Victory in Court: Historic Berkeley Post Office No Longer for Sale

May 5, 2015 by Brian Turner

There is good news to report from the federal courthouse in San Francisco on our campaign to protect America’s Historic Post Offices. Two related lawsuits filed last fall by the National Trust and the City of Berkeley have successfully forced the U.S. Postal Service to set aside its plans for the sale of the historic Berkeley Post Office. As a result, at least in the near term, the Postal Service is committed to retaining retail services in the iconic building in the heart of Berkeley’s Civic Center Historic District.

At the hearing before federal district judge William Alsup at the end of March, the Postal Service tried to reassure the judge that it would proceed to sell the building, but the agency was reluctant to formally rescind its final decision authorizing the sale, including final approvals under the National Environmental Policy Act (NEPA) and Section 106 of the National Historic Preservation Act (NHPA). But the judge insisted that the Postal Service could not “have it both ways,” and he gave the Postal Service one week to follow up with formal confirmation that its decision was rescinded. Only on that condition was the court willing to dismiss the case as moot. The door is clearly left open for the City and the National Trust to bring a new legal action if a future proposed sale of the historic Berkeley Post Office does not comply with federal law.

The Postal Service attempted to dodge the issue of whether it would reopen its compliance under NEPA and Section 106, but the court’s April 14 order keeps the Postal Service on an unusually short leash—maintaining jurisdiction over the matter for five years, and mandating a 42-day notice to the City and the National Trust prior to closing on any future contract for sale, or approving any future relocation of postal services in Berkeley, in order to enable the parties to renew their lawsuits in time to seek an injunction if necessary.

In Judge Alsup’s nine page order, he recognized that the National Trust and City of Berkeley had valid concerns against the USPS, but dismissed the case without addressing the merits of their arguments, that is, whether or not USPS failed to comply with NEPA and Section 106 of the NHPA prior to entering into a sales contract. Since the court explicitly recognized that the Postal Service will have to “go through the process all over again” in the future, which could include a different preservation covenant and a different approach to NEPA review, it would have been an impermissible “advisory opinion,” (i.e., an academic question), for the court to address whether the terms of the now-defunct deal violate the requirements of Section 106 and NEPA.

However, many of the issues are likely to recur if Berkeley or another historic post office sale is challenged in the future. For example, the National Trust and the City were especially concerned about the Postal Service’s argument that it should be exempt from all lawsuits under the Administrative Procedure Act, which belies longstanding precedent, and would essentially make all environmental review by the USPS unreviewable in the federal courts.

One of the Judge’s rationales for dismissal was his doubt that the building will be sold under present conditions. In anticipation of the sale, the City of Berkeley passed a zoning overlay, which limits potential future uses of the post office building. Permissible uses for the property include libraries; judicial courts; museums; parks and playgrounds; public safety and emergency services; government agencies and institutions; public schools/educational facilities; non-profit cultural, arts, environmental, community service and historic organizations; live performance theatre; and a public market. The Judge remarked that the ordinance will “substantially shrink the possible universe of purchasers or alternative users for the building, making it ever more unlikely that the controversy will ever rise from the dead.”

But, in case it does, the Judge also provided both plaintiffs important protections. In a highly unusual move, the judge retained jurisdiction over the case for the next five years in the event that USPS once again attempts to put the building up for sale and plaintiffs challenge the action. He also required that, if the Postal Service decides to sell the building or relocate postal services, it will provide 42 days notice to the plaintiffs.

By taking this issue to court the National Trust sent a strong message about our willingness to challenge federal agencies when their actions are insufficient to protect important historic places, like America’s post offices. We continue to be concerned about the process by which the Postal Service has been selling its historic buildings, and the inadequacy of its proposed preservation covenants. We will continue to press the Postal Service to strengthen the long-term protections on its historic properties prior to selling them in the private marketplace. The Postal Service now recognizes that our willingness to go to court to enforce federal preservation laws is not a bluff. We hope this has the effect of pushing the agency to do a better job in the future to comply with the NHPA by ensuring the long-term preservation of its historic post offices.

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