When a judge overturned the Oakland City Council's approval of the massive Oak-to-Ninth condo development last month, a spokesman for City Attorney John Russo called it a "win for the city." Russo told the San Francisco Chronicle that he would not appeal the judge's decision and would urge the developer, Signature Properties, not to do so either. Signature's president, Mike Ghielmetti, declared to the Oakland Tribune that he was "excited" about the ruling.
For anyone who followed the controversy over the plan to erect 3,100 condos on waterfront public land, Russo and Ghielmetti's pronouncements were more than a little strange. After all, the two men fought side by side for most of 2007, vigorously defending the condo project against lawsuits brought by three different citizens groups. Now that a judge had agreed with two of the groups that the city's approval was illegal, somehow that was a win for the city and developer?
"It was spin," said Arthur Levy, an attorney for one of the citizens groups that won the case against Russo and Signature's lawyers. Nonetheless, the spin worked beautifully. The Tribune, for example, began its front-page story about the judge's decision with the statement: "Two sides are claiming victory," and then went on to explain how both sides believed they won the case.
But less than ten days after the judge's ruling, Signature's lawyers and the city attorney alerted Judge Jo-Lynne Q. Lee of Alameda County Superior Court that they planned to seek a new trial. Last week, they did just that, asking Lee to either overturn her decision or grant them a new trial. Such motions are typical precursors to an outright appeal to a higher court.
If Judge Lee's ruling was such a "win," why are Russo and Ghielmetti asking for the legal equivalent of a do-over? Russo's spokesman Alex Katz did not return phone calls seeking comment, while Ghielmetti said they simply wanted the judge "to take another look at" at the case. "There was a lot of stuff for her consider," he said. Still, Ghielmetti stuck to his position that he considered Lee's ruling a victory.
But Levy, the attorney for the Oakland Heritage Alliance, which seeks to protect historic landmarks and public land, said the motions filed by Russo and Signature clearly contradict their claims of victory. "By filing a motion for a new trial, they're showing that the judge's ruling was not good for them," he said. "It's proof they lost the case. Usually, winners don't ask for a new trial."
Russo's about-face was indicative of his actions throughout 2007, as the legal skirmishes over Oak to Ninth came to a head. Of the three lawsuits, the one that grabbed the most headlines stemmed from his decision to throw out a petition to put the condo project on the ballot. Russo claimed the petition was missing key paperwork, even though it included the exact same documents that the council had before it when it approved the project.
After the Oak-to-Ninth Referendum Committee, which circulated the petition, sued the city attorney, he repeatedly declared that the courts would vindicate his decision to invalidate the petition. But then Russo changed his tune again and said he would win because Signature's lawyers had successfully altered the focus of the case to the referendum committee's alleged illegal use of out-of-town signature gatherers.
Court delays and costly depositions eventually bankrupted the grassroots committee, which was forced to spend more than $100,000 in legal fees, said Kate Tanaka, one of the committee's leaders. Then last month, on November 9, the committee told Russo that it had run out of cash and planned to drop the case, prompting the city attorney to quickly issue a press release, declaring victory. Ten days later, Judge Lee made the issue moot when she invalidated the city's approval of the project. There was no longer a need for a ballot petition asking voters to overturn the council's decision, because the judge already had done so.
Lee's ruling was the result of separate lawsuits filed by the Oakland Heritage Alliance and the Coalition of Advocates for Lake Merritt. The two groups challenged the condo project on environmental grounds, arguing that the official environmental impact report was deficient. As is typical in such cases, the two groups had numerous complaints, knowing that the project would be overturned if the judge ruled in their favor on just one. Not surprisingly, Lee denied most of their claims, but she handed the groups a victory by agreeing on three separate issues. Russo and Signature may have won most of the legal battles, but they lost the war.
If upheld, Lee's decision means that Signature will have to redo parts of the environmental impact report, issue draft and final versions of it, and resolicit public comment before taking the project back to the planning commission and city council for final approval — a laborious process that might last well beyond 2008. Plus, they will have to maneuver past Mayor Ron Dellums, who was not in office when the project was originally approved and has yet to take a formal stand on it. Project opponents hope he will try to shrink the number of condos and increase the amount of public waterfront.
In a statement issued through his spokesman, the mayor said: "We're focused on bringing everyone together in a way that can move the project forward in a way that all sides can agree." In other words, Oak to Ninth may face the same fate as every other controversial issue that arose during the mayor's first year in office — with Dellums moving slowly as he seeks consensus.
Even if Signature Properties overcomes these hurdles and the council approves the condo project a second time, the Pleasanton-based developer could face another petition drive. "I don't really see why we wouldn't do it," Tanaka said last week. "To do it a second time would be a lot easier." Tanaka said the next petition campaign probably would be much cheaper, because they would use only volunteers to gather signatures.
It's no wonder, then, that Russo and Signature are demanding a new trial. But their request may be a long shot. After all, they're asking the judge who ruled against them to either admit that she was wrong or at least give them another shot to prove as much. "That's extremely unlikely," said attorney Stuart Flashman, a veteran land-use attorney who represented the referendum committee. "I would call it frivolous."
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