Title
Adoption of a Resolution Submitting to the Voters an Ordinance Entitled “McKay Avenue Open Space Fiscal Responsibility Measure” at the Special Election to be Held in the City of Alameda on Tuesday, April 9, 2019; and Consider Authoring a Direct and Possible Rebuttal Argument. (City Manager 2100)
Body
To: Honorable Mayor and Members of the City Council
From: David L. Rudat, Interim City Manager
EXECUTIVE SUMMARY
On December 4, 2018, the City Council accepted the certificate of sufficiency and directed staff to return with a report on the effect of the open space initiative within 30 days pursuant to Elections Code Sections 9212 and 9215. The Council also directed staff to prepare a companion measure to protect the City’s General Fund from the potential fiscal impacts of the initiative. In response to the Council’s direction, staff prepared a draft measure, which the Council may choose to submit the voters by adopting a resolution placing the measure on the Special Election ballot scheduled for April 9, 2019.
BACKGROUND
On November 28, 2018, the Alameda County Registrar of Voters (Registrar) determined the initiative measure to change the land use designation for an approximately 3.65 acre site on McKay Avenue by amending the General Plan Designation from Office to Open Space and by amending the Zoning Ordinance designation from Administrative-Professional District to Open Space District (the “open space initiative”) contains sufficient valid signatures to qualify for the ballot.
On December 4, 2018, the City Council:
• Adopted a General Plan amendment and approved the first reading of a zoning amendment to allow the subject property to be used for senior assisted living, a medical rehabilitation center, and support services for homeless individuals (the Council adopted the final reading of the zoning amendment on December 18).
• Accepted the certificate of sufficiency and directed City staff to prepare a report on the potential impacts of the open space initiative on the City (the “Impacts Report”).
• Directed staff to prepare a possible companion measure for Council consideration designed to protect the City’s General Fund and parks budget from the fiscal impacts of the open space initiative. There is precedent for such protective action as a similar companion measure had accompanied the Alameda Belt-Line Open Space Initiative (concerning the Jean Sweeney Open Space Park) placed before the voters in 2002. As a result of that 2002 election, both the open space initiative and the companion fiscal responsibility measure were approved by a majority of the votes cast by Alameda voters.
DISCUSSION
Rezoning of land for open space by City Council action or by initiative is generally considered by the California courts to equate to a “taking” of private property for public use, which in turn requires “just compensation” to the land owner.
The “Alameda Open Space Fiscal Responsibility Measure” (the “Measure”) provides a measure of protection from the possibility that the adoption by the electorate of the open space initiative will impose on the City of Alameda (the “City”) an unfunded liability relating to the Site. There is a risk that if the open space initiative is passed, the City could be subject to litigation from property owners of the Site who would assert that the down-zoning caused them financial and compensable harm. To protect the City from potentially being forced to divert millions of dollars of City revenues currently used for City parks, libraries, police, fire and other City services to defend and pay a judgment if such a legal claim was brought and the City did not prevail, this Measure should be considered.
This Measure is designed to be operative and provide the City options in the event that legal action is brought against the City as a result of the open space initiative and the City is unsuccessful in defending against that legal action. The Measure does not modify or alter the open space initiative. In fact, it is intended to supplement the open space initiative by providing a mechanism to ensure that it can be implemented in a fiscally responsible manner. The City Council may approve the resolution submitting the Measure to the voters on the April 9, 2019 ballot or simply do nothing.
If the proponents of the McKay Avenue Open Space Initiative withdraw their measure from the ballot, pursuant to Elections Code section 9215.5, by 5:00 p.m. on January 11, 2019, this Fiscal Responsibility Measure will be deemed null and void and have no effect.
Ballot Question
The voters will be asked the following ballot question concerning their confirmation of the Ordinance.
City of Alameda Measure: Shall an ordinance suspending the effective date of Measure ___ on this ballot until the voters at a future election authorize funding to pay for the property affected by Measure ________, if the City is required by a court to compensate the owner for that property, be adopted?
Ballot Arguments
Since April 9, 2019 would not be a consolidated election, the arguments must be submitted within 14 days of the City Council calling the election. If the City Council approves the resolution submitting the Measure on the April 9, 2019 ballot, the direct argument deadline is January 16, 2019, and the Council must determine its interest in authoring an argument by that date. Direct arguments can be no more than 300 words and have a limit of five signers. Rebuttal arguments cannot exceed 250 words and have a limit of no more than five signers. The deadline for rebuttal arguments would be January 24, 2019.
If the City Council elects to prepare a ballot argument and potential rebuttal, it has the following options: 1) draft an argument as a whole body in open session and decide signers at that time; 2) authorize no more than two Councilmembers to meet as a subcommittee of the City Council to draft an argument and have the entire Council sign; 3) authorize no more than two Councilmembers to draft an argument and decide to have a combination of Councilmembers and/or other signers; or 4) authorize no more than two Councilmembers to draft and sign an argument and have up to three/four other signers. The City Council could also elect not to draft an argument.
Impartial Analysis
The accompanying resolution directs the City Attorney to prepare an impartial analysis not exceeding 500 words in length to be printed in the ballot.
FINANCIAL IMPACT
Since this measure is being added to the April 9, 2019 Special Election being called for the open space initiative, the only cost for the measure is approximately $25,000 for translation, typesetting, and printing. The costs associated with placing the Measure on the April 9, 2019 ballot are not included in the General Fund budget for Fiscal Year 2018-19.
It is estimated that the creation of a new City park will cost the City of Alameda at least $11.7 million in capital expenditures to acquire the land, demolish the buildings and build a new park. The City is already working to identify funding to complete future phases of both Jean Sweeney Open Space Park and Estuary Park, estimated to cost a combined $17.5 million. Any requirement to fund a new City park at the McKay Avenue site would impact the City’s ability to complete these open-but-not-completed parks. In addition, funding these parks have been the City’s priority and do not include efforts to fund the Regional Sports Complex and DePave Park at Alameda Point, estimated to cost over $40 million.
ENVIRONMENTAL REVIEW
This action is exempt from the California Environmental Review Act (“CEQA”) pursuant to CEQA Guideline section 15378 as it does not constitute a project within the meaning of CEQA because it does not have a potential for resulting in a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment. As a separate and independent basis, this action is also exempt under CEQA Guideline section 15061(b)(3) (no significant environmental impact). .
RECOMMENDATION
Adopt a Resolution submitting to the voters an ordinance entitled “McKay Avenue Open Space Fiscal Responsibility Measure” at the Special Election to be held in the City of Alameda on Tuesday, April 9, 2019; and consider authoring a direct and possible rebuttal argument.
Respectfully submitted,
David L. Rudat, Interim City Manager
Financial Impact section reviewed,
Elena Adair, Finance Director