Wednesday, July 23, 2008


By Angelica Dongallo and Jacqueline Johnston

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 injunction will be lifted in seven days, when the judgment officially takes effect.  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 44 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. The petitioners can ask an appeals court to issue another injunction to halt construction. Not all of the parties may choose to appeal.

"We're interested in looking at the possibility of an appeal," said Save the Oaks spokesperson Doug Buckwald.  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 petitioners decide to pursue an appeal, the university will be able to commence construction during an appeals process if the three-judge appeals panel does not grant 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.  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 and completely consistent with our desire to provide our student athletes with safe and suitable facilities," said Dan Mogulof, UC Berkeley's executive director of public affairs.  The decision comes after last Thursday's hearing between the parties involved in the lawsuits.  Since Miller's June 18 ruling, the university took out of its construction plans proposals to build a grade beam, make alterations to Memorial Stadium and to hold additional capacity events at Memorial Stadium, which were sections of the plan Miller questioned. In an unusual move, Miller in Tuesday's ruling gave the university the option of putting those parts of its proposal back into the plans within 30 days.

Miller said in her ruling that if the university decides to add those aspects of the plan back in they must show that they are now in compliance with the California Environmental Quality Act and the Alquist-Priolo Earthquake Fault Zoning Act.  Miller also rejected the petitioners' claim that the changes to the plan the university has made since the June 18 ruling need to go back to the UC Board of Regents for approval, saying the university followed proper procedures.

Miller rejected a request from the university to impose a $1.5 million per month bond on the petitioners should they decide to appeal.  Olson said 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 the university estimated to be $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 the appeals court judges.  Mogulof said university officials will consider all of the options Miller set forth in her ruling.   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.

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