Call it the controversy that wouldn't die. The Oakland City Council greenlighted the huge Oak to Ninth housing project nearly two years ago, and ever since, opponents have blocked the waterfront development in court. And that's precisely where it will remain for the foreseeable future thanks to a new legal initiative.
The new campaign is being waged by one of the three citizens groups that sued the city and developers Signature Properties and Reynolds and Brown after the council voted for the 3,100-unit condo project in July 2006. The group, which calls itself Coalition of Advocates for Lake Merritt, and is led by Oakland activist Joyce Roy, is now trying to overturn the council's approval on the grounds that it violated city and state laws. "It's not that we don't want development there," Roy said of Oak to Ninth, which encompasses sixty-plus acres along the Oakland Estuary. "We just want something much less massive."
After the council approved the project, much of the attention focused on a referendum campaign launched by opponents who wanted to put the condo development on the ballot. Oakland City Attorney John Russo threw out the referendum, claiming it was defective, and then opponents sued Russo to get it reinstated. However, last fall the Oak to Ninth Referendum Committee dropped its suit, saying it had run out of money.
Meanwhile, Roy's group, along with the Oakland Heritage Alliance, had been quietly fighting the project on environmental grounds. In November 2007, the groups appeared to win a significant victory when Alameda County Superior Court Judge Jo-Lynne Q. Lee ruled that the Oak to Ninth environmental impact report was inadequate. At first, the decision looked to be a major setback for the developers, because the judge also threw out the city's approval of the project, which meant that the council would have to vote on it all over again — thus opening the door to another referendum campaign. But then in January, after Russo and the developers demanded a new trial, the judge modified her ruling, saying that after they fixed the EIR, they could bring it back to her for approval — thereby diminishing any chance of another referendum.
That decision prompted Roy's group to pursue the second aspect of their original lawsuit, which until now had been mostly overlooked. Attorney Brian Gaffney alleged in the suit that the city's approval process was illegal in several ways, including:
The project's development agreement was not presented in full to the council until July 18 — the same night the council gave final okay to the deal. Under the Oakland City Charter, it's illegal for the council to approve such an agreement on the first night it is fully introduced. The charter requires that the issue come back for a second reading.
The development agreement and the project were substantively changed after the council voted for it on July 18. State law forbids the city from making alterations after such deals have been approved, unless they are merely typographical or clerical. Gaffney alleged that one of the changes included lowering the amount of open space in the development from thirty acres to 21.
David Bonaccorsi, lead attorney for Signature Properties and Reynolds and Brown, did not return a phone call seeking a response to Gaffney's allegations. But last year, he filed a blanket denial of the charges. Russo did as well, and last year he also defended the city's approval process in an interview with Full Disclosure.
The city attorney said the deal was fully vetted by the council on June 20, 2006 and that the July 18 council meeting served as the second reading. He also asserted that the only changes made to the deal after July 18 were "clerical." Ironically, Russo also said that even though those changes were not significant enough to invalidate the city council's approval, he believed they were important enough to disqualify the referendum.
In another irony, a recent state appellate court decision provided strong evidence that the referendum committee might have won its case had it not run out of money. Before the suit was dropped, Signature Properties had successfully shifted the focus of the case from whether Russo was right to toss the referendum to whether the committee had illegally used out-of-town signature gatherers.
But in January, the Fourth District Court of Appeals in Southern California overturned the state election law that required petition circulators to be residents of the cities in which they collect signatures. The court unanimously ruled that signature gatherers in California only have to be state residents. In other words, the Oak to Ninth deal might have been before Oakland voters in the upcoming election — and no longer in the courts — if the referendum committee had not gone bankrupt.
Why is top Democrat backing a Republican?
State Senate boss Don Perata is raising and spending hundreds of thousands of dollars trying to remove a moderate Central Valley Republican from office. The senator's supporters have portrayed his efforts to recall state Senator Jeff Denham as an attempt to create a veto-proof majority in the Democratic-controlled upper house. But if Perata is such a champion of the Democratic Party, then why is he backing a Republican for the Oakland school board?
The state Senate president pro tem has endorsed Brian Rogers, a GOP Party member, who is seeking to represent North Oakland and Rockridge on the seven-member board. Rogers is running against two Democrats, Jody London, an Oakland schools parent, and Tennessee Marie Reed, a poet and daughter of famed writer Ishmael Reed.
Perata's spokeswoman did not a return a phone call seeking an answer to why the state's most powerful Democratic politician is supporting a Republican over two Democrats in his hometown. But a closer examination of Rogers provides a possible answer — he's the son of one of the senator's biggest campaign contributors, T. Gary Rogers, longtime CEO of Dreyer's Ice Cream.
From 2000 through 2007, campaign finance records show that the elder Rogers, who also is a Republican, and his wife Kathleen T. Rogers, donated at least $153,500 to Perata's various political campaigns and those associated with the senator. Kevin Spillane, spokesman for Denham, said that in light of the campaign contributions, it's no surprise that Perata is supporting a Republican in one part of the state while trying to oust another one elsewhere. "Whatever Perata does is always in the best interests of Don Perata," he said.
As for Brian Rogers, he did not return two phone calls seeking comment on his candidacy. According to his campaign web site, one of his priorities is maintaining Expect Success, a controversial Oakland schools program funded and supported by his parents, along with billionaire businessmen Eli Broad and Bill Gates. Expect Success backers are worried that the school board will abandon the program once it hires its own superintendent.
In addition to running as a Republican in a staunchly Democratic town, Brian Rogers, 35, also will have to overcome perceptions that he's just a surrogate of his rich and politically connected father. Public records show that in 1998, his parents gave him the Oakland hills property now occupied by his $1.3 million house. And since at least 2004, he's been employed as the executive director of two nonprofits his parents founded — the T. Gary and Kathleen Rogers Private Family Foundation and the T. Gary and Kathleen Rogers Supporting Family Foundation. In 2006, the last year in which tax records are available, the two nonprofits reported paying Brian Rogers $143,036 in salary.
Author's note: An earlier version of this story misstated the year in which Brian Rogers' parents gave him the Oakland hills property now occupied by his house. It was 1998 -- not 2002.