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Tuesday, May 19, 2020

Breaking News: Council to Name 47th Street 'Steve Dain Drive'

Council Moves to Honor Former Emery Teacher After School District Twice Fails

Breaking (City Hall):
Tonight the City Council moved to change the name of a portion of a street in town after an Emeryville PE teacher that was fired by the Emery Unified School District for “immoral conduct” in 1976 after he had gender confirmation surgery, transitioning to a man.  The unanimous vote  to rename 47th Street between San Pablo Avenue and Doyle Street ‘Steve Dain Drive’, came after the Emery School Board failed to name the school gymnasium honoring Mr Dain last summer following a tumultuous public debate there.  The vote tonight directs the staff to bring the issue back to the Council for the final OK at a future meeting that hasn’t been announced.  Emery High School and the gymnasium are located on 47th Street, a piece of infrastructure owned by the City of Emeryville.

Council member John Bauters was the most animated among his colleagues during tonight’s discussion, stating he found the School Board had “reached a new level of disappointment” and that he was “very unhappy” over their refusal to make amends for the unpropitious firing of the Emery teacher, “terminated for who they were” Mr Bauters said.  However the lone School Board supporter of the naming of the gym to honor Mr Dain last year, Board member Susan Donaldson, expressed support for the renaming of the street in a phoned in comment to the Council tonight.  “I was on the losing side” Board member Donaldson told the Council recalling last year’s School Board retrenchment on the Steve Dain issue, but she praised the Council’s vote to “right this wrong” done by the district to the former Emery teacher.
Former Emery Teacher of the Year Steve Dain
His courage will finally be remembered for all
time with the naming of our street in his honor.

The short section of 47th Street to be renamed has the AC Transit’s bus yard facility and the Emery gym and high school on it, fittingly the same address where Mr Dain was a teacher for ten years.  Notably, during his time at Emery, Mr Dain was elected teacher of the year before he was terminated by the district.  He died in 2007 at the age of 68.
There are no residents or businesses located on the portion of the street to be renamed.

After the school district balked on naming the gymnasium after Steve Dain last year, Board members announced they would seek to honor him in some other unspecified way but they failed to do that, a fact noted by Council member Bauters tonight.  Councilwoman Dianne Martinez raised the issue of Emeryville’s legacy with the renaming of the street, recalling that Steve Dain is “an important part of our history.”
But it was Mayor Christian Patz that seemed to best capture the mood of the Council, “you should be allowed to be who you are” he said as he cast his YES vote.

The City Council will make the vote official at a subsequent meeting followed by a street sign replacement, probably this summer.

Monday, May 11, 2020

Breaking News: Emeryville Police Chief Announces Her Retirement

Today, after serving four and a half years on the force, Emeryville’s chief of police Jennifer Tejada, announced she is retiring, effective in mid June the Tattler has learned.  Chief Tejada notified the City Manager, Police Department employees and the City Council of her imminent departure earlier today.   No reasons were offered yet aside from her desire to leave service.  Ms Tejada is 57 years old.  Chief Tejada's short one month notice will necessitate the City of Emeryville to begin searching for a replacement directly.

Chief Tejada was hired in September 2015 after a four and a half month search by the City of Emeryville.  She previously had been the chief of the Sausalito Police Department, having served there for four years.

A controversial chief of police for Emeryville, Ms Tejada instituted a program of “mindfulness”at the department including liberal use of officer yoga.  Sources within the department have told the Tattler over the Chief’s tenure, her managerial style is generally not well received by the rank and file who have complained it has sometimes come at the expense of basic and necessary police work. 
Retiring Police Chief Jennifer Tejada
She made the cover of 'Mindful' Magazine

in 2017.

The Tattler has often been a critic of Chief Tejada’s policing policies, especially her equipping Emeryville beat officers with 'AR-15' assault rifles in their everyday neighborhood rounds and her injecting racist entrees into the Emeryville police blotter released for public consumption.
Ms Tejada insists the rifles in question are not assault weapons, contravening public pronouncements from the State of California and chiefs of police from around the Bay Area, all of whom confirm the rifles now carried by Emeryville police do qualify as assault rifles.
The Chief was told by the City Manager to take down the racist blotter entrees after a Tattler exposé in 2016.  She finally complied after a second Tattler story caused widespread embarrassment at City Hall.

More recently, Ms Tejada was revealed to have failed to alert her officers and technician employees that the Emeryville Police Department is the Emeryville enforcement arm of the mandated Alameda County COVID-19 emergency orders, leaving the rank and file believing the Alameda County Sheriff's Office was the agency tasked with that work.  As reported by the Tattler, an unreported number of Emeryville citizen complainants were mistakenly not assisted and/or deferred to the sheriff's office as a result.

Ms Tejada leaves the Emeryville Police Department after 24 years in police work.

Saturday, May 2, 2020

Emery School Board Continues Undemocratic Tradition of Appointing Its Members

Yet Another Appointment to Emery School Board
After Another Elected Trustee Resigns

Emeryville, Meet Your Newest Board Member- 
John Van Geffen; Advocate for Business Interests 
& Foe of the Working Poor 

News Analysis
In his third attempt, local attorney and former City Council candidate John Van Geffen was finally successful this week in securing an appointment to the position of Trustee on the Emery School Board, a governing body that is supposed to be elected by the people of Emeryville.  However due to recurring resignations among Board members, executive appointments to this legislative body here are often the norm.  Also common is the appointing of community members to the Board that have been previously rejected by the voters of Emeryville.  Or in the case of Mr Van Geffen, a candidate that had been previously rejected by the voters AND (twice by) the School Board.  He now takes over the position of former Trustee Sarah Nguyen who resigned earlier in the year.

This week's continuation of Emery's Board of Trustees tradition, manifested by the elevating of Mr Van Geffen, comes after his 2016 City Council bid when he came in last place in a field of six candidates.  The deeply unpopular John Van Geffen was bested by current Board member, appointee Brynnda Collins, who also lost her Council bid in 2016, coming in 5th place in the six candidate field.  Unlike Mr Van Geffen however, Ms Collins actually won a subsequent (2018) School Board bid put to the voters.
Political office aspirants facing voters is the norm in a functioning democracy except here at the Emery Unified School District where Board members commonly resign before their terms are finished.
Third Time's a Charm-
Newly Appointed School Board Member
John Van Geffen

He lost a City Council bid and two previous
attempts to get appointed to the Board.

Newly minted School Board member Van Geffen was a controversial pick for the existing four Board members with his conspicuous ‘limited government’ conservative philosophy and open hostility to Emeryville's popular and progressive minimum wage and 'fair work week' ordinances in his failed City Council bid (see the League of Woman Voters video below).  Whereas Emeryville voters (and previous iterations of the School Board) soundly rejected Mr Van Geffen's attacks on the working poor in the community in 2016, the newest iteration of the Board now see a simpatico fellow traveler they can work with.

The appointment of Mr Van Geffen to the Board of Trustees adds to two existing other appointees currently on the Board.  Not including Board member Collins who was appointed and finally elected,  the Emery Unified School Board now is comprised of only three members whom voters have elected and three that have not been either rejected at the ballot box or appointed to their Board position.  A spare majority of three were selected by the people of the City of Emeryville, a tenuous majoritarian condition given Emery's historic inability to hold onto Board members for their full terms.

Readers may wish to review Mr Van Geffen's presentation in the League of Woman Voters' 2016 City Council candidates' forum in the video below and the Tattler 2016 City Council candidates' questionnaire, in four installments:

Saturday, April 25, 2020

Police Flummoxed by County COVID Order at Emeryville Construction Sites

COVID Cat & Mouse Game Plays Out at City Construction Sites

Police Unable or Unwilling to Force Compliance

Workers at the Maz housing construction site on San Pablo Avenue got a surprise visit from the Emeryville police on Monday who, responding to complaints from citizens, gently reminded the workers they need to wear face masks to help prevent the spread of the COVID-19 virus in the community.  It marked the beginning of a week of community calls and police responses to this and other construction sites in Emeryville where large numbers of workers have been flouting the Alameda County Face Covering Order, issued on April 17th.  The dynamic of police prompted to show up to ensure compliance has descended into a puerile if deadly game of COVID cat and mouse, workers keeping their masks at the ready to slip on at the sight of police cars or even an Emeryville Tattler photographer (we were sneaky and quick and caught several workers before they had a chance to slip their masks on).  And so the City of Emeryville appears to be flummoxed by strong willed construction workers and rendered inert in their charge to provide public safety.  Emeryville, it would appear, is not taking the COVID-19 virus seriously.

From the beginning when the pandemic arrived in our area, the Emeryville Police Department has shown a lack of concern.  The Chief of Police, Jennifer Tejada, didn’t alert her troops to the fact that it is the municipal police departments in Alameda County who are charged with enforcement of the county order decrees for the deadly virus.  Distressingly, it was the Tattler who informed the Emeryville police rank and file, that it is their responsibility to enforce the orders.  After the Chief had been made aware it was her and her department that bears responsibility for enforcement but before the Tattler disseminated that information to the EPD personnel, the officers were oblivious to this fact.  Emeryville police officers across the department had mistakenly thought it was the responsibility of the Alameda County Sheriff to enforce the COVID orders.

Starting after they were made aware it is their responsibility to enforce, Emeryville police have mostly reported worker compliance at various construction sites in town.  But how trustworthy is that?  They’re getting calls from the public, they’re driving out to the sites and the workers are pulling up their masks before the police get out of their cars.  This is what has come to pass as effective public policy in today’s Emeryville.  Tempting fate, perhaps the police and the Chief feel they can trifle with this virus.

Some of these work sites in town have 20 or 30 workers laboring shoulder to shoulder, many without wearing masks.  This is not some piddling thing.  This is precisely the kind of public health infection risk the county face covering order seeks to stop.  Alameda County Interim Health Officer and signatory to the order, Dr Erica Pan is adamant that construction workers and others wear masks saying the failure to do so "...constitutes an imminent threat and immediate menace to public health".  Failure to comply with the order can result in a fine or imprisonment or both.

Regardless, contractors in Emeryville aren’t forcing their workers to wear masks and the developers aren’t forcing the contractors and the police aren’t forcing any of them.  But in this dysfunctional dynamic, it’s not the private sector who the Tattler will go after.  They’re to be expected to lie and cheat and cut corners, chasing their profits.  It is the public sector we hold accountable.

And so we are distressed at the idea that our city is rendered impotent in the middle of a deadly pandemic by construction workers who don’t like wearing masks.  We like to think that it would take more than mask hating workers to bring our city down in their charge to protect the public.  But so far in this age of COVID, that’s not the city we live in.  Absurd as it sounds, COVID is likely spreading in our community because the Emeryville Police Department hasn't so far had the wherewithal to defeat cleaver construction workers who quickly pull up their masks upon the sight of a police car.

Insofar as construction site mask compliance may be had as a result of an embarrassed Emeryville Police Department due to our reporting, this is not a responsibility the Emeryville Tattler wishes.  We don’t want public safety to be in our hands.  We’re not paid for this.  We are here simply to report.  It is the Chief of Police who is paid for this.  We want her and this city to start taking this virus seriously.

No Masks at Maz Work Site
Caught in a candid moment by a Tattler photographer Thursday, workers wait for a crane
to lift a modular housing component into place.  Elsewhere on the site, when they saw our camera, workers quickly put their masks on... for us and for the police.  

Sunday, April 12, 2020

COVID-19 Forces 'Maz' Developer to Negotiate With City For Affordable Housing

Finally: Something Good Comes From the 
Caronavirus Epidemic

Virus Increases Emeryville Housing Affordability

The developer of the ‘Maz’ project, a large apartment building being constructed at 3800 San Pablo Avenue, renegotiated his agreement with the City of Emeryville last week, volunteering to add 10 units of affordable housing as a result of the Alameda County COVID-19 Shelter at Home Order.  The County order includes a prohibition on construction projects during the corona virus pandemic and would have forced Holiday Development to stop all work on the 101 unit housing project because Maz was approved without any affordable units.  Rick Holiday, CEO of Holiday Development, approached City Hall Thursday offering to renegotiate his project to add a permanent deed restriction for 10 affordable units to thwart the County’s stop work order for all housing construction projects with less than 10% affordability, coming in just under the wire (actually 9.99%, 10 out of 101).

Mr Holiday has had a very difficult time completing the Maz project, formerly called ‘The Intersection’ after getting City Hall approval for it back in 2013.  The 1.1 acre project, located at San Pablo Avenue and Adeline Street has been set back two times before after an arsonist twice burned down the nearly finished five story building.  After the second fire, the developer optioned to change to modular offsite prefabricated construction.  During the interim period, Holiday also contracted with the University of California to make the building exclusively for the housing use of Berkeley students, a change that incidentally wasn’t cleared with the City of Emeryville.
Maz developer Rick Holiday

In response to citizen calls received by the Emeryville Police Department last week referencing the County work stoppage order and police visits to the site enforcing the order, Mr Holiday at first claimed that since the project is now for student use, that could be defined as low income housing. The argument was presented that with the students (at 100%), the Maz project qualifies for the County’s 10% minimum affordability mandate but was rebuffed by the City Manager Christine Daniel, according to City Hall sources.  Following that rejection and facing a County work stoppage of unknown duration, Holliday agreed to guarantee 10 units of affordable housing with an irrevocable deed restriction.
Emeryville's new housing regulations, enacted after the approval of Maz, require a minimum of 17% affordability for all projects over 10 units.

The Maz project, likely to be renamed, has been controversial from the start.  Approved in 2013 in a 3-2 City Council split vote (Kurt Brinkman, Nora Davis and Ruth Atkin voted YES and Jennifer West and Jac Asher voted NO), Maz turned away from the attempts to make Emeryville housing more family friendly and affordable being promulgated by the then progressive Council minority.   With its zero affordability all market rate housing, Maz also is not family friendly, coming in with almost no three bedroom or even two bedroom units.  Studio apartments make up fully 60% of the unit mix at the anachronistic housing project.  At the time of approval, Mr Holliday told the Emeryville Planning Commission that he saw Maz as a building filled with dynamic young [affluent] people, “Younger people seeking an interesting place to live”,  a prospect the Commission called “exciting” as they passed it over to the City Council for approval.
When it's finally finished, almost ten years after approval, the Maz apartment building will push Emeryville's housing affordability percentage down, despite last week's renegotiation and will drive down the City's already low ratio of resident families to non-families.

The Tattler criticized the project after it was approved in 2013, likening it to a “men’s dorm” owing to the predominance of tech workers drawn to such market rate housing with so many dorm-like studio units.  The ‘men’s dorm’ charge rankled conservative Emeryville business advocate and Tattler hater Rob Arias, to such an extent, he publicly accused Brian Donahue, the editor of the Tattler of being the Emeryville arsonist at a police press conference in 2017 after the second Maz blaze.
The fact that the Maz project will now be for the exclusive use of UC Berkeley students and is therefore actually a dormitory, is merely a coincidence and the Tattler makes no claim of extraordinary prescience when we called it a dorm in 2013.

Tuesday, March 17, 2020

Build Baby Build Hits COVID-19

Developers' Best Laid Plans No Match 
For the Virus

How California Cities Develop Will Change 

News Analysis/Opinion
Scoring a stunning victory highjacking California housing policy, multi-national development corporations and billion dollar real estate investment trusts who recently persuaded Sacramento lawmakers to legislate away the ability for California cities to maintain local control, appear to have run into a force even greater than they: COVID -19.  Poetry is invoked when such a lopsided and unexpected contest as this is joined.  Especially when the winning side is so small they can’t even be seen.  These squiggly little viruses are poised to run roughshod over the collective will of our ruling overlords and they don’t seem to care a whit about the hubris of neoliberal capitalism.  Unlike the Emeryville City Council majority, they’re downright unimpressed with all that power.  And so, as we wait for the calamity to pass, human nature, being such that it is, will no doubt reset the paradigm in its wake.
Alas, there are no guarantees we will return to the by now familiar refrain from the developer class, “build baby build”, caterwauled from the rooftops and boardrooms about the supposed existential threat of the ‘housing crisis’.  COVID-19 has taken care of that narrative, hasn’t it?
Nobody seems to be concerned with any of that now.  However, we know some new way to imagine our cities will assert itself....or maybe it's going to be the old way.  We may even collectively decide we want to return to the days when city planning served as a guiding principle for how to develop our town.

It’s pretty obvious that once this scourge passes with its economy wreaking recession in tow, things are not going back exactly how they were, in Emeryville or anywhere else.  And public policy is bound to reflect the changes.  We think that means the end, for all practical purposes, of build baby build.

It was bound to happen one way or another.  The former world, the former Bay Area real estate world, was never going to be sustainable.  The narrative from developers, that the housing shortage was here to stay until we handed the reins totally over to them, was as convenient as it was blinkered.  A market correction was bound to reveal that sham for what it was.  The only surprise is that it came in the form of a virus.

Looking beyond COVID-19, it would do us good to remember the former world.  Three Emeryville City Council members, John Bauters, Dianne Martinez and Ally Medina all told us they were throwing our lot over to the tender mercies of billion dollar developers as they sought to build baby build.  It was to be for our own good they assured us.  It was like the talking points from the former queen of the City Council, Nora Davis… except on steroids.  It didn’t matter that over the previous twenty years, Emeryville had build more than 200% of market rate housing as recommended by the Association of Bay Area Governments, the public agency in charge of Bay Area housing and jobs.  These three Council members, Bauters, Martinez and Medina  said that the fact that our population had doubled every ten years for three decades running amounted to precisely zero.  Developers wanted to increase profits and these three sought to help them by pledging their allegiance to their facile neoliberal notions of supply and demand.  So casting aside any ideas about market crashes (2007 forgotten), they cheered on Sacramento’s anti-democratic SB 330 and other legislation that takes away Emeryville’s right to decide for ourselves how we plan our town.  It’s an emergency they said and the only solution was to build baby build.

The people's will didn't enter into the Council's thinking.  However, you have to assume people moved to Emeryville over the years because there’s something about it they like.  “The small town atmosphere” is what’s commonly cited.  It’s a stretch to assume people moved here hating the small town atmosphere but betting three Council members would rise up and overturn our autonomous City Hall in order to Manhattanize the town.  We know this is false because we’ve already  collectively said we don’t want that.  We voted on the town we’ve been building (more or less) before the build baby build crew took over.  That vote was taken in the form of our ten year old General Plan…the same document John Bauters, Dianne Martinez and Ally Medina now hold in contempt.  We voted on our General Plan…and then we voted for these three Council members.  They never told us when they were asking for our votes that they would move to destroy our General Plan.  Had they done so, it’s likely they would have lost their respective elections to the Council.

If COVID-19 had not reared its ugly face and we had done to our town, through the three member Council majority, what the developers had in mind for us, the wreaking ball would have begun swinging and a town filled with unaffordable luxury apartment skyscrapers would have begun to rise up, in contradiction of our General Plan.  After that, there would be no way to go back to what we were.  The reasons we created our General Plan would have all been rendered void amid all the hulking monstrosities.
But reality was bound to catch up with this boomtown winner take all mentality.  The virus has stripped bare the hubris of the elite, be they in the corporate boardrooms, among individual wealthy real estate investors, in the Statehouse and the warren of lobbying firms orbiting it or even in the Emeryville City Council chamber.  These three Council members either got caught up in the hyperbole or they’re true believers.  Either way, it’s clear in matters of city planning, one of the most fundamental functions of any municipality, they’ve simply stopped working for us.  They should stop trying to be heroes (as they couch it), doing the bidding of the developers and start doing our bidding.  That’s what we pay them to do.
Emeryville public policy in the hands of a developer smitten City Council has long bent towards destructive forces and more enthusiastically over time, notwithstanding our General Plan.  Developers have been having their way with us it's true but now it’s going to be COVID-19’s turn. Afterward, when we’re back on our feet, we’re going to tell the developers we’re no longer impressed by them.

Sunday, March 8, 2020

Sherwin Williams Developer Violates Emeryville's Construction and Noise Regulations Over the Last Six Months

Councilman John Bauters Steps Away From Dias, Addresses His Colleagues:
'Do Something to Preserve Neighborhood 
Peace and Quiet'

Planning Director has Dropped the Ball
at Sherwin Williams Site

The developer of the Sherwin Williams housing site has been violating Emeryville’s noise and construction laws over the last six months while City Hall has refused enforcement says City Councilman John Bauters who testified as much at Tuesday’s Council meeting.  Despite numerous complaints from neighbors over the last half a year at the Sherwin Williams site, Emeryville’s largest toxic waste cleanup brownfield site, the responsible department, the Planning Department, has done nothing more than offer verbal compliance requests to the multi-billion dollar housing development corporation says Mr Bauters.

Speaking as a private citizen,
John Bauters called on the City Council
override the Planning Director and
force the Sherwin Williams developer
to comply with the City's construction
and noise regulations.
At the Tuesday regular City Council meeting, Councilman John Bauters stepped off the Council podium and addressed his colleagues as a private citizen, alerting them to a litany of abuses he says Lennar has engaged in as the developer attempts to speed up their work schedule to begin building the 500 apartments the City Council have approved for the site.  Mr Bauters accuses Lennar of violating myriad noise and construction regulations over the last six months including jack hammering after hours, truck queuing in violation of their agreement, illegal Saturday work and incessant construction activity beginning too early.  The toxic clean up phase of the job is still being completed and is late by several months owing to a large amount of toxic soil the developer is removing that was not planned for.

Councilman Bauters, conflicted out of any decision making at the Council level owing to his living too close to the Sherwin Williams site,  says he and his neighbors living near the site have been beseeching City Planning Director Charlie Bryant to enforce the agreement Lennar has made with the City but they have been rebuffed.  The Planning Director has only offered “verbal requests” to Lennar according to Mr Bauters, actions that have no consequence as far as building a case to force compliance.

The lack of accountability at City Hall for resident’s concerns over the last six months at the Sherwin Williams site contributed to Mr Bauters' exasperation, “Is there ever going to be a time when residents are entitled to peace and quiet in our neighborhood and protected with the conditions of approval that you [the City Council] approved?”  he asked.  “Should a developer doing work in the City ever be concerned you will hold them accountable or will they always just get a slap on the wrist for violating local regulations?” he followed.

Owning to what they see as a lack of interest at City Hall in protecting the residents, especially by Planning Director Bryant, Mr Bauters and his neighbors have drawn up a list of two new provisions they see as being necessary to force Lennar into compliance with their development agreement.  The City should amend the Municipal Code to remove a clause that permits executive decisions from the Planning Director in such matters and give it to the City Manager they say.  The neighbors also request the start up time allowed on all Emeryville construction sites be changed from 7 am to 8 am.

The Tattler recently published a Department of Toxic Substance Control whistleblower’s account of Lennar’s actions at the Sherwin site after the former project manager for the cleanup charged his agency and Lennar with conspiring to forgo due diligence in the name of speeding up the cleanup work.  The whistleblower, DTSC employee Tom Price, says the fast and loose work done by Lennar and overseen by DTSC, enabled arsenic laden groundwater to leach past extraction wells for three years and rather than using standard cleanup protocols regarding volatile organic compounds, the developer instead just dug up wholesale, vast amount of soil to truck off the site, an action Mr Price compared with “strip mining”.  It is this improper strip mining that has pushed the schedule back and that’s likely responsible for the developer to now seek to cut the corners that have impacted the neighbors over the last six months. 
The City has been apprised of the violations with regard to the improper arsenic and VOC removal but so far have not yet responded.  If the allegations from Tom Price prove to be sustained, the actions of Lennar would constitute a breech of the Remedial Action Plan made in good faith with the City and theoretically, the developer’s ‘grading permit’ could be revoked says Mr Price.

Tuesday night, the talk was not of arsenic and VOCs but rather the illegal construction activity over the last six months.  Mr Bauters did not receive an answer to his complaints at the Tuesday Council meeting but he did take umbrage with the City's lackadaisical attitude shown to the neighbors, “There is no evidence that staff and the City has taken seriously, our [the neighbors] efforts to have this curbed and to have Lennar fully comply with you, the City Council” he said.

The commentary from Mr Bauters begins at 13:15:

Saturday, February 22, 2020

Whistleblower Accusations at Sherwin Williams Toxics Cleanup Site

Project Manager at Sherwin Williams 
Toxics Site:
Substandard Clean Up, Pressure From Developer

A rank and file Project Manager at the California Environmental Protection Agency’s Department of Toxic Substance Control (DTSC) is charging that developer Lennar Multifamily Communities, a nationwide home builder, attempted to avoid adequate investigation and clean up at the Sherwin Williams-Emeryville brownfield site in cooperation with DTSC management, potentially putting future residents at risk of exposure to poisonous volatile organic compounds.
The DTSC employee, Project Manager Tom Price, who until recently had been providing regulatory oversight for the Sherwin Williams clean up, has filed complaints with the DTSC and other government agencies over fast and loose practices he says that presumably would benefit the developer who seeks to build hundreds of apartments on the site.  Most egregiously, the developer failed to initiate groundwater pumping to prevent arsenic from migrating off the site to downstream properties as required under a 2010 cleanup plan, he says.

Mr Price alleges that soil ‘characterization’ was inadequate in the locations of planned building footprints at the site, and that an executive-level DTSC manager who has since retired, attempted to give the developer a free pass by side stepping standard DTSC protocols, including requiring adequate sampling coverage and representative sampling that would work towards the benefit of the developer.  Unacceptably high levels of ground water arsenic observed in test wells along the western boundary of the property were ignored for years he says, allowing the poison to migrate off the property toward neighboring properties downstream in violation of a 2010 Remedial Action Plan approved by DTSC.

Former Project Manager Price told the Tattler he asked to be re-assigned following his requested customary due diligence and investigation documentation after those requests were ignored.  He indicated he was getting “interference” from DTSC management at the Sherwin Williams clean up and that also contributed to his request for reassignment.

Mr. Price told the Tattler that arsenic concentrations began to exceed allowable limits at the test wells migrating off the site three years ago and that downstream property owners were not notified as would normally occur as part of a public noticing of a proposed cleanup plan amendment which the consultant and developer hoped to avoid.  He subsequently alerted his higher ups that the site was "out of compliance" with the clean up plan.  In January of this year, the consultant for the developer started collecting groundwater samples at the Bay Street Development property to the west of the Sherwin Williams site and in the path of the migrating plume of arsenic, probably as a result of Mr Price’s complaints.  However required pumping has still not occurred for arsenic laced groundwater near Temescal Creek he alleges.
The groundwater arsenic ‘off site’ migration is particularly concerning having come in the face of warnings from the whistleblower, "Despite the ground water exceedances at the property boundary which should have triggered pumping, the developer and their consultant submitted a 'modeling report'.  When the model appeared to fail, they still didn't initiate pumping and as a result, the site has been out of compliance with the clean up plan for three years" he told the Tattler.

The site still lists Tom Price as the
project manager.  Photo taken this week.
The agency has been under a lot of pressure to speed up the final clean up at the site by the developer Lennar who stands to benefit by a fast construction schedule.  Rather than conduct customary investigation, the developer appears to have opted to “strip mine” part of the site and as a result, what was originally planned to be an excavation 1000 square feet in size is now an acre and the site is covered with unplanned soil stockpiles.  Thousands of cubic yards of soil are now being off hauled, far more than what initial plans called for, Mr Price says.

The site, located at 1450 Sherwin Street, is bounded by Horton Street to the east, the former Rifkin Property and Temescal Creek to the north, Sherwin Street to the south and railroad tracks to the west.  A former paint and pesticide manufacturer,  Sherwin Williams maintained operations there from the early 1900s until it was decommissioned in 2007.  The plant manufactured various types of coating products including oil-based paints and latex paints. Other products which were manufactured at the site included extremely toxic lead-arsenate pesticides from approximately the 1920s until the late 1940s.
A series of soil, groundwater and soil vapor investigations by the DTSC were conducted at the site starting in 1988 which showed contaminants of concern including metals, volatile organic compounds, semi-volatile organic compounds, and hydrocarbons.

Contractors were still digging at the site as late as January.
Interim remedial measures, sometimes referred to as the "big dig" by residential neighbors, were initiated in the 1990s including construction of a subsurface containment slurry wall, asphalt cap, and groundwater extraction, and monitoring.  The latest clean up activity, begun in the early fall, has occurred in response to Lennar's construction timeline and has been centered on the south side of the property, previously under a concrete slab and not cleaned up during the big dig.  A remedial action plan was implemented by 2011 which involved excavation of 100,000 cubic yards of contaminated soil for off-site disposal and placing a Land Use Covenant on the property to restrict future usages.

The breakdown in normal clean up protocols served as an impetus for the complaints with the DTSC and other government agencies, starting in September.   “As a private citizen (separate from my job at DTSC), I filed complaints all the way up to the governor’s office against the developer Lennar Multifamily Communities. In my opinion, they endeavored to skip customary due diligence and investigation for hazardous substances for [Sherwin Williams], a housing development at former industrial plant.” Mr Price said.   After his replacement at the Sherwin Williams site Project Manager Bud Duke took over, Tom reports that citizen complaints that he filed, appear to have resulted in considerably more cleanup than the developer originally proposed.

The City of Emeryville has not been included in the list of government agencies Tom Price has filed complaints with but since the City issued a revocable 'grading permit' for the site to Lennar, the City theoretically has leverage to force compliance with the remedial action plan it is a signatory to.  The City, the former Sherwin Williams cleanup manger said, has interest in a proper clean up of the site for the protection of future residents.

A Lennar sign on the property line fence overstates
the condition at the Sherwin Williams clean up site.

Thursday, February 13, 2020

Oversight Committee Violates the Brown Act as it Moves to Support the Brown Act

'We Had to Violate the Brown Act in Order to
 Protect It'

Does the Oversight Committee Need an Oversight Committee?

Responding to a Tattler exposé, the Measure J bond Citizens Oversight Committee of the Emery School District, violated the California Brown Act accountability law Tuesday when, without a quorum, it moved to abandon its earlier plans to jettison the constraints of Brown Act regulations.  The committee, who’s state sanctioned job it is to watch and hold accountable the School Board as they spend $95 million in Emeryville taxpayer funds, dialed back a host of this and other illegal and unseemly proposals after the Tattler story posted on Monday.   Central to the Tattler story was a planned roll back of conflict of interest policy meant to stop committee members from unduly benefitting as a result of their committee work.
With only three legitimate attending members Tuesday night, the committee, without a quorum, was legally required to adjourn the meeting according to the Brown Act.  However, moving to support the Brown Act that they had previously placed on their agenda to disregard, the committee proceed to violate the Act it meant to support.  The committee will now follow the Brown Act, they say.
The irony of the situation was not acknowledged by any attending members, the Superintendent of the Schools or the bond consultant paid to advise the committee, both of whom who were also in attendance.

One of the components of the Brown Act makes it clear that the only legitimate action any bond oversight committee can make without a quorum is adjournment.  The quorum provisions of the Brown Act are something the committee members and even the paid staff professionals are unaware of.  After the Superintendent announced a quorum was lacking, instead of adjourning the meeting, the committee voted to forge ahead and make decisions on committee policy and other topics, but only in a “recommendation” capacity in an attempt to satisfy the Brown Act.  The Brown Act does not permit that and the whole meeting was in violation.

A central complaint of the Monday Tattler story was a highlighting of the committee’s attempt to erase existing Sacramento mandated conflict of interest policy that requires committee members to wait for two years until they are permitted to bid on or do (Emery) School District jobs.  The committee, feeling the pressure from the Tattler story, agreed to back off and maintain the two year waiting period but not before the consultant weighed in on the value of the deregulation scheme.  Matthew Kolker of Government Financial Strategies, a private government consulting firm, told the attendees the idea behind nixing the conflict of interest waiting period was to “streamline the process”, presumably for those committee members who would like to profit off the District using their built up associations with colleagues.  Asked how the public would benefit by the streamlining, neither the consultant nor the committee members ventured an opinion.

The committee expressed their frustration in getting the members to dutifully attend meetings, making quorums difficult to achieve.  It was conjectured by committee members that because the District had already spent all but approximately $20 million of the original $95 million of Measure J bond money, meetings are less consequential and therefore less compelling to many members. Mr Kolker suggested by removing the conflict of interest laws that bounds committee members, perhaps the district could more easily draw potential new member interest.

After the Tattler reported on numerous violations of the Brown Act, the local media picking up the story, a crash program of Brown Act instructional meetings were conducted by a contrite Emery Unified.  To no avail apparently.  The District continues to struggle with following or even understanding this important sunshine accountability law.

Should be posted in School District executive suites, conference rooms
and at all street entrances to the school district.  

Wednesday, February 12, 2020

The Tattler at Ten

Ten Years of Punching Up

The Tattler Celebrates a Decade of 
Muckraking and Shit Stirring

Ten years ago today three of us started the Emeryville Tattler with a mission.  Concern over a ‘develop at all costs’ juggernaut ensconced at City Hall serving as the impetus, we thought we could flip the City Council and therefore the whole culture in Emeryville politics, ushering in a new era we hoped.  We thought the interests of the residents and average people could be risen up and take precedence over those of the business class and the developers, many of whom had become very chummy with the Council members.  Considering the forces allayed against us, including the then mighty Emeryville Chamber of Commerce, it was pretty audacious of us in retrospect.  But we started up our scrappy little news site nonetheless, knowing we’d make plenty of enemies along the way (and boy, have we).

The idea was as simple as it was brassy.  We thought Emeryville needed a newspaper like our neighboring cities had.  We looked around and seeing the demographic populations of our neighbors with their center-left proclivities, we thought the extreme pro-developer culture at Emeryville City Hall was an anomaly, an accident and therefore not sustainable.  It just needed a little push.  We could see no reason why Emeryville should stand out so starkly among our Bay Area neighbors.  We thought the people here were like the people around us and all we would need to do is to inform them and let democracy take over.  So we did.

While acknowledging there is still work to be done, it is no exaggeration to say Emeryville has indeed flipped.  The former clubby atmosphere at City Hall with developers, businessmen (yes, men) and Council members literally mixing over drinks at the Townhouse or at closed door Chamber functions is bygone.  Our town hall now much more faithfully reflects the resident’s interests.  Emeryville, no longer a throwback curiosity among Bay Area cities, can now be called a leader among them.  We’ll take some small measure of credit here at the truculent little Emeryville Tattler.  The change has been great to be sure but we're still keeping their feet to the fire.

Readers of the above three paragraphs will detect a level of cocksureness if not arrogance.  We don’t deny it.  We always knew we’d have to fight hard to take down the connected wealthy business/developer class and their government sycophants here in Emeryville and we came ready for the fight.  Our pugnacious nature has served us well.  We noted everywhere we looked in this little town, we found rot and we knew we’d have to take on all comers.  And that’s the reputation we cultured.  Our reputation has preceded us. We developed a backchannel cadre of moles who informed us.  That’s how we found out how effective we were being.  There has always been a bit of fear of the Tattler mixed in with the anger in the corporate boardrooms and in government back rooms.

Ten years ago if you had asked us how long our little project would take, we would have guessed about ten years.  We got that right.  Emeryville is now poised to become the town the people here want.  But there are storm clouds all around us.  Senate Bill 330, as of January 1st, the law of the land and the proposed SB 50, stand to take away the democratic autonomy we fought for just as we take our bows.  This new suite of ‘develop at all costs’ laws are coming now not from City Hall, but from Sacramento and they threaten our town much more fundamentally.
We don’t know if the Tattler is ready to take on Sacramento.  We’re audacious, but not that audacious.  Maybe someone else can come in and take over the fight for Emeryville.

In the meantime, we’re going to do a little celebrating.  We celebrate our ten years with selections from the archives.  We’re going to re-post our favorite stories and reader favorites every couple of weeks starting from 2010.

The Tattler is ten!  Our masthead says it all: We're here working for the residents and average people- against those who would take away from the commons.  Looking back, there have been victories and setbacks in that fight.  Reporting on that struggle, it's always easy to see the glass half empty, concentrating on the work yet to be done.  Looking ahead, it's pretty scary.  But ten years on after the Tattler's audacious beginning taking on all comers among the power elite in Emeryville, there's no doubt there have been more victories than setbacks.  We didn't just sit on our duffs and watch our town change around us.  We got involved. And that has served us well.  We feel pretty good about this.