First, the hard news on the schedule: plaintiffs' documents are due July 11th, UC's on the 15th, and the hearing will occur two days later.

The nominal purpose of the upcoming hearing was to have oral arguments on the language the Judge will use in her final judgment. Today's event, however, provided observers with a clue that more may be involved.

Citing the extensive financial costs the University has suffered and continues to suffer as a result of the delayed project - pegged today by UC lead attorney Charles Olson at $50,000 a day - Olson urged the judge to hold the hearing as soon as possible. Plaintiffs responded that their other court duties - and long planned vacations - made an early date impossible. They requested dates as late as mid-August.

Plaintiffs also complained about the "3 inches of materials" just submitted by UC and claimed that more time was needed to review them, so as to be well prepared to "provide the Judge with a careful and thorough briefing at the hearing." They suggested that it was time for all to "take a step back", to be "careful in our deliberations here," so as to "decrease the possibility of unnecessary appeals."

"Can you be more specific about the schedule please?" asked the Judge. "Do you mean one week more? A week and a half?"

"We need to confer, your Honor," said California Oaks Foundation attorney Steven Volker, referring to his associated attorneys for the City of Berkeley and the Panoramic Hills Association.

After some whispered conversations, Volker made a series of remarks about specific days that could work, others that could not, and again emphasized the time needed for adequate preparation.

"I'm not sure I understand," said the Judge. "Aren't we now down to just a few very specific issues? Why is so much time needed?"

"Your Honor," said Volker, "We see a far different reality."

(This may be his one statement that every observer can agree on.)

"We're very concerned about the seismic issues that result from the removal of the grade beam from the project," he said.

UC, in documents filed with the court last week, offered to remove (from the project) a grade beam that was to be installed under the west wall of Memorial Stadium. Because the Judge ruled that beam to be an alteration to the stadium, its continued presence in the plans would trigger the application of the Alquist-Priolo seismic safety law - and contentious issues over the comparative value of the grade beam and the stadium. (Under A-P, alterations cannot exceed 50% of the value of the stadium; the impediment is that the value of the stadium can be extensively debated and an adverse finding could have serious implications for the subsequent seismic-retrofit of the stadium itself. )

Thus UC's removal of the grade beam from the project seemed to remove the last of the contentious issues - until plaintiffs today signaled future arguments about seismic safety issues caused by doing that.

During the lengthy hearings last fall, Olson reported in court that while the engineers preferred to install the grade beam as an extra safety measure to prevent damage to the western wall while the High Performance Center site was being excavated, they also said that the beam was not required.

UC stated in documents submitted last week that the purpose of the grade beam was "cosmetic" in that it could help limit cosmetic damage to the stadium's west wall during excavation. They added that whatever small damage did occur without a grade beam could be satisfactorily repaired.

For UC, the beam is cosmetic; for the plaintiffs, it is seismic, and cannot be removed from the project.

How is a judge to decide this?

It seems likely that plaintiffs will argue that additional expert testimony is required. They will also search the entire record for every comment UC has made about the grade beam and its purposes.

It also seems likely that UC will point to statements about the grade beam made by David A. Friedman in a document filed February 22nd. Friedman is a senior principal and the president of the Board of Directors of the structural engineering firm Forell/Elsesser Engineers, Inc. - the lead structural engineering firm on the SAHPC project.

In the February document, Friedman declared:

F/E has designed a new concrete grade beam that ties together the small existing footings of CMS' western perimeter wall. This is being done to further ensure the structural integrity of CMS' existing perimeter wall foundation, particularly during installation of the temporary shoring system for the SAHPC. The intent of this grade beam is to provide "belt and suspenders" protection. The grade beam ties together the rather small existing wall footings to further limit any damage to the historic west wall that might result from shoring displacement or uneven soil settlement.

This new grade beam is (not attached to the SAHPC in any way) and does not provide any substantial improvements to the overall structural capacity or seismic resistance of the CMS.

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