Mall Foes Face Legal Battle with Initiative

By Richard Brenneman
Friday July 21, 2006

While foes of the upscale mall planned for the Albany shoreline have apparently won one battle before the City Council, there’s another struggle in the courts. 

Backers and foes of a proposed November ballot initiative that would halt shoreline development pending the outcome of a new planning process laid out the battle lines in an Oakland courtroom Wednesday morning. 

That measure would ban new development within 600 feet of the shoreline and create a new task force to plan the waterfront’s future.  

The question before Alameda County Superior Court Judge Winifred Y. Smith is whether technical errors made by backers before circulating their petitions are enough to pull their initiative off the ballot. 

Whatever the judge decides, the county registrar of voters wants an answer by Aug. 14, deadline day for laying out the ballot and accompanying mailings. 

Pacific Racing Association, the operators of Golden Gate Fields, filed suit against Albany City Clerk Jacqueline Buchholz to stop a vote on the initiative, contending that backers filed to meet the basic legal requirements of posting and publishing public notice before they began their signature drive. 

The environmentalists who sponsored the measure say they followed the law’s spirit, if not the letter. 

Initiative backers collected signatures from that 3,200 registered voters, more than a fourth of the city’s electorate, on a petition for the Albany Shoreline Protection Initiative. 

Before they can circulate petitions, the California Elections Code requires initiative sponsors to publish notice of the drive in a paper published in the same county and certified by county courts as suitable for the purpose—hence the term “adjudicated publication.” 

The statutes also call for posting the same notice in three public places. 

Initiative backers didn’t comply with the posting requirement, but contend that significant coverage of the drive in local media fulfilled the intent of the law—a point strongly disputed by the track, which contends that news stories are significantly different from the specific form and content of the neutral notices required by law. 

And while initiative backers did publish a notice in the West County Times—the same paper the city uses to publish its own legal notices—therein lies another rub. 

The West CountyTimes is part of the the Walnut Creek-based Contra Costa Times. Albany, however, is an Alameda County city. 

City Attorney Robert Zweben said the city is allowed to avoid that provision of the code because it is a charter city, and a provision of the charter specifically allows for just that. 

He said the city also posts the notice in three public places including the library and city hall. What works for the city doesn’t necessarily apply to citizens, said the lawyer. 

Two Albany mayors were one hand for the hearing—current incumbent Allan Maris, a strong proponent of the mall, and environmentalist former mayor Robert Cheasty, an initiative advocate. 

“It gets down to compliance,” said the judge, and the question of whether initiative supporters fulfilled the intent of the law. 

Stuart Flashman, attorney for the environmentalists, argued that under the letter of the law, initiative backers could have printed their announcement in the Tri-Valley Herald or the Alameda Journal, adjudicated papers in the county—but ones without a readership in Albany. 

“The proponents are required to publish and post in the manner the legislature determined they should occur,” said Marguerite Leoni, a lawyer for the track. 

Proponents conceded that the notice hadn’t been posted, but said it wasn’t necessary because people looked to the non-adjudicated Times for notices. 

While prevision court decisions have allowed for some leeway in applying the statute, the question Judge Young must decide is whether the unique deviations in the case are enough to disqualify the measure.