Judge denies lawsuit to halt grocery plans

A proposed site plan for a mixed-use project in Albany's University Village includes a grocery store and retail north of Monroe Street, and more retail spaces south of Monroe: Image: City of Albany
A proposed site plan for a mixed-use project in Albany’s University Village includes a grocery store and retail north of Monroe Street, at San Pablo Avenue, and more retail space south of Monroe: (San Pablo Avenue runs along the “top” of the project as pictured here.) Image: City of Albany

Earlier this week, a Superior Court judge in Oakland rejected a lawsuit brought last year related to a proposed mixed-use development project in Albany underway by the University of California.

Judge Evelio M. Grillo had already issued a tentative denial, but heard additional arguments from attorneys in mid-May that could have changed his mind.

The University of California, which owns the 6.3-acre property, plans to develop a grocery store, run by tenant Sprouts Farmers Market, and a senior housing complex, along with several other retail spaces, on the site, which straddles Monroe Street at San Pablo Avenue.

The lawsuit — which questioned the environmental review (EIR) process undertaken when Albany officials approved the project — was filed last summer by supporters of Occupy the Farm. Some of the urban farming activists have said they want to see existing open space — several pieces of land owned by the university that include two vacant weedy lots slated for development, and a nearby agricultural research field — protected and turned into public community farm space in perpetuity. Others have said they would be more open to a smaller, perhaps independent, grocery store as a tenant.


Attorney Dan Siegel, who represents the plaintiffs, said Wednesday that the recent ruling is the court’s final decision, but that it will have to be turned into a formal judgment before it becomes final. He said he’s urging his clients, Eric Larsen and Stefanie Rawlings, to appeal the decision, which he believes to be “incorrect.”

“The court correctly concluded that the City of Albany failed to carry out the analyses that were required to justify its decision by failing to conduct thorough analyses of the existing zoning and reduced grocery store options to determine whether either of those alternatives would have satisfied the project’s goals with less negative environmental impact,” he said, via email. “That reasoning should have led the court to overturn the EIR. I believe that its failure to do so violates [state environmental rules known as] CEQA and look forward to presenting this argument to the Court of Appeal.”

Siegel had argued that the city, in its approval process for the project, failed to consider adequate alternatives; would impact the nearby Gill Tract agricultural fields; and failed to respond adequately to comments raised during the environmental review process, among other issues.

Judge Grillo wrote in his denial, which is dated June 4, that the city had considered four alternative plans for the site as part of the environmental review, and that its evaluation “was reasonable and met the goal of fostering ‘informed decisionmaking and informed public participation.'”

He also wrote that the city had responded adequately to a range of public comments in response to the environmental review process.


Grillo did note, however, that though the city provided “substantial evidence” to support its decision to approve the project as proposed, rather than elect to approve a smaller grocery store, the administrative record is “devoid of facts or analysis regarding what revenues or jobs any alterative would generate.”

The state’s environmental review rules, CEQA, mandates that the city document its “analytic route from evidence to action,” he wrote. He also said there was no evidence or analysis about whether alternatives, such as a smaller store, could operate profitably.

He noted “what must for petitioners be the frustrating fact” that the city had identified an environmentally superior alternative — a smaller store with fewer environmental impacts — but had ultimately approved the larger store anyway, saying it would do “a better job of meeting the project objectives.” Grillo said that was, “however, a potential and permitted result of the environmental review of alternatives.”

Despite these issues, he wrote, the city did consider a range of alternative grocery store sizes, retail spaces and numbers of housing units, which “presented a reasonable range of options for informed discussion of the City’s economic and social goals and the environmental impacts of the various alternatives.”

And along the way in the planning process, Grillo also wrote, the project did change in response to community feedback, to include a 45,000-square-foot grocery store rather than the originally proposed 55,000 square feet; 26,200 square feet of other retail space rather than 30,000; dedicated land along two creeks for parkland; and a height reduction in the senior housing complex from five to four stories.


Since the Albany City Council approved the project last year, its retail footprint has shrunk considerably. According to a notice posted last week by the city, the proposed project now is set to feature a 28,000-square-foot grocery store, 17,000 square feet of associated retail space, and a 175-unit senior housing project.

The city of Albany’s Planning & Zoning Commission will consider the latest edition of Sprouts market’s plans next week on Wednesday evening. The purpose of the study session is to provide the applicants an opportunity to present refinements to the project in response to the commission’s review in May.

The former project was expected to bring a net annual increase to the city of $204,000, and approximately 320 jobs. An economic review was not included in the most recent project overview posted by city of Albany staff.

Occupy the Farm supporters, many of whom say they do not want to see the land developed at all, announced in late May that they would return to University Village on Saturday, June 15, “with further soil workshops and a debrief from members of Via Campesina” about a conference they attended in Indonesia. The group was last in Albany over the weekend of May 25 for storytelling, music and workshops, but did not plant. Earlier planting efforts were derailed when UC Berkeley staff repeatedly plowed under Occupy the Farm’s crops to discourage the group from trespassing and setting up a long-term occupation in the area.

Related:
Lawsuit to stop grocery store tentatively denied [05.17.13]
Cal plows again, after weekend occupation [05.20.13]
Occupy the Farm: ‘We’ll keep coming back’ [05.14.13]
4 arrests, as Cal ends brief Albany occupation [05.13.13]
Urban farmers plan ‘short-form’ Gill Tract occupation [05.10.13]
Cal razes latest Occupy the Farm greens at Gill Tract [11.16.12]
UC Berkeley regains control of Gill Tract from activists [05.14.12]
UC Berkeley police block access to Occupy The Farm [05.09.12]
UC Berkeley sets midnight deadline for Occupy the Farm [05.05.12]
Could UC and Occupy the Farm compromise on Gill Tract? [05.04.12]
UC Berkeley on Occupy the Farm: ‘Time is running out’ [05.03.12]
Occupy the Farm activists issue open letter to community [04.30.12]
University open letter addresses ‘confusion’ on Gill Tract [04.27.12]
UC Berkeley calls for peaceful end to Occupy the Farm [04.23.12]

Related documents and resources:
Larsen and Rawlings petitioners’ brief
Respondents’ brief
Recent mixed-use project overview by city of Albany staff 
City of Albany mixed-use project website

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