Paging Ms. Albuquerque!

Thank goodness the taxpayers of Alameda have Mayor Marie Gilmore and Vice Mayor Marilyn Ezzy Ashcraft around to protect them from the shortsightedness of the supporters of open space!

This spring, the open-space advocates managed to get 6,437 signatures on petitions requiring the City to re-zone the 3.9-acre parcel next to Crab Cove known as Neptune Pointe from multi-family residential to open space.  On May 16, the Alameda County Registrar of Voters certified that the petitions contained sufficient valid signatures to qualify the measure for submission to the electorate.

So all that remained for Council to do was the ministerial act of placing the initiative on the November ballot – right?

Think again.  During the signature gathering phase, opponents of the measure – and we mean you, Planning Board member John Knox White – were Tweeting their followers that the City “will likely pay” $3 million if the measure passed.  Then, at a meeting held at the Mastick Senior Center after the petition had been certified, City Manager John Russo hinted darkly that, if the measure passed and Council adopted a re-zoning ordinance, the City “could be sued” for “interfering” with the contract for a developer to buy the property from the federal government.

At last Tuesday’s Council meeting, it was the Mayor’s and Vice Mayor’s turn.

Let’s not be too hasty, they told their colleagues.  What if someone did sue over the re-zoning?  How much would it cost just to defend the case?  And where would the City find the money to pay the legal fees?  (As they already knew from a staff report to be presented later in the meeting, the City is projecting a $3.4 million operating deficit in the upcoming fiscal year).

No, Ms. Gilmore and Ms. Ashcraft intoned, the “impact” of re-zoning needed further study.  As the Mayor explained,

And so what we’re trying to do is to get a complete analysis of what is out there and could happen and how we do our best to try to protect the city budget and still give effect to what the residents want.  It’s part of our doing due diligence.  It’s like if you’re parents, you want to give your kids what they want, you want to make ‘em happy – and, by the way, I’m not comparing the residents to kids, it’s just that as a parent I know how hard you try to please your kids, and you may have limited means in which to do that, and you make choices, right?  Well, it’s the same thing with the city budget:  you make choices and you sit there and you carefully consider it.  And what we’re trying to do is put the City in the best position to give the residents what they want without potentially blowing our budget.  No more, no less.

So, instead of adopting an ordinance re-zoning the parcel immediately or passing a resolution placing the initiative on the November ballot, Council voted to commission a report from staff due in 30 days.

City Attorney Janet Kern was assigned to review all impacts, “financial” and “legal,” potentially resulting from passage of the measure.  According to the Vice Mayor, Ms. Kern was the perfect person for the job.  “I don’t think our City Attorney needs to be reminded to do an impartial, fair and balanced report,” the Vice Mayor sanctimoniously assured the open-space supporters packing Council chambers.  “She is an attorney.”

Now, it’s not exactly clear what use Council proposes to make of this report.  Suppose it confirms the worst fears of the initiative’s opponents.  As City Clerk Lara Weisiger informed the politicians Tuesday, Council still is legally required to put the measure on the November ballot.

Maybe, by asking for a report, the Mayor and Vice Mayor were arranging to get the City Attorney cracking on a draft of an opposition statement for the voter pamphlet.  Or maybe they need a report to give them cover to put up a “companion measure” that will rob the initiative of its intended effect.

But let’s be constructive.  On behalf of the children of Alameda who support open space, the Merry-Go-Round has a suggestion to make to our parents on the dais:  Forget about the report.  Just get Manuela Albuquerque on the line.

For those to whom her name is not familiar, Ms. Albuquerque is the lawyer who successfully defended the City in the wrongful termination lawsuits brought by former Interim City Manager Ann Marie Gallant and former Fire Chief David Kapler.  Ms. Albuquerque got the appellate court not only to order both suits dismissed but also to require Ms. Gallant and Chief Kapler to pay the City’s attorneys’ fees.

If she could work the same magic in any suit brought against the City resulting from the re-zoning of Neptune Pointe, the Mayor and Vice Mayor would have nothing to worry – or to frighten the public – about.  Not only will the kids get what they want, Mom and Dad won’t have to tap the family piggy bank to pay the tab.

How did Ms. Albuquerque do it?

Legal talent, of course.  But she also found a winning strategy:  File an anti-SLAPP motion.

The anti-SLAPP law – the acronym stands for Strategic Lawsuits Against Public Participation – applies to suits arising from conduct by the defendant “in furtherance of [the defendant’s] right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue . . . .”  If someone who has been sued brings an anti-SLAPP motion and the court finds that the statute applies, the burden shifts to the plaintiff to demonstrate, before she is even allowed any pre-trial discovery, that she is likely to win her case.  And if she cannot, her suit will be dismissed and she will be ordered to pay the defendant’s attorneys fees.

Now, it’s entirely possible that Ms. Albuberque won’t need to work her magic again, since the fear of litigation being stoked by the Mayor and the Vice Mayor is a little, shall we say, overstated.

Of course, Ms. Gilmore is right when she says that “anybody can file” a suit, regardless of whether there is any merit to it.  But let’s get real.  The two potential plaintiffs in any litigation challenging the re-zoning of Neptune Pointe are the current owner of the property, the federal General Services Administration, and the Sacramento-based developer that has contracted to buy it, Tim Lewis Communities.  Is either of them really likely to sue the City?

Any suit by the GSA would need to be authorized by the U.S. Department of Justice.  We’d like to be a fly on the wall when Attorney General Holder and President Obama discuss the political implications of one Democratic administration suing another for implementing an initiative backed by environmental groups and passed by the voters in a heavily Democratic city.  Isn’t the Keystone Pipeline causing enough discomfort for the President?

And Tim Lewis Communities?  It’s the same developer who is seeking approval from the City for converting the Del Monte warehouse into a 410-unit residential development and, thereafter, for building a 500-unit residential project on the adjoining site of the former Encinal Terminals.  Is suing the City at the same time you’re asking for its blessing such a good idea?

But suppose one or the other of these potential plaintiffs throws prudence to the winds. Then it’s time for Ms. Albuquerque and the anti-SLAPP strategy.

A layperson might wonder why a law like the anti-SLAPP statute enacted to safeguard the constitutional right to free speech would protect a city council’s decision to adopt an ordinance re-zoning the Neptune Pointe parcel.  But it is no less puzzling than why the statute protected a city council’s decision to place a city manager on administrative leave (Gallant) or fire a fire chief (Kapler).  Yet, thanks to Ms. Albuquerque’s advocacy, two separate three-judge panels of the First District Court of Appeals reversed the lower court and held that those decisions indeed did constitute protected conduct.

Building on those cases, Ms. Albuquerque’s argument in this case might go something like this:  If a legislative body can use the anti-SLAPP law to defeat suits challenging its personnel decisions, surely it can use the anti-SLAPP law to defeat suits challenging its zoning decisions.  If anything, it may be argued, legislative acts like the latter deserve even more protection than administrative acts like the former.

Now, we hasten to add that, if we were sitting on the Alameda County Superior Court bench, we wouldn’t buy this argument.  Like the trial judges in the Gallant and Kapler cases, we wouldn’t have held that the anti-SLAPP statute applied to wrongful termination suits, either.  But six appellate judges were convinced that it did, and it’s their opinions, not the trial judges’ or ours, that count.

On to the second step.  Once the judge rules that the defendant’s conduct is protected by the anti-SLAPP statute, the burden shifts to the plaintiff to prove a prima facie case on the merits.  For anyone suing over the re-zoning of Neptune Pointe, that isn’t going to be an easy burden to carry.

Thus far, two legal theories have been bandied about:  “inverse condemnation” and “tortious interference with contractual relations.”  Take ‘em one by one.

An “inverse condemnation” claim arises when the government takes an action – like adopting a zoning ordinance – that adversely affects the plaintiff’s use of its property. Using a three-part test, the courts evaluate whether the governmental action amounts to a “taking.”  If so, the U.S. Constitution requires payment of “just compensation.”

Only the owner of the property may bring a suit for inverse condemnation.  In the case of Neptune Pointe, that’s the GSA.  Tim Lewis has no standing to sue.  So we’ve got only one inverse condemnation claim to worry about.

As we previously argued, there are three reasons why an inverse condemnation suit by GSA should be a loser:

  • First, re-zoning of government-owned property like Neptune Pointe does not trigger the Takings Clause, which is intended to protect private property against governmental action.  Without a taking, there is no right to compensation.
  • Second, the re-zoning will have no “economic impact”– adverse or otherwise – on use of the property by the federal government.  As long as the GSA continues to own Neptune Pointe, it can conduct whatever “federal activities” it wants on the property even if the City re-zones it to “open space.”
  • Third, the re-zoning will not disappoint any of the federal government’s “distinct investment-backed expectations.”  One doubts that the feds were thinking about returns on real estate investments when they built a maritime training center on the land in 1942.

Strangely, we haven’t heard much from City Hall about “inverse condemnation” since the foregoing analysis was published.  The legal theory du jour has shifted to “tortious interference with contractual relations.”

Essentially, this claim arises when the defendant, aware that two parties have a contract, takes an action intended to mess with it.  (Alright, just to prove we went to law school, the legalese is that the defendant, with “knowledge” of the existence of a “valid contract” between the plaintiff and a third party, commits “intentional acts designed to induce a breach or disruption of the contractual relationship”).

For example, suppose a solicitor for a security company sees the lawn sign showing your home is protected by ADT.  He knocks on your door and tells you that you ought to get rid of ADT and go with his company because ADT is run by a bunch of incompetent crooks.  Frightened, you agree.  The solicitor – and his employer – are liable for tortious interference with contractual relations.

We presume that a written contract exists for GSA to sell the Neptune Pointe parcel to Tim Lewis.  But we’ve never seen the contract – maybe Mr. Russo has – so we don’t know what, if anything, it says about zoning.  And that makes a difference.

Suppose the contract requires GSA to deliver, and Tim Lewis to pay for, the Neptune Pointe parcel regardless of whether it is zoned for residential use.  The deal is just an as-is transfer.  In that case, re-zoning by Council in accordance with the initiative wouldn’t affect either party’s contractual rights or duties.  So neither would have any basis for asserting a tort claim against the City.

In any event, the City can point out that, by adopting an ordinance re-zoning the Neptune Pointe parcel, Council simply was implementing the will of the voters who passed the initiative (as well as the will of the voters who passed Measure WW back in 2008).  Under these circumstances, the plaintiff may not be able to prove the element of intent and the City would be able to invoke the defense of privilege.

So the tortious interference claim is unlikely to fly.  Any other theories you can come up with, Mr. Russo?

We’re confident that, in Ms. Albuquerque’s hands, these arguments can be made even better and the case for an anti-SLAPP strategy even stronger.  And the result would be that the potential impact on the budget that so concerns the Mayor and Vice Mayor would go away.  Since the City won’t have to pay the lawyers, it can keep doling out the salaries and benefits the politicians promised to the firefighters’ union after all.

All it takes now is for Ms. Kern to write a “fair and balanced” legal memorandum endorsing this approach.

We’ll be waiting.


Open-space initiative Text of initiative

Staff report on initiative: 2014-06-03 staff report re initative

About Robert Sullwold

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

5 Responses to Paging Ms. Albuquerque!

  1. Denise Lai says:

    Reblogged this on Raising Hell For Good and commented:
    Thank you Mr. Sullwold.

  2. Wendy says:

    Great article!

  3. joe vw says:

    Mr. Sullwold,
    You continue to provide solid analysis that is informative and fun to read.
    Thank You,
    Joe VanWinkle

  4. Allison Martin says:

    Thank you Mr. Sullwold! Sounds like you’ve pretty much done Ms. Kern’s job of “further study” for her with your analysis of possible suits against the city above. For more info or to join Friends of Crown Beach, the open-space advocates who managed to get 6,437 signatures on petitions requiring the City to re-zone the 3.9-acre parcel next to Crab Cove known as Neptune Pointe from multi-family residential to open space, go to or find us on Facebook.

  5. vigi says:

    Another excellent job, Bob. Sort of begs the question: what does the City Attorney do besides sit on the dais, since for every legal action the City brings it hires more outside counsel? [no reflection on the competence of Ms Kern- I just don’t get her role in this process]
    How about Alameda transfers Neptune Pointe to the VA, for use as a medical center? Swap for land at Alameda Pointe? That might get the President’s attention.

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