“It’s An Interesting Case.” The Sale (Or Not) of the Berkeley Post Office.

Categories: Front Page, Open Mic

Background.

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For at least two and half years The City of Berkeley and its residents have been fighting the sale of the downtown Berkeley Post Office at 2000 Allston Way. They even went so far as to rezone land in the Historic District the Post Office is a part of to preclude commercial use of the properties within it. (This would theoretically make it less attractive for the United States Postal Service (USPS) to sell the property.)

In early November, 2014, the City of Berkeley and the National Trust for Historic Preservation filed suits in tandem to stop the sale of the downtown Post Office, immediately after USPS announced that they had a buyer under contract for the property. The suit claims that USPS has failed to satisfy the requirements of the National Environmental Protection Act (NEPA) and the National Historical Preservation Act (NHPA), bypassing proper procedures (such as an environmental review and proper protection mechanisms for New Deal artwork inside the building) in its haste to sell.

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Several weeks later the buyer backed out of the sale, and, to make a long story short, the Post Office then filed a “Motion to Dismiss” on, among other grounds, the claim that since the Allston Way Post Office was no longer under contract to be sold, there was no case. Berkeley countered with the assertion that the Post Office still intended to sell the building, as evidenced by its April 19th, 2013 “Final Determination” to relocate services out of the building and ultimately sell it, the USPS’s July 18th, 2014 decision on appeal to uphold its April 19th decision, and the fact that the property was still listed for sale on the USPS’s website of available-for-purchase buildings.

On March 26th, after submission of written arguments and rebuttals, Judge William Alsup of the United States District Court, Northern California heard oral arguments on the Motion to Dismiss.

The Court.

The hearing was held on the 19th floor of the Federal Building, 450 Golden Gate Avenue, near Civic Center, in San Francisco. Tony Rossman argued pro bono for Berkeley, while Kenneth Rooney of the Department of Justice argued for the Post Office.

Some dozen Berkeley citizens from Save the Berkeley Post Office and Berkeley Post Office Defenders attended, along with reporter Judith Scherr and a few other witnesses.

The Short of It.

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Judge Alsup gave the USPS one week (until April 2nd, 2015) to decide whether to rescind its April, 2013 decision. Rooney, The Post Office attorney, made the claims that the USPS no longer had an immediate interest in selling the building or relocating services, and that in light of the passage of the rezoning ordinance in September, 2014, the Post Office would, in any case, have to reassess its intentions and its NEPA and NHPA analysis.

The Judge directly asked Rooney why, then, the USPS had not rescinded the letter, but did not get a clear answer. He also asked whether USPS would be willing to rescind the letter, but again did not get a direct reply. Alsup ultimately asked Rooney whether USPS wanted the week he was offering them to decide, and Rooney replied in the affirmative.

So…

If USPS decides to rescind the letter, the Judge’s strong implication would be that he would dismiss the suit.

If the USPS decides not to rescind the letter, the Judge would have to decide whose arguments were stronger; whether the suit should be dismissed anyway, as USPS wants, or whether it should be allowed to continue, as Berkeley would like. (That decision might take weeks, even months, as the various threads of the case are complicated and intertwined).

There is also the question of exactly what it would mean, from a legal and procedural point of view, if the USPS did rescind the letter. Would it mean they would be back to square one if they decided to try to sell the building again, e.g., would they have to go through a public comment period, do another NEPA and NHPA analysis, and negotiate another covenant to preserve the building’s historic artwork? Or would it just mean that all they would have to do is issue another “final determination” decision? Or something in between? No one, I suspect, even the judge, really knows.

The Long of It.

The Judge, Mr. Rossman and Mr. Rooney went to and fro, addressing such hypotheticals as “What if NEPA and NHPA didn’t exist?” and “What if the Post Office wanted to destroy the (again hypothetical) last-standing Pony Express Post Office Building, situated in the middle of a desert. Could they do it without any consideration of its historical value?”

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The latter debate focused attention on the Post Office’s claim that they have the “categorical right” to consider, or not consider, as they will or not, historical value in their decision to vacate and sell. Apparently, and I’m not sure I have this right, the Post Office wrote itself (!) a regulation in January, 2014, after a hearing on another historic Post Office sale in Stamford, Connecticut, that says just that – they don’t have to care about historical value unless they want to.

The Post Office’s attorney noted repeatedly that the Post Office was “not currently” selling the building and had made it clear that it was no longer interested in relocation of service, having stated multiple times it would seek leaseback arrangements with a new owner. Mr. Rossman kept saying (parphrasing) “But the documents the Post Office has made public say just the opposite!”

A somewhat dramatic moment arrived when the Judge asked to physically see the document that Mr. Rossman was referring to in this regard, and though it took perhaps half a minute, Rossman and his co-counsels were able to hand it to the judge.

Mr. Rooney also argued that, at this point in time, since there was no sale or even pending sale, there was no injury to the City of Berkeley, and therefore no one could have standing to continue the lawsuit. Should USPS ultimately decide to relist the building for sale, Berkeley would have a chance to come back to court, get a temporary restraining order on the sale, and proceedings could begin anew. This was perhaps the strongest part of their argument.

Berkeley’s counter argument to that was, as best I could gather, “Why wait?” (After all, USPS has already violated NEPA and NHPA regulations. Berkeley is ready to discuss the merits of the case, and it makes no sense to ping-pong in and out of court as future sales are negotiated and then backed out on.) Mr. Rossman then noted that, while he did not think it would be a good idea to dismiss on the logic of being able to relitigate, if the judge did dismiss, he should keep the 45-day notice on any intended sale that he had imposed in December – at the time the original buyer backed out.

At least twice Mr. Rooney raised the issue of the Zoning ordinance, and how USPS believed that because of the new zoning, USPS would have to go back and re-evaluate its NEPA and NHPA analysis and also take a new, hard look at whether a sale would even be justified based on a reassessment of the building’s sale value. I found this both heartening (after all, many of us worked long and hard on getting that Zoning ordinance passed for just these reasons) and amusing.

Amusing, because as Mr. Rossman retorted, the possibility of a Zoning ordinance was first raised almost two years ago now, the Post Office knew it was headed for passage in June, 2014, and it was legally put into place before the lawsuit was even filed, in September, 2014. So if the Zoning Overlay had suddenly affected the Post Office’s analysis of the benefit of a sale, well, one would have to wonder about the competence of their sales division…

Mr. Rossman also briefly raised the issue of other decisions USPS has made in the course of the sales proceedings that would need to be rescinded, beyond just the determination to sell, for the slate to really be wiped clean. First, USPS’s decision at the end of October to terminate the collaborate process to create a covenant for the protection of the artwork in the building and granting the USPS itself the sole right to create, hold and modify the conditions of said covenant. Second, USPS’s decision to say that it did not have to consider historical value in its determination of whether to sell. (Whether these decisions would be rendered void if the decision to sell was resinded, or whether they would have to be independently rescinded, is not clear to me)

We were all left with Judge Alsup’s final observation:

“It’s an interesting case.”


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Background Links.

Killing the Post Office on the Altar of Privatization. Our Commons on the Auction Block.

OUR HISTORIC POST OFFICES SHOULD NOT BE FOR SALE, PERIOD!

Lawsuit documents.

Berkeley Post Office Defense: A Timeline.

Statement On The Historic Preservation Report To Congress As It Effects The Berkeley Post Office

Berkeley Post Office Defenders.

Save the Berkeley Post Office

First They Came for the Homeless

Save the Post Office


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