Blogging Bayport Alameda

November 20, 2012

Can’t get no love from EBRPD

Filed under: Alameda, City Council, Development — Tags: , — Lauren Do @ 6:00 am

I haven’t written about this yet, but wanted to circle back to the lawsuit that has been filed by the East Bay Regional Park District over a little piece of land the federal government decided to name: Neptune Point.   The City is not taking this lawsuit lying down and last week sent out a strongly worded press release essentially saying what I summarized above.

To quickly recap what has been going down, in 2008 the federal government declared that Neptune Pointe property as surplus and held an auction in the summer of 2011 to sell off the property.

Before that, during open Council Communications in May of 2011, Mayor Marie Gilmore had indicated that EBRPD was very interested in purchasing the property so the assumption that most people thought was that EBRPD would probably put a bid in for the property.

About two weeks into the auction and no one had yet placed a bid on the property, there were finally two takers.  It took until June 15 until someone placed the minimum bid of $1 million and the next day a second bidder upped the bid $50K.

In the end, EBRPD either didn’t put in a bid or they were out bid for the parcel because it went to Tim Lewis Communities who paid somewhere in the realm of $1.8 million for the property.

Tim Lewis Communities also sent a letter in November of 2011 to rezone the parcel to residential per the Draft Housing Element.

And now the EBRPD is suing the City because it claims that no one told them that the Housing Element was going through the approval process.   Normally I would feel sort of bad for EBRPD because honestly, that site is kind of a crappy one for building housing because of the limited access due to that tiny road going into the site, but holy entitled bullshit Batman, the letter sent out by EBRPD about why they feel wronged by the City of Alameda and is now suing the City is completely ridiculous.

Here’s the thing.  EBRPD had ample opportunity to bid on the land.  I’m not quite sure what stopped them from outbidding the private developer.   I mean, they really really wanted the land.  Had indicated to everyone and their mother that they wanted it, but when the shit got real, they balked.   And now they want to twist the City’s arm and tell them to unzone a piece of land that we need in order to show the state that we have zoned enough land to meet our Regional Housing Needs Allocation or else: lawsuit!   Geez, if EBRPD knew that they would go to the extreme of filing a lawsuit to get the property no matter what, perhaps they should have funneled their legal fees into the amount they would be willing to pay for the land outright from the feds.

And then, the whole hand wringing over not being told about the Housing Element process.   Isn’t it the responsibility of someone at the EBRPD to pay attention to this kind of stuff and not have to be handheld through the process of responding to a document that is required of every single city in California?

Shortly after, the Sierra Club also chimed in with their own two cents.   Claiming that because there is a surplus in the number of units zoned by the City in the Housing Element that the City should just screw over this private developer because at that point the land would be rendered practically completely useless because the only buyer for the land would be EBRPD who would then be able to pay whatever they felt like for the property instead of what TLC paid for it or even what the property is worth.   Of course this argument doesn’t take into consideration what happens if projects that actually move forward, such as the Chipman Terminal project, that is under the number estimated in the Housing Element and the surplus is completely eliminated because an actual project doesn’t use its full possible numbers.

Instead of suing the City, I’m not sure why the EBRPD doesn’t just offer to write a check to TLC for the $1.8 million to take it off their hands instead of going through this drama.


  1. My vote is for EBRPD to acquire the Federal Property. Hopefully our fair “city parents” and “manager” and federal govt will relent and decide in the interest of the park district before all goes to court!!

    Comment by Thomas — November 20, 2012 @ 7:55 am

  2. Personally, I’m with the Park District and the Sierra Club on this one! Of course the Park District can’t afford to pay what a developer can. That doesn’t mean it is the right thing to do with the open space. I say keep it open. We don’t need more stinking houses on the island. There are a lot of empty ones.

    Comment by Marie — November 20, 2012 @ 7:55 am

  3. The lawsuit between EBRPD and the City may have been avoided had the City or myself (I could have taken the initiative and called EBRPD to verify that they had no intrerest in the property as I had erroneously assumed) had a more transparent and inclusive process last spring for reviewing the sites proposed for rezoning for multi-family housing. Had I known of the interest that the EBRPD had expressed in the Neptune Pointe site, rather than lobby for the site’s inclusion, I would have lobbied then, as I am now, for the site’s exclusion from the multi-family housing overlay.

    I refer you to a lengthy exchange on Action Alameda in July for why so much of the community, and obviously the East Bay Regional Park District, found that the City’s outreach to citizens and nearby property owners fell short on the selection of sites for multifamily overlays.

    I am not supportive of the single family housing development proposed by Tim Lewis Communities for this site for several reasons.

    First, and foremost, Crown Beach State Park is one of our City’s leading atttractions and a regional gem. Efforts to improve the State Park merit our active support, not our passive neglect as evidenced by the willingness of some to let the residential zoning, approved without the public being aware of all the facts regarding the parcel, stand without reconsideration.

    Second, TLC is not an innocent party caught up by surprise in the controversy. TLC put in a bid that is contingent upon the property being rezoned for residential – and TLC knew at the time that they submitted their bid that EBRPD and the State would oppose road and utility easments along State owned McKay Road that would be necessary to develop the parcel. Still, TLC chose to submit a contingent bid for the property, anyway. If their contingent condition is not met, the zoning of the property for residential use, TLC will be able to cancel the purchase contract and will not be out their $1.8 million dollar purchase price.

    Third, TLC’s proposal to build only single-family housing on the site would contribute to the City’s difficulties in complying with State housing law. So far, all developments proposed for sites now zoned for multi-family housing in Alameda have proposed only single family or duplex homes at numbers far lower than permitted. Unless the City succeeds in attracting multi-family developers as well as single family developers, the City will soon be out of compliance with its housing element whether or not TLC’s single family homes are built at Neptune Pointe.

    If one steps back and looks simply at whether Alameda and the region will benefit more from a more attractive and accessible Crown Beach State Park or from 48 additional single-family homes at Neptune Pointe, the course is clear. Rescind the residential zoning on Neptune Pointe and support the EBRPD and the expansion of Crown Beach State Park.

    William Smith

    Comment by William Smith — November 20, 2012 @ 8:20 am

  4. 3: I fail to understand why the City of Alameda did not take some simple steps early on to make sure that the surplus property would:

    a) be zoned only for parks and open space, and

    b) to reach out to EBRPD to ensure a smooth transition between federal ownership and EBRPD ownership.

    As Bill Smith notes above, it is still not too late to do this–IF the City of Alameda and EBRPD are willing to de-escalate and actually talk to each other.
    Is that asking too much? I sure hope not…

    Comment by Jon Spangler — November 20, 2012 @ 8:42 am

  5. EBRP should be upset, but with the Feds and with themselves, not the City. As with any federal surplusing, there was the option to do a Fed to fed transfer to the Dept. of the Interior, who then could have transferred the property to the EBRP(Alameda is all too familiar with Fed to fed transfers). EBRP was asleep at the wheel with the surplus process took place, and the GSA, just coming ouit of a serious of scandals about misspending money was keen on selling off the property, so they invoked policy(not law, but internal policy) to sidestep any transfers. A little lobbying by EBRP would have changed that.

    Now after all is said and done, EBRP has chosen to victimize Alameda and low income housing instead of looking to their own inaction and that of the Feds.

    Comment by Doug Biggs — November 20, 2012 @ 9:02 am

  6. I am totally behind EBRPD
    The leaders of this City and Management are totally ignoring what 80% of the voters said with measure D .
    No one has ever been elected with such margin , food for thought .
    I do hope this will will be dragging until the next election so we can clean House .
    I am not against building houses this is the wrong style at the wrong location .
    Alameda is Banking on the beaches to attract peoples and business , yet there is limited access if any .
    It does not require a space cadet dploma to figure this out , simply be an Alameda resident , most of them at the decision making level are not , actually the page for the City Manager list Oakland , what’s wrong ashamed of Alameda …..
    If I was on the board of the EBRPD , I would be looking very hard at cancelling any and all deal with the City , we all know the City cannot afford the multi millions maintenance , they can’t even afford to pay their own pensions or the streets.
    When you have asset and the beaches is one of them , you protect them and keep the organisation imformed ,
    This sound like another boiler room deal like Suncal or Ron Cowan and others …….

    Comment by mijoka — November 20, 2012 @ 9:02 am

  7. The property was surplused by the federal government, the City had nothing to do with the surplused land. It doesn’t own it, it didn’t sell it. Given that the land was suplused back in 2008, perhaps if EBRPD really really really wanted it they should have been more insistent with the Feds instead of placing the onus on every other agency but itself to get the land into its possession.

    Comment by Lauren Do — November 20, 2012 @ 9:03 am

  8. “Isn’t it the responsibility of someone at the EBRPD to pay attention to this kind of stuff”

    Perhaps they would have been at the meeting that approved the housing element overlay if the notice to nearby property owners had been sent to them instead of the owner of record – the California Department of Parks and Recreation in Sacramento.

    Perhaps the McKay site would never have been placed on the new housing element zoning list if people on the committee that came up with the list had looked at the map – or rode their bicycle past the property – or talked to the park district that operates a popular recreation area next door that they apparently seem oblivious to, or read Blogging Bayport last year

    Perhaps the property would never have been auctioned if the GSA had followed their own rules, which specifically state that if no other federal entity wants a surplus property, then the next step is to offer it to state and local agencies. Not only did they not offer it to the park district – they wouldn’t even agree to a negotiated sale! The GSA even has the authority to GIVE the land away for free for certain public benefit uses. Memo to GSA: Bush is no longer president.

    Perhaps this would never have been an issue, if way back when the federal government gave part of this old maritime academy property to the state, which became Crown State Beach, a federal agency had not said they needed space for an office building and parking lot. It would have been part of Crown Beach from the beginning.

    Perhaps Mr. Tim Lewis should bring his extra long tape measure and check to see if the property line is within 100 feet of the water. If it is, then he will need approval from the Bay Conservation and Development Commission – good luck with that.

    And good luck, Mr. Lewis, on getting the state to compromise the operation of one of their state parks by allowing the street that they own to be torn up for housing infrastructure – to provide a utilities to a private residential development at the end of a state road leading to a state park.

    One of the ironies in all this is that getting an approved housing element is supposed to ensure that we don’t miss out on state monies for things like…parks.

    Comment by Richard Bangert — November 20, 2012 @ 9:06 am

  9. so it looks like everyone agrees that this property should end up with EBRPD, however we now have a big mess, where was Doug Sniden on this issue when it was transpiring, isn’t he our Representative for the EBRPD. Just a question, I don’t mean to sound negative.

    Comment by John P.(L)as in liberal — November 20, 2012 @ 9:12 am

  10. Regarding Question 9, where has Doug Siden been?

    Shortly after John Russo became City Manager, our elected represenative on the EBRPD board, Doug Siden, and Robert Doyle, the EBRPD General manager, met with John Russo. They told Mr. Russo that the EBRPD had two priorities in Alameda – conservation of endangered wildlife at Alameda Point, the Least Tern colony, and acquiring the Federal Neptune Point property. From the EBRPD letter to Mr. Russo Lauren links to above, it appears that Mr. Siden and Mr. Doyle apparently assumed that Mr. Russo would look out for their interests and so decided to keep the EBRPD interest in the property low key – which in retrospect, appears to have been a mistake.

    William Smith

    Comment by William Smith — November 20, 2012 @ 10:24 am

  11. There’s this really awesome house in the Gold Coast that I’ve always wanted. I found out it sold last year! Nobody called to tell me, nobody even held my hand while teaching me how to look at the MLS. I was bummed out that somebody else got it even though I loved it more.

    Now, though, I know I can sue to get what is rightfuly mine. We move in the day after the trial!

    Comment by Jack Schultz — November 20, 2012 @ 10:41 am

  12. Clarification:

    1. At no time did the City of Alameda own the property in question. This was a sale between the Federal Government and a private entity, with the Feds determining, in its sole discretion, the parameters of the sale.

    2. If EBRPD owned the land, they could build their parking lot without ANY zoning changes, period.

    3. The buyer, Tim Lewis Communities, did not buy the property contingent on a zoning change. In fact, if they decide not to go through with the purchase for ANY reason, they will pay the feds $800,000. No monies from this transaction will flow to the City of Alameda.

    4. Even if EBRPD wins its lawsuit against the City of Alameda, they will NOT own the property.

    5. Even if EBRPD wins its lawsuit and forces the City of Alameda out of compliance with state mandated law, nothing prevents the OWNER of the property, whether it’s the feds or a private entity, from requesting a zoning change.

    6. Finally, the City of Alameda urged EBRPD to request a zoning change instead of filing its lawsuit. EBRPD chose to litigate rather than conduct public hearings. By filing its lawsuit, EBRPD apparently expects the City of Alameda to swap the MaKay property with some other parcel to remain in compliance with our state mandated Housing Element without the benefit of such a public process.

    Comment by Alexander Nguyen, Deputy City Manager — November 20, 2012 @ 11:51 am

  13. Regarding comment 11 and that really awesome house in the Gold Coast!

    If the coveted Gold Coast was actually next door and was a large parcel that the owner proposed to divide in two, with both resulting parcels adjoining my property, I would be justified in expecting the City to comply with my request to personally inform me of new zoining for that parcel. Now if the new zoning allowed the parcel to be subdivided, so that the the only access to the property required multiple easements through my property, it would be essential that the City keep me informed. New zoning that is meaningless without easments through a popular State Park managed by the EBRPD is the case at Neptune Point.

    To develop Neptune Point, the developer requires easements from the State of California to provide vehicular access, phone, and electrical service to the new property – easements that the State, through its property manager the East Bay Regional Park District has informed both the developer and the City that it will not grant. Better to have the deal for the property fall through now before money exchanges hands than later, after money has exchanged hands.


    The federal property that GSA is trying to auction off, Neptune Point, has no legal access for residential or any utilities. On behalf of the State, the East Bay Regional Park District informed the developer, the City and the GSA before the auction that the State would not support granting additional easements for residential development because of adverse impacts to the park. Still, the GSA decided to go ahead with the bid, and the developer as well.

    The bid procedure was unusual. In almost all cases a surplus government property is required to be offered to other public agencies first, which the GSA did not do. Instead, the GSA decided to auction the property over State objections, siting some special Bush era legislation. EBRPD and the State did bid, bid but the developer, encouraged by the City, bid higher assuming that residential development would still allow it to make a profit. The EBRPD and State appraisers would not allow the Park District to match the bid, since at the time of the bid, the property was not zoned for residential use. Since receiving the winning bid, GSA changed the auction rules and have extended the required cash payment period twice to give the developer time to secure residential zoning for the property.

    Comment by William Smith — November 20, 2012 @ 11:55 am

  14. Did you say SWAP, Alex? Bad idea. I can hear the rumbling already! This is why I love this blog. Thanks to Lauren posting about it last year, I went & visited Neptune Pointee when it was open for buyers to view.[ Anyone who cared should have done so.] The GSA folks were already sweating that no one had bid on it yet. It was also openly mentioned that EBRPD was interested., “wanted it”. Since both GSA & EBRPD are Government agencies, why wasn’t there some sort of government to government transfer? I don’t know who stands to profit from these shenanigans, but it seems to me that, wie immer, the taxpayers lose. Another great governmental waste of time, energy, & money.

    Comment by vigi — November 20, 2012 @ 12:23 pm

  15. Again, EBRPD may have a legitimate bone to pick with the Feds and the whole surplus process but suing the City of Alameda is ridiculous and indefensible.

    Comment by Lauren Do — November 20, 2012 @ 12:49 pm

  16. Regarding Comment 12:

    The clarification of the terms of the sale is useful. The $800,000 irrevocable obligation that Tim Lewis Communities incurred when they signed the sales contract with the GSA is likely closer to the value of Neptune Pointe without residential zoning than the $1.8 million purchase price, for which the GSA has twice extended the payment deadline.

    Regarding point 6 there are several alternatives for replacing the nearly 100 units of housing allowed by the disputed zoning of Neptune Pointe that involve no land swap, One alternative is to increase the maximum density allowed on existing parcels to which the multi-family overlays already apply, such as the 20 acre North Housing site just north of Coast Guard Housing on the West End.

    Comment by William Smith — November 20, 2012 @ 1:16 pm

  17. Re 16:

    EBRPD’s suit against the City of Alameda is wholly reasonable and defensible. Had the City not indicated to Tim Lewis Communities and the GSA that they were willing to rezone a site for residential, when such development is impeded by existing property rights, GSA and Tim Lewis Communities may not have proceeded with their deal.

    I find the City’s current legalistic behavior understandable, but like so many legalistic maneuvers, unreasonable. The City is using the housing element to justify retaining residential zoning for a site that is not buildable since required easments are unlikely to be granted – and hence such a site should never have been in the housing element in the first place. From my point of view, deletion of such a site strengthens the City’s case for compliance with state housing law, rather than weakening it. Retention of such a site actually weakens the City’s housing element by encouraging it to approve developments on other sites below their maximum zoned capacities when in fact, the capacity at this site does not count.

    Comment by William Smith — November 20, 2012 @ 1:35 pm

  18. You are inferring that the TLC went forward with the sale contingent on information from the City. The Deputy City Manager wrote not a few comments above your allegation:

    The buyer, Tim Lewis Communities, did not buy the property contingent on a zoning change. In fact, if they decide not to go through with the purchase for ANY reason, they will pay the feds $800,000. No monies from this transaction will flow to the City of Alameda.

    Based on recent appraisals for the Mif Albright site compared to this one, even the $1.8 million is considerably undervalued for the land, even the land as open space. The Mif was valued at $6.6 million ($12.42 per/SF) as “vacant land.” The McKay site is 169,827 sq ft. You all can do the math on that one.

    Comment by Lauren Do — November 20, 2012 @ 1:52 pm

  19. Robert Doyle, General Manager of the East Bay Regional Park District, Responds to My Questions About Expanding Crown Beach State Park. I found his response helpful in understanding the Park District’s concerns.

    I can provide at least a partial explanation to Mr. Doyle’s question below of why the property was added to the housing element as I was one who advocated for just that. I pushed for its addition to the housing element as I did not know at the time of the difficulty any housing developer would face at the site obtaining the road and utility easements necessary to develop it. Nor had I known of the Park District’s long standing commitment to acquire the property.

    William Smith
    Received on November 20th

    Dear Mr. Smith

    Re: In response to your questions regarding the bidding process for the GSA property at Robert Crown Memorial State Beach

    The EBRPD did bid on the property. We had requested that the GSA follow the normal federal surplus property procedures, which give local governments a chance to negotiate directly for the property. It was GSA’s position that they had to auction the property to the highest bidder.

    As a public agency we are required by law to offer no more than the appraised fair market value of the property to protect tax payer from overpaying. The Park District commissioned a standard appraisal for the property and made a bid based on that appraisal. The appraisal had to take into account that the access road to the subject property was owned by the State of California Department of Parks and Recreation.

    We had told the City, GSA and other potential bidders who contacted us that we would not support the change in use and the granting of easement for utilities and access for residential housing because of the impacts to both our existing operations and future plans, which were approved by the voters (see Measure WW) at the park. Even knowing this the developer bid much higher than our appraisal. The GSA also extended the time for the developer to pay for the property 2 times contrary to the bidding rules. The developer does not own the property at this time.

    This process is very troubling considering the extensive outreach the Park District has done with the City starting over 3 years ago. We do not understand why this property was added to the Housing Element when its uses are so clearly limited and the City was well informed about the Park District’s position. The only thing this action has done is to potentially cost the tax payers millions more to acquire the property by changing the zoning for the benefit of a developer. I hope this is helpful in understanding the Park District’s concerns.

    Comment by William Smith — November 20, 2012 @ 2:33 pm

  20. Call me crazy, but I think this battle should be waged between the GSA, EBRPD, and TLC. Leave our city out of it. We don’t own it, we didn’t try to buy it, so I don’t care how its zoned at this point.

    Comment by John P.(L)as in liberal — November 20, 2012 @ 2:45 pm

  21. May I suggest that the Sierra Club and the EBRPD try to raise the $1.8M and purchase the land from Tim Lewis instead of wasting taxpayer monies on this ridiculous lawsuit. Alamedans have better things to do with our monies than to defend against a pissing match between EBRPD and the federal government.

    Comment by BarbaraK — November 20, 2012 @ 4:10 pm

  22. “We are sensitive to the environment and look to preserve what’s special about your land such as open space, riparian corridors, and the like.”

    If so, then back out of the McKay Ave deal and we can all sing a Woody Guthrie song together.

    Comment by Richard Bangert — November 20, 2012 @ 5:09 pm

  23. Richard, I have never heard a land developer speak an entire sentence without telling a lie. I guess there won’t be much singing going on.

    Comment by John P.(L)as in liberal — November 20, 2012 @ 10:11 pm

  24. Clarification:

    As Lauren and other supporters of the City have pointed out, I made an unsupported assertion in comment 17. Based on how events unfolded, I assumed that the City had indicated to Tim Lewis Communities and the GSA in advance of the auction for Neptune Pointe that the City was willing to rezone the site for residential. I apologize for clouding an already difficult and complex debate with an unwarranted assertion. A more accurate statement of my point is:

    EBRPD’s suit against the City of Alameda is wholly reasonable and defensible. By rezoning the site for residential, when such development is impeded by existing property rights of the State, the City is encouraging Tim Lewis Communities to proceed with a deal which TLC may be unable to finance, as suggested by the two extensions of the closing date already granted by the GSA. The City’s rezoning of the parcel also improperly uses land use controls to unjustifiably inflate the bid price beyond the reach of those who bid for the site based on uses, such as a park, that are compatible with the site’s original zoning.

    I acknowledge, but disagree with, the assertion by some that the Federal government will be able to grant road and utility access to the Neptune Pointe property through the northern portion of the property, occupied by office and laboratory buildings, that the Federal government plans to retain. These are the sorts of disagreements that would have been better raised and discussed during the hearings on rezoning the property for residential, but for whatever reason, were not.

    I also acknowledge that Tim Lewis Communities may not have needed overt encouragement from the City to acquire the property., states clearly that they specialize in acquiring property with special conditions, such as acquisitions that

    ■ Release funds during the approval process or

    ■ Close without entitlements in special circumstances

    Again, my apologies for the unwarranted assumption that I made implying that the City had overtly encouraged Tim Lewis Communities to proceed with the acquistion at a price more consistent with future zoning than with its then current non-residential zoning.

    Thanks to Lauren and City staff who called me on my unwarranted assumption, and to Lauren for giving me the opportunity to provide this clarification.

    Comment by William Smith — November 20, 2012 @ 10:18 pm

  25. Let me point out, again, that when we were discussing the imbalance between the proposed land swap of the Mif Albright course and the North Loop Road property at no time did anyone say, “hey, we should just allow Ron Cowan to base the value of Mif Albright land on uses ‘compatible with the site’s original zoning'” The push back for more appraisals came from the fact that the original appraisal was too low for the “best and highest use” of the Mif Albright land which is housing. It is not zoned for housing.

    The site’s original zoning is Administrative Professional with a Government overlay which would still garner a much larger price per square footage than park use. And the bids were placed before any discussion of rezoning of the land had occurred. The developer felt the property was worth $1.8 million, clearly the EBRPD did not. The only thing “inflating” the property price is a little thing called: the market. Not the City.

    You still have not identified any legal argument that the EBRPD has against the City, it is NOT the City’s job to handhold a regional agency through the process of filing comments or attending hearings about any development plan or administrative process that occurs on a regular basis at the City level.

    Comment by Lauren Do — November 21, 2012 @ 7:26 am

  26. I obviously have the minority viewpoint here – but I would love to see Tim Lewis Communities move forward with a waterfront housing development on the West End. Look what Bayport has done for the West End — we could use more projects like this on the West End. In my view, the highest and best use for this land is a waterfront development not a parking lot!

    Comment by Karen Bey — November 21, 2012 @ 9:24 am

  27. The parks district’s legal arguments are never going to hold up in court. The site itself was noticed, the land owners in the area were noticed (most showed up at the hearings). This is a frivolous lawsuit that is double charging taxpayers.

    The City’s actions have not affected the Park District’s ability to build what they want, the GSA’s have. After not winning the auction, and after years of lobbying and trying to get the Feds to give them the land, EBRP is attempting to extort the taxpayers of Alameda to try and force the City to zone land it does not own, and has no claim on by making the city expend unnecessary money to force existing landowners to give up their claims. This is extremely unfriendly, not conducive to collaboration and an complete abuse of taxpayer funding at its core.

    I’d love to see Crab Cove expanded, it’s too bad the East Bay Regional Parks didn’t enlist the community to assist them in making the case that the GSA should provide them the land as a transfer. They didn’t. Imagine the credible lawsuits that will be encouraged if the City decides to re-zone the land in favor of a specific interested party who has requested the zoning change, not because it will allow the uses they are interested in (the current one does), but because it will force the winning party in a legally held auction, to drop their claim on the land.

    If the hurdles ever developing the land are as high as William Smith says, then the result will be exactly what EBRP’s wants, Tim Lewis Companies will rid themselves of the land, or they will not close on the escrow. In either case, with no lawsuit needed, the Parks District will find itself in the position of being able to acquire the land, with little competition.

    Comment by jkw — November 21, 2012 @ 9:33 am

  28. 26. Karen,

    Not for a parking lot? That’s where the park is! with its tiny parking lot that is inadequate for today’s needs. The land would allow for the existing postage stamp parking lot to be converted to more park space, a good outcome. And it’s not just for a parking lot. There is an existing building that the exhibit shop could be moved into, which would greatly increase the display and program area of the existing visitor center, another good outcome.

    If the housing development gets built, it won’t be long and the residents will be complaining about the Crab Cove visitors parking on their private street, which will lead to a gate. And after they have the gate, they will complain about the park district servicing their vehicles in the maintenance yard or mulching up the wood trimmings that they gather up there.

    How we got to this unfortunate state of affairs is a completely separate issue from what the highest and best use of this land would be. And I would point out that if not for the historical particularities of this parcel (which was created with fill), it would become Public Trust Land upon leaving federal hands, just as certain land at Alameda Point will become Public Trust Land. And housing is not a permitted use on trust land. So, consider it a quark that housing can even be contemplated here.

    And speaking of quarks, apparently the GSA-party-at-the-taxpayers-expense crowd was too busy partying to notice that the Navy had dropped the “fair market value” rule for disposing of land in Alameda, while they continue living in the Bush era. They should have given the land to the park district, possibly for the cost of improvements. And while I’m on the GSA, the real culprit here, how much did the federal government charge the state when they gave the state the land that became Crab Cove? Did they sell it, or give it to the state?

    Comment by Richard Bangert — November 21, 2012 @ 10:50 am

  29. Richard, in most cases I normally come down on the side of parks and open space, but when it comes to the development of the West End, I strongly believe the West End needs these types of developments. Seen by some in this community as a blighted area — developments like the Bayport, Marina Cove and hopefully Neptune Pointe will help the West End turn the page and re-brand itself as an up and coming area for young families and professionals, much like Temescal in North Oakland has done.

    Comment by Karen Bey — November 21, 2012 @ 11:26 am

  30. Temescal in North Oakland once considered “rough around the edges and undesirable” is now considered “trendy”, according to an article written by Brian Anderson called “ Up and Coming Temescal – attracting families and money”.

    Development can transform a community and Bayport was a good start. I believe that Neptune Pointe, Marina Cove and the new residential project at Alameda Landing can help the West End towards that goal. I have nothing against the East Bay Regional Parks – but I see the larger picture here, and this project is an investment in the future of the West End.

    Comment by Karen Bey — November 21, 2012 @ 11:41 am

  31. Karen, what boundaries do you give the neighborhood you refer to as Temescal ? I know somebody on Manila below College who likes to call his neighborhood “lower Rockridge”, but I think others call it Temescal. Some might call the old Idora Park neighborhood between Telegraph and Shattuck above 51st Temescal or “lower Temescal”.

    The crime in that area is weird because it is sporadic and migratory in that people who rob upwardly mobile residents as they get out of their cars after commute home are from adjacent neighborhoods on the west side of Telegraph. Folks between Broadway and Piedmont Avenue below 51st have had similar problems for years.

    In any case, real estate in all those neighborhoods has held it’s value relative to the over all market and has been pretty desirable for at least a couple decades, but appreciation is also limited. Hipster influence in the commercial strip ( Telegraph at 51st toward Up Town) has been slow and steady over last twenty years, including cafes and restaurants, not unlike Park Street on a smaller scale, but the occupants of the surrounding houses haven’t changed that much. When did Brian write his article? We moved to Alameda from 56th and MLK, which has remained a couple notches down, but even that neighborhood saw a lot of gentrification after we left up til the bubble burst, but it is more racially diverse than Telegraph to College but ironically may be safer place to walk from your car to your house on any given evening.

    I think your hope that high end houses shoe horned into the Neptune Pointe lot will help reach critical mass for tipping Pointe to be a bit of wishful thinking. Almost anywhere on the west end is as desirable as North Oakland and the existing neighborhoods will evolve on their own. I think businesses on Webster have as much to do with change as anything. As residents move in who have more upscale tastes, the businesses slowly reflect that and then attract more of the same folks to the neighborhood. I think schools would be another factor more powerful than another node of high end single family housing stock. Just my conjecture based on gut.

    Comment by M.I. — November 21, 2012 @ 1:44 pm

  32. The Bayport development has helped the West End tremendously, which was a great start in helping revitalize the West End. Likewise, other upscale housing developments like Neptune Pointe and Marina Cove, etc. will do the same. No wishful thinking on my part — it’s what developments do. Perhaps that’s why they call it “development”.

    Development: a gradual advancement or growth through a series of progressive changes.

    Happy Thanksgiving!

    Comment by Karen Bey — November 22, 2012 @ 7:41 am

    • The reason development does not ring as positively for me is because it so often means trampling on everything that went before.
      Happy Thanksgiving to one and all.

      Comment by Marie — November 22, 2012 @ 1:22 pm

  33. Regarding Comment 27

    I second John Knoxwhite’s observation that “It’s too bad the East Bay Regional Parks didn’t enlist the community to assist them in making the case that the GSA should provide them the land as a transfer. They didn’t.”

    There are some extenuating circumstances, here, however, that go to the heart of the question of what and when should closed door deliberations be made public. On several issues when EBRPD has approached citizens and citizens groups like the Audubon Society and the Sierra Club for support, the City has responded by complaining that EBRPD violated the confidential nature of the negotiations and acted in bad faith by consulting with citizens not directly involved in the negotiations. In the past, I’ve responded by limiting my outreach on these sensitive issues to comply with the City’s wishes. In the future, I will be less inclined to be discreet on such issues to comply with the City’s preference to operate behind close doors.

    I disagree with another statement of John’s: “Imagine the credible lawsuits that will be encouraged if the City decides to re-zone the land in favor of a specific interested party who has requested the zoning change, not because it will allow the uses they are interested in (the current one does), but because it will force the winning party in a legally held auction, to drop their claim on the land.”

    I disagree with John’s statement because I believe there are unique circumstances here that won’t set a precedent for other suits against the zoning change. These circumstances include the lack of control that the City has over the easements necessary to develop the property in accordance with the new zoning and the unique relationship between the City and the Park District. The City contracts with the Park District to manage the beach along Shoreline Drive, and as upkeep of that shoreline depends on the maintenance facilities adjacent to the property in question, the City may have a legal “good faith” business obligation, beyond its normal land use obligations, to keep its contractor, the Park District, appraised of potential developments that may adversely affect its maintenance operations. Residential housing adjacent to the maintenance yard certainly could adversely influence maintenance of the City’s beach around

    Such good faith business obligations are very real. In cases where those good faith business obligations are difficult to define, the courts do have a role.

    Comment by William Smith — November 23, 2012 @ 10:08 am

  34. Re Comments 25 and 27: A possible basis for EBRPD’s lawsuit

    A number of commenters have inquired as to the basis for EBRPD’s lawsuit. For me, one of the most intriguing questions I expect will come up is “What constitutes adequate public notice?”

    Many readers of this blog and of Action Alameda know that I agreed with the dozens of Alamedans who came to the last Council hearing in July on the housing element, and enabling zoning, that public notice for the selection of sites was inadequate. Whether or not the courts decide that the notice was adequate, the notice left many groups frustrated and led to a recall campaign for a Council member and a lawsuit between two of our most trusted government agencies that could have been avoided with more effective noticing.

    Part of the noticing problem may be the mechanics of noticing. From what I’ve been able to piece together, the City sent out postcards to owners of property within a few hundred feet of the sites for which multi-family overlays were applied. Evidently the State has no record of the receipt of any such postcard, nor does the East Bay Regional Parks District. Does the mailing of a postcard satisfy notice requirements, or does adequate notice require Certified Mail with Return Receipt Requested? Is posting a sign visible from a neighboring property adequate notice? In the future, e-mail with a signed return receipt requested would appear to a promising tool to cost effectively improve noticing.

    Comment by William Smith — November 24, 2012 @ 9:20 am

  35. Please. The recall against Rob Bonta had zero to do with the Housing Element and everything to do with attempting to tank his Assembly campaign. To claim that was the cause of the recall is disingenuous.

    In the end, the point is: the EBRPD decided that the land was worth only $1 million. A buyer decided it was worth more than that. The Feds took the highest offer. Nothing precludes EBRPD from buying the land from TLC and building their parking lot and assorted uses on the land that is zoned for housing. Nothing. Except the fact that EBRPD doesn’t want to pay $1.8 – 3 million for the plot. What the EBRPD is extorting the City of Alameda to do is to put the City of Alameda into a worse legal position by re-zoning land that would render it useless for the actual landowner.

    I’m sure for most people “adequate public notice” constitutes whatever the Brown Act requires. In Alameda, our Sunshine Law is even more strict than the Brown Act. If there is some other bright line then perhaps the State should codify “adequate public notice” instead of leaving it up to lawsuits to decide whenever someone has an ax to grind that they didn’t know that something was happening in their City.

    Comment by Lauren Do — November 24, 2012 @ 2:36 pm

  36. #34: the credible lawsuits i mention are not future zoning lawsuits, they are the ones from Tim Lewis and the State of California that could easily be filled and won based on the city reasoning the land at the behest of an entity that wants to force a land owner to sell their land. Essentially, EBRP is attempting to get the city to activate a legal maneuver that will have the same effect as eminent domain. And they are hoping that their bogus lawsuit will scare the city, or send a message to Tim Lewis Co. That this project will be too much of a pain in the neck, So that EBRP gets what they want.

    Comment by jkw — November 25, 2012 @ 8:14 am

  37. This would be a good opportunity to develop a conversation about the “several hundred feet” noticing requirement. This antiquated law has been inadequate to meet the needs of Alameda residents for decades. It’s time to broaden the noticing net. Many of our most heated arguments arise when, after a change has occurred, residents who are affected learn of it for the first time, and are angry because they were outside the notice net. Nothing destroys the allleged “small town charm” of Alameda like dividing it into smaller fractions. If something is worth noticing to an immediate neighborhood, it’s probably worth noticing to at least the entire Main Island-& maybe Bay Farm, if its close enough to the bridge.

    Comment by vigi — November 25, 2012 @ 2:13 pm

  38. Why does the land have to be rezoned if EBRP can build their parking lot on the site if they owned the property? JKW makes a good point that the city would be more vulnerable to an illegal takings challenge from Tim Lewis Co. See Half Moon Bay lawsuit,

    As for noticing, I would say that having featured articles in the Alameda Sun and the Alameda Journal on the housing element is more than “several hundred feet.” It is island wide.

    Comment by Alan — November 26, 2012 @ 1:53 pm

  39. big difference between noticing 30 or 40 people in a specified area, as opposed to 30,000 or 40,000 people in an entire city. , its called spending tax dollars.

    Comment by John P.(L)as in liberal — November 26, 2012 @ 6:39 pm

  40. I just finished reading EBRPD’s Petition for Writ of Mandate and not surprisingly, there’s a whole lot more to it than the Park District’s critics have claimed. It states that the city failed to follow the CEQA process when it passed the new Housing Element and asks the court for a writ of mandate commanding the city to “suspend” any activity related to the new Housing Element that could “result in an adverse change to the physical environment” until the city has brought the Housing Element into compliance with CEQA – in other words, it’s not just the Neptune Point site that’s at issue here, it’s the entire Housing Element. No wonder the city has been so vociferous in its attacks on the Park District, and no wonder the attacks have been so focused on trivializing the lawsuit.

    Here’s a few representative paragraphs:

    On pg. 9:

    33. Under the Housing Element Law (Gov’t Code Sec. 65580 et seq), when a public agency rezones sites in its Housing Element inventory to residential to accommodate its share of the regional housing need, those sites allow residential “use by right.” Once rezoned to residential uses, the local government’s review of owner occupied or multifamily residential use *may not* require further discretionary review that would constitute a project under CEQA unless a subdivision map is required. (Cite) For example, an apartment building proposed on a rezoned site would not require any discretionary review.

    34. Further, Ordinance No. 3054 [etc., the new Housing Element] approved amendments including the creation of a Multifamily Residential Combining Zone, and the amendments provided that multifamily, among other residential uses, “shall be permitted by right” without any further discretionary review. (Cite) As such, the the City has virtually no ability to prescribe/limit/condition/disapprove, or even require environmental review, let alone mitigate potential significant environmental impacts, on the type of development allowed on the rezoned sites.

    35. *Despite this clear directive that no further discretionary review could be required*, city staff and members of the Council *repeatedly told the public* during both the July 3 and July 17 hearings, that – despite the adoption of the Housing element update, amendments to the General Plan and zoning that created residential use by right – *all future projects would undergo further CEQA analysis* including mitigation of impacts as they came forward.


    In other words, the city claimed that further CEQA review would take place when individual sites were developed when in fact it won’t.

    Comment by dlm — November 26, 2012 @ 11:54 pm

  41. It gets better. Here’s another good quote, from pg. 12:

    f. *The city presented a false justification for the lack of CEQA review.* The City staff report warned that failure to adopt the Project might subject the City to lawsuits like those brought against the City of Pleasanton over its Housing Element. However, in rezoning sites to residential use in connection with its Housing Element, *Pleasanton prepared an EIR containing over 500 pages of site specific analysis*, where the City – in its rush to adopt a Housing Element – *only prepared a six page addendum with no substantive site specific review*. The City provided no justification for failing to fully comply with one portion of State law (CEQA) while attempting to adopt a legally sufficient Housing Element.

    g. The NOD [Notice of Determination] identifies the presence of significant, unavoidable impacts but the addendum failed to identify or adequately discuss potentially feasible mitigation measures relative to the Project’s significant individual and cumulative impacts.


    In other words, the city is required to carry out a full environmental review on the impacts of the proposed, multi-unit developments BEFORE it approves the new Housing Element.

    For anyone who wants to read the Petition – first, copy the case no: RG12655685
    Go to the Alameda County site:
    Paste the case no. into the box and Submit.
    In the list on the left, click on “Register of Actions”
    In the list of documents, see Petition for Writ of Mandate, and click on either the Java or TIFF format to the right.
    Pages have to be opened one at a time

    Comment by dlm — November 26, 2012 @ 11:55 pm

  42. Then that is a question of law for the court to decide: is the Negative Declaration (the “six page addendum”) that the City performed sufficient or was an entire EIR required. The EBRPD claims that a full EIR is required, the City disagrees and I guess the courts will decide. In the end, this whole business will cost both parties more money than the value of the land in dispute.

    Comment by Lauren Do — November 27, 2012 @ 6:41 am

  43. Regardless of what transpired before or after the GSA auction, the development of the city’s new Housing Element and multifamily housing overlay, and regardless of the suit being brought by EBRPD, John Russo’s commentary in last Friday’s Alameda SUN ( was more than unfortunate.

    His language was inflammatory at a time when the City of Alameda should be seeking to reduce the current tensions between itself and EBRPD. The City should continue to seek out mediation with its long-time partner and ally–despite initial and repeated rejections from EBRPD. To publicly inflame the atmosphere was irresponsible for any Alameda public official, regardless of any perceived wrong inflicted by a friendly agency.

    It is sad, indeed, that our very smart but prone-to-anger City Manager chose to be angry, adversarial, and antagonistic in public. Now that his
    words are part of the public record they cannot be retracted and they can only add fuel to a fire that is escalating out of control.

    I wish he had held back–at least in his public rhetoric–in order to leave the door more permanently open for reconciliation and mediation. Just because a long-time friend a lashes out in anger and frustration over real or perceived wrongs is no reason to strike back “an eye for an eye…”

    (I would have counseled against using such angry–and irretrievable–language from both an editorial and public policy grounds.)

    The only way reconciliation and mediation can occur is if both parties stop escalating. Let the City of Alameda be the first–and the last–to make peace with the East Bay Regional Park District by both word and example, waiting patiently for the opportunity to heal the breach while ex-ploring more constructive opportunities to resolve the current multi-party conflict.. I hope and pray that it is not too late to sheath our swords despite last Friday’s unnecessarily harsh and angry words.

    Comment by Jon Spangler — November 27, 2012 @ 9:53 am

  44. Jon, I think you are indulging in a bit of idle finger wagging and being a little overly dramatic. I definitely catch the ire in Russo’s tone, but I would characterize that as simply being fed up. I disagree that this is up to the City to be first and last to make peace etc.. Regardless of the best use for the land, it’s up to EBRPD to get real.

    Comment by M.I. — November 27, 2012 @ 10:20 am

  45. 45: Mark–As a person of faith I see this in spiritual terms. Call that dramatic if you will, but that’s who I am. Biblical imagery and peacemaking–both of which go back to before my Vietnam War-era political activities–play a big part in how I see things.

    In a relationship sometimes you have to stand by and hold your fire until a friend (or a spouse) comes around, which is what EBRPD also needs to do, as you and many others have pointed out.

    Unfortunately, our very capable City Manage has a strong temper, and it seems to have emerged last Friday in a very unproductive way.

    Inflaming the conflict as Russo’s defensive/angry words did was not the way to reduce tensions and find a constructive resolution to this very complicated mess. The City of Alameda and EBRPD should be cooperating to find just and constructive solutions to this mess, not fighting each other. And I apply this principle equally to both agencies. I just believe that our CM should have known better than to let his anger get the best of him and get in the way of solving the problem.

    Comment by Jon Spangler — November 27, 2012 @ 10:47 am

  46. Well…I’m agreeing with Jon. As I’ve wanted to say, I don’t see the point in such hostility towards a parks district. It’s a bit like threatening to fire Big Bird. Most people have a very positive opinion of park services, why wouldn’t they? With developers, though, it’s another story.

    Comment by dlm — November 27, 2012 @ 7:39 pm

  47. Mr. Russo is an attorney. Anybody ever heard of strategy in re: litigation? The public nature of his indignation strikes me as strategic in nature. Maybe not, but that is what I thought it might be.

    Comment by Kate Quick,. — November 27, 2012 @ 8:18 pm

  48. Right Kate. The guy is also from New York which is not some excuse for being a hot head which I don’t think he is, it’s more about getting to the freaking point already.. For me it’s like he is beyond the diplomatic stuff because….it’s been done and EBRPD has decided to sue. How come they don’t get a lecture from Jon on hand holding and talking nice to their “spouse” the City? Russo may be happy to see houses go in to meet some mandate, but the City hasn’t made that choice, EBRPD has by dropping the ball.

    Comment by M.I. — November 27, 2012 @ 8:32 pm

  49. This is strictly a play for public opinion, it has nothing to do with litigation. “We don’t like their attitude” is not a litigation strategy. In terms of PR, it comes off as defensive and shallow. As I said above, I don’t see the point. What’s going to happen, is the public going to rise up and say, we don’t like those nasty park people suing us? Make them give that land to that poor developer!

    Comment by dlm — November 27, 2012 @ 11:35 pm

  50. It’s about our city leaders protecting Alameda from bullying and extortion.

    Comment by Alan — November 28, 2012 @ 10:02 am

  51. 48-51: I am upset with the EBRPD’s apparent inattention and/or inaction over the past several years regarding this property and the long-gestating Housing Element and also upset at them for filing what appears to be a misdirected lawsuit. The district’s apparent lack of participation in any of the many public processes over our new Housing Element since 2008 is appalling.

    I disagree with the Sierra Club’s decision to side with EBRPD, too, since they might have played a significant mediating role in de-escalating this sad
    conflict. John Russo is my CM and I have contacted his office just as I have contacted EBRPD officials.

    There is plenty of blame to go around on all sides (GSA, developer, City, EBRPD). I am equally upset at all of the parties.

    The question remains, what are the responsible, civil, and constructive public policy steps we can take now? I do not think that being bullies
    ourselves –even strategically–makes for good public policy.

    Comment by Jon Spangler — November 30, 2012 @ 8:27 am

  52. The Judge in the EBRP lawsuit has issued a tentative ruling tossing out the lawsuit (with leave to amend). A huge victory for the city, given that EBRP already threw the kitchen sink at them in their lawsuit.

    Comment by jkw — March 1, 2013 @ 10:04 am

  53. Point of clarification (aka correction): EBRP found a person *angela fawcett) involved in the housing element discussion to file the lawsuit concurrently with (because EBRP had not engaged in the process of the housing element, waiting until after it was over to raise objections, which will make their case very difficult). On Thursday, the court found that Ms. Fawcett could not bring a lawsuit because the statute of limitations had passed. This still leaves EBRP’s part of the lawsuit ongoing (it wasn’t a part of the request for dismissal), but greatly hampers their ability to pursue it.

    Sadly, I’m sure more public funds will be thrown at this endeavor by the parks district.

    Comment by jkw — March 1, 2013 @ 11:01 am

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