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Courtroom Date Set For ‘Trader Joe’s’ Suit

By Richard Brenneman
Friday December 21, 2007

By Richard Brenneman  


The long-running battle between neighbors of the “Trader Joe’s” building is headed for a March 3 showdown in an Oakland courtroom. 

Stephen Wollmer and Neigh-bors for a Livable Berkeley Way filed their action in August, challenging the city’s approval of the 148-unit apartment building planned for 1885 University Ave. 

The city granted developers Chris Hudson and Evan McDon-ald an additional 25 apartments in exchange for their promise to deliver a grocery store. 

If Trader Joe’s moves into the proposed building, it will bring the grocery store that even critics of the project agree is needed somewhere in downtown Berkeley. 

But the project, located at the intersection of University Avenue and Martin Luther King Jr. Way, alarmed neighbors, both because of its five-story height and because of the traffic a popular grocery store is certain to attract. 

The City Council approved the project on a 5-3 vote July 16, prompting the lawsuit Wollmer had threatened after the Zoning Adjustments Board approved the project by the same margin in the early minutes of Dec. 15, 2006, at the end of a six-hour session. 

Oakland attorney Stuart M. Flashman filed the opening brief on behalf of Wollmer and his neighbors earlier this week, and the defendants—the city and 1950 MLK, LLC.—have until Jan. 22 to file their response. 

The legal issues revolve around the question of just how much additional building the city is allowed to grant a developer in exchange for providing the community with desired amenities—in the case of 1885 University, low-income housing and a grocery store. 

The courtroom action, and the ensuing decision by Superior Court Judge Frank Roesch, could mark the final battle in a five-year struggle that has engaged developers, city officialdom, neighbors and advocates of so-called smart-growth policies in endless hours of heated debate and consumed barrels of ink. 

While the project initially included 183 units of housing and no grocery store, after a scathing reception at ZAB—where one member compared the design to a prison—Hudson and McDonald came back with a 156-unit project with a larger ground-floor retail space. 

Throughout the ZAB discussions, planner and board secretary Deborah Sanderson insisted that the developers were entitled by right to the full 183 units, a point the developers themselves made on more than one occasion.  

The developers scored their greatest triumph when they hooked up with Trader Joe’s, which prompted ZAB member Bob Allen to urge that the building be dubbed the Trader Joe’s building. 

Earlier, the proposal was usually called the Kragen project, after the auto parts store that dominates the small strip mall which will be demolished to make room for the one-acre development. 

But after Allen made his suggestion, the new name stuck. 

Whether or not that appellation will continue to remain valid may depend on the result of Wollmer’s litigation and any ensuing delays. Hudson told ZAB members in May, 2006, that their deal with the grocer required the building to be ready for a store opening date in 2009. 

Flashman is arguing that the city’s decision to approve the project should be overturned because that action violated the state and city statutes governing bonuses granted to builders who add affordable housing units by failing to made legally required findings and certifications. 

The brief also alleges that the city violated the California Environmental Quality Act by adopting a mitigated negative declaration saying that the project had no significant adverse environmental impacts. 

The legal responses will come from the Berkeley City Attorney’s office and from Andrew B. Sabey, a San Francisco attorney representing the developers. 

Judge Roesch, who will decide the case, is the same jurist who handed the city a defeat last week in litigation over another bonus building—the Gaia Building, and its two floors of additional “cultural bonus space.” 

Judge Roesch ruled that the council had acted improperly in its decision to uphold the planning staff’s interpretation of how use of the space was to be allocated. The council had acted after then-owner Patrick Kennedy had threatened a lawsuit.