Judge Gives Go-Ahead To Build Athletic Center

Ruling to Remove Injunction After Declaring UC Berkeley in Compliance with Safety Laws

Photo: Tree-sitters in the oak grove next to Memorial Stadium are silent behind the fences on the night of July 22, 2008, when the lifting of the injunction was announced to the public.
Skyler Reid/Staff
Tree-sitters in the oak grove next to Memorial Stadium are silent behind the fences on the night of July 22, 2008, when the lifting of the injunction was announced to the public.

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Photo: Dan Mogulof, spokesperson for the university, announces Wednesday that the judge's ruling will lift the injunction on construction and discusses how the university will proceed.   

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After 19 months and more than 40,000 pages of documentation, a judge ruled to lift the injunction preventing the construction of an athletic center near UC Berkeley's Memorial Stadium.

Alameda County Superior Court Judge Barbara J. Miller ruled Tuesday that the university has brought the construction plan into compliance with earthquake safety and environmental quality laws. The injunction will be lifted July 29, when the judgment officially takes effect next week.

The university has battled lawsuits brought by the city of Berkeley, the Panoramic Hill Association and the California Oak Foundation over the construction of the center and the removal of 26 coast live oak trees at the proposed construction site since December 2006.

Miller postponed the dissolution of the injunction for a week in order to give the petitioners time to file an appeal. Stephen Volker, the attorney for the California Oak Foundation, said he intends to file an appeal today or tomorrow. The Berkeley City Council is set to vote tonight on whether the city will file an appeal.

Any party that appeals can ask the appeals court to impose another injunction for the duration of the appellate trial.

But if the petitioners decide to appeal, they will have the burden of proving that Miller's ruling-which comes after she issued a 129-page preliminary ruling last month-is faulty.

Even if the petitioners decide to pursue an appeal, the university will be able to commence construction during an appeals process, unless the appeals court issues another injunction.

"It's very common for projects to go forward even when there's still litigation going on," said Charles Olson, the university's lead counsel.

Though Miller ruled to lift the injunction, campus officials have repeatedly said that the bidding process for the construction project will not take place until after the injunction is officially lifted.

Miller also ruled Tuesday that the three petitioners must split 85 percent of the university's court costs, which do not include attorney fees.

"We are very pleased with this decision and see it as confirmation that everything the university has done in connection with this project is fully compliant with the law," said Dan Mogulof, UC Berkeley's executive director of public affairs, in a statement.

The decision comes after last Thursday's hearing during which the parties involved responded to Miller's preliminary June 18 ruling.

In her preliminary ruling, Miller rejected all but a handful of a host of charges made by the petitioners over the legality of the university's plan to build the athletic center. She requested that the university provide more information about a few specific aspects of the plan relating to the California Environmental Quality Act and the Alquist-Priolo Earthquake Fault Zoning Act.

In response to the June 18 ruling, the university removed from its plans the aspects Miller cited as problematic, including a proposal to build a grade beam that would have constituted an alteration to the stadium.

The university said the grade beam's purpose was not for seismic strengthening but to help protect the exterior of the stadium during construction. The petitioners contested this, saying in the hearing last Thursday that it was essential for seismic safety. In her Tuesday ruling, Miller sided with the university and said it submitted sufficient evidence to show that the removal of the grade beam "will not result in safety risks."

In an unusual move, Miller gave the university the option of putting the removed parts of the proposal back into the plans within 30 days of her Tuesday ruling. Miller said the university must show that any aspect of the plan it decides to put back is now fully in compliance with the laws it previously might have violated.

Miller rejected the petitioners' claim that the parts of the plan the university removed require approval by the UC Board of Regents, saying the university followed proper procedures by allowing campus Vice Chancellor Edward Denton to approve the changes.

Miller also rejected a request from the university to impose a $1.5 million per-month bond on the petitioners should they decide to appeal.

The university requested the bond to help offset the cost of security at the oak grove and the increase in construction costs associated with the delay in construction, which it estimated to be about $1.5 million per month. The university estimates the construction delays and security costs have already cost them $11 million.

The university would be able to request another bond from an appellate court if it issues an injunction.

The petitioners said they are disappointed in the ruling and want the university to give the community a voice in making decisions.

"Save the Oaks at the Stadium and the community supporters at the oak grove believe community cooperation is the best way to resolve these problems," said Doug Buckwald, spokesperson for Save the Oaks. "We have been ready and willing to talk from day one."

The petitioners have filed a motion with the court requesting a new trial. Petitioners said revisions to the California Building Code in 2007 would cause the foundation of the athletic center to be out of compliance with Alquist-Priolo. A hearing has been set for August 12.

The petitioners are allowed to simultaneously begin the appeals process and request a new trial with Miller.

Miller said the issue of attorney's fees, which the petitioners raised at the hearing last Thursday, will be decided after the case has been wrapped up.

Angelica Dongallo of The Daily Californian contributed to this report.


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

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