Lawsuit to stop grocery store tentatively denied

Many Occupy the Farm supporters attended Thursday's court hearing in Oakland. (Attorneys for the defendants, UC and the city of Albany, are in the front row.) Photo: Emilie Raguso — Most of the people who attended Thursday’s court hearing in Oakland have previously expressed support for Occupy the Farm. (Attorneys for UC Berkeley and the city of Albany are in the front row.) Photo: Emilie Raguso

After a preliminary ruling issued this week tentatively denied a lawsuit to block the development of a grocery store and senior housing project planned in Albany by the University of California, attorneys for both sides argued the matter further before a Superior Court judge in downtown Oakland on Thursday.

The lawsuit — which questions the environmental review process undertaken when local officials approved the project — was filed last summer by supporters of Occupy the Farm. Some of the urban farming activists have said they want to see existing open space — several pieces of land owned by the university that include two vacant weedy lots slated for development, and an agricultural research field — protected and turned into public community farm space in perpetuity. Others have said they would be more open to a smaller, perhaps independent, grocery store as a tenant.

(The senior housing complex and grocery store would be located just west of San Pablo Avenue on lots north and south of Monroe Street in Albany’s University Village. The lawsuit, in part, reportedly derailed plans by Whole Foods Market to open a new outlet at the Village. Whole Foods later decided to open on Gilman Street in Berkeley instead, as reported by Berkeleyside in November. Another grocery store, Sprouts Farmers Market, is in the process of stepping into the space.)

Along with other points of contention, Oakland attorney Dan Siegel, representing plaintiffs Eric Larsen and Stefanie Rawlings, said the project’s environmental review document failed to adequately consider appropriate alternatives to the larger grocery store that Albany council members ultimately approved. By failing to look closely at the economic impacts of smaller grocery stores, he said, the council had failed in its duties. As a result, he argued, the environmental document, or EIR, was not “sufficiently informative,” which rendered decisions based on it null.

Attorney Amrit Kulkarni, representing the UC regents, told Judge Evelio M. Grillo that Siegel was misrepresenting the facts and not taking into account the long history of discussions about UC’s development plans, which Kulkarni said date back 15 years. Kulkarni argued that Siegel had failed to meet the burden of proof required to find fault with the environmental review, and criticized the plaintiffs for showing up “late in the game” without having participated earlier in the discussions to help shape the project.

“They’re coming out at the last possible minute,” he said. The state’s environmental guidelines —CEQA — don’t “countenance this type of tardiness.” Kulkarni argued that, by law, the economic analysis of alternatives is not required to be the basis of the council’s decision; therefore, its absence would not be enough to allow the judge to uphold the plaintiff’s lawsuit to render the EIR invalid. He said, too, that the smaller grocery store was rejected on “policy grounds” because it did not meet the project goals or further the objectives of the university’s master plan for University Village or the city of Albany’s general plan.

In his tentative ruling, Judge Grillo wrote that Albany officials “examined alternatives and therefore proceeded as required by law.… Petitioners assert that the City’s disclosures and analysis were deficient because the City did not consider a Reduced Grocery Market alternative without reasonable explanation.… The court finds that the City’s selection and evaluation of potentially feasible alternatives was reasonable and met the goal of fostering “’informed decisionmaking and informed public participation.’”

He continued: “The EIR was adequate without a separate evaluation of a ‘small grocery market alternative.’ An EIR is not required to separately evaluate each facet of the Project and each facet of each plausible alternative.”

The judge, however, asked for clarification from both attorneys about the size of the proposed project, and further details about the environmental review process, before he makes his final ruling, which could potentially change after Thursday’s arguments.

Occupy the Farm supporters have said they will return to the site of the proposed grocery store this weekend on Saturday at 11 a.m. to replant. The group marched through Albany last weekend to plant crops on the lot; Cal staff plowed under the seedlings Monday and arrested several people who allegedly refused to allow the work to go forward. Occupy the Farm organizers have also put out the call for supporters to bring tents and sleeping bags, along with gardening tools, this weekend.

Earlier this week, Cal officials posted a new letter, addressed to neighbors in Albany, thanking local residents for their support against what UC called the “illegal and misguided occupation.” The letter, signed by George Breslauer, executive vice chancellor and provost, and John Wilton, vice chancellor of administration and finance, continued: “It is unfortunate that this group is unable to recognize the community interests and an almost five-year democratic process that has resulted in the Albany City Council’s approval of a mixed-use development plan for this property fronting on San Pablo Avenue. Further, it is clear that they are also unwilling to acknowledge that the area they claim to be fertile farm land has not, in fact, been farmed in more than 70 years. As many of you know, the property is the site of former WWII-era worker barracks and student housing.”

Cal says it will not allow a permanent encampment on its property and that its “first priority is that the area residents are safe and encounter minimal disruption.”

Berkeleyside publishes many articles every day. To see all our stories in chronological order, and read ones you may have missed, check out our All the News grid.

Emilie Raguso