On Point: Meanwhile, in Oakland
By Rin Kelly
If you don’t already have whiplash from the last few weeks of Alameda Point developments, the next month might just do it: the Oakland Chinatown Chamber of Commerce and Asian Health Services are not happy about the SunCal initiative going to the ballot without a completed environmental impact report they say is required under a lawsuit settlement agreement, and they say they may sue.
“We’ll probably have to file a writ within 30 days of the City Council’s action on Tuesday,” said Oakland attorney Alan S. Yee, referring to a 3-2 council vote to hold a special election on February 2, 2010.
Yee, chair of the Oakland Chinatown Advisory Committee and counsel for both the Chinatown Chamber and Asian Health Services, said that he is currently “evaluating what to do” and has not received a formal response to his October 14 letter challenging the city’s decision to place the initiative on the ballot. (Yee said he has spoken by phone to Alameda officials, and City Attorney Teresa Highsmith said that a response to the letter is “in preparation”).
The environmental report evaluates a range of potential issues that could be caused by a development, including noise, traffic and other impacts.
Yee accused the city of noncompliance with a 2004 lawsuit settlement between Alameda, Oakland and the two Oakland Chinatown entities. That agreement, which established the advisory committee Yee chairs, requires ongoing communication regarding environmental impacts of development at the Point. It also “requires the City of Alameda to prepare at least one project level” study of the SunCal development in compliance with state environmental law, according to Yee’s letter.
The issue isn’t a new one: Back in June, Yee authored a letter arguing that Alameda officials had failed to present the SunCal plan to his committee in accordance with the 2004 agreements, and it was ultimately at that same committee’s urging that the Planning Board voted in September to require a developer-funded study of the initiative’s environmental impacts.
That study won’t be completed before the election, however – a situation Yee argued is illegal. “The initiative is, in part, a City of Alameda initiative,” he said. Under state law, he said, a city can’t sponsor such a measure without prior environmental review.
Highsmith countered that the initiative is “all developer-driven; it’s all developer-developed” and that state law exempts voter-sponsored initiatives. She pointed to the council’s request for two election reports as evidence that the city is not a partner in the measure. “The city wouldn’t be able to do that if it was its own initiative,” she said.
Yee said the second amendment to the agreement, adopted when hedge fund D.E. Shaw entered the picture in 2008, added the option for SunCal to get its land plan approved at the ballot rather than through Council. The amendment scrapped part of the original entitlements language – Section 3.2.5 for those playing along at home – and replaced it with language allowing SunCal to pursue entitlements by initiative as well as through the more common application process.
Yee cited this as evidence that “the city was aware of the initiative process and that SunCal was planning to do this.” Highsmith countered that the amendment simply allowed SunCal to seek an exemption to Measure A.
Yee said that he and the City of Oakland are seeking records of meetings between SunCal and city entities to further their case that there is a “working relationship between the parties and therefore (state law) has been violated.” Yee said that the city has refused to provide such information; Highsmith countered that some of the documents are not public record and that Alameda has asked SunCal for permission to release them.
In an October 7 letter to Oakland officials, Senior Assistant City Attorney Donna Mooney wrote that Alameda would make “all disclosable records” available.
In the City of Oakland’s own recent letter to Alameda, Eric Angstadt of Oakland’s Community and Economic Development Agency echoed Yee’s claims that the SunCal initiative is “sponsored by Alameda, at least in part, and that the Alameda City Council is obligated not to allow a vote of the electorate” until the environmental review is completed. Oakland city officials did not return calls seeking comment.
Like Yee, Angstadt also pointed to the 2007 exclusive negotiating agreement between developer and city as supporting the position that Alameda is a partner in the ballot measure. Highsmith countered that the agreement is simply an assurance to a developer that a city won’t negotiate with anyone else.
“That’s all that exclusive negotiating development really does,” she said.