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Oak-to-Ninth Dispute Moves Forward in Superior Court

By J. Douglas Allen-Taylor
Tuesday April 24, 2007

The massive Oak-to-Ninth development project continued its various journeys through the state court system last week, with lawyers for the Oakland Heritage Alliance filing its opening brief in a lawsuit challenging the City of Oakland’s CEQA findings on the 180,000-square-foot Ninth Avenue Terminal. 

OHA sued the City of Oakland after developers Oakland Harbor Partners, a joint venture of Signature Properties and Reynolds & Brown, won staff and City Council approval last year to build a joint commercial-residential development on a 64-acre parcel along the Oakland Estuary waterfront just south of Jack London Square. Included in that parcel is the historic Ninth Avenue Terminal, the most visible part of the parcel. Oakland Harbor Partners is proposing to demolish more than 90 percent of the building, leaving only the façade and shell. 

“The Oak to Ninth Project holds great promise for Oakland,” OHA said in a prepared release announcing the filing of its brief. “OHA’s intention is to improve the project for this City and for its generations to come. The Ninth Avenue Terminal is a symbol of pride for our port and our city. It is in a class with City Hall as emblematic of our city’s distinctive heritage. Oakland remains an industrial port city. It has been since its founding nearly 150 years ago. The terminal is an enduring monument to this historic and still defining character.” 

OHA President Valerie Garry added in the release that, “bringing this lawsuit is not something our organization takes lightly—it is an enormous undertaking that taxes our resources as a non-profit. But our mission is to protect Oakland's historic resources and when a major piece of Oakland maritime history is blithely proposed for demolition on what we believe is a thin pretext, we are left no choice. We want to see this historically significant warehouse reused. Oakland’s history is inextricably tied to the estuary. This last remaining breakbulk terminal provides historic context and a unique sense of place along the Bay Trail.” 

A hearing on the OHA lawsuit is scheduled for July 26 in Superior Court in Oakland. 

The OHA action is one of three separate lawsuits filed against some portion or all of the Oak-to-Ninth Project. OHA’s lawsuit is distinct from the other two in that it only challenges the destruction of the Ninth Avenue Terminal building. 

The OHA lawsuit has been joined with one filed by Oakland environmental advocate Joyce Roy and the Coalition of Advocates for Lake Merritt (CALM), which is based on grounds that the entire 64-acre project violated the California Environmental Quality Act (CEQA), as well as on calls for the invalidation of the council vote last year approving the Oak-to-Ninth project because the council may not have had the final version of the development agreement in front of it when it took its final vote. 

And after Oakland City Attorney John Russo invalidated petitions by the Oak-to-Ninth Referendum Committee that would have placed the development agreement before the voters for approval or disapproval, the referendum committee filed a lawsuit in Superior Court in Oakland challenging that invalidation. In December, a Superior Court judge ruled against the city attorney’s motion to throw the lawsuit out without a trial, ruling that a hearing on the merits will have to take place. 

Also complicating the issue, a parallel proposal which would save the Ninth Avenue Terminal building and turn it into a winery and tourist destination has received a favorable hearing before the city’s Landmark Preservation Advisory Board, and is currently scheduled for consideration by the Planning Commission next month. 

“It’s kind of insane,” OHA Board member Naomi Schiff said by telephone, trying to explain how the city is now considering a building restoration that it has officially ruled “infeasible.” “The original CEQA finding was that keeping the Ninth Avenue Terminal building intact would make the entire 64-acre project ‘infeasible.’ When that came out last year, we met with city representatives and asked that they back off that finding of infeasibility and issue a new RFP [request for proposals] for development and use of the Ninth Avenue Terminal. They didn’t back off that finding of infeasibility, but they did issue a new RFP which told developers that developing the terminal was not feasible, but will you send in a proposal. They got one response, from Ninth Avenue Partners to turn the building into a winery, so now the xity is considering a proposal that says keeping the terminal is feasible.” 

The earlier decisions by city staff to approve the original Harbor Partners proposal and forward it to City Council were made under the administration of former Mayor Jerry Brown. Schiff said she had no idea how any decisions have been affected, or will be affected, by the newly elected administration of Mayor Ron Dellums. 

OHA President Garry agreed that it’s not yet possible to determine how the change in mayoral administrations will affect the outcome of the battles over the Ninth Avenue development. 

“I suppose at some point that may come into play,” Garry said by telephone. “But right now, it’s a legal matter. And there are a lot of legal hurdles that have to be resolved.” 

In separate interviews, Schiff and Garry emphasized that Oakland Heritage Alliance is not seeking to stop the entire Oak-to-Ninth Project.  

“Nobody wants to completely sink this deal,” Schiff said. “We just want to fine-tune it to resolve some of the complexities.” 

And Garry said, “We’re not opposed to the project per se. We want to see something worked out to everyone’s satisfaction. We just hope to save as much of that building as possible. There are a lot of buildings being torn down in the United States every day. This doesn’t have to be one of them.”