Can we applaud now, Madam Mayor? Should we?

Breaking news:

Last night, or rather early this morning, City Council passed an ordinance adopting the initiative re-zoning the Crab Cove (aka Neptune Pointe) property as open space.

You read that right.  Council voted to do now what the initiative was intended to force them to do after the November election:  re-zone the parcel so that it can be used to expand Crown Beach State Park rather than to permit residential development.

This means the initiative will not be placed on the ballot, since its goal already has been achieved.

In all likelihood, it also means that the litigation between the East Bay Regional Park District and the City will end, since the primary relief sought by the suit also has been obtained.

Indeed, before the meeting, the Park District’s counsel delivered a letter urging Council to “return the property’s general plan and zoning designations to what they were in 2012” and stating that, “Doing so would resolve the Park District’s suit without further expending City resources.”  Since the ordinance adopting the initiative goes a step further – not just restoring the prior “Administrative/Professional” zoning but actually re-zoning the parcel to open space – this offer presumably is still good.

And now for the other shoe.

In addition to passing an ordinance adopting the re-zoning initiative, Council also passed a version of the “companion measure” proposed by staff (which they labeled the “fiscal responsibility” measure) that would be triggered if the City is sued within 120 days of the effective date of the re-zoning ordinance.

At the meeting, the published text of the companion measure was orally changed by City Attorney Janet Kern and further amended by Council itself.  (We’ll pass, for now, the question of the propriety of this procedure.  Councilman Stewart Chen, D.C., had an issue with it, too).  So that we could be sure to report exactly what the ordinance passed Tuesday actually says, we asked City Clerk Lara Weisiger for an official text.  As always, she promptly obliged.

We’ve attached the marked-up text.  The ordinance provides that, if the City is sued (and not just for inverse condemnation, as the original companion measure provided) within 120 days of the re-zoning ordinance taking effect, Council is authorized to “take such measures, including but not limited to suspension or stay of the effectiveness of the Initiative Ordinance, as are necessary to mitigate any possible detrimental impacts on the General Fund.”  (The italicized language is new).

If the City loses the suit, the original companion measure laid out two alternatives to pay the judgment and associated fees and costs:  raise taxes or sell the property.  The ordinance passed Tuesday adds a third alternative proposed by Councilman Tony Daysog: cut services or “modify” the budget.  Or Council can do “any combination of the above.”

The foregoing constitutes our straight news account.  (Ordinarily, we’d rely on The Alamedan for this purpose, but Ms. Ellson is in vacation).  But we cannot resist a few comments.

Back in January, we noted that 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.”

Why, despite this consensus, did Council refuse for months to re-zone the Crab Cove property and instead force open-space supporters to incur the time and expense of preparing and circulating a petition to place an initiative on the ballot?  And then why turn around last night and pass an ordinance re-zoning the property?

Other than hubris and self-righteousness, qualities for which the Russo/Gilmore administration is well-known, we can’t imagine a reason for the months of obstinacy.  But the about-face may be easier to explain.

Both Mayor Marie Gilmore and Councilman Chen are running for re-election this November, and the firefighters’ union already has tapped Jim Oddie, aide-de-camp to State Assemblyman Rob Bonta, to fill the second open Council slot.  The primary obstacle to obtaining ratification by the voters of the IAFF Local 689 slate is former Councilman Frank Matarrese, who has endorsed the Crab Cove initiative and published op-ed pieces supporting use of the parcel to expand the state park.  Keep the initiative off the ballot and you’ll take the open-space issue away from Matarrese (or any other potential candidate not on the approved list).

Last night, several of the Council members solemnly declared they were simply following the “will of the people” by passing an ordinance re-zoning the property.  The reality, as we see it, is far less noble:  It’s all about politics, folks.

So what about the “companion measure”?

We remain convinced that no such measure needs to be adopted – whether by ordinance or by ballot – to protect the General Fund in the event of a suit (or adverse judgment).  With one exception, the ordinance passed Tuesday, like the original companion measure, doesn’t grant any authority to Council that it doesn’t already possess.  In particular, the added language about cutting services or modifying the budget – or “any combination of the above” – strikes us as superfluous.

The exception involves the language – added by City Attorney Janet Kern– about suspending or staying the re-zoning initiative.  As we understand Ms. Kern’s thinking, this option is intended to allow Council, if the City is sued, to maintain the current residential zoning of the parcel during the pendency of the litigation.  Then, if the City loses, Council can tear up the re-zoning ordinance and turn over the Crab Cove property to the developer as the site for 48 new homes.  Whether this would satisfy the developer – or how it would save defense costs – is not clear to us.

More importantly, once the re-zoning ordinance itself takes effect (as it does 30 days after final passage), state law prohibits any action by Council to undermine it.  Election Code section 9217 provides that, “No ordinance that is either proposed by initiative petition and adopted by the vote of the legislative body of the city without submission to the voters, or adopted by the voters, shall be repealed or amended except by a vote of the people, unless provision is otherwise made in the original ordinance.” (Emphasis supplied).  It may well be argued that the maneuver proposed by the City Attorney falls within the scope of this prohibition.

So, again, we’re forced to ask:  What’s the point of enacting a companion ordinance?

It may be nothing more than face-saving.

After strident protests by the Mayor, Vice Mayor, and others in the Inner Ring like Planning Board member John Knox White that passing the initiative would guarantee a lawsuit costing the City millions of dollars, Council could hardly adopt the re-zoning initiative as an ordinance and stop there.  Was the parade of horribles constructed of papier-mâché?  That would be the inevitable conclusion – but it isn’t the message the politicians wanted to send.

Councilwoman Lena Tam, who once again demonstrated that she is the shrewdest of the five elected officials on the dais, made this point, albeit not in so many words.  Ms. Tam acknowledged that the original companion measure did not grant any authority to Council that it didn’t already have to deal with any potential adverse fiscal consequences resulting from the re-zoning.  But, she went on, passing a companion ordinance anyway would “let the community know” that Council was aware of those potential consequences and was willing to take mitigating action.

There may, of course, be more to it.  City Manager John Russo stayed remarkably silent during the Council discussion – and, no, he wasn’t asleep – and we can’t rule out the possibility that Mr. Russo is a step or so ahead of the rest of us.  The vehemence with which the City Manager denounced the Park District for suing the City to compel it to re-zone the Crab Cove parcel makes one wonder whether he truly intends to go gentle into the good night.

We’ll see.  Like others, we’ll be mulling over the text of the companion ordinance before Council votes on final passage on July 15 to discern any hidden agenda.  Our fingers are crossed that maybe it’s truly just a PR move.

We end with an irony.  Tuesday’s Council meeting began with a proclamation declaring this week “Lil Arnerich Week” in honor of the former Vice Mayor and champion of Alameda parks and youth sports.  High on the list of Mr. Arnerich’s achievements was the passage of Measure C, an initiative prohibiting Council from selling park land without a vote of the people.  Although he and his family had left Council chambers long before the Crab Cove matter was discussed, perhaps enough of Mr. Arnerich’s spirit lingered to get our current Council to realize that they can only defy the popular will for so long.  We hope so.

Sources:

Revised companion ordinance: 2014-07-01 6-G Revisions to Ordinance

EBRPD letter to City: 2014-06-30 EBRPD letter to City