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.

A new year presents the opportunity to dream and hope for the new. It may seem that this is not the best moment to hope for new transit service: not only will a slipping economy mean less sales-tax revenue from which to fund local transit, but one state budget-balancing idea includes stripping local transit agencies of operating subsidies in order to jump-start the construction of High Speed Rail. This rests on a calculus that High-Speed Rail will create construction jobs, while transit service merely takes people to their existing jobs. From this government-centric perspective, efficiency and broadly-shared benefits lose to glamorous and expensive new projects. Similarly, BART wants to cut existing service while still building new stations in suburbs where ridership is likely to be low. But the East Bay is about to see enormous transit improvements that are incredibly cost-effective, and a less-cost-effective project is getting another chance.

The handful of choke points connecting Alameda to Oakland’s transportation system have long bedeviled planners. Car access is considered adequate, and only a new bike/ped/transit crossing is being studied, with options to be presented to Oakland and Alameda later this year. However, the need to fit a large Coast Guard ship on the estuary is a major physical barrier to building a bridge. A drawbridge would be useless to buses because it would introduce delays, and building a tall crossing would be prohibitively expensive. But Alameda has figured out how to create reliable transit service with just a bucket of paint: bus queue-jump lanes leading to the Posey Tube. By prioritizing buses over private traffic through the tube, buses avoid a significant bottleneck and restore reliability, at basically zero cost to the public. The lanes should be painted soon.

Though not quite free, Bus Rapid Transit is extraordinarily low-cost transit service that can accommodate tens of thousands of daily riders in its eight-mile corridor for only $250m, all of which has been secured. The Measure KK vote in Berkeley shows that the general public strongly supports Bus Rapid Transit, which confirms my personal experience: everyone I tell about it immediately grasps the concept and the benefit of bus-only lanes, and very few grumble that rail would be better or that cars deserve every last inch of asphalt. The project qualifies for the Federal Small Starts program because of its cost-effectiveness (a metric often not met by rail projects), and all funding has been secured including a generous allotment for overruns. Such a large transportation benefit for little cost, though perhaps uninteresting to state-level politicians, is the perfect project for a recession.

Ironically, as BRT proves its popularity and its cost-effectiveness becomes more valuable, several developments may have made an Oakland streetcar idea more feasible. Unveiled in 2001,  the multi-jurisdictional Long-Range Investment Study looked at BART to Jack London Square, improved transit connection to Alameda, and various Rapid Transit options (BRT, LRT, and a streetcar). Ultimately most ideas were found to be expensive or otherwise infeasible. Out of this study only the aforementioned transit plans are progressing. A MacArthur BART-Downtown-JLS-O29 streetcar circulator was found to be very expensive and have no identifiable funding source, and a cheaper “rubber-tire trolley” suggested by Councilmember Nancy Nadel was not studied. Yet, in the five years since a Congestion Management Agency meeting I attended in 2003 where those conclusions were reached, several funding sources for a downtown streetcar may have presented themselves.

Without radically rejiggering the Central District Redevelopment Area’s spending formula (which provides the vast majority of funds for citywide affordable housing projects), there is no obvious financing mechanism for a downtown streetcar. The City Center and Lake Merritt office districts alone could not bear the costs, and those property owners would be unlikely to see great benefit in shipping their tenants off to Jack London Square for lunch. But the Jack London Square II project is building a substantial amount of office space, and if O29 is approved soon, there will be thousands of new residents needing new transit service. But the real clincher is the Conley Report proposal for a Mid-Broadway large-scale retail district. Since there’s no BART station between 20th and 40th Streets, and the city will be hard-pressed to fund thousands of parking spaces to support new retailers, new transit service will also be needed at the other end of the proposed streetcar route, up Broadway to the MacArthur BART station. With a mix of new retail, office and residential large-scale development along the proposed streetcar line, the prospects for its funding are much brighter, especially as it combines transportation with economic development, and is a large infrastructure project that would create jobs.

As promised in her inauguration speech, Councilmember Rebecca Kaplan will tomorrow present an urgent proposal to the Oakland City Council Rules Committee. She will ask that Oakland add actual infrastructure projects to its federal stimulus request which was woefully lacking when drawn up by the mayor, and adopt a strategy for lobbying Congress to get as many projects funded as possible. Transportation projects are expected to get additional attention, from implementing the Bicycle Master Plan to repaving every street and sidewalk in the city. Even though simple and cost-effective transit solutions are becoming more apparent, with the opportunities presented at the federal and local level (from Obama’s stimulus to Oakland’s retail revitalization plan), new transportation improvements are getting a fresh look and perhaps a fresh start.

This argument is playing out on other blogs. Should shrinking numbers of OUSD students and administrators continue to enjoy substandard facilities on the most valuable land in the city while empty middle schools litter North Oakland? Surely not. But many argue, like School Board President Kakishiba, that the land will be needed to house increasing numbers of students resulting from downtown development (he also argues that the district has no need for an infusion of $60m). With land at a premium (the district is offered $6m/acre), they say that the district won’t be able to build new schools when these students arrive. The district, of course, is in receivership partly due to shrinking enrollment (but mostly due to inept management).

At their last meeting, the powerless school board received a report (PDF!) analyzing planned 10K-area (i.e., downtown, Jack London Square, and Telegraph/Northgate) and O29 residential construction, forecasting that the number of public school students may increase by between 425 and 2800, depending on the yield (of students per-unit) and the number of Below Market Rate (BMR) homes required by proposed “affordability” mandates. The report, however, is based on several flawed assumptions, and ignores many important factors, which a critical reading of the study reveals.

The biggest problem with the study is its overly optimistic calculations of student yield. The yield of the 1700 market-rate units already built is 0.002 students/unit. Nonetheless, the study assumes 0.01, 0.03, and 0.1 ratios for its Low, Medium and High forecasts. Even the Low forecast is five times higher than the actual yield! That’s seriously flawed and goes without explanation (the report notes that high-rise versus mid-rise units have an impact on student yields, but future developments are more high-rise than the ones already built, so should have lower yields). Similarly, the yield for the lone new family-sized low-income development is 0.38, yet the Low, Medium and High forecasts assume 0.4, 0.4 and 0.7, all higher than the actual yield. In addition, it is likely that at least some portion of redevelopment area low-income housing funds will go to senior housing, further depressing yields. Recalculating the formulas with the empirical yields (so only the number of BMR units vary), but still ignoring senior housing, forecasts 301 to 845 new students, fewer than a third of those predicted by the study.

The number of BMR units is recognized by the study as the largest variable in the forecast for the number of students. Unfortunately, the authors misunderstand the proposed mandates. An entitlement is a binding contract between the city and the developer to construct a project. The crude price caps so popular in Marin and SF cannot be imposed after permission is already granted to construct. Therefore, of the 10,088 units listed in the study’s table (aside from O29, which has a provision for family-sized low-income units, and the OUSD development), only 3389 can be subject to new mandates, and that is only if they fail to secure entitlements before the ordinance is passed and its grace period expires (and every developer is scrambling to get an entitlement before Dellums takes office). So, basically only the TerraMark development would be subject to a mandate (and they would probably do a special deal negotiated with the community, like O29, rather than just following the ordinance). Thus, even with a 15% mandate (which is very much at the high end of what is likely to pass), only 765 units would be built (including O29), and probably far fewer.

As I have illustrated above, looking at the study’s statistics, the Low forecast (based on empirical student yields and a realistic assessment of low-income housing units) should be 201 students (or fewer), not 425, and the High estimate of 2736 is absurd (it assumes that the student yield of new market-rate housing units will be fifty times what it is currently!). In addition, the study assumes that the percentage of school-aged children attending charter schools will not rise, which is very unlikely as charter schools flourish. The study also asserts that parents in downtown developments will send their teens to McClymonds High School, which, frankly, they won’t. Finally, the report makes no mention of birth-rate demographics (which I expected to be the focus of the study): the Gen Y / Echo Boom generation is aging, and they are now mostly in high school and college. This suggests that the number of OUSD students will continue to fall, as they have for at least six years, regardless of how many units are built or how the City Council attempts to socially-engineer them.

The report’s conclusions are rather irrelevant anyway. New charter schools in the downtown area serve hundreds of students. The school district should be able to mimic their flexibility, and if the district cannot, that is yet another reason for parents to choose a charter school. There are tracts of land, in the DTO as well as Eastlake, that could be purchased for school expansion, despite what panicked board members claim. To pass up TerraMark’s tremendously lucrative offer based on flawed assumptions about potential future student enrollment (as the Trib advocated today) would be a serious mistake.

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.

Clearly the group has no interest in arguing on the merits. As I discussed in my last post, their signature drive is packaged with gross distortions of the plan and other lies, sounding fishy to anyone with the slightest knowledge of the project (as this exchange on IndyMedia makes clear). In their ad for highly-paid signature gatherers, Anti-Oak-to-Ninth says that “This campaign is to COLLECT SIGNATURES for a good cause (a referendum to stop a destructive property development).” This is not very descriptive of the Oak-to-Ninth project – a brownfield redevelopment that is half parkland is hardly “destructive.” Any knowledge of local issues or even being from Oakland is irrelevent to the anti-Oak-to-Ninth groups; they’re just out to hire some guns, and apparently expect them to know nothing about local issues.

It is an indication of the lack of community opposition to Oak-to-Ninth that the groups are forced to pay high wages to distinterested young people to keep their efforts on life support. They are resorting to lies, hired help, and non-Oakland money (as the drive is backed by a UCB think-tank and the SF Sierra Club) to wage a “grassroots” campaign. They are desperate to stop something that almost everyone in Oakland supports. It is still unlikely, though, they they will collect the 18,700 signatures needed by next Thursday (they really need 21,000 to ensure validity). No doubt the local groups that worked with the developer for more parkland, more affordable housing, transit subsidies and other benefits will be relieved.

The flyer claims that the development is destroying parkland. The project area is not parkland, it is a decommissioned break-bulk shipping container yard. The development will provide the funds necessary to create two dozen acres of parkland. Without the development, the land will continue to be an inaccessible toxic dump.

The opponents say that there will be 2000 students and no school. With the entire development expecting to comprise about 5000 souls, the idea that almost half of them will be school-aged is laughable (and would they all be the same age?). It is unlikely that there will be more than 200 students, far from enough to justify the construction of a school. Also, any school facilities built would take away from the public parkland.

Opponents of the development claim that it was rushed through without public participation. They know that is a lie, since they’ve been publicly fighting it for at least three years. There was a public hearing process when the Port Commission chose between the two developers (Shorenstein lost out), there was a lengthy public input process as Signature extensively modified the development (among other major changes, it has more high-rises now, because the locals asked for more parkland than originally planned), and then the project had a public hearing before the Planning Commission, and then an appeal before the City Council (which was a packed meeting lasting many hours). The idea that the development was rushed or done “behind closed doors” is a flat-out lie.

The opponents of the project claim that they want a better project, but if you look at their (truthful) criticisms of the project, it’s clear that they don’t want anything. They say that nothing should be built near a freeway (there are many residential projects downtown near freeways, by the way, and nobody’s complained yet), that there will be too much traffic, and that there’s not enough public access. Without the project, there is of course no public access. Basically, the opponents are concerned about traffic in the area, and no good use of the land will avoid increasing car trips to and from the land.

So, if you’re happy with a toxic dump that doesn’t generate tax revenue and cuts the city off from the water, then sign the petition. If you look forward to waterfront access, new parkland, new homes and shopping, and increased city tax revenue, then ignore their lies and their petition.