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On Point: Meanwhile, in Oakland

Submitted by on 1, November 6, 2009 – 5:50 am6 Comments
Photo by Charles Howell

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.

6 Comments »

  • Jill Staten says:

    It sounds like they have a point. Could this threatened lawsuit be avoided by simply postponing the election until the EIR is complete?

  • William Smith says:

    Once again Rin Kelly has focused on one of the most significant issues raised by the Alameda Point Initiative. She is a living example of the importance of supporting good investigative reporting whatever our source of news is.

    Is, or in the case of Alameda Point was, the Initiative an attempt by the City to entitle a developer to development rights that could not be taken away to mitigate adverse environmental impacts identified in a subsequent EIR Environmental Impact Report)?

    If so, the City appears to have now changed its mind about the wisdom of this Initiative approach. The City may have initially enabled SunCal to seek entitlements via initiative to attract funding from D.E. Shaw. This speculation is supported by the timing of D.E. Shaw joining the development team at the same time as the City added language to an agreement that allows SunCal to seek entitlements via Initiative. See Rin Kelly's story "On Point: Meanwhile, In Oakland" published in The Island on November 6th for background.

    Did the City and the Developer believe that the environmentl impacts of the development on traffic both in Alameda and in Oakland's Chinatown (when assessed by professionals in a legal document, the EIR, rather than in marketing materials)would make it politically impossible for the Alameda City Council to certify an EIR without reducing the total number of permitted units and commerical space to a level where the project would no longer be economical?

    Whatever the progress of the City of Oakland's legal action, the citizens of Alameda can insist on seeing a professional report on the environmental impacts of proposed development at Alameda Point BEFORE entitling the developer with development rights by voting NO on the Alameda Point SunCal/D.E. Shaw Hedge Fund initiative on February 2nd. If Alameda Citizens vote NO, the Oakland's legal actions against Alameda will be mute.

  • Richard Bangert says:

    Rin,

    Can you elaborate on something: Isn't what we (Chinatown and Alameda) are arguing over is the definition of "getting underway?" As in, the project getting underway. Regardless of the Chinatown Settlement, an EIR would be necessary before the project started "getting underway." It sounds like the Chinatown attorney is claiming that the election is the "getting underway" event, and they are working every angle they can find to support their contention that the election is the act of the project "getting underway" and therefore the EIR needs to be completed AND commented on by Chinatown now rather than a year from now.

    As for Alameda's argument that the initiative is not the city's initiative and therefore Alameda is not violating the settlement agreement, the city attorney is technically correct, but it is not in line with the spirit of the settlement agreement. It seems like a lot of arguing over technicalities and who said what in secret meetings, etc., when the obvious intent of the Chinatown Settlement Agreement was to allow Chinatown to have input before proceeding. If SunCal had sponsored community meetings in Chinatown prior to coming up with its 4,800 housing units and all of their promises, maybe the initiative would have turned out differently. Maybe we would not end up wasting an entire year before these traffic issues come to a head and again waste more time in court.

    There is something wrong when Alameda has more cordial relations with a Sister City in China than we do with our neighbors in Chinatown a mile away.

  • Scott says:

    Yee needs to focus his energy on cleaning up chinatown and not be so concerned with whats going on at the point in Alameda. The election is going to hapen and the bulldozing at the point will follow shortly after. The sooner Yee and Chinatown realize that the sooner we can have a development at the point everyone can enjoy and a Chinatown that we can all be proud of.

  • Sarah says:

    I attended two presentations in Oakland by Suncal on the plan with city planning staff explaining that the plan will require an exemption to Measure A to meet the affordable housing goals of 25%. The meeting had representatives from the Oakland Chinatown Chamber of Commerce and the Asian Health Services. It is perplexing that Yee's clients forgot to tell him that these meetings occurred and Chinatown saw maps of the land plan and were already concerned with the 4,000+ units over 8-13 months ago.

  • Rin Kelly says:

    Hi Richard,

    To my understanding, the argument in question is not really about the definition of "getting underway"–it's about sponsorship of the initiative. The California Environmental Quality Act requires that any such initiative, when put forth by a public agency, have a completed EIR before going on the ballot. As far as when the project would be "getting underway," Highsmith said that the city would not be able to ink a disposition and development agreement with SunCal without an EIR and that signing a DDA "would be the first action that creates the project" as far as the city is concerned.

    One thing Yee's letter does argue in addition to the sponsorship issue is that finishing an EIR after the initiative has gone to a vote "would amount to a post hoc rationalization for actions the City had already taken and would violate the City's obligations under the Agreement."

    Hope that helps.

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