Final Arguments: Berkeley vs. the SAHPC

The March 20th final hearing at the Alameda County Superior Court in Hayward was not anti-climactic, it was non-climactic. There were no decisions, no Perry Mason moments. Instead observers mainly heard recaps of the expert testimony submitted by the two sides in previous weeks. Nevertheless, fascinating hints of future possibilities were heard.

The hearing began at 1 p.m. and ended at 3:30 p.m. with thanks from Judge Barbara Miller for the participation of all parties - and with her promise to publish a decision before the statutory limit of 90 days hence.

That fixes late June as an outer limit for a result; sources say a decision is expected within 30 days.

Those in attendance included Dan Mogulof (Cal Media Relations), Assistant Athletic Director Bob Milano (Capital Planning), and Ed Denton (Chief Building Official for the Berkeley campus).

Former Berkeley Mayor Shirley Dean was also there, seen to be nodding in agreement with plaintiffs' arguments. Neighborhood activist Doug Buchwald and "Ayr", a member of the ground support crew for the tree-sitters were there representing the oak grove protesters. The latter two have been frequently seen in the news reports about the yearlong protest.

On February 20th both sides filed expert testimony that addressed a specific topic the judge requested in her order of December 10th - whether the new athletics center would be structurally independent from the stadium or an upgrade to it.

On February 29th both sides filed rebuttals to the testimony submitted by the other.

(We have previously reported on the expert testimony and rebuttals here, here, here, and here).

Thursday's hearing gave each side a final opportunity to argue their case in front of the judge, to rebut the arguments made by the opponents, and for the judge to ask questions of both.

Because UC's proposed athletics center was designed from the beginning to be structurally independent of the stadium, UC's experts had an easy time of it and had presented massive and authoritative expert testimony to back that up. The weight of UC's testimony left plaintiffs with little choice but to argue mainly that UC's expert testimony contained impermissible new evidence (not allowed according to court precedents), and that it should be excluded from the record.

Since the plaintiffs' experts could say little to demonstrate structural dependence, their affirmative arguments were largely confined to asserting that the judge had asked the wrong question, that she should instead have focused on the plain-word-reading of Alquist-Priolo (A-P), California's seismic safety law that is at the heart of the issue at this hearing.

And those assertions exposed plaintiffs to charges by UC attorneys that their presentation was not responsive to the judge's request - and should therefore be excluded.

Thus Thursday's discussions were more about what should or should not be allowed in court than about the actual merits of the issues.

When the argument again surfaced that plain-word-reading of A-P should govern, the judge made some interesting and perhaps revealing comments. First she acknowledged that she had initially been inclined to accept the plain-meaning argument, but had since come to question why the dictionary meaning was appropriate. She said that a law has to be understood in the context of its whole statutory framework, and cited a number of words and phrases in the A-P statute that didn't have accurate meanings that could be found in a dictionary, indeed words that could only have meanings as defined in building codes. Thus she posed the idea for discussion that A-P implicitly, if not explicitly, depended for its implementation on building codes.

Plaintiffs, as might be expected, differed with this interpretation, arguing that words like "additions" and "alterations" are not complicated, and don't depend on building codes - and that the law was not written by building code officials.

Nevertheless, the judge seemed to have revealed a shift in her focus away from the plain-word-reading theory and toward the "as-implemented-by-the-building-code" interpretation that UC favors.

When plaintiffs reiterated an argument heard earlier that the building code in existence when A-P was adopted should be used to understand legislator's intent when drafting A-P, Judge Miller acknowledged that there is a "clash between the real world and the world of law".

"Why should we go back to old codes when we have to deal with the real world of construction as it exists today?" she rhetorically asked.

Providing further context Judge Miller went on to say, "It is not the responsibility of this court to weigh the merits of the arguments on the two sides. It is instead our responsibility to determine whether there is substantial evidence in the record to support the decisions made by UC."

The plaintiffs did their best with the facts and theories available to them, arguing that A-P was written to improve public safety in seismic zones, and that if UC was allowed to substantially increase public activities at and near the stadium by relying upon "mere" structural independence, the whole purpose of A-P could be defeated.

They implied (but didn't explicitly say) that UC (and others affected by A-P) could rely upon technical structural independence to build a series of new buildings just inches away from seismically vulnerable structures so as to be able to dramatically expand uses or functions of those structures without regard to A-P limits on upgrades.

Using this line of argument, they insisted that the new athletic center could not be divorced from the stadium upgrade. They see the new center as a functional addition to the stadium - whatever the technicalities may be - and that therefore UC should have evaluated the A-P limits on upgrades and documented them in the public record, steps UC has not taken.

Lastly, plaintiffs argued that UC's experts had impermissibly introduced new evidence into the record under the guise of commenting on what was already there, for example by including declarations about changes to the documents that occurred after the administrative record documenting the whole case was closed. (This hearing is about what is in the administrative record, not about any subsequent facts.)

For example, the drawings in the record show a Memorial Stadium stairway that is to be demolished, a rather clear alteration to the stadium that plaintiffs argue unequivocally makes A-P applicable to the project. In UC's expert testimony filed February 22, one of the experts said that changes had occurred since the record closed, and that now the stairway would just be closed off. Plaintiffs objected strenuously to comments like these, saying that they are not only impermissible new evidence, but that they also smelled of UC attempts to duck the issues by making changes after the fact.

This led to an interesting exchange between the judge and UC attorneys who explained that only final construction drawings are final - and that they are still not complete even now. "Developing construction drawings is a highly iterative process," they said, and further noted that often only preliminary design documents are available at the time the Regents approve a project and when an EIR document is finished and certified.

The judge was clearly interested in this, particularly because these comments infuriated plaintiffs who were in effect being told they had based their case on inaccurate or incomplete drawings. As Charles Olson, attorney for UC, rather dryly explained, "We didn't choose the date when plaintiffs filed their suit, your honor. If they had just waited until the construction drawings were finished and a building permit issued, they would then have had final and accurate drawings to work with."

Again looking at the primary reason for this hearing, attorneys for UC clearly had the judge's request leaning on their side of the balance beam: structural independence was the topic she wanted addressed, and plaintiffs just barely did that.

The centrality of the structural independence issue was highlighted in several conversations between the judge and the various attorneys. Three or four times the judge prefaced questions by asking (paraphrasing here), "Assuming I decide that the two buildings are structurally independent, what would you then say about X, or Y, or Z?" using that question format to examine various follow-on issues.

At least twice plaintiffs responded by saying that structural independence should not be the issue, only to have the judge insist on getting answers to her questions.

For example, Judge Miller asked plaintiffs if the buildings "touched" each other but were in fact structurally independent, would the center then be an upgrade? Or later asking (in effect) - If the two buildings were 6 inches apart, not touching anywhere and structurally independent, would the center then be an upgrade?

Clearly she was asking for a distance at which the center not be an upgrade to the stadium. (Editorial comment: And of course if not at three feet or thirty feet, then why not three inches?) Plaintiffs had no choice but to continue to maintain that the center was an upgrade at the suggested locations.

To readers of these of articles, it may already be apparent that Judge Miller far more actively questioned attorneys on Thursday than at the earlier hearings. Several times she simply interrupted attorneys as they were developing arguments to redirect them to questions she wanted answered. This was easily the most entertaining of the several sessions in this case.

In yet another example, in response to plaintiffs' complaints that UC had not valued the stadium in order to compute the upgrade limits imposed by A-P, the judge asked - yes, but if the two buildings are separate, why should the question of stadium value come into play at all?

You could almost see Cal faces in the crowd straining to remain stoic.

The judge asked several leading questions about how a court should handle a situation where there is no settled case law to provide guidance, when it also has to deal with a 36-year-old law (A-P) where building code standards and understanding of seismic risk has evolved greatly over the intervening years. She did not get creative answers in response.

UC, for its part, suggested that she simply allow the current California Building Code to govern, because the new center is not on a fault and is structurally independent of the stadium, just like every other building in similar circumstances that the code would apply to.

Plaintiffs, on the other hand, repeated their by-well-now-established arguments that because a) the new center would both cause and require modifications to the stadium, b) there is nothing in the A-P statute about building codes, c) the center would clearly expand the functional area of the stadium (the plaza, locker rooms, meeting rooms, training facilities, etc.), and d) structural independence is nowhere mentioned in the A-P statute - that the judge had no choice but to go back to a plain-language reading of A-P and halt the project.

Judge Miller also posed a hypothetical question about a possible format for a ruling, looking for a way to both deal with what is in the record, and with the knowledge that the project has evolved subsequent to the date the record closed. Again paraphrasing, she asked, "What if I were to rule that the project could proceed subject to the defects in the record being cleared up in the actual implementation?"

Immediately followed a brief flurry of comments where both sides seemed to agree that the "defects" consisted of just four items: the stairway, the grade beam, the routing of telecommunication cables under the new center to a modified facility at the stadium, and one other where my notes are unclear.

There was no further comment on her hypothetical, but it does raise the possibility that the much contested addition and alterations to the stadium (that would trigger A-P) could be removed from contention by judicial fiat.

UC attorney Olson noted that three of the four have already been removed from the project but that the grade beam remains. Since the grade beam is clearly an addition to and an alteration of the stadium, however minor in relation to the stadium's total value it might be, the judge will have to wrestle with that one.

At one provocative moment during Oak Foundation attorney Stephen Volker's final rebuttal, while he was commenting on "extra-record" evidence introduced by UC experts, he added a passing comment that the court had itself "improperly" added extra-record evidence by its site visit to Memorial Stadium and other alternate locations.

Observers knowledgeable about CEQA cases have independently agreed that the site visit was improper, and possibly constituted reversible error. It thus seems possible that Volker intended this comment to begin building a basis for an appeal should this court's decision go against his side. That's (maybe) a bit of bad news.

The good news? The same observers believe that this last-minute focus on A-P issues - where UC seems to have established a winning hand - might in turn indicate a favorable decision for UC on the CEQA issues that were argued earlier. This seems possible because if fatal faults been found in the CEQA parts of the case, those could already have been ruled upon and the project sent back to UC for reconsideration and new documentation.

So as to not to trigger the wrath of the woofing gods, it is probably wise to say only that there is a chance Cal fans will see a favorable ruling in a matter of weeks.


©Copyright 2008, 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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","mobileBody":"

The hearing began at 1 p.m. and ended at 3:30 p.m. with thanks from Judge Barbara Miller for the participation of all parties - and with her promise to publish a decision before the statutory limit of 90 days hence.

That fixes late June as an outer limit for a result; sources say a decision is expected within 30 days.

Those in attendance included Dan Mogulof (Cal Media Relations), Assistant Athletic Director Bob Milano (Capital Planning), and Ed Denton (Chief Building Official for the Berkeley campus).

Former Berkeley Mayor Shirley Dean was also there, seen to be nodding in agreement with plaintiffs' arguments. Neighborhood activist Doug Buchwald and \"Ayr\", a member of the ground support crew for the tree-sitters were there representing the oak grove protesters. The latter two have been frequently seen in the news reports about the yearlong protest.

On February 20th both sides filed expert testimony that addressed a specific topic the judge requested in her order of December 10th - whether the new athletics center would be structurally independent from the stadium or an upgrade to it.

On February 29th both sides filed rebuttals to the testimony submitted by the other.

(We have previously reported on the expert testimony and rebuttals here, here, here, and here).

Thursday's hearing gave each side a final opportunity to argue their case in front of the judge, to rebut the arguments made by the opponents, and for the judge to ask questions of both.

Because UC's proposed athletics center was designed from the beginning to be structurally independent of the stadium, UC's experts had an easy time of it and had presented massive and authoritative expert testimony to back that up. The weight of UC's testimony left plaintiffs with little choice but to argue mainly that UC's expert testimony contained impermissible new evidence (not allowed according to court precedents), and that it should be excluded from the record.

Since the plaintiffs' experts could say little to demonstrate structural dependence, their affirmative arguments were largely confined to asserting that the judge had asked the wrong question, that she should instead have focused on the plain-word-reading of Alquist-Priolo (A-P), California's seismic safety law that is at the heart of the issue at this hearing.

And those assertions exposed plaintiffs to charges by UC attorneys that their presentation was not responsive to the judge's request - and should therefore be excluded.

Thus Thursday's discussions were more about what should or should not be allowed in court than about the actual merits of the issues.

When the argument again surfaced that plain-word-reading of A-P should govern, the judge made some interesting and perhaps revealing comments. First she acknowledged that she had initially been inclined to accept the plain-meaning argument, but had since come to question why the dictionary meaning was appropriate. She said that a law has to be understood in the context of its whole statutory framework, and cited a number of words and phrases in the A-P statute that didn't have accurate meanings that could be found in a dictionary, indeed words that could only have meanings as defined in building codes. Thus she posed the idea for discussion that A-P implicitly, if not explicitly, depended for its implementation on building codes.

Plaintiffs, as might be expected, differed with this interpretation, arguing that words like \"additions\" and \"alterations\" are not complicated, and don't depend on building codes - and that the law was not written by building code officials.

Nevertheless, the judge seemed to have revealed a shift in her focus away from the plain-word-reading theory and toward the \"as-implemented-by-the-building-code\" interpretation that UC favors.

When plaintiffs reiterated an argument heard earlier that the building code in existence when A-P was adopted should be used to understand legislator's intent when drafting A-P, Judge Miller acknowledged that there is a \"clash between the real world and the world of law\".

\"Why should we go back to old codes when we have to deal with the real world of construction as it exists today?\" she rhetorically asked.

Providing further context Judge Miller went on to say, \"It is not the responsibility of this court to weigh the merits of the arguments on the two sides. It is instead our responsibility to determine whether there is substantial evidence in the record to support the decisions made by UC.\"

The plaintiffs did their best with the facts and theories available to them, arguing that A-P was written to improve public safety in seismic zones, and that if UC was allowed to substantially increase public activities at and near the stadium by relying upon \"mere\" structural independence, the whole purpose of A-P could be defeated.

They implied (but didn't explicitly say) that UC (and others affected by A-P) could rely upon technical structural independence to build a series of new buildings just inches away from seismically vulnerable structures so as to be able to dramatically expand uses or functions of those structures without regard to A-P limits on upgrades.

Using this line of argument, they insisted that the new athletic center could not be divorced from the stadium upgrade. They see the new center as a functional addition to the stadium - whatever the technicalities may be - and that therefore UC should have evaluated the A-P limits on upgrades and documented them in the public record, steps UC has not taken.

Lastly, plaintiffs argued that UC's experts had impermissibly introduced new evidence into the record under the guise of commenting on what was already there, for example by including declarations about changes to the documents that occurred after the administrative record documenting the whole case was closed. (This hearing is about what is in the administrative record, not about any subsequent facts.)

For example, the drawings in the record show a Memorial Stadium stairway that is to be demolished, a rather clear alteration to the stadium that plaintiffs argue unequivocally makes A-P applicable to the project. In UC's expert testimony filed February 22, one of the experts said that changes had occurred since the record closed, and that now the stairway would just be closed off. Plaintiffs objected strenuously to comments like these, saying that they are not only impermissible new evidence, but that they also smelled of UC attempts to duck the issues by making changes after the fact.

This led to an interesting exchange between the judge and UC attorneys who explained that only final construction drawings are final - and that they are still not complete even now. \"Developing construction drawings is a highly iterative process,\" they said, and further noted that often only preliminary design documents are available at the time the Regents approve a project and when an EIR document is finished and certified.

The judge was clearly interested in this, particularly because these comments infuriated plaintiffs who were in effect being told they had based their case on inaccurate or incomplete drawings. As Charles Olson, attorney for UC, rather dryly explained, \"We didn't choose the date when plaintiffs filed their suit, your honor. If they had just waited until the construction drawings were finished and a building permit issued, they would then have had final and accurate drawings to work with.\"

Again looking at the primary reason for this hearing, attorneys for UC clearly had the judge's request leaning on their side of the balance beam: structural independence was the topic she wanted addressed, and plaintiffs just barely did that.

The centrality of the structural independence issue was highlighted in several conversations between the judge and the various attorneys. Three or four times the judge prefaced questions by asking (paraphrasing here), \"Assuming I decide that the two buildings are structurally independent, what would you then say about X, or Y, or Z?\" using that question format to examine various follow-on issues.

At least twice plaintiffs responded by saying that structural independence should not be the issue, only to have the judge insist on getting answers to her questions.

For example, Judge Miller asked plaintiffs if the buildings \"touched\" each other but were in fact structurally independent, would the center then be an upgrade? Or later asking (in effect) - If the two buildings were 6 inches apart, not touching anywhere and structurally independent, would the center then be an upgrade?

Clearly she was asking for a distance at which the center not be an upgrade to the stadium. (Editorial comment: And of course if not at three feet or thirty feet, then why not three inches?) Plaintiffs had no choice but to continue to maintain that the center was an upgrade at the suggested locations.

To readers of these of articles, it may already be apparent that Judge Miller far more actively questioned attorneys on Thursday than at the earlier hearings. Several times she simply interrupted attorneys as they were developing arguments to redirect them to questions she wanted answered. This was easily the most entertaining of the several sessions in this case.

In yet another example, in response to plaintiffs' complaints that UC had not valued the stadium in order to compute the upgrade limits imposed by A-P, the judge asked - yes, but if the two buildings are separate, why should the question of stadium value come into play at all?

You could almost see Cal faces in the crowd straining to remain stoic.

The judge asked several leading questions about how a court should handle a situation where there is no settled case law to provide guidance, when it also has to deal with a 36-year-old law (A-P) where building code standards and understanding of seismic risk has evolved greatly over the intervening years. She did not get creative answers in response.

UC, for its part, suggested that she simply allow the current California Building Code to govern, because the new center is not on a fault and is structurally independent of the stadium, just like every other building in similar circumstances that the code would apply to.

Plaintiffs, on the other hand, repeated their by-well-now-established arguments that because a) the new center would both cause and require modifications to the stadium, b) there is nothing in the A-P statute about building codes, c) the center would clearly expand the functional area of the stadium (the plaza, locker rooms, meeting rooms, training facilities, etc.), and d) structural independence is nowhere mentioned in the A-P statute - that the judge had no choice but to go back to a plain-language reading of A-P and halt the project.

Judge Miller also posed a hypothetical question about a possible format for a ruling, looking for a way to both deal with what is in the record, and with the knowledge that the project has evolved subsequent to the date the record closed. Again paraphrasing, she asked, \"What if I were to rule that the project could proceed subject to the defects in the record being cleared up in the actual implementation?\"

Immediately followed a brief flurry of comments where both sides seemed to agree that the \"defects\" consisted of just four items: the stairway, the grade beam, the routing of telecommunication cables under the new center to a modified facility at the stadium, and one other where my notes are unclear.

There was no further comment on her hypothetical, but it does raise the possibility that the much contested addition and alterations to the stadium (that would trigger A-P) could be removed from contention by judicial fiat.

UC attorney Olson noted that three of the four have already been removed from the project but that the grade beam remains. Since the grade beam is clearly an addition to and an alteration of the stadium, however minor in relation to the stadium's total value it might be, the judge will have to wrestle with that one.

At one provocative moment during Oak Foundation attorney Stephen Volker's final rebuttal, while he was commenting on \"extra-record\" evidence introduced by UC experts, he added a passing comment that the court had itself \"improperly\" added extra-record evidence by its site visit to Memorial Stadium and other alternate locations.

Observers knowledgeable about CEQA cases have independently agreed that the site visit was improper, and possibly constituted reversible error. It thus seems possible that Volker intended this comment to begin building a basis for an appeal should this court's decision go against his side. That's (maybe) a bit of bad news.

The good news? The same observers believe that this last-minute focus on A-P issues - where UC seems to have established a winning hand - might in turn indicate a favorable decision for UC on the CEQA issues that were argued earlier. This seems possible because if fatal faults been found in the CEQA parts of the case, those could already have been ruled upon and the project sent back to UC for reconsideration and new documentation.

So as to not to trigger the wrath of the woofing gods, it is probably wise to say only that there is a chance Cal fans will see a favorable ruling in a matter of weeks.


©Copyright 2008, 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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