Local News

BERKELEY (CBS 5 / KCBS / BCN) ― The Berkeley City Council voted Thursday evening not to seek a stay of a judge's order allowing UC Berkeley's athletic center project to proceed. But the city didn't rule out future legal action, saying it needs more time to decide whether to file an appeal.

Project opponents who packed the City Council's chambers booed and shouted "Shame on You!" when Berkeley Mayor Tom Bates announced that during an hour-long closed session there weren't five votes in favor of an appeal at this time.

Bates said the city still has 58 days to decide whether to appeal Alameda County Superior Court Judge Barbara Miller's ruling on Tuesday which allows the university to start construction on the new sports training center. The sports center would be located next to its football stadium, which in turn sits on top of the Hayward earthquake fault.

But project opponents said they're afraid the city's non-decision about filing an appeal at this time could hurt their chances of getting a stay to stop the project during the appeals process.

Miller filed a preliminary injunction on Jan. 29, 2007, which temporarily stopped the 158,000-square-foot project, which is projected to cost $140 million. But her ruling on Tuesday calls for the injunction to expire next Tuesday.

Michael Kelly, the president of the Panoramic Hill Association, which represents residents who live near the stadium, said his organization and the California Oak Foundation, filed a joint appeal Thursday of Miller's ruling.

Those two groups joined the city of Berkeley in filing suits against the project after it was approved by a UC Board of Regents committee on Dec. 5, 2006.

Jerry Wachtel, a past president of the Panoramic Hill Association, said after the City Council meeting that he remains hopeful that the state Court of Appeal will issue a stay before next Tuesday that would keep the injunction against the project in place while the neighborhood group and the California Oak Foundation appeal Miller's ruling.

Wachtel said the city's inaction on an appeal at this time "makes our task more difficult" and in fact "may make it impossible" because the other two groups may have to come up with a large amount of money to pay a bond while they appeal.

If the city filed an appeal, it would be exempt from having to post a bond, as municipalities don't need to take such an action.

Wachtel said, "The city has done its best to sell us down the river."

One reason the City Council couldn't muster five votes for an appeal was that there were only seven council members present Thursday.

Dona Spring, an ardent opponent of the project, died recently and won't be replaced until November. Betty Olds had announced earlier that she wouldn't be available for Thursday's special meeting because of a previous commitment.

Bates said, "We had divisions on the council and we didn't have five votes" either to file an appeal or drop the case.

Council members aren't required to disclose how they voted in closed sessions, but Bates indicated after the meeting that he was leaning against an appeal.

Bates said the university has compromised on many public safety, noise and parking issues that concerned the City Council and university officials sent a letter to the city Thursday offering further compromises.

"The university is offering major concessions and we would like to nail those down," Bates said.

Bates said the city is "85 percent of the way" in getting what it wants from the university and hopes "to go all the way" and have all of its concerns addressed.

Before the City Council went into executive session, more than 50 speakers urged the council to appeal Miller's ruling.

Only a few speakers, including two members of the Berkeley Chamber of Commerce, urged the council to drop its suit against the university.

Bates said the city has spent about $350,000 for its suit against the university and he estimated that an appeal would cost an additional $25,000 to $50,000.

He said the cost of an appeal therefore would be small compared to what the city has already spent.

A group of about 50 protestors gathered in front of City Hall to urge them to take action, after marching from the campus oak grove.

"The court system was set up for the rich and wealthy, and it's up to us now, the people on the ground! We do have the power! That is why the trees are still standing! It's because of human beings who sleep there, and stay there day and night," shouted one protestor.

(© CBS Broadcasting Inc. All Rights Reserved. This material may not be published, broadcast, rewritten or redistributed. Bay City News contributed to this report.)