The nonprofit organization East Bay Depot for Creative Reuse filed a lawsuit against the University of California on Tuesday morning, to contest its refusal to renew the Depot’s lease of the university-owned Marchant building at 6701 San Pablo Ave.
The lawsuit filed at the Alameda County Superior Courthouse in Oakland is the latest step the Depot has taken in a dispute that started more than a year ago. At that time, UC Berkeley announced it wouldn’t extend the Depot’s lease because it wanted to use the space to relocate part of its staff during the retrofitting of campus buildings. The 1995 agreement between the Depot and the university had given the nonprofit organization a five-year lease and an option to rent the space for an additional five years after the expiration of the first rental term on Jan. 1, 2001. The lawsuit contests the university’s claim that the depot has the right to exercise the renewal option only “with landlord’s consent.”
“Normally an option to extend the lease is absolute. It’s the right of the tenants in their own discretion to decide whether to exercise it and the landlord has no choice,” said Myron Moskovitz, one of the two attorneys representing the Depot, during a press conference. “This language that the university put in at the last minute ‘with landlord consent’ is very unusual. It was not part of the original agreement and should not be given (credence).”
The university, Moskovitz said, could have denied the option between January and May of this year by proving that it needed the space for its own purposes, but failed to do so. “They’ve claimed in the abstract that they might need it, but there has never been a particular department, a particular professor that has asserted the need for that place,” said Moskovitz.
Created in 1979, the award-winning East Bay Depot for Creative Reuse recycles used art, educational, and household material and provides them at low cost to schoolteachers and artists. It primarily serves the communities of Berkeley, Emeryville and Oakland, but also does recycling in Contra Costa County. As many nonprofit organizations, it has a tight budget and would probably not be able to subsist if it had to pay more for rent than the 47 cents per square foot it pays now.
According to David Elliott, president of the Depot’s Board of Directors, raising the rent of the 4,500 square-feet space may be the real motive for the university’s refusal to renew the lease. “They have brought several people from the outside to rent this place at market rates, which means it’s not the university’s need,” he said. “It’s just a way of getting more money.”
To attorney Zona Sage, this lawsuit raises the question of the responsibility of the university toward the community. The initial rental agreement between the two parts involved, she recalled, was the result of a mitigation plan developed by UC Berkeley that now seems to be neglected.
“This was part of a joint effort between the city of Berkeley and the university to minimize negative aspects of its expansion within the city,” she said. “It’s unfortunate that they’re going back and have made this with the this non-profit organization and essentially with the city of Berkeley.”
The University Real Estate Services refused to comment on the dispute Tuesday afternoon.
If the outcome of the lawsuit goes in favor of the university, the Depot will face eviction on a 90-day notice. Director Linda Levitsky, who has the support of more than 1,500 artists, teachers, students, and other Depot customers, as well as of councilmembers Linda Maio and Donna Spring, said she was optimistic. She hopes the lawsuit will set an example for other organizations facing the same difficulties.
“I’m sad it has come to this, but it has and now we move forward,” she said. “The way we go as a nonprofit that is being evicted will pretty much set the course for how other nonprofits will have to respond.”