It may not have ended with a thrilling three-pointer by Stephen Curry with 0:00:01 left… In fact the day it ended no one actually noticed.
But on July 13th, 2018, at 11:59:59 PM, 60 days after Judge Alsup’s decision in USPS v City of Berkeley that Berkeley’s Zoning Overlay Ordinance as it applied to the Downtown Berkeley Post Office was constitutional, the clock ran out on the government’s ability to appeal.
On July 18th, 2018, Matthew Zinn, of Shute, Mihaly and Weinberger, one of the lawyers who defended the City of Berkeley, spoke to the author and informed him that indeed, no appeal had been filed by the government and thus
“unless there has been some kind of major SNAFU which I am not aware of, that is definitive.”
That is, the lawsuit is over. Judge Alsup’s decision is final. Berkeley wins.
Celebration of Life for John Murcko.
A wonderful dedicated activist for human rights ans social justice. John was active in Berkeley Post Office Defenders and the five year so-far successful fight to save the downtown Post Office.
The event will take place at Bacheeso’s in Berkeley, from 5:00 PM – 8:00 PM on August 26th, 2018. The address is 2650 Telegraph Ave.
It’s true! A Federal Court just ruled it so!
On May 14th, 2018, Federal District Judge William Alsup issued a decision saying that Berkeley’s Zoning Ordinance, restricting the area around its Civic Center from being used for commercial purposes, is constitutional as it applies to whomever might want to buy the downtown Post Office (Berkeley’s downtown Post Office, at Milvia & Allston, is part of that Civic Center area).
The Postal Service contended that such a restriction, even though it imposed no constraint on the use of the building by the Post Office (since it is a Federal Agency it is not affected by local zoning regulations) was still an unconstitutional usurpation of Federal rights in violation of the Supremacy Clause of the US Constitution. They also contended that the Zoning Ordinance violated the Congressional legislation that created the current Postal Service, which gives USPS the right to manage and dispose of its property – this because it put de facto restrictions on who might be interested in buying the property, reducing the value of the property (as it turns out, by about 40%) since it could not be used for commercial or residential purposes once sold to a private interest. However, as Judge Alsup concludes:
the USPS has not carried its burden to prove that either intergovernmental immunity or conflict preemption renders the Overlay unconstitutional under the Supremacy Clause. It has therefore established no entitlement to relief on its claims. Accordingly, judgment will be entered in favor of the City.
On April 2nd, 2018, in Federal District Court in San Francisco, Judge William Alsup heard one hour of arguments from Department of Justice and Postal Service lawyers as to why Berkeley’s Zoning Overlay Ordinance – rezoning the downtown historic plaza area around Civic Center Park for non-commercial use – was unconstitutional as it applied to the sale of the Post Office. An hour of rebuttal was then taken from lawyers from Berkeley’s commercial law firm hired for this case, and from City Attorney staff. Judge Alsup interrupted with questions a few times, but for the most part let the lawyers talk.
Now we wait for a decision, which could come in late April or any time thereafter; there is no time limit for a judge to render a decision.
Five years of struggle by a number of organizations and large numbers of Berkeley’s residents to ‘Save the Berkeley Post Office’ comes down to this.
A hearing was held on January 11th, 2018, before Judge Alsup to argue whether either of the parties should win “by default” based on the record so far. His decided not to award either party a victory – the case will go to trial.
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
UNITED STATES POSTAL SERVICE, Plaintiff, v. CITY OF BERKELEY, Defendant.
ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT
Both sides’ motions for summary judgment are DENIED due to genuine disputes of material fact. If both sides will so stipulate, the Court will try this case on the summary judgment record based on its own factual evaluation thereof. If both sides will so stipulate, we will have closing arguments with each side receiving an hour (total of two hours). Otherwise, we will proceed to a bench trial with a fresh record. Counsel shall please promptly advise the Court how they wish to proceed.
IT IS SO ORDERED.
Dated: January 23, 2018.
WILLIAM ALSUP UNITED STATES DISTRICT JUDGE
Read the complete transcript of the hearing before Judge Alsup on 10-11-17 concerning the matter of who the Postal Service lawyers get to depose (i.e., question before trial) with respect to City of Berkeley officials and staff, and what questions they would be allowed to ask them.
It’s quite technical but here are a few, choice, non-technical snippets:
Judge Alsup in reply to the Postal Service’s lawyer:
“This is too complicated. I’m sorry, I didn’t follow anything you said for the last two minutes…”
Judge Alsup talking about expert witnesses:
They always bring somebody who’s a trained seal…
Judge Alsup talking about what might happen if former Mayor Tom Bates were to be deposed (questioned):
Or he could be a trained seal and say, I don’t know. I have forgotten everything I ever knew in my retirement.
Judge Alsup on trial procedure:
…you’re not stuck with just your own hired gun and your own trained seal…
Courtesy of Alicia Gallo, a Richmond Community member.
Timeline of Events
- January – Feb: Notice of disposal action posted
- Jan 25 – When contacted by office of Mayor Tom Butt, USPS responded that the notice had been posted in error, intend to sell was not accurate and that action related to the relocation proposal needed to be conducted first; Many community members and elected officials sent letters.
- On January 26- councilmember Martinez drafts an agenda item contesting the notice to sell the Nevin Street post office after being alerted to the notice by a constituent.
- February 8- resolution passed and letter sent to post office officials.