Final Arguments: Just Another Day in Court

Attorneys for both sides presented their "final arguments" on Thursday, the scheduled topic for the day, but these were not so much arguments as they were summaries of what had gone before in six previous days of hearings.

And as summaries, many of the topics raised Thursday were simple assertions of the conclusions counselors have been arguing for - but without details to back them up.

"UC has failed to follow the CEQA procedural requirements, so their certification of their EIR should be vacated and the document sent back to them for a rewrite in accordance with the law - and a recirculation of it to all affected parties," said one attorney for the plaintiffs.

"UC has fulfilled all the requirements of CEQA law," said UC's counsel Charles Olson, "so the plaintiffs complaints should be dismissed and the injunction (imposed in February this year that stopped project construction) should be lifted."

Yes, well we knew that already.

For those who might be reading about this trial for the first time, the City of Berkeley, the Panoramic Hills Association, and a coalition of parties whose focus is the oak grove west of Memorial Stadium have sued UC in an effort to delay or prevent the construction of a Student Athlete High Performance Center (the "SAHPC") just west of Memorial Stadium.

Because UC has a state imposed right to do with their property as they wish, the plaintiffs suits are technically about flaws in the Environmental Impact Report (the "EIR") that UC was required to produce under California's Environmental Quality Act ("CEQA") that describes the project environment, its objectives, its environmental impacts and possible mitigations, as well as project alternatives that might reduce the environmental effects.

The plaintiffs have also sued UC because they believe the project violates the requirements of the Alquist-Priolo (seismic safety "A-P") law, asserting that UC's proposed SAHPC is not in fact a separate structure, but rather part of a seismic retrofit to the stadium itself.

Were this to be accepted by the judge, the costs of the SAHPC would be counted against the 50%-of-value-limit imposed by A-P on upgrades to structures that sit on active fault traces - as Memorial Stadium does. Thus that finding might limit UC's ability to seismically retrofit and improve the stadium.

CEQA and A-P law became entangled in this case before the court, because if seismic issues under A-P law in fact exist, plaintiffs claimed that UC should have fully disclosed them in the EIR. UC, on the other hand, says (first) that the two areas of law are separate - that there is no requirement under either CEQA or A-P to discuss such issues in an EIR, and (second) that the SAHPC has been designed since inception to be a separate structure - so A-P issues don't apply to it (A-P only prohibits new buildings on active fault traces - which the SAHPC is not.)

The City of Berkeley's attorney, Harriet Steiner, pointed out to the court that UC has explicitly stated in their EIR that UC has "fully complied with the requirements of Alquist-Priolo", and argued that that was not true because UC had not disclosed the presence of an inferred fault beneath the SAHPC site - or analyzed its risks or impacts on public safety and emergency responses that might be required from the city.

And because the statement was not true, it misled the public, and was therefore sufficient grounds in and of itself to reject the EIR.

Most readers of reports at this web site will know that seismic testing done at the site of the SAHPC after the EIR was certified by UC has proven that no fault trace - and no inferred fault trace - exists under the SAHPC. But, unfortunately, that is irrelevant to this trial, because only the facts on record at the time the Regents approved the project in December 2006 are admissible in CEQA trials.

Drawings contained in the EIR show that a "grade beam" of concrete and steel will be added to the foundation of the stadium's west wall to reinforce the stadium to reduce the chance of damage to it when nearby earth is excavated for the SAHPC. UC has admitted this is an "alteration" to a structure that sits on the Hayward fault (permitted up to a limit by A-P) but argues that the beam is merely precautionary, is not a part of the SAHPC, and is "di minimus" when compared to the value of the stadium as a whole.

It statements made to the court, UC's counsel has said the replacement cost of the stadium had been estimated to be about $600 million, and the grade beam cost has been estimated at $250,000 - not even a tenth of a percent of the upgrade costs that would be allowed under A-P.

Plaintiffs in turn pointed to statements in the EIR that UC had not settled on a value for the stadium at the time the EIR was certified - and that statements by UC's counsel in court about costs could not be admitted as evidence because they are not in the EIR that is being contested.

They argued that any alteration to the stadium triggered A-P, and required UC to determine the value of the stadium to establish the basis for approving upgrade costs - because IF the SAHPC was deemed to be part of the stadium upgrade, its costs would have to be included in the calculation - and that might make the stadium upgrade infeasible.

And that latter is important - argued Harriet Steiner for the city of Berkeley - because CEQA does not allow an EIR to be prepared and certified for a hypothetical project - and with the complete absence of the needed information, the stadium upgrade project must be considered to be hypothetical.

UC's counsel, Charles Olson, said that because the two structures are completely separate from one another, the costs of the SAHPC need not be compared against the stadium's value and the A-P limit on stadium upgrades does not even enter into consideration.

Attorney Steiner attacked the EIR with numerous criticisms, among them a) the absence of a baseline description of the project environment, b) that it failed to disclose and analyze seismic risks, c) that no stable finite project descriptions are provided for anything other than the SAHPC (the EIR describes 7 different projects), d) the project objectives were vague and allowed UC to cavalierly reject other feasible project locations, e) that the list of project alternatives in the EIR were picked to be unreasonable, f) that other better alternatives exist but were not included, and g) that the option of retrofitting the stadium first was not included or analyzed.

And that is just a sampling of the issues she summarized.

A "draft" EIR is normally prepared, presented, and circulated to all potentially affected parties. After comments are received, a "final" EIR is written that includes those comments. In her concluding remarks, Steiner pointed out that some seismic information had been added to the final EIR that had not been seen by the public or other affected parties during the draft process. That in itself she said, "as a matter of law," requires that the EIR be recirculated so that all affected parties would see and be able to evaluate the new information.

Attorney Stephen Volker recapped arguments made in preceding days by saying that UC had a) improperly delegated authority to a sub-committee of the Regents to certify the EIR, b) failed to consider project impacts on the biological resources represented by the oak grove and potential Native American burial grounds at the site, and c) either not considered important options for the stadium project (no press box above the west wall, no permanent light towers, a smaller stadium, no increase in capacity events) or used capricious logic in rejecting those alternatives.

He asked the court to void the Regents certification of the EIR and to send it back for a complete rewrite.

Attorney Charles Olson, representing UC, agreed that the EIR might contains some minor "nicks and flaws", but suggested that that was not the standard the judge should use when considering it.

"Perfection is not required by CEQA," he repeatedly asserted. Instead, he said, courts should look to see whether a good faith effort at public disclosure had been made, and whether the Regents decision to certify the report was based on substantial evidence.

He said it is not the court's job to decide whether the Regents decision was right, or even the best in the circumstances, but rather - only - whether there was substantial evidence that led to their decision, whatever it was.

Olson noted that each of the plaintiff groups had a long-standing record of opposition to the project - or projects - in that area of campus, "but this is not about their project or what they would like the project to be," he said. "This is about the University's project and what they want it to be."

He argued that the law and case history indicated the judge should give great deference to the University and its decisions. And most importantly, he said, several rulings have said that courts should not allow CEQA to be subverted into an instrument of delay and obstruction.

Addressing A-P issues, Olson repeated that the SAHPC is not an alteration of or addition to the stadium, and that any engineer or architect who proposed connecting the two structures in any substantial way in a seismically active area would lose his license and livelihood. He said it would not be appropriate for the court to substitute its judgment for that of licensed architects and engineers.

And while this may have no bearing on the legal issues at trial, Olson expressed his view that UC has a sterling reputation for seismic safety in managing its buildings, and that suggestions to the contrary by plaintiffs attorneys were "frankly insulting".

He accused plaintiffs' attorneys of deliberately trying to confuse the court by entangling CEQA and A-P law, mixing the provisions of one with the other. He asserted that because they are separate statutes, an EIR could be prepared before, during, or after any actions required by A-P were undertaken. He also noted that while A-P directly affects what UC can or cannot do in seismic zones, it requires no public involvement in the process, and no reports to anyone other than the state geologist.

On many of the points raised by plaintiffs on this day of summaries, Olson declined to comment again in detail, instead pointing to the record of previous days where responses had already been made.

He did correct assertions that the oak trees were "ancient", disputed flimsy evidence of Native American burials at the project site, but acknowledged that there was some "wildlife" in the oak trees now - wildlife that had not been present when the EIR was developed.

Olson spoke about the central role that Memorial Stadium has played in campus life since its construction in 1923, and that the University therefore had a legitimate basis for strongly preferring project alternatives at that specific location. In saying this, Olson was again arguing for the court deference to UC's project decisions that has been established by a series of other CEQA cases.

He asked the court to not be distracted by minutia, but to instead keep the key project objectives in mind: - moving stadium residents to safe facility - doing the stadium seismic retrofit to protect football fans and other stadium visitors - providing excellent athletic facilities to both male and female athletes - enhancing game day facilities and experience - complying with current ADA requirements - improving emergency access to the area - and enhancing Memorial Stadium as a central gathering place in campus life.

Olson pointed out that the nine-month delay in the project had already caused great harm to the University and its community. "This is our project. It is not up to the City of Berkeley to design University projects," he said.

He reminded the court that there were 34 houses on Panoramic Hill when the stadium was built - and that the 120-150 additional homes there now were built with full knowledge of the existence of the stadium. Olson acknowledged that access to hill homes was indeed bad - but noted that it has been bad for the 84 years since the stadium was built and no steps have been taken by the residents or the cities of Oakland or Berkeley in that time to improve the access. In saying this, Olson was addressing a key PHA and Berkeley complaint that stadium project and activities made the access problems worse, particularly if an emergency occurred.

Olson requested that the plaintiff's complaints be dismissed and the stay (preventing project implementation) be lifted.

====

After the hearings concluded, we asked Olsen what might happen if the judge decided that a few of the many EIR issues raised by plaintiffs were valid - even if most were not.

He said he hoped and believed that the judge would rule in UC's favor on all the issues, but acknowledged that historically some CEQA lawsuits have resulted in rulings by judges that particular items in an EIR had to be improved.

He said that if that happened, UC could follow the judge's instructions to amend those items - and to hold public hearings about the changes if necessary, and to then recertify the EIR.

We asked whether - in that instance - it would be harder for the plaintiffs to file or support a subsequent lawsuit. Olson strongly agreed, but said he fully expected plaintiffs to sue again on whatever grounds could be developed.

Attorney Michael Lozeau, representing the Panoramic Hills Association, has been an effective presenter. He has been clear, forceful, and focused in his remarks.

Harriet Steiner, representing the City of Berkeley was perhaps the most restrained presenter of the three plaintiffs - her comments were generally briefer than the others and focused on the issues of most interest to the city.

Stephen Volker, representing the oak tree group, was the most interesting attorney in court due to several attempts at rhetorical flourishes that - even if overdone - helped relieve the boredom. Entertainment, however, was probably not a virtue in this setting, where hard arguments based on years of law will almost certainly win the day.

Volker's last attempted flourish - indeed the penultimate comments from an attorney on Thursday, caused a few restrained titters from plaintiff's supporters, but earned only stone-faced glares from the UC contingent who did not think his efforts at courtroom drama were worth even acknowledging.

In his last comment, Volker tried to disparage UC's plan to replace every "ancient" oak tree with three saplings (deliberately ignoring UC's actual offer).

He tried to make light of UC's offer by suggesting that he would himself replace the trees with three-year-old saplings ... on the day when Cal put three-year-old football players on the field.

The hearings ended promptly thereafter with an agreement between the judge and the various counselors that possible "court orders", drafted by the various parties, would be submitted to the court by October 26th, two weeks hence.

A decision can be expected only in the weeks or months thereafter.


©Copyright 2007, BearInsider.com and Scout.com. All rights reserved.

If you haven't done so already, subscribe to The Bear Insider so you can participate in this active online Cal community and get access to the members-only content from the nation-wide Scout.com network.

Bear Insider staff writers visit the Insider discussion board regularly, and are available to discuss questions you may have about this article and Cal Athletics.


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And as summaries, many of the topics raised Thursday were simple assertions of the conclusions counselors have been arguing for - but without details to back them up.

\"UC has failed to follow the CEQA procedural requirements, so their certification of their EIR should be vacated and the document sent back to them for a rewrite in accordance with the law - and a recirculation of it to all affected parties,\" said one attorney for the plaintiffs.

\"UC has fulfilled all the requirements of CEQA law,\" said UC's counsel Charles Olson, \"so the plaintiffs complaints should be dismissed and the injunction (imposed in February this year that stopped project construction) should be lifted.\"

Yes, well we knew that already.

For those who might be reading about this trial for the first time, the City of Berkeley, the Panoramic Hills Association, and a coalition of parties whose focus is the oak grove west of Memorial Stadium have sued UC in an effort to delay or prevent the construction of a Student Athlete High Performance Center (the \"SAHPC\") just west of Memorial Stadium.

Because UC has a state imposed right to do with their property as they wish, the plaintiffs suits are technically about flaws in the Environmental Impact Report (the \"EIR\") that UC was required to produce under California's Environmental Quality Act (\"CEQA\") that describes the project environment, its objectives, its environmental impacts and possible mitigations, as well as project alternatives that might reduce the environmental effects.

The plaintiffs have also sued UC because they believe the project violates the requirements of the Alquist-Priolo (seismic safety \"A-P\") law, asserting that UC's proposed SAHPC is not in fact a separate structure, but rather part of a seismic retrofit to the stadium itself.

Were this to be accepted by the judge, the costs of the SAHPC would be counted against the 50%-of-value-limit imposed by A-P on upgrades to structures that sit on active fault traces - as Memorial Stadium does. Thus that finding might limit UC's ability to seismically retrofit and improve the stadium.

CEQA and A-P law became entangled in this case before the court, because if seismic issues under A-P law in fact exist, plaintiffs claimed that UC should have fully disclosed them in the EIR. UC, on the other hand, says (first) that the two areas of law are separate - that there is no requirement under either CEQA or A-P to discuss such issues in an EIR, and (second) that the SAHPC has been designed since inception to be a separate structure - so A-P issues don't apply to it (A-P only prohibits new buildings on active fault traces - which the SAHPC is not.)

The City of Berkeley's attorney, Harriet Steiner, pointed out to the court that UC has explicitly stated in their EIR that UC has \"fully complied with the requirements of Alquist-Priolo\", and argued that that was not true because UC had not disclosed the presence of an inferred fault beneath the SAHPC site - or analyzed its risks or impacts on public safety and emergency responses that might be required from the city.

And because the statement was not true, it misled the public, and was therefore sufficient grounds in and of itself to reject the EIR.

Most readers of reports at this web site will know that seismic testing done at the site of the SAHPC after the EIR was certified by UC has proven that no fault trace - and no inferred fault trace - exists under the SAHPC. But, unfortunately, that is irrelevant to this trial, because only the facts on record at the time the Regents approved the project in December 2006 are admissible in CEQA trials.

Drawings contained in the EIR show that a \"grade beam\" of concrete and steel will be added to the foundation of the stadium's west wall to reinforce the stadium to reduce the chance of damage to it when nearby earth is excavated for the SAHPC. UC has admitted this is an \"alteration\" to a structure that sits on the Hayward fault (permitted up to a limit by A-P) but argues that the beam is merely precautionary, is not a part of the SAHPC, and is \"di minimus\" when compared to the value of the stadium as a whole.

It statements made to the court, UC's counsel has said the replacement cost of the stadium had been estimated to be about $600 million, and the grade beam cost has been estimated at $250,000 - not even a tenth of a percent of the upgrade costs that would be allowed under A-P.

Plaintiffs in turn pointed to statements in the EIR that UC had not settled on a value for the stadium at the time the EIR was certified - and that statements by UC's counsel in court about costs could not be admitted as evidence because they are not in the EIR that is being contested.

They argued that any alteration to the stadium triggered A-P, and required UC to determine the value of the stadium to establish the basis for approving upgrade costs - because IF the SAHPC was deemed to be part of the stadium upgrade, its costs would have to be included in the calculation - and that might make the stadium upgrade infeasible.

And that latter is important - argued Harriet Steiner for the city of Berkeley - because CEQA does not allow an EIR to be prepared and certified for a hypothetical project - and with the complete absence of the needed information, the stadium upgrade project must be considered to be hypothetical.

UC's counsel, Charles Olson, said that because the two structures are completely separate from one another, the costs of the SAHPC need not be compared against the stadium's value and the A-P limit on stadium upgrades does not even enter into consideration.

Attorney Steiner attacked the EIR with numerous criticisms, among them a) the absence of a baseline description of the project environment, b) that it failed to disclose and analyze seismic risks, c) that no stable finite project descriptions are provided for anything other than the SAHPC (the EIR describes 7 different projects), d) the project objectives were vague and allowed UC to cavalierly reject other feasible project locations, e) that the list of project alternatives in the EIR were picked to be unreasonable, f) that other better alternatives exist but were not included, and g) that the option of retrofitting the stadium first was not included or analyzed.

And that is just a sampling of the issues she summarized.

A \"draft\" EIR is normally prepared, presented, and circulated to all potentially affected parties. After comments are received, a \"final\" EIR is written that includes those comments. In her concluding remarks, Steiner pointed out that some seismic information had been added to the final EIR that had not been seen by the public or other affected parties during the draft process. That in itself she said, \"as a matter of law,\" requires that the EIR be recirculated so that all affected parties would see and be able to evaluate the new information.

Attorney Stephen Volker recapped arguments made in preceding days by saying that UC had a) improperly delegated authority to a sub-committee of the Regents to certify the EIR, b) failed to consider project impacts on the biological resources represented by the oak grove and potential Native American burial grounds at the site, and c) either not considered important options for the stadium project (no press box above the west wall, no permanent light towers, a smaller stadium, no increase in capacity events) or used capricious logic in rejecting those alternatives.

He asked the court to void the Regents certification of the EIR and to send it back for a complete rewrite.

Attorney Charles Olson, representing UC, agreed that the EIR might contains some minor \"nicks and flaws\", but suggested that that was not the standard the judge should use when considering it.

\"Perfection is not required by CEQA,\" he repeatedly asserted. Instead, he said, courts should look to see whether a good faith effort at public disclosure had been made, and whether the Regents decision to certify the report was based on substantial evidence.

He said it is not the court's job to decide whether the Regents decision was right, or even the best in the circumstances, but rather - only - whether there was substantial evidence that led to their decision, whatever it was.

Olson noted that each of the plaintiff groups had a long-standing record of opposition to the project - or projects - in that area of campus, \"but this is not about their project or what they would like the project to be,\" he said. \"This is about the University's project and what they want it to be.\"

He argued that the law and case history indicated the judge should give great deference to the University and its decisions. And most importantly, he said, several rulings have said that courts should not allow CEQA to be subverted into an instrument of delay and obstruction.

Addressing A-P issues, Olson repeated that the SAHPC is not an alteration of or addition to the stadium, and that any engineer or architect who proposed connecting the two structures in any substantial way in a seismically active area would lose his license and livelihood. He said it would not be appropriate for the court to substitute its judgment for that of licensed architects and engineers.

And while this may have no bearing on the legal issues at trial, Olson expressed his view that UC has a sterling reputation for seismic safety in managing its buildings, and that suggestions to the contrary by plaintiffs attorneys were \"frankly insulting\".

He accused plaintiffs' attorneys of deliberately trying to confuse the court by entangling CEQA and A-P law, mixing the provisions of one with the other. He asserted that because they are separate statutes, an EIR could be prepared before, during, or after any actions required by A-P were undertaken. He also noted that while A-P directly affects what UC can or cannot do in seismic zones, it requires no public involvement in the process, and no reports to anyone other than the state geologist.

On many of the points raised by plaintiffs on this day of summaries, Olson declined to comment again in detail, instead pointing to the record of previous days where responses had already been made.

He did correct assertions that the oak trees were \"ancient\", disputed flimsy evidence of Native American burials at the project site, but acknowledged that there was some \"wildlife\" in the oak trees now - wildlife that had not been present when the EIR was developed.

Olson spoke about the central role that Memorial Stadium has played in campus life since its construction in 1923, and that the University therefore had a legitimate basis for strongly preferring project alternatives at that specific location. In saying this, Olson was again arguing for the court deference to UC's project decisions that has been established by a series of other CEQA cases.

He asked the court to not be distracted by minutia, but to instead keep the key project objectives in mind: - moving stadium residents to safe facility - doing the stadium seismic retrofit to protect football fans and other stadium visitors - providing excellent athletic facilities to both male and female athletes - enhancing game day facilities and experience - complying with current ADA requirements - improving emergency access to the area - and enhancing Memorial Stadium as a central gathering place in campus life.

Olson pointed out that the nine-month delay in the project had already caused great harm to the University and its community. \"This is our project. It is not up to the City of Berkeley to design University projects,\" he said.

He reminded the court that there were 34 houses on Panoramic Hill when the stadium was built - and that the 120-150 additional homes there now were built with full knowledge of the existence of the stadium. Olson acknowledged that access to hill homes was indeed bad - but noted that it has been bad for the 84 years since the stadium was built and no steps have been taken by the residents or the cities of Oakland or Berkeley in that time to improve the access. In saying this, Olson was addressing a key PHA and Berkeley complaint that stadium project and activities made the access problems worse, particularly if an emergency occurred.

Olson requested that the plaintiff's complaints be dismissed and the stay (preventing project implementation) be lifted.

====

After the hearings concluded, we asked Olsen what might happen if the judge decided that a few of the many EIR issues raised by plaintiffs were valid - even if most were not.

He said he hoped and believed that the judge would rule in UC's favor on all the issues, but acknowledged that historically some CEQA lawsuits have resulted in rulings by judges that particular items in an EIR had to be improved.

He said that if that happened, UC could follow the judge's instructions to amend those items - and to hold public hearings about the changes if necessary, and to then recertify the EIR.

We asked whether - in that instance - it would be harder for the plaintiffs to file or support a subsequent lawsuit. Olson strongly agreed, but said he fully expected plaintiffs to sue again on whatever grounds could be developed.

Attorney Michael Lozeau, representing the Panoramic Hills Association, has been an effective presenter. He has been clear, forceful, and focused in his remarks.

Harriet Steiner, representing the City of Berkeley was perhaps the most restrained presenter of the three plaintiffs - her comments were generally briefer than the others and focused on the issues of most interest to the city.

Stephen Volker, representing the oak tree group, was the most interesting attorney in court due to several attempts at rhetorical flourishes that - even if overdone - helped relieve the boredom. Entertainment, however, was probably not a virtue in this setting, where hard arguments based on years of law will almost certainly win the day.

Volker's last attempted flourish - indeed the penultimate comments from an attorney on Thursday, caused a few restrained titters from plaintiff's supporters, but earned only stone-faced glares from the UC contingent who did not think his efforts at courtroom drama were worth even acknowledging.

In his last comment, Volker tried to disparage UC's plan to replace every \"ancient\" oak tree with three saplings (deliberately ignoring UC's actual offer).

He tried to make light of UC's offer by suggesting that he would himself replace the trees with three-year-old saplings ... on the day when Cal put three-year-old football players on the field.

The hearings ended promptly thereafter with an agreement between the judge and the various counselors that possible \"court orders\", drafted by the various parties, would be submitted to the court by October 26th, two weeks hence.

A decision can be expected only in the weeks or months thereafter.


©Copyright 2007, BearInsider.com and Scout.com. All rights reserved.

If you haven't done so already, subscribe to The Bear Insider so you can participate in this active online Cal community and get access to the members-only content from the nation-wide Scout.com network.

Bear Insider staff writers visit the Insider discussion board regularly, and are available to discuss questions you may have about this article and Cal Athletics.

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