Emeryville Illegally Disregards California Public Records Act
News Analysis
Over the last eight months, the Tattler has been attempting to get three Emeryville police body worn camera documents due in accordance with the California Public Records Act but the City of Emeryville has been actively fighting the law that requires they hand over the public documents. After the City said NO, they will not release the video documents, the Tattler obtained the services of a lawyer, prompting the City to announce after eight months, they are finally going to stop fighting and cough up the documents. In this and other recent fights for public documents illustrates the extent of a growing culture of secrecy at City Hall versus the public’s right to know the doings of their government.
City Attorney John Kennedy Not a fan of accountability, he's been a good fit with the City Council majority.
Fifteen years of Tattler public records request attempts have made it clear that transparency and accountability at Emeryville City Hall have never been as rigorous as they claim they are but a growing ‘next level’ of records denying puts City Hall and its Police Department now squarely into the realm of law breaking. The new culture of secrecy at City Hall dovetails with a culture of unaccountability among some members of the City Council led by the nabob John Bauters, raising questions about who’s leading whom in Emeryville's governance.
The Records Act is how the Tattler and many other news sites obtain public records to inform stories for public consumption and to the extant municipalities violate the Act, the public will be less informed as a consequence. The new City Hall obstinacy raises the specter of citizens and the press ‘lawyering up’ if they want transparency and accountability from Emeryville.
On March 3rd 2024, the Tattler first requested the police body worn camera documents of a trespassing event via a Public Records Act Request. The City has ten days to respond to such requests according to law but Emeryville commonly misses the deadline or ignores the first request altogether. This has been happening with greater frequency over the last few years and the City did begin by ignoring our March 3rd request. After nudging, finally, the City responded on March 18th, five days late. However, in their responce, the City Attorney, John Kennedy, invoked a clause granted by the State that municipalities may cite to avoid disclosing requested public documents under the auspices of Times Mirror Co. v. Superior Court (1991), case law that posits greater public harm will come by the government disclosing the public documents than is caused by the government not releasing the documents.
The Tattler asked Mr Kennedy to elaborate on his refusal to disclose the documents because the Times Mirror case invocation was improper and we threatened to sue the City in court if we did not get a responce. Days after that, EPD responded that upon “re-consideration”, they will release the requested documents after all, but the Tattler would have to pay the City of Emeryville $656 for the Police Department to redact sensitive personal information from the videos. The State of California requires municipalities redact people’s personal information such a social security numbers, phone numbers, addresses and the like.
However, the City of Emeryville is expressly NOT allowed to charge the public for redaction of documents obtained by public records requests as delineated by California Supreme Court case law National Lawyers Guild v. City of Hayward (2020). The Tattler notified Emeryville of the 2020 case in a September 13th letter to Mr Kennedy and again threatened to sue if the City didn’t cough up the public documents. The City finally responded they will hand over the police videos without overzealous redacting (that would also be against the law) and without charging illegal fees on October 3rd, eight months after the first request that ultimately required multiple letters from the Tattler and the retention of an attorney.
Public documents ensconced at City Hall or the police station belong to everyone in the community, they are NOT the sole possession of the government. The government serves as the custodians of our documents and they MUST surrender them upon request according to California law. Insofar as this Tattler records request debacle may be emblematic of the new obstinacy at City Hall and among undemocratically minded City Council members, the City has effectively put the citizens on notice that if we want our documents, we’re going to have to ‘lawyer up’ to get them.
The Tattler will report if the City improperly redacts the videos when/if we receive them in October.
Emeryville Police Let a Shoplifting Suspect Walk Free
BevMo Store Manager Wanted to Press Charges But EPD Said NO
Citizens Reporting Crimes Should "Mind Their Own Frickin' Business" Says Sergeant
Officer body worn camera footage released by the Emeryville Police Department reveals how two officers and a sergeant recently let a shoplifting suspect walk free, ignoring the store manager’s request to prosecute. The minor shoplifting event happened on May 19th at the BevMo liquor store, 5717 Christie Ave in the Powell Street Plaza shopping mall, when a checkout clerk noticed a man walk out of the store without paying for a bottle of vodka. Police were summoned and the man was apprehended behind the store on Shellmound Street, drinking from the stolen bottle. After handcuffing the detained man and confiscating the stolen liquor, Emeryville Police Officer Andrew Selby attempted to return the bottle to the store clerk. After the clerk informed the officer BevMo could not take back an opened bottle, the officer poured out the vodka. Shortly after that, all three cops were alerted the store manager wished to press charges but ignoring that, the police removed the suspect from detention and released him.
Emeryville Police Officer Andrew Selby When told the BevMo store manager wanted to press charges against the shoplifter he responded, "Negative" and let the guy go free.
The three videos from the three cops reveal that all three heard from the dispatcher on the police radio that the manager of the store wished to press charges on the man, to which Officer Andrew Selby responded “negative” to his colleagues. The police believed the store manager earlier claimed to not wish to press charges against the suspect but were not interested in hearing from the manager about his change of heart.
A witness to the theft, the Emeryville Tattler editor produced a voice over narrative video of the crime scene after the police released the suspect and left the scene and sent that video out via email to the City Council members, key City staff and members of the police department. The Chief of Police, Jeff Jennings, a recipient of the emailed video, hit ‘reply all’ and then he denied the police had let the suspect go free and he reported that the manager of the BevMo refused to press charges, in direct contradiction of the body worn camera objective evidence. The Chief of Police, who earns over $200,000 per year incorrectly stated in his May 20th email responce, the EPD's hands were tied because “BevMo, the legal victim of this particular crime did not wish to prosecute the individual for the theft”. The email from the Chief was misleading about the store manager but it is unknown if the Chief was aware that his officers had failed to ask the store manager about his prosecution change of heart.
"Mind His Own Frickin' Business"
Emeryville Police Sergeant Michelle Shepherd Emeryville citizens who call in crimes should "Mind their own frickin' business".
The video footage from Sergeant Michelle Shepherd, who was hanging back with the detained suspect while the other two officers were interacting with the store clerk, reveals she clearly told the shoplifting suspect she thought the Tattler editor reporting party to the crime should “mind his own frickin’ business”, a reversal of the common police dictum ‘see something, say something’. As the suspect was being released, Sergeant Shepherd offered him advice on how to shoplift better without being caught by “these stores around here”. Noticing store stickers on new clothing the suspect was wearing, Sergeant Shepherd told the suspect he should “remove the stickers [from your stolen clothes]. It’s a tell tale sign. People see it and they think he’s gunna steal from us”.
Ms Shepherd later told the Tattler she was being "sarcastic" when she coached the suspect on more effective shoplifting.
Regardless that the videos were released by EPD to fulfill a Tattler public records request, the last minute or so of the incident was cut from all three body worn cameras by EPD and not released. The expurgated section of the videos show the Tattler editor approaching the three departing officers, informing them that the store manager wished to press charges on the suspect. Officer Selby spoke for the group and said NO to that and then asked, “Don’t you have anything better to do with your time?”. The California Records Act requires government agencies to release in good faith, all requested public records, allowing for redaction of certain sensitive information. The failure of the EPD to release the full record on all three videos barring an explanation, represents a violation of the California Records Act. EPD has not provided an explanation about why the videos are edited in the way they are.
The Emeryville Chief of Police, Jeff Jennings was contacted for this story but he did not respond.
Below are two of the three videos the Tattler obtained in our public records request. The last minute or so of incriminating evidence against EPD was cut from all three videos by EPD but plenty of incriminating evidence remains. The first is from Officer Selby's body worn camera and the second one is from Sergeant Shepherd. The sound takes a minute to begin. Transcripts are posted below.
Extra Reading:
Below are partial transcripts from the Selby and Shepherd videos. The characters are: the Suspect, the BevMo Store Clerk, the Tattler Editor (the reporting party who made the call to the police and was a witness to the crime, the Police Dispatcher, Sergeant Michelle Shepherd, Officer Andrew Selby and Officer Kyle Rice.
Selby Video
.55-1:05
Selby to Tattler Editor: They [Bevmo] don’t want to press charges.”
Tattler Editor to Selby: “I’m going to go complain to them.”
2:45-2:57
Tattler editor to Selby: “I’m going to request they press charges.”
3:08-3:25
Tattler Editor to BevMo Store Clerk: “Will you press charges?”
BevMo Store Clerk to Tattler Editor: “We probably can’t, to be honest.”
Tattler Editor to BevMo Store Clerk: “Can you tell your boss [Store Manager] I request you press charges?”
Convo fades out as Selby moves outside to pour out opened vodka bottle.
During this time the Store Manager tells the Tattler Editor he will press charges (no police present to hear it).
5:35-5:42
Rice to Selby: “Where’d the RP [reporting party Tattler Editor] go?”
Selby to Rice “Into BevMo to complain.”
5:50-6:01
Dispatcher to Selby (and Shepherd and Rice): “Apparently Donahue (Tattler Editor) went into BevMo, spoke to BevMo and now they’re reconsidering pressing charges.”
“Selby (to himself or maybe Rice): “Negative.”
6:15-6:25
Rice to Selby: "You want to cut him [Suspect] loose?”
Selby to Rice: “Yeah”
Shepherd Video:
2:02-2:11
Shepherd to Suspect: "You've got some nice threads on - nice shoes. Did you take those?"
Suspect to Shepherd: "No"
Shepherd to Suspect: "The price tags are still on."
4:06-4:09
Shepherd to Suspect: "Hopefully we'll be out of your hair soon."
4:45-5:20
Shepherd to Suspect: “Was that guy [Tattler Editor] bugging you? The big white guy?”
Suspect to Shepherd: “No…(unintelligible)”. He mentioned how the Tattler Editor had offered him money to pay for the vodka.
Radio from Dispatcher cuts in to all three police; “Apparently Donahue went into BevMo, spoke to BevMo and now they're reconsidering pressing charges.”
Shepherd in responce to hearing that: “No”
Rice heard on radio, talking to Dispatcher: “Negative. I talked to the store and they do not want to proceed. And you don’t need to talk to Donahue anymore regarding this call.”
Shepherd to Suspect (continuing convo from before Dispatcher interruption): “No, that guy [Tattler Editor] was here making things worse for you. He needs to mind his own frickin’ business.”
5:42-5:55
Shepherd coaches Suspect on how to get away with shoplifting better in the future. She speaks to him about his new clothing with the price stickers still on.
Shepard to Suspect: “A way not to draw attention to yourself when you walk into these stores around here is taking off the stickers. People see it and they’re like, he’s gunna steal from us. It’s a tell tale sign.”
Public Records Request Proves Developers Are Preferred,
Residents Interest in Peace & Quiet Rank Second Place
A Public Records Request (PRR) for internal documents at City Hall, filed by the Tattler as part of an investigation into a breakdown of Emeryville's noise ordinance, has revealed a lie at the center of the ordinance perpetrated by the City Hall staff. Previous publically made assurances of deference to the citizens and their expectations of peace and quiet by the City staff have given way to a public records revealed truth that it's really the developers who the City works for. The trove of documents, turned over last week following an initial request filed in mid October, is revelatory more for what it didn't contain than for its mundane contents (mostly concerning getting meeting dates coordinated). After the staff made blanket assertions of their turning away developers seeking noise ordinance waivers administratively en masse, no such evidence was found among the documents that would bolster those assertions. The documents turned over to satisfy the PRR means the charge, brought by the Tattler, that the staff at City Hall recommends noise waivers be granted to developers in a global way at the expense of the residents, remains uncontested.
Anybody that’s lived here for a while can see how Emeryville is changing. Our population has doubled over the last 20 years and the business sector keeps growing as well. Emeryville is slated to grow even more moving forward; now we’re entering a new era of skyscraper construction. All this growth means there’s always lots of construction going on. Seventeen years ago we decided we need peace and quiet on weekends and evenings against the constant din. And so like other cities, the people of Emeryville enacted a noise ordinance.
Unfortunately, that hasn’t been the end of it. The ordinance has not served as a correction.
Developers, always looking to increase their profits, hate our noise ordinance. Not known as a group fond of regulatory constraint, they’re free to hate it of course but that doesn’t mean we have to grant them the waivers they keep requesting. We should only grant noise ordinance waivers for special circumstances when any public benefits clearly outweigh losing our peace and quiet. And there’s the rub: Emeryville has fallen into a bad habit of routinely granting developers waivers for no good reason. Sometimes for no stated reason at all. For 17 years the developers have been getting their way at City Hall at the expense of the residents with their interest in quiet weekends and evenings.
The Tattler has followed this issue closely over the years. We’ve documented how the City Hall staff, specifically Charlie Bryant, longtime head of the Planning Department, keeps recommending the City Council grant every waiver brought before them. The Council, who has the final say, generally has used the staff waiver recommendations as political cover to say ‘yes’ to each developer seeking relief.
Before the release of the damning noise ordinance documents last week, anyone paying attention could see how developers have been getting preferential treatment at City Hall. If residents desires for peace and quiet were genuinely and impartially being listened to, one would expect the staff to recommend noise ordinance constraints be waived maybe half the time; 50% in developers interest and 50% in residents interests. But that’s not what's been happening. The staff has gone with the developers, recommending the residents give up their peace and quiet virtually 100% of the time (with only one exception over the last 17 years).
Responding to mounting criticism from residents, the staff some months ago, made claim to an unseen world behind the doors at City Hall where they say residents interests ARE being looked after. Planning Director Bryant says watching the Council meetings, it only SEEMS like the residents are being ignored. He told the Tattler that the residents are only seeing the waiver requests that the staff thinks are legitimate and worthy. A great number of developer requests are denied “administratively”, meaning the staff interdicts and refuses to even forward many to the City Council for their consideration. Many, if not most waiver requests never even see the light of day says Mr Bryant.
The Tattler, ever vigilant, saw in Mr Bryant’s claims of behind the scenes noise ordinance waiver denials, a facile attempt to put to rest resident claims of the staff's anti-democratic behavior once and for all. And so we made a Public Records Request for all documents including electronic recordings and interdepartmental memos concerning any administratively denied waivers, just to verify. After waiting almost three months, the documents provided by City Hall reveal nothing to substantiate the claims made by Mr Bryant.
We now know the claim of a staff diligently working on our behalf with the noise ordinance behind the scenes at City Hall is a ruse. The Planning Department is merely forwarding each waiver request from each developer, no matter how absurd the stated reasons, over to the City Council, after giving their recommendation to waive the constraints of the ordinance.
At virtually 100% of recommendations falling in the developer’s favor, we can now say with certainty the loud weekends we’re experiencing in Emeryville are not part of any compromise. The noise ordinance doesn’t function. It’s just for show. The fix is in. Emeryville’s pro-developer reputation is not your imagination. And it's going to get worse. Quiet weekends are not anything the residents can expect as we enter Emeryville's next phase of frenzied skyscraper construction.
City Explores New Addition at Police Station to Solve Fire Escape Problem
Price May Climb to $1 Million or More on Work Deemed Unnecessary
Staff Doubles Down on Lack of Accountability
Police Station Runs Afoul of California Fire Code
Complaint Opens Investigation
An internal City Hall memo, recently intercepted by the Tattler brings new revelations about how the City's police station building came to be in violation of the California Fire Code and left the public vulnerable in the fast moving Emeryville police station fire escape scandal: illegal and non-permitted work was performed, adding locked doors blocking off escape. The addition of the locked doors was done sometime after the 2012 major remodel of the building the memo states, by unknown people, presumably police personnel. Equally intriguing and inexplicable is the assertion made by the memo's author, City Manger James Holgersson, that by placing locked doors blocking egress for the second floor public lobby, the City is not in violation of the Fire Code but he is advising that the City Council spend money to add a legal fire escape nonetheless.
Mr Holgersson is suggesting that the City of Emeryville go above and beyond the legal minimum to the tune of a million dollars or more and provide a fire escape that's not necessary (according to his reading of the California Fire Code).
In anticipation of Tuesday's City Council agendized discussion on the lack of a fire escape for the public lobby at the Powell Street station, the City Manager released the memo to the Council informing them the City is not bound by regulations spelled out in the California Fire Code requiring public buildings to provide emergency legal egress because he says the police have promised to escort citizens out of the building in the event of a fire. However, the California Fire Code, a state mandated suite of regulations that govern egress for both public and private buildings, does not provide the police escort idea as an acceptable permanent replacement for the delineated 'paths of egress' codes spelled out in Chapter 10 of the voluminous document.
Interim City Manager James Holgersson Emeryville should spend up to a million dollars on a fire escape at the police station even though it's not legally needed he says.
The Alameda County Fire Department has opened an investigation into the matter as a result of a Tattler complaint.
Mr Holgersson, acknowledges in the July 11th memo that the police escort idea, legal in his mind, is nonetheless sub par and the City is presented with "the opportunity to reassess and how to improve the public access and egress in the building." As such, the Council is being directed to consider one of three what he asserts are voluntary improvements to help the public with emergency egress. The three choices consist of building a new set of exterior stairs out the front of the building (as the Tattler reported on June 21st), moving the public lobby downstairs or building a new addition to the police station on the ground level and put the public lobby there. A local building contractor gave a cost estimate for the solutions ranging from as much as $300,000 for the stairs, $750,000 to move the public lobby downstairs to as much as $1 million or more for a new addition.
Chapter 10 of the California Fire Code, BE 1003.6 Means of Egress Continuity clearly states "Paths of egress shall not be interrupted by a building element." Section 1031, Maintenance of the Means of Egress as well as BE 1025.2.6, Doors within the Exit Path all address the illegal condition at the police station.
The memo claims "changes in police security policy functions" after the completion of the 2012 $3.7million police station remodel brought the locked set of doors blocking the public fire escape, work performed without a building permit by unknown person(s).
Any work done without the benefit of a permit, especially work that would constrain a public fire escape is a violation of the California Fire Code as well as a violation of the Emeryville Building Department and Public Works because it involves a public building.
More Redactions
In related news, a Tattler Public Records Request for documents related to the police station fire escape was answered by City Hall on Monday, several days after what the law allows. The document dump, some 138 emails in all, mostly detail discussions about how and when internal meetings about the issue should take place. The City, adding to the already redacted information presented to the Tattler, is withholding an unknown number of documents that speak substantively to the issue, citing the following:
The City asserts that certain other documents are exempt from disclosure under Government Code, § 6254(a) as they are preliminary drafts, notes, or interagency or intra-agency memoranda that are not retained by the public agency in the ordinary course of business, and because the public interest in withholding those records clearly outweighs the public interest in disclosure.
The Tattler has run a number of stories on the fire hazard at the police station, starting in 2016 but has hit a wall of redacted information on this issue. City Councilman Scott Donahue said he intends that the City make a legal fire escape that comports with the California Fire Code and also that accountability will follow, regardless of any assertions to the contrary from the staff, "We will find out what went wrong" he said.
Unnecessarily Blacked Out Public Info, Violation of Public Records Act
What Could Possibly Go Wrong With This?
Opinion Emeryville is acting like its got something to hide. The public is asserting their right to see their own information that's ensconced at City Hall and the City is in lockdown mode. Even to the point of breaking the law.
It's all as a result of a still unfolding debacle at the police station. There the City's incompetence is on full display regarding the lack of a fire escape for the second floor public lobby as reported by the Tattler and the East Bay Times. The whole thing has been a major source of embarrassment for City Hall and so they're responding by battening down the hatches: If no harmful information gets out, then no harm will come to them. That's what they must think.
How else to explain why the City of Emeryville would return a 100% redacted architect's plan of the police station the Tattler requested under a duly noticed public records request? Or the fact that the City has utterly ignored another duly noticed request for internal documents related to the City's bungling of the fire escape at the police station?
Emeryville Transparency
The 100% redacted architect's drawings represent a furtive transgression that is particularly outlandish. Using a spurious argument about another municipality keeping prison plans secret, Emeryville will not let the public see even their own public lobby represented in the drawings.
We're trying to establish what went wrong with the lack of legal egress for the part of the police station that's open to the public and they're saying the public can't even see that limited part of the drawings. We understand they have an interest in keeping secret those parts that are sensitive, like where the weapons are stored or the fire escape paths of egress for police personnel but the public lobby is already public...we can see it with our own eyes...right now. We just need to verify about when illegal work was conducted making the lobby a fire trap without a legal escape for the public. Was it part of the 2012 major remodel at the police station? Was it done afterward? The drawings would show that. And then we could answer what went wrong. But the City is throwing a blanket over the whole thing, using their legitimate right to block from view sensitive information about the police as a cudgel against our rights to see the parts we're allowed to see and to block our seeing our government's own failings. It's as obvious as it is thuggish.
Equally pernicious is the City's total breakdown of the ideals of transparent government with regards to the State of California mandated Public Records Act: they're not releasing documents about the police station fire escape the Tattler requested back in June. A government agency has 10 days by law to provide duly requested public documents. In special circumstances, for instance when the request is extremely broad and would necessitate the fetching of a very large number of documents, a city is allowed to take an additional two weeks to produce requested information. That extra amount of time has come and gone with this request and the City of Emeryville is now in Emery Unified School District territory...meaning the City is keeping company with that highly dysfunctional School District by simply ignoring the Public Records Act. Again, particularly thuggish behavior.
All this makes us ask, why? Is it just incompetence the City is hiding? Or is it something worse? As one Tattler reader recently commented; how is it the City could think this path they're taking is going to turn out well? It's like they settled in on the Nixonian tactic of deception by cloaking, either by cool calculation or in a hot panic but either scenario engendered their asking the question, common to all vain and hubristic governments, "What could possibly go wrong?"
The City of Emeryville recommends this company to other cities with lots of secrets to hide-
They're good to repeat customers and they offer bulk user discounts.
City Hall Recalcitrance Draws Fire From East Bay Times
The East Bay Times, who's beat includes Emeryville, reports on the story of the City's continuing failure to provide a public fire escape at the police station after a $3.7 million remodel dating from 2012 broken by the Tattler in 2016. A June 21st follow up story revealed a recalcitrant City Council had done nothing to alleviate the illegal condition. After a July 3rd Tattler story that highlighted a police building plan document obtained by a Public Records Request that was completely redacted by Emeryville's overly secretive Police Chief, now the East Bay Times has joined in, picking up the still emerging story of City Hall incompetence and possible malfeasance. From today's East Bay Times:
Emeryville police building may get new stairs after safety oversight
By ALI TADAYON | atadayon@bayareanewsgroup.com | Bay Area News Group
EMERYVILLE — The Emeryville Police Department is tasked with keeping residents safe, but if a fire were to break out at its building, people in the lobby would have no safe way out unless an employee unlocked the doors to the stairs.
To remedy the situation and ensure that people can get out of the building quickly, the city proposes building an exterior staircase from the second-floor lobby to the ground that the public could use, Chief Building Official Victor Gonzales said.
The second-floor lobby is where people go to talk to police officials and take care of other business.
Brian Donahue, who runs the The Emeryville Tattler blog and works as a contractor, said he believes the new staircase could cost the city around $300,000. Gonzales did not provide an estimate as to how much....
What the City Doesn't Want You to Know About the Police Dept Remodel That Left
the Building Unsafe:
Everything
Police Chief Blacks Out Entire Public Record
Document received from City Hall in response to Public Records Request.
The City of Emeryville, citing an obscure 1973 case law decision that allowed the government to withhold prison building plans from the public, blacked out building plans of the Hollis Street police department to the public inquiring about the City's failure to provide public fire escape egress at the police building. The architect plans, produced for the City as part of a 2012 $3.7 million remodel of the the City's Public Safety Building at 2449 Hollis Street, putatively shows a State of California mandated fire escape at the second floor public lobby that was removed, illegally, at some later date. We say 'putatively' because Emeryville's Chief of Police, Jennifer Tejada, has totally redacted the publicly owned plans so we can't know for sure. However, the architect, retained by the City for the 2012 remodel, recently assured the Tattler he did provide for public egress at the second floor lobby and the plans, if we could view them would prove it. The architect, Don Dommer of Albany based Dommer and Associates, upon hearing of a lack of a second floor public fire escape at his building, is conjecturing somebody must have done illegal work closing off public access after his contract with the City was complete.
The Tattler originally brought the issue of no public fire escape at the police station to the City at a Council meeting in 2016 and with an accompanying 2016 Tattler story but City Hall resisted the call to correct the public safety issue, waiting until after a second Tattler story on June 21st. Assurances are now being offered from the Chief Building official, Victor Gonzales, that the City plans on making the police station legal, in the wake of the June 21st story. Mr Gonzales is postulating a new set of exterior stairs could be added out the front of the building to make the building code compliant.
As Emeryville City Hall moves to fix the illegal fire trap at the police station public lobby (presuming they will), the public is left with questions of culpability. Blacked out building plans notwithstanding, the question about when the fire escape was removed is less important to know than who removed it and if that subsequent illegal work was permitted by the Building Department. Emeryville's Building official Victor Gonzales hinted he might at least share culpability as reported in the June 21st Tattler story when he said, "Everybody makes mistakes" and "I'm doing the best I can."
Chief Tejada's claim the information about the public fire egress at the station is secret and if made known to the public would compromise police safety, is overwrought and the full redaction of this public document is not warranted. Because government is transparent and not permitted to withhold the public's right to know their business if it is being done to hide government malfeasance, these questions of who removed the public fire escape at our police station will be answered and this redaction impediment will not serve to deter.
The Tattler requested the building plans via a Public Records Request two weeks ago and accompanying the document filled with blacked out drawings ordered by Chief Tejada was the following dubious justification:
”The City of Emeryville finds ...under Government Code section 6255(a) and Evidence Code section 1040, public agencies have been able to withhold building plans for a correctional training facility and detention facility from the public on the grounds that individuals may use the information to plan an escape, which would threaten the safety of the communities. Thus, the benefits of non-disclosure outweighed the benefits of disclosure of the building plans for these buildings utilized by law enforcement....”
Residents Not Helped by Noise Ordinance Staff Can't Imagine an Ordinance That Would Constrain the Business Community
Introducing a new Tattler feature, How's Emeryville Doing? Beginning with our story on the Urban Forestry Ordinance, we're investigating Emeryville's codes, laws and planning edicts to determine how effective they are. Should we keep them as they are or amend some of these guiding mandates? Or should we get rid of them? Look to How's Emeryville Doing to cut through the artifice built up by those who stand to benefit by inaction and ineffectiveness in our governing documents.
News Analysis Emeryville's City Hall staff recently recommended to the City Council a developer's Noise Ordinance waiver request be denied, marking the first time in the eight year history of the ordinance the staff has ruled in favor of the citizens interests over the business sector. May 1st is a red letter date in Emeryville history; the date the Council, accepting a staff request, told a developer NO to a Noise Ordinance waiver request, specifically in this case the developer of the Marketplace project, who requested permission to work every Saturday over the next year.
An interview with staff didn't lead to any more understanding of the extraordinary May 1st denial; they simply referred us to their Report to the Council. The report says the denial recommendation was based on the developer's insistence the City look after his bottom line by helping to speed up the work schedule. However that same reason has been offered up before by other developers seeking waivers and that has never been cited as reason enough for staff to recommend denial of a waiver request. In fact, the developer of an earlier phase of this same project asked for and received a waiver based on the same reason and the Council, by default, ruled that desires of developers to speed up their projects now qualifies as reason enough to grant waivers.
All this leads us to question if reason is even at play at City Hall with regard to the Noise Ordinance or is it just capriciousness instead? Perhaps the staff finally became embarrassed by all the negative Tattler stories. It should be noted on the four occasions since 2010 when the City Council has denied waivers, the meetings were attended by a vocal contingent of angry neighbors.
Regardless, the May 1st denial begs the question: how effective is Emeryville's Noise Ordinance? How's Emeryville doing? A Tattler Public Records Request reveals a very weak law that defers to the interests of developers over residents.
Of 25 total requests for waivers to the Noise Ordinance since 2010- 2 were withdrawn by the applicant 1 was recommended to be denied by the staff 4 were denied by the Council (includes the May 1st denial) 19 were approved
Rare as an Ivory-Billed Woodpecker A denial to a developer for a Noise Ordinance waiver: The rarest of all City Hall documents
City Hall Staff Withholds Critical Document from Planning Commission
Healthy Trees Called "Unhealthy" by Staff
Commission Voted to Cut Trees Without Knowledge of Arborist Report Ten trees fair to good, Two fair to poor = "Unhealthy"
The Emeryville Planning Commission, siding with City Hall's Planning Department staff, PG&E and the developer of the Sherwin Williams project voted unanimously March 15th to overturn the City's Urban Forestry Ordinance and to kill every street tree on Horton Street fronting the incipient apartment project slated to break ground later this year.The unanimous Planning Commission vote was based on staff recommendation the trees be removed, putatively to accommodate the under grounding of overhead utility wires based on a dubious claim from PG&E and owing to their unhealthy status, a finding counter to an earlier City sanctioned official arborist’s report. The staff did not inform the Planning Commission before their vote about the document from the arborist that said the majority of the trees are healthy. The vote prepared by the staff March 15th was to decide if the Planned Unit Development (PUD) agreement earlier made should be amended in order to facilitate the cutting of the trees. The Planning Commission vote overturns that earlier (unanimous) 2016 vote by the City Council directing the staff to save the trees on Horton Street when they approved the Sherwin Williams PUD.
Emeryville's Appointed Planning Commission A majority found the "unhealthy" state of the trees on Horton Street to be reason to cut them down. The staff never told the Commissioners about the arborist's report that found a majority of the trees to be healthy.
The final decision about the trees and the integrity of the Urban Forestry Ordinance (UFO) will be decided by the City Council on April 17th when they consider allegations made by the staff at the March 15th meeting that the trees in question are “unhealthy” as well as dubious and not proven claims that PG&E will "not allow" the overhead wires to be placed under the street, necessitating the cutting of the trees according to the staff.
The PG&E claim is especially questionable owing to the fact that the staff told the Planning Commission that the utility company “does not allow joint trench boxes [wires] in the roadway and it needs to be routed to the sidewalk”, an eventuality synonymous with cutting the trees they said while at the same meeting they also said that it is “likely” that some of the trees will need to be cut.
Further, PG&E has already been caught lying to the City of Emeryville about cutting our street trees in the past when Councilman John Bauters found the company making false claims in furtherance of the utility company's zealous efforts to cut 30 trees in our town as part of a program to keep roots away from underground utilities last year.Mr Bauter’s diligence ended up saving 21 of the trees and net an apology from PG&E for their misrepresentations to the City.
From the Official Arborist's Report on the Sherwin Williams Trees on Horton Street 7 fair-good to good with 2 fair-poor to poor and 3 fair equals "unhealthy trees" status according to the City of Emeryville. The Planning Commission never saw this report before their vote.
Perhaps most damaging for City Hall in this escapade is their insistence that the Planning Commission see the trees as “unhealthy”, a direct contradiction of the professional arborist retained by City Hall who characterized the trees as being in good health and the fact they kept the tree report from the decision makers. The report prepared for the City Council by SBCA Tree Consulting on December 29th 2014 found of the 14 trees along Horton Street four are ‘good’, two are ‘fair-good’ , four are ‘fair’, one is ‘fair-poor’ and one ‘poor’. Predictably, the Planning Commission seized on the claim of the trees being unhealthy and a majority of Commissioners cited that as a reason for their vote to cut them down.
The 2014 tree report was conducted to inform the City Council as they voted on the approval of the Sherwin Williams project's PUD and the healthy state of the existing trees as shown by the report was instrumental in the subsequent unanimous Council vote to save the trees. The staff also recommended to the Commission the fees normally paid to the City by a developer seeking and receiving permission to cut our street trees be waived based on two non-sequiturs: the fact the replacement trees will get "better soil" and inexplicably because the trees on the other side of the street will not be cut. The Planning Commission found nothing untoward or unreasonable about those two findings. Regardless of the staff reporting as a fact there's no room under the street, an Emeryville Tattler Public Records Request revealed the City of Emeryville in fact has no documents that would confirm their claims that PG&E says the underground wires cannot be placed in the Horton Street roadway. Even if the utility company told the staff this, the company's credibility has been damaged due to their previous false claims. A map of Horton Street showing pipes obtained by the Tattler Public Records Request suggests there may be plenty of room to place the underground utility wires in the roadway but is ultimately inconclusive. A group of residents living near the Sherwin Williams site Park Avenue Residents Committee (PARC) also encouraged the Planning Commission to vote to cut the trees because of their "unhealthy" status. The Planning Commission, cited in addition to the "unhealthy" status of the trees, their opinion the trees should be cut because the existing sidewalk isn't safe (also cited by PARC) and that replacing them with 24" box lollipop trees would make for a "more uniform street".
The City Council takes up the issue on April 17th however Mayor Bauters must recuse himself, his residence being in close proximity to the project.
The arborist sees the tree on the left but the staff sees the tree on the right.
