On the Docket: UC vs. City of Berkeley

Finally, the day arrives. Much as Cal fans anticipated the recent Tennessee game for the year following the loss in Knoxville, so have many thousands of fans and supporters waited for this coming Wednesday.

On that day Judge Barbara Miller of the Alameda County Superior Court will consider the request by the City of Berkeley (and others) to invalidate the EIR that UC has prepared for the 7 Southeast Campus Integrated Projects (SCIP) – one of which is the Student Athlete High Performance Center (SAHPC).

Widely misunderstood, the lawsuits do not directly address the seismic safety of the structures, or about UC's right to remove the oak trees and construct the buildings, or even about free speech. Instead, they are (mostly) about whether UC’s EIR was prepared in accordance with the California Environmental Quality Act (CEQA).

When the City publicly complains that the stadium and the SAHPC may be too close to the Hayward Fault, their lawsuit does not assert that the buildings are or will be unsafe – instead the lawsuit claims that the seismic issues were not properly investigated or documented in the EIR. If true, the EIR could be invalidated and the whole process forced to restart with a rewritten EIR.

And when the City complains that the project may not adhere to some agreed standards that protect the historical nature of Memorial Stadium, their lawsuit does not insist that the historical aspects be preserved. Rather they assert that efforts to preserve the stadium's historicity were inadequately described in the EIR.

When Mayor Bates says the Stadium should be located at Golden Gate Fields, the Berkeley lawsuit does not ask for that; it merely states that the Golden Gate Fields location, among others, was not adequately evaluated in the EIR.

This lends a surrealistic atmosphere to much of what is before the Court this Wednesday, because even if the EIR documentation is found to be inadequate, documentation is inherently capable of being fixed. And once fixed, the project could proceed, and all that will have been "accomplished" by the lawsuits will be significant project delays and major taxpayer supported legal expenses.

Of course it is true that "fixing" an EIR is not easy. Doing that would involve not only rewriting the document but also "recirculating" it again to all interested parties, holding public hearings, etc. - a lengthy and expensive process.

The City’s ultimate objectives are not known, but if the goal is simply to delay the project to death, even a repaired EIR could be subjected to further legal challenges.

So one key objective of the City is to prove that the EIR is inadequate – as a means of bring the project to a standstill or preventing it altogether. The legal struggle is in fact about a document, not about the actual safety, traffic, or location issues. 

Setting aside for a moment the exercises over the document, there is one other key issue before the court that may not be “fixable” should the ruling go against UC. It arises from Alquist-Priolo (seismic safety) law that says that renovations and additions to the stadium cannot exceed 50% of its value. On the surface that raises the question of valuation – and the different methods for doing that – but there is an even more critical issue.

The City contends, at length, that the SAHPC is not an independent project, but rather an addition to or alteration of the stadium, and therefore has to be included in the 50% calculation. The data available so far indicates that if the SAHPC must be included – the renovation of the Stadium might not be feasible under the AP law.

Because this issue may be so decisive, a major portion of the legal documents recently filed with the court by both sides focuses on this single issue. 

Whether or not the SAHPC building is deemed to be a part of the stadium retrofit will turn on detailed technical and legal issues. The parties to the lawsuits are actively debating the exact meaning of words like "building" vs. "structure" because the law as written may apply to one but not the other.

Even dictionaries have been cited in the legal documents; the exact meaning of "additions" is being hotly debated. It appears from the documents submitted by the two sides that there is no settled case law to rely upon here – because neither side has cited any. Instead, each has found a series of decisions, rulings, and precedents that partially support their view and hope that their ensemble prevails.

To illustrate the problem, the roof of the largely underground SAHPC will form a pedestrian plaza to the west of Memorial Stadium. The plaza will extend to the base of the stadium wall and the stairways that lead up into it, so the plaza will improve foot traffic access to the stadium. It has also been specifically designed to enhance the visibility of the western wall and its historic architectural detail.

Because the plaza will improve access to the stadium, and offer a place where fans can sit, walk, and talk before, during, and after games, Berkeley asserts that it is an addition to the stadium. UC, on the other hand, asserts that the plaza and the SAHPC are structurally separate and have separate functions.

It is well known that most of the sports offices, staff, and athletes who now occupy Memorial Stadium will move into the SAHPC - and then constantly travel back and forth between the two as a normal part of their sports activities. Does this make the buildings functionally and conceptually one structure? The City says it does.

An adverse decision on this issue might not be curable by moving the SAHPC building a few feet this way or that. Everything will depend on the basis for the decision cited by the Judge. 

What follows is a brief summary of the issues raised by the City of Berkeley in their most recent submission to the Court. Note the number of them that address only the adequacy of the EIR document, not the underlying issue. But reader beware – these issues are taken directly from the City of Berkeley’s documents, so are stated in the absolutist terms their lawyers use.

UC has of course constructed responses to each of these, and filed those answers with the Superior Court. The details of their answers are not documented here – this article is not an effort to judge the merits of the issues – but rather to alert readers to the kinds of issues that the court must resolve.

According to Berkeley:

1. Of the seven projects covered by the EIR, only one is described in any detail – the SAHPC. And that fatally damages UC’s EIR because CEQA requires complete descriptions of proposed projects in EIRs. The stadium retrofit is not described in any detail and cost estimates are not supplied, thus making the EIR – and compliance with the 50% AP rule - impossible to evaluate. Therefore the EIR is invalid because it does not comply with CEQA or present an “accurate, stable, and finite description” for each project it covers.

2. Many aspects of the project are not described at all. In one illustration, the consequences of a collapse from an earthquake of the western wall of the stadium onto the SAHPC are not described.

3. Cal has over time added some information to their EIR, but they did not then recirculate it to the public as CEQA requires.

4. Project alternatives (for example locations) described by UC in the EIR were deliberately chosen to be unattractive or infeasible, and those that were selected were so incompletely described as to not comply with the CEQA requirements.

[Remember – these are the City of Berkeley’s description of and assertions about the issues!]

5. UC has argued that the California Building Code definitions of which structures are independent should apply to this case, but (says Berkeley) those apply only to new structures – and there is no evidence the legislature intended that standard when they passed the Alquist-Priolo law. Therefore common sense definitions of the words should apply – and the SAHPC unquestionably “alters” the stadium and is therefore part of the stadium retrofit.

6. The seismic testing Cal did during the preparation of the EIR was inadequate, and this has been conclusively documented by the USGS letter that arrived after the EIR was approved by the Regents. The letter shows that the “footprint” of the SAHPC was not fully proven to be fault free at the time the EIR was approved, and that invalidates the EIR.

7. No seismic testing has been done at the site of the proposed parking garage, yet that garage is one of the 7 projects listed in the EIR. Since new structures are forbidden on active faults by AP law, and because UC has not yet done any seismic testing there, the EIR is invalid because only real and feasible projects can be documented in a properly done EIR; UC does not even know yet whether they have a project there or not.

The Judge has been presented with over 45,000 pages of documents on the several issues, so most of the arguments from both sides have already been made. The hearing may therefore center on questions the Judge wishes to ask of counselors from the several parties, areas where she feels additional clarifications are needed. She may have already reached tentative conclusions on many of the questions, and now at the hearing seeks only final confirmations on a few critical – perhaps decisive - matters.

A great deal is riding on these lawsuits and court hearing. In a matter of a few days or weeks, the project could either be stopped completely, or seriously delayed, or authorized to proceed forthwith. Whatever the outcome, it is reasonable to speculate that there will be many very angry and upset people in the aftermath.

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