Once Again, Ownership of Bay Street is in Question:
Do We Have to Stop at the Stop Signs at Bay Street? Maybe Not
The City of Emeryville Says Emphatically We Own the Street AND We Don't Own the Street
A Checkered History Reveals Claims of Ownership of the Street Has Gone Back and Forth Between Public and Private
News Analysis
A vehicle that runs a stop sign or who speeds on Emeryville’s Bay Street is subject to a citation under California’s vehicle code, right? Maybe not as it turns out. Inexplicably, 26 years after its construction, the people of Emeryville still do not know who owns Bay Street and its sidewalk and the City of Emeryville can’t decide about that for sure.
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| Bay Street Does this stop sign have the force of law? Or is it like one of those shopping mall parking lot stop signs? The City of Emeryville says YES and NO to both questions. |
In an email to the Tattler, City Attorney John Kennedy was unequivocal: Bay Street and its sidewalks are private property. They are owned by CenterCal Properties LLC (The Bay Street Mall) , a southern California corporation, and the public right to use the street and sidewalk are conditional he says. Mr Kennedy says the owner retains the right to trespass from the street or sidewalks, any member of the public any time, even if they are not breaking the law. Emeryville's Chief of Police, Jeff Jennings, is equally unequivocal: The street and its sidewalks are public property he says and citizens may use them the same as any other Emeryville City owned streets and sidewalks. People may not be trespassed for any reason but they are subject to arrest if they break the law like anywhere else in the public commons, he says.
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| City Attorney John Kennedy Bay Street is private. Sidewalks too. The stop signs are a recommendation. Protesters can be trespassed. |
Case for Public Ownership
The street was built as part of the Bay Street Mall project in 1999. Over the years, events have hinted that the street and the sidewalks are indeed public. Vehicle parking costs money at Bay Street and parking meter violation income goes to the City of Emeryville. Citizens have received citations for violations of the California Vehicle Code by EPD on the street, something not possible in the absence of a special agreement between the City and the owner (which there is not). With approval from the corporate owner, private venders have set up carts on street parallel parking spots, but the police have closed down the carts for lack of a City of Emeryville encroachment permit. These venders paid rent to the Bay Street Mall. The mall police (private security guards), regularly insist that double parkers leave upon threat of being issued a “ticket” but these have been revealed to be a request for renumeration to a private company in Contra Cost County contracted with CenterCal Properties. These requests are issued to cars “illegally” parked by way of an official looking citation with a return envelope (postal stamp required).
Case for Private Ownership
The other side of the argument is provided by Emeryville’s City Attorney who insists the Mall corporation owns everything. A simple ‘Google’ search indicates Mr Kennedy could be right. If Mr Kennedy is correct though, the City of Emeryville is exposed to all manner of civil litigation for the litany of past and present actions based on City ownership of the street it should be noted.
Disagreement Between Two City Attorneys
So while the current city attorney is adamant that Bay Street is not public property, the former City Attorney for the City of Emeryville, Michael Guina ruled that the street is indeed owned by the city. Mr Guina's public pronouncements about Bay Street set off a row between the city and the mall owner in 2016. The dust up began after the mall, claiming they owned the street, started putting up signs claiming they could tow cars who's owners aren't shopping at the mall. The City of Emeryville moved to protect its claim on Bay Street and Madison Marquette (the former corporate owner of the mall) finally backed down.
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| Chief of Police Jeff Jennings Bay Street is public and so are the sidewalks. The stop signs carry the force of law. Protesters cannot be trespassed. |
But that was 2016. Now the City of Emeryville is wavering on its ownership claims. You would have to go back to 2000 to see a different view from the City regarding Bay Street.
Former Chief of Police Had a Different Take
Shortly after the mall’s completion in 2000, then Emeryville Chief of Police, Ken James, publicly announced the commons at the Bay Street Mall were a hybrid. Chief James said the City of Emeryville owns the street outright but the sidewalks were owned by the mall owner (then Madison Marquette, a developer and Real Estate Investment Trust corporation headquartered in Washington DC). At the time, Chief James indicated citizens could be trespassed carte blanch from the sidewalks by the corporation. That statement does not account for the US Supreme Court’s Pruneyard decision that ruled the common areas of shopping malls as traditional public forums, thereby guaranteeing the public’s right to be there however.
Planning Department Said Bay Street is Public
In 1999, the City of Emeryville Planning Department told the City Council that the proposed Bay Street would be public and that was used as a selling point to Emeryville residents for buy-in as the developer sought approval of the project. It was presented that the corporation would pay for street maintenance.
Supreme Court Says Bay Street is a "Public Forum" Regardless of Ownership
Users of the Bay Street Mall should be advised that these two contradictory statements from the City of Emeryville are independent of constitutional rights recognized at publicly accessible sections of private shopping malls. The PruneYard decision (PruneYard Shopping Center v. Robins, 447 U.S. 74) is a landmark 1980 U.S. Supreme Court case that affirmed the right of states to provide their citizens with broader free speech protections than those guaranteed by the federal Constitution. In California, the state's highest court ruled that the California Constitution protected such speech specifically in shopping malls, overturning a previous precedent.
In essence, the Pruneyard decision allows states to treat large shopping centers as public forums for speech because by 1980, the Supreme Court had realized that Americans use shopping malls as they did previously the downtown square, the traditional public forum. Emeryville, lacking a central business district (downtown) lacks a traditional public forum and Bay Street and its sidewalks have served this function. The lack of a downtown and traditional public forum place speaks to Emeryville’s failure to imagine the value of a democratic commons.
The City may not ever settle this issue, seeing advantage to have the public think the street is public AND private. With a government short on accountability, there is utility is not revealing the actual facts about the public commons.
Bay Street Mall owners first test Emeryville's claim of ownership (in 2014) HERE
The 2016 showdown between the former city attorney and the Bay Street corporation HERE
Mall owner once again pushes back against City after the 2016 drama is 'resolved' HERE
