Taking the initiative at Neptune Point

How did things get so far out of hand?

By now, a consensus has emerged that the 3.89 acres of “surplus” federal land known as Neptune Point ought to be used to expand the adjacent Crown Beach State Park, as the voters intended when they passed Measure WW, rather than as the site for a luxury housing development.

The citizens’ group calling itself Friends of Crown Beach says so.

The official newsletter of the northern California chapter of the Sierra Club says so.

Three former Council members say so.

The State Attorney General says so.

The San Francisco Chronicle says so.

And the Alameda City Council has the power to make it happen.

Back in July 2012, the Council re-zoned the Neptune Point parcel from government office to multi-family residential.  If Council rescinded that action and either restored the prior zoning or re-zoned the parcel to open space:

  • The deal by the General Services Administration (“GSA”) to sell the Neptune Point parcel to Tim Lewis Communities, a Roseville based housing developer, would collapse.  (Indeed, we wouldn’t be surprised if the contract between GSA and Tim Lewis specifically gives the developer an out in these circumstances).
  • GSA could then negotiate a new deal with the East Bay Regional Park District (“EBRPD”), whose prior bid GSA rejected in favor of Tim Lewis’s.
  • EBRPD would dismiss its pending suit against the City; the federal government would take back its threat to bring an eminent domain action against the state, and then, best of all,
  • EBRPD would be able to implement its plan to use the 3.89 acres to add picnic sites and play areas, enhance wildlife habitat, and improve access for park visitors.

Last November, after a campaign by email, the Friends took advantage of the public comment period before Council’s closed and open sessions and urged the politicians to re-zone Neptune Point so that these results would occur.  Group leaders Eugenie Thomson and Gretchen Lipow spoke.  So did former Council members Karin Lucas and Frank Mattarese as well as golf war veterans Joe VanWinkle and Jane Sullwold.  And the response from the dais?


Now, understandably frustrated by Council’s refusal to act, the Friends have announced that they will be circulating a petition to place an initiative on the November ballot to re-zone the parcel by popular vote.

Progressives – with a capital “P” — like Hiram Johnson devised the initiative as a way to enable the people to make laws themselves when their elected representatives were too beholden to special interests to heed the popular will.   It is thus somewhat ironic that it is now self-proclaimed progressives like Mayor Marie Gilmore and her cohorts who find themselves the target of a ballot measure.  And it is likewise ironic that the very same politicians who are turning a deaf ear to park supporters – including not only the Mayor but also Vice Mayor Marilyn Ezzy Ashcraft, Councilwoman Lena Tam, and Councilman Stewart Chen, D.C. — solicited and obtained endorsements from the Sierra Club when they ran for office.

All of which leads us to wonder: What’s Council’s problem?

Please, please don’t tell us that Council must keep Neptune Point zoned as multi-family residential so that the City can comply with state law.  After EBRPD sued, the City’s defenders insisted that Council needed to re-zone Neptune Point to residential in July 2012 in order to get the statutorily required Housing Element approved by the state.  This wasn’t true then, and it’s irrelevant now.

A new Housing Element covering the period from January 2014 through October 2022 is due by the end of this year.  According to the “Regional Housing Needs Assessment” (“RHNA”) issued by the Association of Bay Area Governments (“ABAG”), the City of Alameda must “accommodate”  – i.e., make available – 1,723 housing units in the 2014-2022 planning cycle.

When the City prepared the 2007-2014 Housing Element, it re-zoned sufficient land to “accommodate” 2,525 housing units, most of which, according to City Planner Andrew Thomas, remain “available.”  The current inventory thus “will be more than adequate” to meet the 2014-2022 quota.  And this is so even without including any new housing units built at Alameda Point.

The 2007-2014 Housing Element counted Neptune Point for 95 units of “very low/low” income housing.  The developers’ plan is to build 48 single-family homes.  Whichever number you use, if Neptune Point were deleted from the 2014-2022 housing inventory, the City still would meet its RHNA quota with dozens of units to spare.  Council can leave Neptune Point out of the next Housing Element with impunity.

But wouldn’t a housing development at Neptune Point benefit the City in other ways even if it’s not necessary to comply with state law?  Not really.

You can’t pitch the Tim Lewis plan as a boon for affordable housing.  As presented to the Planning Board, the design calls for three- and four-bedroom homes fronting on landscaped “’paseos” and including two-car garages.  (Two-car garages!  Didn’t they get the memo in Roseville? Alameda aspires to be a transit-oriented, bicycle-friendly community).  Only the minimum 15% of the 48 housing units would be reserved for low-income households.  That means just seven or eight units.

It isn’t any easier to sell the economic benefits of a housing development at Neptune Point.  True, new houses bring increased property taxes, but they also create increased costs for providing public services.  As City Manager John Russo frequently points out, the latter may outweigh the former, resulting in a net economic detriment to the City.

Take a few rough numbers:  40 single-family houses appraised at $1 million apiece.  1% County tax rate, of which the City gets to keep about a third.  Total additional property tax revenue = $133,333.  That’s not even enough to pay the wages and benefits of a rookie firefighter.  And, until we hear from former IAFF Local 689 president and current fire chief Mike D’Orazi, we can’t be sure that the fire department will able to cover a new housing development without hiring an entire new fire company and buying a couple of new fire trucks.  In the end, Mr. Russo’s suspicions may turn out to be spot on for Neptune Point.

Yet if enabling a housing developer to get its mitts on Neptune Point is neither necessary nor beneficial, why won’t Council simply accede to the Friends’ request so that EBRPD can negotiate the purchase of Neptune Point from GSA and add it to the state park?

Try this one:  By re-zoning Neptune Point to multi-family residential in July 2012, the politicians claim, the City avoided a lawsuit by housing advocates.  But if Council rescinded that action and re-zoned the parcel to open space, somebody else might sue.

But who?  And on what basis?

The state?  If the City can meet its RHNA quota for 2014-2022 without Neptune Point, the Department of Housing and Community Development would have no reason to object to re-zoning the parcel as open space.

The developer? Tim Lewis doesn’t own the Neptune Point parcel, and, regardless of what happens with the zoning, it won’t close the purchase unless and until the state agrees to transfer the McKay Avenue easement for access and utility service to the property.  Since that ain’t gonna happen, Tim Lewis will lack legal standing to bring a “takings” claim against the City.  And we surely hope there isn’t any basis for this developer to assert the kind of tort claim SunCal alleged against the City – i.e., that Alameda officials made false promises that they didn’t intend to perform.

The federal government?  Broadly speaking, a property owner may obtain compensation if a zoning change impairs the owner’s ability to make productive use of its property.  But remember, even though the federal government owns the Neptune Point parcel, the GSA already has declared it to be “surplus” – it doesn’t need it, and it doesn’t want it.  The only “use” GSA intends to make of the property is to dispose of it.

A federal judge might well balk at using inverse condemnation law to rescue the GSA’s deal with Tim Lewis.  And we wouldn’t like to be the lawyer who tries to portray the feds as the “victim” of an oppressive municipal government.

We can’t guarantee, of course, that no one will sue if the City re-zones Neptune Point.  After all, even David Kapler sued the City.  But look what happened to him.

It would be a shame if a misplaced fear of litigation is causing the politicians to spurn the Friends’ request for Council action and thereby forcing citizens to incur the time and expense of pursuing an initiative.  It would be an even greater shame if it’s not fear but pride that underlies the Russo/Gilmore administration’s intransigence.

Our public officials seem intent on portraying themselves as blameless for the current state of affairs at Neptune Point.  Any concession, they may believe, would be taken as an admission of error.  And both the City Manager and the Mayor are far more eager to congratulate themselves than to confess their mistakes.

If so, our advice is: Get over it.  Play the statesman.  It’s still not too late to do the right thing.


EBRPD conceptual plan: EBRPD conceptual plan for Crab Cove

Staff report to Planning Board re Tim Lewis plan: 2013-06-05 staff report to PB re EIR

RHNA for 2014-2022: Final RHNA (2014-2022)

Staff report to Planning Board re 2014-2022 Housing Element: 2013-05-13 staff memo to PB re Housing Element

About Robert Sullwold

Partner, Sullwold & Hughes Specializes in investment litigation
This entry was posted in City Hall, Development, Firefighters, Housing and tagged , , , , , , , , , , , , , , . Bookmark the permalink.

2 Responses to Taking the initiative at Neptune Point

  1. Ethel Lerche says:

    Great job, Bob, in keeping us up to date. We both enjoy your colum.

  2. notmayberry says:

    “golf war veterans” is very clever! Next time, you should capitalize it. O/w the locals will just think you made a typo.

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