Chamber's Response to Proposed Occupy Resolution

November 3, 2011

Dear Mayor Quan & Councilmembers, 

On behalf of the Oakland Metropolitan Chamber of Commerce Board of Directors and our many members we believe the proposed resolution stated herein should not be adopted.  We respectfully submit the background and our opinion as follows:

The City of Oakland has allowed members of Occupy Oakland to put up tents, other structures and cooking facilities and porta-potties in Frank H. Ogawa Plaza immediately adjacent to Oakland’s historic City Hall.  The City Council is now considering a Resolution that would in effect approve this Encampment on a permanent or semi-permanent basis.  The specific language of the Resolution is:

FURTHER RESOLVED, That the Oakland City Council urges the City Administration, whenever reasonably possible to address any public health issues, fire safety issues, noise disturbances of neighbors or violence in the camp, with verbal communication among the protestors and city or county officials; and be it FURTHER RESOLVED, That the Oakland City Council declares that it does not support the use of force to remove the encampment unless absolutely necessary, after, engaging in verbal communications, whenever reasonably possible; and urges Mayor Jean Quan, and the City Administration to exercise their administrative powers, if possible, in a manner that will not involve the use of force to remove the encampment.

            It is important to recognize that the Encampment is different from the right of Occupy Oakland – or any other group – to lawfully and responsibly exercise their free speech rights.  Frank H. Ogawa Plaza has often been used for rallies and assemblies where people – citizens of Oakland and others – have demonstrated and expressed their free speech rights.  The ‘Encampment” which allows people to stay in Frank H. Ogawa Plaza overnight and essentially to live in the Plaza is different from the expression of free speech.

            This Resolution effectively ratifies the actions of the Mayor and City Staff in authorizing the Encampment to stay in Frank H. Ogawa Plaza for an indeterminate time.  The question – not addressed by the Resolution or any public staff report – is whether this constitutes an action changing the allowed uses in this public park.  Clearly under any reasonable definition the authorization of this Encampment constitutes a change in use for this open space.

            It is useful to consider what approvals would be required if the owners of the vacant lot adjacent to 555 12^th Street decided they wanted to create a temporary or permanent encampment of tents and cooking facilities on that site.  There would be no question that this would require a major process of review and approval including a change to the General Plan and zoning regulations and the granting of a Conditional Use Permit.

The General Plan and the Zoning Code designates Frank H. Ogawa Plaza as Open Space Special Use (Zoning Code S.17.11).  Neither the City Council nor the Mayor can arbitrarily change the permitted use of this space and yet that is exactly what the proposed Resolution and the City staff’s explicit approval of the Encampment would do.  The Oakland Planning Code has very specific provisions for a change in use in any area designated as Open Space under the General Plan.  The specific procedures are described on Attachment A.  They include notices to the surrounding neighborhood – which in this case would include the office and retail users in the immediate downtown area who have suffered very real losses because of the Encampment – and hearings before and action by the Planning Commission and the Parks and Recreation Advisory Commission.  In addition, most of the uses related to the Encampment – including residential use, child care, and serving of food – would require a major or minor conditional use permit.  None of these procedures have been followed by the City.

Since the decision to approve any of these changes in use to accommodate semi-permanent or permanent residential use and the other activities related to the Encampment would be discretionary and are not consistent with existing uses, the California Environmental Quality Act would require an initial assessment of the activities and almost certainly would then require a full Environmental Review considering the impact of the Encampment on the surrounding business uses as well as the historic characteristics of City Hall and the surrounding buildings and the historic and environmental importance of the Jack London Oak tree at the corner of 14^th and Broadway.

Again, it is important to emphasize that none of these requirements apply to the exercise of the rights of assembly and free speech in Frank H. Ogawa Plaza during the day – they may or may not be subject to other requirements.  But these requirements absolutely do apply to the clear change of use represented by the tents, other structures and cooking facilities that comprise the Encampment.  If the City Council and or the Mayor and City staff desire to allow the Encampment to remain, they need to follow the law.  Until they do, they need to make reasonable arrangements to end this change of use just as they would for any such change of use in violation of the General Plan established on private property.

Sincerely,
Joseph J. Haraburda

President/CEO

Oakland Metropolitan Chamber of Commerce

Attachment A

17.135.030   Procedure for consideration.

No change in use or improvement, as defined in Section 17.09.050, shall occur on land designated OS unless the following process has been followed:

A.      Pre-development Neighborhood Meeting. At the discretion of the Director of Parks, Recreation, and Cultural Affairs, a neighborhood meeting may be convened in the vicinity of the park or open space land affected by the proposed change in use or improvement. If such a meeting is held, notice shall be given by posting an enlarged notice on the premises of the park or open space land. At the discretion of the Director, the meeting notice may also be posted on utility poles within three hundred (300) feet of such park or open space land. Notices shall also be mailed to neighborhood organizations and individuals who have expressed an interest in the subject park or project area.

B.      Administrative Project Review. Once preliminary community feedback has been received and considered, the project sponsor shall submit a request to the Director of City Planning, including a project description and cost estimate. The Director shall coordinate preliminary review of the project with the project’s operating department and any other City department or agency likely to be interested or involved in the execution, operation, or maintenance of the project. These requirements shall include, but are not limited to, formal CEQA review of the proposed change in use or improvement. A written summary of comments shall be prepared prior to the scheduling of the public hearing.

C.      Public Hearing. A public hearing shall be required for any change in use or improvement and shall be conducted and heard by the City Planning Commission and/or the Parks and Recreation Advisory Commission, as provided by subdivisions 1 and 2 of this subsection.

1.       Major Conditional Use Permits.

Effective April 14, 2011

479a.  An application for a major conditional use permit, as required by Sections 17.11.060 and 17.11.090, shall be considered first by the Parks and Recreation Advisory Commission (PRAC) and second by the City Planning Commission. Each commission shall conduct a public hearing on the application. Notice of the PRAC hearing shall follow the procedure outlined at Section 17.135.030(C)(2). Notice of the City Planning Commission hearing shall be given by posting an enlarged notice on the premises of the subject property. At the discretion of the Director, notice of the public hearing may also be provided on utility poles within three hundred (300) feet of such park or open space land. Notice of each hearing shall also be given by mail or delivery to all persons owning real property in the city of Oakland within three hundred (300) feet of the property involved; provided, however, that failure to send notice to any such owner where his or her address is not shown in said records shall not invalidate the affected proceedings. All such notices shall be given not less than seventeen (17) days prior to the date set for the hearing. Notice shall also be provided to those community or neighborhood groups included in the Planning Department database that are within the service area radius of the impacted park. Additional outreach shall be provided through press releases and other notification as warranted by the size and location of the project.

b.       The PRAC shall schedule its public hearing within forty-five (45) days after receiving the application for consideration. The PRAC shall make a recommendation to the Planning Commission at the conclusion of the hearing. In the event the PRAC has not acted on the application within forty-five (45) days, the project shall automatically be forwarded to the City Planning Commission.

c.       The City Planning Commission shall determine whether the proposal conforms to the use permit criteria set forth in Section 17.11.110 and to other applicable criteria, and shall make a recommendation to grant or deny the application, or recommend such changes or impose such conditions of approval as are in its judgment necessary to ensure conformity to said criteria. The determination of the Commission shall become final within ten calendar days after the date of the decision unless appealed to the City Council in accordance with Section 17.134.070.

2.       Minor Conditional Use Permits.

a.       An application for a minor conditional use permit, as required by Sections 17.11.060 and 17.11.090, shall be considered by the Parks and Recreation Advisory Commission prior to a final decision by the Director of City Planning. The Parks and Recreation Advisory Commission shall hold a noticed public hearing on the application and shall make a recommendation to grant or deny the application, or recommend such changes or conditions of approval as are in its judgment necessary. Notice of the public hearing shall be provided by posting an enlarged notice on the premises of the park or open space land. At the discretion of the Director, notice of the public hearing may also be provided on utility poles within three hundred (300) feet of such park or open space land. Notices shall also be mailed to neighborhood organizations and individuals who have expressed an interest in the subject park or project area.

b.       The Director of City Planning shall determine whether the proposal conforms to the special use permit criteria set forth in Section 17.11.110 and to other applicable criteria and shall grant, deny, or conditionally grant the permit. The determination of the Director of City Planning shall become final within ten calendar days after the date of the decision unless appealed to the City Planning Commission in accordance with Section 17.134.060. If no action is taken by the Director of City Planning within thirty (30) days of the Parks and Recreation Advisory Commission’s recommendation, the project shall be deemed approved.

D.      Appeals. Any interested party may appeal a decision of the Director of City Planning or a decision of the City Planning Commission in accordance with the provisions outlined in the conditional use permit procedure at Sections 17.134.060 and 17.134.070. In the event the last date of appeal falls on a weekend or holiday, the next date such offices are open for business shall be the last date of appeal. (Ord. 12237 § 4 (part), 2000; Ord. 12078 § 4 (part), 1998)

17.135.040   Referral to Landmarks Preservation Advisory Board.

Any project in the OS zone requiring a major or minor conditional use permit shall be subject to review by the Landmarks Preservation Advisory Board if that project is located:

Effective April 14, 2011

480

A.      Within the S-7 zone;

B.      On a site that could potentially impact a structure, site, or feature that is listed on the State or National Registers, or that has been formally designated as an Oakland landmark.

For projects requiring a minor conditional use permit, this review shall be made after the public hearing of the Parks and Recreation Advisory Commission and before the final decision of the Director of City Planning. For projects requiring a major conditional use permit, this review shall be made after the public hearing of the Parks and Recreation Advisory Commission and before the public hearing of the City Planning Commission. The Landmarks Preservation Advisory Board may recommend modifications to the project that it deems necessary to ensure that the historic value of the structure, site, or feature is not adversely impacted. If no action is taken by the Landmarks Preservation Advisory Board within thirty (30) days of its receipt of the application, the project will be forwarded to the Planning Commission (for major conditional use permits) or Director of City Planning (for minor conditional use permits). (Ord. 12078 § 4 (part), 1998)

17.135.050   Special requirements for projects consistent with Park Master Plans. A.    Projects in City-Owned Parks. Any improvement or change in use that is consistent with a Park

Master Plan that has been adopted by the Oakland City Council shall be subject to these provisions. However, in accordance with Section 17.11.060, such projects shall be subject to the Minor Conditional Use Permit process only, even where they involve facilities or activities that would otherwise require Major Conditional Use Permits. Projects shall be eligible for this provision only if the Master Plan in question has been adopted within ten years of the date of the application, or has been amended or updated with Council approval within ten years of the date of the application. The determination that a project is consistent with a Park Master Plan shall be made by the Director of City Planning.