Wednesday, May 12, 2010

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.


Weary Traveler said...

Dear Ms. Kaplan,
Did you get your law degree out of a crackerjacks box? It is too bad they apparently didn't cover the meaning of the words "illegal" or "cite" at your school. Citing prior case law implies that a legal precedent of some kind exists. Illegal means.... come on, really?

The planning commission cooked up this "historical relevance" crap out of the clear blue. I am dying to know.... just what sorts of citations were you expecting to see, since the phrase doesn't appear anywhere in Oakland's municipal code.

Epic FAIL. See you on the 18th.

Anonymous said...

It is highly frustrating to see educated politicians like Rebecca Kaplan make decisions like she did on Nic Nak. I also read the East Bay Express by Gammon to understand her reasoning for supporting the sale of more alcohol in our neighborhoods and found her explanations lacking. I googled the words "historical relevance and land use variance" and cannot find one bit of information on how historical relevance relates to a variance except as it relates to Nic Nak. While Ms. Kaplan gave a weak reason for not supporting the appeal, she gave absolutely no defensible reason to approve more liquor sales and its consistency under current city regulations.

Come on Ms. Kaplan show us where in the Oakland regulations that an exception can be made to liquor sales because Mr. Pannell is a nice guy and has owned a business/property in the neighborhod for many years. Planning laws are intended to be rational, objective standards that apply to all so as to avoid favortism. You should know that since you attended law school and an urban planning program. Or did you miss class those days planning your political career?

teacherlady said...

If you'd have been at Kaplan's fundraiser last night, you would understand her passion for liquor stores. It was like a frat party.

Anonymous said...

Stanford. Pah. Go Bears!

Anonymous said...

Nancy Nadel and Jean Quan did not speak about why they supported the appeal. hhmmm.......

Anonymous said...

As a Oakland homeowner near 6400 Shattuck, as a member of the bar since 1991, and as an African American woman, I have watched the debate about Nic Nak with burgeoning horror and disgust.

As an attorney (though I note that her bar membership is currently suspended for the second time), Rebecca Kaplan should know that "historical relevance" is legally indefensible. Which will result in the City of Oakland wasting several hundred thousand dollars in unwinnable litigation. All in the name of racial pandering.

I do not expect more from Desley Brooks, who has never been admitted to practice law in California (and thus has a questionable grasp on legal analysis), who never passes up an opportunity to engage in cronyism, and who loves grandstanding on racial politics more than any other of the council members.

Kaplan and Brooks attempted a pathetic rationale that the city attorney's opinion was not supported by case law or statute. That's because "historical relevance" was pulled out the ass of the Planning staff and is as make believe as the Easter bunny and the Tooth Fairy, about which there are no case law or statutes either.


Happy Trees said...

If the liquor sales does not work, they should have a marijuana dispensary at that location. perfect location because it is already secure.