Oakland--First World Taxes, Third World Services

The Oakland Tribune recently reported that due to the city's "truly unprecedented" financial crisis, the City Council may be placing both a parcel tax and a utility tax on the November ballot to generate more revenue ( New Oakland tax measures.). The City of Oakland already has some of the highest combined taxes in the west. Overall, the city's annual budget for FY 2009-11 is approximately $1.1. billion dollars (Oakland City Budget). Yet,  the city is unable to use existing revenues to balance our budget and maintain infrastructure and wants more money from residents. Its hard to imagine how overtaxed middle class residents are going to be willing to fork over even more taxes when most feel they don't get their money's worth to begin with.

City Councilmembers and the City Administrator, Dan Lindheim, suggest the budget problem is due strictly to the dire state of the economy. There is no doubt revenues across the board are down. While all local governments in the State of California face the same problems of reduced tax revenues due to the poor economy, not all all share the same massive budget problems as Oakland. In the City of Oakland, Councilmembers and the City Administrator alike are framing the budget quandary to force residents to pony up more tax revenues--give us more money or we will cut core police and fire services. Certainly, there is more to this story than the poor economy.

The City Council's recent demand for more revenues is largely a scare tactic to cover up the mismanagement and lack of leadership among the City Council, the mayor and the City Administrator. Their rationale for new taxes is that a good share of the city's budget is consumed by voter mandated programs, such as Kids First OO and Measure D, Measure Q for libraries, and Measure Y for Violence Prevention and Public Safety, and because they have already cut other programs to the bone, they need more revenue from John Q. Public or they will be forced to cut police and fire which make up the majority of the General Purpose Fund. If police and fire are not to be cut, they proclaim a need to eliminate wholesale senior citizen services, libraries and parks.

Of the approximately $1 billion of revenue, approximately $421 million is the General Purpose Fund budget. Of that $421 million approximately 88%, or $369 million, is mandated for certain programs. This of course all depends where you pull the numbers. (Oakland Budget Office) (Balancing Measures FY 2009-10 Budget Shortfalls) (Oakland City Budget Facts). Of course there are alternatives to additional taxes including repealing all voter mandated programs or suspending them to allow discretion in re-directing revenues to provide core city services like police and fire. These measures would have to be taken to the electorate in the form of ballot measures not unlike new taxes. However, that tough solution seems to have eluded City Council, the Mayor and the City Administrator.

Nevertheless, what is being ignored here is any discussion on the mismanagement of city finances and the lack of leadership among City Councilmembers, the Mayor and the City Adminstrator. As early as July 2008, concerns were being expressed about the revenue projections of former City Administrator Deborah Edgerly that relied on rising property tax and transfer tax revenues at a time when the economy was tanking. In 2008 the City Administrator and City Council also were drawing down the City reserves from $70 million to $15 million. Despite furloughs, elimination of vacant positions, and other budgetary measures, the then $15 million dollar deficit eventually ballooned to approximately $114 million (cumulatively). This was largely because City Councilmembers, the Mayor and the City Administrator failed to make realistic revenue projections and failed to act swiftly enough and cut deeply enough to stem this massive budget deficit.

Why neither Councilmember Jean Quan, as the Chair of the Finance Committee, or Dan Lindheim as the City Administrator have been able to get a handle on revenue projections and their relationship to the budget deficit is a mystery. Budgets involve revenues and expenditures. If revenues are going down, expenditures must follow at an equal or greater rate or you generate a deficit. 

Another glaring lack of leadership revolved around the Kids First debacle. When the voter approved Kids First Measure OO went back on the ballot for a second time as Measure D seeking even a greater piece of the budget pie, every City Councilmember knew that the program was a budget buster. At that point, the City was projected to be $50 million in debt. Yet, none of the City Councilmembers, including Jean Quan who is now running for Mayor, took an active leadership role to campaign against the Kids First revenue grab. They all saw that train wreck coming, but did nothing to repeal Measure OO altogether. In fact Jean Quan actively negotiated a compromise that put Measure D on the ballot and guaranteed Kids First a significant slice of the City budget, albeit at a lower rate than Kids First originally sought. She then spun it as a budget saving measure and a necessary compromise at a time when the city finances were in disarray and going downhill fast.

On another front, the city has allowed tax dollars to be spent on sending staff to attend Eskimo yo-yo making classes in Alaska and other excessive out of state travel that occured in 2007-2008 as revealed by the Alameda County civil grand jury (Frequent Flying Staff). All the while, Mayor Dellums continues to spend extravagant amounts on his Washington expense account for top five star hotels, exclusive restaurants, limousine service and a chauffeur (Ron Dellums Living Large). Ironically in a September 27, 2008 SF Gate article, Chris Heredia quoted Mayor Dellums in response to our budget woes as saying that "At the end of our review, we came to the conclusion: Oakland is living beyond its means. As mayor, my job is to speak the truth, as painful as it is". It is certainly true that some have been living large at the public trough, including our Mayor. Yet our City Administrator Dan Lindheim and Councilmember Jean Quan routinely dismiss such boondoggles as being so small they are irrelevant to the overall budget problem.

On still another front, the City Auditor has refused to take a 15% budget cut that other politically elected officeholders agreed to. It's no wonder the city's budget deficit seems to grow and grow and grow.

Now that the city has dug itself a huge budget hole, we have to wonder why City Councilmembers and the City Administrator Dan Lindheim have chosen to frame the budget problem as one of raising more revenue through additional parcel taxes, rather than one of repealing voter mandated measures, such as Kids First, to allow greater discretion in the use of all existing revenues so that core city services, such as public safety, can be maintained. Oakland has first world taxes, but third world services. The problem is lack of leadership and an unwillingness to tackle the real problem--voter mandated spending, mismanagement of existing revenue and a failure to set core priorities. City Councilmembers are unwilling to discuss repealing Kids First because it is like the third rail of politics in liberal Oakland.

Meanwhile, our public infrastructure seems to be crumbling before our very eyes and has a direct effect on reducing the volume of taxes we collect. The city uses very little of its discretionary budget to maintain infrastructure such as roads and sidewalks. The paving cycle in the City of Oakland is 80 plus years. That's right, the city streets get paved once every 80 years or so. Maintenance of infrastructure, such as roads and sidewalks, is commonly viewed in the United States as a core local government service, as are police and fire. In the City of Oakland they are not. The city relies on state and federal tax dollars to repave city streets. This money, which is subject to state and federal budgetary issues, is largely metered through the Metropolitan Transportation Commission.

Roads that are full of potholes and sidewalks that are significantly deteriorated have a direct affect on the city's ability to maintain and generate a higher volume of tax revenues. If our basic infrastructures is falling apart and creates blighted conditions, it signals to others the poor state of our local economy, the poor health of our local government, and the inability of the city to maintain core services. These conditions, on top of already high tax rates and high crime rates result in fewer people interested in locating in Oakland, fewer businesses willing to operate in Oakland, and fewer people interested in recreating and shopping in Oakland. This means lower demand for housing which results in lower home prices and lower property tax revenues and transfer tax revenues. This also means lower business taxes, hotel taxes and sales taxes because the lower overall volume of businesses and shoppers. Think of all those people flocking to San Francisco, Walnut Creek, and Corte Madera for their safe, clean, pothole free shopping experience. Oakland is one of the lowest sales tax generators in the Bay Area. Ever wonder why?

In North Oakland, residents have been complaining to the Public Works Department and for the past year about the poor state of Shattuck Avenue between the Berkeley border and 55th Street and torn up sidwalks on Tremont Street. The City Public Works Department has made several half-hearted efforts to fill some potholes and to put asphalt over concrete sidewalks. Still Shattuck is rapidly deteriorating and has numerous potholes that are a safety hazard to bicyclists and motorists and the deteriorated sidewalks on Tremont Street have already caused one serious injury. Frustrated residents have even taken it upon themselves to mark numerous potholes with spray-paint on Shattuck between Alcatraz and 65th Street, as a warning to motorists and bicyclists. The city cannot provide basic core services such as filling potholes and fixing deteriorated sidewalks that are safety hazards, yet they want more money. Interestingly, as part of the proposed budget solution the city will reduce the street and sidewalk maintenance program by eliminating five vacant staff positions in the Public Works Agency. This reduces the number of concrete grinding crews from three to one for the entire city.

To the City Council and the City Adminstrator here are our recommendations to address the budget crisis:

1. Place measures on the November ballot to repeal all voter mandated programs, including Measure OO/D Kids First, Measure Q and Measure Y. This is necessary to restore discretion in our budget process. We have enough existing revenues to provide core city services. We are just being forced to use them in ways that do not meet core objectives such as public safety and maintenance of infrastructure;
2. Develop a prioritization of core city services with a focus on public safety, infrastructure, and revenue generating enterprises. A safer, cleaner and better maintained city will attract middle and higher income residents and shoppers to Oakland, thereby, generating more tax revenue. We need to increase the volume of taxes not by taxing the middle class out of Oakland, but by growing businesses and attracting new residents;
3. Stop using a budget process that mandates across the board cuts equally. Not all services are equal and not all services are necessary in times of budgetary crisis. Whole programs should be cut if they do not fall within the core services provided by local government. Cut all other city services that do not meet the descriptions identified in number 2. We cannot continue to be all things to all people during a budgetary crisis;
4. Personnel expenditures are the single biggest cost in the city. City employees have some of the highest salaries in the state and country for comparable sized cities. Require all remaining staff to take a 20% furlough and eventually renegotiate 15-20% permanent reductions in pay scales and freeze any cost of living adjustments for the next four years when union contracts are due.
5. Re-negotiate benefit packages when the union contracts are due to create a second tier retirement program for new staff that is no higher than 2% at 55, requires an 8 year vesting time period and requires existing staff to pay an additional 5% towards their retirement benefits;
6. Institute pay for performance measures to ensure taxpayers actually get their money's worth from city employees. This would include courteous and prompt service to all city residents. Fire employees who do not perform to well-defined metrics. This will create incentives for all employees to better perform their assigned job duties.
7. Require that all elected offices take a 20% funding cut. Yes, this even includes the City Auditor.
8. Establish strict guidelines and protocols for travel and training that applies to all city staff and all elected officials. This policy should mirror the per diems the state of California has adopted including strict controls on out of state travel.
9. Require the City establish a rainy day account for future economic crises.

Oh, and stop ignoring the residents' complaints and fill the potholes on Shattuck Avenue and fix the sidewalks on Tremont Street before someone gets seriously hurt, sues the City and makes our budget deficit even larger.

Bringing in Spring

During the long, wet winter season our fight against blight slows down. Many of the repairs and improvements that are required to remedy blight are often difficult for property owners to undertake during the winter season. Consequently, we also go into hibernation. However, this winter much of our time has been taken up with a determined fight against the Nic Nak Liquor Store.

Our strategy for addressing blight in North Oakland and South Berkely has been to focus on a limited geographic area that is bounded roughly by Ashby Avenue, Shattuck Avenue, 51st Street and Sacramento/Market Street. However, at times we have pushed all the way west to Emeryville and south to the McArthur Freeway. Our core area encompasses both South Berkeley and North Oakland. Admittedly, we have focused much of our energy on North Oakland as the City of Berkely has been incredibly difficult to work with and unwilling to provide basic services to remedy blighted properties in South Berkeley. The challenge in Berkeley will be to push for a ballot measure to change the definitions of blight and the remedies for addressing blighted properties.

Our first step has been to focus on the removal of abandoned vehicles. We got over 100 vehicles removed from North Oakland. We then moved on to blighted properties. We have been in the process for the last year or so of identifying all blighted properties and reporting them to the City of Oakland. All the properties have been identified and reported to the City and are in various stages of remediation or further prodding of the City Code Enforcement to take further action. Currently we have 47 active properties with blight that are under investigation by the City of Oakland. Many properties have already been cleaned up. A total of 72 blighted properties have been reported and remediated. Some of the 47 outstanding properties have been intractable and need further work not just by We Fight Blight but by the North Oakland Community and the Crime Prevention Council.

Once We Fight Blight adequately addresses and resolves the remaining blighted properties, our next step is to focus on public infrastructure by cataloging all failed and deteriorated streets, sidewalks, benches, parks, bus stops, streetlights and any other public infrastructure and requesting the City repair and remediate the blight pursuant to their own Blight Ordinance. Understandably this may be challenging under the current budget crisis as this requires an investment in public infrastructure by the City itself and it will likely not have any money. Our final step will be a push for major street tree planting and median planting through a public private partnership, property owner investment and donations.

Despite the recent economic downturn, we have witnessed many positive changes in North Oakland and South Berkeley. Houses are being refurbished and remodeled, new restaurants and cafes are opening, the Ed Roberts Campus is almost done, homes are selling at a brisk pace, more families are moving into the community, and crime seems to be down. We like to think our efforts have helped in some small way to bring about some of these changes though we recognize many of these changes are subject to larger macro-economic forces and the cumulative decisions of many individuals. In the short-term we will continue the fight against liquor sales at the Nic Nak. Spring brings renewed hope in our community and marks an opportunity for positive changes in North Oakland and South Berkeley. We hope you join our efforts in making North Oakland and South Berkeley a better, safer place to live.

Nic Nak Liquors Coming to City Council March 16

The City Council Rules Committee has set March 16, 2010 for the Nic Nak appeal. This appeal is critical in determining whether the City Council will enforce its existing regulations on limiting the proliferation of liquor stores in Oakland by denying a conditional use permit and variance for alcohol beverage sales at 6400 Shattuck Avenue or whether it succumbs to the continued pressure and threats from the property owner who believes it unfair to apply the existing regulations to his new alcohol beverage sales. The lengthy time to agendize the appeal was, in part, related to the detailed 37 page appeal from nearby residents who oppose the Liquor Store. The Planning Staff are required to address each and every issue raised in the appeal when the matter comes before the City Council.

In fall of 2009, the City Planning Commission granted a conditional use permit and a major variance to Ashrious Pannell to sell liquor at the Nic Nak using a unique and unprecedented rationale that "historical relevance" is equivalent to a unique physical constraint. This rationale, which has never before been used in the history of Oakland to approve any variance, has no known precedence in modern planning theory.

Although the proponents of the liquor store, which include Ashrious Pannell, the Black Chamber of Commerce, the controversial Uhuru Group, and local business activist Geoffrey Peete, have raised numerous issues in support of the liquor store including charges of neighborhood gentrification and racism, and unfairness by the City Planning Staff, none have been able to articulate a rational policy or legislative basis as to why liquor sales should be approved under the existing City regulations. In fact, the City Planning Staff and City Attorney originally advised the Planning Commission the City could not make the legally required findings to approve liquor sales at 6400 Shattuck Avenue before the Planning Commission directed staff to make an 180 degree turn and prepare findings for approval. It is easy to understand why the Planning Staff have had such a hard time with this project, as adopted City policy is fairly clear on limiting new liquor sales.

The City of Oakland enacted a deemed approved status to allow pre-existing, but non-conforming liquor stores to continue to operate. The deemed approved requirements specify the owner/operator must not have a lapse in continuous alcohol beverage sales for greater than 90 days. The Nic Nak Liquor Store, by all accounts, was shut down for at least five years by the Pannells. Mr. Pannell ceased selling liquor and even surrendered his State Alcohol Beverage license. When this occured, the City of Oakland properly terminated the Nic Nak's deemed approved status as a non-conforming use due to the lapse in alcohol beverage sales for greater than 90 days. Although given an opportunity to appeal the decision to terminate the Nic Nak's deemed approved status, Mr. Pannell failed to appeal the termination. He was directed by the City Planning Staff to file a major conditional use permit and a major variance should he wish to re-open the Nic Nak and sell liquor.

Re-opening the Nic Nak and selling alcohol beverage sales at 6400 Shattuck Avenue requires a major conditional use permit because sales of alcohol beverages at the site is considered to be new alcohol beverage sales under the Oakland Planning Code. A major variance is required because Nic Nak is located within 1000 feet of an existing liquor store. The Oakland Planning Code prohibits alcohol beverage sales from opening up within 1000 feet of an existing alcohol beverage sales outlet.

Under the Oakland Planning Code, a major variance is restricted to unusual or extraordinary physical constraints that prevent an applicant from meeting the intended purpose of the zoning/planning code. According to the City, economic hardship is not a basis for a variance. In this case, Mr. Pannell's property does not exhibit any unusual physical constraints--it is a flat, corner lot, with a standard lot size as compared to nearby commercial properties. There is nothing unusual or unique in terms of its physical layout as it relates to other similarly zoned properties.

In approving the alcohol beverage sales, the Planning Commission capitulated to pressures from the property owner, including threats of a lawsuit, and made an unprecedented finding to approve the liquor sales--"historical relevance is equivalent to a physical constraint". Because Mr. Panell was a self-proclaimed pillar of the community and allegedly had long-term ties to the community by operating the Nic Nak Liquor Store, the Planning Commission felt it would be unfair to deny him new liquor sales because it would be difficult for him to severe ties to historical customers and relocate his sales to a site that did conform to the existing planning regulations.

According to Scott Miller, Oakland Zoning Manager, this type of rationale has never before been used in the City of Oakland to approve a variance and he is not aware of this theory, which apparently was borrowed from the National Historic Preservation Act, being used in other jurisdictions or having support in case law. Neighbors opposing the liquor sales disputed Mr. Pannell's historic ties to the community noting that he does not live in North Oakland, had not operated the Nic Nak for at least five years thereby severing ties to his customer base, and has not participated in community organizations such as Neighborhood Watch, the Shattuck Crime Prevention Council, the East Lorin Neighborhood Association or any other ad-hoc neighborhood group.

The pupose of Oakland's deemed approved ordinance for alcohol beverage sales is to ensure they do not create a nuisance and importantly to eliminate non-conforming liquor sales or bring them into conformance with the existing regulations. The City Council adopted certain regulations governing the siting of new alcohol beverage sales to prevent over-concentration of liquor stores. This was largely due to the recognized adverse effects of liquor stores on Oakland communities. North Oakland/South Berkeley already has 20 existing alcohol beverage sales within 1 mile of Nic Nak. Several City Councilmembers have already gone through difficult struggles within their own districts to either shut down or severely curtail nuisance liquor sales. Given the existing adopted public policy of the City Council on liquor stores, and the struggles of several City Councilmembers with existing liquor sales, one has to wonder why they would even consider upholding the City Planning Commission's faulty decision to approve liquor sales at 6400 Shattuck Avenue. Doing so would severely undermine the City's progress to date in getting a handle on this public health crisis.

The Planning Commission's approval of the Nic Nak was replete with unsubstantiated assertions and conclusions that were not supported by the administrative record and failed to take into account the entirety of public comments including the submission of a plethora of peer-reviewed studies conducted locally, nationally and internationally that show an over-concentration of liquor sales lead to higher crime rates, and an increase in public health and nuisance issues for surrounding neighborhoods. Perhaps the City Council will be more thorough in their analysis and consideration of the Nic Nak than the Planning Commission and will look to reaffirm their existing policies to limit new liquor stores, rather than succumbing to threats from a local business owner that is out of sync with the community.

Nic Nak Liquors Not Yet Agendized by City Council

As many of you know, approval of the Nic Nak Liquor Store by the City Planning Commission was appealed to the City Council by concerned residents including members of the East Lorin Neighborhood Association and the Shattuck Crime Prevention Council. A written appeal was submitted pointing out in excrutiating detail the flawed justification of the Planning Commission. Interestingly, the appeal was submitted in mid-October, yet the matter has yet to be agendized by the City. Members of the Community were told the matter would likely be agendized in January then it was pushed back to February, yet we still don't have a firm date. We suspect the City is having difficulty in completing the staff report which must address each and every point raised in the appeal. The approval by the City Planning Commission failed to adequately take into account the entirety of the public record, discounted or disregarded important elements of the public record, and then essentially fabricated a new definition for variances to approve the project.

Importantly, a new issue has been raised by the community. A review of public ownership records shows that the land is owned by Mr. and Mrs. Ashrious Pannell, but the building itself in which the proposed liquor use would reside is owned by Mr. Robert Oosley. Mr. Oosley is not one of the applicants and was not on the application that was approved by the Planning Commission. Normally, an applicant for a permit must have adequate site control with an appropriate legal site interest such as fee title, long-term lease, or other acceptable ownership so they can agree to and satisfy the conditions of the permit. Also, the City must ensure the applicant has adequate site control so they can enforce any conditions that are imposed on the project or on the land. In this case, most of the conditions of approval relate to both the land and the building. Apparently, the applicants have been questioned by the City and have informed them that Oosely is the maiden name of Mrs. Pannell. While that may be the case, it does not prove or verify that the Pannell's have an adequate site interest to be issued a permit. Mr. Robert Oosley is not Mrs. Ashrious Pannell. There is a split in ownership. Some members of the Community contend the Pannells must either have Mr. Oosley as a co-applicant or they must purchase the building from Mr. Oosely or enter into a long-term lease agreement with Mr. Oosley or some other acceptable form of legal site. With a split in ownership, the existing permit approved by the City Planning Commission may be invalid. In any case, the City must clear up this discrepancy in ownership before the matter is agendized by the City Council as it may not be ripe for review.

A Mural for South Berkeley

The corner of Ellis and Alcatraz has seen its share of fights, drug dealing, and graffiti. In the past years, the corner building fashioned a blank white wall that served as a canvas for taggers giving a grim and blighted reminder that South Berkeley still has a way to go before it pulls itself up by its bootstraps. This past summer, a corps of young students in Youth Spirit Artwork, directed by Edythe Boone and Sally Hindman, gave life to the corner with a colorful mural that celebrates the past, while giving hope to the future.

College Avenue Safeway Moving Forward

Despite vocal opposition from a small cadre of nearby residents, the College Avenue Safeway continues to move forward in the entitlement process to rebuild the Safeway in Rockridge at College and Claremont. They have purchased the Union 76 Gas Station, closed it and fenced it. The City has also held a scoping meeting for the EIR. You still have until December 1st to identify issues you believe should be addressed in the EIR.

We Fight Blight believes the project will remedy an area of aesthetic blight by removing the gas station and surface parking and creating a relationship with College Avenue with a pedestrian oriented facade. However, we also believe Safeway must adequately address traffic as the most significant issue. Concerns about consistency with the C-31 zoning are overblown. The Oakland Planning Code provides sufficient discretion to the Planning Commission to approve the project with certain conditions. Ironically, opponents who support a paint and patch approach as keeping in character with the essence of Rockridge essentially argue to maintain a quintessentially suburban form in the midst of a relatively dense urban village.

Below is a letter from Elisabeth Jewel, a consultant to Safeway, describing where they are at in the process.

November 20, 2009

Dear Safeway Neighbors:

This week the Oakland Planning Commission conducted the first hearing on the proposed rebuild of the Safeway at College and Claremont . This meeting was a scoping session designed to discuss what items will be studied in the Environmental Impact Report.

Safeway’s architect, Ken Lowney, made a presentation to the Planning Commission of the slides and drawings you may have seen on the website at www.safewayoncollege.com. The hearing room was full of neighbors and other interested parties such as bicycle and pedestrian advocates. The Commissioners heard from about 21 speakers whose comments ranged from questioning the purpose of the rebuild to challenging the zoning conformity and asking for alternative projects to be studied (including one with senior housing). An architect representing a group of neighborhood architects presented a plan that made a small addition to the store while extending the parking area to cover most of the lot including the gas station parcel. Many conveyed concerns over traffic, zoning, parking, air quality, conformity with C-31 zoning, environmental sustainability and pedestrian/bike safety.

The Planning Commission agreed with the Oakland City Planning Department staff position that the EIR will study transportation and traffic, noise, and air quality. In addition, the Planning Commissioners requested that the EIR study the possible addition of housing, impact of the driveway on 63rd St., parking lot usages as well as bicycle and pedestrian impacts. The EIR consultant, working at the direction of the Planning Department, will now study these issues and prepare a comprehensive report in about six months. There will be another Planning Commission meeting scheduled when the draft report is released.

Commissioners will continue to receive written public comment until December 1st. In the mean time, please feel free to direct your comments or questions about the project to me. We have posted 4 informational handouts that Safeway gave Commissioners on our website. Please continue to check the website for updates. You can also read more about what happened at the meeting by going to http://oaklandliving.wordpress.com/

Thanks for your continuing interest in the rebuilding of this Safeway store.

Sincerely.

Elisabeth

Elisabeth Jewel
Community Affairs Consultant to Safeway
510/849-4811 ph
510/849-4827 fax
www.ajepartners.com

Update on Nic Nak Liquors and the Appeal to City Council

In a large outpouring of support against the approval of the Nic Nak Liquor Store, the North Oakland Community raised the filing fee to appeal the Planning Commission's approval of the Nic Nak Liquor Store. Community members banded together donations ranging from ten to one-hundred dollars. In this down economy, that is a significant indication of how much the North Oakland Community does not want to see another liquor store in its midst. A 37 page appeal detailing the faulty decision of the Planning Commission and the inadequacy of their findings was submitted to the Planning Department. The Planning Department has been preparing a response to the appeal and discussing the legal ramifications with the City Attorney's Office. It is likely the appeal may be heard in January after the holiday season.

In the meatime, the Nic Nak Liquors is precluded from selling any liquor until the matter is decided by the City Council. Jane Brunner, the City Council President and represenative for North Oakland will play a key role in determining whether the Nic Nak Liquor Store can peddle liquor in the already over-saturated liquor market.

Interestingly, We Fight Blight missed another liquor outlet in North Oakland at the corner of Alatraz and College. The approval of Nic Nak would actually result in 20 liquor outlouts within a mile of 6400 Shattuck Avenue, rather than the 19 previously reported. Regardless, the fact is that North Oakland and South Berkeley are plagued with problem liquor outlets. Adding one more liquor store does little to support economic revitalization. One area of interest is that homes in the North Oakland neighborhoods near Nic Nak have been selling quite briskly, indicating a high demand for the area. Unfortunately, Nic Nak Liquors represents a foregone way of life that is no longer supported by the North Oakland Community. Mr. Pannell would do well to reconsider his market and provide a product the community truly wants.

On another note of interest, we understand that Mr. Pannell has released Clinton Killian as his legal representative on the project. A former Planning Commissioner, Mr. Killian has had a checkered past. An expose in the East Bay Weekly during the last City Council election, where Mr. Killian was running for the at-large City Council seat now occupied by Rebecca Kaplan, revealed that Clinton Killian had significant legal and financial problems including unpaid bills and allegations of sexual harrasment. It is unclear whether Mr. Pannell dumped Mr. Killian because of his baggage or whether Mr. Pannell simply does not have the financial resources to keep him on the payroll. In any event, Mr. Killian is out.

City of Berkeley Violates the Public Records Act

Because of the growing frustration with the City of Berkeley's unwillingness and inability to enforce basic blight issues in South Berkeley, we submitted on May 6, 2009 several Public Record Act Requests to the City Manager, Phil Kamlarz. The purpose of the request was to better understand what, if anything, has been done by the City to investigate complaints about blight in south Berkeley. The substantive elements of the requests are as follows:

Pursuant to California Government Code §6251 I hereby request a copy of all communications and understandings between the City of Berkeley and the property owner and/or business operator of Motor City Auto Repair, 3058 Shattuck Avenue, Berkeley Ca from June 13, 2008 to present regarding any and all code, environmental health and blight enforcement issues. Any personal information not able to be disclosed under the Public Records Act should be redacted in a manner such that all other information is provided.

Pursuant to California Government Code §6251 I hereby request a copy of all communications and understandings between the City of Berkeley City Manager's Office, Planning and Development (Code Enforcement), Health and Human Services (Environmental Health Services), City Attorney, Public Works, City Clerk and City Council, and all other relevant City Departments, from January 1, 2000 to present regarding City of Berkeley policies, procedures, guidelines, regulations, legal opinions, and/or Berkeley City Council directives defining, collectively or individually, how, when and under what circumstances the City of Berkeley will or will not enforce the removal of graffiti on private property. Any personal information not able to be disclosed under the Public Records Act should be redacted in a manner such that all other information is provided.

On May 8, 2009 we got a response from the City Manager, Phil Kamlarz, that the City of Berkeley would require an extension to June 1, 2009, pursuant to Government Code Section 6253, to provide the requested documents. As of June 3, 2009, we have not heard hide nor hair from the City about the provision of the required documents. The City is now in violation of the Public Records Act by not responding within the mandated time frames.

The Public Records Act is an important tool for citizens to ensure transparency in local government actions or, in this case, inaction.

The Public Records Act is designed to give the public access to information in possession of public agencies: public records are open to inspection at all times during the office hours of the…agency and every person has a right to inspect any public record, except as . . . provided, [and to receive] an exact copy of an identifiable record unless impracticable. (§ 6253). Specific exceptions to disclosure are listed in sections 6253.2, 6253.5, 6253.6, 6254, 6254.1-6254.22, 6255, 6267, 6268, 6276.02-6276.48; to ensure maximum access, they are read narrowly. The agency always bears the burden of justifying nondisclosure, and any reasonably segregable portion . . . shall be available for inspection…after deletion of the portions which are exempt. (§ 6253(a))

An agency has 10 days to decide if copies will be provided. In unusual cases (request is voluminous, seeks records held off-site, OR requires consultation with other agencies), the agency may, upon written notice to the requesters, give itself an additional 14 days to respond. (§ 6253(c)) These time periods may not be used solely to delay access to the records. (§ 6253(d)

The agency must justify the withholding of any record by demonstrating that the record is exempt or that the public interest in confidentiality outweighs the public interest in disclosure. (§ 6255)

The City Manager, Phil Kamlarz, asserted the right to extend the response time by an additional 14 days to June 1, 2009 because the documents you request require the City to search and collect records from several different City Departments. While we can appreciate that the City must coordinate with several different City Departments that in no way constitutes an unusual case as the records are not voluminous, held off-site or require consultation with other agencies. The records are all held by the City of Berkeley and are contained primarily by three entities: the City Manager’s Office, Code Enforcement, and Public Health. This rationale for a delay was a stretch. We did not object to this delay based on the commitment that the City would provide the documents by June 1, 2009. Not surprisingly, the City has failed to meet its obligations.

The City’s unwillingness and inability to comply with the Public Records Act and to enforce blight complaints in South Berkeley is a slap in the face to all residents of South Berkeley. Perhaps a writ of mandamus with the courts may be in order to force the City’s hand and actually get them to do their job.

Making Progress in North Oakland

The We Fight Blight Campaign is seeing the fruits of its labor in North Oakland. As we drive around the neighborhood, we can see abandoned and inoperable vehicles being towed and properties being cleaned up and repainted. The Vehicle Abatement Unit of Oakland has been nothing but stellar. We have provided them with many, many locations for abandoned and inoperable vehicles. They are steadily working through the list, tagging the vehicles and towing them. As well, the Oakland Public Works Call Center and the online reporting system has been working quite well. We had doubts about the online reporting system being a black hole. Although, we have rarely gotten a call back from the Building Inspectors, we have noticed that several of the problem properties that were reported by residents using the online reporting system are being cleaned up. In following up with the Call Center, residents have gotten updates indicating that the property owners have been notified and given a certain amount of time to remedy the blight problems. One problem house that has been a source of blight and crime for the neighborhood for years is finally being cleaned up. We credit this both to the recent good work of the Oakland City Staff and to the persistence of residents in making multiple calls and sending emails. Fighting blight must be a partnership with the local government.

Berkeley on the other hand has been a bit of a disappointment. As a test, we notified the Environmental Health Services of several abandoned and inoperable vehicles one month ago. In that time we have had no indication that the property owners have been notified, the vehicles tagged and certainly none of the vehicles have been towed. In a month, Oakland has removed at more than 30 abandoned and inoperable vehicles in North Oakland as a result of the We Fight Blight Campaign.

Apparently, the East Lorin Neighborhood Association also reported ten South Berkeley properties to the City Manager's Office for investigation earlier this summer and met with the City staff on July 11, 2008. That effort has gotten mixed results. The City apparently notified the property owners of the blight issues and some have already voluntarily remedied the problems by removing abandoned and inoperable vehicles. However, with other properties there seems to be little or no improvement. Part of this stems from the City's weak blight ordinance that exempts owner occupied, single family dwellings and part stems from the City's lack of organizational structure and well-defined roles and responsibilities to address blight. We will continue to monitor the efficacy of the Berkeley Blight Ordinance and the organizational structure of the City to deal with blight. It is clear that revisions to the Berkeley Blight Ordinance are necessary to address these failings. Such changes can come either through the introduction of proposed changes by a City Councilman or through a ballot initiative.