Everyone remembers the tree huggers, most remember the court case, but few remember the nuance of it all all, that the trees didn’t come down until the appellate court refused to put an injunction on construction while the appeal continued.
The most that most fans remember is that the appeal “failed”. But that’s not the truth at all. The appeal is still on-going because appeals apparently take FOREVER. All that the appellate court determined was that they wouldn’t stop construction while the appeal proceeded. The appeal would continue and the University risked having to pay larger damages and have to tear down the SAHPC if they lost. The University was willing to take that risk (thankfully) and down the trees came. Nevertheless the appeal still continues to this day.
As proof of what you likely don’t believe, I give you the case website:
And for those incredulous enough to click on a link that ugly, they’ll see that the case hasn’t even made it to oral arguments despite being filed on 8/28/08.
In any case, I suspect you’re wondering why I’m bringing this up now. The reason is because there has been activity in the case in the last two weeks. The University and the Panoramic Hill Association have reached a “settlement” and thus the PHA has requested to be removed from the case. That leaves the California Oak Foundation as the lone plaintiff/appellant.
This is important for a number of reasons, the primary of which being that the “deep pockets” in the original case was the City of Berkeley followed by the PHA and coming in last with just their smelly clothes and patented ability to sit in trees (without any money) is the California Oak Foundation. Since the city decided to stay out of the appeal in the first place, PHA’s backing out makes it so there are ZERO deep pockets left. Since money is a key criteria to getting lawyers to work, it makes the likelihood this appeal will ever make it oral arguments all the less likely. I’d say it borders on a non-possibility if this weren’t Berkeley.
The other question is: What was the “settlement”?
I have absolutely no idea! All I do is read the website every once and a while to see if there’s been any activity. My guess is that it’s nothing of note, probably a “please don’t counter-sue use please” settlement. The reality is that the PHA got dragged into this and as time went on there was less and less support from the home owners to spend money on lawyers. Perhaps they got some minor concession from the University about lighting or something like that, but if they did, I’m sure it wasn’t much as the University was in the strong position at this point.
Finally, here’s the summary of the recent activity from the case website:
|| Telephone conversation with:
||Atty. Michael Lozeau for appellant Panoramic Hill Association; he’s sending a letter re settlement b/w Panoramic Hill Assoc. and respondent. Appeal concerning other appellant shall continue
||Received fax informational copy of:
||letter from appellant Panoramic Hill Association; settlement b/w Panoramic Hill Assoc. and respondent is underway and request for dismissal might come in by next week. Appeal concerning appellant California Oak Foundation and respondent shall continue
||Filed document entitled:
||Notice of Settlement; Panoramic Hill Association has reached a settlement with respondents; settlement does not affect the remaining appeal by California Oak Foundation
||Request for dismissal filed.
||Appellant Panoramic Hill Association’s Request for Dismissal of Appeal; Appeal concerning appellant California Oak Foundation and respondent shall continue
||Dismissal order filed.
||Appellant Panoramic Hill Association having filed a request for dismissal of appeal in this court, the appeal is dismissed and the remittitur is to issue forthwith. Each party shall bear its own costs on appeal. The appeal by California Oak Foundation shall proceed.
||PARTIAL AS TO PANORAMIC HILL ASSOCIATION ONLY