Planning in the Dark
A remarkable citizen-driven planning effort that took two years and more than three million dollars in consultant fees and City staff time recently culminated in a preferred scenario intended to guide a General Plan update. (See River City.) The participants, including a number of city commissioners, unanimously approved the final form of their vision for future waterfront development on November 23. It will go to the City Council for its stamp of approval next, tentatively scheduled for February 11.
Now the City Attorney's Office has informed the participants that their preferred scenario can't be implemented because of legal constraints on waterfront properties within the area the General Plan Working Group focused on. The attorney's opinion bears directly on a question that comes up repeatedly around the VMT/Orcem project with regard to bias on the part of Councilmembers. While fairness would dictate that there should be no bias shown in advance either for or against a project, that isn't the legal interpretation.
The Nasha case that the City Attorney refers to in the following note is only about showing bias against a project. An applicant like Orcem who has already invested heavily in the application process has a right to a fair hearing in front of the decision making body, or they may be able to sue to recover their investment. The public has no corresponding right to insist decision makers not show bias in favor a project in advance, for a number of reasons. For one thing the public ecompasses diverse opinions and interests, including those who think heavy industry is a great idea for our waterfront.
Our protection comes through the ballot box where we get to choose the decision makers. Obviously we need to start making better choices. The Attorney's Office is also warning against the legal hazards of 'downzoning' properties, the idea being that if the new zoning resulted in lower property values the owners could sue to recover damages under the takings clause.
Here's how the City Attorney is thinking about this issue.
Voices Note - We received the following request from the City Attorney's office after publishing the Attorney's Note verbatim. The copy in wide circulation is no longer marked confidential.
"Name Donna Mooney, Chief Assistant City Attorney
Subject Removal of attorney-client privileged material
Message To Whom it May Concern,
Please immediately remove confidential attorney-client privileged material that has been posted on your website. The material originated from the City of Vallejo City Attorney’s Office on December 3 and was sent to recipients with the following label : **CONFIDENTIAL / ATTORNEY-CLIENT PRIVILEGED COMMUNICATION** (Please do not forward this email.)
The City Council, the highest decisionmaking body of the City of Vallejo and client for purposes of the attorney-client relationship, did not authorize waiver of the privilege, including waiver through dissemination of the material beyond the named recipients. The material is presently at beginning with the subhead “City Attorney’s Note to Commissioners” and ending with a dotted line.
Thank you in advance for your prompt action so that the City of Vallejo may preserve its attorney-client privilege over the material. If you have any questions, I can be reached at the telephone number listed below. Donna Mooney, Esq. Chief Assistant City Attorney City of Vallejo 707-648-4548 "
Voices: Since we can't reproduce the City Attorney's Note as written, we will paraphrase each paragraph and present the main points.
Gist of the CITY ATTORNEY’S NOTE TO COMMISSIONERS (paraphrased version):
The General Plan Working Group, Economic Vitality Commission, and Planning Commission conducted a joint meeting on November 23. The purpose of the meeting was to discuss and approve a Preferred Future Scenario, the culmination of a two year planning effort. An updated General Plan Map and Zoning Map will be based on the proposed land use designations shown on the Preferred Scenario map approved by the Working Group and Commissioners.
The Attorney's Office heard that the designation of the former General Mills site was discussed at the meeting along with some others where the owners have a land use application already in process. They understand that one of the Vallejo Marine Terminal principals addressed the meeting along with members of the public.
The discussion resulted in a "Light Industrial" zoning designation for the General Mills site. It is the opinion of the City Attorney that a heavy industry use of the site would likely not conform with a "Light Industrial" designation, even though the classification is still in the concept stage without a detailed list of the uses that would be allowed.
The proposed VMT/Orcem project requires a Major Use Permit and the City Attorney considers it to be "heavy industry." The City is currently writing the final EIR and Responses to Comments to the draft version. They're projecting a public hearing on the project in January before the Planning Commission with a City Council hearing shortly after.
The City Attorney expressed concern that the City could incur legal liability with the results of the November 23rd meeting, and that the actions taken could negatively affect the decision-making process when the VMT/Orcem project comes up for review. The Attorney's Office points out that by approving the Preferred Scenario map the Council would be indicating a general support for the zoning designations. That can be enough to impact property values when prospective financial investors look to City documents for indications of future zoning designations.
When zoning changes to a General Plan may cause a loss in property values, a property owner can make a legal "takings" claim against a City. The Attorney urges great care be taken any time this type of change is even discussed by a public entity. These legal actions tend to be expensive for all parties and the City Attorney's Office should be consulted any time "downzoning" of a property will be discussed.
Changes to the zoning designation of a site where applicantions like the VMT/Orcem project are in process are a particular source of worry for the City Attorney. The applicants have spent a considerable amount of money to develop a project that depends on existing zoning designations. They principals would have greater incentive to sue for significant damages.
The City Attorney points to the Nasha v. City of Los Angeles legal precedent where a member of a Planning Commission made public statements that could be interpreted as an indication of bias against a project ahead of a public hearing. Project applicants have a right to a hearing before fair and impartial decision-makers. Public statements in advance opposing the project or land uses that it would allow can indicate disqualifying bias. Expressing the desire to change the zoning in a way that would shut out a proposed project may be enough to demonstrate an unacceptable probability of bias that would disqualify an official from participating in the decision.
The Attorney's Office concludes by stating that they believe the November 23rd discussion representing the culmination of a two year, three million dollar planning effort was "potentially inappropriate," and would you please stop talking about it before we get sued. They recommend that the map that resulted from the citizen driven planning process simply be changed now to reflect the sites with pending applications on the version that goes to the City Council. While they say the ideas illustrated in the Preferred Scenario map would be shared with the Council and public, some would not be included in staff recommedations, and it can all be reconsidered once all those applications are processed.
They give assurances that the City Attorney's Office will be working closely with the General Plan team "moving forward," to figure out where there might be legal constrants not accounted for in the Preferred Scenario map.
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Moving forward? Maybe someone should have thought of that before spending three plus million dollars and all that time coming up with a vision that they now say can't be implemented because of the legal and site constraints. Those constraints were in place when the General Plan update process started. It's not like these things suddenly popped up. We need to figure out where this communication disconnect happens and fix it.
Apparently the City Attorney thinks any commissioner who voted to approve the preferred River and Bay City vision will have to recuse themselves when VMT/Orcem comes before them. Voting to approve a zoning map that would exclude the project certainly could be interpreted as bias against the project. Expect Ms. Quintana to explain, though, how the Nasha case doesn't apply to expressions of bias in favor when VMT/Orcem comes before Mr. Malgapo and company for approval.
The General Plan Working Group is looking for ways to keep their vision and the results of all that hard work alive, even if it can't be adopted in the short term. There will be a presentation ready for the February meeting with the City Council and they will need our show of support. Here's a sampling of some of the initial reactions from the Group to the news that the staff intended to make changes to the results of their years long planning process:
- "If the Attorney’s interpretation and advice are to be taken into consideration, there would be no alternative other that postponing any further approvals of the General Plan Update and its Preferred Scenario until all matters are resolved one way or another.
Furthermore, all planning commissioners present have already expressed support for the Vision that conflicts with the VMT-ORCEM application, so all would theoretically have to be recused from further voting. To assume that commissioners tasked with developing and approving a long-term vision for Vallejo have somehow crossed the line by showing bias, and supporting a vision that may not align with a current land use application is difficult to comprehend.
If the threat of litigation is so great that honest work to develop an update to a general plan for the city might interfere with a developer’s rights, then all progress on the general plan must be stopped immediately and a blanket moratorium must be declared on all future land use applications until a general plan with zoning updates is fully approved."
- "The city staff, following the advice of legal counsel, is attempting to alter and suppress the vision of the citizens of Vallejo, as represented by the General Plan Working Group, the Economic Vitality Commission and the Planning Commission. All three commissions discussed and approved the Preferred Scenario for Vallejo referred to as “The River and Bay City” scenario at a joint meeting on November 23rd at the Mare Island conference center.
Much discussion and review took place during the meeting with an outcome approving the scenario as presented by the consultants together with additional notes and an accompanying colored land use map. The proposed land use map included in the approval was also the topic of in-depth discussion, showing continuous waterfront public access with trails and open areas along the entire waterfront from the downtown Brinkman’s boat launch to Sandy Beach Road in South Vallejo.
Members of the General Plan Working Group have been advised verbally, followed by a written legal opinion from the City Attorney’s office that the vision and land use indicated on the map cannot be presented as the commissions voted on because it may interfere with the rights of the applicant for the Vallejo Marine Terminal. This decision totally favors the applicant at the expense of suppressing the vision for the waterfront as expressed and voted upon by the members of the three commissions.
Should it be determined that the Vision of the GPWG cannot be accurately conveyed graphically on a land use map and in written documentation, the general plan approval process should be paused and not presented to the City Council until the conflict of interests can be settled one way or another, including potential court decisions. Otherwise it would be permissible to simply indicate on the preferred scenario land use map that there is a potential conflict in the area of the old Sperry flour mill site that might result in limited access along the waterfront or elsewhere on the property. In any case the vision, and unanimous vote, of the commissioners representing the citizens of Vallejo must be accurately depicted in documents and maps."
- "...you informed me that modifications were being made to the plan and/or map that was previously presented at the joint meeting of the General Plan Working Group, the Economic Vitality Commission and the Planning Commission on the 23rd of November. All three bodies approved the plan including the documentation and colored map as presented by the consultants along with the accompanied comments which were to be incorporated into the document.
If changes to the approved scenario plan or its accompanying map are being proposed subsequent to the vote on November 23rd that already approved the scenario, then it needs to be presented once again for consideration and a new vote.
I am referring to the overwhelming desire, of practically everyone present, expressed verbally by several participants, concerning the long-term vision for Vallejo to transform the entire waterfront from the Brinkman’s boat launch to Sandy Beach road, enabling public water access and beautification with trails and public spaces.
The benefits of such a plan are unquestionably sound and needed:
1) Continuity of the San Francisco Bay Trail along the bay.
2) Connection of the California Maritime Academy to the downtown enabling a safe and efficient way for cadets to go and from the downtown on bicycles.
3) Connect South Vallejo residents to the downtown, enabling a safe and easy access by foot or bicycle to the downtown area.
This aspect of the “River & Bay City” scenario was by far the most sought-after element in all the workshops throughout the city in the recent months.
It is imperative that those concerned meet and discuss the ramifications of altering that which was presented to the General Plan Working Group.
If there is a perceived conflict with a current project application that conflicts with the long-term vision of the residents of Vallejo that has been so clearly stated, then it can be done with an asterisk and a footnote on the map, if need be."
- "As a General Plan Working Group Member, I see the need for planning for the waterfront regardless of the Orcem VMT project. As Andrea has often said, this project is not a done deal. What if the project is not approved? The citizens of Vallejo and the GPWG members need to be able to plan for that circumstance. Clearly, the vision expressed at the November 23rd Joint Meeting for Vallejo's waterfront is different from what is currently in the works. That vision needs to be kept as a possibility and the only way to do that is to plan for it.
Therefore, we need to find a way to maintain the results of the November 23rd meeting. What if council was to hold off on voting for the preferred scenario until after the Orcem VMT approval vote? That way the council would not be showing a bias towards a different scenario from Orcem VMT. Remember, we are planning for the future of Vallejo, not simply fighting for or against a particular project."
- "...I reflected on the main piece of information ..., namely that the Draft Preferred Scenario Map cannot be considered as authoritative because it shows a narrow green band of "Open Space" along the east side of the Mare Island Straight. That particular 'feature' was the subject of specific discussion at the meeting, and -- in my opinion -- its existence figured importantly in the GPWG's vote to accept the document for forwarding the City Council.
The change to the map in that area... described as being necessary because of previous arrangements between the City and private interests effectively nullifies the GPWG's action. I believe that at the next meeting the matter needs to be reviewed and re-voted upon by the General Plan Working Group, the Economic Vitality Commission, and by the Planning Commission. I expect that the 'imperative' of the schedule may be cited as preventing this but if necessary the schedule must by adjusted!"
- "At the last GPWG joint meeting members were told that the comments we made as a group would be incorporated into the "Draft Future Scenario Notes and Map" going to Council for approval on Dec 22? (the day after our next GPWG meeting?). We were told that the map and notes would be updated to incorporate comments. At the conclusion of the meeting the GPWG, the Planning Commission and the Economic Vitality Commission voted to approve the document with comments and map changes made during the meeting.
Today, Jan 2, ... called to alert me to the following:
a) Continuous public access along the waterfront would not be shown on the map going to council but in another section of the final plan
b) Industrial uses would be shown adjacent to the waterfront on at least two sites, (the location of the 65 yr Kiewit lease and the site of the pending VMT/Orcem Project).
Showing this development pattern as the GPWG approved "Draft Future Scenario Notes and Map" is not only an inaccurate reflection of comments and map changes requested at the meeting, but is entirely inconsistent with the long range development of the Eastern side of Vallejo Straight as a mixed use, publically accessible waterfront which GPWG members and the general public has envisioned throughout the 2 year planning process. (Non conforming leases or pending projects cannot be allowed to shape a long range vision for the City).
Given that the map and comments are apparently not consistent with the version approved at the 11/27/2015 meeting (as reported ... today) , the final version needs to be reviewed and voted on again at our next meeting.
The process for approval of the "Draft Future Scenario Notes and Map" has the taint of being rushed through by staff with "unseemly haste" and sent to council for a final vote. It would better to have an approval firmly grounded in the knowledge that council appointed decision making bodies have fully vetted and agree with the document they are approving.
Vallejo needs to focus on its major amenity and follow the model of many older cities which have successfully renewed their downtowns and aging industrial waterfronts by encouraging recreation oriented public and mixed use housing/commercial/educational development."
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These people have worked hard to create an alternative vision to the heavy industry port model that the VMT/Orcem project represents. When this comes up for a hearing in front of the City Council, we need to show up and voice our support. Right now that meeting is tentatively scheduled for February 11, 2016 at 6PM, and we'll post when the date is confirmed.