Blogging Bayport Alameda

December 6, 2013

That’s what Friends are for

Filed under: Alameda, City Council, Development, Election — Lauren Do @ 6:06 am

I found this comment amusing in my post about Berkeley’s attempt to rezone a post office so that it wouldn’t be developed into something else.

Yes, it’s a sad day for America when citizens start messing with other people’s land values. Things really went off the rail in Alameda when the anti-property rights duo of Jean and Jim Sweeney placed a measure on the ballot to rezone the Beltline Rail Yard. They ended up screwing the railroad company out of nearly $18 million that the railroad was poised to receive from the housing developer who was going to build much-needed regional housing on this blighted part of our city.

I mean, put like that it would seem as though the rezoning for the Beltline was some slam dunk people holding hands across Alameda in perfect harmony moment.

The follow-up comment also made it seem as though the companion measure was done “just in case” as opposed to being pushed by City leaders as an alternative to the rezoning Measure.   One need only look at the ballot arguments to see what the sentiment was:

We, too, support more open space. But not at the expense of closing neighborhood parks and eliminating public safety programs!
That’s what will happen because of an unintended oversight. This initiative doesn’t provide funding. Remember: the initiative rezones private property to open space. This devalues the property and its owner is entitled to be justly compensated. The U.S. Constitution guarantees it. Without providing funds to purchase this railroad property, there is no option except to drastically slash public services.

Don’t be confused. Voting to rezone the Beltline property is only half the issue. Unless you want current services dollars to be used to buy this property, you need to establish a separate funding source. Correct this oversight. Give yourself the chance by voting for Measure D which allows citizens an opportunity to fund the purchase of the property, with dollars designated specifically for that purpose and not from current services.
Don’t vote for cutting services! Don’t take an action which will reduce the quality of life in Alameda. See through this serious omission and vote, instead, for a viable option. Vote responsibly. Vote “NO,” on Measure E.

That was signed by:

s/GAIL A. WETZORK, Former Chair, Recreation Commission
s/KEVIN R. KEARNEY, City Auditor
s/KEVIN KENNEDY, City Treasurer
s/MOIRA FOSSUM, Past President, Chamber of Commerce
s/WALTER R. JACOBS, President, Community of Harbor Bay Isle Homeowners Assn.

And the Rebuttal to the arguments for Measure E:

Don’t be misled. Measure E does not create a park. It takes 22 acres of private property and rezones it open space. That’s all. Measure E does not guarantee public access to the property.
Critically missing is a way to compensate the property owners for the lost value caused by the rezoning. Supporters hope it will come from state bonds or private foundations. In either case, there is little chance of success.

Rather than leave it to chance, Measure D seeks a ruling on whether the rezoning constitutes a “taking.” Precedent tells us the City will be required to compensate the owner. In that case, the City would put a subsequent measure on the ballot asking voters to okay a funding source.
Measure E rezones private property but does not guarantee its access to the public. It provides no mechanism to pay the owners for damage to their property rights. Measure D corrects that by committing to let voters decide how they want to pay for the property, after the Court order. Vote responsibly. Vote “YES” on Measure D and “NO” on Measure E.

And that was signed by:

s/LEE S. HARRIS, Former Planning Board President
s/KIRK ELLIOTT, Chair-Alameda Recreation & Parks Commission
s/KENT ROSENBLUM, President Rosenblum Cellars
s/NICKLOUS CABRAL

Then to support Measure D, this was part of the arguments:

Measure E only amends the General Plan and rezones the Beltline Railroad property to open space. That would render the property virtually worthless to its current owner. But, you can’t just take someone’s property without paying just compensation. That’s why we are offering Measure D.
Measure D will put the question to the Court: Does this rezoning require the City to pay the railroad for that land? If the Court agrees, the City will then ask voters to authorize a funding mechanism to buy the property.
The Court will surely rule that the City must pay for taking the railroad’s property. Our independent appraiser estimates this property has a $20-$25 million value. That’s how much the City will have to pay. But where will this money come from? Since there are no funds set aside for this purpose, our only other option would be to reduce City services by that amount. You don’t want that. We don’t want that. Our police, fire, library and other services are too important to our quality of life to be slashed in order to pay for the unimproved Beltline property.
So we urge you to vote “Yes,” on Measure D and “No,” on Measure E.

That was signed by:

s/RALPH J. APPEZZATO, Mayor
s/TONY DAYSOG, Councilmember
s/AL DeWITT, Vice Mayor
s/BEVERLY J. JOHNSON, Councilmember
s/JAMES M. FLINT, City Manager NO ARGUMENT AGAINST MEASURE D WAS SUBMITTED.

So if the Friends decide that they will move forward, unless there has been some court ruling on this topic since then, it appears the City will be in the same position that it was before when Measure E was slated for the ballot.  Put in a position where a legislative act “render[s] the property virtually worthless to its current owner.”   I don’t know if the City intends to pull the same maneuver as they did the last time around, but there’s not a ton different from this current situation with Neptune Pointe and the Beltline.

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24 Comments

  1. ” I don’t know if the City intends to pull the same maneuver as they did the last time around, but there’s not a ton different from this current situation with Neptune Pointe and the Beltline.”

    Well there is a ton of difference. There was an pre-existing agreement between the Alameda Belt and the City of Alameda that was upheld in Court. These agreements were very common for Railroads to make but what stood out here is that upon abandonment this case was successfully pursued. In many other similar situations where similar agreements existed they were ignored and the properties sold at Market Value.

    It is not ‘the Friends’ who are keeping the GSA from obtaining more money for Neptune Point it is the EASEMENT a fact that you continuously ignore. As far as I am concerned Tim Lewis can give the GSA $100 Million but he won’t because he can’t do anything with the Property without the Easement. He could have closed Escrow right after he submitted the winning bid but he chose not to.

    So now we have Kamala Harris and the State of CA vs the GSA.

    One question that I have never seen answered was Andrew Thomas and the City Council unaware of the Easement Restrictions on McKay Avenue when the property was first added to Housing Element and then subsequently rezoned Residential. I am just curious because I can only see two scenarios that they either didn’t know or didn’t care. Some where along the line the easement situation would end up in Court either pursued by Tim Lewis or the GSA.

    I feel at some point the GSA (and Tim Lewis) will realize that they are fighting a losing battle. Tim Lewis has purchased another of the Properties along Buena Vista Avenue.

    The idea of the Federal Government suing for Eminent Domain brings up nightmarish scenarios. You look at the flip side of this where the Fed is shutting down Drakes Bay Oyster Co. and the ensuing Organizations who are supporting Drakes Bay (Koch Brothers, the Pacific Legal Foundation and Cause of Action)

    http://www.huffingtonpost.com/helen-grieco/drakes-bay-oyster-company_b_3387269.html

    Given the fact that at some point in the future we will once again have a Country run by Conservatives and perhaps ultra-Conservatives we should choose our battles carefully as there are a lot of people with lots of money whose dream it is to harvest ‘public land’.

    Comment by frank — December 6, 2013 @ 7:18 am

  2. I think everybody loses in the long run: The EBRPD vs the City; the State vs Federal Government, and the taxpayer out millions of dollars over 3 acres of land.

    In the long run, they all need to work together. It’s too bad the EBRPD chose this avenue and has wasted a lot of time and tax payer money when they could have worked with the developer to come up with a win win for everyone.

    Comment by Karen Bey — December 6, 2013 @ 7:37 am

  3. And one final point — the GSA is not wrong for trying to get the highest price for their property. It is in their interest to pursue the highest price for their land, just as it is in your interest as a homeowner to get the highest price for your home when you decide to sell.

    There is no wrong or right here – everyone is looking out for their interests. Where everyone went wrong was trying to make someone “wrong” instead of working on crafting a solution where everyone can win.

    Comment by Karen Bey — December 6, 2013 @ 7:48 am

  4. Karen if I offered you $10 million for your house and NEVER paid you would your house be worth $10 Million? There is NOTHING stopping Tim Lewis from completing this transaction. He can pay the GSA for the Parcel.
    The GSA must now fight the State of CA in an Eminent Domain Suit. This will cost $$$. In the slight chance that the win the will have condemned McKay Ave as ‘blight’ and spend several millions on improving it.
    Nobody seemed upset when the Government gave us the land at Alameda Point. Using this logic they should have extracted millions and millions or just sold it all off to Private Developers.

    Comment by frank — December 6, 2013 @ 8:06 am

  5. I also want to be clear about what the “interests” are:

    The GSA wants the highest price for their property
    The East Bay Regional Parks wants the property at the lowest price
    The developer has money and a desire to invest in a beachfront development

    The solution is pretty clear for those looking to solve this problem.

    My disappointment with the EBRPD is that this mud fight has cost the tax payers a lot of money over 3 acres of land. They too have a responsibility to choose their battles wisely

    Comment by Karen Bey — December 6, 2013 @ 8:16 am

  6. Frank, if you offered me $10m dollars for my house and were willing to put the funds in an escrow account pending the resolution of an easement — that would give me a huge incentive to get the easement.

    Comment by Karen Bey — December 6, 2013 @ 8:22 am

  7. Lauren, you are reminding me why I mentioned companion measure D to Richard yesterday. I couldn’t remember details of E or D either, but I seemed to recall passing just E was deemed a liability by people who came up with D. But voters would have passed it anyway, which speaks to my other point yesterday about voters going with emotion and not being careful to understand details. There are “Friends” signs popping up around my neighborhood but if I ask people if they can explain the issue, the answer I get is that letting a developer take the land sucks and we should expand parks. I agree, but it’s obviously more complicated than that or this discussion would be moot. And I have to say to Karen that I think there is no win/win scenario with Tim Lewis because his preliminary plan sucks and it doesn’t seem that outfit really gives a rats ass about anything but their bottom line. They should just go away, but frank in 1. says they have already invested in adjacent property. I’m in favor of EBRP getting this land, but rather than law suit against the wrong entity after the fact it’s too bad that they didn’t make a huge amount of noise very early on, like around when Lauren first posted on this blog that there was going to be an auction.

    Comment by MI — December 6, 2013 @ 9:21 am

  8. MI — there is always a win win solution for those willing to work on one.

    Comment by Karen Bey — December 6, 2013 @ 9:48 am

  9. Ho! Ho! Ho! there’s always a win-win for Karen “Hard-on for Housing” Bey as long as it includes more housing. But nobody else wants it there except for Lauren Do ho! ho! ho!

    Comment by SUPERWINNER — December 6, 2013 @ 9:55 am

  10. 8. Karen, can you please describe a possible win-win-win solution that includes a win for the public at large (EBRPD) if Tim Lewis succeeds in its purchase and proceeds with the development? Or do you mean that it would be a win-win for GSA and the developer? Also, you say in 5. that “the GSA wants the highest price for their property” but the GSA is a public entity. Its own policies and procedures for disposing of land are to give preference to other public entities that are interested (not necessarily for free), and the EBRPD is/was willing to pay. If the federal government began a new policy of selling off land to the highest bidder, regardless of public interest, would that be OK? This may be just “3 acres of land” in your eyes, but many of us see that the current situation threatens to set a dangerous precedent.

    Comment by Sarah — December 6, 2013 @ 10:12 am

  11. Mark
    In retrospect both Measure D and E were unnecessary. Also the rezoning of the Property to open space. Really what it came down to was if the Agreement made between the City of Alameda and the Alameda Belt Line in 1925 still valid. The Court found that it was. I remember speaking to Jean Sweeney a few times about this as I worked for SP and had seen these situations come up before. Some had favorable resolutions for the communities involved and others not.

    There are a lot of Citizens in Alameda who are cognizant of ALL the issues surrounding the Neptune Parcel. It is much more complex than ‘letting a developer takes this land sucks’. I think that this Blog tends to be dismissive of the supporters just as it was for Measure D in 2012.

    Comment by frank — December 6, 2013 @ 10:20 am

  12. Sarah, I respect and share your views. Only the two parties who both have an interest in the property can define what will be work for them. Public/private partnerships are formed all the time. It’s actually becoming more common place.

    Comment by Karen Bey — December 6, 2013 @ 10:30 am

  13. “the GSA is not wrong for trying to get the highest price for their property”. is not necessarily a true statement. GSA is not a private entity; it is an agency of the Federal Govt & as such is accountable to the taxpayers. It has also been shown in an audit by the OIG, to be ridden with numerous examples of fraud & waste. GSA just might spend the profit from selling “its” land on hotels & travel for another extravagant “training” convention for its DC personnel.
    And to call Neptune Point “their property” is rather artificial. The land originally belonged to the City of Alameda, as part of Neptune Beach. During the exigency of WW2, it was taken over for military maritime purposes which no longer exist. GSA is merely the Administrator, not the owner, of this parcel, and should remember what its true function is.

    Comment by vigi — December 6, 2013 @ 11:17 am

  14. “One need only look at the ballot arguments to see what the sentiment was:” Don’t be so naïve! Ballot arguments usually reflect the agenda of the Big Money that put them there [like Munger & the California initiatives, et al…] The Signers are usually recruited to lend credibility, and years later, often regret putting their names down. [Certainly that is true for the Hospital Parcel Tax]. I had no idea you were so sympathetic to the rights of corporations to be people, Lauren. That poor railroad! Finding itself with land it can no longer use for the business it is in! Oh, it must be “justly compensated”…for land it probably acquired unfairly in the first place by illegally squatting on AM Peralta’s land grant, fencing it off with armed guards..

    Comment by vigi — December 6, 2013 @ 11:33 am

  15. 11 frank, you are criticizing this blog for being dismissive of Measure D, which I can’t recall as accurate or not, but you just said yourself that it was unnecessary. I’m certainly not critical of the objectives of Friends of Neptune Beach but I think there is maybe some revisionism about what voters voted for, that simple. And if you polled everybody in Alameda who voted yes on WW, I doubt very much that you would find more than a handful who are cognizant of ALL the issues surrounding the parcel, and that includes supporters with signs in their yards, some who friends of mine.

    Comment by MI — December 6, 2013 @ 2:59 pm

  16. I was referring to 2012 Measure D
    http://ballotpedia.org/City_of_Alameda_Sale_or_Disposal_of_City_Parks,_Measure_D_(November_2012)

    If I recall EBRP tried unsuccessfully to pass a Parks Measure including ALL of Alameda and Contra Costa Counties several times. Measure WW was a ‘special district’ drawn along specific lines made up of areas where support for a parks Measure was high based on how people voted. I will be the first to say that the purchase of the Neptune parcel was not promised but it was ‘dangled’ out there. Interesting is that projects such as the Boys Club which received the majority of Alameda’s Measure WW last allotment were excluded.

    At some point it becomes a question of the integrity of the ballot Process. We hear the term ‘bait and switch’ often in Alameda political Measures. Personally before I vote on something I read and research all I can. But what is the point if after doing due diligence
    someone comes along and says we just want to do something difference. It creates a cynical electorate which certainly surfaced during Mr. Russo’s Tax measure.

    Comment by frank — December 6, 2013 @ 4:41 pm

  17. Lauren: You’re forgetting that the GSA and Tim Lewis entered into this deal, via auction, *before* the property was zoned residential, and when they did so, they were speculating. The GSA took a risk that the property would become residential — if that risk doesn’t pan out, then that’s their problem.

    The GSA and Tim Lewis both knew as well that the property did not have the proper easements — the preliminary title report said as much. Nevertheless, they chose to take a chance on that as well, believing who knows what, that somehow or other, this would all work out, the state would agree to accommodate them? Your guess is as good as mine. They didn’t even give notice to the state of the planned auction, so presumably they never made any inquiries about the access either.

    I have to agree completely with Sarah, above — we don’t want the federal government selling off land to the highest bidder. The notion that we accept that state of affairs and start ponying up more money to buy our own public land is silly. The GSA is supposed to represent the public interest, and they’re supposed to make this land available for a public conveyance, at its *existing* value, not in competition with a real estate speculator.

    Given the location of this land, adjacent to a state beach and the Park District’s nature center, it’s hard to imagine how the federal government measly profit should outweigh the enormous recreational benefits to local and regional users, year in and year out. It’s absurd to suggest that.

    Comment by Darcy Morrison — December 6, 2013 @ 9:31 pm

  18. Here’s a wonderfully well written (not by me) fact sheet from the Friends of Crown Beach site:

    http://friendsofcrownbeach.com/facts-at-a-glance/

    Comment by Darcy Morrison — December 6, 2013 @ 9:51 pm

  19. 16. I was referring to where you said above “In retrospect (BOTH) Measure D and E were unnecessary.” You then seemed to complain that this blog was unsupportive, a little contradictory.

    You are the first among “friends” here who has been completely honest in admitting “the purchase of the Neptune parcel was not promised but it was ‘dangled’ out there”. I’ve now read the ballot language, which in fact makes no promise, but says purchase “appropriate” property “if available”..

    Boys and Girls are not run by EBRP but they were not “excluded” by specific language on the ballot either. I’m not sure that expenditure was a great precedent but in terms of the spirit of what parks and rec entities do for communities and B&G track record here, I’m not opposed to the money going to Boys and Girls Club, though like I just said maybe the legal precedent is dubious.

    As for Russo’s proposed sales tax that is an erroneous comparison in terms of bait and switch because it was proposed for a specific list of stuff and it was voted down. I know people think that spending those tax dollars on fire department infrastructure would be a de facto subsidy of other fire department costs like pensions, but that is all pretty obvious unless a person is blind or stupid. Voters chose and said no.

    I was not aware that WW passage with achieved with gerrymandered electorate. I did think it was voted on by all those in the EBRP district which would go well beyond Alameda. You think all those off island voters had any idea what McKay property were when they voted ? I’m surprised that many people who are so concerned with fairness didn’t object to the terms of the original WW ballot if it was for specially defined district. I’m sure anti-tax activists must have, as they will use any excuse to oppose taxes. I guess only the voters within the sub-district defined by the ballot are being taxed or are benefitting? Seems unususal, but if voter registrar’s office vetted it it must be kosher.

    Comment by MI — December 7, 2013 @ 10:18 am

  20. Mark I want to clarify.
    There are two Measure D’s. The first was in 2003 and dealt with the Belt Line Parcel. The second was in 2012 and was about disposal of City Parks.
    My Post #11 says

    “. I think that this Blog tends to be dismissive of the supporters just as it was for Measure D in 2012.”

    I was referring to those who were out collecting signatures to put the 2012 Measure D on the Ballot NOT the 2003 Measure D which I said in retrospect was unnecessary.

    I did not say the Russo’s Tax Measure was ‘bait and switch’ although it certainly was bait. I am saying that we have enough problem passing ANY Measure in Alameda. This is complicated by the fact that after something is passed the local officials come in with there own interpretations and the Voter ends up scratching his head. Each time this happens you lose a certain % of votes. These are not necessarily anti-tax advocates but normal people who have just come to distrust the process.

    If you do your research you will find that as Measure WW was voted on the B&G Club DID NOT qualify for WW Funds. The representative from EBRP stated that pretty clearly at the CC Meeting where nevertheless the CC voted 3-2 to designate the B&G Club.

    http://www.alamedasun.com/index.php?option=com_content&id=5750&Itemid=10

    http://www.action-alameda-news.com/2009/09/19/east-bay-regional-park-district-says-boys-and-girls-club-is-technically-not-eligible-for-alamedas-measure-ww-funds/

    So I attended that CC Meeting. In Nov 2009 B&G did not qualify but in the end they got the money. What changed. Usually you can find most anything if you search the Internet for it. But not this and I have looked for the answer and asked for the answer since 2010.

    Finally over the weekend I went to EBRP website and search Measure WW. I found that in March 2010 they made a ‘clarification’ that strangely seemed to fit the criteria that would make the B&G Club eligible for WW Funds. So what was ‘technically ineligible’ in Nov 2009 was eligible in 2010.

    http://www.ebparks.org/Assets/files/Meetings/2010+-+Meetings/ebrpd_Clarifications_WW_Guidelines_03-24-2010.pdf

    The curious thing is that this went unnoticed by any media .

    I do not consider myself an ‘official Friend’ although I support their attempts to save Neptune for the EBRP. I have always stated that the CC should have never rezoned this Parcel until the easement issue was resolved. Also this was done by a ‘lame duck’ CC and you would think that an issue like this could have waited for the newly elected CC. MY feeling is that it doesn’t matter how it is zoned at this point the Courts will eventually decide if the Fed presses ahead with Eminent Domain. I feel that they realize that this option will lose and they will try a backdoor approach of some kind.

    As far as I am concerned Tim Lewis can pay the GSA the $4 Million and hire his own lawyers to try and obtain an easement.

    It is inaccurate to put a $$ value to this Parcel as there is no residential value if you can’t build on it.

    Comment by frank — December 10, 2013 @ 5:46 am

  21. It is inaccurate to put a $$ value to this Parcel as there is no residential value if you can’t build on it.

    This conclusion is interesting because I can’t remember if you ever weighed in on the Mif swap appraisals but that argument was pretty much Ron Cowan’s argument as to the value of the Mif land because it was zoned open space (or recreation, whatever). The value was much much lower than the value of the Mif if it were the “highest and best use” aka residential aka what would be worth the most money. Ron Cowan argued that the value should be pegged at the current zoning and folks opposed to the Mif swap said it should be pegged at the higher, residential value. It’s interesting when the roles are reversed people are saying that the value of Neptune Pointe should be viewed at its cheapest — open space — which isn’t even the zoning it was at when it was sold which was industrial with a government overlay which was still more expensive than the open space value.

    Even IF the land had not been rezoned as part of the Housing Element, the fact is the land was valued by the seller at whatever Tim Lewis Communities agreed to pay for it and the current zoning at that time was industrial (or maybe it was commercial?) with a government overlay. Still loads cheaper than if it was residential, but apparently a lot more than EBRPD is willing to pay for.

    Comment by Lauren Do — December 10, 2013 @ 7:20 am

  22. If and WHEN Tim Lewis pays the $4 Million that will establish the value. As it stands w/o the easement it can never be residential and thus the value has not yet been established. You continually ignore the fact that EBRP was constrained by law as to it’s maximum bid. They have just put $5 Million into restoring the beachfront. I think that $3.8 Million was from there own coffers. Maybe you should suggest to Tim Lewis that he pay the $4 Million and close the Escrow then we can stop debating the value of the Property. Until he does the value has not been established.

    Comment by frank — December 10, 2013 @ 7:41 am

  23. The value of the property is what someone is willing to buy the land. What is stopping TLC from fully executing the deal are third party forced outside their control (aka EBRPD lawsuit). So let’s be real here, the calls for TLC to cowboy up and just purchase it all right all ready is pretty bullshit because no one in their right mind would pull the trigger on a real estate deal with litigation hanging over the deal that could cause a major hiccup.

    The fact that people keep insisting that EBRPD is constrained by law as to its maximum bid is a non starter. Anyone who buys property is constrained to a maximum number. Either the seller decides that they’ll take it or they will wait for someone who can afford what they feel the property is worth. What you don’t do is file a lawsuit to stop the other buyer from paying what they feel the land is worth and then ask your friends to help change the rules of the game to force the value to be lower.

    Even if the land is successfully zoned to open space, it doesn’t mean the GSA has to sell, they could be petty little bitches and sit on the property leaving it to rot which would be the most harmful to Alameda. Not EBRPD, not TLC, and not the GSA.

    Comment by Lauren Do — December 10, 2013 @ 8:07 am

  24. Tim Lewis bid $1.8 M for the property in June/July 2011

    EBRP filed suit in Nov 2012

    There was adequate time for him to close Escrow long before the suit was filed.

    In every Real Estate contract I have ever seen there is a clause “Time is of the essence”.

    Comment by frank — December 10, 2013 @ 8:37 am


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