Potential Walgreens lawsuit brews as Berkeley officials tackle new drugstore ordinance

A rendering of the proposed Walgreens on Solano Avenue in Berkeley, a work in progress, and a project may be impacted by a proposed new zoning decision. Image: courtesy Agree Realty Corporation

Berkeley’s new drugstore ordinance could kill a proposal for a large Walgreens on Solano Avenue. Image: Courtesy of Agree Realty Corporation

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.

In March, the city planning commission mapped drugstores in the city. (Click the map for a list.) Source: Berkeley Planning Commission

In March, the city planning commission mapped drugstores in the city. (Click the map for a list.) Source: Berkeley Planning Commission

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.”

Related:
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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  • Bruce H. Witchguest

    >calling something brilliant
    >a personal attack

    One of these things is not like the other.

  • Guest

    “Drugstore: A retail establishment where the profession of pharmacy is practiced and/or where licensed drug prescriptions are offered for sale, as well as general merchandise.”

    According to this definition Target, Costco and Walmart would be “drugstores” since they all include pharmacies.

  • justsaying

    WAKE UP!!! CIty Hall…Move on – Walgreens’ collects sales tax — i end up buying my essentials in SF from convenient Walgreens.

    I used public transportation i live by North Berkeley Bart – i guess it’s better to have those Dollar Stores and Thrifts store – rather than the need of the community. Or me leaving my sales tax in another city.

    I agree about the Cigarette /Tabacco should be banned in all Berkeley pharmacies – follow SF. WE NEED a place to get our prescriptions, essentials etc.

    City Council should focus on creating revenue – not making empty store fronts – or Dollar Stores that sell unhealthy food.

    WAKE UP!

    Get out of your cars and walk the neighborhoods be relevant to the community and residents.

  • Islain

    Neighborhood ordinances in Berkeley prevent businesses from being open “late” (past 9:30pm/10pm for most neighborhoods) without special permission from the city council.

    So you’re misunderstanding the cause for a lack of late-night pharmacies in Berkeley.

    Obviously, your argument that an ordinance REQUIRING 24 hour pharmacies being illegal is accurate. But that doesn’t mean having one in town is unreasonable or a bad idea. Try to remember that there are people in Berkeley who don’t drive and public transit is functionally shut down from 12am-6am. Asking those people to travel a dozen miles, while sick, in order to get medicine is… short sighted. We’re a city of over 100k people, not including the student body, you think none of those people ever need medicine after 9pm or 6pm on weekends?

  • bshark4

    I think you know that “brilliant legal expertise” was meant sarcastically and was a personal attack.