COB Balks

July 25, 2008

After the public was given a chance to comment, the Berkeley City Council met in a closed session to decide whether to join Save the Oaks and the Panoramic Hill Association in their appeal. After about an hour of deliberation, the council reconvened in public and announced that as of now they would not join the appeal and would not take action for 58 days (the last day they could join).

Although the council cannot reveal who voted for what, Mayor Bates did say that there were not enough votes to join the appeal. Because Betty Olds was not present and Donna Spring recently passed away, there were only 7 council members at the session – therefore requiring 5 out of the 7 to agree to appeal. Most likely, at least Gordon Wozniak, Kriss Worthington, and Laurie Capitelli were against appeal. In fact, while I’m speculating, I would also venture to guess that the council may not have enough votes even all members were present but in order to gain concessions, the council left open the option to join the appeal at a later date.

There is still some cause for concern as Stephan Volker filed an appeal Thursday morning with the California Court of Appeals and paid the requisite $5,200 to do so. Of course, this was done hours before the council failed to join. Now, Volker must go it alone – at least for a couple months – as he seeks a new injunction. Without such an injunction the current one will dissolve in 20 days, opening the door for UC to begin construction.

A final note on the scene at the meeting last night: it was surreal, but oh so Berkeley. UC supporters were far out-numbered by oaks folks – that could be the result of a far lower unemployment rate among UC supporters. The speakers were, for the most part, full of misplaced passion, conspiracies, and illogical arguments. One recent Cal graduate even called the UC evil fascists. Another speaker said the world was coming to an end in 40 days. Now that I think about it, he may just have been referring to a certain 44 oak trees that will be removed in 40 days.

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Big Day Thursday

July 24, 2008

Today is a big day for the conference and for Cal athletics. It is Pac-10 media day where Zack Follett joins Jeff Tedford representing Cal and the media will release their predictions in the form of a poll. J.O. has released his poll and puts Cal 4th in the conference.

Also, at 5:00PM, the Berkeley City Council will meet and vote on whether to join Save the Oaks and the Panoramic Hills Association and appeal the judgment rendered on Tuesday. While the meeting is close doored, the vote is public and it looks like there may be some time for public comment. Some BCC members are even (gasp) seeking to hear all sides of the issue.


Appeals and Motion for New Trial

July 24, 2008

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.


Holding Pattern

June 23, 2008

No way will I attempt to replicate the reporting done by CGB. Frankly, it is a lot easier to pull that off with a blog that has multiple authors and community features. On the other hand, I can do what most blogs tend to do, peddle reactionary commentary to the self loathing Cal masses.

Last Wednesday, Judge Barbara Miller ruled that, for the most part, the University of California complied with CEQA and Alquist-Priolo. Most importantly, the SAHPC is a separate entity from California Memorial Stadium (CMS), the University adequately took into account biological and anthropological consequences, and the SAHPC is not located on a fault line.

Despite the University’s almost total compliance, Judge Miller did find that three elements to the SAHPC constituted alterations to CMS and the University did not provide an adequate explanation for the need to stage more non-football related events at CMS.

With regard to the alterations, the University must file a Writ of Mandamus to determine whether the valuation of the three proposed alterations exceeds 50% of the value of CMS.

The Plaintiffs allege (1) the proposed alterations will cost the University in excess of $200 million and (2) that CMS is worth nothing. The University on the other hand says the alterations will actually cost around $250 thousand and CMS is worth nearly $600 million. It’s extraordinarily unlikely that Judge Miller would disagree with the University’s alleged cost of the alterations, all they have to do is provide the price quotes they have already received from their contractors.

The debate is whether the University is worth anything at all. Common sense would say of course the University is valuable. In fact, a strong argument could be made that CMS is priceless given its placement on the National Register of Historic Places. Moreover, even Judge Miller tipped her hand by (1) discounting any application of replacement cost as a valuation method and (2) indicating that California Evidence Code (CEC) section 820 may be more appropriate. Specifically, CEC 820 measures the cost of replacing the existing improvements less whatever depreciation or obsolescence the improvements have suffered. While the former method would without question support the University’s position, the later method is not prohibitive either.

Given the strong likelihood that the University will provide an adequate valuation method showing they have complied with Alquist-Priolo, the real impediment to the project is that the injunction preventing Cal from breaking ground is still in place. As of today, although University officials remain optimistic that the injunction will be lifted any day, some commenters have pointed out that an all out appeal might result in a stay, again prolonging the project for at least another year.

The prospect of delay should strike fear into the hearts of every Cal football fan. Already the costs of delay have resulted in prolonging the embarrassment that are Cal’s facilities. The scariest aspect of delay is the potential departure of Jeff Tedford. The University’s failure to break ground may leave the ever patient Tedford with no choice but to move on to a more hospitable environment (i.e. anywhere but Cal). And, honestly, who could blame him for moving on if this project is delayed 12, 18 or 24 months?

There is however yet another glimmer of hope: the prospect of settlement. The City of Berkeley simply cannot afford a drawn out appeals process. Most likely, neither can the Panoramic Hills Association and Save the Oaks. While there is probably nothing the University can do to appease the tree sitters, they can provide carrots to the other plaintiffs (i.e. limiting the number of non-football events at CMS and giving the City money that would cover their legals costs and then some). Whatever the University chooses it has to be expedient. As important as Sandy Barbour is to Cal athletics, Jeff Tedford is exponentially more vital.