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Third Lawsuit Filed Against Oak-to-Ninth Project

By J. Douglas Allen-Taylor
Tuesday September 26, 2006

Oakland’s massive Oak-to-Ninth development project entered familiar territory this week with another citizen lawsuit filed in Superior Court against the controversial project. 

On Monday morning, members of the Oak-to-Ninth Referendum Committee filed a complaint with the Superior Court in Oakland challenging Oakland City Attorney John Russo’s Sept. 6 invalidation of the petitions that would have placed the development agreement before the voters. 

“After mounting an enormous and successful effort to alert the public and collect signatures, the Referendum Committee faces an impossible situation,” president of the League of Women Voters of Oakland Helen Hutchison said in a prepared statement announcing the lawsuit. “The city gave us the authorized documents several days into the brief 30-day signature gathering period. Then when we turned in the signatures, they said, ‘we supplied the wrong documents so the referendum petition is invalid.’ Invalidating our petition for this reason completely undermines the right to petition for referendum on a city action.” 

The Oakland League of Women Voters is one of several members of the Oak-to-Ninth Referendum Committee that turned in more than 25,000 signatures on petitions calling for a citizen referendum on the development project. 

The public information officer for the city attorney’s office, Erica Harrold, said in a telephone interview that while it was “unfortunate” that the referendum committee has “chosen to go this route with a lawsuit,” she sympathized with their position. 

“We’re up against a draconian state law,” Harrold said, that mandates that a petition for a referendum overturning a city ordinance must be turned in no later than 30 days after the final passage of the ordinance and must include that final version in the text of the signed petitions. State law, however, is silent on the availability of that final version of the law to the public. 

“We need to rework the state law so that the 30-day clock doesn’t start ticking until there is publicly available a stamped, final version of the ordinance,” Harrold said. 

Until that law is changed, Harrold added, “our hands are tied. What else can we do? The City Attorney’s Office believes we were on solid ground” in throwing out the petitions, she said. “State law is crystal clear on this.” 

Last July, Oakland City Council approved an agreement with developer Signature Properties for a 3,100-residential unit, 200,000-square-foot commercial space development on the 64-acre parcel of land on Oakland’s estuary south of Jack London Square. The property includes the historic Ninth Avenue Terminal building. 

The Oak-to-Ninth project has been the subject of considerable community opposition since it was first proposed. However, some of that community opposition ended when Oakland City Councilmember Pat Kernighan crafted a compromise between the developers and some members of the environmental and affordable housing communities. 

In its first vote on the project last June, the council approved the development agreement on a 6-0 vote, with Councilmember Jean Quan abstaining because the project lacked new school facilities, and Councilmember Desley Brooks abstaining because it did not provide enough open space. 

Following the final council vote in July, two lawsuits were immediately filed against the proposed project, one by Oakland environmental advocate Joyce Roy and the Coalition of Advocates for Lake Merritt (CALM) on grounds that the project violated the California Environmental Quality Act (CEQA), and the second by the Oakland Heritage Alliance calling for the saving of the Ninth Avenue Terminal. Under the agreement, the terminal would be virtually destroyed. 

Last week, Roy and CALM amended their petition, adding a new cause of action calling for the invalidation of the council vote because the council may not have had the final version of the development agreement in front of it when it took its final vote. 

Oak-to-Ninth Referendum Committee member James Vann said in a prepared statement that in drafting its petition, “we used exactly what the Council adopted” on its final vote as the text of the ordinance. “If the agreement was substantially revised after the Council’s vote, then something fishy is going on and City Attorney Russo will have to explain it.”  

City attorney information officer Harrold said she had not yet seen a copy of the new lawsuit, and city attorney staff had not yet filed an answer on behalf of the city to the amended complaint in the Roy/CALM lawsuit. The city attorney’s office has 30 days to answer both the new lawsuit and the amended complaint.