ALBANY -- The appellants' opening brief was filed Dec. 30 in a legal challenge to the California Environmental Quality Act review of the proposed residential/retail development at University Village.

The legal filing is one of three actions by opponents of the decades-long proposal to develop the University of California property on San Pablo Avenue adjacent to student housing.

Two appeals of the city Planning and Zoning Commission approval of the project have also been filed and will be taken up by the City Council at a later date.

An initial CEQA challenge was filed after the City Council approved a series of resolutions on the project in July 2012. Alameda County Superior Court Judge Evilio Grillo ruled in June 2013 against plaintiffs Eric Larsen and Stephanie Rawlings. Larsen has since dropped out of the lawsuit and been replaced by former council candidate Ulan McKnight.

The legal filing claims the city "wrongly approved an Environmental Impact Report (EIR) for a mixed retail and senior housing project that failed to adopt the 'environmentally superior alternative' to the proposed development or to explain why the benefits of the project as proposed outweighed its environmental costs."


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It further contends that "the trial court erred when it failed to issue a writ of mandate setting aside the EIR because in so doing it validated a process that did not contain any meaningful analysis of alternatives to the proposed project so the court could not justify the rejection of the environmentally superior alternative."

The specific arguments center around the question of whether the city only compared the proposed development to alternatives that were infeasible on policy grounds.

"CEQA does allow for the possibility that all project alternatives turn out to be infeasible," the appeal states. "But it does not allow what happened in this case, which is the consideration only of alternatives chosen to meet the project's definition of infeasible."

The proposed development includes a grocery store and senior housing as well as space for other retail.

The development agreement originally passed by the council in 2012 was rescinded after a referendum was submitted. Whole Foods Market, which was to be the anchor tenant, then dropped out of the project and was replaced by Sprouts Farmers Market. The Planning and Zoning Commission approved the revised project in December. However, two appeals have been filed and the City Council will take up the project again.

The EIR compared the impacts of the proposed project with having a smaller grocery store and found that a smaller store would have fewer environmental impacts (Other alternatives were no project and reduced housing).

According to the appeal, CEQA requires the city to provide a cost-benefit analysis to justify selecting a project that has a greater environmental impact than one of the alternatives. It also claims the city is required to "reveal its reasons for reaching that conclusion in its findings. Conclusory statements are inadequate."

It cites a prior case in which the court ruled, "The fact that an alternative may be more expensive or less profitable is not sufficient to show that the alternative is financially infeasible. It is the magnitude of the difference that will determine the feasibility of the alternative."

The city claimed it did not need to discuss numbers in its feasibility analysis because its decision was based on "policy grounds," and cited a case involving the construction of a trail compliant with the Americans with Disabilities Act.

The appellants counter that the cited case involved an absolute policy choice -- either people with disabilities would have access or they would not. In the case of the proposed development, they claim, the city's policy is a spectrum in which "more commercial development is better."

"The EIR should have provided the public and Albany's decision-makers with enough information to decide whether or not they were comfortable with the position of the project along the spectrum of commercial development."

The city will file a response to the appeal by the end of the month, according to City Clerk Nicole Almaguer.

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