Cowan swings and misses – again

As the late Yogi Berra would say, for Ron Cowan it looks like it might be déjà vu all over again.

Three years ago, Mr. Cowan came up with a scheme to tear up recreational property – the Mif Albright golf course – so that he could build a housing development.  A grassroots citizens group arose to oppose him.  And, despite Mr. Cowan’s vaunted political clout, our Council members decided they couldn’t risk alienating a committed corps of voters – and turned him down.

Less than a year later, Mr. Cowan was back with a scheme to tear down recreational property – the Harbor Bay Club – so that he could build a housing development.  Again, a grassroots citizens group arose to oppose him.  And again, despite Mr. Cowan’s vigorous P.R. campaign, a Council majority may be reluctant to antagonize a dedicated band of voters – and decide to send him packing.

The denouement is set to occur Wednesday, when Council holds a special meeting to render an advisory opinion on whether it would re-zone the HBC site on Packet Landing Road to allow residential development.  If Council votes no, Mr. Cowan can pursue, if he wishes, his pending application to construct a new club on North Loop Road – but he won’t be able to pay for it by bulldozing the existing club and replacing it with 80 luxury homes.

But, as Yogi also said, it ain’t over ‘til it’s over.

The mere fact that the special meeting is going to be held at all signifies that the Inner Ringers – the enlightened elite who know what’s best for the rest of us – don’t want Mr. Cowan’s latest scheme to keep hanging over their heads.  Just take a look at how the meeting came to be scheduled in the first place.

If you believe newly elected Planning Board chairman John Knox White, the idea for the special meeting came from . . . John Knox White.

During the member comment portion at the end of the September 14 Planning Board meeting, Mr. Knox White reminded his colleagues that the Board had agreed in February 2014 to give a heads-up to a developer about whether it would re-zone property located at 1835 Oak Street to permit residential development.  “After that meeting,” Mr. Knox White said, “I talked a little bit with Andrew [Thomas, the City Planner] and Farima [Brown, the Senior Assistant City Attorney] about, Why aren’t we doing that with the Harbor Bay Club issue?”

Mr. Knox White didn’t relate staff’s response, but now, 18 months later, he chose to make his suggestion publicly.  “I really want to encourage staff to bring forward, not to the Planning Board, but to the City Council, a resolution for a sense of the Council on whether or not they’d be even willing to consider re-zoning the existing commercial/recreation space the Club is sitting on,” he said.

True, Mr. Knox White admitted, ordinarily the Planning Board itself would be the first body to consider the re-zoning application.  But the Board’s decision inevitably would be appealed to Council.  “I really think it’s time for us to take control of the planning that’s happening,” he said, “and not just have it out there walking around at the whims of an applicant who has applied and then withdrawn, now doing whatever.”

Lo and behold, a regular meeting of Council was set for the very next day.  The first speaker during the public comment period was Peter Fletcher, a member of Harbor Bay Neighbors, the grassroots citizens group opposing Mr. Cowan’s plan, who urged Council to do exactly what Mr. Knox White had proposed the day before:  decide now whether it would re-zone the HBC property.

Mr. Fletcher had barely left the podium before Councilman Jim Oddie endorsed the idea.  “This is a very contentious issue,” Mr. Oddie said. “I’d be in favor of Council taking control of this zoning process and having this public hearing.”  When Mayor Spencer asked for comments from the rest of Council, the only one who spoke up was Councilwoman Marilyn Ezzy Ashcraft.  She, too, thought the idea was grand.

And so, after Interim City Manager Liz Warmerdam confirmed that there was room on the calendar, the special meeting was scheduled for October 7.  The entire discussion took all of three minutes.

Why would Mr. Oddie and Ms. Ashcraft so quickly agree to bypass the usual procedures and bring the HBC issue to a head?  It would be tempting to conclude that they are poised to join Mayor Trish Spencer and Vice Mayor Frank Matarrese (assuming he sticks to the position he espoused during the campaign – never a sure thing) and maybe even Councilman Tony Daysog in handing Mr. Cowan another defeat.

If Mr. Oddie and Ms. Ashcraft had intended to side with Mr. Cowan, they could have let the planning process take its normal course.  In that event, Mr. Cowan could get his pending application to build a new club on North Loop Road approved first – a far easier task.  He then could argue that he would be forced to pull the plug on an already-approved, in-the-works project unless Council went along with re-zoning the existing HBC site, too.

Mr. Oddie has been courting the Bay Farm Island vote assiduously since he took office – viz., his Council referral to direct staff to study “suggestions to provide relief for traffic on Island Drive.”  Likewise, Ms. Ashcraft, presumably contemplating a mayoral run in 2016, couldn’t have helped but have noticed that her good friend, former Mayor Marie Gilmore, may have lost her bid for re-election because she failed to carry Bay Farm Island.  It can’t hurt either Mr. Oddie or Ms. Ashcraft to ingratiate themselves with the Harbor Bay residents who have rallied to scuttle the plot to plop more housing into their midst.

But opposing Mr. Cowan’s latest scheme isn’t necessarily the wisest political move.  For one thing, Harbor Bay Neighbors may number 1,100 members, but it can’t claim unanimous support among Harbor Bay Isle residents.  We saw, for example, an op-ed piece this week in the Alameda Sun from Ron Matthews, who was one of the prominent backers of the “swap” for the Mif, supporting the “relocation” of the Club and expressing abhorrence at the “very personal attacks on Ron Cowan, a man whose vision created one of the most beautiful residential communities in the entire world.”   For all we know, Duffy & Capitolo (or whomever Mr. Cowan is using these days as his political consulting firm) has done a poll showing that a candidate actually could gain Bay Farm votes by taking a pro-Cowan stance.

What’s more, we can’t dismiss the possibility that Mr. Cowan still retains a position of influence with the Democratic party establishment of which Mr. Oddie and Ms. Ashcraft are, or hope to become, a part.  Thanks to a leak to blogger Lauren Do, we know that Mr. Cowan was not above hauling out the big guns to try to intimidate former Mayor Gilmore and former City Manager John Russo when he first announced his HBC scheme.  (“Willie [Brown Jr., former State Assembly speaker and San Francisco Mayor] and I both expect the City to support the project on it’s [sic] merits,” Mr. Cowan wrote in an email to Ms. Gilmore and Mr. Russo.  “Willie will make that very clear to you, John. Marie you can vote any way you want . . . although Willie said that anybody who’s that scared of losing the job probably isn’t strong enough to hold on.”).  If we were running HBN, we’d keep our eyes on the City Hall parking lot and watch for a man in a Wilkes Bashford suit getting out of his Porsche and heading for the third floor.

And if you really want to indulge in conspiracy theories, try this one:  During the last campaign, supporters of the slate endorsed by the Alameda County Democratic party – former Mayor Gilmore, Mr. Oddie, and former Councilman Stewart Chen – criticized candidates Spencer and Matarrese for answering a question at a public forum about the master plan for Harbor Bay Isle.  (When their turn came, all three slate-mates begged off).  They even went so far as to suggest that Ms. Spencer and Mr. Matarrese would be disqualified from voting on any HBC issue that came before Council.

This assertion was pure balderdash.  In fact, the California Supreme Court has upheld the right of candidates for local public office to answer questions about proposed developments during a campaign without risking subsequent disqualification from voting.  But rulings by the state’s highest court never stand in the way of what the Inner Ringers know to be the law.

So suppose that, as soon as Mayor Spencer calls the special meeting to order Wednesday, Ms. Ashcraft or Mr. Oddie – we’d bet on the latter – moves to disqualify the Mayor and Vice Mayor from voting on any resolution involving the Harbor Bay Club.  City Attorney Janet Kern, choosing to ignore City of Fairfield v. Superior Court, 14 Cal.3d 768 (1975), provides legal cover.  (It may get even easier if Mr. Matarrese decides to recuse himself because he owns property in the Harbor Bay Business Park).  After a decent interval to allow the public to address Council, Ms. Ashcraft or Mr. Oddie – this time, we’d bet on Ms. Ashcraft – moves to authorize re-zoning, characterizing the addition of 80 luxury homes as a major step toward solving the City’s affordable housing crisis.  Councilman Tony Daysog dissents, but with Ms. Spencer and Mr. Matarrese not voting, the motion passes, 2-to-1.

Can’t happen, you say?  Well, wait ‘til Wednesday.  For all we know, Mr. Oddie and Ms. Ashcraft subscribe to another Yogi-ism:  “If you see a fork in the road, take it.”

At this point, some of our readers may be saying, Wait a minute.  The HBC re-zoning decision can’t be all about politics.  That’s not the way our elected officials act.  To use one of Councilman Daysog’s favorite phrases, they just “call balls and strikes” and do what’s best for the citizens of Alameda.

Okay, we’re willing to play in that ballpark.  But the bottom line isn’t going to change.

As the party seeking to get the HBC site re-zoned to permit residential development, Mr. Cowan bears the burden of convincing Council to amend the designation of the property under the General Plan (“Commercial Recreation”) and the zoning ordinance (“C-2″).  “Pursuant to State and local law,” the staff report – accurately – states, Council “cannot change the General Plan or zoning designation for any property in Harbor Bay unless the City Council can find that the amendments are in the best interests of the public, support the general welfare of the community as a whole, and are consistent with the other policies within the General Plan.”

This is, to be sure, an amorphous standard, but, based on the record so far, Mr. Cowan can’t claim to have met it.  Indeed, he hasn’t even tried to justify re-zoning the HBC site on its own merits:  In response to staff’s invitation to submit a written argument before Wednesday’s meeting, Mr. Cowan offered only a summary of the advantages of a new Club.  (By contrast, HBN submitted a four-page argument about why re-zoning would not satisfy the legal test).

Fortunately, the staff report lays out Mr. Cowan’s arguments for him.  In addition, the Sun recently published a series of three op‑ed pieces – author unidentified – purporting to refute HBN’s case against the re-zoning.  From these sources we can get a clue about what Mr. Cowan’s spokesman might say Wednesday.  (Wouldn’t it be a hoot if Ron himself showed up?)

If we’re lucky, we won’t hear the argument that the City has a legal obligation to re-zone the HBC site to allow Mr. Cowan to build additional houses.  We remember all too well his contention during the golf wars that the City “owed” him land on which to “complete” the residential development of Harbor Bay Isle.  Then, he demanded that the City pay its debt by swapping the Mif; this time, we feared, he’d insist on the HBC site as the payoff.

At the outset, Mr. Cowan did indeed appear headed down this road.  When his latest scheme was announced in April 2013, C. Timothy Hoppen of HBIA delivered a letter to Council declaring:  “The courts have determined that Harbor Bay Isle Associates has an indisputable right to build an additional 227 units.”  In fact, what the courts had determined was that the development agreement gave Mr. Cowan the right to apply to build more houses; the City had no legal obligation to accede to his request.

Recently, Mr. Cowan seems to have backed down.  The second of the three Sun articles concedes that “HBIA does not have the ‘indisputable’ right to build more homes wherever it wants.”  (The anonymous author then goes on to assert, “HBIA has never claimed otherwise.”  Maybe the author forgot to talk to Mr. Hoppen).

But even the concession stops short of complete accuracy.  The City, the article continues, has the “right, obligation, and policing powers to evaluate the merits” of any project Mr. Cowan proposes.  So it does – but that isn’t all:  the City also has the “right, obligation, and policing powers” to determine whether to give Mr. Cowan the opportunity to undertake any residential development whatsoever on the HBC site.

So watch out.  We can only count ourselves lucky to have Mr. Oddie, who likes to display his talents as a cross-examiner during Council meetings, on the dais.  Have at ‘em, Jim!

What then does Mr. Cowan’s case consist of?  The staff report identifies five points, three of which should not detain us very long.

One of them argues that residential development on the HBC site would create “additional housing opportunities to address the regional and local housing crisis.”  It is, of course, true – by definition – that additional residential development means more housing units, but, somehow, we don’t suspect Mr. Cowan has in mind building houses affordable by low- or moderate-income households.  Moreover, as the staff report itself points out, the City already has zoned enough sites for residential use to satisfy its regional housing needs requirement through 2023, and “no rezoning for housing is needed.”

We are similarly not persuaded by the argument that the City should re-zone the HBC site because “residential use is a good neighbor.”  We suppose that, if you view the residential “villages” in the Harbor Bay development as part of one big neighborhood (with Mr. Cowan playing the Fred Rogers role), new houses would be more “compatible” than some of the uses permitted under the current “Commercial Recreation” designation.  But if Council declines to re-zone the HBC site, how likely is it that any unsuitable commercial enterprises would spring up there?  We don’t think that Mr. Cowan himself would find it profitable to tear down the existing club and replace it with bowling alleys, mini-golf courses, or RV storage facilities.  Nor do we know many developers who’d pay waterfront property prices – which Mr. Cowan surely would demand – to get the land for that purpose.

Lastly, we almost had to laugh at the argument that, since the Harbor Bay Club is a “local business that serves the local community,” re‑zoning the HBC site “can be viewed as supporting the expansion of a local business similar to other efforts in the Harbor Bay Business Park.”  Howzzat again?  If Mr. Cowan gets his way, the Harbor Bay Club won’t be creating substantial new jobs and generating significant new tax revenues; it’ll just be turning up, albeit in a snazzier version, in another location.  Sure, Mr. Cowan’s own business may “expand,” but hasn’t he gotten enough “support” already from the local politicians?  After all, they named a parkway after him.

Surprisingly, one of the remaining two arguments involves traffic.  According to the staff report, a new residential development on the HBC site “will not generate significantly more traffic” than the existing Club does.  This really isn’t an argument for re-zoning the site; it’s just a response to an argument against re-zoning.  But in one of the Sun articles, HBIA goes further and claims that replacing the current Club with 80 houses actually will improve traffic conditions on Bay Farm Island.  “Simply stated, the redevelopment of the current club property with 80 single family homes has the potential to significantly reduce traffic on Packet Landing Road, reduce congestion on Island Drive,” the anonymous author writes.  “This will result in a net positive impact to the traffic pattern on Bay Farm Island that will benefit the entire community.”

Is that right?  No draft Environmental Impact Report has been made public, and Mr. Thomas told us no release date is scheduled.  But the initial environmental study prepared for the City in September 2013 came to a different conclusion.  It found that the project – consisting of the new housing and the new club – would have a “potentially significant impact” on traffic.  It went on:

The proposed project would increase vehicle trips.  Construction of the proposed project would temporarily generate heavy truck trips for the hauling of demolition waste and the delivery of construction materials, as well as vehicle trips for construction worker commutes. Operation of the proposed project would generate new vehicle trips associated with new residents and the relocation of trip from the existing athletic club to the Harbor Bay Athletic Club Site.

In the Sun article, the anonymous author states that “HBIA is confident that the draft EIR soon to be released will confirm that traffic will in fact improve at the current club location once it is redeveloped with 80 single family homes.”  We’ll be eager to read – if the proposal survives beyond Wednesday – what new facts have emerged since September 2013 to compel a finding diametrically opposed to the one set forth in the initial study.

So now we come to the crux of the matter.  The primary argument in support of re-zoning the HBC site really isn’t addressed to the merits of further residential development on Harbor Bay Isle at all.  Instead, as the staff report puts it, re-zoning “could help the property owner (HBIA) finance construction of a new Harbor Bay Health Club in the Business Park, which will provide improved recreational and fitness facilities for club members.”  To put it more bluntly:  The only way to get a new club with all of the amenities Mr. Cowan is promising is to permit him to demolish the existing club and build houses on the land (or sell it to someone who will).  And this can’t happen unless Council agrees to re-zone the existing HBC site.

We have a number of problems with this argument.  Start with the premise:  We have only Mr. Cowan’s word that freeing him to develop the HBC site for housing – or to sell it to someone else for that purpose – is necessary to enable him to pay the cost of building a new club on North Loop Road.  And even if that’s true, obtaining the funds to finance construction is Mr. Cowan’s responsibility, not the City’s.  We don’t see why Council should amend the General Plan and change the zoning of the HBC parcel simply to make it easier for a private developer like Mr. Cowan to raise capital.

Remember, too, that the legal standards speak in terms of the “interests of the public” and the “general welfare of the community as a whole.”  Maybe a brand spanking new club on North Loop Road would inure to the benefit of the 3,800 HBC members.  But this is only about a quarter of the total population in zip code 94502 and only about 5% of the total number of residents in Alameda.  We can well understand why HBC members – we even know a few – might drool at the prospect of a new club offering “three swimming pools, a 40,000 square foot fitness center, nine tennis courts, a new spa, expanded kids’ programs, an all-weather kids’ play field, a large poolside cafe, and much more.”  But we’re not convinced that Council should amend the General Plan and change the zoning of the HBC parcel to accommodate them.

We suppose our fundamental problem with this argument is that it reminds us too much of Mr. Cowan’s similar hard bargaining during the golf wars.  Give me what I want, he says, and I’ll give you something some of you may want.  The last time around, it was new youth sports fields.  This time, it’s a new Harbor Bay Club.

In both cases, Mr. Cowan has pursued a classic “divide-and-conquer” strategy.  For the Mif, he pitted golfers and open-space advocates against youth sports promoters.  For the latest scheme, he’s setting residents living near the existing club against HBC members craving a new one.  If the strategy succeeds, one group is sure to lose.  The only one likely to emerge as the winner is . . . Mr. Cowan himself.

Finally, we confess that, ever since the golf wars, we’ve never been a big fan of Ron Cowan.  Indeed, we signed up as a supporter of Harbor Bay Neighbors as soon as the group was formed.  But if you’re inclined to dismiss our critique of Mr. Cowan’s case as biased, we’ll direct you to the staff report written by Mr. Thomas (whom, ironically, Mr. Cowan identified in the leaked email as the co-originator of the idea to build a new Harbor Bay Club on North Loop Road).

After rehearsing, with his customary care, the arguments made by both sides, Mr. Thomas concludes by recommending, on behalf of staff, that Council “move to affirm the current General Plan and Zoning designations for the [HBC] property.”  You may lack faith in the Merry-Go-Round’s objectivity.  But if you can’t trust Andrew Thomas, whom can you trust?

Sources:

Staff report: 2015-10-07 staff report re HBC zoning

HBIA submission: 2015-10-07 Ex. 1 – HBIA statement re HBC zoning

HBIA Sun op-ed articles: HBIA Sun article (Part 1)HBIA Sun article (Part 2)HBIA Sun article (Part 3)

HBN submission: 2015-10-07 Ex. 2 – HBN statement re HBC zoning

Initial study: 2013-09-26 initial study

City of Fairfield v. v. Superior Court, 14 Cal.3d 768 (1975): City of Fairfield

 

About Robert Sullwold

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

8 Responses to Cowan swings and misses – again

  1. BMac says:

    your predictions were *thisclose*

  2. David says:

    The Mayor was sensible to abstain from casting a vote in a meaningless exercise. It’s unlikely anything good could come of a 4-0 vote making a meaningless affirmation.

    Ron Cowan has a history of finding excuses to file lawsuits against the City of Alameda, the sole purpose of which is to allow City Council to declared ‘closed session’ meetings so Cowan can get what he wants behind closed doors.

    On the other hand, wouldn’t it be funny/ironic if the 4 council members that voted essentially neutered themselves on any future vote regarding Cowan’s parcel, leaving the Mayor with the sole deciding vote?

  3. BMac says:

    Could a 1-0 vote actually decide anything, legally, if the others were forced to recuse themselves? Wouldn’t you still require a quorum? More likely, a court would decide whether a project could move forward if a majority of the council could not sit for the item.

    • David says:

      You need a quorum for a meeting, not for a vote.

      If the others were forced to recuse themselves, or abstained, a 1-0-4 vote would carry the motion.

      It’s no different from the 4-0-1 vote that carried the absolutely meaningless “advisory” affirmation.

  4. David says:

    Methinks you know not whereof you speak. Rather, you are speaking to what you would like to be true.

    • David says:

      http://www.ca-ilg.org/sites/main/files/file-attachments/resources__LEAGUE_OF_CA_CITIES__VOTING_REQUIRMENTS__ABSENCES_VACANCIES_ABSTENTIONS_AND_DISQUALIFICATIONS-1.pdf

      5. ABSTENTIONS AND DISQUALIFICATIONS
      Abstentions and disqualifications present the most complex and also the most common
      voting issues that city attorneys are likely to encounter. The most important rule to remember is that when councilmembers are disqualified from voting because of a conflict of interest, they are no longer counted as part of the quorum.

      In Farwell v. Town of Los Gatos, (1990) 222 Cal.App. 3d 711 (subsequently ordered not
      published), the Town by a vote of two in favor, two abstentions, and one absent (2-0-2-1), passed four preliminary resolutions initiating formation of a down town parking assessment district.

      The Town later completed formation of the district and the plaintiffs sued. Plaintiffs sued on
      every possible theory including the assessment formula, determination of benefit, appealed, the only issue that troubled the appellate courts was the way the preliminary votes were taken.

      Under the traditional rule, councilmembers who abstain are counted for purposes of
      determining a quorum and the abstentions are simply not counted in tallying the votes.

      Thus, where four of five board members were present, two members voted in favor of the motion, one voted against it, and one abstained (2-1-1-1), the motion passed.

      Dry Creek Valley Assn., Inc. v.
      Board of Supervisors (1977) 67 Cal.App.3d 839.3

      Likewise in Martin v. Ballinger (1983) 25 Cal.App.2d 435, a motion was validly passes by a vote of two in favor, two abstentions and one vacant position (2-0-2-0). The case stated the applicable rule:

      “Where there is a quorum present, and a majority of the quorum
      votes in favor of a proposition, it is carried, notwithstanding an
      equal number refuse or fail to vote . . . ” (25 Cal.App. 2d at 437.)

      See, also, 62 Ops. Atty. Gen 698 (1979), reaching the same conclusion.

      However, Farwell makes it clear that this is not the rule when the councilmembers are disqualified because of conflict if interest. The court specifically held “for purposes of making this quorum of three, no member disqualified because of a conflict of interest may be counted.”

      222 Cal. App.3d 711. Farwell is the first judicial decision which expressly states this principle

  5. carol says:

    Meanwhile, thanks to Jeff DelBono, the first building erected at Alameda Point by WETA is to be named The Ron Cowan Central Bay Operations & Maintenance Facility. Mr DelBono, Alameda’s representative on the WETA Board, acknowledged that some in the Alameda community may disagree with the decision. The vote by the WETA Board was not unanimous, but DelBono’s vote carried the motion to honor Cowan at this, the other end of the Island City aka Cowanville. https://sanfranciscobayferry.com/sites/default/files/weta/meetings/Minutes/2016/090116.pdf I guess naming a road after him wasn’t enough.

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