National Trust joins Berkeley in suit against Postal Service

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The National Trust for Historic Preservation has joined the City of Berkeley in a lawsuit against the Postal Service over the sale of the Berkeley Main Post Office.  The suit complains that the Postal Service has failed to comply with federal historic preservation laws prior to entering into a contract for sale of the building. 

The National Trust’s complaint is here.  The press release from the National Trust reads as follows:

“Over the past several months, the City of Berkeley and the National Trust for Historic Preservation have been engaged in good-faith negotiations with the United States Postal Service, seeking a long-term preservation covenant for the Berkeley Main Post Office building to fulfill the agency’s obligations under federal preservation law. In October, however, the Postal Service abruptly ended the negotiations, closing off what had been a productive process and leaving the building’s potential sale shrouded in secrecy.

“We would have preferred to resolve this matter through continued negotiations, but the Postal Service’s unwillingness to communicate its plans for the building left us no choice but to join the City of Berkeley’s lawsuit.

 “The National Trust is concerned not only with this particular historic building, but more broadly with historic post office buildings in communities throughout the nation that are being disposed of by the Postal Service without adequate measures to ensure their long-term preservation. Despite repeated requests from elected officials, preservation groups, and local citizens, the Postal Service has not come forth with a clear and consistent process for protecting these important community assets. We hope that this litigation will cause the Postal Service to rethink its entire approach to transferring ownership of its stock of historic post office buildings.”

The City of Berkeley filed its case against the Postal Service on November 4. The following day U.S. District Court Judge William Alsup issued a temporary restraining order, preventing the Postal Service from taking action to sell the historic building to a third party pending the government's response.  A hearing is scheduled for December 11. 

 

The complaint

The complaint filed by the National Trust identifies several violations of historic preservation laws by the Postal Service, namely:

  • violation of the National Historic Preservation Act (Section 111(a)) for failure to consider alternatives to the sale, including leasing;
  • violations of the National Historic Preservation Act (Section 106) for failure to complete section 106 consultation prior to relocating services from the Berkeley Main Post Office and prior to selling the post office;
  • violation of National Historic Preservation Act (Section 106) because the Postal Service “arbitrarily and capriciously” determined that there would be “No Adverse Effect” as a result of the change in use;
  • violation of National Historic Preservation Act (Section 106) because the Postal Service's determination that the proposed preservation covenant would have no adverse effect on the historic post office, notwithstanding the objections of the ACHP, was arbitrary and capricious;
  • violation of National Environmental Policy Act because the Postal Service improperly segmented the decision to relocate postal services from the decision to sell the building;
  • violation of National Environmental Policy Act because the Postal Service improperly determined that the sale of the Berkeley post office was categorically excluded from NEPA by failing to consider extraordinary circumstances due to changed ownership and use.

If the court finds that even one of these counts is likely to hold up, the temporary restraining order could be extended, and the sale would not go forward — possibly for a long time, as we have seen in the case of the Stamford, Connecticut, post office.

There’s an excellent recap of the latest developments on the Save the Berkeley Post Office website, along with links to the key documents.  Here's some of the background.

 

Berkeley v. USPS

Word that the Berkeley Main Post Office had been sold first went public back in late October, when the CBRE Properties for Sale listed the post office as “in contract" and the news was leaked to the local media.

The news exacerbated an already bad situation.  The Postal Service, the City of Berkeley, the National Trust, and the Advisory Council on Historic Preservation had been focusing on a preservation covenant to protect the building and its art after the property left federal hands.  According to Save the Berkeley Post Office, in late September the Postal Service walked away from these negotiations.

A few weeks later, when the sale was listed as “in contract” on the CBRE website, it was clear that the Postal Service was proceeding with the sale without an agreement on the covenant.  When the City tried to get more information, it ran into a wall.

In a letter on October 27, Berkeley City Attorney Zach Cowan wrote the Postal Service to complain that the Postal Service would not discuss the details of the sale with city officials.  He also asked the Postal Service to give the City thirty-days’ notice before taking any further action on the sale.

A few days later, on October 29, Sharon K. Freiman, an attorney for the Postal Service, responded to Mr. Cowan.  She said that as a matter of “good business practice” the Postal Service would continue to keep additional information about the sale confidential.  Freiman also indicated that Mr. Cowan would have to wait for the Postal Service to process his FOIA request for more information.

As for waiting 30 days before proceeding with the sale, the Postal Service rejected the request as a matter of good business practice.  Freiman also rejected the City’s insistence that the Postal Service include in any preservation covenant a requirement that the Postal Service lease space in the Berkeley Main Post Office for the operation of a postal facility for the next 50 years.

 

ACHP rejects “no adverse effect”

A preservation covenant is an agreement between the Postal Service and the buyer of the building that lays out how the building’s historic significance will be preserved.  In most sales of historic post offices, covenants have focused on the artwork within the building, and sometimes certain aspects of the building itself, such as the front façade.  Usually a third-party government agency, like the State Historic Preservation Office, serves as the covenant holder.

In the Berkeley case, however, the Postal Service had problems finding an agency to serve as the covenant holder, so it decided to take on the responsibility itself.  That did not sit well with the Advisory Council on Historic Preservation.

A few weeks ago, the Postal Service determined that disposing of the post office would have “no adverse effect” in the context of Section 106 of the National Historic Preservation Act.  As part of the process, the Postal Service needed to ask the ACHP to review the “no adverse effect” finding. 

On October 24, Reid J. Nelson, Director of the Office of Federal Agency Programs at the ACHP, wrote the Postal Service to share the Council’s opinion.  The ACHP determined that the “finding of no adverse effect for the referenced undertaking is not supported by the covenant as presently written.”

Mr. Nelson explained that it was unsatisfactory for the Postal Service to serve as the covenant holder itself: 

“It is the ACHP’s opinion that the proposed covenant does not sufficiently ensure the long-term preservation of the property since the USPS, as covenant holder, has the unfettered authority to approve adverse effects to the property (including demolition) while having neither the demonstrated experience in holding preservation covenants nor an apparent interest in the long term preservation of the property.”

Mr. Nelson went to explain that it is essential for the covenant holder to have “demonstrated experience in protecting historic properties and evidences its interest and capability, through its core mission or otherwise, in the long term preservation of the property.”  If that’s not the case, the finding of no adverse effect is not justified.

 

The Postal Service responds

On October 31, Daniel B. Delahaye, Federal Preservation Officer at the Postal Service, responded to Mr. Nelson’s letter.  Mr. Delahaye wrote that the Postal Service disagreed with the ACHP opinion “and finds no reason to revise its finding of no adverse effect for this undertaking.”

Mr. Delahaye explained that the Postal Service did try to find an agency to serve as the covenant holder, but was unsuccessful. The California SHPO rejected the request, and other entities — including the National Trust and Certified Local Government — wanted to impose pre-conditions that the Postal Service would not accept, such as high fees and a high volume of covenants.  (That apparently refers to the fact that the National Trust proposed that it assume responsibility as covenant holder on numerous sales but at a cost the Postal Service would not accept. The City of Berkeley proposed being the covenant holder if the Postal Service would maintain a post office in the building for the next fifty years.)

Mr. Delahaye also took exception to the ACHP’s view that the Postal Service is not a suitable covenant holder:

“The USPS complies with Section 106 with respect to its historic properties and has done so on a voluntary basis since 1982 when the Board of Governors adopted a resolution to do so with respect to property of the USPS. The USPS currently owns over 8,500 properties, many of which are historic, and thus has an interest in maintaining and preserving such properties within the limits of the USPS’ financial capabilities, which are significantly constrained.”

Mr. Delahaye observed that the Postal Service had reached an “impasse” with the consulting parties concerning the covenant, and he concluded his letter to Mr. Nelson as follows:

“In light of the foregoing, the USPS disagrees with your opinion and finds no reason to revise its finding of no adverse effect for this undertaking…  The submission of this letter to you, the California SHPO and the consulting parties, concludes the Section 106 process.”

Declaring the Section 106 process "concluded" may be a bit premature.  Now that the matter is before the courts, the process may be far from over.

(Photo credit: Berkeleyside.com)