On Tuesday, Judge Barbara Miller entered a judgment in favor of Cal by declaring UC the primary prevailing party. Judge Miller also ruled Save the Oaks, the Panoramic Hills Association and the City of Berkeley must pay all of UC’s litigation costs. As for attorney’s fees, UC would have to file an additional motion. In addition, and most importantly, Judge Miller declared the injunction dead and UC could begin construction on July 29 if no appeal was filed.
Therein lies the rub, whether the petitioners will appeal and whether they could prove to the Court of Appeals a substantial likelihood of success at the appellate level – doing so would reinstate or stay the injunction.
First, if an appeal is filed, the injunction is automatically stayed 20 days. After that 20 day stay, unless the Court of Appeals an additional stay, the injunction will dissolve.
Second, to go forward with an appeal, the Save the Oaks and Panoramic Hills Association need the City, and their resources, to go forward. Reason being, to pursue an appeal, the petitioners must cough up a substantial bond that could cost them up to $27 million dollars if they were to lose the appeal and up to $2.7 million just to fund the bonds during appeal.
Third, even if the City joins in the appeal, that does not mean the appeal cannot progress without an injunction in place. If UC were to proceed with construction during appeal they would have to pay for any renovations deemed necessary if the appeal is successful.
For the City to join the appeal it would take a monumental amount of hubris and complete and total fiscal irresponsibility. So, obviously it is possible. However, already the City is over budget with regard to litigation costs and joining an appeal would only exacerbate that problem. Moreover, there is the issue of why the City is involved in the first place. If their real concern is compliance with Alquist-Priolo and CEQA, Judge Miller, after 18 months of deliberation, has already ruled that UC pretty much complied. And, the portions that were deemed not in compliance were removed from the project. What does the City gain from moving forward with this appeal beyond obstruction for the sake of obstruction?
Surely concerned that the City cannot join in an appeal, Save the Oaks attorney Stephan Volker filed a Motion to Vacate Judgment and For New Trial. Basically, Volker claims that the shoring and tieback systems implemented during the excavation for the SAHPC constitutes an alteration and, therefore, because Volker believes this is in plain error, a new trial is warranted.
The problem with Volker’s argument is that in no way could the shoring and tieback systems constitute alterations under CEQA. Unlike the grade beam, these systems are merely temporary safety measures and not permanent physical alterations to California Memorial Stadium. Moreover, even if they were deemed alterations it is almost impossible to imagine these systems exceeding 50% of the Stadium’s value.
Volker also complains that the removal of the grade beam from the project requires an Alquist-Priolo determination. Judge Miller on the other hand has already stated that in the 40,000 pages submitted by UC the issue has been addressed and its removal is within the purview of UC.
Going forward, there are two scenarios that could play themselves out: (1) the City joins the appeal, the injunction is stayed automatically and the motion for new trial is heard on August 12; or (2) the City does not join, an appeal is filed, the injunction is automatically is stayed and the motion is heard on August 12. If the latter occurs, August 12 really is the end date because without the City, the appeal cannot continue. And, either way, Judge Miller is unlikely to grant the motion for new trial.
In the end, the most likely outcome is that one way or another the injunction will dissolve after the automatic 20 day stay and construction will begin soon thereafter. The only question is whether the City will join the Save the Oaks Foundation and Panoramic Hills Association in an appeal.
