No, You Can't Sell Our Post Office and Put Up a Parking Lot! We Win!

It's true! A Federal Court just ruled it so!

Yesterday, May 14th, 2018, Federal District Judge William Alsup issued a decision saying that Berkeley, California'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 and thus 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 30%-  40%) since it could no longer be used for commercial or residential purposes once sold to a private interest. However, as Judge Alsup concluded:

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.

Ding!

In 2012 the Postal Service first evinced interest in selling Berkeley's beautiful, 100 year old, historically and architecturally significant downtown Post Office and moving services elsewhere. By 2013 fierce local opposition to the sale had arisen (e.g. Those Damned Hippies. They're Saving the Post Office.), and activists floated the idea of rezoning the downtown Historic District, which included the Post Office, to preclude commercial uses. The idea behind this was that it would help protect all the buildings in the District (such as Old City Hall) from being sold off and razed. It would make it less attractive for the Postal Service to sell its property, since it would command a lesser price. And it would, hopefully, encourage the Postal Service to maintain services at the existing location – right smack in the middle of downtown Berkeley and one block from BART.

In 2014 the Berkeley City Council passed the rezoning ordinance, and it went into effect just before the Postal Service announced a prospective buyer, who a month or two later dropped out of purchase negotiations.

In late 2014 the City of Berkeley sued the Postal Service, claiming it had violated or failed to adhere to various procedural and regulatory requirements before a sale could take place. The lawsuit came before the very same Judge Alsup who issued this ruling. However, in early 2015, the Postal Service testified in court that the downtown Berkeley Post Office was “no longer for sale” and on that basis Alsup ruled the lawsuit moot.

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There the matter rested for more than a year until the Postal Service filed its lawsuit against Berkeley in August, 2016. Over the course of 2017 and into 2018 the legal battle was waged in Judge Alsup's courtroom in San Francisco, with oral arguments ultimately being presented on April 3rd, 2018.

From the beginning, Judge Alsup seemed skeptical of the Postal Service's arguments. In fact, during one hearing on summary judgement, Judge Alsup barely engaged the City of Berkeley's attorney, instead grilling the Postal Service's Department of Justice attorney over and over for the better part of an hour.

This skepticism is perhaps reflected in his ruling, as evidenced by a few excerpts below:

Of course, every “historic district” – or any other discrete area – has to stop somewhere. Its boundaries must end on some block or street. It is nothing more than a truism that any regulation purporting to govern a specific area will affect properties right up to the boundaries of that area but not the properties immediately beyond. The USPS's protestations about this simple fact do nothing to advance its case.

Under the USPS's theory, it would be virtually impossible to impose any local regulation – no matter how objectively or sincerely neutral – on a group of constituents that happened to include the federal government or those with whom it deals, because any deviation in the infinite potential actions and decisions of said constituents might cause the federal government or those with whom it deals to feel the impact of the regulation more keenly than their neighbor and thus violate intergovernmental immunity. Again, the USPS has provided no authority or argument to justify such a sweeping theory.

The USPS's own national Manager of Real Estate and Assets admitted that the Overlay does not prevent the USPS from selling the post office… To repeat, the Overlay does not prevent the USPS from selling the post office…

Throughout this litigation, the USPS has repeatedly affirmed it “does not theorize that any interference in the government's efforts to sell property, even material interference, would be preempted . . . [r]ather, the USPS's theory is that the particular interference caused by the Overlay is so potent as to be effectively equivalent to a total frustration of the USPS's ability to dispose of its property” – in other words, that it “effectively bans the sale of the post office” That remains the theory the USPS must prove. Yet it has failed to do so.

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It's true that the Postal Service can still sell the property (for about $6M or $7M instead of $10M) if it so chooses, and of course it can appeal the decision.

Nonetheless THIS IS A HUGE VICTORY FOR THE PEOPLE AND THE CITY OF BERKELEY. For six years, we stood united against the Postal Service’s designs to cut services, ignore history, and refuse to listen to the needs of Berkeley residents. And, nationally, it galvanized the fight against some politicians’ and Postal Service administrators’ goal of privatizing the entire enterprise.

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From homeless activists to politicians, from preservationists to progressives to Occupy activists, everyone contributed and we used every tool available: rallies, encampments on the Post Office steps (see, e.g., Occupation outside Downtown Berkeley post office ends after 17 months and Berkeley post office protesters defy order to move), lawsuits, political pressure and legislation. Through it all the people of Berkeley hung together. The result is after six years the downtown Berkeley Post Office still stands, it still serves customers, and perhaps, just perhaps, the fight has made a few bureaucrats ponder as they fall asleep at night whether it was really the best idea to mess with Berkeley.

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Over the years I have chronicled the fight to save the Berkeley Post Office and the national fight to prevent privatization numerous times herein.  A sampling:

​​​​​​​A Timeline of the Berkeley Post Office Defense

Don't it always seem to go
That you don't know what you've got til its gone
They paved paradise
And put up a parking lot