Nic Nak to Return June 1, 2010 for Fifth Public Meeting

The Nic Nak saga returns to the Oakland City Council on June 1, 2010 for its fifth public meeting. For what should have been an open and shut land use decision denying alcohol sales at 6400 Shattuck Avenue, the Nic Nak permit review has turned into a three ring circus replete with accusations of gentrification, racism and intolerance. While most of those charges have come from the supporters of the Nic Nak, including the applicant Ashrious Pannell, Jeffrey Pete of the Oakland Black Caucus and the Uhuru Group, Oakland City Council members Desley Brooks and Rebecca Kaplan have leveled their own accusations against neighbors who are fighting to maintain and improve their quality of life by uniting against what would be the 20th liquor store within a mile radius of Nic Nak in North Oakland and South Berkeley.

The Nic Nak representatives requested a delay in the vote so that their new attorney can come up to speed on the issues. Mind you this is their third attorney who has represented them over the past year. City Council, however, could not even agree on granting the delay, with a four to four vote, requiring the matter return on June 1, 2010 with a tie breaking vote by Mayor Dellums. If Mayor Dellums fails to show for the tie breaker, the matter will be voted on that evening. If Mayor Dellums votes in favor of the delay, the matter would be voted on June 15, 2010. Critics of the delay believe it is intended to provide the Pannell's with one more opportunity to lobby City Councilmembers behind the scenes.

Despite the fact the City's professional Planning Staff and the City Attorney have both come out against the Nic Nak, stating that the City cannot make the necessary legal findings to approve the project, and despite the City Attorney declaring publicly in its legal opinion the City would lose in court should it approve the Nic Nak using the rationale of "historical relevance", Councilmembers Desley Brooks, Rebecca Kaplan and Larry Reid  continue to support additional liquor stores in an already over saturated market.

While Councilmember Reid has been silent about his rationale for supporting more liquor stores, Councilmember Desley Brooks has been quite vocal and passionate in her desire to allow Nic Nak to sell liquor, arguing the City Attorney did not provide both sides of the case and did not provide appropriate citations to support his legal opinion. She also noted that because the City Council has made exceptions in the past allowing liquor to be sold near a school in Downtown Oakland, that justice demands the City Council look the other way and allow Nic Nak to sell liquor despite being within 1,000 feet of another liquor store.  In addition, Councilmember Brooks publicly rebuked those who are opposed to additional liquor sales by stating that she was privy to certain emails that raised the issue of race and that if people where brave enough to raise such concerns under the cover of a private email they should be brave enough to raise them in the light of day at the public hearing, implying that the emails were somehow racist in nature. All the while, she exhorted interested parties to rise above race and focus on the merits of the project. Despite her passionate support of liquor sales, Councilmember Brooks has yet to articulate a rational, legal basis for allowing Nic Nak a major variance.

Meanwhile, Councilmember Kaplan continued to exhibit her bizarre and seemingly poor leadership qualities over the Nic Nak affair. At the May 18th City Council meeting, she made a rambling and embarrassing apology to the audience, yet failed to provide any rationale as to why she wants to bring more liquor stores to North Oakland. However, she did provide some explanation to Robert Gammon of the East Bay Express for his article Kaplan Ensnarled in Racial Dispute. Discussing her vote supporting liquor stores she stated "This wasn't a quid pro quo" for black support.  "The fact is, I couldn't rule against this gentlemen [Pannell] based on what was in front of us." According to Gammon, "Kaplan contended that the anger focused on the store is misdirected because it hasn't attracted crime. And she pointed out that the only reason Nic Nak's permit is up for a vote is because Pannell closed the store for a time. If he hadn't, neighbors effectively would have no recourse to close it down permanently." Discussing the issue of race, Kaplan stated "Think about it, if you run a store that hasn't caused crime and people are trying to take away your permit, might not you wonder whether your race is an issue? And wouldn't you feel that's unfair?"

What is troubling about the political support for Nic Nak is a seemingly complete lack of understanding of the legal requirements and the necessity to make legal findings in approving the major variance. No one has taken away Mr. Pannell's permit. He lost his permit and his right to sell alcohol at 6400 Shattuck under the deemed-approved status for non-conforming liquor outlets by completely shutting down for five years. Moreover, neither Reid, Brooks or Kaplan have offered a sound, legal rationale for approving new liquor sales at Nic Nak that could pass judicial scrutiny. If you want to talk about the merits of  the proposed liquor sales, as Councilmember Brooks has requested, you need to evaluate the liquor sales against the City's stated policies and regulations and make the legal findings either supporting or denying a major variance for the liquor sales. It's not the community that is misdirected as Councilmember Kaplan states, it is Councilmembers Reid, Brooks and Kaplan's blind support for more liquor sales in Oakland.

Maybe, just maybe, these Councilmembers might realize the opposition to Nic Nak is not a racial issue, but a quality of life issue. Maybe they will realize that the claims of racism, gentrification and intolerance are simply a smokescreen intended to confuse the real legal issue because there is no legal rationale to approve Nic Nak. When evaluating whether the City has acted in an arbitrary and capricious fashion to approve a major variance, the courts will not rely on the emotional testimony of the applicants and their supporters, but the regulatory requirements and whether the Nic Nak meets the legal threshold for a major variance. The City Attorney says it does not.

Nic Nak to Return to City Council May 18th

The appeal of the Nic Nak Liquor store is returning to the City Council and has been agendized for Tuesday, May 18, 2010 at 6:30 pm at the Oakland City Hall, 1 Frank H. Ogawa Plaza, Oakland, CA. See agenda item 9.1  (City Council Agenda).

At it's meeting of May 4, 2010, the City Council was unable to either deny or approve the proposed alcohol sales for the Nic Nak Liquor Store. This was due to an insufficient number City Council members and the inability to garner enough votes one way or another. Consequently, the proposed liquor sales remain in limbo. City regulations require this matter to return to City Council until a successful vote either in favor of the appeal or denial of the appeal is achieved. Although the public hearing is closed, the public is still entitled to speak on the matter under Oakland's Sunshine Ordinance and the California Ralph M. Brown Act.

At the May 4, 2010 City Council meeting, Council members Brunner, Quan, Nadel and Kernighan voted consistent with the City Attorney's legal opinion to approve the appeal and deny liquor sales at 6400 Shattuck Avenue. Council members Kaplan, Reid and Brooks voted contrary to the City Attorney's legal opinion to deny the appeal and allow liquor sales at 6400 Shattuck Avenue. Absent from the meeting was Council member Ignacio De Lafuente, who will be a pivotal vote in whether the City Council approves liquor sales at Nic Nak. De Lafuente, like most Council members has struggled with problem liquor stores and bars in his own District.

Since originally being proposed, members of the East Lorin Neighborhood Association, the Shattuck Crime Prevention Council, and numerous residents, as well as We Fight Blight, have consistently stated the alcohol sales at 6400 Shattuck Avenue are not consistent with the the legal requirements of the deemed approved program for non-conforming liquor stores and major variances. This position was supported by the Planning Staff when it originally recommended denial of the alcohol sales to the Planning Commission. A central point of contention has been the fabricated rational of "historical relevance" from the City Planning Commissioner, Doug Boxer, and former City Planning Commissioner, Anne E. Mudge.

At the last City Council Meeting, the City Council, in a highly unusual move, voted to waive its attorney-client privilege with the City Attorney's Office to allow the City Attorney to provide its legal opinion at the public hearing. The City Attorney stated the use of "historical relevance" to approve a major variance for alcohol sales at 6400 Shattuck was indefensible and would be overturned by the courts if it were litigated.

If liquor sales were to be approved by the City Council, the matter would likely end up in Superior Court. This would put the City in the unenviable and untenable position of defending a liquor store despite its stated policy of trying to reduce the number of liquor stores in the City. Since the City Attorney's Office and the Planning Staff have both unequivocally stated the findings for a major variance cannot be met in this case, they would not be in a position to defend the City against litigation. Quite the contrary. The City would likely have to hire a private law firm to defend its interests. Obviously, at a time when the City is facing a major budget crisis, is moving to reduce police services and is asking residents for more taxes, it seems imprudent to approve a project the City knows it will lose in court. Moreover, the City's reputation is already tarnished among Bay Area residents, does it really need more bad publicity over a liquor store? Up to this point, the City has expended a significant amount of staff time dealing with the City Planning Commission's ill-fated decision to approve Nic Nak using "historical relevance". Why toss more good money after bad?

What continues to be interesting are the politicos lining up to support Nic Nak--Kaplan, Reid and Brooks. While there was not much surprise in Desley Brooks supporting Nic Nak, some have wondered why Reid would approve such a project given his own troubles fighting liquor stores in his District. While Reid is sympathetic to African American owned businesses, many thought he would abstain.

Kaplan's vote, while unexpected, has been explained by some as her crass political desires for a Mayoral run and the need to cultivate support among African American voters. Apparently, Desley Brooks is the only Council member who openly endorsed Rebecca Kaplan in her bid for the at-large City Council seat she recently won. Also, the Oakland Black Caucus is endorsing Kaplan's bid for Mayor should Dellum's not run (which is highly likely). Their PAC endorsed Kaplan's bid for City Council too. Now that this matter is returning to the City Council on May 18, 2010, Rebeca Kaplan and Larry Reid can more fully explain to voters why they think approving yet another liquor store in Oakland, despite the legal opinion of the City Attorney, is a prudent decision.

Council member Kaplan has been asked by some members of the North Oakland community to explain her vote. Yet, she has largely been silent and has refused to respond directly to constituents in an apparent attempt to duck the controversy. However, she did speak with Bob Gammon of the East Bay Express (Kaplan Ensnared in Racial Dispute) explaining that she could not support the City Attorney's legal opinion because he failed to provide citations to support his conclusions. One has to wonder how a Stanford and Tufts graduate and her staff couldn't do a simple google search for relevant published court decisions on variances to understand the citations she claims the City Attorney failed to provide. On the other side, there are no published court cases supporting the use of "historical relevance" to approve major variances. Kaplan also alleged that Nic Nak was being unfairly targeted by nearby residents. As much as she attempts to deflect criticism, residents continue to wonder about Kaplan's willingness to trade votes to garner political support, despite the legal ramifications and the impacts to quality of life. Hardly the leader we expected.

City Council Can't Make a Decision on Nic Nak

Tonight, the City Council was unable to make a decision on the Nic Nak Liquor Store. A large number of neighborhood residents appeared before City Council asking the appeal be upheld and liquor sales at 6400 Shattuck be denied. After hearing scores of residents question the use of "historical relevance" as a basis for approving a major variance, expressing concerns about setting a new Citywide precedent, and making personal pleas to deny liquor sales, the City Council voted to break attorney client privilege and allow the City Attorney to provide its legal opinion on whether "historical relevance", a creation of the Planning Commission, could be upheld. In short, the City Attorney stated that if "historical relevance" were presented to the courts as a basis for approving a variance for Nic Nak Liquors it would not be  legally defensible and would be struck down.

Nevertheless, as Oakland politics go, this was not enough for some City Council Members to support the appeal. Both Council President, Jane Brunner, and Pat Kernighan provided thoughtful and well-reasoned rationales for supporting the appeal and the City Attorney's legal opinion. Given that this liquor store is located in Jane Brunner's district, it was anticipated the Council would likely go with Brunner. However, Desley Brooks called for a motion to deny the appeal after an emotional and pointed, although misled, support for Nic Nak. That motion was supported by Desley Brooks, Larry Reid, and Rebecca Kaplan. Jane Brunner, Pat Kernighan, Jean Quan and Nancy Nadel all voted against the motion to deny. There were no abstentions.

Pat Kernighan then moved to support the motion to approve the appeal and deny the liquor sales. That motion was supported by Pat Kernighan, Nancy Nadel, Jean Quan and Jane Brunner. Desley Brooks, Larry Reid and Rebecca Kaplan opposed the motion. There were no abstentions.

In effect, the City Council was unable to make a decision. Apparently a simple majority does not win the day for a motion. A plurality is required. Consequently, the Nic Nak is in limbo. They are unable to sell alcohol as they have no approval for a major variance. For those supporting the appeal, this is not an altogether bad outcome. The City will have to figure out the next procedural step which could include bringing Nic Nak back for a full vote before the Council. Since Ignacio DeLaFuente was absent, his vote could be the determining factor in this case. When this comes back to City Council is anyone's guess. Apparently, this circumstance is quite unusual.

Other unusual or bizarre moments in the hearing included the fact the Pannell's and their supporters did not seem to understand the critical legal issues at hand. The Nic Nak representatives provided rambling and sometimes incoherent and disjointed presentations that failed to address how they satisfied the legal findings for a variance. At one point, President Brunner asked Mr. Pannell's daughter if they had an attorney who could step in and speak before their time was up. The Nic Nak's attorney, Mr. Hiawatha, stepped in and was even more off-point and incoherent, despite the fact that they were given additional time not afforded the appellants.

If you recall, the Pannell's previously had Clinton Killian (perennial Council hopeful, and current candidate for Jean Quan's seat) as their legal representative, but dismissed him in favor of family friend and attorney, Mr. Hiawatha. Most supporters for the Nic Nak were emotional, but failed to speak to the relevant legal or policy issues. Many were timed out and unable to finish their presentations. This seemed to be emblematic of the changes that are occurring in North Oakland.

During the course of the hearing one supporter of the appeal made a reference to approval of the Nic Nak opening the door to allowing other non-conforming uses under the "historical relevance" rationale. They used a massage parlor in Piedmont as an example. This elicited widespread laughter frrom the audience. Yet, one supporter of the Nic Nak took umbrage to this and made intimidating verbal and physical gestures to residents supporting the appeal. An Oakland police officer had to step in and address this individual. At the conclusion of the hearing, some supporters of the appeal were concerned enough to ask the City Council President, Jane Brunner,  for a police escort upon leaving the chambers.

What is certain in all of this is that Mayoral hopeful, Rebecca Kaplan, has lost a tremendous amount of cache in North Oakland. While her progressive politics and her focus on attracting business in Oakland plays well to many North Oakland voters, her naive and obvious pandering to Geoffrey Pete and African American votes by supporting the Nic Nak may have misfired quite badly. Many North Oakland residents were sadly disappointed and outraged by her lack of leadership. In fact, Kaplan failed to provide any rationale for her vote and was totally silent when an opportunity came to discuss the matter, yet voted to support the Nic Nak's ability to sell liquor despite the City Attorney's legal opinion stating it was not legally defensible. This is similar to her deafening silence on the City Attorney, John Russo's, injunction on the Northside Gang in North Oakland which is strongly supported by Chief Batts ( Gang Injunction). Despite requests to clarify her position on the injunction, Kaplan has been silent. Is this the type of Mayor we want? Despite her degree from MIT, her MA in urban and environmental policy from Tufts and her JD from Stanford, she doesn't seem to understand basic land use law, or at least is willing to disregard it for votes from the African American community. Come on Ms. Kaplan! We expect and want more from our our elected officials who are here to represent all of Oakland. We are disappointed, to say the least.

Desley Brooks and Larry Reid were expected to provide some support for Nic Nak given their polictical constituencies. While we disagree with Desley Brooks' position, we have to give her credit for making a spirited defense of Nic Nak, something that Rebecca Kaplan failed utterly to do. That's leadership. Rebecca Kaplan's apparent lack of understanding of how this issue plays out throughout Oakland is astonishing, given her role as the at-large City Council Member. North Oakland residents will not forget this at election time and will make sure others in the city understand her role in attempting to weaken the deemed approved status for non-conforming liquor sales and opening the door for other non-conforming land uses for her personal gain. 

This matter is not over. Both the City Planning Staff and the City Attorney are now on record stating the use of "historical relevance" is not defensible and has no basis in the Oakland Planning Code--something we have been stating from day one. This is a sheer fabrication of Planning Comissioners, Doug Boxer and Anne E. Mudge, the two Planning Commissioners who originally led the charge to approve liquor sales at 6400 Shattuck. For Anne E. Mudge, a respected land use attorney, this has to be a professional setback that her future clients must question. For Doug Boxer, the son of Barbara Boxer and a political hopeful, one has to question his judgment and his ability to wade through tough legal issues.

If the City ultimately approves the liquor sales at Nic Nak, the matter will most certainly end up in court. The City will spend limited tax dollars and staff resources defending a liquor store, resources that could and should be used for public safety and other core public services.  Yes, that is Oakland for you. We will take away resources from public safety to defend a liquor store.... a liquor store the Planning Staff, the City Attorney and scores of residents all agree should not be approved. Core priorities?

NIc Nak Liquors coming to City Council Tonight

As a reminder, the Nic Nak Liquor Store is coming to the City Council tonight on Appeal. The matter will be heard at 6:30 pm at 1 Frank H. Ogawa Plaza, 3rd Floor, Oakland. City Council Agenda (page 8 of 12). You can also access the staff report here Staff Report.

This may prove to be an interesting public hearing. The owners of the Nic Nak, the Pannell's, have circulated fliers in the adjacent neighborhood requesting support for "Your Neighborhood Merchant", but failed to note the issue is related to alcohol sales, not the convenience store sales. They are even offering free rides to the meeting for their supporters in a classic election day get out the vote maneuver. This is important since the Pannell's and the bulk of their supporters do not even live in North Oakland. Whether they intend to use the same tactics employed at the Planning Commission Meeting is another question. The City Council may not have the patience for such theatrics.

Approval of alcohol sales at 6400 Shattuck under the rationale of "historical prevalence" will gut the deemed approved status for non-conforming alcohol outlets and will allow such a rationale to be used anytime anyone wants a variance. This will open the gates to unwanted land uses throughout Oakland and has to the potential to significantly affect the quality of life for residents in neighborhoods throughout the City.