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?