Home » Island News

Today’s must read: Rin Kelly on the Alameda Point initiative

Submitted by on 1, June 24, 2009 – 5:50 am19 Comments

Lots of Alameda Point news these last few weeks, folks, including local writer Rin Kelly’s discovery that city staff is not so on board with developer SunCal’s ballot measure on Alameda Point.

Writing in the East Bay Express, Kelly says that Interim City Manager Ann Marie Gallant and other lead city staff are welcoming SunCal’s plan to delay their ballot initiative laying out their development plan for the Point – because they’d rather not see this particular initiative go on the ballot.

“It’s pretty one-sided,” Assistant City Manager David Brandt said of the development agreement in the initiative. “They wrote it and it wasn’t negotiated. Typically, if there was no initiative, they might have submitted a draft and we would have sent it up marked-up six ways to Sunday.”

One concern is the $200 million cap on what the developer will pay for public benefits like parks, a library, transit improvements and more.

A SunCal spokesman told Kelly that the company’s goal was to submit a full plan to voters. “We didn’t want to ask them simply for an exemption to do some arbitrary thing that they couldn’t trust — we felt that if the voters were going to be exempting the Point from something, they wanted to know what they were granting that exemption for,” Adam Alberti of Singer Associates, a PR firm hired by SunCal to help out on its initiative efforts, told Kelly.

SunCal’s reps told Kelly they don’t plan to rewrite and resubmit their initiative.


  • Santa Claritan says:

    I am astounded and appalled at the presumptuousness of whichever land use/real estate lawyer wrote the 288 page initiative. I once wrote a 7 page slow growth initiative which fit on 7" X 11" paper…and people criticized it for being "too long for the voter to understand. If there was ever an abuse of the initiative process, the 288 page one for the Point takes the cake!

    The language in the initiative and in the development agreement attached clearly showed that the author was a California lawyer, because the language was just "too familiar" in terms of language California land use lawyers use.

    I can't decide: Was the lawyer/draftsman a very experienced one, with incredible chutzpah? Or was the lawyer/draftsman a younger land use lawyer with no political experience or common sense?

    It sure would be interesting to know the names of the actual lawyer author(s), and the name(s) of their law firms, who wrote this initiative, so they could be looked up in Martindale Hubble and exposed, in terms of level of experience, other developer clients, and experience defending land use documentation in California trial and appellate courts.

  • Hey SC,

    My understanding of the initiative process is that SunCal has until 180 days after they've received the title and summary for their measure to gather and turn in their signatures, and that the 180-day mark is September 29. I have a little more on that at the end of this post (hopefully not too convoluted):


    Also, I do have the name of one of the folks who penned the initiative: Barry Fadem, an attorney from Lafayette.

  • David Kirwin says:

    Hmmm, do you think interim City manager Ann Marie Gallant and David Brandt are looking out for the city's best interests?

    When the department that directs the rest of our city corporation says "we would have sent it up marked-up six ways to Sunday.” when speaking about the SunCal proposal, what does that say about our Mayor and Councilman Matarrese who support and advertise for the SunCal corporation? Why are they acting against the city’s (and residents) best interests?

  • DL Morrison says:

    SC: "Astonded and appalled" pretty well captures the feeling, and I'm sure many people here have had very similar sentiments. It becomes even more appalling tho, when you consider that the Mayor has repeatedly described this initiative as "transparent" — how could anyone with any concern for the community or even the slightest speck of intellectual honesty describe this incredibly complicated, weasel-worded set of documents as "transparent"? And the Mayor is not alone — three other Councilmembers (Matarresse, Tam, Gilmore) supported the initiative, and I can recall at least two of them (Tam and Gilmore) also using the word "transparent". It's like the invasion of the body snatchers or something.

    It seems very likely that the city manager and others privately expressed their concerns about the Initiative, yet the Council (all but Doug deHaan) maintained their steadfast support, for what reason I still can't fathom. According to the article, this huge project would cost $1.6 BILLION to build out, and yet this small city is supposed to negotiate the development specifics at a severe disadvantage from the get-go — with the terms already "set in stone" by the vote on the initiative. In what way would that be a good idea?

    David Brandt captured it: "Brandt characterizes the scope of the initiative differently. 'If you're going to do it, might as well grab everything you can,' he said." True.

    By my calculations, SunCal has until 9/28/09 to submit the signatures to the City Clerk. If they don't, and the Initiative is presumed to have failed at that point, then they're supposed to submit an "Entitlement Application" within 45 days after that (which would be on 11/12/09) or they default, according to the Second Amendment to the ENA (which could be further amended before then…). Reading the amendment, I was also reminded that DE Shaw has "ultimate authority for all decisions" on the project, which might have some bearing here.

  • Arby says:

    This really makes me question other decisions being made by the Mayor and Council. The initiative is just such a bad bargain for Alameda. Did they read it before giving their support?

  • eyes open and watchi says:

    Let's not forget the City Attorney, Ms. Theresa Highsmith who has written a summary of the initative for all of us voters that is misleading and omits material points. There's no excuse for the Mayor and the Council to do what they are doing but Ms. Highsmith gets paid huge amounts of our tax money and has taken professional oaths to safeguard the City. Outrage doesn't come close to an appropriate reaction for what she attempted.

  • Santa Claritan says:

    You folks in Alameda need to take a careful look at the Elections Code and the Government Code, to see how long SunCal can hold onto these signatures and this particular initiative, to see if they “go stale” at some point, and cannot be filed. I cannot remember an initiative in California which was held for a long time, and then quietly submitted for the ballot after the local furor died down, and the opposition moved on to other things. But I’d also never seen a 288 page either.

    The question of when, if ever, these voters’ signatures “go stale” is a key issue for all of you to look at.

    Obviously, one thing which is NOT Kosher under California initiative law, is for an initiative proponent to simply take off the old signature pages, and staple a newly worded initiative on top. But watch out anyway.

    Finally, it is unlawful for anyone, including the initiative proponents like SunCal or their signature gathering company, to use the petition signators’ names and addresses shown on the petitions for any purpose whatsoever, including asking for the signators’ support at ballot time. Normally, a City Clerk or County Clerk is given the original initiative petitions, with signatures attached, as soon as “enough” signatures to qualify it for the ballot have now been obtained, normally the voter/signators’ signatures are not “floating around” the state unregulated.

    But now, with this initiative “sitting stale”, with the original signature pages locked away “heaven knows where”, I wonder if the signators’ personal information on the petitions is safe from identity theft or other misuse?

    Personally, if I were running SunCal’s legal department, and wanted to “do the right thing”, assuming SunCal and D.E. Shaw really have abandoned this particular initiative’s text, I would negotiate with Alameda’s City Attorney for a hand-over of the original petitions signature pages, so that they could be burned or shredded to protect Alameda voters’ identities.

    Alamedans know SunCal’s management reads this blog, so if SunCal doesn’t immediately hand over the petition signature pages to the City Clerk of the City of Alameda (or the Alameda County Clerk/Registrar of Voters) for destruction, Alameda’s voters and taxpayers can assume that “something funny is going on”.

  • Barbara Thomas says:

    Please folks stand back and take a look at reality. First another “THANK YOU” to Santa Clarita for all your help. Reality: The City of Alameda has a policy making council of 5 members including the Mayor. Although Johnson and Gilmore are attorneys, they rely on paid staff to do the real work. Then they vote on “policy”. Councilmembers are paid $50 a meeting, and maybe a car allowance, other committee fees and medical/dental plans. STAFF are the ones earning over $300,000 a year in salaries anad benefits. I seriously doubt that all the councilmembers even bother to read their entire packets before each meeting. They just rely on “STAFF”.

    STAFF is only as good as the effort put into hiring them. We have had a lousy City Attorney since I was the only NO vote to her (KORADE) for decades. This Council moved her along. I have no take yet on the current CA, but she is continuing many of the things that Korade didn’t do and relying on an ever growing staff to actually do her work. We had a wonderful City Manger Bill Norton who the City still relies upon for many things including the Fiscal Report. Interim City Manager Gallant has been handed a bagful of horse manure, including an undetected deficit that existed for years under the careful watch of our current council/Mayor, the Suncal Initiative, and the firefighters issues amoung many. It isn’t quite the handful the Pres. Obama has been dealt, but it is alot to deal with quickly.

    The real question is can the current Council force Gallant to force staff to force feed us the initiative? Does Gallant want the job on a permanent basis such that she would not give us an accurate accounting of what she has been handed? If she does will we swallow? I think not on the latter. The former remains to be seen.

    Let’s give her a chance. The City’s review of the Initiative is going to be almost as long as the initiative, no really only half as long. But still a bucket of muddy water to see through. Let’s wait and see if the CA reviews the Initiative accurately based on the law pointed out to her through our (And Santa Clarita’s and others’)efforts. And see if she can independently come up with a refusal to put this piece of illegal schmuck on a ballot, if SUNCAL has the temerity to actually submit the signatures by Sept. 29, 2009. She is probably looking into liability for not putting it on the ballot as well. If it is attempted to be submitted to the voters, we will certainly see how the courts apply the law to SUNCAL asking one neighborhood to pay for Citywide and regional improvements. And other potentially fatal flaws in the initiative.

  • William Smith says:


    Rin Kelly's article on Alameda Point was absolutely outstanding – an example of the quality news and discussion that I've come to expect on your web site. I just subscribed to your blog to help you support good investigative reporting like Rin's.

    Thank you!!!


  • dave says:

    Anyone else notice the silence of Suncal's boosters in the local blogosphere?

  • Concerned Bigtime says:

    Thanks Barbara for your posts. About the current City Attorney, what share of responsibility does she have for the lack of notice of the reserves debacle that was uncovered? Doesn't she have responsibility to review and approve things like adopted budgets?

    Also what about the City's elected Auditor and Treasurer? does the city hire consultants they use to audit? Maybe Michele can also look into these questions.

  • Barbara Thomas says:

    To Concerned: I don't think the CA holds much blame on the deficit. She was responsible for putting the truth about the initiative in her 500 word summary. She omitted key items: It has 25 year gestation period, and may never take form with no objective terms of measurement or penalties or anthing we can do for that 25 years, it breaches the City's responsibility under settlement agreement with Chinatown, amongst others.

    The Auditor and Treasurer are paid some real money and both should be taken to task about the deficit. An actual outside auditing firm is hired and audits our finances. Our Auditor bears responsibility for overseeing and reviewing their work and providing a report to the Council. He sure was asleep as were they. This didn't sneak up on them. Maybe the outside auditor has some errors and omissions coverage that the CA could review and put a claim in for the City. But then she'd just have to hire an attorney that knew something about that area of the law. Any auditor or CPA want the job? Now may be a good time to move in.

  • DL Morrison says:

    Dave: Yes, an odd silence, isn't it? I was expecting to see somebody (a couple of somebodies) have a cow over this, but so far it hasn't happened.

  • Michael Krueger says:

    I agree, it is very odd that Don Roberts didn't "have a cow" over this on his Alameda Daily News blog:


    However, Lauren Do picked up the slack by covering it on Wednesday, June 24, in her new "In Alameda" blog:


    As for the issue of "transparency," I just don't understand how someone can honestly claim that an agreement that is spelled out in 288 pages of excruciating detail isn't transparent. The fact that it's complex does not mean something is being hidden; the details are there for all to see and criticize. If you want to point to specific clauses and argue that they are a bad deal for the City, go right ahead: that's the kind of debate we should be having.

    Speaking of specifics, the idea that the Development Agreement allows for a 25-year "gestation period" is misleading to say the least. The agreement clearly states that the intent is the completion of the entire development and all public benefits in that time frame, subject to extension under certain specific conditions. It goes on to state that the developer's exact obligations will be spelled out in other agreements between the developer and the Alameda Reuse and Redevelopment Authority, the Community Improvement Commission, or both.

    Saying that the scheduling obligations will be covered by other agreements is not the same as saying the developer will have no obligation whatsoever to do anything with the land for 25 years. Furthermore, this example illustrates that the initiative does allow for some additional negotiations between the City and the developer. In other words, not everything is "set in stone," just the most important specifics of the plan itself.

  • Arby says:

    It is possible that some people, when presented with new information, might change their opinion of SunCal's ballot measure. The measure is long and involved and not everything about it is immediately evident. Who knows, we may even see a councilmember reconsider.

  • DL Morrison says:

    MK: I think the City Manager and Asst. City Manager have the expertise to decide whether the Initiative benefits the city or not, plus they have nothing ot gain by supporting it — and nothing to gain by opposing it either. Here's part of what they said in the Express article:


    [Interim City Manager] Gallant, a new hire to a non-political office … is insistent that vital parts of the measure take away Alameda's ability to "negotiate what we think is in the best interest of the city."

    … Gallant and her staff are more focused on the 42 drab pages that bring up the rear of the initiative: Exhibit F, the development agreement. A development agreement is a planning document that vests entitlements on a piece of property. Typically negotiated between parties, it includes details about what public benefits a developer will provide a city in exchange for the breaks it receives. "Even though a developer submits a request and says 'We want fee waivers, we are interpreting this, we are deciding that,' this does not mean the city agrees to it," Gallant said. "The city only agrees to it when those documents are prepared and submitted to a council for legislative action with staff's recommendation."

    But SunCal has taken a different route. There is only one way to adopt a development agreement without negotiation, and that is through a voter-sponsored initiative. Essentially, in the process of taking the Measure A issue to voters, >> the developer is attempting to bypass the usual way of doing business and seeking to set a number of its own terms. <<

    "It's pretty one-sided," said Assistant City Manager David Brandt. "They wrote it and it wasn't negotiated. Typically, if there was no initiative, they might have submitted a draft and we would have sent it up marked-up six ways to Sunday."


    Repeat: The developer is attempting to bypass the usual way of doing business and seeking to set a number of its own terms.

    To these folks at least, the Initiative really is transparent, and they think it's a bad idea.

  • DL Morrison says:

    And here's part of what "Dave" said on Blogging Bayport, yet another statement that sums things up pretty well:

    "Honesty. The dishonesty of the pro side has been especially concerning. From naïve omissions to the signature gatherers’ blatant lies, and many degrees of prevarication in between, the pro-development side has poisoned the debate. Their refusal to address the significant negatives, foremost being the price tag, has damaged their cause. While I’d still likely oppose, I’d sure have a lot more respect for their side if they admitted the economic weaknesses, et al. In similar vein, I’m disappointed by the Mayor’s utterly inappropriate actions. She is effectively an unpaid employee of SunCal, a firm who is actively trying to fleece the city"

    This is part of an excellent analysis that's really worth reading (Growing Smartly, #59):

    It's dishonest to claim that a 288 pg initiative can be readily understood by the average voter.

  • dave says:

    Thank you, Mr. Krueger, your dance is very entertaining.

    The "In Alameda" blog post you cite has garnered a total of 1 (one) comment. You know if it had been addressed on more widely read blogs it would have generated a very large number.

    You also know the reason why it has been ignored by Sun Cal's lackeys in the blogosphere – because it is heretically critical of their idol. That's fine, it's a free country & they are free to scrap their credibility.

  • E T says:

    Having worked in an industry devoted to writing help documentation, I can say that the standard of writing for the accessibility of the average person is between a 6th and 7th grade reading proficiency.

    The inititative does not meet that standard of accessibility.

    The fact that there are many documents included, to which one must back and forth refer, means that there is a lot of room for misinterpretation and misunderstanding.

    The initiative is NOT transparent. It is as clear as MUD. It is a SNOW JOB.

Leave a comment!

Add your comment below, or trackback from your own site. You can also subscribe to these comments via RSS.

Be nice. Keep it clean. Stay on topic. No spam.

You can use these tags:
<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>

This is a Gravatar-enabled weblog. To get your own globally-recognized-avatar, please register at Gravatar.