioners requested that, should Miller lift the current injunction, she issue a temporary injunction to give them time to file an appeal and request an emergency stay from the appeals court.

The university requested that the injunction be lifted as soon as Miller determined the plan was no longer in violation of any laws.

The university also asked that Miller post a $1.5 million per-month appeals bond that petitioners would have to pay the university during the appeals process if they decide to appeal the outcome of the case.

Charles Olson, the university's lead counsel in the case, said the university is requesting $1.5 million per month because that is what the delay in construction will cost them. University officials estimate that the delay in construction has already cost about $11 million.

California Oak Foundation lawyer Stephen Volker said the university's request for a bond was to deter petitioners from appealing should Miller lift the injunction, since it would be difficult for them to raise the money.

"The regents have a hidden agenda to strip the petitioners of their right to an effective appeal," Volker said. He said the bond would "slam the courthouse door in (the petitioners') faces."

Debate at the hearing also addressed the university's decision to remove a grade beam from the plan.

In her 129-page ruling last month, Miller said the university needed to place a monetary value on the stadium in order to comply with the Alquist-Priolo Earthquake Fault Zoning Act.

Alquist-Priolo states that alterations to structures-like Memorial Stadium-that are on the sites of active fault lines may not exceed 50 percent of the structure's value. Because the athletic center plan involved building a grade beam that would be connected to the stadium, Miller said the university needed to determine the value of the stadium in order to ensure legal compliance.

But the university removed the proposed beam from the project, eliminating the need to determine the stadium's value before building the center.

The recent changes to the project were approved by Edward Denton, UC Berkeley vice chancellor of facilities services.

During the hearing Thursday, the petitioners' attorneys claimed Denton did not have the authority to approve such changes and said the plan must be sent back to the UC Board of Regents for reapproval.

Olson argued that the vice chancellor has had the authority to approve construction changes like the removal of the grade beam for more than 30 years.

Volker also claimed that the regents approved the plan in part because they believed the grade beam would strengthen the stadium seismically.

Olson said the regents were not aware of the grade beam when they approved the plan, since they typically only review summarized versions of construction plans. Olson said this is because hundreds of construction plans come before the regents from all 10 UC campuses every year.

"The grade beam was not a selling point to the regents," Olson said.

Miller also indicated that it is not necessary for the plan to go back to the regents for reapproval.

"What, substantively, do you think you would hear from UC that wasn't in the numerous briefs they've filed?" Miller asked. "It sounds like the substance is not going to be any different."


Jacqueline Johnston is an assistant news editor. Contact her at [email protected]

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