I’m a geographer, and I take preparation for environmental hazards very seriously. And while I find the A-P act to be rather old fashioned in its emphasis on surface ruptures along a fault, when general ground shaking far removed from the fault itself causes the vast majority of damage and destruction during an earthquake, I nonetheless appreciate its intent to make California just a little bit safer place.

But like many laws, A-P is flawed, and it has indeed been revised as needed in the 35 years since its original passage. Most notably, the current law specifically exempts the properties damaged/destroyed by the 1991 fire in the Oakland/Berkeley hills. Panoramic Hill, if I’m not mistaken, was spared by that fire, but no doubt its residents sympathize with the loophole added to A-P in 1992 to allow their hillside neighbors to rebuild their homes, even though such new construction was otherwise forbidden by A-P.

Clearly, Memorial Stadium was not the sort of project that the authors of A-P had in mind when they included the 50%-of-value provision, because unique, historic landmarks like our beloved CMS truly are priceless. This is revealed by how difficult/impossible it is to apply any of the three valuation methods that Rags has summarized above for us so well. Only method #1 seems to hold any relevance, as far as I can see, to CMS. But even it is problematic. Sure, the physical condition of CMS has deteriorated over the decades, but in this case, that is emphatically not the same thing as value depreciation. Any method that de-valued CMS because its concrete is crumbling would have to also take into account its appreciation as the site of, among other things, The Play. And it’s not like this stadium has stood there untouched over the last 85 years; why hasn’t A-P been invoked when new scoreboards, press boxes, and the like have been added.

I remain optimistic that this project will ultimately get done. But like Ragnarok, I’m worried by just how long it’s going to be dragged out. What a phenomenal waste of the public’s patience and the taxpayers’ monies—all in the name of deluded anarchists, incompetent City politicians, and ultra-NIMBY rich people on a hill.

Just got word that our brave officers were attempting to remove the tree sitters as I type this. PLEASE, is anyone there that can verify this?

THANKS

Hmm, that doesn’t sound as promising as I first thought. Hopefully I’m wrong… )-;

I think your skepticism/cautious pessimism are understandable given what we’re talking about here and what hangs in the balance: the success or failure of Cal football. I know, I know, the Integrated Projects mean a lot more to a lot more people including women not having to change in cars. But to most of us here, this project has come to equate football success or failure. Having said that, I think Holmoe and Mack Brown have done a number on our collective psyches and have conditioned us to expect the worst. I’m just not one of those that expects the worst and I know that from your comments you aren’t expecting the worst either, but it almost seems that way.

After thinking about the ruling more than 24 hours later, it’s obvious that the Order(s) submitted by the parties and signed by the Judge is/are going to be critical in determining what the Judge actually meant in 129 pages of her decision. [A bit of background: Judges routinely ask the moving party to prepare an order consistent with their ruling. The moving party is simply the party that asked for the particular remedy/order/ruling, not necessarily the party that won on the issue. As in this case, the opposing party gets to make objections to the language of the order. And when I say “objections” I mean any comments that reflect disagreement with the proposed order, including suggested different language. The Judge then considers the comments of both parties and adopts the appropriate order. This is a very odd proces and you may ask “Why doesn’t the Judge draft the order?” Well, Judges have tons of cases and don’t want to miss any key element of an order so they count on the parties to let them know what needs to be included]. Given this, I can already see the Plaintiffs drafting an order that continues with the injunction and prohibits any construction at all (“The Project’s Dead” Order). UC will obviously object and suggest an order permitting it to move forward with Phase 1 of the projects and to comply in other respects with the Judge’s Order on the EIR (“unavoidable” increase in events and traffic, noise, etc.) and valuation. I think each party would do well to craft the order carefully and consistent with the Judge’s ruling, or else she might get pissed and completely reject “your” proposed order and go with the other side’s. I think ultimately this will happen with the Plaintiffs. They’‘l give an exceedingly broad order that does not truly reflect the Judge’s ruling and the Judge will probably adopt something close to what UC submits. In any case, this Order will be critical to anything UC wants to do and ultimately is as important as what the Judge issued on Wednesday. So in a sense we have to wait and see what the Judge’s signed Order states.

You’ve also discussed how you feel the Judge’s ruling reflected “key losses” on a couple of key points, and cite as one of these losses the application of the AP to the UC. I don’t agree that this was a key loss for a few reasons. Remember that back in December 2007 the Judge issued an order on this issue already. There was much media distortion of the order when the press was claiming that “UC lost,” blah, blah, blah. I looked at the ruling and wrote the following back then: “The ruling should not be seen as a victory for either side in this sense: the Judge does rule that the Alquist-Priolo Act ("AP") does apply to the University as a "state agency with the responsibility to prohibit the location and development of structures for human occupancy across the trace of active faults." Apparently, UC was initially contending that the Act "might not" apply to the University (why I do not know) "despite numerous statements in the administrative record that UC not only would comply with Alquist-Priolo but that it was required to comply." UC’s contention on this issues seems to be one of those trial strategies where UC raises something they know they will lose on, but do it anyway so that the Judge can rule against it on that issue, while ruling for it on the more important issue (separate structure vs. same structure). This gives the Judge something to show that she is not partial to UC if it ultimately prevails. The fact is, UC lawyers had to know that AP applies to it because it has applied in the past. Example: In Better Alternatives for Neighborhoods v The Regents (1989) 212 Cal App. 3d 663, a 1989 decision, a neighborhood group sued the University to prevent it from building the Foothill Student Housing Project and other buildings. That decision discussed the efforts made by the University to comply with AP and how it ultimately did comply. Therefore, more than 15 years ago the University took it as a given that AP applied to it and complied with its requirements in winning that suit. For these reasons, I don’t think UC attorneys realistically believed that AP did not apply to it because of this and other prior decisions and because of the UC’s actual attempt to comply with AP in this case, as noted by Judge Miller. So this part of the ruling should not be considered a victory for anyone.” I still think that the application of the AP was expected and a no brainer for the UC. It reasonably could not have been ordered otherwise.

Now to the valuation issue.

You’ve created a bit of a doomsday scenario in that you expect a long protracted court battle regarding the value of CMS and the possibility of losing on valuation. That may happen, but I don’t think it will. Here’s what I mean. When the UC values the CMS, UC has the authority to determine a reasonable valuation method. As long as UC can reasonably support this valuation method, the Judge cannot disagree with it to the extent of saying it was wrong and some other method is right. I’ll explain. In proposing, planning, and building a poroject, UC is acting as an “administrative body” with a wide range of discretion. In order to effectively challenge and strike down what the UC is doing, Plaintiffs would need to show there is an “abuse of discretion”: that there is no substantial evidence in the record that supports UC’s valuation method. What this means is that even though Plaintiffs can argue that another method should have been used, as long as there is reasonable evidentiary support for using that method, UC will win. In other words, the Court cannot say “UC chose method A, but methods B, C and D are better.” It’s not an issue of what method is “better,” it’s an issue of “can UC reasonably support the method they chose?” The Judge cannot weigh the methods used and make herself into the administrative body by “choosing” which one is better. That’s why I think that UC is in the driver’s seat as to the valuation issue. I do agree with you however that this has the potential to get protracted. That’s why I think it’s key as to what the Order actually says. If she allows SAHPC to proceed now, that’s great because by the time you get to the other phases of the project in “construction time,” the valuation issue should be resolved.

Just my 2 cents.

This issue is going evolve into what now comprises 90% of the cases in California courts—especially CEQA cases: a situation where one side should prevail under the law but the other side can successfully throw up enough procedural challeges/arguments to delay resolution significantly. UC will retain qualified appraisers/historical places experts etc. who will be able to place substantial evidence in the record to support a valuation determination. Even though the substantial evidence test greatly favors the project proponents (UC), the petitioners will cry that the evidence is insufficient, that a finding that it is substantial evidence is an abuse of discretion, bla bla bla. I think the dissolution of the injunction is at least a few months away.

This is why I didn’t want to get into law.

I’m not sure if anyone saw this but:

University officials late Wednesday said the value of the stadium is approximately $593 million.

from Inside Bay Area