Temporary Restraining Order Halts Sale of Berkeley's 1914 Post Office
In late September the USPS walked away from negotiations with the city of Berkeley and the National Trust for Historic Preservation. The parties were attempting to draft a covenant to be held by the city of Berkeley that allowed the Postal Service to sell Berkeley’s Main Post Office but also (as required under federal law) protected the building's historic characteristics including its historic use and public access. In terminating negotiations, the USPS made a stunning announcement: The USPS would itself hold the preservation covenant.
"USPS has no apparent interest in the long-term preservation of the property"
On October 24, 2014, the Advisory Council on Historic Preservation (ACHP) responded to the USPS proposal. Their response tells you all you need to know about how well preserved Berkeley’s post office would be under this unprecedented Postal Service proposal:
"It is the ACHP’s opinion that the proposed covenant does not sufficiently ensure the long-term preservation of the property since the USPS, as covenant holder, has the unfettered authority to approve adverse effects to the property (including demolition) while having neither the demonstrated experience in holding preservation covenants nor an apparent interest in the long term preservation of the property."
On the same date, October 24, 2014, the joint CB Richard Ellis/ USPS website listed the Berkeley Main Post Office as “In Contract.”
On October 31, 2014, the USPS unilaterally concluded the Section 106 process against the advice of the President’s Advisory Council on Historic Preservation, the California State Historic Preservation Officer and without the agreement of the city of Berkeley or the National Trust for Historic Preservation.
On November 4, 2014, the city of Berkeley's counsel Tony Rossmann filed for a temporary restraining order against the U.S. Postal Service in U.S. District Court. The legal action stated that the Postal Service in concluding the Section 106 process had taken final agency action without ensuring compliance with either the National Environmental Policy Act or the National Historic Preservation Act.
On November 5, 2014, U.S. District Judge William Alsup issued a temporary restraining order preventing the USPS from completing the sale of Berkeley’s Main Post Office.
Hearing Set for Thursday, December 11, 2014
On November 6, 2014, the date for a hearing on a preliminary injunction was set for 8 a.m. Thursday, December 11, 2014. The hearing will be held in Judge Alsup’s courtroom, Courtroom 8, 19th floor, 450 Golden Gate, San Francisco.
We anticipate that the National Trust for Historic Preservation will take part in the hearing on December 11th.
The USPS has bullied communities around the country. Berkeley and the National Trust for Historic Preservation are standing up. It’s the right thing to do and our Mayor and City Council deserve praise for staying the course.
Each sale of an historic post office across our country is a cumulative loss to our national heritage. We hope that the court will halt this heist of our national heritage. There are future options for Berkeley’s historic post office that have yet to be analyzed as alternatives. Those options include the Postal Service retaining custody of the building in trust for the American people.
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On November 6, both parties stipulated a request to extend the temporary restraining order to December 17, 2014. The tentative date for the hearing on the motion for a preliminary injunction is 8 a.m. Thursday, December 11, 2014 at 450 Golden Gate in San Francisco.
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Declaration from Joseph Lowe, a real estate specialist with the U.S. Postal Service. Mr. Lowe states that the USPS and Hudson McDonald LLC have entered into an agreement regarding the sale of the Berkeley Main Post Office. If the buyer does not terminate the contract before December 5, 2014, the closing of sale will occur by December 22, 2014.
Update: November 24, 2014
National Trust for Historic Preservation
Joins City of Berkeley's Lawsuit Against the USPS
(Washington, D.C.) Statement of the National Trust for Historic Preservation: "In October, the Postal Service abruptly ended negotiations, closing off what had been a productive process and leaving the building’s potential sale shrouded in secrecy. [The National Trust] would have preferred to resolve this matter through continued negotiations, but the Postal Service’s unwillingness to communicate its plans for the building left us no choice but to join the City of Berkeley’s lawsuit.”
Read the entire press release.
Five Violations under the National Historic Preservation Act:
Update December 3, 2014
Reply Memorandum by the City of Berkeley (filed December 2, 2014)
The "Reply Memorandum" in support of the preliminary injunction was filed by the City of Berkeley on December 2nd. Starting on page 22 there is declaration by Berkeley City Attorney Zach Cowan that includes a timeline of the negotiations between the US Postal Service and the City of Berkeley.
Read the "Reply Memorandum."
Update December 4, 2014
USPS Filing in Opposition to the Preliminary Injunction
(filed November 25, 2014)
"The [now cancelled] sales agreement includes a leaseback provision requiring the purchaser to provide for the Postal Service’s continued occupancy of retail space at the Property for an initial term of five years, with three five-year renewal options that the Postal Service can exercise at its sole discretion... As a result, there will be little, if any, change of use for the average postal
customer and the public will retain regular access to historic features, including the Suzanne Scheuer
mural, for a minimum of five years following the sale."
READ the "Defendant's Filing Opposing the Preliminary Injunction."
Update December 5, 2014
Joint Status Report on the Cancellation of the Sales Agreement and Notice of Withdrawal of the Preliminary Injunction Motion
Hudson McDonald entered into a purchase agreement with USPS on September 22, 2014. The date is significant as it indicates that U.S. Postal Service employees have not been forthright in their dealings with the City of Berkeley. Berkeley City Attorney Zach Cowan writes: "As recently as September 23, 2014, I submitted my proposed revised [covenant] language to the USPS at the verbal request of its counsel, Ms. Sharon Freiman. In that same conversation, I asked her when the USPS would send its revisions to me; as we had agreed during our conference call. I have never received any such revisions. Not long after I sent the City's and National Trust's proposed Revisions to the USPS, Ms. Freiman called me to let me know in advance of the USPS's letter to the Advisory Council on Historic Preservation, by which it began the termination of the Section 106 process. At the time, she told me that the USPS had sent the letter merely to keep things moving, and that negotiations over the preservation covenant would continue. This has not occurred." (p.24)
READ the "Termination Letter"
The reasons why the developer Hudson McDonald pulled out of the contract are not clear. We are told that Hudson McDonald had concerns about a seismic report showing unreinforced masonry. The report led Hudson McDonald to request additional time to conduct due diligence before completing the sale. The US Postal Service refused their request.
Hudson McDonald has provided the U.S. Postal Service with a structural report on 2000 Allston Way.
The City of Berkeley first requested a seismic report from the U.S. Postal Service in September of 2012 and made a formal Freedom of Information Act Request in October of 2012. Now we know the U.S. Postal Service has a structural report in hand, is refusing to provide Berkeley with a copy of the report, and is arguing before Judge Alsup that a court order to release the structural report is "premature."
Read the "Joint Status Report"
Judge William Alsup Withdraws Injunction
Orders December 11th Hearing to Proceed
Because there is no active sales agreement, the temporary restraining order is withdrawn.
While the suit is pending, USPS will provide the plaintiffs and the court with a 45-day notice prior to closing any sale.
The defendants have until February 4, 2015 to respond to plaintiffs' complaint.
At the December 11, 2014, hearing, the parties will argue whether the case is now moot and should be dismissed.
Read the Judge's Order.
Update: January 22, 2015
Berkeley and National Trust File Amended Complaints
Court Hearing Scheduled for March 19, 2015
On December 11, 2014, Tony Rossmann represented the City of Berkeley before Judge William Alsup. Mr. Rossmann argued that despite Hudson McDonald pulling out of the sales agreement with the USPS, the violations of environmental and preservation law are ongoing. The U.S. Attorney Kenneth Rooney claimed that the lawsuit was irrelevant because "at this time" the Berkeley Main Post Office isn't for sale and "the Postal Service doesn't know what it is going to do with the property."
Judge Alsup found the term "at this time" vague and subject to immediate change. Judge Alsup provided the City of Berkeley and the National Trust for Historic Preservation until December 31, 2014 to file amended complaints to reflect that the Postal Service does not have an active sales contract on the Berkeley Main Post Office.
The U.S. Attorney and the Postal Service have until January 22, 2015 to make their pleading to the amended complaint. The City of Berkeley then has until February 12, 2015 to respond to the responsive pleading of the U.S. Attorney and Postal Service. And the U.S. Attorney and the Postal Service response to this is in turn due on February 26, 2015.
The National Trust complaint is on a similar timeline and the National Trust and U.S. Attorney have stipulated that the case management conference will coincide with the City of Berkeley case.
Both case management conferences are scheduled to be held before Judge Alsup at 8 a.m. on Thursday, March 19, 2014 at 450 Golden Gate Avenue in San Francisco.
January 22, 2015
USPS Files Motion to Dismiss
As expected the United States Attorney today filed a motion to dismiss on behalf of the USPS.
The US Attorney argues that the case is moot as it was all about the sale of the Berkeley Main Post Office to the developer Hudson McDonald. Of course the developer was never a part of this lawsuit that is about the failure of the USPS to follow preservation and environmental law.
The US Attorney continues that even if the case was not moot, it is not "ripe" for review. And, well, even if it was ripe for review, Congress "specifically excepted the Postal Service from the Administrative Procedure Act’s (“APA”) judicial review provisions."
And, finally, if the Court accepts that the plaintiffs have a right to judicial review, the basis of review was terminated when the developer pulled out of the purchase contract.