(Written by kencraw)

Well, I’ve finally read the whole thing thoroughly. Here are my thoughts:

Alquist-Priolo: (AP)

The court ruled that the University is subject to the AP as just about everyone expected. This is no big deal in the end because the University’s plans/case did not rely on ruling that way. However, what occured to me is the PR aspects of this. This sounds like a big victory for the City of Berkeley and the tree-sitters. Particularly since this is the first thing discussed in the ruling and takes a bunch of pages, for the weak of heart who aren’t willing to read the whole thing, all they’ll ever see is the court focusing on the COB being right. While in the end I think it’ll all come out in the wash, it was probably a poor decision to advance this argument by the University because it allows the COB an avenue to claim a major victory.

The good news is that all the stuff that was actually meaningfully debated in court went the way of the University including that the stadium and the SAHPC are separate structures. The one fly in the ointment was that, and this was even admitted by the University in court, there were a few very minor alterations to the stadium as part of the SAHPC:

1. A Grade Beam to be installed along base of the Stadium’s west wall.
2. Alterations to existing staircases
3. Holes in the foundation for wiring

What this means is that the AP is triggered for these alterations and therefore the University must do the math/work to show that the improvements are less than 50% of the value of the stadium. This means getting the court to approve a value for the stadium and getting cost estimates for the alterations. The alterations will be pretty cheap, so there’s no issue there. The issue is what Memorial is worth.

There’s been a lot of discussion regarding this on a number of forums overnight and what has been pointed out is that if the COB can prove that the value of the stadium is very low, then that becomes a problem. The way they do that is to use a “depreciation method” where you take the cost of construction and then depreciate the value of the structure for each year it was used. Since Memorial has been around and used forever, Viola!, it’s worth $0. Of course the University contends that a “replacement value” should instead be used. This of course would result in a very high value because construction costs are so high these days.

What doesn’t seem to be discussed in all these places is that on page 35 of the ruling, the judge states what she thinks is the right way to value the stadium:

“(the cost of replacing the existing improvements [commentary: which means the structure and not the land] less whatever depreciation or obsolescence the improvements have suffered) may be more likely to serve the purposes of the Alquist-Priolo”

That to me sounds about right. She’s saying, look, if you build this thing from scratch, you’re going to have a building that is worth more than the old one. The lack of chips and cracks and the longer period of time it will be before aspects of it (like wood seats) have to be replaced make it worth more. So, while replacement value is a good starting point (and that’s the key), you have to reduce the value by a bit to take into account the fact that the building isn’t brand new.

And the key as stated above is that you get to start with replacement cost. I’m sorry, the depreciation because it’s not new is NOT going to devalue the building to the degree that the 3 items listed above couldn’t be done nor “phase 2” the retrofitting of the west side. (And “phase 3” has always been in doubt and is less critical.)

So to summarize, all that the University needs to do is get a reasonable valuation of the stadium, by the judge’s own proposed method, and everything is in compliance for the AP.

California Environmental Quality Act: (CEQA)

The thing to note here is just how many things went the University’s way:

• The Regents were allowed to have the EIR reviewed by a sub-committee
• The Regents did not prematurely approve the EIR
• The University did not need to recirculate the EIR with the late breaking siesmic reports
• The EIR did properly analyze the impact of removing the trees (suck on that one tree-sitters!)
• The EIR did properly analyze the impact of potential native burial plots (it’s sucking time Mr. RunningWimp!)
• The EIR’s project description was sufficiently detailed
• The EIR did properly analyze the impact of the geological and seismic impacts
• The project will not worsen emergency access to the Panoramic Hills neighborhood (yeah, you rich snobby home-owners get to do your sucking too!)
• The project doesn’t violate the 2020 LRDP EIR’s requirement for mitigationg impacts to “cultural resources”
• The EIR was reasonable to join all of the projects together instead of having a separate EIR calling out the SAHPC’s purpose and impact.
• The EIR addressed the necessary project alternative sites and scopes.
• The proposed lighting does not harm the historical character of Memorial stadium

Item after item went the way of the University. Every ridiculous claim was rebutted. While I am a bit harsh on the University for advancing a singular agressive claim (AP is not applicable to the University), the COB and their cohorts advanced one ridiculous claim after another and the court shot all of them down.

The one surprising little note towards the end of it all was the court was rejecting the EIR’s statement that the additional impacts from doubling the number of events at the stadium was unavoidable because there was nothing in the EIR that showed why doubling the number of events was unavoidable. However, what the court did NOT do is say what the implications of their conclusion was, which leaves me scratching my head as to what the University will have to do to rectify the situation.

The ruling then wraps up saying that based on all of the above, a ‘Writ of Mandate’ will be issued. To the best of my knowledge the ‘Writ’ is the statement of what explicitely will have to be done to rectify the problems in the EIR (and perhaps the AP valuation as well). The judge gave the COB and cohorts until June 24th to propose the ‘Writ’ and until the 27th for the University to respond.

So, what this means to me is that the COB is going to write a proposed writ that says something along the lines of “AH! MY GOD! If the doubling of the events in the Stadium is not UNAVOIDABLE, then this whole project is completely bogus and you should halt it NOW! NOW! NOW! And if you won’t do that, at a very minimum, the EIR is FOUNDATIONALLY inaccurate and therefore the University has to redo the WHOLE thing and re-submit it for public comment AND get it reapproved by the Regents. Furthermore, the stadium should be for sale at the $0.99 store and therefore the alterations will well exceed the value of the stadium and you MUST, MUST, MUST halt the SAHPC on the AP’s 50% rule.”

The University will respond with “Ummm, why don’t we just change the word ‘unavoidable’ to the phrase ‘desireable in the context of the proposed project’, no recirculation and no re-approval necessary. Oh and the stadium is obviously worth hundreds of millions and the alterations won’t even cost one million, so we’re cool on the AP.”

But the fly in the ointment is that this whole discussion/process will have to happen and the judge will have to rule on these things and she could end up taking a very long time again (she’s shown a tendency to do that after all). While all of that is happening, the injunction is still in place and the ‘End of Bancroft Zoo’ is still open for business.

In that sense, that’s why the ruling was a victory for the tree-sitters. All of the activities I live blogged, were likely for not. It’s going to take weeks if not months to get this all cleared up. The University is not going to want to have to have round-the-clock security while that is happening to prevent the tree-sitters from re-entering the trees and so they’re not going to remove them from the trees until this is all resolved. Of course, in the intervening time, the tree-sitters will rebuild all of their platforms and rope bridges and everything that was just taken down. They’ll force the University to go through the same shenanigans when the final approval is pounded out.

However, that HUGE grain of salt notwithstanding, this was a victory for the Bears. There’s nothing in this ruling that is not resolvable. It’s just going to take a bit more time. I have a hard time believing the judge is going to require a recirculation, particularly considering how she ruled regarding the COB’s objections regarding late changes to the EIR that did not get recirculated. So I think we’re talking on the order of weeks and that before the season starts, the injuction will be lifted.

I’ll let you decide if that’s good enough to call this a victory.