The incumbents’ last ha-ha

It was all going to be so easy for the Russo/Gilmore administration to get the package authorizing the Del Monte development project signed, sealed, and delivered by year-end, barely ten months after the project had been announced.

They’d get the Planning Board to sign off on the final documents in time for the matter to be placed on the December 2 Council agenda.  Even if a super-majority was necessary to pass an ordinance approving the development agreement, that would be no problem, since Mayor Marie Gilmore, Vice Mayor Marilyn Ezzy Ashcraft, Councilwoman Lena Tam, and Councilman Stewart Chen, D.C. could be counted on to vote in favor of the deal.  The second reading of the ordinance two weeks later, at the final Council meeting of the year, would be a mere formality.

Then the November election happened.

Mayor Gilmore and Councilman Chen lost their bids for re-election.  What’s worse, their replacements, Mayor-elect Trish Spencer and Vice Mayor-elect Frank Matarrese, campaigned on a platform of slowing down development.  Mr. Matarrese in particular urged downsizing the Del Monte project to limit housing to the “realistic capacity” shown in the 2015-2023 Housing Element (200 units) rather than the 414 units called for by the master plan.

All of a sudden, the smooth waters ahead for approval of the Del Monte project became a lot choppier.

But never underestimate the ingenuity of politicians convinced of the righteousness of their “vision” and contemptuous of any opposition to their cause.

Assisted by her longtime ally, Ms. Tam, the Mayor – or was it City Manager John Russo? – came up with a strategy to prevent Ms. Spencer or Mr. Matarrese from torpedoing, or even toying with, the Del Monte project.  The primary objective was to make sure that the current Council would be able to adopt the ordinances necessary to approve the project before the new Council was sworn in.

But there was also a “Plan B.”  This alternative scheme assumed that the current Council would not be able to jam through all of the necessary ordinances before its term expired.  In that event, the objective was to eliminate, or at least limit, the new Council’s ability to derail the Del Monte deal.

Here’s how it all worked:

At the outset, the sitting Council had to dismiss requests by the incoming Mayor and Vice Mayor, seconded by a number of their supporters, to allow the new Council to decide whether to go forward with the Del Monte proposal.  After all, the victors maintained, the election must have meant something.

Not a problem.

A dress rehearsal of sorts took place at the November 18 Council meeting when similar requests were made to postpone the decision about entering into an ENA with the “Alameda Point Partners, LLC” to develop “Site A” at Alameda Point.  Other than keeping the matter away from Ms. Spencer and Mr. Matarrese, there was no need to rush that action through the current Council.  (Joe Ernst and his partners weren’t going away if they had to wait a few weeks).  Yet the incumbents brushed aside the requests with a litany of sanctimonious declarations about “respecting the process.”

Having practiced their lines two weeks before, it was easy for those on the dais to blow off the suggestion that the new Council should call the shots on the Del Monte project.

Then it became necessary to set up a schedule enabling the incumbents to finish the approval “process” before they left office.  The ordinances passed on December 2 require a second reading.  The next regular Council meeting – the last of the year – is scheduled for December 16.  But that’s the meeting at which the new Mayor and Council members will be sworn in.

Under the City Charter, the term of newly elected officials “shall commence at 8:00 o’clock p.m.” on the third Tuesday in December – i.e., the date of last Council meeting of the year.  Traditionally, no substantive business is conducted at the swearing-in meeting.  Instead, the current Council convenes at the usual time of 7 p.m., adopts resolutions praising outgoing Council members and lets them make “farewell comments,” and then adjourns.  Then, promptly at 8 p.m., the meeting resumes with the administration of the oaths of office to the new Council.

Obviously, if this procedure were followed this year, the Council headed by Ms. Spencer would be the one presiding over the second reading of the Del Monte ordinances.

Not a problem.

When staff published the agenda for the December 16 regular Council meeting, it also noticed a special Council meeting to begin at 5 p.m. on the 16th.  The agenda for the special meeting contains only a consent calendar – but, lo and behold, the second reading of the Del Monte ordinances is the third item on the list.  That way, the current Council can pass the ordinances approving the Del Monte project for a second time before the regular meeting takes place.

(Responding to our inquiry to Mr. Russo, City Attorney Janet Kern assured us that this procedure is “typical for Alameda.”  Well, yes and no.  It is true that, in the last four election years, a “special” meeting occasionally has preceded the regular Council meeting on swearing-in day.  But never has a special meeting been scheduled to take place two hours before the regular meeting to allow the outgoing Council to green-light an item as controversial as the Del Monte project).

Why 5 p.m.?  Typically, an item can be “pulled” from the consent calendar at the request of a Council member – or if a citizen submits a speaker slip.  That surely will happen here.  In such a case, the item is treated like a regular agenda item, with public comment and Council discussion.  Apparently, the Mayor (and City Manager) believe that convening the “special” meeting at 5 p.m. will give them enough time to get the Del Monte ordinances passed again by the current Council before it is compelled to hand over the reins at 8 p.m.

They’re probably right.  The only wild card is the length of the public comment period at the special meeting.  But before Spencer and Matarrese supporters start getting ideas about mounting a filibuster, remember that the Sunshine Ordinance does not give the public an unlimited right to comment.  Indeed, as long as the Mayor can get two colleagues to go along, she can impose whatever restrictions she chooses.  (Ms. Gilmore:  “I’ll entertain a motion to restrict each speaker to 15 seconds.”  Ms. Tam:  “So moved.” Councilman Chen:  “Second.”  Ms. Gilmore:  “All in favor?  The ayes have it.  Chief Rolleri, station an officer next to the podium.”)

So by the time Ms. Spencer and Mr. Matarrese take their seats, the deal will have been done.  All that will be left for the new Mayor and Vice Mayor will be to enjoy the encomia offered by their predecessors’ admirers for the outgoing Council’s many achievements (which can now include the Del Monte development).

If all goes as planned, that’s how it will go down.  But some people at City Hall are wary enough to realize that the unexpected can occur – after all, Ms. Spencer got elected Mayor – and shrewd enough to prepare backup arrangements if it does.  Suppose that, somehow, the current Council can’t finish the job of approving the Del Monte project before its term expires.  What can be done to tie the hands of the incoming Mayor and Council so they can’t unravel what Ms. Gilmore and her allies have accomplished?

Welcome to Plan B.

The first step in the plan was to make sure that, if final approval of the project was left to the new Council, they couldn’t kill it with just two “No” votes.

As the deal was originally structured, this was a very real possibility.

Del Monte site plan

Del Monte development sub-area diagram (December 2, 2014)


In addition to the former warehouse, the Del Monte project includes two adjoining sites (Sites B and C in the diagram above) on which Tim Lewis intends to build housing.  Site B itself includes a parcel owned by the City at the corner of Sherman and Buena Vista.  The development agreement presented to the Planning Board (and approved on September 22) provides that, after Tim Lewis has completed the extension of Clement Avenue, “the City shall transfer fee title to the City Parcel by quitclaim deed. . .”  (emphasis supplied)

Pursuant to the City Charter, a sale or lease of property owned by the City requires a super-majority – four rather than three votes.  Since the development agreement includes just such a transfer, it could be argued that its approval likewise requires four votes.  Under those circumstances, if the agreement has to be ratified by the new Council, two of its members can stop the project by voting “No.”

Not a problem.

Some time between September 22 and November 17,  the development agreement was revised to replace the sentence requiring the City to transfer the City-owned parcel after completion of the Clement Avenue extension with language stating that the City need only “consider the transfer” of the parcel.  With this change, the development agreement arguably doesn’t provide for a sale of property any more.  In that case, four votes no longer are needed to approve it, and two “No” votes won’t torpedo the transaction.

Although Ms. Gilmore’s post-midnight comments showed that she was well aware of the change, neither the staff report nor the staff presentation to Council disclosed that the development agreement had been re-written – or why.  And it was the version containing the substitute language that was presented to, and approved by, the current Council early Wednesday morning.

One problem solved.

Then Councilwoman Tam, who is fond of reminding the audience that she is an engineer by training, wanted to bullet-proof the deal even further.  The revised development agreement retained vestigial authority for Ms. Spencer and the new Council to “consider the transfer” of the City-owned parcel.  What if they wouldn’t agree to it?  Ms. Tam wanted to ensure that, in that event, Tim Lewis would go forward with the project anyway.  If so, any obstinacy by the new Council wouldn’t matter.

Ms. Tam’s tactic for achieving this goal involved a bit of kabuki theater played out in the wee hours of Wednesday morning.  (It was somewhat ironic that Ms. Tam, who regularly votes “No” on motions allowing Council to conduct business after 10:30 p.m., was the one starring in this post-midnight production).  Drenched in disingenuity, the performance ended with a finale that left the audience, or what was left of it, shaking their heads.

Let’s set the stage.  Observing Council chambers packed with residents wanting to speak on the Del Monte agenda item, Councilman Tony Daysog requested that it be moved to the top of the regular calendar.  Ms. Gilmore ignored him.  After Council finished working its way through the consent calendar and three regular agenda matters, the Mayor called the Del Monte item around 9 p.m.

For the next hour or so, the audience was treated to slideshow presentations by City Planner Andrew Thomas, two representatives from Tim Lewis, and the project architect.  When it came time for Council questions, neither Ms. Tam nor Ms. Gilmore suggested that they had in mind any change to the master plan or the development agreement.

The public comment period began around 10:15 p.m.  Around three dozen residents spoke.  Ms. Gilmore strictly enforced the three-minute time limit, going so far as to instruct former Vice Mayor and two-term Councilman Doug deHaan to “Have a seat, please.”  Even so, the public comment period lasted until around 12:30 a.m.

Finally, it was time for Council discussion, and when her turn came around 1 a.m. Ms. Tam set her scheme in motion.  Her first move was to get a commitment from the developer that Tim Lewis was willing to go forward without the City-owned parcel.  Earlier in the evening, Mike O’Hara, the Del Monte project manager, had spoken for Tim Lewis; this time, it was Jim Meek, the firm’s Director of Land, Bay Area, who came to the podium.

Prompted by Ms. Tam, Mr. Meek assured Council that, if Tim Lewis didn’t get the City-owned parcel, it could still build a project with all of the promised “public benefits,” including affordable housing.  And how many total housing units would such a project include? Ms. Tam asked.  “380,” Mr. Meek answered quickly, almost as if he had known in advance that the question would be asked.

Ms. Tam then moved to amend the master plan and development agreement to cut the maximum number of residential units from 414 to 380.  With Tim Lewis having signed off on a reduced scope, she could be sure that the project would proceed regardless of what the new Council did with the City-owned parcel.

But she still had to sell the amendment to those of her colleagues who, unlike the Mayor, didn’t know what she was up to.  It took another hour, and even a private conference with the City Attorney, to get the job done.  Along the way, Ms. Tam took advantage of her colleagues’ willingness to suspend their sense of disbelief, especially at this late (or early) hour.

For example, Vice Mayor Ashcraft wondered why Ms. Tam was even talking about a project that didn’t include the City-owned parcel.  “Under what scenario,” she asked, somewhat incredulously, “would Tim Lewis not be able to acquire the City-owned parcel?”  Ms. Tam resisted the impulse to reveal her concerns about the potential lack of cooperation from the new Council.  Instead, she blithely told Ms. Ashcraft that she was addressing a situation in which the City “decided to retain the parcel for future use.”  Like what?  “Green space,” said Ms. Tam.  Additional green space right across from a new 22-acre park?  Ms. Ashcraft persisted.  That’s right, said Ms. Tam.

And why was 380 the magic number?  Ms. Tam shied away from defending that exact figure (maybe because she didn’t want to emphasize that it simply reflected the minimum number of housing units Tim Lewis said they could live with).  Rather, she focused on the overall reduction in the scope of residential development, which she pitched as an accommodation to the Del Monte neighbors concerned about density.

“A lot of people, they don’t know how many less units, they just think it’s too much,” Ms. Tam said. “We’re trying to be responsive to some of their concerns without having a concrete number on what lessening that number is, while preserving all the amenities and all of public benefits that ha[ve] been very carefully negotiated with the community and particularly the neighbors in that area.”

(This argument proved so persuasive that Councilman Chen eventually adopted it as his reason for seconding Ms. Tam’s motion.  “The community, from what I’ve heard, thinks that 415 [sic] is a little too high,” he said).

Eventually, as the clock passed 2 a.m., Council voted, 4-0, with Councilman Daysog abstaining, to adopt Ms. Tam’s motion.

Another problem solved.

We suppose that it is possible to admire Ms. Gilmore and Ms. Tam for their skill in orchestrating an outcome that will be very difficult, if not impossible, for the new Council to change.  And perhaps the Del Monte project is so beneficial to the City that it justifies the kind of maneuvers we’ve seen since the election.

But somehow, the way in which the defeated and termed-out incumbents went about achieving their goal strikes us as a little, well, unseemly.  Re-writing contracts after they’ve already been approved.  Changing the terms of the deal in the middle of the night.  Insisting on pressing ahead despite no need for haste.  Scheduling a “special” meeting to ram through final approval.  Is this really the way the “process” – to use the politicians’ favorite word – is supposed to work?

We would have hoped not.  But, in a way, if the current Council manages to push the Del Monte project through by these means, it will be a fitting end to the Mayor’s tenure.

All along, the approach taken by Ms. Gilmore and her like-minded colleagues has been:

We know what’s best for Alameda.

We expect the public to be “excited” about whatever we’ve decided to do.

To those who aren’t, we’ll let you talk – as long as you confine your remarks to three minutes and your supporters aren’t allowed to applaud – but we’re not going to change our minds.

In the end, we’ll find a way to get what we want – even if it takes us until 2 a.m.

And if you don’t like the result, you can just elect somebody else.

But here’s the kicker:  The voters did elect somebody else.  And it didn’t turn out to make a damn bit of difference.


Del Monte development agreement: 9/15/14 version (2014-09-22 Ex. 3b to staff report to PB – Del Monte development agreement ); 11/17/14 version (2014-12-02 Ex. 3 to Del Monte staff report – DA ); latest version (12-16-14 Ordinance – Del Monte Development Agreement)

Del Monte master plan: September 22, 2014 version (2014-09-22 Ex. 2b to staff report to PB – Del Monte master plan); December 2, 2014 version (2014-12-02 Ex. 2 to Del Monte staff report – Master Plan ); latest version (12-16-14 Ordinance – Del Monte Master Plan-redline)


About Robert Sullwold

Partner, Sullwold & Hughes Specializes in investment litigation
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7 Responses to The incumbents’ last ha-ha

  1. Bill says:

    Robert. Though there will be a new mayor, that is not a reason to delay progress that the city badly needs. Mayor Gilmore may have lost simply because the people who want growth simply did not take the time to vote. There seems to be an overwhelming amount of people at the council meetings who wanted the Del Monte project to move forward and for Plan A to proceed. Mayor Gilmore, Lena Tam and others did listen to the people and the people wanted growth. They’ve wanted it for a number of years. Those people are still out there, still wanting growth. No one wants uncontrolled growth, but if the opportunities present themselves, we have to tae advantage of them. There seems to be two type of people in our town. Campers and climbers. We will see what type of council we’ll have going forward. No after which one, we all hope they are responsible and do what is best for Alameda. Not an easy task.

    • Dan says:

      I do not believe the number of people wanting Del Monte was “overwhelming”, but they were a majority. If you had a meeting of the people from the surrounding neighborhood, you would see quite the opposite. Most people want SOMETHING to happen with Del Monte, but those who oppose this are frustrated by all the principals being violated. “Why can’t we just do it right?” Is a familiar comment. And the way you talk about the people wanting growth made me think of drug addicts who just want the immediate high and give no thought to the consequences.

  2. Sharon says:

    Progress is subjective, and there are those who are both campers and climbers.

  3. Tom says:

    Ahh the manipulations of lame ducks! Lead by a warrior attorney city manager!

    Will be fun to see if the new council can overcome Russo’s need to be in Colette control.

  4. A Neighbor says:

    When will the fat lady sing?

  5. Dan says:

    There may be one BIG problem with all the scheming. City municipal code requires public notices be posted about these meetings. Most people don’t pay attention to that stuff, but it’s the law, and up until now, every single meeting on Del Monte has has had a green notice posted on the street over there. I have been watching. But this second reading? Nope. Nothing. The notice for the first reading says nothing about a second reading and there are no separate notices for it. They blew it. A minor technicality? Yes, maybe, but that’s what they are using to get their way at the last minute anyway. The only way to look at this is abuse of power, and hopefully forgetting one little detail forces them to lose.

  6. notmayberry says:

    I’m not so sure all notice was proper. Today, Saturday, 12-13-14, City Website still shows DelMonte to be 7 PM business in 2 out of 3 places.
    From AMC 2-91-4.f.
    Special meetings of any policy body, including advisory bodies that choose to establish regular meeting times, may be called at any time by the presiding officer thereof or by a majority of the members thereof, by delivering personally or by mail written notice to each member of such policy body and the local media who have requested written notice of special meetings in writing. Such notice of a special meeting shall be delivered as described in (e) at least seven (7) days before the time of such meeting as specified in the notice, with the exception of any urgent matter beyond the control of the City. The notice shall specify the time and place of the special meeting and the business to be transacted. No other business shall be considered at such meetings. Such written notice may be dispensed with as to any member who at or prior to the time the meeting convenes files with the presiding officer or secretary of the body or commission a written waiver of notice. Such written notice may also be dispensed with as to any member who is actually present at the meeting at the time it convenes. Each special meeting shall be held at the regular meeting place of the policy body except that the policy body may designate an alternate meeting place provided that such alternate location is specified in the notice of the special meeting.

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