Stop, Drop and Roll

01 April 2007 | Alameda Community Development Forum | John Knox White

Stop Drop and Roll is going on vacation for the next two weeks, while I take care of a few things.

But before I go, I wanted to talk about the Alameda Theater lawsuit. I’m going to assume most people know about the project and the lawsuit. The suit lost in June 2006 and was appealed in January 2007 and has just lost.

The reason is that I’ve been hearing a lot of “lost on a technicality” talk from some corners (ET traffic expert, I’m talking to you).

The lawsuit, filed by citizens for a megaplex-free Alameda (CFMA) claimed that the city put together the wrong type of environmental document. A Mitigated Negative Declaration (MND) instead of an Enviornmental Impact Report (EIR)….are you still awake? I promise not to bog down here…

In June, the courts denied the claim, saying that it had not been filed during the statue of limitations. These lawsuits have to be filed within 30 days. The appeal was over “When” the 30 days began and the appeals court said the CMFA didn’t understand a history of solid caselaw on the subject.

THEN, the court goes on to say:

“Moreover, even if [CMFA] did have standing to challenge the City’s November 1, 2005 action, the challenge fails on substantive grounds, as set forth in more detail below.” (pg. 16)

Short version, had the lawsuit been filed on time, they still would have lost.

In order to have won, CMFA had to show that there was “new information that was not known and could not have been know with the exercise of reasonable diligence at the time that the MND was adopted”

It mentions a report that CMFA had put together by Woody Minor as a counter to the city’s architectural study. But points out that “[CMFA] does not provide any reason why the report could not have been prepared before the adoption of the [MND]”

And then:

“[CMFA] alos cites to numerous statements at the August and November public hearings by Alameda residents who are opposed to th Project, expressing their opinions on how the Project as a whole will negatively impact neighborhood aesthetics, histrocial resources, and traffic. But again, [CMFA] offers no reason why the opinions of these residents could not, with the exercise of reasonable diligence, have been presented to the Planning Board or the City Council prior to their adopting the [MND].”

Describing the presentation of “evidence,” specifically “council communications” the court writes that instead of a substantive presentation of fact, it was:

“primarily part of a dialogue among council members, including speculation as to peak traffic times. No factual information was presented to counter the City’s December 2004 Traffic Study…” {emphasis added}

Now that sounds familiar, one council member makes some statements based on his (or her) opinion and then residents run around touting that singular comment as the word of the almighty. I guess it doesn’t hold up in court. huh.

Finally, the court writes, “no evidence at all was presented that the City’s actions were not in compliance with existing land use regulations…” WOW! this was half of the compliant!

And ends with DENIED.

The appellate court “affirmed in full” the judgment. Meaning there were absolutely no outstanding questions in this matter.

I’m honestly not trying to be mean here. I feel badly for many of the CMFA members who care deeply about this issue. They’ve put their hearts and souls into it, losing must feel pretty crummy. I’m certainly not gleeful.

But it’s sooooooooooo dishonest of folks out there to say that this case lost on a “technicality.” (Maybe dishonest is too strong, it’s certainly uninformed, which begs the question why someone would be talking about it like they knew anything) The judge went to great lengths to point out that it would have lost no matter what. And the appellate court agree vigorously.

I didn’t support their decision to sue, but I hope CMFA can direct their energies to positive things moving forward and not let this embitter them. Their energy, stamina and stick-to-it-ness was pretty amazing.