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A county judge has rejected the contentions of a legal challenge by Berkeley homeowners to the approval of the so-called “Trader Joe’s” building in downtown Berkeley, paving the way for construction. 

In a tentative ruling issued Tuesday, Alameda County Superior Court Judge Frank Roesch rejected the claims by Stephen Wollmer and other plaintiffs allied as Neighbors for a Livable Berkeley Way. 

The five-story Old Grove building, otherwise known as Trader Joe’s, will feature 148 units of housing over ground-floor commercial and parking areas stretching the block of Martin Luther King Jr. Way between University Avenue and Berkeley Way. 

The building’s nickname comes from its promised primary commercial tenant, the popular and non-union grocery chain. 

Wollmer had charged that the Zoning Adjustments Board violated the city’s own zoning ordinance, an allegation specifically rejected by Roesch in his decision. 

The judge also rejected the claim that the approval violated the California Environmental Quality Act (CEQA), which requires a full vetting of a project’s potential harm to natural and built environments. 

Wollmer contended that the city improperly gave developers Chris Hudson and Evan McDonald a bigger project with more market-rate apartments for providing grocery store parking rather than for creating new units at reduced rates for low-income tenants, which is the intent of the state density bonus law. 

He had also challenged approval of setbacks from adjacent residential properties and charged that the city’s actions in approving the project effectively allowed staff to create arbitrary rules without prior Planning Commission or City Council approval or review under CEQA. 

But Roesch’s tentative ruling, which awaits only the judge’s signature on a final decision draft prepared by the victors, tersely rejected his arguments without explanation. 

Wollmer told supporters, “The neighbors are considering the possibility of an appeal of the decision, as there are new areas of discretion, placing all Berkeley citizens at risk of an increasingly capricious Planning Department and the current pro-developer City Council.” 

That action would come well before the June 1 date that the developer Chris Hudson said has been set for demolition of the strip mall that now occupies the site. 

The city contends that the density bonus rewards developers with extra size for their buildings over and above that allowed in city zoning ordinances in exchange for public benefits that aren’t restricted to housing. 

The intent of the additional size is to compensate developers for the costs of providing the benefits, which in the past have been mainly in the form of housing for those otherwise unable to afford decent accommodations in the community. 

The Trader Joe’s project, Wollmer contends, “established new areas of discretion for the city to approve projects they consider to be in their current definition of ‘public good’ whether or not they conform to the letter of state or city law.” 

Acting City Attorney Zach Cowan said he wasn’t surprised at the judge’s decision. “After the hearing it seemed pretty clear which way he was going to go,” he said. 

Cowan said he will be preparing a full statement of conclusions, which he’ll submit to Wollmer and Stuart Flashman, the attorney who represented the plaintiffs in the action. 

At that point, either the losing side will agree with Cowan’s draft or a further hearing will be held to work out the final version. 

“Hopefully this will dispense with some of the density bonus arguments we’ve been dealing with for some time,” Cowan said. “It all depends on whether they appeal.”