What’s going on with the Jean Sweeney Park?

In 2010, after the Court of Appeals upheld its rights under a 1924 repurchase option agreement with the Alameda Beltline Railroad, the City of Alameda was able to buy – at a deep discount – the land it needed to build what is now known as the Jean Sweeney Open Space Park.

But not all of it.

On the southern border of the Beltline parcel was a 4.5-acre “corridor” owned by another railroad, the Union Pacific, running virtually all the way from Sherman Street to Constitution Way.  The master plan approved by Council in July 2015 included this strip of land, as well as the Beltline property, in the new park.

In September 2018, the City filed an eminent domain action against Union Pacific seeking to acquire the land owned by the railroad.

But not all of it.

Instead, the City sought to buy six parcels totaling 2.8 acres for a purchase price of $1,192,000.

Ultimately, the parties agreed to settle the case, and the City will get the additional land it wanted for the park.

But not all of it.

Instead, under the settlement agreement approved by Council last week, the City will acquire three parcels totaling 0.55 acres (plus two access easements).  But even though the acreage is less than a quarter of the amount sought in the eminent domain action, the purchase price remains $1,192,000.

Union Pacific will continue to own the rest of the corridor to use or sell as it sees fit.  And if the railroad (or a third party who buys the property) applies to re‑zone any of this land for two‑family or other residential use, the City has promised to “cooperate, in good faith, to reasonably and diligently assist” in that endeavor – and with any subsequent development application.

All of the foregoing facts are contained in the public record.  But they raise a variety of issues, among them:

  • Why did the City agree to take less land than the full 4.5 acres included in the master plan?
  • What effect will the reduction in acreage have on the design of the park?
  • Why did the City agree to aid Union Pacific (or a developer) in getting its retained property re-zoned for residential use?
  • What effect will a change in zoning have on residential development in Alameda?

None of these issues has ever been vetted at any public Council meeting.  But not for lack of trying.  Last March, Council members Trish Spencer and Tony Daysog learned that City staff had shown the Recreation and Parks Commission maps depicting a redesigned (and, apparently, downsized) park.  So they brought a Council referral to require that any changes to the park “be approved by Council during public meetings” and that “such discussions include a public process.”

Councilman John Knox White quickly shot them down.  It was “completely, if not just inappropriate, but really illegal,” he asserted, to bring up potential changes to the park at an open meeting, since this issue was involved in the lawsuit Council had been discussing in closed session.  (As is often the case with Mr. Knox White’s legal pronouncements, he was wrong:  there is no law banning a Council member from raising a topic at an open meeting simply because it also had been discussed in a closed session.)

No, Mr. Knox White demanded, Council should “stop this conversation” immediately and instead “make a commitment to the public that when there are items that we can talk about and decisions that are going to be made – because we do not make decisions in closed session; we do give direction – and then we come out and we hear from the public about those decisions before we vote on them publicly.”  The motion passed, 3‑to‑2, with Councilman Tony Daysog joining Ms. Spencer in dissent.

Well, the Council did more than “give direction” on September 7; it “ma[d]e a decision” to approve the settlement agreement.  Nor did it vote on the item in open session; it took the vote behind closed doors, and City Clerk Lara Weisiger simply announced the result later.  And for all his posturing six months earlier, Mr. Knox White did not insist that the public be given the opportunity to comment on the decision before it was made – or an explanation of its basis afterwards.

Fortunately, the Merry-Go-Round isn’t obligated to get clearance from John Knox White about the content of the column.  So we decided to try to get answers to the questions we posed above so that we could let our readers know what was going on with Jean Sweeney park.  Regrettably, we didn’t have a whole lot of luck.  But we’ll tell you what we found out.

Let’s start with the reduction in acreage.

The master plan approved by Council in July 2015 showed the park extending southward all the way to the edge of the existing residential neighborhood:

Neither the master plan nor the accompanying initial study revealed that a 4.5‑acre corridor running along the southern border was not part of the Beltline property acquired by the City and instead was owned by Union Pacific.  Indeed, it is not clear when and how the City learned that the park included land the City didn’t own.  When we asked Recreation and Parks Director Amy Wooldridge about this, she replied that, “I don’t have information responsive to this question.”

In any event, by the time it filed the eminent domain action in September 2018, the City had become aware that it did not own all of the land included in the master plan.  Here’s the map staff presented when it asked Council to adopt the “resolution of necessity” required to support the suit:

The map divides the 4.5 acres owned by Union Pacific into “acquire” and “not acquire” segments.  The latter segment consists of a 1.7-acre strip running from Eighth Street to Wood Street.

The staff report explained the reason for the exclusion: “The City did not offer to buy the parcels that are most developable for residential use and, therefore, most valuable,” it said, adding, “These areas are not necessary for the design or access to Sweeney Park Project.”  (In response to our inquiry, Ms. Wooldridge confirmed that the 1.7-acre segment was “zoned Residential and therefore too expensive for the City to purchase for park purposes.”)

We know how the story ends.  Here’s the map showing what the settlement agreement gives the City:

As the map shows, the City will acquire only the small blocks of land located at the eastern and western ends of the corridor.  (They’re shown in bright green.)  Union Pacific will retain ownership of all the rest of it.  (They’re the light-blue strips with a pink border.)

What we don’t know is how or why the six parcels totaling 2.8 acres that the City sought to acquire through the eminent domain action became the three parcels totaling 0.55 acres the City actually got in the settlement – for the same price.  We do know this:  none of it happened in public.

The agendas and minutes show that Council discussed the eminent domain case three times between April 2020 and March 2021, but all of the discussions occurred in closed session, and the subsequent announcements were – typically – uninformative.  (“Staff provided information.”  “Council gave direction.”)  Council itself thus furnished no clue to the public that any changes were being contemplated for the park.

Ms. Wooldridge pulled back the edge of the curtain a little bit when she presented her maps showing a new design on the west end of the park to the Rec/Park Commission in March.  But she did not disclose that the revised design was being considered because the City might not be getting the land it had sought to acquire.  Instead, she said the revisions resulted from surveys she had commissioned to “refresh and update” the plans for the last phase of the park.  And it didn’t occur to any Commissioner to ask a question that would have elicited information about downsizing.

A few weeks later, Ms. Spencer and Mr. Daysog tried to flush out the full story by getting Council to hold a public hearing about possible changes to the size or design of the park.  But, thanks to Mr. Knox White and his allies, the facts remained hidden from public view.  Nor were they revealed when the settlement agreement reflecting the changes was announced on September 7.

Perhaps naively, we thought that, now that the dust settled, someone would be willing to reveal why the City had cut the deal it did with Union Pacific.  After all, maybe the explanation was nothing more sinister than that the railroad had played hardball:  If the City wanted 2.8 acres, it would have to pay more than $1.2 million.  If the City didn’t want to pay more than $1.2 million, it would have to agree to take less than 2.8 acres.  Chalk the decision up to a concern by Council about the budget.

So we turned to Ms. Wooldridge.  Alas, she declined to shed any light on the subject.

According to the eminent domain complaint, “the public interest and necessity require[d]” that the City acquire six parcels comprising the 2.8-acre corridor.  So how come the City agreed to take only three parcels totaling 0.55 acres?  “I am unable to share confidential closed session discussions,” Ms. Wooldridge replied.

Likewise, according to the complaint, $1,192,000 represented “just compensation” for 2.8 acres.  So how come the City agreed to pay the same price for a quarter of that acreage?  “This is the outcome of settlement discussion and the reasons behind them are privileged closed session materials,” Ms. Wooldridge replied.

Finally, the master plan showed a community garden at the southwest corner of the park and a bike/pedestrian path running lengthwise inside its southern border.  But these improvements were slated for parcels owned by Union Pacific, which the settlement allowed it to retain.  So how come the City gave up its claim to this land?  “This is the outcome of settlement discussion and the reasons behind them are privileged closed session materials,” Ms. Wooldridge replied.

Frankly, we found these responses a little disconcerting.  We can appreciate the need to keep the City’s legal strategy confidential while a lawsuit is pending.  But the eminent domain action now has been settled, and there no longer is any legitimate interest to protect.

Moreover, we fear that the penchant for secrecy is beginning to run amuck at City Hall.  Even the U.S. Supreme Court issues a public opinion in every case in which it makes a decision on the merits.  If such an august body deigns to explain its reasoning, rather than simply announcing a result, why shouldn’t our City Council (or staff on its behalf) do the same?  Indeed, unlike the justices, the Council members are elected officials.  Surely, their constituents deserve to know why their representatives acted as they did.

Needless to say, City Attorney Yibin Shen doesn’t see it that way.  It’s only fair to let him speak his piece:

The information you have requested was exchanged as part of settlement negotiations between the City and Union Pacific that requires the information to be kept strictly confidential and was shared for settlement purposes only.  Accordingly, we cannot share any information exchanged, and further, the information was prepared at the direction of legal counsel and is protected by the attorney client and attorney work product privilege; this privilege and the information shared does not become public simply because the parties negotiated a resolution.  Finally, Council’s deliberations regarding this case in closed session remain confidential and protected by attorney client privilege regardless of the settlement status.

Well, all we can say is, we tried.  Maybe if the Open Government Commission was willing (as it once was) to ruffle Council members’ feathers, it could get the elected officials to divulge the basis for their decisions about the park.  We don’t have that power.

The result of the change in acreage, of course, is a change in design.  This time, Ms. Wooldridge was more forthcoming about the details.

At the March 11 Rec‑Park Commission meeting, she presented two maps showing the differences between the original and revised designs for the western end of the park:

As Ms. Wooldridge explained to the Commission, the community garden will be moved from the area south of the Cross-Alameda Trail (called “Non-City owned property” on the maps) to the area north of it.  To accommodate this relocation, the west side of the parking area accessible from Atlantic Avenue will be eliminated.  And a few new features – such as a “Sogorea Te Land Trust medicinal and food garden” – have been added.

And what of the bike/pedestrian path just inside the southern border?  According to Ms. Wooldridge, it, too, will be moved.  “I intend to work with the design team to adjust the path northward and change it to a multi-use path,” she told us.  “This pathway was always intended to be a secondary path to the Cross Alameda Trail to provide connection points to the neighborhood.”

Do any of these revisions make the park more or less desirable?  It’s not for us to say.  Ms. Wooldridge apparently considered the design changes important enough to conduct a public survey before the Rec/Park Commission meeting.  Nevertheless, Council had the ultimate authority to decide whether to approve a deal that made the changes necessary.  And it chose to do so without seeking any public comment or engaging in any public debate.

Which leaves the zoning aspects of the transaction.

As we understand it, the 2.8‑acre corridor the City sought to acquire in the eminent domain action is zoned for commercial/industrial use, and that designation remains for the property being retained by Union Pacific.  But the settlement agreement contains a promise by the City to “cooperate, in good faith, to reasonably and diligently assist” Union Pacific (or a third-party buyer) in the “diligent and timely processing” of any proposed re‑zoning of this land for two‑family residential use “or to another residential [category] or overlay allowing equal or greater residential density.”  In addition, the City promises to “cooperate” to “assist” with the “diligent and timely processing” of any development application for the property.

(These promises, the settlement agreement states, should not be construed as
“pre-approval” of any re‑zoning or development application.  So we guess Council could “assist” Union Pacific or a developer in applying to re‑zone and develop the property – only to turn around and deny the resulting applications.)

Why did Union Pacific want this provision?  And why did the City agree to it?  We asked Ms. Wooldridge – and you should be able to guess her response: “This is the outcome of settlement discussion and the reasons behind them are privileged closed session materials.”

So it’s impossible to say what Union Pacific may have up its sleeve or why Council was willing to go along.  On the one hand, it’s hard to imagine any commercial or industrial use Union Pacific or a third party could make of the retained parcels.  On the other, those parcels are so narrow that it doesn’t seem like a developer would be able to construct much of a residential development there, either – maybe a few town homes at best.

There is one possibility we can dismiss.  Parrot Village, a 50‑unit affordable housing complex managed by the Alameda Housing Authority, lies immediately south of the park on the eastern side.  Maybe, we thought, AHA might be interested in getting some of the railroad’s land.  But when we posed this question to Josh Altieri, the AHA spokesperson, we got a commendably straight answer:  “While AHA has considered purchasing land from Union Pacific previously and is always interested in opportunities to expand affordable housing in Alameda, AHA is not currently pursuing a purchase of this land owned by Union Pacific.”

So that’s what we know.  As much fun as we’ve had trying to track down the facts, we can’t help but think it would have been far easier – and far more desirable as a matter of public policy – if Council had decided to discuss the potential changes to the park at an open meeting, preferably before but even after it voted on the settlement agreement with Union Pacific.  If a poker player keeps his cards too close to the vest, one has to wonder how good a hand he is truly holding.

Sources:

Master plan: 2014-07-15 staff report re draft JSOSP master plan; 2014-07-15 Ex. 1 to staff report – Jean Sweeney Open Space Park Master Plan

Eminent domain suit: 2018-09-04 staff report re JSOSP eminent domain action; 2018-09-19 J Sweeney – Complaint; 2019-09-11 Order granting pre-judgment possession of Union Pacific parcel

Spencer/Daysog referral: Settlement: 2021-09-07 CS Announcement; Alameda – UP – Settlement Agreement – Fully Executed

About Robert Sullwold

Partner, Sullwold & Hughes Specializes in investment litigation
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16 Responses to What’s going on with the Jean Sweeney Park?

  1. Nick says:

    Any idea what Union Pacific pays in taxes on that land? I’m assuming basically nothing because of Prop 13.

  2. dave says:

    It’s a large enough piece of land that the park could be easily re-designed without acquiring the fringe or paying UNP a dime. Let them keep their worthless landlocked sliver. They’d likely abandon it anyway after a period of time.

  3. Tom says:

    Your in depth reporting is much appreciated by many voters here in Alameda….
    JKW needs to be reigned in a bit on some of his expositions from council meetings.

    UP will make a lot of $$$$ on residential builds and I presume the City Council wants the tax revenue from these future domiciles too!!!!

    I would rather have a larger Park……

    Thanks for all you do to present reasoned reporting here in Alameda….

    Tom

  4. Keith Nealy says:

    Another great piece of reporting. Thank you.

    I’m guessing Knox-White is on his mission to expand housing. I wonder if Union Pacific had any interest in building housing or selling the property for this purpose. They may have wanted too much money for the property until Council suggested they could make more by developing it, or selling it for development. The agreement promising cooperation in re-zoning would appear to be a sweetener, along with the undiminished price for the remainder, to encourage its development for housing. I wonder if there’s a requirement in the settlement that UP develop it. I’ll bet that it was the Council that came up with the idea and offered it to UP, not the other way around. Any way Knox-White can cram more housing onto the island, the better, as far as he’s concerned. Why else offer our re-zoning cooperation and get less than nothing in exchange?

  5. Paul Foreman says:

    The City Attorney’s reliance on the attorney-client privilege would appear to be in conflict with the Brown Act Sec. 54956.9 (a) and (b).

    “(a) Nothing in this chapter shall be construed to prevent a legislative body of a local agency, based on advice of its legal counsel, from holding a closed session to confer with, or receive advice from, its legal counsel regarding pending litigation when discussion in open session concerning those matters would prejudice the position of the local agency in the litigation.

    (b) For purposes of this chapter, all expressions of the lawyer-client privilege other than those provided in this section are hereby abrogated.  This section is the exclusive expression of the lawyer-client privilege for purposes of conducting closed-session meetings pursuant to this chapter.”

    I interpret the above as meaning that unless the City meets the “prejudice” requirement for a litigation based closed meeting, the attorney-client privilege is abrogated. My conclusion is the same for the “work product” excuse. What work product is he talking about? You are simply inquiring as to the basis for Council’s decision.

    I would also call attention to Trancas Property Owners Ass’n v. City of Malibu (2006) 138 CA4th 172, 184-187, 41 CR3d 200, 208-211]https://resources.ca.gov/CNRALegacyFiles/ceqa/cases/2006/Trancas_Property_Owners_Assn._v._City_of_Malibu.pdf Here is an excerpt.

    “Section 54956.9’s implied allowance for adoption of settlements in closed session thus may be
    subject to limits. And whatever else it may permit, the exemption cannot be construed to empower a city council to take or agree to take, as part of a non-publicly ratified litigation settlement, action that by substantive law may not be taken without a public hearing and an opportunity for the public to be heard. As a matter of legislative intention and policy, a statute that is part of a law enacted to assure public decision-making, except in narrow circumstances, may not be read to authorize circumvention and indeed violation of other laws requiring that decisions be preceded by public hearings, simply because the means and object of the violation are settlement of a lawsuit.”

    Trancas is a stronger fact scenario, as the settlement agreement there included the granting of a zoning variance. However, if the original condemnation of the Up property was done in a public session, including the price offered, why would the final settlement of the condemnation under much different terms not also require approval at a public meeting?

    Mr. Knox-White was correct and the city attorney is in error. Too bad Mr. Knox-white did not stick to his commitment. He would have easily indicated that he would not vote for execution of the settlement agreement in a closed meeting which would have forced this issue into the sunshine.

  6. MP says:

    Since it looks like we are now valuing this land at its zoning-classification-to-be value, and the price per acre has gone up from $425,714/acre to $2,167,272/acre, maybe UP could give us the .55 acres for free since the value of the rest – 2.25 acres – in conjunction with the cooperation on re-zoning, perhaps – has gone from $957,857 to $4,876,363.

  7. Hoisted By Our Own Petard says:

    The individuals making the loudest noise about this issue are the same individuals – including Trish Spencer – who cost the city of Alameda nearly $1.5 million by forcing an expensive special election in 2019 and the subsequent legal actions that followed when they lost their ballot measure. That money could have paid for 1/3rd of the Union Pacific land acquisition. Another 1/3rd from Joe Biden’s $28 million coronavirus fund and another 1/3rd from the state to support development of new parks – like what happened with the original Jean Sweeney land – and this would have been a done deal.

    We need to do a better job of managing the city’s money. Folks who spend a great deal of time trying to frustrate city efforts on things – costing taxpayer money – should not be surprised when the city ends up not having the funding to do things that they actually support.

    • Keith Nealy says:

      The reason we have costly ballot measures to try to undo what the council has done is precisely because they’re either doing what we don’t want, or they’re hiding what they are doing and not being transparent or seeking public input before they do it.

      • NIMBYs Gonna NIMBY says:

        Sorry but I don’t buy it. If you want to talk about “they’re hiding what they are doing and not being transparent,” talk to the folks that forced the costly special election. Had the signature petition been done honestly and with integrity, instead of half-truths and fear-mongering or the wholesome lie of “let’s add more parks for the children,” it never would’ve made collected enough signatures to qualify for the ballot. Thankfully, the “we” in your statement is a small minority. The project has had 18 public meetings and votes, and a million dollar special election. That’s already more public inputs than any other project in the history of Alameda.

      • David says:

        And on the McKay avenue property, the people thought they had already spoken when the voted in favor of Measure WW way back when.

        It’s people like NIMBYs Gonna NIMBY who dissemble and try to tell us that vote didn’t mean what it did.

      • Just The Facts says:

        David: The Measure WW argument was the first one that came up when Trish Spencer’s opposition was formed, and it was quickly debunked for good reasons. It’s sad to believe that 3 years later someone would try to revive this silly argument again, but… EBRPD did use WW money to purchase a portion of the federal land and they’ve already expanded Crab Cove. The design concept is being finalized, and the work should be completed within a few years:

        http://www.mckaymasterplan.com/

        Measure WW was passed in 2008. The federal government was still working in and occupying what is now the Wellness Center building up until 2013. It’s absolutely silly for anyone to argue that voters in 2008 voted for a land that was not even available until many years later.

  8. Ingrid says:

    Thank you for posting this, I found the flyer on my screen today. I never would have known otherwise. I live on Nason Street, two houses down from the park boundary fence.

  9. atrave says:

    “Indeed, it is not clear when and how the City learned that the park included land the City didn’t own.”
    I was looking at the Facebook page for the Jean Sweeney Open Space Park Fund, going back through their posts for several years, and and found this clarification from ARPD about UP owining the strip of land:https://www.facebook.com/431927470201135/photos/a.435589153168300/474594615934420
    It is dated January 29 2013. Since then, there are multiple posts on the FB feed, reporting on City of Alameda planning presentations, which all have the incorrect map including the UP property, and no one seems to mention this ever again until 2018. Hard to believe that no one, in the city, at the Park Fund, but also in the public opinion, would remember this crucial piece of information, and pretend it’s just an “obstacle”.
    Also, the 2018 resolution to proceed with eminent domain has some quite interesting facts, which seems to really shine a light on UP being in very bad faith: https://alameda.legistar.com/LegislationDetail.aspx?ID=3626429&GUID=501863B4-A605-4175-800D-4D75F03A395E&FullText=1&fbclid=IwAR0g8FvRQCVilC-C9olRYOm0n8EO02wZpXTlK6pbUHzXnQXuN6VriwnlcgM
    It tells the initial City offer ($870k) and UP counter ($8.5M), but also gives details of the extreme and quite non-sensical Use Restrictions UP was trying to get from the city in the event of sale: no park/rec development, no residential development either unless an expensive, city-paid full decontamination takes place, under sole review of UP. Having these crazy requests written down so openly, one thinks that no sane-of-mind developer would touch those tiny slivers of land with a long pole. What is UP trying to hide, at this point? It looks like they will never, ever want to give away that land, and let it rot, undeveloped.

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