Gentlemen’s agreement

I found this post by Eve Pearlman on The Island to be very thought-provoking, but it was this comment that sparked the need for more clarification.   The commenter writes:

I think there are four questions underlying this whole confusing issue:
1. What kind of development do we want to have on Alameda Point?
2. Does SunCal’s plan meet those standards?
3. Is SunCal the right company to implement the plan?
4. Is a ballot initiative the right way to answer these questions?

So far, most of the debate has been about questions 1 to 3, with compelling arguments on both sides. However, I’ve recently concluded that question 4 is the essential one. I agree with Eve that this is no way to create a development agreement. These kinds of agreements need to be carefully negotiated by professionals on city staff and vetted by our elected officials to whom we’ve given this responsibility. Putting it on the ballot has created more heat than light, generating more self-serving and emotional opinions than logical arguments. I’m inclined to vote “no” and force city government and SunCal to either come to some kind of agreement or find a new master developer. This has dragged on a long time, but that’s not a reason to compromise.

I think the whole “Development Agreement” issue has been made more complex than it actually is and been monopolized by opponents to Measure B to raise doubts for folks who haven’t necessarily been following the conversation too closely.

Or maybe it’s a case of our City leaders not understanding the purpose of the Development Agreement either.  Less likely, but quite probable.

Backing up this whole conversation, the main purpose of a Development Agreement, as codified by the California legislature is to provide certainty to a developer in an uncertain world:

65864. The Legislature finds and declares that:
(a) The lack of certainty in the approval of development projects can result in a waste of resources, escalate the cost of housing and other development to the consumer, and discourage investment in and commitment to comprehensive planning which would make maximum efficient utilization of resources at the least economic cost to the public.

(b) Assurance to the applicant for a development project that upon approval of the project, the applicant may proceed with the project in accordance with existing policies, rules and regulations, and subject to conditions of approval, will strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic costs of development.

(c) The lack of public facilities, including, but not limited to, streets, sewerage, transportation, drinking water, school, and utility facilities, is a serious impediment to the development of new housing. Whenever possible, applicants and local governments may include provisions in agreements whereby applicants are reimbursed over time for financing public facilities.

Essentially a Development Agreement serves to freeze a point in time, the point when the developer agrees to get involved in a project, and lock in “existing policies, rules, regulations” so that a year, two years or even ten years later down the line the City cannot change the rules on them and thereby change the entire game.

Let’s take Catellus’s Alameda Landing Development Agreement for example.   Because certain rules were frozen into place, new ordinances such as the recently passed big box store limiting ordinance doesn’t apply to Alameda Landing.  Because at the time that the Development Agreement was signed, Big Box stores weren’t limited by any ordinance and the expectation by the developer was that Big Box stores were okay.   And let’s not forget the exemption from the Citywide Development Fee, which some opponents have been handwringing about in the Alameda Point Development Agreement and talking about how the City will lose $51 million in these exempted fees from Alameda Point.

Opponents to Measure B have been attempting to place more weight on the Development Agreement than it actually has in reality, proclaiming that items are both missing from the Development Agreement, but then that SunCal also overreached in the creation of this document.

The Disposition and Development Agreement (DDA) to be negotiated by the City and SunCal (in the case that the Initiative is successful) is where the bulk of the nitty gritty gets resolved and codified into writing.   Financials, timelines, who pays for what, what gets built where and when.   That’s all in the DDA, not the DA.   That the City and opponents are minimizing the importance of the DDA in favor of building the hype around the Development Agreement and the perception that the Development Agreement is the be all end all of all contracts between the City and SunCal to further confuse an already confused and frustrated voting populace speaks volumes to their stated intent for transparency and education of the majority of Alamedans who have neither the time or inclination to become experts of the complexities of state law, land use, and contracts.

But going back to the initial question of “Is a ballot initiative the right way to answer these questions?”  The answer — as suggested by Eve Pearlman’s initial post — is:  it’s complicated.    Had the City Council taken a leadership position and placed just the bare minimum of the ballot themselves in order to move the SunCal plan to the next step ,we would probably be having debates on the fact that we should be voting on the whole plan and not just this one issue.   There is no way to make everyone happy, but as mentioned by the Interim City Manager when discussing the Chuck Corica Golf Course, but resonates to this issue:

To continue to do this and to think that we’re not going to be able to make a decision and that we can continue to operate so many things here in the city the same way we’ve been operating them before is just not today’s government reality.