The city of Berkeley will have a new tool to halt the proliferation of large drugstores around town if a law to create buffer zones between them is approved by officials later this month.
Tuesday night, the Berkeley City Council discussed the details of the new law, which would create a definition for drugstores and establish a 1,000-foot buffer zone between them.
The law, as proposed, would apply to drugstores larger than 5,000 square feet, and would be in effect in most “neighborhood commercial” zones in Berkeley except along Adeline Street and San Pablo Avenue. (Downtown, West Berkeley, part of Euclid Avenue, and University and Telegraph avenues would not be affected.)
Council consideration of the drugstore issue dates back to 2011, when officials asked the city Planning Commission to investigate how Berkeley might stop the spread of drugstores throughout town by creating buffer zones between them.
But it was a proposal last fall by Walgreens, which hopes to open in North Berkeley on Solano Avenue on the site of a 76 gas station at 1830 Solano, that brought the issue back into the public eye.
City officials said Tuesday night that they are not trying to target any particular company or proposal with the drugstore ordinance, but instead want to protect the special character of Berkeley’s small shopping districts.
“This isn’t just about one property or one neighborhood,” said Councilman Jesse Arreguín. “This is a citywide issue.”
Council did not vote on the ordinance Tuesday, but plans to bring it back for action at a special council meeting June 17 at 7 p.m. after some minor adjustments.
There has been vocal community opposition to the Walgreens proposal since the application first arose. To date, an estimated 2,800 people have signed a MoveOn.org petition against the company’s Solano Avenue plans. That group has been organizing online under the moniker “No Walgreens.”
Approximately seven local residents spoke out Tuesday night in favor of the drugstore ordinance, while one said he thought Walgreens had brought forward a thoughtful proposal that would benefit the neighborhood given its history of vacancies.
Walgreens lawsuit threat looms
No one representing Walgreens spoke Tuesday, but an attorney for the company said in a May 30 letter to the city that the proposed ordinance is “illegal, discriminatory and unnecessary.” In the letter, Andrew Sabey, of the San Francisco law firm Cox, Castle & Nicholson, urged council not to approve the new law, saying it violates constitutional rights as well as due process.
Sabey wrote that the new ordinance would offer protection to smaller stores and “discriminate against national retailers.”
He questioned the city’s claims that it is not targeting any particular company, and says the planning commission specifically requested information about all the CVS and Walgreens locations in Berkeley, and used data about their size to craft the proposed ordinance.
Sabey argued that the city is not allowed to “protect favored local stores from competition.” He also questioned the authority of the city’s General Plan, which calls for zoning rules that “promote community-serving commercial diversity and that limit development of undesirable chain stores, formula businesses, and big-box developments.”
The attorney also said the proposed ordinance would not withstand a lawsuit, noting that “Courts strike down ordinances designed to protect local economic interests and burden out-of-state competitors.” In closing, he wrote, the ordinance would “expose the City to significant litigation risk for no good reason.”
Tuesday night, city officials said they want to see some minor adjustments in the proposal before they vote on it. Councilman Laurie Capitelli — who represents the district where Walgreens hopes to locate — asked staff to adjust the findings, or legal basis, for the new law to make it clear that Berkeley is trying to address the potential oversaturation of drugstores, and is not engaging in “spot zoning,” which he said would be in opposition to the city’s General Plan.
Despite the potential for a lawsuit, officials who spoke indicated a willingness to move forward on the ordinance June 17.
“This is not about competition. It’s about a concentration of just too many of the same types too close. And we have every right to legislate so that we preserve the character of our neighborhoods,” said Councilwoman Linda Maio. “I plan on supporting the item. But I am glad it’s being held over so we can make sure the I’s are dotted, T’s are crossed.”
Commission votes to restrict large drugstores in Berkeley (03.21.14)
Berkeley to consider redistricting of large drugstores (03.17.14)
Opponents of proposed Walgreens hope for zoning change (01.15.14)
Walgreens’ Berkeley store plan inches divisively along (12.09.13)
Testy response to proposed Walgreens on Solano Avenue (10.28.13)
Bates: City needs another grocery store, not pharmacy (12.14.11)
Will pharmacy war lead to new restrictions in Berkeley? (04.18.11)
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