City Staff

Mar 042012

Committee Members ask few questions, make fewer comments, decide to pass the buck back to the City Council.

Thursday afternoon, the San Leandro City Council’s Rules and Communication Committee met to discuss the staff (read city attorney’s) proposal (read intense push) to amend the Zoning Code to ban entertainment and recreational use in industrial areas of San Leandro.  As one of the City’s attorneys made clear last week, the reason for the ban is to help on the lawsuit against Faith Fellowship.

Every single non-staff speaker at the meeting: community members, the Chamber, business owners and yours truly spoke against the ban.   Twenty first century companies, specially high tech ones, realize the importance of combining work with relaxation, and appreciate nearby recreational facilities which allow their employees to let off steam, and them come back to work.  An entertainment/recreational ban will discourage those companies from moving into town.

The Planning Commission has voted twice against the ban. The Board of Zoning Adjustments expressed its disapproval.  Plenty of people have spoken against it, and the city has not heard ONE community member speak or send an e-mail in favor of this (I checked).  And still, there seems to be a strong will to give away the future of the city for the potential legal advantage (one that I don’t quite get) in a lawsuit we are going to lose anyway.

Among the speakers at the meeting was Pastor Gary Mortara of  the Faith Fellowship Church.  He said that as a community member he doesn’t want to hurt the city, his interest is in getting a property for them to build a church (I’ve been suggesting that we give him the former Albertson’s property, this would put 1700 people downtown every Sunday, as well as many during the week).  He asked that the City not hurt the community for what’s a matter between them.

For me, giving away the future of this city for whatever legal advantage we may get in one case is just bad public policy.

The rules committee did not recommend against the code change, however.  Mayor Cassidy seems to prefer to add assembly use to the area rather than ban entertainment and recreation, but wants more time.

Council member Jim Prola is stuck on the 70’s and wants to preserve manufacturing.   He also wants to attract high tech companies, but even though he has no experience working for one, he believes he knows all about them and won’t listen to what people with experience have to say.    Prola is a great guy, but he’s very reluctant to go against staff on anything that is not labor-related.

As for Ursula Reed, I’m not clear where she stands.  I think she was very much in favor of doing what the City Attorney told her (she’s not an independent thinker, and usually just rubber stamps what comes from staff), but she’s starting to realize how detrimental that would be to San Leandro.  She is also running for re-election this November, possible against Chris Crow (who has been very vocal on his opposition to this ban), and she may not want to antagonize voters on yet another issue.  She’s already made enemies by pushing the purchase of i-pads for City Council members and top staff and by voting for red light cameras, even though they will cost the City money in the long (and probably short) run.  That said, Reed is not the most politically savvy person out there.

As for the rest of the Council, Diana Souza indicated last week she’d vote for the ban, which I’d expect from her.  Souza came to the Council with only two issues in mind: building a lap pool in Washington Manor and getting rid of the Links shuttle.  She was unsuccessful on both counts, and has since taken a very anti-community attitude.  She’s termed out and has no prospects for a political career, so she has no accountability whatsoever.

Joyce Starosciak will probably vote for the ban as well – or at least abstain.   She also kisses the staff’s butts whenever possible, though she should be wary of this decision if she actually plans to run for office again (and she has a committee for a City Council run in 2016).  Pauline Cutter also has a tendency to rubber stamp and she often has great difficulty understanding issues she’s unfamiliar with – for some weird reason her concerns about the zoning change had to do with parking (?!). Finally, Michael Gregory is hard to predict, though he never goes out on a limb, so I’d say he’ll vote for the ban as well – unless the Council seems to be moving against it.  He doesn’t like to make waves.

The one thing that really bothers me is that none of them (save for Cassidy who is, after all, a lawyer) seem to be able to grasp the actual issues at play. I know it’s not just my inability to explain them – there have been many speakers, using different languages and arguments to do so.  I think it’s just their lack of experience outside their personal spheres, their laziness vis a vis researching matters on their own or thinking about them, and their unwillingness to stand for something.

As next election cycle comes around, I can only hope that a couple of competent, intelligent candidates run.

Feb 212012

It’s an Acknowledgement that they Violated Faith Fellowship’s Constitutional Rights but… is it good Public Policy?

Unfortunately it seems that most of my analysis below was right.  Read this short update about the Tuesday night City Council meeting.

Do you want to open a wrestling venue in the industrial area of San Leandro?  How about a comedy club, a lecture hall, a dance school offering recitals, a skating ring, something new and fun and family friendly? Right now, all you have to do is get a conditional use permit and you’re free to go.   But if you want to open a church instead, you are out of luck.  The San Leandro’s Zoning Code does not allow “assembly” use in those areas.

This is set to change tonight when the City Council votes on whether  to prohibit recreational and entertainment activities in the industrial areas of town.   While there will be some properties exempted, entertainment venues are also not allowed in residential areas so the end result would be that commercial recreational and entertainment activities would be banned from most of the city of San Leandro.

Lack of Rationale

City Staff has been unable to come up with a believable rationale for this change to the Zoning code.  First, Community Development Director Luke Sims implied it was in response to the triple homicide that took place in a warehouse in San Leandro earlier in 2011.  However, when faced with skepticism (the party in question was held illegally in the first place, and the facilities across the street from its location will still be allowed to hold parties), he quickly retreated into another argument.  The official line now is that this is just to “clean up” the Zoning Code, to make it consistent with the 1992-2002 General Plan.   The General Plan, they say, includes as its goals the protection of the city’s industrial areas by encroachment form incompatible uses and the attraction and retention of high-tech companies.  City staff, however, suggest that they didn’t realize this was the case for 20 years, and that now is the time to fix it.  Yeah right.

Bad Public Policy

As the CEO of the Chamber of Commerce Dave Johnson suggested, that argument is bogus.  We’re in 2012 now, and it’s time to look at the future, not the past.  And for a city like San Leandro, that should mean opening opportunities for growth, not shutting down.  San Leandro, said then Planning Commissioner Chris Crow, wants to attract high-tech companies, so we should look at what SiliconValley cities offer them: and that’s flexible zoning codes that allows recreational facilities near high tech companies.

As anyone with any experience in high tech knows (and unfortunately, that does not include anyone in the City Council or at City Hall), high-tech companies are very different from the factories of yesteryear.  They recognize that a 9-to-5 (or 8-to6) schedule doesn’t work for all employees, and they want to make it easy for their talent to stay at work as long as necessary while staying physically and mentally healthy. Many high-tech companies now offer in-site childcare centers, gyms and even dry-cleaning facilities.  Google has basketball courts; Xerox’s Parc biweekly lectures.   For companies not large enough to accommodate such services at their campuses, having commercial alternatives nearby is likely to be a big plus.

It’s also worth remembering that the high tech industry is moving in fast and unexpected ways – it makes little sense to proscribe uses of properties that don’t even exist at the moment.

Public Opinion is Against the Changes

So far, all San Leandro citizens (as opposed to staff) that have spoken up on the subject have been against the changes to the zoning code.  When staff took the matter to the Board of Zoning Adjustments, most members expressed their disagreement with the changes .  The Planning Commission twice voted to recommend against it.  And yet staff has rushed this to the City Council, and has tried to do it as surreptitiously as possible.

But… will it help in Court?

So what’s going on here? The only logical explanation I can think of is that this is part of the City’s legal strategy in the Faith Fellowship case.   That case had two basic components, in one the Church argued that the City violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) by placing a substantial burden on the Church, which wasn’t able to find another suitable property in San Leandro, for no compelling reason.  Indeed, the reason that the City gave the Court was exactly the same one that staff is now using to ban entertainment use in the area: the need to preserve it for industrial/high-tech purposes.  The 9th Circuit didn’t buy City’s position then, but I wonder if they have found a way to re-argue this part of the case.

Faith Fellowship had even a more compelling argument than the substantial burden one.  They said that the City’s Zoning Code violated both RLUIPA and the US Constitution’s Equal Protection Clause by allowing commercial entertainment venues in the industrial area but not churches.  The 9th circuit seemed to agree with the Church’s position, but it ultimately ruled in favor of the Church in other grounds, and it reserved this issue for further litigation.

I can’t say that I know for sure what the legal strategy behind this Zoning change is.  I do know that staff started working on this in September 2011, not too long after the 11th Circuit issued a decision saying that a claim for injunctive relief is moot once the Zoning Code is changed to become constitutional.  I’ve heard that Pastor Mortara wants the City to find him an acceptable property, rather than just pay money damages; after all, he still needs to accommodate 1,700 parishioners.  This change to the Zoning Code would pretty much guarantee that that wouldn’t happen.   I also know staff is hurrying to deal with this issue and that Marci Hamilton is still advising the City.

Stay tuned…

I do hope, however, that I’m wrong.   Any discussion about changing the Zoning Code must be done in open session, if the City Council was told about this strategy in closed session, they would be violating the Brown Act once again (as they are prone to do).  In any case, we will know how clean the City Council is tonight.  If Council Members are clean, they surely will follow the advise of the Planning Commission, the BZA and the citizens who’ve spoken on this issue.  If they don’t, I think we can fairly conclude that it’s because of some under the table deal.



* When I first asked Sims for a copy of the proposed changes – he claimed they hadn’t been written down, though the Rules Committee had already discussed them!  He later said City Planner Kathleen Livermore  would get back to me, and she did but only to ask me for my address.  She then proceeded to send me a notice of a meeting (later cancelled), with  no information again about what the proposed changes were.