OAKLAND -- A judge is set to rule in the next few weeks on whether to uphold a temporary ruling rejecting a lawsuit challenging the proposed University Village project in Albany.

The lawsuit regarding the project's Environmental Impact Report was heard in Alameda County Superior Court on May 16.

The case, filed by Albany resident Eric Larsen and UC Berkeley graduate and Occupy the Farm member Stephanie Rawlings, challenges the EIR under the California Environmental Quality Act (CEQA). It was filed after the Albany City Council approved a series of resolutions connected to the project last July.

A temporary ruling, issued May 13, found in favor of the city and the Regents of the University of California. The process includes a temporary ruling based on filings before the hearing. Judge Evelio M. Grillo can uphold the temporary ruling or overturn it.

The temporary ruling found that "the city's selection and evaluation of potentially feasible alternatives was reasonable and met the goal of fostering 'informed decision making and informed public opinion.' "

Larsen and Rawlings were represented at the hearing by attorney Dan Siegel.

"A tentative decision is just that," Siegel said. "It represents the thinking of the judge, but maybe even more importantly, the attorney who works for the court and helps the judge with CEQA cases."


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UC Regents attorney Amrit Kulkarni and Albany attorney Todd Williams left the courthouse before they could be asked to comment.

The EIR was part of a years-long process to decide what to do with university-owned land along San Pablo Avenue. The land was originally used for agricultural research. During World War II, barracks were constructed that later became university dormitories. The university has proposed a mixed-use development on the site with a grocery store and housing for seniors.

A 44,000-square-foot Whole Foods Market was set to be the anchor tenant. However, after a referendum on the development agreement was passed and two CEQA suits were filed (the other was settled last month), Whole Foods pulled out of the project.

A 28,000-square-foot Sprouts Farmers Market was proposed in new plans discussed at a Planning and Zoning Commission meeting May 8.

A key to Larsen's filing is whether a smaller grocery store with lesser environmental impact was properly considered during the process. The temporary ruling found that "an EIR is not required to separately evaluate each facet of the project and each facet of each plausible alternative."

Siegel argued that the sides were "90 percent on the same page."

However, he argued that the environmental report did not study the economics for all of the alternatives for the proposed project, rather only for the proposed project. This prevented the City Council and the public from assessing whether other alternatives were viable.

Siegel said that although the city claimed it made a policy decision when it approved the EIR and later the project, in fact, it made an economic decision without considering the economics of alternative projects.

Kulkarni, who handled almost all of the rebuttal, argued that the CEQA does not require that an EIR consider all of the economics on all alternatives.

"When the City Council and the decision makers have received all of the documents, they move beyond that," Kulkarni argued. "They have to consider broader policy decisions, not based on economics, but is this a project that has jobs benefits, that generates revenue.

"The greatest amount of discretion is in their interpretation of general plan policies and what they implement. Allowing the city to develop in a manner they had planned for. That's all that's required under CEQA."

Kulkarni, when pressed by Grillo about whether economics can be a basis for a decision, said, "It can be a basis, but it doesn't have to be a basis."