Monday, May 31, 2010

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.


Anonymous said...

You called out Reid, Brooks and Kaplan. Didn't Ignacio DLF also vote in support of allowing Nic Nak to repoen?

Anonymous said...

Excuse me. He was not present for the original vote. But he was one of the four votes, along with Desley, Reid and Kaplan, supporting the delay of the vote.

Fight Blight said...

You are correct that Councilmember De La Fuente was not present when the original vote to approve/deny the appeal was taken. Also, at the last City Council meeting he voted against the delay of the vote as requested by the applicants. In fact, De La Fuente stated that he had reviewed the KTOP video of the prior City Council meeting and was ready to vote. Those voting to support the delay included: Reid, Kaplan, Kernigan and Brooks. Kernigan noted that while she was voting for the delay, she had not changed her position vis-a-vis the legality of approving the Nic Nak. Mr. Pannell lives in Kernigan's District.

David said...

Have you had any luck getting Environmental Prevention in Communities (EPIC) or Alcohol Policy Network involved in the appeal? I'm curious why they are not a part of the appeal, given their appearance at the Planning COmmission on this topic and given their apparent stake in reducing the accessibility of alcohol in Oakland.