Two Students Sue SDSU, President Day : Fees: They claim the school illegally raised student fees and spent the funds to help finance a sports center.

Two students at San Diego State University have filed a lawsuit against the school and President Thomas B. Day, alleging that the fees being charged for a proposed on-campus sports arena are excessive and violate the state education code.

The lawsuit, filed in San Diego County Superior Court, maintains that the annual student activity fee of $126 exceeds the limit the school is allowed to charge individual students under state law by $86 a year.

The only way the university can exceed a $40 fee, per student per academic year, is by obtaining a two-thirds vote of the student body. The suit alleges that the school failed to overcome such a restriction when only a simple majority approved the arena in 1988.

Students Anne Rizzo and Thomas Thai “seek a declaration that (the) fees are illegal” and to have all fees collected for the 12,000-seat Student Activity Center “re-allocated to educational programs,” the suit says.

Rick Moore, director of communications for SDSU, said Tuesday that the university is “absolutely secure in the legality of that vote. By every guideline that we can read, it was conducted fairly, and the result was appropriate.

“Although it was only an advisory vote, it was done right down to the letter of the regulations. Beyond that, I can’t comment much, because I haven’t seen the lawsuit.”

Moore did say that the suit had further the selling of bonds to build the arena. He said a bond sale cannot go forth until all all litigation is resolved, thus extending the start of construction on a building many thought would have been completed by now.

The proposed center, which would house intramural sports programs as well as playing host to men’s and women’s varsity basketball and major indoor rock shows, has been troubled from the start.

Friends of the College Area, a group of nearby homeowners, initially filed suit over the school’s plans, alleging that excessive noise and traffic would diminish property values. The group criticized, in particular, the use of the building for rock concerts.

The homeowners recently lost in a state appellate court, and, aside from offering tacit support to the student litigants, have abandoned efforts to continue the fight.

The homeowners’ opposition stemmed primarily from a long-term contract the school sought with Avalon Attractions, a Los Angeles-based rock promotions company, that hoped to stage as many as 31 concerts a year in the new arena.

Partly because of the litigation and related construction delays, Avalon Attractions pulled out of the arrangement with SDSU, and, aside from staging shows at the school’s Open-Air Theatre, now plans to seek a long-term agreement with the San Diego Sports Arena.

Moore said Avalon Attractions “may end up doing shows (at the center), but there’s no longer any long-term arrangement guaranteeing them exclusivity over a period of years in exchange for money. That’s over. The venue is now open, and they can compete like any other promoter to provide shows.”

Rizzo and Thai allege in their suit filed earlier this month that the school “illegally” used increased activity-fee money to finance $50 million in bonds that would eventually be used to build the arena. School officials estimate the cost of the building at about $41 million.

In addition, the suit maintains that:

* At a time when SDSU is “experiencing a budget crisis and (has) found it necessary to terminate educational programs and lay off faculty, it is fiscally imprudent to allocate substantial resources to a sports arena.”

* Attendance at recent SDSU men’s basketball games, played at the San Diego Sports Arena, has averaged 2,000 to 3,000 a game, which fails to warrant a large expenditure for building an on-campus arena with as many as 12,000 seats.

* Budget problems in the California State University System may mean a decline in the student population at SDSU, “in which event there would be even less need for such a large facility” and the risk of not having the funds to finance the center would increase.

* The arena will serve only a small percentage of the school’s population, that being the men and women who play varsity sports or those who can afford major indoor rock events.

* The allocation “of time, effort and resources” to this project “is a misallocation of resources at a time when educational programs are experiencing severe budget and funding shortfalls” and when “circumstances have changed substantially in the recent past.”

The suit does not ask for damages except for attorneys’ fees and “the cost of the suit.”

In a separate action, Rizzo, 32, a senior environmental studies major, has opposed the Student Activity Center on the grounds that its proposed site, the Aztec Bowl, is a historic structure that should not be demolished.

“Any proposed alteration of state-owned property needs to be reported to the State Office of Historic Preservation, and the school has never done that,” Rizzo said.

Rizzo said the Aztec Bowl was a Works Progress Administration project built in the 1930s, and that it served as the site of a moving commencement address by President John F. Kennedy five months before his death in 1963.

Rizzo said she was angry with SDSU President Day over his refusal to respond to a recent petition, signed by more than 4,000 students, that called for a new vote on the Student Activity Center.

“We wanted to take the money the school has collected and refund it to everybody,” she said. “What we couldn’t refund we would put toward classes and paying teachers, because we’re there to get an education, and we’re not getting our classes.

“We don’t want to spend millions of dollars to build a sports arena. He’s forcing us to pay these fees. Students have to have priorities, especially during a recession of this magnitude, and Day has simply not listened. A lawsuit was the only alternative.”