Crab Cove expansion backers protest proposed companion ordinance
Crab Cove expansion backers protest proposed companion ordinance
Proponents of a ballot measure that would rezone 3.9 acres of federal property near Crab Cove for park use are crying foul over a city-drafted companion measure that, if enacted, would give the City Council the power to put their initiative on ice.
“We feel it is an attack on our ballot measure,” said Karin Lucas of Friends of Crown Beach, which drafted the zoning measure. Lucas and a leader of one local environmental group said they may sue if the city’s so-called “fiscal responsibility” measure is enacted.
The council voted unanimously on July 1 to rezone the McKay Avenue property – where a housing development was being considered – for park use instead, codifying park backers’ measure instead of putting it on the November ballot. A final vote to approve the new zoning for the property, which the federal government has dubbed Neptune Pointe, is scheduled for tonight.
But members also voted, 4-1, to enact a companion measure that would allow the council to put the new zoning on hold if the city is sued as a result of the change – powers the council doesn’t currently have, which were added to the city measure in the wee hours of Tuesday night and approved early Wednesday morning.
Those, too, are up for a final vote tonight. If the council approves them tonight, the ordinances will go into effect on August 14.
Council members who voted to approve the fiscal responsibility ordinance said they’re only trying to protect the city’s finances in the event of a lawsuit and to be transparent with the public about the council’s options for handling the cost of a suit or purchase of the Neptune Pointe property, if a court orders the city to buy it. And they said the city ordinance disappears after 120 days if the city is not sued over the zoning decision.
“I feel it’s the prudent thing to do to adopt not just the open space initiative, but also companion measure, so we’re perfectly clear to the public what it is we could be getting into, and how we will deal with it if we are sued,” Vice Mayor Marilyn Ezzy Ashcraft said during the council’s July 1 meeting.
But proponents of the open space initiative derided the city’s measure as a scare tactic that overstates the risk that the federal government or Tim Lewis Communities, the homebuilder contracted to buy the property, will sue the city if the developer can no longer build homes there.
Jane Sullwold told the council she doesn’t think the developer, which is seeking to build more than 1,000 new homes along the Island’s Northern Waterfront, will want to pick a fight with the city. And the federal government doesn’t have to abide by the city’s zoning rules.
Proponents also pointed to a June 30 letter from the East Bay Regional Park District, which sued the city over the council’s decision to allow homes on the property because they want it to expand Crab Cove, as evidence that the park district will drop its long-running lawsuit if the original zoning is restored. But city staffers said the letter only serves to bolster the park district’s legal case.
A park district official did not respond to an e-mail seeking comment.
Councilman Stewart Chen, who cast the lone vote against the city’s measure, said he didn’t think the public had been given enough time to review it. The new powers that would allow the council to suspend or stay the park zoning weren’t included in the original ordinance released to the public before the council meeting but were instead added after City Attorney Janet Kern proposed them late Tuesday night.
In a press release, Friends of Crown Beach said the city’s measure violates state election law, which prohibit the council from amending or repealing a ballot measure without gaining voter approval first. And some proponents have cast it as the city’s effort to do an end run around citizens who want the property zoned for park use.
“I can tell you now that the Sierra Club and SPRAWLDEF are seriously contemplating a suit,” said Norman La Force, legal chair of the Sierra Club’s San Francisco Bay Chapter.
LaForce said the city’s ordinance puts open space initiative backers at a disadvantage because they will have less time to file a suit objecting to the city ordinance than Tim Lewis and the federal government do to challenge the new zoning.
Speaking on behalf of Tim Lewis Communities, Becca Perata said the developer will be working with the General Services Administration – the federal agency handling the Neptune Pointe sale – to determine next steps. She said they don’t anticipate anything will happen immediately.
GSA spokeswoman Traci Madison declined to comment.
“GSA does not comment on pending litigation,” Madison said.
Theoretically, either party could sue the city for a “taking” or inverse condemnation because the property would be worth less if homes can no longer be built there.
The federal government auctioned the property off in 2011 to recoup the costs of consolidating its operations on McKay Avenue, entering a contract to sell it to Tim Lewis Communities for $3.075 million. The contract has yet to close; the original, 18-month close date has been extended into September.
The City Council rezoned the property in 2012 to allow housing as part of its effort to secure state approval of a mandated housing blueprint and to head off a suit from housing advocates upset the city hadn’t put such a blueprint into place. But the park district, which has long wished to expand Crab Cove onto it, sued in an effort to undo the zoning decision.
After the state, which owns McKay Avenue, refused to allow Tim Lewis to access the road for its proposed 48-home project, the federal government sued to wrest ownership away from the state. The Bay Conservation and Development Commission recently voted to sue the federal government, saying McKay Avenue wasn’t included when the commission gave permission to sell the property.
Backers of the park district’s plan to expand Crab Cove onto the property – conceptual plans show additional parking and new staff offices, a corporation yard, meadows and an exploration trail on the Neptune Pointe site – put forward a proposed ballot measure to rezone the property for park use. The council’s choices were to either adopt the measure as a city ordinance or put it on the November ballot.
City officials have sought to cast the brouhaha as a fight between the federal government, the developer and the park district that the city was unwittingly drawn into, and City Manager John Russo said this week that the city was willing to talk to the park district about holding hearings to rezone the property. The parties are holding mediation talks in an effort to settle the suit, though Russo said they’re not close to resolving it.
“The city is not really an interested player here, other than we’ve been dragged into this lawsuit. I’d like to see the lawsuit go away,” Russo said. He expressed frustration that the city and other government entities are spending money that could be used to expand parks, just as the city is scrambling to piece together the money it needs to refurbish Estuary Park and to build the Jean Sweeney Open Space Park.
Park district officials, who have questioned the federal government’s decision to auction the property off instead of putting it through what they have characterized as the more typical surplus process – in which they could have obtained it for free or for less than the auction price – have said city officials placed themselves squarely in the middle of the fight after deliberately moving forward to allow housing there in spite of the park district’s well-advertised interest in obtaining it. The district’s suit claims the city failed to complete the public process required to okay the zoning, claims the city has denied.
Initiative backers have said voters signed off on the park district’s purchase of the property when they approved the Measure WW parks bond, which includes $6 million to expand Crab Cove. But the initiative doesn’t mandate the park district to spend the money to buy the property at the federal government’s asking price, and the park district – whose officials have said their appraiser valued the property at much less than Tim Lewis has agreed to pay – hasn’t publicly offered any plans to buy it.
The council meeting begins at 7 p.m. today at City Hall, 2263 Santa Clara Avenue.
Read all of The Alamedan’s coverage of the Neptune Pointe saga here.