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Judge Throws Out Oak-to-9th Plan EIR

By J. Douglas Allen-Taylor
Friday November 23, 2007

A California Superior Court judge has voided the City of Oakland’s approval of the controversial Oak-to-Ninth development project, sending the project back to the Oakland Planning Commission and the City Council for a new round of environmental impact report certification and commission and council votes. 

In a 55-page decision issued last Friday, Judge Jo-Lynne Q. Lee agreed with the claims of a coalition of neighborhood and environmental activists that the Oak- to-Ninth EIR had not adequately addressed the issues in several key areas, including cumulative impact of past and present projects, traffic impact, and seismic risk mitigation. 

At the same time, the court ruled that the City of Oakland had properly considered alternatives in its EIR before concluding that much of the massive Ninth Avenue Terminal, the largest existing building on the Oak-to- Ninth site, could be largely dismantled for the project.  

The ruling comes at a time when Oakland will be losing its longtime Director of Planning, Claudia Cappio, who oversaw the original approval process in the Oakland Planning Commission and in the Oakland City Council for the Oak-to-Ninth Project. A spokesperson in the Oakland City Administrator’s office confirmed that Cappio has turned in her resignation, though a date for her leaving her position has not been set. 

“For me, personally, it’s going to be a devastating loss,” Public Information Officer Karen Boyd quoted Adminstrator Deborah Edgerly as saying. “It’s going to leave a big hole in our operation.” Boyd called Cappio a “great presence” and “an incredible worker.” 

Cappio, who was recently injured while riding her bicycle, was not available for comment. 

Last week’s Superior Court ruling was on two lawsuits filed sep 

arately in the summer of 2006 but later consolidated, one by the Coalition of Activists For Lake Merritt (CALM) and Oakland architect progressive and activist Joyce Roy, seeking to overturn the EIR, and one by the Oakland Heritage Alliance seeking to keep the Ninth Avenue Terminal from being essentially destroyed even if the project itself were approved. 

The Oak-to-Ninth project, which seeks to rebuild a stretch of aging Oakland waterfront property along the estuary just south of Jack London Square, was controversial from its inception, and became an issue both in last year’s mayoral election and in the later District Two election between incumbent Pat Kernighan and challenger Aimee Allison. 



The final language of the ruling will be issued sometime after mid-December, and the parties will have 60 days after that date to file an appeal. The lead attorney for Oak To Ninth developer Signature Properties, Steven M. Bernard of Balgley & Bonaccorsi of Newark, California, was out of the office for the rest of the week and unavailable for comment on whether Signature would encourage the city to appeal. 

The ruling comes after some 25,000 pages of documents from the city’s original planning approval process were submitted to the court, as well as over 200 pages of written legal argument submitted by all sides. 

The Superior Court ruling comes barely a week after plaintiffs voluntarily dropped a separate lawsuit that challenged the Oakland City Attorney’s throwing out of petitions calling for a vote on the Oak To Ninth Project. 

A spokesperson for Mayor Dellums said the mayor has not yet read Judge Lee’s decision, which was issued on Friday but not available until late Monday, and said that the mayor would not comment until he had the chance to read the report and consult with staff. 

Alex Katz, Communications Director in the City Attorney’s office, said that “in legal terms, it’s a split decision, but a win for the city.” Katz said that the court agreed with the city on 14 of the specific EIR complaints made by the plaintiffs, and with the plaintiffs on 10 issues. “We see that as positive,” he said, adding that he believed the city can resolve the EIR complaints upheld by the court “relatively easily.” 

Katz conceded, however, that the decision means a new Planning Commission and City Council vote, which now gives opponents a second chance to gather signatures for a ballot referendum if they don’t like the outcome. 

Meanwhile, the EIR lawsuit plaintiffs themselves had always argued that they did not want to stop the Oak To Ninth project entirely, but wanted modifications. The judge’s ruling now gives them that opportunity. 

Because of that, the EIR lawsuit plaintiffs were ecstatic about Judge Lee’s ruling. 

“I’m feeling great. I’m dancing,” Joyce Roy said. “It’s such a bad project on so many levels in so many ways.” 

Naomi Schiff, president of the Oakland Heritage Alliance, said that while “we’re sorry that the judge doesn’t think the salvaging of the Ninth Avenue Terminal is important,” she added that “my understanding is that all the city approvals are voided, and that this gives everyone a chance to take a second look at this project, including the terminal.” 

And even Oakland League of Women Voters president Helen Hutchinson, who had sounded drained and disappointed last week when announcing the Oak-to-Ninth Referendum Committee’s decision to withdraw its separate lawsuit, was decidedly more upbeat in reacting to the EIR victory. 

“In many ways, the ruling justified our decision to call for a referendum on the project.” Hutchinson said. 

Arthur Levy of Levy, Ram & Olson LLP of San Francisco, the Oakland Heritage Alliance attorney, said that he was “disappointed with respect to the Ninth Avenue Terminal,” but “extremely pleased, overall, at the outcome of the ruling. We’re hoping that the project will be improved as it comes back through the planning approval process.” 

Levy said that he had not yet talked with OHA officials about the possibility of appealing the court’s Ninth Avenue Terminal findings to the California Appeals Court. 

And Brian Gaffney of San Francisco, attorney for CALM and Roy, also said he was pleased with the ruling, adding that the decision left Signature Properties with three options: going back through the EIR process, filling in the sections that the judge ruled were incomplete or unaddressed, appealing the ruling, or trying to work out a settlement with the plaintiffs that could bring a modified form of the project to the Planning Commission and City Council. Gaffney called any Signature appeal “risky.” “An appeal could take a year and a half to get through the Appeals Court,” he said, “and if they lost, they would still have to go through all of the city processes again to get approval for the project.” 

If the proposed 3,100-residential unit, 200,000-square-foot commercial space development Oak-to-Ninth project does go back through the Oakland planning process, it will find a landscape distinctly different from when the project was approved on a 6-0 City Council vote in the summer of 2006. 

In 2006, Jerry Brown was mayor of Oakland. Brown was a strong supporter of the Oak-to-Ninth Project, and considered it a key part of his plan to bring commercial development and 10,000 new residents to the general downtown Oakland area. Ron Dellums is mayor of Oakland now, elected on a campaign platform of bringing all sides to the table in deciding development issues, as well as using the city’s development approval powers to promote the city’s diversity. 

Asked to comment on Dellums’ views on the development and diversity issue during last year’s mayoral campaign, president Mike Ghielmetti of Signature Properties, the developer of Oak-to-Ninth, told the Oakland Tribune a little dryly “There’s a great deal of concern in the development community. The remarks were not taken well.”