January 18, 2002

REPLY TO 802 Balra Drive, El Cerrito, CA 94530

Telephone: 510-526-4772

Email: nlaforce@ix.netcom.com

Hon. Mayor Shirley Dean and Members

of the Berkeley City Council

2180 Milvia Street

Berkeley, CA

Re: Clarifications Of Remaining “Development

Rights” on North Basin Strip of Berkeley Waterfront

Dear Mayor Dean and City Council members:

As you will recall in November, 2001 the City Attorney responded to the Sierra Club’s letter inquiring as to the amount of development rights remaining on the North Basin Strip and Stables area of the Berkeley waterfront under Measure Q.

It is Sierra Club’s position that the remaining maximum allowable development rights for this area is no more than 113,000 square feet and not 225,000 square feet as stated in the City Attorney’s memorandum to the Council.

It is perhaps useful to recall some history. In the late 1990's The State and East Bay Regional Park District purchased most of Sante Fe’s aka Catellus’ property on the waterfront that was subject to Measure Q. A small portion of the most northerly portion of the Berkeley lands in the area known as the North Basin Strip were not purchased. Catellus sold that small area to the current owner of the Golden Gate Fields race track.

Measure Q provided for a maximum of 565,000 square feet of development on all of Santa Fe’s waterfront holdings in Berkeley. When the State and Park District bought most of that property, they bought the property based on the value of the property with those development rights. Hence, the State bought a sizable proportion of that 565,000 square feet of development rights. It is estimated that the State and Park District purchased around 80% of Santa Fe’s waterfront property subject to Measure Q. That means that they bought 80% of the development rights or around 452,000 square feet of the development rights, leaving the remaining property

N. La Force Letter to City of Berkeley, 1/18/2002

Re: Development Rights on Waterfront, page 2

with a value based on the remaining 113,000 square feet of development rights.

The City Attorney’s opinion claims that the appraisal done on the Brickyard and Meadow appraised those areas based on their use as open space. The Club has two responses. First, any assertion regarding the appraisal of the property may only be substantiated by the public disclosure of the appraisal. If the City Attorney’s office has seen that appraisal, then it should be made public for others such as the Sierra Club to properly evaluate the City Attorney’s opinion. If the City Attorney has not seen that appraisal and the entity currently in possession of that appaisal will not release it to the public, then any assertion by the City Attorney’s office as to what the appraisal was based on is pure speculation and cannot form the basis of any legal opinion.

Second, the City Attorney’s assertions fly in the face of the history regarding the creation of Measure Q. The City intentionally planned the Berkeley waterfront by determining that Santa Fe’s lands in their aggregate could accommodate a minimum of 565,000 square feet of development with that development placed on the North Basin Strip and Stables area. The City and its consultants ROMA engaged in months of calculations to determine the minimum amount of development that could be approved assuming the development was all placed on the North Basin and Stables areas with the allowance under special circumstances that some development could be located on the eastern portion of the Meadow. This plan was done for the very purpose of preventing Santa Fe from developing the Meadow and Brickyard while protecting the City from the claim that the plan effected a taking of Santa Fe’s property by so devaluing it as to be below any reasonable investment backed expectations. Hence, the plan and planning effort never assumed that the Meadow and Brickyard were only valued as open space. Instead, the development potential that Santa Fe was entitled to on the Meadow and Brickyard was “mushed over,” as the term was used at the time, or transferred from the Meadow and Brickyard to the North Basin Strip and Stables. Measure Q wrote that plan into law. I should know; I was one of the principal drafters of Measure Q.

The Sierra Club disagrees with the City Attorney’s analysis that would allow a potential maximum of 225,000 square feet in this remaining “Q” area. The City should make any owner or developer of this land aware of the position of the Sierra Club and the past history regarding the entire waterfront, especially the failed effort of Santa Fe to develop on this property. Certainly, the Club will oppose any attempt to plan or approve any development that exceeds the potential maximum of 113,000 square feet or any amount less than that theoretical maximum which would create significant adverse environmental impacts.

N. La Force Letter to City of Berkeley, 1/18/2002

Re: Development Rights on Waterfront, page 3

Putting that issue aside for the moment, the Club does agree with the City Attorney’s opinion that any maximum allowed amount of development is only a potential maximum amount which is subject to various limitations under Measure Q. It also agrees that it is appropriate for the City to engage in a planning process that will result in reductions to the maximum amount of development potentially allowable.

The Club urges the City to initiate that planning process which would culminate in the

city council placing a final revised plan reducing the amount of development on this remaining portion of the old Santa Fe land to a voters for their approval as required under Measure Q.

The Club’s purpose would be two fold: (1) To ensure that the amount of remaining development under Measure Q is limited per the law and the conditions at and adjacent to the site; and (2) To assist the Club, CESP, Save the Bay, and Golden Gate Audubon Society, and many citizens in their efforts to acquire this land as an addition to the Eastshore State Park. Indeed, given the condition of the land, the Stables area could be a fine place for locating turfed playing fields, if the weather permitted such a use and other conditions were met.

Therefore, the Club urges the City Council to begin that planning process and commit to placing the final plan on the ballot. The Club also requests that this matter be agendized before the Council to allow for public input and comment.

Sincerely yours,

Norman La Force

Chair, East Bay Public Lands Committee &

Chair, Chapter Legal Committee

cc: Pres. John Sutter and AGMs Bob Doyle and Larry Tong East Bay Regional Park District

Art Feinstein and Russ Wilson, Golden Gate Audubon Society

Cynthia Patton and Briggs Nesbit, Save the Bay

Dwight Steele, Sylvia McLaughlin, Stana Hearne, Citizens for the Eastshore State Park

Ed Bennett and Toni Loveland, Sierra Club