(Written by kencraw)

Below I gave a quick rundown on the court case, linking to the BearInsider analysis, and said I would give detailed analysis of the 7 arguments the City of Berkeley has made. I’ll admit up front, I’m an Engineer not a Lawyer. We think logically, pragmatically and as outside the box as possible so as to be innovative. Lawyers think inside a box they’ve defined for themselves that doesn’t seem to make much sense until you’ve been fully acclimated inside the box. With that caveat in mind, here’s the list with arguments and my perception of its validity:

1. • ARGUMENT: Of the seven projects covered by the EIR, only one is described in any detail – the SAHPC. And that fatally damages UC’s EIR because CEQA requires complete descriptions of proposed projects in EIRs. The stadium retrofit is not described in any detail and cost estimates are not supplied, thus making the EIR – and compliance with the 50% AP rule – impossible to evaluate. Therefore the EIR is invalid because it does not comply with CEQA or present an “accurate, stable, and finite description” for each project it covers.
   • VALIDITY: This seems like really two arguments. The 2nd about valuation of the stadium seems to have two pieces, one of which is covered in item #4 (is the SAHPC part of the stadium?) and the other is how much the stadium is worth. The valuation of the stadium worries me because it seems that there are lots of different ways to go about this. The “Stanford only paid $100 million for theirs” is garbage because it wasn’t a complete rebuild and doesn’t have the seating capacity of Memorial. Nevertheless, the valuation of the stadium could go poorly particularly considering its condition. As for the 1st argument, the fact that the other six projects covered in the EIR aren’t explained in detail seems troublesome if true. What I don’t know is how strong that argument is or if they’re falsely understating the detail of the 6 other projects. Even still, it seems that the University could wiggle out of this one even if the City is correct by limiting the project to just the SAHPC with a new EIR to be submitted later for the remaining projects. In fact, it may be that it has been a backup-plan of the University all along to submit further EIRs when the other projects get rolling. In summary, this one, although worrisome, seems like is it can be overcome, the worry is if the judge’s ruling makes re-scoping the EIR a time consuming process.
2. • ARGUMENT: Many aspects of the project are not described at all. In one illustration, the consequences of a collapse from an earthquake of the western wall of the stadium onto the SAHPC are not described.
   • VALIDITY: What is unclear in this is if the example provided is the majority of the complaint or if it just one of many. On its own, the wall falling on the SAHPC seems to me to be a joke of an argument and won’t be taken seriously since the 2nd half of the project is to seismically retrofit the stadium thereby preventing such as collapse. Although it seems that the there is a troublesome “combo argument” here in that if the University dumps the 6 other projects, then from the EIR’s perspective, the stadium renovation is not part of the project and so accounting for an un-renovated stadium should be part of the EIR. Overall, it seems troublesome although not without reasonable hope that a logical judge will handle this appropriately.
3. • ARGUMENT: Cal has over time added some information to their EIR, but they did not then recirculate it to the public as CEQA requires.
     Project alternatives (for example locations) described by UC in the EIR were deliberately chosen to be unattractive or infeasible, and those that were selected were so incompletely described as to not comply with the CEQA requirements.
   • VALIDITY: I have a tough time viewing this one objectively because it seems like a huge violation of property owner’s rights. Who has the authority to tell a land owner what they can do with the land and whether it is “best alternative”? Who are they to judge which alternative is best? WE DECIDED this is the best alternative. All the court should be doing is deciding if it is legal. Problem is… I know how jacked up our laws are and don’t doubt for a second that somewhere, somehow an outsider gets to force an alternative option on a land owner. This is another one I fear because the wrong judge could view this and say, “Yeah, what’s wrong with Golden Gate fields?” as if they have any right to force a decision like that on the University.
4. • ARGUMENT: UC has argued that the California Building Code definitions of which structures are independent should apply to this case, but those apply only to new structures – and there is no evidence the legislature intended that standard when they passed the Alquist-Priolo law. Therefore common sense definitions of the words should apply – and the SAHPC unquestionably “alters” the stadium and is therefore part of the stadium retrofit.
   • VALIDITY: It seems pretty ridiculous to me that someone can argue in a California court that the California Building Code is not the right place to go for the definition of what constitutes a new structure. Additionally, I don’t see how any “common sense” definition suggests that the two structures are in fact one. They’re clearly separate. This is one I worry least about, even more so now that I’ve read that it is the City who is going against what the California Building Code suggests.
5. • ARGUMENT: The seismic testing Cal did during the preparation of the EIR was inadequate, and this has been conclusively documented by the USGS letter that arrived after the EIR was approved by the Regents. The letter shows that the “footprint” of the SAHPC was not fully proven to be fault free at the time the EIR was approved, and that invalidates the EIR.
   • VALIDITY: On the surface, this one worries me a great deal until I add in the judges actions to date. Either the judge is a complete “tease” or it’s pretty reasonable to assume that the additional testing that the judge suggested will be allowed as a suppliment to the original EIR, especially since it confirms the findings of the original EIR.
6. • ARGUMENT: No seismic testing has been done at the site of the proposed parking garage, yet that garage is one of the 7 projects listed in the EIR. Since new structures are forbidden on active faults by AP law, and because UC has not yet done any seismic testing there, the EIR is invalid because only real and feasible projects can be documented in a properly done EIR; UC does not even know yet whether they have a project there or not.
   • VALIDITY: This one goes up or down with complaint #1. Either the University will be able to dump the baggage of the other 6 projects or they’ll not be able to. The only impact of this complaint in my mind is that it increases the likelihood that the University has to dump some of the other projects, particularly the parking garage. It does seem pretty reasonable to me that if the law requires that no structure be built on a fault then there should have been some testing to prove that… that is unless for some reason I’m not aware, the fault line is at at such a agressive angle away from the Maxwell field than is my understanding.

So it seems to me that the University has a reasonable case to make on all of the arguments. Why is it then that I have a very uneasy feeling in my stomack? Yeah I ate at the HP cafeteria again today, but the uneasiness is bigger than that. Is it because I just don’t trust judges? Is it that I don’t full understand the laws involved and so worry that there are some catches that I don’t understand? Or is it that as I read on another site that the protestors are professionals at working these EIR issues in court and ensuring that projects get delayed over and over again?

I don’t really know… but I’ll be watching the court case closely to see what transpires.