San Leandro

Jul 092011

But did it need it?

I have been following the controversy over The Bal Theater showing live events for quite some time, but it wasn’t until last night that I finally understood the positions of both sides: the City and The Bal’s owner Dan Dillman.  Neither side – Dillman or the City – has done a particularly good job of laying the issues on the table.  At yesterday’s Board of Zoning Adjustment (BZA) meeting, Community Development Director Luke Sims finally explained the city’s legal rationale for trying to stop Dillman from offering live entertainment.  I have to say, on its face it looks very weak.

The Bal Theater was built in 1946.  At that time it conformed perfectly with the current zoning laws.  It could show movies and live shows and whatever it wanted without the need of a permit.  Many decades later, however, the city changed the Zoning Code to require businesses in that area to acquire a conditional use permit (CUP) in order to show entertainment of any type. The US Constitution, however, protects the prior use of private properties against changes in zoning law.  That means that the entertainment use of The Bal could continue legally, though now it was deemed “non-conforming”.   The right to use a property nonconformingly is transferred to new owners of that property and stays with the property until the non-conforming use is abandoned.  San Leandro defines abandonment of non-conforming use as discontinuing that use for 180 days or more.

The City acknowledges that The Bal has not abandoned its non-conforming right to show movies, and that it can continue to do so without a permit.  It argues, however, that The Bal was primarily a movie theater and that it only occasionally held live events. It further argues that the latter owners of The Bal only used it for movie showing and did not hold any live events there.  Therefore they say, any-nonconforming right to show live events that The Bal had was discontinued/abandoned and doesn’t exist any longer.  The Bal, therefore, must get a conditional use permit to show live events.

There are a couple of problems with the city’s rationale, however.  First of all, while the Zoning codes of other municipalities specify that the non-conforming use of a property can be discontinued totally or partially, our Zoning code does not – merely saying that a non-conforming use that is “substantially” discontinued for 180 days cannot be re-established.  That means that the city has no legal basis for deeming  just part of a non-conforming right (in this case, the right to show live events) abandoned.  Moreover, the city’s own zoning code calls for the need of a conditional use permit for “entertainment uses” of a property, without differentiating between particular entertainment uses.  What this means is that when the Zoning code was passed, The Bal’s “entertainment uses” as a whole became non-conforming, rather than individual particular uses (e.g. showing movies, having magic shows, etc.).  Without a separability clause in the Zoning Code, the city cannot deem any particular entertainment use abandoned.  And that makes sense.  It would be absurd to say that any theater would have to show the exact same type of entertainment at least once every 6 months to keep its right to show that particular type of entertainment.

The city’s claim that The Bal never showed many live events is problematic as well.  What the city seems to be arguing is that even if The Bal has a non-conforming right to show live events, it cannot show more live events than it actually did before the Zoning Code was changed.  Under California precedent “the continued nonconforming use must be similar to the use existing at the time the zoning ordinance became effective” – but I have found no precedents to back the City’s position that a nonconforming use must be identical in frequency to the pre-ordinance use to be considered “similar” under the law.  The City has not set out the basis for this potential argument either.   Indeed, the Assistant City Attorney, Meyers Nave‘s Richard Pio Roda, remained completely silent during last night’s meeting, even when BZA members asked for clarification on legal matters.  I’m not sure whether that’s because he, himself, is ignorant of zoning law or because the City Attorney’s office understands that they are in very shaky legal grounds when asserting that Dillman does not have the right to host live events at the Bal.

Dan Dillman would not have needed to get any type of permits if he continued operating The Bal as a theater.  However, The Bal is not financially viable on its own, so Dan Dillman decided to use the building to host his Computer Repair business as well.    For that, he did need a Conditional Use Permit and applied for one.  The City granted him one, but used this permit to specify that he could not hold live events at the theater.   Basically, the city tried to blackmail Dillman into giving up his non-conforming right to show live events in exchange for being able to run his computer business.  Not only is this highly unethical, but as the city has no legal right to impose such restrictions on Dillman, those restrictions cannot be legally enforced.

Dillman re-opened the Bal and started to show both films and live events.  After a New Year’s show featuring black comedians, the City sent Dillman a warning saying that he could not show live events.  Thus started a process through which Dillman asked the city to remove the restrictions from his Computer Business conditional use permit which ended with the Zoning Board voting to grant him a new CUP to show live entertainment, albeit with frequency and time restrictions.  Now Dillman will have to decide whether he will accept the CUP as granted or just continue with the non-conforming use of the property.  While the CUP as approved last night does limit his existing rights, he risks a legal battle with the City if he continues operating without it.  It’s likely a battle he would eventually win, but legal battles are expensive and time-consuming.  The City has already been showing bullying tactics against Dillman by sending both uniformed and undercover officers to The Bal, and despite our great financial issues the City might decide to be spiteful and fight Dillman.   On the other hand, if Dillman does abide by the CUP, he risks legally abandoning the nonconforming uses of The Bal by turning them into conforming uses, now limited by a permit that could very well be taken away.

I think it’s time for Dillman to consult a good zoning lawyer.

Note: This article was amended with clarifications on California law regarding the continuity of use of a property and on Dillman’s legal options.


Zoning Code, Art. 20. 4-2006
A.  Abandoned Uses Shall Not Be Re-Established.  A nonconforming use that is
substantially discontinued or changed  to a conforming use  for a continuous
period of one hundred eighty  (180) calendar days or more shall not be  re-
established,  and  the  use  of  the  structure  or  site  thereafter  shall  be  in
conformity with the regulations for the district in which it is located, provided
that  this  Section  shall  not  apply  to  nonconforming  dwelling  units.
Abandonment  or  discontinuance  shall  constitute  cessation  of  a  use
regardless of  intent  to  resume  the use. The burden of proof  in establishing
whether  a  nonconforming  use  has  been  discontinued  for  less  than  one
hundred eighty (180) consecutive days shall be upon the operator of the use
or person requesting re-establishment.

Jul 082011

The San Leandro Municipal code prohibits residents from keeping animals, other than dogs, cats, potbellied pigs and caged birds at home.  Animal husbandry is only permitted in the Mulford Gardens neighborhood of San Leandro.  However, there is a growing movement, in particular in the north area, to change the code to allow residents throughout the city to keep chickens (but not roosters) and bees.  Most cities around us make such allowances.

At the last City Council meeting the matter was sent to the Rules committee – though it’s a the bottom of their list.  Council woman Souza complained that the Council had dealt with the matter a few years ago – she clearly doesn’t want it revisited.  But what do you think? Should we allow chickens and bees in San Leandro?  Answer the poll and add your comment below.

[poll id=”2″]

Jul 062011

Last month, Gov. Brown signed into law two trailer bills, ABX1 26 and ABX1 27, which will eliminate all redevelopment agencies in the state unless cities agree to transfer a large amount of money from these agencies to school and other local services.  As of now, San Leandro’s redevelopment agency cannot enter into any new contract or start any new project.  The city must decide by October 1st whether it will dissolve the agency or pay the fee.  If it decides to pay, it must pass an ordinance committing itself to do so.  While the City’s analysis is preliminary, the expected payment will be somewhere north of $5M for 2012, and over $1M a year thereafter.  As the state has been taking about $1M a year from the city’s redevelopment agency for the last decade, that annual payment should not make much difference in the working of the redevelopment agency long term, though some projects may have to be postponed.  The $5M payment, however, would come out mostly from the city’s funds for affordable housing and it’s unlikely that it would be repleted.

Before this law was passed, the City’s Redevelopment Agency transferred most of its assets to the City and had the City assume its obligations.  The new laws invalidates these transfers, however.

At this point, the City has several choices:

– Dissolve the Redevelopment Agency and get out of the business of doing redevelopment.

– Dissolve the Redevelopment Agency and have the city be in charge of redevelopment directly, while fighting the state in court to keep the former redevelopment agency’s assets/tax revenues.

– Pass the ordinance in question and be prepared to make a partial payment of the $5M fee in January 2012.

The League of California Cities, meanwhile, is suing the state at the California Supreme Court level to halt the enforcement of these laws.  It argues that the laws violate several constitutional restrictions on the state’s power to allocate property taxes as well as the recently passed Prop 22, which specifically prohibits the state from taking money away from redevelopment agencies.  The state’s argument is that it’s not taking money away – it’s allowing redevelopment agencies to stay open in exchange for a voluntary payment.   A basic principle of law is that the state is not allowed to do indirectly what it cannot do directly, so there is a good chance the League will ultimately prevail – whether it would do so soon enough to halt this process is another matter altogether.

The most likely scenario for San Leandro is to pay the $5M fee and go on its merry way. It will continue to have funds to do redevelopment, and citizens will have fewer fights with the city about unwanted affordable housing projects.



Jun 302011

Americans generally believe in open government.  We give our democratically-elected federal, state and local governments enormous authority over our lives and pay for the privilege with a substantial percentage of our earnings, the least we want in return is to know what the government is up to.  To that end, both the federal and state governments have passed “open government” laws that require open meetings and the release of public information.    In California, the Brown Act regulates how government meetings can be held, while the California Public Records Act (CPRA) provides for access to public records.

Local politicians and city employees are not particularly fond of these laws.  They limit the deals they can do behind the scenes and make them more accountable to the public – at least in communities where there is a functioning press keeping tabs on local government.  While San Leandro is not one of those communities – the Daily Review doesn’t even have a journalist assign to our city, and neither the San Leandro Times or San Leandro Patch do any investigative journalism -, it does have a few independent bloggers as well as concerned citizens that once in a while organize around a particular issue.  City officials, therefore, have an interest in trying to circumvent these open government laws that might expose their doings.

I have written before about how recently the City Council moved to pass a policy that would automatically destroy all their e-mails and how they have gotten rid of narrative minutes of city meetings.  Just as egregious, however, is a little known City Council policy of approving items without properly agendizing them – thus hiding their actions from the public.

According to the Brown Act, before any meeting the government body must  “post an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting.”  The City Council, however, does not need to either discuss any item on the agenda or vote individually on those items.  Indeed, most meeting agendas include a “Consent Calendar” of items that the City Council will approve altogether and without discussion.  Any member of the City Council can “pull” an item from the consent calendar, for individual consideration, but members of the public cannot do so.  Members of the public can speak about any of the items in the Consent Calendar, but in order to do so, they must know what those items are.

The San Leandro City Council operates both as a full body and through standing committees.  These committees are usually composed of 3 City Council members are usually deal with concrete issues: rules, finance, facilities, relationship with the school district, etc.  In addition to the standing committees, the City Council occasionally creates ad-hoc committees to handle issues that come up, such as the hiring of a new city manager.  These committees are supposed to do the nitty-gritty work of the Council, read staff reports, discuss issues and decide upon them.  While these committees must publish agendas for their meetings and their meetings are open to the public, they mostly meet during the day when most people are at work and unable to attend, and therefore they seldom see any public participation.  City Council Committee members are therefore free to discuss and decide on issues without any public input.

The recommendations made by City Council Committees are supposed to be discussed and approved by the whole City Council before they become “law”.  They should be listed in the agenda as such, as required by the Brown Act.   They are not in San Leandro.  Rather, the City Council is asked to approve the minutes of the different committee meetings within the consent calendar, and by doing so, they approve their recommendation.   For example, let’s say that the Business & Housing Development Committee recommends increasing business fees by 1,000%, the agenda for the next City Council meeting should say: “Action: Approve increase of business fees by 1000%”.  What it would actually say  is: “Accept Business & Housing Development Committee minutes”.   When the City Council approves the minutes, it also approves the tax increase.  The public would have no clue as to what had just happened.

It’s not only the public that gets blindsided – new City Council members do as well, as they’re often not told of this policy until something comes up.   Indeed, due to complaints by a City Council member, more recent City Council agendas have been a bit more clear as to what the Council is voting to approve, actually listing the committees’ recommendations, but they still don’t make it clear that the Council is approving those recommendations when they approve the minutes.

Jun 242011

At last Monday’s City Council meeting, Council Member Ursula Reed proposed that the City Council consider reducing its numbers from 7 to 5 when they next draw the redistricting lines later this year.  She also proposed to extend term limits to 3 terms per Council Member.  Mayor Cassidy thought the idea was worth considering, but he advocated that it be done as part of a larger reform of the whole City Charter. I agree.   The Charter hasn’t been touched in decades, comes from a time when San Leandro was a very different city, and it may be time to give it more than a couple of cosmetic changes.

I have advocated elsewhere that San Leandro would be better off having a full-time Mayor with broader powers.  San Leandro is currently “ruled” by a City Manager only very indirectly accountable to the community.  When a city manager is incompetent or corrupt, but still has the support of the City Council, citizens have little recourse: the only way to remove would be by the impossible task of recalling 4 City Council members.  A Mayor, on the other hand, is elected directly and if undesirable he risks not being re-elected or recalled (one recall is easier to manage than four).

I also support Reed’s idea of reducing the number of City Council members.  San Leandro’s City Council is quite large for a city its size but here it’s clear that size does not equal competence.  I can only hope that it’d be easier to find five competent people to sit in the Council than it’s been to find seven.  Reducing the number of City Council members by two will result in some small savings (about $40,000-$60,000), the money could be put into better training or support for the remaining City Council members.

Another issue that needs to be back on the table is that of having district elections. Right now, candidates must live within a particular district to run for that City Council seat but the whole city votes for them.  This has the advantage of making all City Council members accountable to the whole city.  A Council Member from the Marina, for example, is less likely to push the interest of Marina residents at the expense of those in other districts if the whole city will vote for his re-election.  However, running city-wide campaigns is extremely expensive: the greatest cost in any local campaign is that of printing and mailing campaign literature – by having district elections candidate’s costs can be reduced by 1/6th (or 1/4th if we move to a 5-member City Council).  This opens up the election to more candidates, in particular challengers who are unlikely to have the fundraising might of established politicians. It also makes it easier for candidates to get to know their constituents: in San Leandro you still get the most votes by knocking on doors and meeting voters face to face.

Yet another compelling reason to move to district elections is that our current at-large elections may be illegal under the California Voting Rights Act, which prohibits at-large elections when these impair the ability of minority candidates from being elected.  Despite the fact that over half the population of San Leandro is Asian or Latino, neither group is represented in the City Council which might indicate a violation of the Act.  Other Californian cities have been sued by civil rights organizations under similar circumstances and it’s only a matter of time before the same thing happens in San Leandro.  We might as well nip this problem in the bud.

Together with making the Mayor more powerful and the City Council smaller, I think we need to grant the City Council greater oversight powers over the City administration.  Right now the only hiring decision the City Council does is for the City Manager, who is responsible for hiring and firing everyone else in staff.  This has led to an overwhelmingly white workforce in San Leandro and one whose loyalties are towards the City Manager rather than to the city as a whole.  While the City Council should not be micromanaging the city, it should participate on key hiring/firing decisions such as those for the Chief of Police, assistant & deputy City Managers and the Finance Director at a minimum.

As I explored in another posting, San Leandro is in dire need of a Citizens’ Police Commission to evaluate complaints of police misconduct, help set hiring practices and discipline standards and act as a liaison with the community.  Any revision of the Charter should include the creation of this commission – this would ensure that future City Councils with cozy relationships with the Police would not be able to undermine the work of this body.

Council Member Reed also suggested changing our current term limits from 2 4-year terms to 3.  I am not convinced that this is a good idea (though I am convince-able).  It’s extremely difficult for a candidate to run against an incumbent in San Leandro.  Incumbents usually win by large margins.  Since 1970, only one incumbent City Council member has a lost an election.  However, term limits not only get rid of bad City Council members but of good ones as well, and take away some of the historical knowledge the Council can benefit from.  As Council woman Starosciak mentioned at the last City Council meeting, it takes several years for a Council member to come up to speed – and by then they only have a few years left.  Perhaps more importantly, second-term Council members without further political ambitions have no incentives to be responsive towards the community.  This is a matter that should be discussed at length.

There are some other minor things that need to be changed in the Charter as well.  Currently, for example, a Council cannot vote to fire a City Manager within 3 months of an election.  This very much curtails the power of citizens to do away with corrupt or inept City Managers by electing candidates to the City Council without a personal allegiance to him.  As this city should be run for the benefit of its citizens and not City Hall there is no reason to keep this provision.   And it may also be time to take another look at the binding arbitration provisions of the Charter.  These prohibit the Police to strike but give them generous rights to arbitration of their employment contracts.  The Police have threatened to use these provisions to stop any attempts to make them contribute their fair share to their own pensions.

The need to reform the Charter is clear, the question is whether there is the political will to do so.  That’s difficult to surmise right now.