Page One

Albany City Lawyer Has Ties to Developer By RICHARD BRENNEMAN

Tuesday February 28, 2006

One of the attorneys the Albany City Council hired to handle talks with a controversial Southern California developer over a project at Golden Gate Fields may have represented the developer on a similar project. 

According to a document filed with the state Court of Appeal, Michael H. Zischke, a partner with Morrison & Foerster, a powerful and well-connected law firm based in San Francisco, represented Los Angeles developer Rick Caruso in a legal battle over a contested mall development in Southern California. 

But Albany City Attorney Robert J. Zweben says there’s no conflict, and that the Zischke’s involvement in that case may be a big plus for the city. 

Two environmentalists disagree. 

“On the face of it, this appears to be a conflict of interest,” said Norman La Force, an attorney and Sierra Club activist. 

“What’s going on here?” asked former Albany Mayor Robert Cheasty, one of the founders of Citizens for the Eastshore Park (CESP), which, with the Sierra Club and other environmental groups, opposes Caruso’s plans. 

“Why are we having Caruso’s former attorney represent us?” asked Cheasty. “And why wasn’t his representation of Caruso discussed?” 

Zischke was an attorney of record for Caruso Affiliated Holdings, the developer’s firm, as of Nov. 17, 2005, when the California Court of Appeals Second District issued an unpublished decision upholding Caruso and the city against the owners of the Glendale Galleria.  

Co-chair of his law firm’s Land Use and Environmental Law Group, Zischke was hired to help the city prepare an Environmental Impact Review of Caruso’s plans for the Albany waterfront. 

Caruso, aided by his employee and former Los Angeles Deputy Mayor Matt Middlebrook, has been lobbying heavily to gain public support for his proposal, which would place an upscale, open air mall on the Golden Gates Fields parking lot adjacent to the base of the Albany Bulb to north of the race track. 

Zweben said that Zischke had been hired by the city of Glendale and its development agency to handle the environmental review process for the Caruso project. 

When the owners of the Glendale Galleria sued to challenge the approval of the EIR on that project as well as the development itself, the city and redevelopment agency joined with Caruso in a joint defense. 

“For the purposes of the litigation, they were conducting a joint defense, so technically you could say he was representing all the defendants,” including Caruso, said Zweben. “I do not see that there is any conflict of interest” with his relationship to the City of Albany. 

Cheasty said that city officials and the City Council should have been more open about the previous relationship between Caruso and the attorney before the city retained him to work on the Caruso project. 

“The subject was raised by speakers” at a recent council meeting, said Cheasty. ”He (Zischke) didn’t say anything. The city attorney didn’t said anything. It would have been appropriate to have discussed the issue.” 

Regardless of whether or not there is an actual conflict of interest, La Force said, “this is such a controversial project that the city shouldn’t have this issue hanging over its head.” 

Caruso’s plans call for a mall that would feature housing built over retail spaces.  

The developer’s projects in Southern California have become major draws, and the Grove in Los Angeles even outdraws the famous Farmer’s Market, located immediately next door. 


Initiatives ahead? 

Zweben said he had heard that the project has inspired two rival groups to prepare initiatives to take to the voters on the future of the waterfront. 

Under Measure C, passed by voters in 1990, developments on the Albany waterfront must be presented to voters for approval. 

Zweben said he has heard that two competing initiatives are in the works, one by development foes including CESP, the Sierra Club and Citizens for the Albany Shoreline, and a competing measure by the Albany Waterfront Coalition, a group that looks more favorably on the project. 

Zweben said that the developer is at least a two years away from taking the project to the voters himself. 

An environmental impact report would take about a year and a half and possibly longer, he said.