E-Mail Forum
  More on the Sham Point Molate Alternatives Study
November 12, 2010

One correction from “TOM BUTT E-FORUM: Study of Alternatives - Point Molate Goes to Pot:” Architect Darrell Caraway is not associated with the discredited design firm, Design, Community & Environment (DCE). Mr. Caraway independently submitted an alternative plan for Point Molate that, like the suggestions I submitted, was not considered by DCE. I apologize to Mr. Caraway for associating him with DCE.

Pt  Molate 01.jpg

Incidentally, I received an email response from Berkeley Daily Planet Publisher Becky O’Malley who noted: “As a Berkeleyan who has suffered mightily from DCE's shoddy work, I thank you for this description [of DCE].  I couldn't have put it better myself.”
With some digging, I have found additional information about the process that led to the flawed alternatives study.

The portion of Maria Viramontes’ motion pursuant to Agenda Item K-1 on May 18 that extended the LDA with Upstream for nearly a year dealt with the alternatives is as follows:

…request an amendment to the LDA authorizing staff to include an area in the LDA that would provide for the discussion, community outreach, and for policy work to prepare for all alternative projects to strengthen that discussion publicly and to bring forward into the LDA consideration of the alternative projects and as appropriate included in the California Environmental Quality Act (CEQA) document, when it does come forward eventually before the City Council…

The 6th amendment was drawn up and signed miraculously within 36 hours of the K-1 vote (when did government ever act so fast?) contained content that was never reviewed by the City Council or noticed to the public.

A review of the video of the May 18t City Council meeting appears to show (start at 3:06 in this video) Councilmember Viramontes reading (and having difficulty making it coherent) prepared text.  The tape also shows Viramontes directly addressing Upstream representatives from the dais stating that she wanted to make sure the amended K-1 motion was "OK with Upstream".
The 6th Amendment was drafted by staff and signed by the city manager without the Council seeing it. The “Community Outreach Process” in the 6th Amendment is described as follows:

3.            Community Outreach Process

  • As consideration for the City to enter into this Amendment, Developer agrees to participate in public community outreach effort, at notices public workshops (the “Community Outreach Process”). The purpose of the Community Outreach Process shall be to solicit additional community input on other alternative uses prior to the City’s consideration of the final Point Molate Mixed-Use Tribal Destination Resort and Casino project EIS/EIR (the “FEIR”), In connection with the foregoing, in addition to the payments provided in Section 2, above, Developer shall pay an amount not to exceed Fifty Thousand Dollars ($50,000.00) for the cost of workshop facilitation, report preparation, and economic feasibility analysis.
  • Within thirty (30) days after the date of this Amendment, the City Manager and Developer shall jointly develop procedures for conducting the Community Outreach Process and shall jointly select a workshop facilitator and economic analysis consultant. The Community outreach Process shall include no fewer than three (3) community outreach sessions. The Community Outreach Process shall be completed in a timely manner in order to permit a written report to the City Council within one hundred eighty (180) days after the date of this amendment
  • Prior to its consideration of the adequacy of the FEIR in compliance with CEQA, the City Council. As lead agency under CEQA, shall exercise its discretion to determine whether to include, as project alternatives in the FEIR, any of the proposals which were identified in the written report referenced in Section 2.2(a) above. As contemplated in the LDA, and consistent with Section 2.2(a) of the LDA, the City shall give equal consideration to each project alternative identified in the FEIR.


The contract with the facilitator, Community & Environment (DCE), was executed July 26, 2010, not by the City, but by Upstream. Unlike the rest of the EIR process, Upstream was both the client and the source of payment to the consultant. The City Council was never shown the contract and had no idea of its content.

The contract with Design, Community & Environment, Inc. concluded with a process for review of the report that included the following work products:

  • Administrative Draft Report: Including description of alternatives and economic analysis based on the Evaluation Criteria Summary Sheet.
  • Public Review Draft: Revised based on Upstream and City Comments.
  • Final Report: Revised based on City Council Direction.


On July 20, mayor McLaughlin placed an item on the City Council agenda requesting clarification of the process by which the 6th amendment had been drafted.  July 20th was a marathon council meeting, and it was voted to terminate the council meeting prior to the reading of this motion. The agenda item was never carried forward to a subsequent city council meeting.

A citizen, Joan Garrett, filed a cure and correct for Brown Act violations revolving around the K-1 item vote on May 18th which spawned the 6th amendment.  Assistant City Attorney Bruce Goodmiller's response denied any violations. Ms. Garrett’s complaint was that the Viramontes motion (K-1 of May 18) so radically changed the original motion to be voted on that the amended motion materially impacted the terms of the LDA to the point where the amended motion should have been agendized as a separate item at a subsequent council meeting with full public notice and that the written and executed 6th amendment (May 20) does not reflect the amended K-1 passed on May 18th, which materially changed and added to the LDA with previously undisclosed and un-noticed information and terms.  The 6th amendment was published and executed by May 20th.

I continue to have several questions about the alternatives process that I have posed to staff:

    • Why was the client for the facilitation and report Upstream and not the City?
    • Why was the City Council never provided the 6th Amendment or the contract with Design, Community & Environment, Inc?
    • Was there an Administrative Draft Report? Did anyone from the City review it and comment? If there were staff comments, please provide them to me.
    • Is the document now on the City’s website the “Public review Draft?” If not, why is it on the website?