Tuesday January 20 2009 the Oakland City Council will vote on final environmental and legal approval of the showcase Oak-To-Ninth (O29) development on two peninsulas comprising 64 acres immediately east of the Jack London District straddling the Lake Merritt Channel. 170 boat slips in two marinas, 200,000 square feet of retail space, 32 acres of waterfront parkland and bike/ped trails, and 3100 homes (including 465 low-income family-sized apartments), will transform a long-abandoned break-bulk cargo facility. Despite the obvious benefits of such a landmark development, the small group of activists who waged a referendum and then a lawsuit attempting to halt the project are still objecting to its construction.

Yesterday, Joyce Roy published an op-ed in Berkeley’s NIMBY mouthpiece, the Planet. She rehashed many of the false and misleading claims of the anti-O29 referendum committee, who grossly oversimplified redevelopment agency financing and mischaracterized the open-space and transportation elements of the plan. A brief rebuttal: the city is not paying out-of-pocket for the affordable housing, the land price is discounted because of enormous environmental cleanup costs, living near a freeway is normal in Oakland, and AC Transit and Signature are committed to establishing new transit service once the area is developed. This blog documented these falsehoods during the referendum campaign, and using the same arguments City Attorney John Russo successfully defended the city against the referendum. With a few technicalities left for the city to clean up, opponents still haven’t given up.

Oakland’s neighborhood listserves have for about a month hosted a concerted campaign to stir up opposition to O29, seemingly to little success, perhaps because Oaklanders have other things on their minds. This week, some called for the delay of the Council’s vote, because their meeting on the 20th conflicts with Barack Obama’s inauguration as President and so would inconvenience those who want to speak on the item. But the City Council meeting Tuesday evening does not conflict with the inauguration, which is in the morning. One does not have a constitutional right to party. The vote was not rescheduled. In contrast, the sidewalk liability ordinance was delayed by Jane Brunner’s Rules Committee, presumably to provide more opportunity for public input.

Because there has been plenty of public input on the Oak-To-Ninth project. One the petitioners’ more outrageous claims was that there had not been adequate public involvement in planning the O29 area, invoking one of Oakland’s sacred cows. To the contrary, O29’s plan was developed with three years of public and private meetings between Signature Properties and community members and groups, in addition to the formal planning process which provided a dozen opportunities to plead one’s case to decision-makers. Not only did Signature carefully develop a landmark plan with extraordinary public involvement, but they struck a deal with a large coalition of special interest groups to provide community benefits in the form of apprenticeship and local hiring programs, and to ensure that the affordable housing truly serves community needs (unlike, say, BMR condos).

The real issue on the table is not whether O29 inappropriately demolishes a 1950s warehouse or should contain 540 housing units instead of 3100. The court did not void the approvals of the project or uphold many of the opponents’ claims. Basically, three parts of the Environmental Impact Report were found inadequate: analyses of cumulative impacts, of earthquake risk, and of traffic. After receiving further technical studies, the city found that cumulative impacts are insignificant and earthquake risks are mitigated by California’s strict building code. The city did, however, find that traffic delays at five intersections would be unacceptable in 2025. That means that drivers in the future (assuming that people don’t drive any less) may have to wait two minutes to pass through a green light. The Oakland City Council is asked Tuesday night to legally declare, “tough titties.” It’s time they did so.

While the Oak to Ninth referendum group claims they believe it will stand up to a legal challenge, the City Attorney’s opinion points out that our courts have, in the past, upheld rejection of referendum petitions for far lesser offences, including one were only three words were missing from the attached ordinance.

The Better Oak to Ninth Referendum Committee issued their own press release, claiming “indignation” at the influence of Signature Properties had on John Russo’s decision, claiming “It is a common tactic for developers to nitpick legal issues in their attempts to disqualify citizen efforts…” and The referendum committee views the action of the City Attorney as caving in to pressure from the developer.”

The greatest error, in my mind, and what should ultimately damn the referendum petition, is the failure to include maps of the project depicting the open space and public access. Since the petitioner’s arguments were largely based on the alleged lack of access and open space, failing to provide signers with the truth about these aspects of the project was reprehensible. I spoke more than once with petitioners who simply lied to me about the project, claiming that there was virtually no parkland in the project, asserting that the area is now parkland which will be destroyed to build skyscrapers, or told me that the parkland in the project was a miniscule portion of the area, amounting to nothing more than a backyard (remember, we’re talking about 30 acres here, almost half of the project area). I spoke with several people after signing the petition who had similarly been lied to by petitioners, including one who was shocked to discover that the petition was, in actually, a ballot referendum – he has been told that it carried no legal weight, and that they were just trying to send a message to the City Council that they wanted more public input on projects in the future.

As much as the Referendum Committee may bitch and moan about “caving to pressure” from developers, it is they who attempted to defraud the citizens of Oakland. Russo is simply doing his job. Russo’s directive will likely be met with a legal challenge from the petitioners, but I can’t imagine them winning when they so flagrantly violated the elections code. It looks like the referendum is dead, and the project will move forward after all.

Here are a few quotes from Russo:

Such failures to present the public with all the information necessary for an educated decision defeat substantial compliance because they subject the electors to confusing or misleading information and threaten the integrity of the election process.

Without these maps a prospective signer who was interested in the actual amount of public access in the Plan area would have had great difficulty in making a fully informed decision on whether to sign the petition.

The City Clerk’s rejection of the referendum Petition is based entirely upon the public’s right to know fully, fairly, and with precision what City Council action is being challenged. This Petition does not meet that Standard of transparency and under the mandate of California law cannot be allowed to proceed.

Update: The Trib and the Chronicle have articles about this today.