Just who do these Council members think they are?

Boy, the Inner Ring really doesn’t like it when one of our elected Council members dares to dispute a determination made by the appointed Planning Board about a proposed development project.

At a minimum, the offender must have her wings clipped.  But if a Councilman commits the ultimate apostasy and actually votes to overturn a Planning Board decision, he ought to be plucked right out of the air.

Just take a look at what’s been happening this year with the “call for review,” particularly the recent contretemps over an assisted-living facility at the Harbor Bay business park.

The Municipal Code provides that any decision by the Planning Board (or the Historical Advisory Board) may be “called up for review” by the Council, or any member thereof, within 10 days.  The Code requires a “de novo” hearing – which means that Council is not bound by any factual or legal finding previously made by the Board.  At the hearing, Council may “consider the introduction of all pertinent material,” and “any party or person may appear in person or by agent or attorney to provide testimony.”

Between January 2015 and May 2016, five Planning Board decisions were called for review by Council.  One involved the location of cell phone towers, and another involved the sale of beer and wine at a convenience store.  But in the other three, the Board had approved development projects:  a hotel at the Harbor Bay business park; a five-story complex to be built on Park Street using “re-purposed” containers, and a three-story building with nine residential units and ground-floor retail on Webster Street.  When Council reviewed the decisions, it sent one project back to the Planning Board for re-design and attached additional conditions of its own to the approvals of the other two.

Three calls for review in a year and a half might not seem like a lot, considering all the development projects in the works during that period.  But it was three too many for the Inner Ringers – especially since the calls for review came from the two Council members whom Those In The Know deem unworthy of respect, Mayor Trish Spencer and Councilman Tony Daysog.

Two days after Council held its hearing on the Webster Street project, Councilman Jim Oddie submitted a Council referral proposing a change in the call-for-review process.  No longer could a Council member call a Planning Board decision for review on her own; henceforth, it would take a majority vote.

(As a practical matter, this meant that the two Council members who usually can be relied upon to take a pro-development stance, Mr. Oddie and Councilwoman Marilyn Ezzy Ashcraft, could block any Council review of a Planning Board decision requested by Ms. Spencer or Mr. Daysog if they were able to convince Vice Mayor Frank Matarrese to abstain.)

Ironically, the usual position of the Inner Ringers is that Council referrals overburden the Council calendar – if Ms. Spencer or Mr. Daysog are the ones making them.  But this time there was no problem with the procedure.  When Council heard Mr. Oddie’s referral, Michael McDonough and Kari Thompson from the Chamber of Commerce appeared to support the proposed revision.  Robb Ratto of the Park Street Business Association provided comic relief.

Then, lest there be any doubt about the intent of the proposal, Inner Ringleader and Planning Board chair John Knox White showed up to endorse requiring a majority vote before a Planning Board decision could be second-guessed by Council.  “Shouldn’t this Council be asking: Fellow members, if you can’t get three members to say this is an issue that should be discussed, why does one person want to bring it forward for conversation?” Mr. Knox White inquired.

Undoubtedly, he intended the question as rhetorical (and, of course, he knew the only right answer).  But Mayor Spencer, Vice Mayor Matarrese, and Councilman Daysog all insisted on preserving the prerogative granted by the Municipal Code.  As a result, Mr. Oddie back-pedaled and backed down.  He wasn’t insisting that Council adopt the majority-vote requirement, he said, just asking that staff be directed to review the review process. And that’s what Council, by a 3-to-2 margin, ended up voting to do.

(Not surprisingly, given the more pressing matters on its plate, staff hasn’t yet presented the results of its review.)

Four months passed, and then, wings unclipped, Mayor Spencer called another Planning Board decision for review.  And this time things got hotter – and uglier.

The project at issue was a 127-bed senior assisted-living facility (and a small office building) proposed for a site zoned for commercial use in the Harbor Bay business park.  The Planning Board did not adopt staff’s recommendation to amend the existing development plan to sanction the project as presented, but, at the urging of Assistant Community Development Director Andrew Thomas, it passed a resolution declaring that assisted living was an appropriate use for the parcel.

By calling the matter for review, Mayor Spencer put that policy issue in the hands of Council.  Which is where it belonged.  As Mr. Thomas wrote in the staff report, “The City Council is the only body in Alameda authorized to adopt General Plan policy; therefore, the City Council is the final authority on the interpretation and implementation of those policies.”

Council held its hearing on September 6.  Councilwoman Ashcraft and Councilman Oddie supported the Planning Board’s position, with Mr. Oddie giving an especially memorable performance.  He chose to walk Mr. Thomas through a series of leading questions designed to show that the objections to the proposed use were without merit.  When he got to the environmental issues, he established that, despite the concern expressed by opponents about the impact of the project on one particular animal, jack rabbits weren’t a protected species.  “Isn’t it true,” he continued, “that you can even hunt them?”  Taken aback, Mr. Thomas replied:  “I don’t know what our gun laws are here in Alameda.”

Both Vice Mayor Matarrese and Councilman Daysog challenged the legal basis for the Planning Board’s conclusion.  Mr. Matarrese questioned whether assisted living truly was a “commercial” use as defined by the Municipal Code.  Mr. Daysog, who has been crusading for noise restrictions at the Oakland airport since he was first elected to Council, wondered whether putting an assisted-living facility on the site would violate any of the multiple agreements between the City and the Port of Oakland.

(Curiously, City Attorney Janet Kern, who was sitting on the dais, remained silent about both of these legal questions, leaving Mr. Thomas to defend the legality of the proposed use.)

The decision thus came down to Mayor Spencer, who voted no.  Given its proximity to the airport, she argued, the site was too noisy for a “vulnerable” population like the seniors who would be living in the building.

One can argue the merits of this result – frankly, if we had gotten comfort from outside counsel on the legal issues raised by Messrs. Matarrese and Daysog, we might have voted to approve the assisted-living facility; who knows? we might need one ourselves any day now – but the judgment call indisputably was one Council had the authority to make.  The voters didn’t give John Knox White (and his camp followers on the Planning Board) final say over land-use decisions in the City.  That power rests with our elected representatives.  And when those representatives disagree with a Planning Board decision and vote to overturn it, well, that’s their job.

This doesn’t seem like a difficult point to grasp.  But it seems to be a very difficult one for the Inner Ring to accept.

The week after Council reversed the Planning Board decision, a guest editorial appeared in the Alameda Journal about Council’s action.  The piece was written in typical Inner Ring style – did you ever notice how every critic of the wisdom dispensed by Those Who Know Best “misstate[s] the facts” and “use[s] irrelevant data”? – but it was noteworthy for two reasons.

burton-davidFirst was the author.  It wasn’t Mr. Knox White, but his sidekick on the Board, David Burton.  Maybe there’s nothing odd about that, but Mr. Burton hadn’t voted for the decision he was defending – or even attended the meeting at which it was made.  According to his editorial, “I was recused from Westmont’s assisted living facility in the Harbor Bay Business Park due to a conflict with my employer.”

In fact, Mr. Burton has been recusing himself a lot these days.  Having owned his own architectural firm since 2004, Mr. Burton closed up shop this February and became an “executive director” at KTGY Architecture + Planning.  “During my time on this Board we’ve had the opportunity to review and decide upon a number of interesting multi-family housing developments, and over time I began to realize that I missed doing that scale and type of work,” Mr. Burton explained to his colleagues on February 22.  When he consulted other architects about his options, one of them – KTGY – offered him a “very interesting professional challenge that I feel I can’t pass up.”

As it happens, Mr. Burton’s new firm is a player in the Alameda residential development arena.  It was the architect for “Cadence at Alameda Landing,” 91 single-family detached homes now being sold at prices beginning in the “Low $1 Millions.”  It is the architect for two projects at Site A at Alameda Point:  the 128-unit senior and family apartment complex on Block 8, and 64 three-story townhomes on Block 6 next to the Main Street entrance.  And, if we understand Mr. Burton correctly, KTGY has some connection with the Harbor Bay assisted-living facility as well.

Beginning in February, Mr. Burton has recused himself from Planning Board agenda items involving Alameda Point six times; in addition, he didn’t attend two other meetings at which Alameda Point items were on the agenda.  (Mr. Burton also left the room during a Planning Board discussion about the Encinal Terminals project on May 23, but the reasons are unclear.)  Apparently, he now finds himself with time to play the role of attack dog.

The second noteworthy aspect of the editorial is the target of the attack.  Remember, three Council members voted to overturn the Planning Board decision.  But the editorial mentions only one of them:  Mr. Daysog.  According to Mr. Burton, Mr. Daysog not only gets his facts wrong, he has his priorities screwed up, preferring the “needs of hotel owners” to those of seniors “who have lived in and served our community for years.”  What’s worse, he is deceitful, “mask[ing] his true intentions” by “spouting the classic NIMBY line.”

Whew!  Of course, none of this invective even remotely reflects anything Mr. Daysog actually said at the Council hearing.  But providing an accurate description of events is not the point of Mr. Burton’s piece.  The point is plainly stated at the end:  “I hope Alamedans will join me on Nov. 8 and repay [Mr. Daysog’s] failure to serve the needs of our seniors by voting him off the City Council.”

The editorial is a classic example of what the political consulting trade calls “driving up the negatives.”  If you’re one of those voters who admires Mr. Daysog for “standing up for the needs of the whole community,” and not shilling for special interests, well, think again:  He’s actually such a scumbag that he turns his back on the very people who got him elected – three times – in the past!

Unsaid – because it doesn’t have to be – is the corollary:  You’ll be better off with, say, Malia Vella.  Is it any surprise that Ms. Vella lists Mr. Burton on her website as one of the community leaders endorsing her candidacy for Council?

Call us cynical, but we think the Inner Ring’s objection to Council reviewing, and overturning, Planning Board decisions stems only in part from arrogance.  The real motivating factor is just politics pure and simple.


Calls for review:  2015-09-01-staff-report-re-harbor-bay-hotel (Harbor Bay hotel)  2015-12-01-ex-1-to-staff-report-call-for-review (1926 Park St.); 2016-05-03-ex-3-to-staff-report-call-for-review-from-mayor-spencer (1435 Webster St.); 2016-09-06-ex-3-to-staff-report-call-for-review-by-mayor-spencer (Harbor Bay assisted-living facility)

Oddie referral: 2016-05-17-oddie-referral-re-calls-for-review

Harbor Bay assisted-living project: 2016-06-22-staff-report-to-pb-re-harbor-bay-assisted-living-project2016-09-06-staff-report-re-harbor-bay-senior-assisted-living-project


About Robert Sullwold

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

14 Responses to Just who do these Council members think they are?

  1. egorelick says:

    The most amusing part of Burton’s piece was the idea that Tony had betrayed him. There was an implication that Burton had voted for Daysog and was disappointed in his choice. I’ll eat my hat if David Burton voted for Tony Daysog.

  2. Kurt Peterson says:

    The only real question: When can we make the Alameda Insiders the Alameda Outsiders? The sensible answer: The Sooner the Better.

  3. wordist45 says:

    Great work. Burton’s language was infantile and unprofessional.

    Thanks for the post, as always, informative, incisive, thorough and elegant.

  4. MP says:

    With all of its references to “Alameda seniors”, keeping them in the community, and this community taking care of its own, when I first read the op-ed, I had the impression that Tony Daysog had single-handedly gone out of his way to ruin a project that had set-asides, special discounts, or “in-state” tuition for Alameda residents (see golf course). I didn’t see anything like that in the staff report, but maybe the Board member and author who “was recused from Westmont’s proposed assisted living facility in the Harbor Bay Business Park due to a conflict with my employer” knows more about the future offerings than staff.

    On the recusal, I think Mr. Burton meant that he had properly recused himself to avoid violating the conflict of interest rules or to avoid a close question under the rules. But maybe he “was recused”, with the implication being that it was a third person or body that recused him, or maybe the conflict rules are self-executing and the rules recused him. “Due to a conflict with my employer” also leaves me guessing somewhat.

    Noise reduction accords aside, one constituency an assisted living facility at that location might have particular appeal for is out of town adult children of facility residents who live in places with convenient connections to OAK. I don’t know if that is a particularly Alameda group or not.

  5. Tim S. says:

    Good piece. And as long as we’re making associations, note this corollary: Councilmember Marilyn Ezzy Ashcraft has endorsed David Burton. She also reconfirmed his appointment to the Planning Board for a second term.

    • Tim S. says:

      I meant to say Mr. Burton has endorsed Ms. Ashcraft. Specifically, Ms. Ashcraft lists Mr. Burton on her website as one of the community leaders endorsing her candidacy for Council.

  6. dave says:

    An architect’s experience is a valuable asset to the PB, but one without so many conflicts would be better. What good is the experience if he’s so frequently recused?

  7. Reyla Graber says:

    maybe this guy is recusing himself over many conflicts of interest and therefore he should resign. Or maybe he’s just bored by the Planning Board and therefore creates reasons not to show, and therefore should resign.

  8. egorelick says:

    I am not a big fan of David Burton vis-a-vis his inner ring status, but I have to say he has always seemed conscientious in his PB duties, engaged in the meeting, and his architectural knowledge was definitely an asset. That being said, it is possible that he won’t resign because he would prefer Spencer not to have another appt. slot, but only he can answer that question.

  9. Franklin100b says:

    Random thoughts after reading this. Well said Sir. We like this writing/blog. And RG, we agree, he should resign and ideally it’s a 2’fer, and JKW goes too. The sooner the better. Their unprofessional behavior and crappy attitudes need to be retired. Speaking from a silent and growing group in Alameda, that is ready to shake things up – we’re not the “old folk” (although we respect them greatly), we’re sure not (never ever) part of the brain washed pro anything that Alamedans United wants (90% of that group isn’t from Alameda by the way) and as a bonus we’re smarter/faster/better looking than anything one will find in a LaurenDuh article/following. Keep your digging and exposing Mr. RS – well done sir.

  10. Benjamin100b says:

    Agree w/RG

  11. Gretchen Lipow says:

    Alameda deserves a planning board member without the connections that Mr. Burton has. Six recusals in this year, so far, appears to render him ineffectual. He should step down.

  12. MJane says:

    It doesn’t seem unreasonable for Council to request his resignation as it seems his alliances/employment changed after he was appointed to the Planning Board, thereby reducing his “value” to the board (and thereby the City).

  13. Bill Ingalls says:

    Just got a Trumpian piece of mail from Alamedans United aka the Inner Ring.
    Attacking Tony Daysog for voting against the proposed Harbor Bay BUSINESS Park Senior Center.
    Claims he “ignored pleas from local seniors” and “Doesn’t Support Seniors”
    Shame on Alamedans United.

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