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UPC's Political War Against Brisbane and the Strange Role of Senator Jerry Hill

The Brisbane City Council at its meetings of March 13th and March 22nd made it clear that its decision-making processes on the Planning Commission appointments and on the Baylands land uses were greatly influenced by Senator Jerry Hill.

Should the people of Brisbane accept an offer they can't refuse?

First the Planning Commission appointments: Among the 12 candidates were 2 incumbents (Jameel Munir and Greg Anderson) and another recent member of the Planning Commission who had not been reappointed in summer, 2017 (Carolyn Parker). One major attribute that they all shared was their participation in the public hearings on the Baylands application and their eventual recommendation to the City Council. That recommendation included a denial of the developer's 12 million square foot plan and its replacement with 1 to 2 million of square feet of commercial development in addition to the square footage of current buildings on the site and Recology's expansion. Housing was not included because the unanimous Commission felt that there was insufficient study in the Environmental Impact Report of how the "triple superfund site" (read The Baylands Superfund Site History) was going to be safely remediated for residential occupants.

Nevertheless, when Mayor Conway gave his explanation for his decisions on the planning applicants, he made it clear why he had no intention of voting for any of the current or former Planning Commissioners. According to Mayor Conway, Senator Hill told him that when he learned of the Planning Commission's recommendation, he made his decision to pursue legislation that would take local land use control out of the hands of Brisbane. Thus, evidently, in order to placate Senator Hill and presumably some of his colleagues so that they would not introduce legislation that imposed UPC's development plan on Brisbane, those Planning Commissioners had to go. Their years of service, diligence and competence were irrelevant. They were politically necessary scapegoats. Three other Council Members implicitly agreed with Mayor Conway as they voted along with him. Only Council Member O'Connell voted for the 3 former Commissioners.

During the course of the dialogue between the applicants and the Council, it was frequently mentioned that the Commission's job is "to follow the rules." In the case of the Planning Commission the rules are State law, the Municipal Code and the City's General Plan. Making political judgments is the province of the City Council. Nevertheless, all 3 of the Baylands-decision Planning Commission applicants were asked if they would change their recommendation based on more recent developments. All 3 said that they had followed the rules and since none of the rules had changed they would stand by their previous decision (2016). One of the rules that is still-in-place is the 1994 General Plan's prohibition of housing in the Baylands.

UPC's War: However, what had changed was not the rules but the political landscape. After the Planning Commission's recommendation, Universal Paragon Corporation (UPC), the landowner and developer for most of the Baylands, initiated a political war on Brisbane. Their first success was getting the San Francisco Chronicle to publish prominent articles and editorials that falsely claimed Brisbane was about to approve 8 million square feet of commercial development with no housing adjacent to a Caltrain station. Therefore, according to the Chronicle, Brisbane was a prime example of why California had a housing crisis. Both arguments were false, but the wider media believed them and so did the regional and State elected officials (read The Truth about the Brisbane Baylands Controversy ).

The second victory by UPC in the political war on Brisbane was orchestrating a campaign by representatives of the housing industry, housing advocates, construction unions, corporate leaders, a few prominent elected officials, and even some environmental organizations in support of the developer's plan. Of course, none of them had bothered to study the Environmental Impact Report or the real facts of the situation. In a war-setting fairness and truth are irrelevant. These warriors showed up in droves to Council meetings on the Baylands advocating and even threatening.

The third UPC victory was convincing key State legislators that Brisbane was a pariah and that punishing it would be a feather in their pro-housing image. The most explicit attack on Brisbane was an August, 2017 bill whose main author was Senator Jerry Hill, and it was co-authored by Senator Wiener and Assembly Members Berman, Chiu, Mullin, and Ting that essentially imposed the developer's plan on Brisbane without any consideration of the remediation issues, Brisbane's General Plan, the fiscal implications, or affordable housing (McMorrow).

The Baylands: The Brisbane Council and staff realized at that point that no local land-use decision made by the Council would be respected by members of the State Legislature unless the legislators were involved in determining whether it met their housing expectations. Since the Legislature has total sovereign power over all lesser jurisdictions in California (cities, counties and districts), the Council's only hope to avoid total imposition was obtaining lobbying help in Sacramento and negotiating with key members of the Legislature, especially Senator Hill. As lobbyists the Council hired the law firm of Manatt, Phelps, and Phillips. For their services the Council authorized an appropriation of $300,000.

At the March 22nd Council meeting Tom McMorrow of the Sacramento lobbying firm gave a legislative history of all the Housing bills passed and under consideration by the Legislature. He believes that the Legislature, in agreement with the Chronicle, blames local governments for the housing crisis. All other reasonable causes, of which there are many, are swept under the awareness rug. The language used by the media and State legislators conveys the false view that local, public jurisdictions actually build most of the housing, which of course they do not. Private profit-driven housing contractors build most of the housing. Small communities like Brisbane have very limited financial means to build or subsidize affordable housing. And the one means they did have, redevelopment, was taken away by the State.

It's ironic that many State Legislators, most of whom come from local government positions, when they get to Sacramento, not only have no problem over-riding local democratic control but also believe that they have acquired superior knowledge which they should impose in legislative mandates. Senator Weiner is a prime example of this syndrome. Senator Hill seemed to be an exception to this behavior. He had many years of city and county experience before being elected to the Legislature. He served many years on the San Mateo City Council and then the San Mateo County Board of Supervisors. Therefore, his behavior toward the Baylands housing issue seems strange and at least ostensibly inconsistent with his prior conduct. It was surprising to hear Mr. McMorrow, Mayor Conway and Council Member Davis report that Senator Hill seemed to believe that the Planning Commission's recommendation was the City's final policy on Baylands housing, even though the Council had not even started its deliberations. His incorrect belief presumably justified why he had to author legislation that unilaterally imposed the developer's plan. It doesn't seem credible to me that Senator Hill would make such a mistake. Senator Hill certainly knows better. I can believe that he didn't know much about the extent of the unremediated contamination of the Baylands, but his reported initial dismissal of its importance also lacks credibility. To me it does seem possible that he had just accepted the developer's false narrative, and that there were powerful interests, such as UPC's lobbyists, encouraging him to do so.

However, after being confronted with interventions by the City's lobbyist and long sessions with Mayor Conway and Council Member Davis, Senator Hill then claims that he took leadership in the anti-Brisbane legislation in order to prevent the worst version from becoming law as long as he got Brisbane to do his bidding. His expectations include 1800-2200 units of housing near the Caltrain station. In return he promised to fight for full housing-level remediation in contrast to the immediate northern Schlage Lock site in San Francisco (also owned by UPC). It has DTSC approved podium level of remediation. That means that building living spaces and residents, including children, are not supposed to come into contact with the surface of the soil.

UPC is not party to the informal deal between Brisbane and Senator Hill. Presumably, if UPC is not happy with the Hill/Brisbane deal, it could go to more compliant legislators and get legislation to overturn it. Yet the full Council has accepted Hill's assurances and is moving ahead by adopting his minimum requirements and preparing a General Plan amendment for the November ballot. However, as Brisbane's own lobbyist said, the legislature can do whatever it wants in regards to local land use decisions. And any attempt to fight them would be endless and very expensive. Will Senator Jerry Hill be able to save Brisbane from unconditional surrender in the war with UPC as Senator Quentin Kopp did in Brisbane's war with the initial developer of the Northeast Ridge (read the story in the Brisbane history books)? Time will tell.

Ray Miller, Former Brisbane Mayor



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