With Berkeley set to change civic center zoning, US Postal Service ponders lawsuit

The Berkeley City Council is poised to set up new zoning standards in Civic Center. Image: City of Berkeley
The Berkeley City Council is poised to set up new zoning standards in civic center. Marked above: (1) Old City Hall; (2) Veterans’ Memorial Building; (3) State Farm Insurance Building; (4) Civic Center Park; (5) Civic Center Building; (6) Downtown Berkeley YMCA; (7) Berkeley High School; (8) Berkeley Main Post Office; (9) the Berkeley Community Theater/Florence Schwimley Little Theater. Image: City of Berkeley

The U.S. Postal Service is pushing back against a city proposal to limit development at its downtown Berkeley post office property, which has been up for sale since 2012.

Tuesday night, the Berkeley City Council is slated to approve that proposal, to establish more restrictive development standards in Berkeley’s civic center on nine parcels, including the post office property at Allston Way and Milvia Street.

An attorney for the post office, R. Clark Morrison, has sent five letters to the city since January in opposition to the plan, decrying it as spot zoning, and saying the city’s decision not to pursue a full environmental review in connection with the plan is at odds with its own code and the law. On Monday, Morrison declined to comment on the matter, but one city staffer familiar with the issue said the USPS is likely to sue the city if council approves the zoning changes.

Postal Service spokesman Augustine Ruiz Jr. said via email Monday that “The Postal Service is evaluating all options with respect to the actions taken by the City of Berkeley, including evaluating the possibility of litigation.”

Read more about the fight surrounding the downtown Berkeley post office.

The Civic Center District Overlay — which originated as a proposal from Councilman Jesse Arreguín in 2013 — seeks to limit uses in that zone to those that are “civic in nature and support active community use” to ensure it’s a place for “government functions, community activities, cultural and educational uses; and civic functions and facilities,” according to a city planning study on the subject.

The district’s height limit for all buildings would be capped at 50 feet so that none would stand taller than City Hall. (Read the proposed ordinance.)

Under current zoning rules established in Berkeley’s Downtown Area Plan, a building up to 120 feet tall could be permitted, hypothetically, on the postal service property, which is in the “outer core” of the commercial downtown mixed-use area, or “C-DMU.”

The city, in 1998, established the boundaries of the historic district — which later was added to the National Register of Historic Places — to recognize “the special role that the civic center district played in the history of Berkeley.” Under the city’s General Plan, the Civic Center is described as a “place for community activities, cultural, educational, and civic facilities.” But, to this point, zoning restrictions to limit uses to civic and cultural functions have not been on the books.

A crowd gathered Tuesday to hear Ralph Nader's views on the proposed sale of the post office. Photo: Darius Wekwerth
A crowd gathered in July to hear Ralph Nader’s views on the proposed sale of the post office. Photo: Darius Wekwerth

Councilman says overlay aimed to “influence the USPS”

The U.S. Postal Service announced plans in mid-2012 to sell its downtown Berkeley 1914 “Neoclassical Renaissance” building. It put the property on the market last October.

It’s an approach the USPS has taken nationwide in recent years, citing crushing financial troubles that have necessitated restructuring and downsizing. A website created by CBRE, the global real estate firm overseeing the transactions, lists 41 USPS buildings for sale. Many of them include a price tag, but Berkeley’s does not; a blue icon on the listing reads “negotiating.” The firm told Berkeleyside in October that it would not be releasing a price for the Berkeley deal. (See CBRE’s flier and pamphlet promoting the Berkeley property.)

Since the plans were announced, a core group of community members and officials has been fighting against the sale using a variety of tactics — including the overlay — at the local and national levels. Supporters of the overlay have said one of its primary goals is to halt the sale of the post office building, or make the property less attractive to buyers.

Along those lines, Councilman Arreguín wrote in a July 2013 agenda item: “The establishment of a Civic Center District zoning overlay will not only limit uses of properties in the district to those consistent with the character of the district, but it will also ensure that the Downtown Post Office can only be utilized for a civic or community-oriented use, and may help influence the USPS [to] decide a more favorable future for the building.”

Thus far, little information has been available about potential buyers for the post office property. Berkeley Mayor Tom Bates said earlier this year he had heard of at least three interested parties, including one non-profit and one commercial endeavor. The U.S. Postal Service has declined to discuss potential buyers.

Attorney cites issues with environmental review, spot zoning, urban decay

Attorney Morrison, of San Francisco-based Cox, Castle & Nicholson LLP, asked the city Sept. 9 to delay action on the adoption of the overlay district pending an environmental review he says, in his letters, is required under state law.

The city has asserted the environmental review is not required. Morrison says, as far as the USPS is concerned, the overlay appears to be spot zoning, and violates planning and zoning law, as well as state environmental rules. He writes that the overlay is spot zoning because one of its stated goals is to interfere with the sale of the post office property.

“The City Council made clear at its January 28 hearing that the Proposed Zoning Overlay is a ‘hammer’ to be used against the USPS as leverage against the potential sale of the Berkeley Main Post Office,” he wrote in June.

As evidence, he says most of the city’s public discussions about the overlay have revolved around the post office. A consultant for the USPS also found that, of all the parcels set for inclusion in the overlay, only the post office property “has any realistic near-term use potential” for private development. The city owns most of the parcels in question except for the post office and the YMCA across the street to the north. (Clarification: The school district also owns some of the parcels.)

Morrison wrote in January that “While the City of Berkeley attempts to disguise its targeted discrimination by including other properties in the Proposed Zoning Overlay, the public process to date demonstrates that the [Main Post Office] is the only property … the City intends to impact with its potential zoning action.”

The USPS also says the overlay could result in urban decay, and cites a report from its own consultant that found the zoning change “would result in a loss of existing revenue streams to the City, would result in a reduced ability to finance the restoration of the historic City Hall building, and would foreclose private uses that could fund the restoration and preservation of the historic buildings within the Overlay District.”

Further, the USPS says the new zoning rules could increase the likelihood of long-term vacancies in the area, and lead to “an increased likelihood of vandalism and deterioration of structures and facilities.”

Writes Morrison, “Instead of encouraging a vibrant and healthy component of the City of Berkeley’s urban landscape, the Proposed Zoning Overlay would preclude creative and financially feasible projects that would protect the historic resources of the area while also revitalizing the Civic Center.”

In reply, the city said it would be speculative to believe the overlay would pose an obstacle to the financing of maintenance and other improvements, or lead to vacancies or urban decay.

Old City Hall, where the Berkeley City Council still meets, is seismically unsafe. The U.S. Postal Service has said that limiting uses in the civic center historic district will make it harder to raise the money needed to repair buildings in the area. Photo: Wikimedia Commons
Old City Hall, where the Berkeley City Council still meets, is seismically unsafe. The U.S. Postal Service has said that limiting uses in the civic center historic district will make it harder to raise the money needed to repair buildings in the area. Photo: Wikimedia Commons

In his Sept. 9 letter to the city, Morrison says the USPS also agrees with a resident who raised concerns that, under the overlay, property zoned for residential uses — where Old City Hall now sits — might one day be considered for a museum or live performance theater, which would put pressure on those who live in the surrounding homes.

In his letters, the attorney also says the city failed to provide proper notice for hearings related to the overlay district, and has asked the city to take steps to address that failure.

In addition to the downtown post office, structures in the historic district also include the Veterans’ Memorial Building, Old City Hall, the courthouse, Martin Luther King Jr. Civic Center Park, the Martin Luther King Jr. Civic Center building, the Berkeley YMCA, portions of the Berkeley Community Theater and Little Theater, and Berkeley High School.

Permitted uses in the area include municipal and school functions, as well as non-profit cultural arts, libraries and parks, community services and historical organizations. New proposed uses under the overlay are live theater, public markets and museums.

What comes next?

Tuesday night, the Berkeley City Council is set to approve the overlay on its consent calendar.

Separately, Berkeley voters are slated to consider the overlay in November as a piece of the downtown zoning initiative now called Measure R. But council members — who voted unanimously to approve the overlay on first reading earlier this month — have said they want to act quickly to put the new zoning rules in place, regardless of the outcome of the November election.

If Measure R passes, council would be unable to change the overlay ordinance without returning to the voters.

But even if the overlay is approved by council and the voters, the fate of the post office property will remain somewhat uncertain. If an entity such as a religious institution were to purchase the land, it would be exempt from following the city’s zoning rules, according to one person who has been tracking the process closely.

The building does, however, have national landmark status, which means that features of the site previously identified as historic receive some degree of protection.

Berkeleyside will continue to follow the story.

Read more about the fight surrounding the downtown Berkeley post office.

Op-ed: Why the 2014 Measure R is not ‘true green’ (09.25.14)
True green not green-washed: we must support Measure R (09.09.14)
Council on civic center overlay, cellphone safety stickers, e-cigarettes, parking, more (09.08.14)
Ralph Nader speaks at rally to save Berkeley post office (07.30.14)
Downtown initiative on ballot; Berkeley city, schools may lose millions in fees (06.26.14)
Mayor to push for civic center overlay; hopes it will reduce support for downtown initiative (06.09.14)
Federal report calls to stop sale of Berkeley post office (04.18.14)
Congress puts hold on sale of Berkeley’s main post office (01.16.14)
Berkeley’s downtown post office is listed for sale (10.08.13)

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Emilie Raguso is Berkeleyside’s senior editor of news. Email: emilie@berkeleyside.org. Twitter: emraguso. Phone: 510-459-8325.