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  Expert Says Planning Retreat Violated Brown Act
February 5, 2005

An article in today’s West County Times quoted First Amendment expert Jim Ewert as asserting the January 29 Planning Retreat violated the Brown Act. The West County Times article follows, as well as comments from a number of E-FORUM readers about their impressions of the meeting. While there was a range of reactions to the content of the meeting, most seemed to agree that the Brown Act was violated – at least in spirit.


While the meeting was going on, I was in Miami at the New Partners for Smart Growth Conference, learning among other things the latest techniques for community participation in the planning process. In Richmond, the community was hearing the latest techniques for limiting community participation. Since I was not at the meeting, I am in no position to comment on exactly what took place last Saturday, but I did attend all three preceding workshops where the same concepts for “improving” the review process, such as the “DCC” screening of projects, were discussed.


I believe these meetings are part of a Planning Department plan, encouraged by some high-profile officials, that is part of a dangerous crusade to strip the public of a voice in reviewing potentially controversial development projects. This crusade is clothed in innocent appearing initiatives to move non-controversial projects into review by Planning staff rather than the Design Review Board. Who could disagree with that? I have no problem with the concept staff review of such projects, but I do have problems with the people who would be doing it, such as one senior Planning staff person who apparently routinely approves all fence height variance applications with no documentation of justifications or findings.


I also am deeply troubled by a Planning Department that picks and chooses what codes and ordinances it wishes to enforce. This is not the kind of operation that gives the citizenry confidence that it will be looking out for their interests. For example, the Planning Department does not hesitate to implement the variance procedures described in the December 2003 amendment to the Zoning Code, but it has not implemented the registration of non-conforming fences required by the same ordinance. The Planning Department routinely approves projects with conditions but almost never takes action to enforce those conditions. The Planning Department totally ignores portions of the 1999 Historic Structures Ordinance and, in fact, has led the charge to abandon it completely.


The Planning Department, in my opinion, sees itself primarily as an adjunct staff to large developers, looking for the most expeditious way to get their projects approved with the least conditions in order to secure for the City the fees, taxes and other goodies that quickly follow. In this respect, the Planning Department has become more a fund raiser than regulator. The so-called “DCC” process, which is intended to secure “political” approval of a project prior to public scrutiny under CEQA or any other discretionary process is, in my opinion, a dangerous, and probably illegal, move to undermine public scrutiny. The idea is to have a few people, including the mayor and city manager, sort of give a “thumbs up” to projects early on and send a signal to the mayor-appointed Design Review Board members and Planning Commissioners that they can work around the edges of the design but “do not even think about major changes, delays, or multiple hearings.” Indeed, the Planning Director has said the Design Review Board should have only a single bite at the apple, and if they can’t approve a project, it should move immediately to the City Council.


The real problem with these controversial development projects is an internal one that the City can fix without gutting the public review process. The example that has been cited by staff as the poster child for what is broken is the “Macdonald-80” project that involves a shopping center anchored by Target on the site of the existing former Montgomery Wards store. This project was made possible by Richmond Redevelopment Agency involvement in the assemblage of parcels, and the City Council was being briefed on it and authorizing City participation long before it entered the development review process. There were actually several City Council members, maybe even a majority, who asked to be involved in crafting design directions while the planning was still in the conceptual stage. Those Council members were aware that there was a potential conflict between traditional big-box site planning, which emphasized blank walls, huge parking lots and vehicle circulation over the pedestrian-friendly streetscapes envisioned by a citizens group participating at the same time in the Macdonald Avenue revitalization plan.


City staff told City Council members that they should not worry prematurely about design issues but should instead wait for the development review process to take place where such issues would be addressed by the Design Review Board. Well, guess what! When the Design Review Board first saw the project, they had the same concerns about blank walls, huge parking lots and vehicle circulation taking precedence over a pedestrian friendly streetscape. They made Target come back to multiple meetings to try to improve the design, which got a little better but never really succeeded in becoming good urban design. Instead of congratulating the Design Review Board for getting Richmond something improved over what was initially offered, staff criticized them for holding up the project, and the Planning Department initiated an effort to redesign the process to keep such delays from ever happening again. What’s driving this, of course, is the City’s insatiable hunger for sales tax revenue that trumps the City’s interest in urban design. What Richmond should do is not destroy the process but instead adopt the best practices of many cities that define their urban design objectives before committing the City’s assistance to developers or selling them redevelopment property.


A similar scenario has been taking place with Toll Brother’s proposal for the Terminal 1 site, called “Point Richmond Shores.”  When the Redevelopment Agency last invited proposals from developers, I and some other City Council members wanted to judge the proposals not just on price but also on design. We also wanted to get the community involved in reviewing and selecting the proposals and in providing preliminary input into the design process. “That,” we were once again told, “was inappropriate.” “What does the City Council and the community know about design,” we were admonished, “The developers are the experts.” Toll Brother’s design is now coming under full attack from a group of well-organized, well-heeled and technically proficient citizen-experts who will, no doubt, slow the process down by months even if they are not successful in changing the design. The City seems to be only concerned with the $13 million sales price that it needs to balance this year’s budget. Already, City staff has conceded that the Design Review delays will move the earliest possible approval date from June 2005 to October 2005. This all could have been avoided by putting public review of the project at the beginning instead of the end.


I have to say that I have had a 32-year unabated feud with the Richmond Planning Department that spans more than a half-dozen largely incompetent planning directors and dozens of staff members, most of whom are long gone. The best staff members were always the first to leave because of an atmosphere that valued short term “economic development” over all other planning objectives, a value system somewhat different than they had learned in school. Not only has that not changed; it’s getting worse.


Open-meeting law may have been violated
Posted on Sat, Feb. 05, 2005


The Richmond City Council may have violated the state Brown Act, which governs public access to meetings of elected officials, with an unposted planning retreat Saturday.

Seven of nine council members attended the meeting, convened to review changes in the design review process.

It is unclear if adequate notice was given for the four-hour retreat; the planning department Web site cast it as an "invitation-only" event.

In addition, although Deputy City Attorney Wayne Nishioka rejected a bid to have the council vote on future policy, Planning Director Barry Cromartie conducted a "straw poll."

Interim City Attorney Everett Jenkins said that straw poll merits closer scrutiny.

The meeting drew 50 to 60 people, but some say they would not have known about it if they hadn't been informed by others. It is unclear exactly where, and when, notice was posted.

State law requires governing agencies to notify the public of meetings. To ensure critical decisions affecting the public are not conducted in private, it prohibits a majority of members of an elected body from discussing public business without notice.

"My feeling, which I communicated at the meeting, was that when you actually get to a vote -- whether you call it a 'straw poll' or anything else -- that crosses a line for me," Vice Mayor Jim Rogers said. "I did not participate, because I did not think it was fair to do that without flagging it for the public first, and I don't believe that was done."

Council members Tom Butt and Mindell Penn were out of town and did not attend the meeting.

Mayor Irma Anderson was not reachable for comment.

"The idea was that people were wanting to hear what the council had to say," said her legislative aide, Shilen Patel. There was no official vote taken, he said.

Vote or not, it doesn't matter, public access experts said Friday.

"This is exactly the kind of thing the Brown Act was written to prevent," said Jim Ewert, First Amendment expert and legal counsel for the California Newspaper Publishers Association.

"Regardless where it was posted, it has to be someplace where the public has access 24/7," Ewert said. "If it's not posted in locations that provide that kind of access, they're in violation. And if they didn't notice the public that the council would be discussing city business there, which they clearly were, that is a textbook Brown Act violation.

"If they all go to a ribbon-cutting ceremony at the local Wal-Mart, that's not a violation," he said. "When they took a straw poll, that was a violation."

Proposed changes in the design review process would ease smaller and less controversial projects through the city approval process more quickly, with a committee including the mayor and city manager making a preliminary decision on their viability.

"It was a public meeting, but we also invited certain people," said Steve Duran, director of the department of community and economic development. "It was Barry (Cromartie's) retreat, and he tried to get a good cross-section of people." Those invited include members of the council and the planning commission, he said.

Richmond Neighborhood Coordinating Council President Eleanor Loynd also complained that while one of the meeting's three objectives was to seek consensus between various interests in the community, only the council was asked to weigh in with opinions.

"I don't even think that even polling the council was appropriate," Loynd said. "There were no microphones, so we could not hear anything they said."




  • I don't remember saying what Eleanor Lloyd attributed to me, but I did comment something similar to her privately, which was, "I did not see a public notice and agenda posted of this Brown Act meeting.” Although it was the 4th of a series of workshops, I did not pay attention to them being announced until your e-mail the day before...


It was a valuable meeting. Thank you for announcing it to the public via your e-mail, or a number of people like myself would not have attended. It was well organized and paced by Cromartie. I don't know if it was taped, but you should read the Powerpoint dated 1/29. I was surprised to see 7 of the 9 councilmembers present. Had you been there you would probably have agreed that the polling of the councilmembers was a violation of the Brown Act, however minor. I am sympathetic to the frustrations expressed by Cromartie and applaud his effort to preemptively resolve potentially political matters that hamper major projects. He had some good ideas and said he wanted council direction before he further developing his proposals to bring back formally. Nishioka ruled that it was all right to poll the 7 councilmembers in the meeting.

I was sitting behind Steve Duran, occasionally asking him questions. His comment to me was that Barry's proposal was putting out a lot of items primarily to address one issue, the process to address major developments, such as Target & Campus Bay.

I would say that most what Cromartie proposed is okay, with a little tweaking. E.g., his proposed DCC should include at least one experienced councilmember, not just the mayor. Possibly, the vice-mayor. Regarding making the design review process, the devil is in the details and some individuals…

This is the first time that I have paid attention to Cromartie. I think that he is okay - organized, strategic, and energetic. Not perfect, he tried to control the direction of the decisions.


  • Councilmember Butt, I must say that I do agree with your observations/conclusions you've stated in your last paragraph!  I fear the (majority) council's attitude could well lead Richmond to wrack, ruin and ultimately bankruptcy.


  • I too was in attendance on Saturday, January 29th but I do not share Ms. Loynd's opinion of the meeting.  It was obvious to me that Mr. Cromartie was merely trying to seek guidance from the Council on his course of action in correcting a clearly ailing permit system.  He spent the majority of the meeting explaining his proposed plan of action and allowing the audience to speak their opinions on the current system and on his proposal.  I thought it was one of the more productive City meetings I have attended.


  • In the next day or two I will be sending you, and other Council members, two examples of a system that is not working.


  • I attended the planning meeting, and I would agree with the complaint of Ms. Loynd regarding the last 15 or 20 minutes of the meeting. Indeed, I was sitting directly behind the council members as they came forward to "give their opinions", "do a straw poll" or whatever. However, while clearly unfortunate and poorly structured, I have the distinct impression from comments made by various Council members at the time that they were as confused by the format for the final portion as the rest of the audience, A number made statements to that effect - Rogers and Gayle McGlaughlin specifically and Maria, conveniently, just managed to step out before the request for all Council members to come forward was made).  This in no way excuses what occurred, but I suggest that the advice from the City Attorney's office to those putting on the program was as much to blame for apparently indicating that such "polling" was legally permissible as were the intentions of the various City officials in attendance who sponsored the "retreat".


On the other hand, again as an attendee (who did not speak but rather went to learn), I felt the majority of the program was well presented, very informative regarding the various roles of the Planning Dept, Design and Review, et al and some of the requirements needed to handle various types of applications the Planning Dept handles day in and day out. I felt those with different opinions voiced their views (which often were critical of the present process), were not cut off or otherwise harassed, and by and large the idea of an open retreat was accomplished.  As I said at the beginning, the last 15 or 20 minutes took away much of the value from the retreat as a whole.


By the bye, I assume you, even though you did not attend, were never advised that, should you have attended, were expected to vote on a formal approval of suggested changes to the City's formal planning process? If this is correct, who, on the City Council, do you believe was behind the decision to ask for a "formal" approval. As I remember, you were practically the only Council member not in attendance...


  • You're right about the Brown Act violations; the Chamber's representatives were very alarmed by it.  However, please don't let your dislike of Barry sidetrack the process of implementing administrative review.


  • I agree with everything you say here, but...  the flyer was not a notice of a special City Council meeting.  It did say that City Council members might be in attendance, along with community, etc.  Any kind of vote by the CC members was a clear violation of the Brown Act. I attach the flyer.


  • "Workshop" in no way describes the very heavily moderated meeting I attended. "Retreat" from public discourse better fits.