On October 19, 2016 The Berkeley City Attorney, Zach Cowan (middle), filed a “Motion to Dismiss” the US Post Office’s lawsuit against the City of Berkeley challenging Berkeley’s right to zone the 2000 Allston Way property, Berkeley’s downtown Post Office, as a part of the Historic District.
The lawsuit claims that the new zoning has dissuaded the USPS from putting the Post Office building up for sale again because it’s value has been reduced by the new zoning requirements, and that Berkeley cannot do this because it violates the Supremacy Clause of the US Constitution.
The Motion to Dismiss is was original scheduled to be heard in Judge Alsup’s court on December 1st, 2016, but was postponed until December 22nd, sometime between 8:00 AM and 11:00 AM ,at 450 Golden Gate in San Francisco. Judge Alsup’s courtroom is Courtroom 8 on the 19th floor.
Alsup is the judge who heard Berkeley’s lawsuit against the Postal Service two years ago contesting the sale of 2000 Allston Way. He ultimately ruled that the case was moot since the Postal Service had said that the building was no longer for sale – ironically a statement that is a significant part of Berkeley’s argument to have this case dismissed.
Cowan’s summary provides three arguments why the case should be dismissed:
- This case is unripe. When the Historic Overlay was adopted, the Postal Service had made a formal decision to sell the Property and had even entered into a purchase and sale contract. After the City challenged this decision under NEPA the Postal Service moved to dismiss the City’s case on the ground that it was moot because its sale of the Property had fallen through, and this motion was granted.In other words, the predicate to this action’s ripeness is a decision to sell the Property, which would require the Postal Service to defend the legality of that decision against the challenge the Postal Service previously claimed was unripe. But if that case is moot, then this one is unripe. If not, and the Postal Service has now made a decision to sell the Property, it needs to let the Court and the parties know, so that the City can finally test the validity of that decision.
- The applicable limitations period under California law for challenging the adoption of an amendment to a zoning ordinance is 90 days. (Cal. Gov. Code § 65009(c)(1)(B).) There is no dispute that this period has long since passed.
- The Postal Service has failed to state a claim for relief because the Historic Overlay has no impact on its operation of the Property. The City does not question that the Postal Service itself is not subject to local regulation, and that is not the Postal Service’s complaint in any event. Rather, the Postal Service complains that the Historic Overlay would affect hypothetical future non-governmental owners. That does not arise to the level of an interference with its constitutional or statutory authority or powers and is not invalid under the Supremacy Clause nor preempted by any law.
The full motion can be read here: