Friday’s ruling by Superior Court judge Jo-Lynne Lee—overturning the City of Oakland’s approval of the Oak-to-Ninth project—was certainly a victory for the Coalition of Advocates for Lake Merritt (CALM) (with Joyce Roy) and the Oakland Heritage Alliance (OHA). (See “Court overturns City’s approval of Oak-to-Ninth Project.”) It was not, however, a full victory for OHA.
Of particular interest to Oakland Heritage Alliance was the finding of the Environmental Impact Report (EIR) with respect to the Ninth Avenue Terminal building. Built beginning in 1929, the terminal is historically significant and monumental: over 1000 feet long and enclosing about four acres. Its Beaux-Arts–style has been judged to “represent an important phase in Oakland architecture and city planning during this period.” It’s eligible for listing on the National Register of Historic Places and the California Register of Historic Resources based on its significance in the areas of architecture and commerce and its “association with historic events and characteristics of the style, type, or period.” The City of Oakland’s own Local Register of Historic Resources rates it an “A,” having “primary importance.”
If the Oak-to-Ninth developers and their City Hall allies have their way, the project would demolish almost 90 percent of the building, leaving barely more than a facade. The EIR admits that if demolished “its ability to convey its historic significance would be permanently altered and materially impaired” and the remaining stub “would be insufficient to offset the loss of physical characteristics that qualify this building as a federal, state, and local historic resource,” resulting in a “significant and unavoidable impact.”
Given the huge negative impact, the California Environmental Quality Act (CEQA) requires that the EIR identify alternatives. For the developer and City Hall to pass go and largely demolish the terminal, they needed to find that alternatives to demolition are infeasible. And that’s exactly what they did, based on an “expert report” bought and paid for by the developer, and essentially ignoring the critiques of that study offered by those with no financial interest in the deal.
As part of their suit, Oakland Heritage Alliance challenged the EIR’s finding that “adaptive reuse” of the Terminal was infeasible. Judge Lee’s opinion gave them no joy, however. The judge’s hands were tied.
In Judge Lee’s evaluation of the EIR, she was forced by law to consider the City the “trier of fact” and thus “indulge all reasonable inferences from the evidence that would support the [City’s] determination and resolve all conflicts in the evidence in favor of the [City’s] decision.” On matters of fact, the judge could overrule the City only if it committed “a prejudicial abuse of discretion.”
It’s certainly standard in the judiciary for an appeals court to let the lower court—presumably objective and operating in good faith—be in charge of facts almost always and for the appellate level to provide review typically only on matters of law. It’s painful to me, however, to see a court grant that same deference to our Planning Commission and City Council in this case. They were anything but objective, disinterested, well-meaning honest brokers acting in good faith. That was embarrassingly obvious at the Planning Commission hearing on the evening of March 15 last year. As obedient marionettes, dancing to then-mayor Jerry Brown’s commands, there was a furious flurry of rubber-stamping, as the Commissioners approved a slew of documents that not only had they not read—the documents weren’t even complete: important exhibits (the devilish details) had not even been attached.
Ironically, on the same night the City adopted its EIR it also undermined its finding that adaptive reuse of the Ninth Avenue Terminal was infeasible. Due to an amendment led by Council Member Pat Kernighan, the City issued a Request for Proposals from developers who were interested in reusing the terminal. Ninth Avenue Partners formed and they have proposed reusing the terminal as a Vintner’s Hall, including a working winery and tasting room, a restaurant, a water-oriented retail shop, and a snack bar.
Despite the failure of Judge Lee to strike down the EIR’s findings of infeasibility, her reversal of the City’s approval of Oak-to-Ninth and the emergence of the Vintner’s Hall proposal are reasons for hope that the grand Ninth Avenue Terminal will live on.