Sites designated for port use are marked with the ship symbols while those allowing water-related industry appear as little factories. The site of the proposed Vallejo Marine Terminal is not designated for port use. It would take an amendment to the Bay Plan by the full Commission to permit the port operation that VMT pitched to the City and the public as the purpose of their project. They could apply for such an amendment, but must realize by now that they won't get one. In the interests of limiting additional fill in the Bay and maintaining public waterfront access, BCDC forecasts the regional need for port capacity and limits new facilities accordingly. Here is how the agency is thinking in terms of updating their Seaport Plan:
"There are two ways to accommodate growth in waterborne cargo:
(1) by constructing new marine terminals—generally requiring at least some Bay fill and dredging or
(2) by increasing the rate and volume of cargo moved through existing marine terminals with
investments in capital or labor. This update of the Seaport Plan follows the trends of the
maritime industry and focuses more on the latter strategy. Since 1988, when the Seaport
Plan was last updated, the volume of cargo coming through the Bay has increased as predicted in the cargo forecast. At the same time, the number of ship calls has declined and only one new container terminal has been built, although the Seaport Plan predicted that six additional container terminals would be needed to handle the cargo growth. Clearly, productivity gains have been achieved by improving the efficiency of existing facilities, and this approach is more cost effective and timely for the maritime industry than building new, capital intensive facilities."
All those long-term economic and public benefits promised to flow from the VMT port operation in the major use permit application and public relations campaign aren't going to materialize. Now the applicants are left hoping they might persuade the BCDC to let them build a terminal and move some break-bulk cargo for a temporary period, while they recruit more heavy industry tenants that process on site and don't mind cement mill neighbors. Apparently they also hope we don't notice that the purpose and description, as well as the environmental and economic impacts of the project have changed significantly. We're expected to defer our right to plan for the future of our community in favor of this hot mess? The public planning process appears far more defensible on the grounds of fairness and integrity than the VMT permit application process has proven to be.
Maybe our City Attorney fears the applicants might sue to recover economic losses resulting from a 'taking' of private property for public purposes, similar to an eminent domain action. When we consider the opportunity cost of approving the project coupled with the ridiculously low price they paid for the property in foreclosure, it would be well worth it. The obvious question, though, is how could we possibly take what they never had? Whether the City granted a major use permit or not, the port use they applied for was not going to be approved by the BCDC. A change in zoning to Commercial and Light Industry under the preferred general plan update scenario would preserve the economic value of the site by allowing a broad range of potentially profitable uses. The fear of legal action based on a reduction of the economic value of the property is unfounded, and unreasonably conservative when weighed against the public interest in community planning.
The Vallejo Marine Terminal applicants had every chance to come up with a coherent project proposal capable of meeting the regulatory requirements but failed to do so. We have more than satisfied any notion of preserving the integrity and fairness of the application process. If the discovery of the BCDC permitting authority came as a late surprise, the applicants have no-one to blame but themselves. The information is easy to find. Preserving the integrity and fairness of our public planning process far outweighs any concern over private interests who took a business risk with a permit application. They can still find plenty of economically valuable uses for what remains a unique and beautiful location.
The heated opposition generated by this project application stems from public recognition of the pivotal nature of this decision for future economic development and the character of Vallejo for many decades to come. The ill-considered VMT major use permit application did not establish any legal right to be evaluated under the old legacy zoning. The appearance of backroom dealing and private interests receiving unwarranted special treatment harmful to the public interest shakes confidence in the fairness and integrity of local government. Our new Council could go a long way toward restoring public trust by putting our general plan update process back on track based on the preferred scenario that truly represents the outcome of our public planning process. We've waited far too long already.
Over the protests of the General Plan Working Group, our City Attorney dictated that for the proposed VMT project site "the application designation shall remain until the development review process is complete, thereby retaining the integrity and fairness of the application process." How is it fair that the interests of a handful of individuals who saw opportunity in the depths of a financial crisis now be allowed to cripple the ability of our community to plan for its future? The courts do not subscribe to that interpretation of integrity and fairness. A city is well within its rights to update its general plan and zoning codes on its own schedule regardless of pending permit applications. California courts have consistently ruled that only when a permit or vesting map has been approved do applicants retain the right to build a project following a zoning change that would otherwise preclude it.
The VMT applicants have been issued no use permit or vesting tentative map, and certification of a badly flawed final environmental impact report will not stand up to certain legal challenge. The preferred planning vision for a connected southern waterfront with public access would be denied for more than sixty years if this project were approved. The City's current position does not reflect a balanced perspective, and the fear of litigation can't be allowed to outweigh the public interest in retaining the right to plan for our future. Protecting the legal interest of the City should involve more than just trying to avoid lawsuits.
When we examine the application process for the VMT/Orcem major use permits, the integrity and fairness our City Attorney wishes to retain at such high cost is nowhere in evidence. While the planning process for the future of our southern waterfront languishes, the environmental review process has dragged on far beyond what was forecast because the project application was not fully developed and the analysis premature. VMT applied for a City permit for a use that is not even in the City's power to allow. A state agency, the Bay Conservation and Development Commission, also has jurisdiction and will not issue such a permit. The applicants have been selling their project to the City Council and the public for years based on a business plan that was never viable to begin with.
The VMT application dated December of 2012 affirms that the purpose of the project is the "construction of a modern deep water terminal, and revitalizing existing trucking and rail connections, primarily servicing the import and export of bulk and break-bulk commodities." Without the general plan update this kind of heavy industry would be permissible under Vallejo's legacy code for the old General Mills site. The BCDC manages the coastal zone for the entire Bay and issues permits for water-related industries that process materials on site, like the former General Mills operation. The BCDC also permits port operations that engage in the transfer of bulk and break-bulk cargo - the use that VMT applied for as the primary purpose of their project. So what's the problem? After all, the site used to have a functioning marine terminal before General Mills walked away in 2004.
General Mills was considered a water-related industry under the Bay Plan. The Orcem cement milling operation would also qualify as an on-site processor. VMT applied for a permit to construct a marine terminal for the primary purpose of moving cargo through a port facility without processing. Those are separate and distinct use classifications. A map on the BCDC web site shows the location of sites designated in the Bay Plan as either port or water-related industry.