The Port of Oakland recommended entering negotiations with ballpark proponents OWB, setting the stage for a feasibility study and EIR on the Howard Terminal site. The last few weeks have had the Port’s Board focused on entertaining maritime bids at Howard Terminal, in order to determine that there still could be potential shipping or cargo tenants. With subsequent bids rejected, the Port is entertaining the idea of a non-maritime use, a ballpark.
According to EBX’s Robert Gammon, OWB would pay $100,000 for a one-year exclusive negotiating term (option). Presumably, that $100,000 would pay for the feasibility study, with other money coming for the EIR once the Port considers the ballpark a project to be studied under CEQA law.
Ballpark proponents believe the EIR and land prep can be done quickly. My stance from the beginning has been that it will be significantly more difficult than claimed, due to the history of land use at the site, previous site contamination, and required input from the State Land Commission.
The SLC provided a hint of what’s to come, when they came out in support of a plan to revamp the now-shuttered Barnes and Noble space at Jack London Square. The building is set to become an entertainment center called Plank, which will contain a bowling alley, outdoor bocce court, arcade, and restaurant/bar. Though the scale and scope of the revamp of an existing is miles away from a brand new ballpark, it’s easy to see from the document how the SLC might react to different types of uses.
The SLC and Port of Oakland have for decades designated JLS as a mixed-use site with maritime and commercial uses. It makes sense that there is a public square, a limited amount of commercial development, ferry terminal, marina, and other water-oriented uses.
The Public Trust lands include all lands that were tide and submerged lands and beds of navigable waters at the time of California’s admission to the Union, even if these lands have since been filled. These lands are held for the benefit of all the people of the State and, therefore, must be used for statewide as opposed to purely local public purposes. And what is most pertinent to this discussion, Public Trust lands must be used for Public Trust purposes, which are generally maritime-related, including commerce, navigation, fishing, as well as water-oriented recreation, visitor-serving uses and environmental protection.
In prior analyses of trust consistency, Commission staff has given great weight to whether a proposed use enhances or facilitates the general public’s enjoyment of Public Trust lands. Likewise, Commission staff has carefully analyzed the proposed uses of the Pavilion 1 site in the context of the specific location and public’s trust needs. Although each individual component of the project can be considered as part of a project, each with varying degrees of Public Trust consistency, the primary use or purpose of a project must be in furtherance of the Public Trust. For example, a mixed-use development may be considered incompatible with the Public Trust not because it contains some non-trust elements, but because it promotes a “commercial enterprise unaffected by a public use” rather than promoting, fostering, accommodating or enhancing a Public Trust use. On the other hand, a project whose primary purpose is consistent with the Public Trust can still be considered consistent with the Public Trust despite some ancillary or incidental components that, standing alone, would otherwise be inconsistent with the Public Trust. At the same time, ancillary or incidental project components that are consistent with the Public Trust will not make a trust-inconsistent primary use permissible.
Although Howard Terminal is adjacent to Jack London Square, it has its own use covenant that is separate than the one written for JLS. To allow for Howard Terminal to be available for non-maritime use, both the SLC and the BCDC will have to get involved, as I mentioned last fall (my emphasis in bold):
Tidelands Trust Compliance
Howard Terminal is currently encumbered by the Tidelands Trust. Uses of the property are therefore generally limited to water oriented commerce, navigation, fisheries, and regional or state-wide recreational uses. Approval from the State Lands Commission would be required for any uses of the property that are not Tidelands Trust compliant. Many non-maritime activities are not considered Trust compliant uses and thus may require lengthy negotiations with the State Lands Commission, and potential legislation, before the Port could proceed with such non-Trust uses for the property.
That language came from a Port staff report on Howard Terminal. So did this:
Other Entitlement, Environmental & Regulatory Issues
Howard Terminal is subject to a complex set of regulatory permits and deed restrictions related to the hazardous materials in the soil and groundwater underlying the property. Development of new structures that penetrate the ground surface or changes in land use will require notices to regulatory agencies, and compliance with existing health, safety and soil management plans. Non-maritime uses will likely require extensive and expensive clean-up or other protective environmental measures, precluding expeditious turn-over of the property to a new rent-paying tenant. Further, non-maritime uses will likely require numerous land use entitlements including local land use permits, an amendment to the Oakland General Plan, and CEQA review. These activities could take several years to complete.
None of this impossible to navigate. However, as we’re seeing with the Warriors’ plans in San Francisco, projects on the water have an annoying tendency to get extremely expensive and bogged down in red tape. Oakland Mayor Jean Quan and many backers of Howard Terminal believe that Howard Terminal can be done without incurring significant costs or excruciatingly lengthy review periods. How long can all of this take? Brooklyn Basin, which broke ground yesterday, took 10 years to get to yesterday’s ceremony. While some of that delay was due to the recession, much more had to do with process, lawsuits, legislation, land swaps, and negotiation. Can a ballpark at Howard Terminal defy history? Perhaps. Then again, Mayor Quan may not be around to support it a year from now.