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.


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

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

About Robert Sullwold

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

10 Responses to Can we applaud now, Madam Mayor? Should we?

  1. Eugenie Thomson says:

    Bob thank you again for another great article.
    When reviewing the measure i reviewed all the election codes and the following would apply to what happened last night.

    Simply Council cannot alter the measure.

    Election Code 9215 says the following City can
    (a) Adopt the ordinance, without alteration, at the regular meeting at which the certification of the petition is presented, or within 10 days after it is presented.

    Love to see some attorney get their teeth into this one.!!!

    And am hoping many follow up for the second reading on July 15th.

  2. Eugenie Thomson says:

    And then there is Election Code 9217 which says if adopted via the initiative process (ie getting the 10 % to certify it for a ballot measure) and without submission to the voters, no amendments and it cannot be repealed except by vote of the people.
    Gosh hope some attorneys dissect this for us.

    Here’s code 9217 see below


    If a majority of the voters voting on a proposed ordinance vote in its favor, the ordinance shall become a valid and binding ordinance of the city. The ordinance shall be considered as adopted upon the date that the vote is declared by the legislative body, and shall go into effect 10 days after that date. 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.
    (Enacted by Stats. 1994, Ch. 920, Sec. 2.)

  3. frank says:

    Don’t forget we will see Ron Cowan back with a new proposal as soon as the Election is over.
    It is ALL about getting re-elected!!!

  4. Irene says:

    My congrats to the citizens who worked so hard to make this happen! It’s a case of “when the people lead, leaders will follow” or “when leaders fail, people will lead.”

  5. laura says:

    Thank you for this piece. In regards to saving public land/open space from City’s rezoning for residential, e.g. the golf course land swap, I think you meant to refer to the resounding success of 2012’s Measure D (not Measure C):

    I find it very sad that while concentrating on saving Neptune Point both “the people” and our “leaders” failed to generate the public support necessary to prevent other publicly-owned/open space parcels from residential development.

    Properties managed by AUSD were taken by the City and rezoned at the same July 3, 2012 CC meeting (from municipal to residential) and without an EIR or a prior AUSD agenda item BOE request/approval.

    All complaints against the land swap were couched by our “leaders” as anti-housing or NIMBYism when in fact the motivation was demanding the same public protection granted by Measure D, to save publicly owned lands from residential development while earmarking them instead for public development, i.e. park/open space (municipal real estate value is generally 2/3 lower than residential).

    So instead of paying their fair share of fix-it costs for Alameda’s recreation at our public swimming pools, the City paid for it by grabbing land that sadly could have been maintained for our public’s highest/best use had the Measure D campaign had the foresight to include ALL publicly-owned lands managed by City and AUSD:

    So sad, and my apologies to the future students and families of AUSD and Alameda. But not surprisingly, all of the AUSD “leaders” participating in the City’s land swap over this past year have left (Legal Counsel, Chief Business Officer, Assistant Superintendent and Superintendent)!

    • The original measure prohibiting the sale of parkland without voter approval was Measure C, written by Mr. Arnerich and enacted in 1992. Measure D, to which you refer and with which I have a passing familiarity, closed what its sponsors considered to be a “loophole” in the prior measure.

  6. Steve Gerstle says:

    The City Council blundered into rezoning Crab Cove as residential. They made a huge mistake and they should take responsibility for that mistake. Instead, I see them equivocating by seeking to pass a “companion” measure that amounts to little more than a face saving move. When I was a young man, I saw the leaders of this nation blunder us into Vietnam and keep us there as hundreds returned in coffins each week. Unwilling to admit a mistake, they made the rest of us pay with blood and treasure. The “companion” measure is nothing but a self-serving move that will likely cause more litigation than it supposedly seeks to prevent. I’m looking for real leadership here.
    Who on the council and in the community will call that measure for the sham that it really is?

  7. Jenna says:

    I’m tempted to breathe a sigh of relief… but I don’t know if I trust this City Council enough to do so. I think I will just take a draft breath until I see the final measure.

  8. Dennis Laine says:

    Watch last nights (7-15-14) City Council meeting on the tape recording. Go to 4:59:04 on the tape, at that point our City Manager John Russo just finishes up his comments to some of the members of the council telling them about how hard they hard worked that night on all the issues presented to them. Russo then said, “Dealing with the Neptune Point NONSENSE that got put on.”
    I can only assume (my opinion) that it is Mr Russo’s opinion that the Crown Point issue is “NONSENSE.” I guess that Mr Russo must take us (the concerned citizens) that worked so hard on the Crown Point issue as a bunch of fools! Again this is just my personal opinion after listening to Mr Russo’s comment through an open mic.
    I, as a life long citizen of Alameda, expect the elected officials and paid employees (i.e. City Manager) take my concerns as well as the concerns of ALL the citizens of Alameda seriously. I didn’t expect the citizen’s concerns to be taken as “NONSENSE.”

  9. The Alamedan updated the Crab Cove zoning story today with a quote from park district:

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