Wednesday, May 5, 2010

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?


Anonymous said...

I don't understand, if a majority of City Council members voted to sustain the appeal, why isn't the matter over and done with? How can they possibly need some sort of "supermajority" (not "plurality" as in your post, the definition of plurality is the largest non-majority group when no group gets a majority) in order to get municipal business done? That's just absurd. Is this another example of the City of Oakland institutions not even understanding what their own rules of procedure are?

Anonymous said...

It is outrageous that even after a legal opinion indicating that granting the various would not be legally defensible, many council members would still support it. Outrageous, but not surprising. I share your disappointment with Rebecca Kaplan. As a lawyer, she should definitely know better. Good luck with your continued fight.

Anonymous said...

How childish for you to attack Council member Kaplan. Perhaps she agreed wit the very legal and intelligent analysis given by Council member Brooks. Why make the meeting longer by saying the same thing? Is that leadership? No, instead you suggests she is pandering. And who is she pandering to? Had she gone your way would it be fair to say she is pandering the the gay community? Because that's all we heard last night. We're here, we're queer and we are cleaning up the neighborhood and we don't care who we displace.

Council member Brooks sounded smart unlike her colleagues but because she is black you made her principled position "because of her constituencies". The racism is in your post is hardly veiled.

Come On Now

Fight Blight said...

We have no idea what Rebecca Kaplan's rationale was for supporting liquor sales at Nic Nak. We do know she is running for Mayor and one of her biggest supporters is Geoffrey Pete. We also know anyone running for Mayor needs a coalition of voters including African Americans, to be elected. We think her motivation is clear. She is more than welcome to let Oaklander's know otherwise and can post on this blog.

Desley Brooks position was essentially that Council should bend the laws for Nic Nak because they bend the laws for other projects. Is that a really good legal defense. No. The analysis done by the City Attorney's Office is the correct one. Bottom line, regardless of the laws a concentration of liquor stores is not good for Oakland no matter how you slice and dice it and no matter how you try to justify it.

Whether you believe we are racist or not is your opinion. However, our words speak for themselves. We only connected the dots.

Anonymous said...

Your dots your connecting seems to lack color and direction so what are you really standing up for?

dto510 said...

If the Planning Commission's reasoning was illegal, why did the City Attorney not stop it at that point? The City Council shouldn't have to clean up the Planning Commission's mess; appeals should be about the PC's discretion, not legal issues. If I were part of the Nic Nak appeal I would ask for my fee back based on the City Attorney's ruling that the PC's decision was illegal.

Anonymous said...

Got racism?

Yes, right here on this blog.

Of course the author of this blog only has the purest of motives in her/his heart but someone who disagrees is just "pandering" to blacks.

Of course, if someone "pandered" to the author's point of view then that would just be proof that the panderer was rational.

White is right.

This is the worst kind of racism usually exhibited by white "liberals" who think they are "colorblind" until moments like this when their true colors (no pun intended) come out.

Hopefully, everyone in North Oakland isn't as racist as this blog makes them seem.

Ralph said...

I could be wrong but I thought the whole idea to waive privilege was to seek cover for at least one CM's support of the appeal. I wish they did not and Ms. Brooks and Mr. Reid were right in their votes, but with cover given, I would have expected more from Ms. Kaplan. It is truly disturbing the way that council kowtows to G. Pete and his very vocal race baiting group.

The law is very clear with regard to exceptions and location of liquor stores and now she wants to bend the law because of past discrimination. Ludicrous. she may be picking up votes among poor blacks but she is quickly losing them with the none poor.

Ralph said...

Anonymous, CM Kaplan's non-actions on gang injunction and Nic Nak, it is becoming painfully obvious that she is trying to win votes and not do what is right for the city. And I am not sure what CH broadcast you watch, but Ms. Brooks' did not offer a legal analysis. She simply felt bad for a black man. And I do not care how much a CM may agree with a fellow CM, a CM is going to speak if they think it is in their best interest.

We in the black community complain about a liquor store on every corner. Then when one of us wants to sell liquor within a prohibited zone, we look for all reasons for why it should allow it. Had this been a white man selling in the same location for xx many years, Pete would have been home watching a basketball game.

Fight Blight said...

Anonymous at 1:13 pm and 3:18 pm and 4:13 pm.

Do you understand what "racism" is and what "pandering" means?

Racism: A belief or doctrine that inherent differences among the various human races determine cultural or individual achievement, usually involving the idea that one's own race is superior and has the right to rule others; a policy, system of goverment, etc., based upon fostering such a doctrine (discrimination); hatred or intolerance of another race or other races.

Pandering: yielding to, giving satisfication to; giving what is desired or needed; especially for other motives.

Now tell us, what specifically is racist about our post because we say Rebecca Kaplan, a potential Mayoral candidate, is pandering to the African American voters by voting for a proposed project the City Attorney has unequivocally stated cannot be approved using historical relevance and cannot withstand judicial scrutiny and where the applicant himself has made race and support of African American-owned businesses his leverage point for convincing the Planning Commission and the City Council to approve the project? If it's not pandering to African American voters to garner their support as a Mayoral candidate, then how do you explain Rebecca Kaplan's vote given that she has an urban planning degree and a law degree from two of the most prestigious universities in the country and is well-versed in the legal nuances the City Attorney was addressing. And please be specific. We want to understand your position.

It is so easy in Oakland for people to play the race card to try and shut down discussion when they do not like what others are saying. Yeah, simply label it as racism, rather than discussing and deconstructing the merits of the arguments.

Anonymous, we invite you to clarify your claims of racism, just as we invite Rebecca Kaplan to clarify her vote and support of Nic Nak Liquors. She is after all a City Council Person and a potential Mayoral candidate. She owes it to her constituents in the City to explain herself.

salmonmoose said...

Really gotta love all the whiny "anonymous" comments about "racism racism!" If anything, what went on last night is a great example of reverse racism. A black man wants special accommodation and acceptance of a legally indefensible proposal because, by his own description, he is "a good person". If I had a nickel for every time I think I should have gotten a break because "I'm a good person" I'd be eyeball deep in dollars. Anonymous, I think you pull out the race card because you can't think of anything credible to support your position.

Hey WeFightBlight: I have to respectfully disagree with your position that Desley Brooks showed "leadership" last night. Baloney. All she did was fan the flames of this highly emotionally charged situation and lead gullible people down the garden path, telling them what they want to hear and making them think they have a legal leg to stand on when they DON'T. That's not leadership! If she were truly a leader, she would have voted to uphold the appeal (the RIGHT thing to do) and would thereby have led by example; i.e., We follow the law, justice is COLORBLIND and the rules apply equally to everyone. If you don't like the answer you are getting, why not look at Scenario X Y or Z for ways you can maximize your financial benefit with the property as it is, or by exploring other opportunities. Now THAT would be leadership.

Desley Brooks: You did a fabulous job ma'am, fabulous job.... of guaranteeing that your paying customer G. Peete got his money's worth with your bought vote. It is shameful that the "fabulous job" you performed was near total obfuscation of the issue at hand, and misleading people who look to you for guidance. For all I could see, it was because you seem to thrive on ego stroking, applause and ovation. I have a suggestion for you. Since upholding the laws of this city does not appear to suit your tastes, perhaps you should seek other employ. Since you seem to have a flair for the theatric and absurd, I suggest stand-up comedy.

Rebecca Kaplan... WTF?? Yeah, maybe we could have seen this one coming also. You are another one who seems to think upholding the laws of this city is "optional" and "discretionary." Of all people, you should know better. What a genius move, to further your own political ambitions on the backs of law abiding North Oakland citizens by flaunting in our faces your obvious pandering to the black power broker. Let me assure you, I will work tirelessly with whatever organization I can align myself with to ensure that you NEVER see another term on CC, and that the only part of the Mayor's office you'll ever see is the outside of the office door.

This entire hearing was an unbelievably disgusting example of foppery, incompetence and wishy-washiness that I hope y'all lost sleep over. I thank the Council members who voted to uphold the law, and commend your willingness to make a tough decision. But I can't help but remind you that the need to make occasional tough decisions is an occupational hazard in your line of work. And as far as "tough" decisions go, this one was really a no-brainer.

Anonymous said...

Great coverage. thanks for this.

Anonymous said...

I really am offended by your comments Ralph as they clearly show your lack to remain neutral in regards to this topic. Why would you claim that Brooks is gaining vote with poor black people? Is it not possible for her to also gain support for other races? As a middle upper classmen I am deeply offended by your claims that ONLY poor blacks would support a clearly sound Council women, who in my mind, did her homework and brought up the topic concerning the difference between the beer and wine license and a full license. I would also like to remind you that I am indeed a miniority but I'll let you figure out my race since your so quick to point the finger and lay blame. I
am also in the law enforcement professon and I see this type of finger pointing constanly but your absurd confidence to lay it on a website for all to see is amazing.
For shame....

Anonymous said...

By the way....why does Pete have to watch basketball? Blacks like other sports too...i.e Tiger Woods, Usain Bolt, Venus and Serena, etc.

Fight Blight said...

Anonymous 12:01 AM

The difference between a full liquor license and just a beer and wine license is legally irrelevant to the question of whether a major variance could be granted to Nic Nak using the rationale of "historical relevance". While Desley Brooks raised a number of issues in her defense of Nic Nak she, like the Nic Nak representatives, failed to address the fundamental policy and regulatory requirements. Either she knew what the real legal issue was and chose to ignore it or she did not understand the legal issue. In any event, she disregarded the City Attorney's legal opinion and legal advice. The City is required under its own laws and under case law established through published court cases to make legally defensible findings based on the factual evidence in the administrative record. As someone who is in law enforcement, we would think you would appreciate the need to follow the law rather than breaking the law. Allowing Nic Nak to sell liquor of any kind would have been in violation of City law and would be challenged in court.

Ralph said...

It is difficult for me to take seriously someone who refuses to leave their name. Grow a pair, leave a name stand by your words.

First, after hearing the facts, I am allowed to form an opinion. Pete does not own me. Brooks comments were intended to register with that segment of the population that believe blacks have been dealt an unfair hand and government doesn't work the same for them as it does the white man. A fair number fit older, black, and lower income. Another segment is the sympathetic white liberal, but they don't make up Delsey core. I pointed no finger and laid no blame. Your distinction is not relevant.

Second, Pete has to be watching a basketball game because the hearing cut into my NBA playoff watching time. Had this taken place between 5 and 7pm on Apr 24, I would have said he'd be home watching the Penn Relays. So why do you even need to go there?

Anonymous said...

Ms. Kaplan, the North Oakland community is still waiting for you to step up and be the leader you fashion yourself to be by explaining your vote and support of Nic Nak.