Measure for measure

The rhetoric was flying off the dais last Wednesday as four members of the new Council made it clear that they opposed the initiative to re-zone a 3.712-acre parcel on the northern end of McKay Avenue as “open space” in order to prevent it from being used for a “wellness center” for the homeless.

The grandiloquence was not only grating but gratuitous, since, as we will discuss later, there are good reasons to oppose the open-space initiative that don’t depend on paeans or pejoratives.

What’s worse, for foes of the initiative, was that Council took actions that, it can be argued, enhanced, rather than diminished, the measure’s chances of success at the polls.  It might behoove certain of our politicians to take their heads out of . . . the clouds and keep their eye on the ball instead.

The first questionable action was Council’s decision to call a special election for April 9 to put the initiative before the voters.

Under the Elections Code, a qualifying local initiative ordinarily is placed on the ballot for the next regular municipal election – in this case, November 3, 2020.  But the Code also gives a legislative body the option to call a special election for an earlier date.

Not surprisingly, taking the latter route is far more expensive than following the usual course.  Here, staff estimated that a special election would cost between $580,000 and $730,000, compared to $25,000 to put the initiative on the next regular election ballot.  This cost differential led Councilman Tony Daysog to urge adhering to the standard procedure, which, he pointed out, the proponents of the initiative also wanted.

But the other four Council members insisted on the April 2019 date.  What’s the rush?  According to Councilman John Knox White, if a special election wasn’t called to put the initiative on the ballot in April, the project’s sponsor, the Alameda Point Collaborative, “will lose tens of millions of dollars of money” already “committed” for the project.

Councilman Daysog noted that APC’s executive director, Doug Biggs, hadn’t mentioned any loss of funding commitments during his two turns at the podium.  So we contacted  Mr. Biggs to get the facts.  It turns out that Mr. Knox White’s statement was a bit of
an. . . exaggeration.

Mr. Biggs told us that the “wellness center” project “has been recommended” for a $11.5 million grant of Measure A-1 funds, subject to approval by the Alameda County Board of Supervisors.  If the County made the grant and then the voters passed the open-space initiative, he said, APC would have to pay back the funds it already spent.  Likewise, Mr. Biggs told us that “Kaiser Community Benefits leadership is championing a $5 million request” for the project, subject to approval by its national Board of Directors.  If the zoning issue has to wait till November 2020 to be resolved, “there is considerable risk that the project will lose its status as a priority project for Kaiser and not be funded.”  In addition, Mr. Biggs said, “There are other funds coming out, such as prop 2 funds that are designed to be disbursed as soon as possible, and waiting 2 years to apply will likely knock us out [of] contention.”

So maybe the decision to put the open-space initiative on the ballot in April 2019 was a legitimate effort to protect the project’s funding prospects.  But no one on Council appeared to consider – at least publicly – the possible impact on the initiative’s chances of success at the polls if a special election is held in three months.

The conventional wisdom is that special elections are low-turnout elections, and low-turnout elections favor special-interest groups.  “It is an established fact,” Sarah Anzia, a U.C. Berkeley political science professor wrote in a 2011 article, “that off-cycle elections attract lower voter turnout than on-cycle elections. . . .  [T]he decrease in turnout that accompanies off-cycle election timing creates a strategic opportunity for organized interest groups.  Members of interest groups with a large stake in an election outcome turn out at high rates regardless of election timing, and their efforts to mobilize and persuade voters have a greater impact when turnout is low.”

The petition for the open-space initiative was signed by 6,872 Alameda residents.  If these petition-signers are truly devoted to the cause, the proponents of the open-space initiative can get a 6,000-plus-vote head start by making sure that they go to the polls on April 9.  In a low-turnout election, this kind of head start might be hard to overcome.

The second action by Council that might prove to be counter-productive was the decision to put a “competing” measure on the ballot alongside the open-space initiative.

Last December, Council passed an ordinance amending the General Plan and zoning map to remove the designation of the McKay Avenue parcel as a “Federal Facility” subject to the “Governmental” overlay.  This change was key to APC’s ability to take title to the land, since its contract with the feds conditioned the obligation to transfer on “proper rezoning of the property for [APC’s] program of use. . . .”

The “competing” measure proposed by staff, which Council placed on the April 9 ballot by a 4-1 vote, is entitled the “Caring Alameda Act.”  Despite its highfalutin title, all the measure does is to “confirm” the actions taken by Council last December.

A legislative act does not require validation by the electorate.  So what’s the point of the “Caring Alameda Act”?  It’s a device for erecting another barrier in the way of the open-space initiative:  Under the Elections Code, “If the provisions of two or more ordinances adopted at the same election conflict, the ordinance receiving the highest number of affirmative votes shall control.”  The open-space initiative, which re-zones the McKay Avenue parcel to open space, conflicts with the Council-sponsored competing measure, which preserves the current office/administrative-professional zoning.  So even if the open-space initiative passes, it will have no effect if the “Caring Alameda Act” gets more votes.

This may seem like an shrewd fail-safe for the opponents of the open-space initiative – but only if voters are able to distinguish between the two zoning measures and realize that they should vote no on the open-space initiative and yes on the competing measure.

And that is by no means a sure thing.  Presumably, the title of the Council-sponsored measure was chosen to appeal to the better angels of Alamedans’ nature.  (Although when we saw it, what came to mind was the late George H. W. Bush’s famous line: “Message:  I care.”)  But the title of the open-space initiative is the “Second Initiative for Expansion of Open Space at Crab Cove,” and there are a lot of residents who regard “open space” as synonymous with “parkland” and prize it accordingly.  If all a voter read were the titles, who’s to say that she wouldn’t prefer the specificity of “open space” to the amorphousness of “caring”?  Or that she might find these two concepts equally noble?  In either case, she’s not going to vote the way the opponents of the open-space initiative want her to.

None of the Council members who opposed the open-space initiative appeared to appreciate this risk – except for Councilwoman Malia Vella, who’s gaining a reputation (in our eyes) as the savviest politician on the dais (a distinction once held by former Councilwoman Lena Tam).  As usual, we found Ms. Vella’s sentences hard to parse, but her point was clear: “I worry about confusing voters,” she said. “We’re asking them a negative in one and a positive in another, and I just worry about that.”  To her, the better strategy was not to put a competing measure on the ballot, but to draft a compelling argument in opposition to the open-space initiative.

Ms. Vella raised a “good question,” Mayor Marilyn Ezzy Ashcraft responded, and then endorsed putting the competing measure on the ballot anyway.  “Having the two measures side by side gives the clearer choice,” she asserted.  “Not all voters get all the way down to ballot arguments. . . .  They will presumably read the measures before them.”  Opponents of the open-space measure better hope that the average voter is as conscientious as the Mayor believes.

The competing measure may not work as a fail-safe, but Council had the opportunity to take another action that would have undermined the open-space initiative far more effectively – and decided not to.  But it may not have realized what it missed.

In addition to the “Caring Alameda Act,” staff also had prepared what it called a “fiscal responsibility supplemental measure.”  Under this measure, if the open-space initiative passed, the City Attorney would be required to file a declaratory relief suit seeking a judicial determination of whether the re-zoning to open space constituted a “taking” entitling the property owner to “just compensation.”  The initiative would not take effect unless and until either the court ruled that a taking had not occurred or it ruled that a taking had taken place and thereafter the voters “approve[d] a measure or measures to authorize new or increased taxes, fees, or assessments sufficient to compensate the property owner, improve or fence the property, and maintain the property once acquired.”

A victory for the supporters of the open-space initiative on April 9 thus would not result in a re-zoning of the parcel if the voters passed the “fiscal responsibility supplemental measure” at the same time.  Rather, it would represent only a first step in a lengthy and expensive process that would require them to go to court to defend against a “takings” claim – technically, the City of Alameda would be the defendant, but one wonders whether the City Attorney would have her heart in the case – and then, if they lost, to go to the voters again to get the money to pay for improving and maintaining the site – and for compensating APC.

The “supplemental measure” was silent on what would happen if the voters failed to approve a funding mechanism.  Presumably, the City still would have to pay the judgment – out of the general fund.  But, under the terms of the supplemental measure, the open-space initiative wouldn’t take effect since the required voter approval hadn’t occurred.  Under this scenario, does APC get to keep the property – and the money, too?

We’ll resist the temptation to comment yet again on the quality of the drafting done by the City Attorney’s office.  But their presentation at the Wednesday meeting didn’t make matters much clearer.  The Council discussion suggested that, with the possible exception of Mr. Knox White, the Council members didn’t understand the full import of the supplemental measure being proposed.  Instead, they seemed to stop at the sentence authorizing the City Attorney to file a declaratory relief action if the open-space initiative passed, and to ignore the rest of section rendering the initiative ineffective unless the specified conditions occurred.

If the Council opponents of the open-space initiative really wanted to stick it to the proponents, the supplemental measure drafted by the City Attorney gave them a perfect chance.  They may have blown it last Wednesday – but the meeting will be “continued” on January 10, and who knows what might happen then?

So far, we’ve studiously avoided addressing the merits of the open-space initiative, but we can’t end without a few words on the subject.

During the campaign, we warned that Mr. Knox White was prone to frame every issue as a battle between Good (those who agree with him) and Evil (everyone else), and he proved true to form in the Council discussion of the open-space initiative. “This isn’t going to be an argument about whether or not the voters passed open space and we should honor that,” he declaimed.  “This argument is about whether or not we are the community we say we are, who cares about homelessness and addressing this, and taking care of those who need help, and taking the bird in the hand that we have now, or listening to some folks who want to stop this, just to stop it because they don’t like it, with some promise of some bird in the hand, at another space, magical space that exists, with magical money that doesn’t exist.”

Unwilling to leave the “progressive” field to Mr. Knox White, Councilman Jim Oddie later sounded the same theme (omitting the aviary references):  “This is what this is about:  Are we going to serve our most vulnerable people or are we not?  We need to give people a clear choice [so that] they know what side they’re voting on:  Do they stand with the values we share or do they not?”  (Ms. Ashcraft and Ms. Vella weighed in with similar sentiments, but we’re running out of space.)

To us, the issue doesn’t call for hyperbolic rhetoric but sober-minded analysis.  Rather than impugn the motives of the open-space initiative’s supporters, we’d suggest looking at the arguments they’ve advanced.  If they can’t make a persuasive case for the initiative, there’s no good reason to vote for it.

The petition circulated to get the initiative on the ballot argued that re‑zoning the McKay Avenue parcel as open space was necessary primarily for three reasons:  to “implement the will of the Alameda and Contra Costa County voters as expressed by their approval of Measure WW in the November 2008 general election”; to “preserve land particularly suited for open space so that it can be used for park and recreation uses,” and to “protect the unique plant and animal life at Robert W. Crown Memorial State Beach.”

We ain’t buyin’ any of it.

Measure WW was a $500 million bond measure sponsored by the East Bay Regional Parks District and approved by 71.9 percent of the voters in Alameda and Contra Costa counties in 2008.  The measure set forth a list of 67 projects on which the bond proceeds would be spent, including $6.5 million to “replace and expand the Crab Cove interpretive center,” “expand and restore Alameda Beach to increase space for beach recreation and protect the Shoreline,” and “acquire appropriate surplus federal property if it becomes available.”

In fact, EBRPD used $2,182,500 of Measure WW funds in 2015 to acquire the 3.65-acre parcel known as Neptune Point located on the waterfront at the southern of McKay Avenue from the federal government.  At the time, EBRPD’s general manager, Robert Doyle, declared that the purchase fulfilled the District’s promise “through our Measure WW bond election that we would expand Crab Cove with this valuable land.”  EBRPD did not assert any claim to the remaining 3.712 acres of federal property on the northern end of McKay Avenue (the subject of the open-space initiative).  Indeed, in the settlement agreement between the Park District and the feds, EBRPD promised not to “interfere, legally or otherwise, with the use or transfer of any portion of” the latter parcel.

We don’t see anything in the public record backing up the claim that, by passing Measure WW, the voters got an assurance that EBRPD would acquire all of the federal property along McKay Avenue.  Moreover, as we read the notices published in the Federal Register, the northern parcel wasn’t “surplus” property “available” to EBRPD anyway because HUD had determined that it was “suitable for homeless use” and thus an organization like APC got first crack at it.

(Nor, we hasten to add, did Measure D, the 2014 initiative sponsored by park supporters and ultimately adopted by Council, express the “will of the voters” that the federal property at the northern end of McKay Avenue be turned into a park.  That initiative focused exclusively on Neptune Point, the 3.65 acres at the southern end of the property, which the City had rezoned to permit residential use and the feds had agreed to sell to Tim Lewis Communities for a 48-unit high-end housing development.)

Moreover, the argument about the alleged need to preserve the northern parcel for “park and recreational use” is belied by EBRPD’s explicit disavowal of any desire, or intent, to obtain the property for that purpose.  “EBRPD is aware of Alameda Point Collaborative’s proposal to develop a senior residential homeless facility on the northern end of McKay Avenue,” Mr. Doyle, the Park District’s general manager, wrote to Mayor Trish Spencer and Council on June 8. “The Park District has not expressed any interest in acquiring this developed property as it is not suitable for park expansion.”

To us, it makes no sense to “preserve” land for a use that the most logical user doesn’t want to make of it.

As to the third reason, while we’re all for protecting plants and animals, we have difficulty seeing why APC’s proposed use of the site would be especially dangerous to flora and fauna.  We don’t claim to be naturalists, but we do note that the only “avoidance and minimization” measure for “biological resources” recommended in the Environmental Assessment was to take steps to “reduce impacts to raptors and other nesting birds” by limiting tree removal and protecting nesting areas during construction.  It wouldn’t seem that a complete ban on new or renovated buildings, whether for a “wellness center” or anything else, is really necessary.

We’ll stop there, because we remain convinced that, if the open-space initiative won’t produce the benefits it promises, it doesn’t deserve support, and there’s no need to bury it with bombast.  We hope the Council members appointed to draft the ballot arguments – Ms. Ashcraft and Ms. Vella – see it the same way.

Sources:

Elections Report: 2019-01-02 ex. 1 to staff report – elections code report

“Competing” measure: 2019-01-02 resolution for 2d cc-sponsored initiative

“Supplemental” measure: 2019-01-02 resolution for 1st cc-sponsored

 

About Robert Sullwold

Partner, Sullwold & Hughes Specializes in investment litigation
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9 Responses to Measure for measure

  1. Tawney Masson says:

    We now have a one song council. Tony Daysog is the only person drumming his own tune.
    What a scam has been perpetrated

  2. Steve Gerstle says:

    Thank you, Robert. I agree. If the Council does not like the open space measure, it should simply say so. There is no need for additional ballot measures. Does every single act that the Council takes need to be “confirmed” in an election in order for it to be considered legitimate? Is that what the Mayor and Council want?

    What I want to see is for APC and FOCC to come to an agreement. There are legitimate concerns being raised by neighbors and park visitors that need to be addressed. I would like nothing more for the parties to come to a mutually beneficial agreement.

    • Eric Strimling says:

      The City Council has no choice about the ballot initiative. The FOCCers got enough signatures to put it on the ballot, so it must go onto the ballot. The City Council added a second measure to give voters something to vote *for* when then vote down the FOCC initiative.

      Doug Biggs has stated that he has met with the FOCCer group repeatedly. He modified his proposal to try to ameliorate them. No dice.

  3. The council is willing to spend $700,000 for a special election in order to further the city’s goals of assisting the homeless. Costs will rise, funding will be lost if we wait for a 2020 election, they say. Similarly, costs are rising and funding opportunities are slipping by every year to construct the shoreline climate adaptation project at Alameda Point known as De-Pave Park. When will the council approve $700,000 for engineering studies and cost estimates so funding can be applied for for that city priority?

  4. Denise Lai says:

    I would like to see data from first responders on 1) medical and other calls and vehicles used to serve the calls at similar homeless-senior centers (in our city and elsewhere)–what can be expected?, and 2) industry assessment of whether McKay can handle the large fire trucks (which go out for every medical call and arrive first usually) and handle multiple vehicles in that location (bc most medical responses have multiple vehicles when AFD responds and definitely when AFD and APD both respond [and this will happen with a senior homeless population]), and HOW THIS IMPACTS the immediately surrounding area and public activities. Why hasn’t the AFD weighed in on this? If that McKay property becomes a senior-homeless facility, they will have to service it AND THAT doesn’t seem to make any sense, it seems to be a difficult (and unnecessary) situation/condition for what will be recurring medical and other 911 calls.

  5. Mike McMahon says:

    The Initiative:
    • Will not change the ownership of the Site. By itself, changing the Zoning and General Plan designations will not cause the land to be transferred to the City of Alameda, EBRPD, or any other governmental entity for public use as a park.
    • Will not establish a funding source to purchase the land or make the necessary improvements to create a public park.
    • Will not create a public park. The changes in the Zoning Ordinance and General Plan will not change the physical conditions on the Site. Even with the changes in the Zoning Ordinance and General Plan, the Site will remain occupied with vacant buildings and paved parking fenced off from the public.

  6. Irene says:

    I don’t think it’s a good idea for the city to make a habit of challenging citizens initiatives. I also do not buy the reasoning for either measure or for the special election. I wrote a piece about it: https://ionalameda.com/2019/01/10/taking-the-initiative/.

  7. Steve Gerstle says:

    “Because initiatives and referenda are examples of direct democracy, and were staple reforms of the Progressive Era, many advocates of limited, constitutional government have scorned these processes as promoting “mob rule” or leading to the tyranny of the majority. On the other hand, because these forms of ballot measures serve as alternatives to the enactments of elected representatives, and sometimes as a direct check on legislatures, this element of democracy finds increasing support across the political spectrum as a necessary part of the checks and balances of republican government. ”
    https://ballotpedia.org/Initiative_and_referendum

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