If you think the Oakland Police Department scandal is unique, and that other parts of Oakland government operate without similar corruption you are sadly wrong. The Planning Department has hit a new low with the production of a fraudulent document designed to obfuscate the fact that Planning screwed up on the approval of a project that could impact an endangered species. This is not the first time the City of Oakland has shortchanged the State and federal endangered species acts (ESA) and the California Environmental Quality Act (CEQA).
Presidio clarkia (Clarkia franciscana) is a diminutive annual flowering plant that occupies about five acres on the planet and is found in only two areas. One is the namesake Presidio in San Francisco where the plant was first found in 1956. Years later, in 1980 the species was first described in the Oakland hills in the Crestmont area on the Serpentine Prairie that is part of Redwood Regional Park. Due to its limited distribution and the threats to the species, Presidio clarkia was listed as endangered by the State of California in 1978 and by the U.S. Fish and Wildlife Service in 1995. Presidio clarkia is the only clarkia species that grows on serpentine soils. The Oakland population has been highly fragmented by development, much of which took place before ESA’s and CEQA. For more on Presidio clarkia the US Fish and Wildlife Service 5-year review of the species is available here.
A big feature of the ESA’s and CEQA is the philosophy that the impacts of a project should be mitigated to ensure the continued existence of the species even if take of the species occurs during development. The intent of mitigation measures is to insure the long-term survival of a species; projects should not lead to declines in the viability of a species.
I have gone through the City’s files for all of the developments that have taken place in the Oakland Hills that impacted Presidio clarkia and what I found is frustrating and unconscionable. The City has never enforced the mitigation measures for any project that has impacted Presidio clarkia. Never. Ever. The 1988 Oakland Hills Tennis Club expansion proposal led to the discovery of a population of Presidio clarkia on the site, at the time only the third known population of the species. The California Department of Fish and Wildlife, then the Department of Fish and Game, made recommendations that caused the project to be redesigned so as to reduce the potential for impacts to the species. As the documents for the project show, one of the requirements in the City’s approvals states, “[t]he project sponsor shall develop a management plan for the ongoing protection of the plant population and its potential habitat. The plan shall be reviewed by the State Department of Fish and Game and shall be approved by the Director of City PIanning prior to issuance a certificate of occupancy.” After multiple requests to the City no record of the Plan can be found, and in the years since the 1998 project was completed, the Tennis Club has added a deck to the end of the building that impinges on the Presidio clarkia population.
Next door to the Tennis Club is the Sunrise Assisted Living Care Facility. In 1997 during biological surveys for the project Presidio clarkia was found on the site. The City’s approval of the project included a mitigation measure providing a “plan shall be submitted to the California Department of Fish and Game (CDFG) and the Zoning Manager for review prior to the issuance of any grading or building permit and no such grading or building permits shall be issued until both the CDFG and the Zoning Manager have approved the plan.” No plan can be found in the City files, and there is no evidence any of the required Presidio clarkia mitigation measures were implemented.
On September 3, 2015 while driving up Redwood Road I observed a notice for a project application posted at the corner of Old Redwood Road. Old Redwood Road has a population of Presidio clarkia that was first documented in 1991. The project site at 5150 Redwood Road has in the past had Presidio clarkia present on the property. When I got home I emailed the planner for the project, Aubrey Rose, about the presence of Presidio clarkia on the site and the need for environmental review to insure appropriate mitigation measures would be implemented to protect the species. Mr. Rose responded on September 4, 2015, “[t]his is a second story addition to an existing single story home – upper story additions are posted on site and closest property owners are notified by mail – the posting contains a preliminary determination, although the zoning approval did rely on this exemption – however, the building permit has not been issued; therefore, a HOLD has been placed on it while we investigate this matter further – talk to you soon.” When I contacted Mr. Rose on July 1, 2016 and asked to inspect the file for the project, I found no record of a HOLD from the City.
There was nothing further from the City, and on April 20, 2016 when I passed the project site, I noticed that construction was underway. I again emailed Mr. Rose to see what mitigation measures had been put in place to protect Presidio clarkia during construction. He responded later in the afternoon “Good to hear from you, thanks for checking in – the zoning approval is attached – condition of approval #23 on pages 9-10 relates to the issue you raise; please take a look and advise, do you feel there is non-compliance with that condition?” I responded back the same day: “To be clear, even though there are endangered species on the site, no CEQA review was complete for this project? Please provide copies of the biologist reports for their surveys. I could not see any fencing in place at the site. What did the biologist find?” Rose responded shortly thereafter, “Thanks for the quick response – this particular project was exempt from CEQA; there was no biologist review or report – is there a breach to a condition of approval you noted? thanks again for your help on this.” My response: “It appears the City under condition 23.b. should have ‘evidence of compliance with these requirements to the City for review and approval.’ If you do not have the evidence, a report from a biologist, then the project is in violation of the COA’s [Conditions of Approval]. Additionally, my understanding of the CEQA Guidelines is that any project site with endangered species requires at minimum a mitigated negative declaration, if not a full EIR. This site has Presidio clarkia present. CEQA review is required. Presidio clarkia have just started blooming, making them identifiable. Any survey would have to have been done in the last week, and prior to the weed eating that took place on the site. Any report on the presence of the species should include mention of a reference site where the species is known to occur. The reference site is next door at what is known as the Old Redwood Road site. The CNDDB [California Natural Diversity Data Base] has all the information on local occurrences of Presidio clarkia. At the Old Redwood Road site today the species was in bloom.” Rose’s response: Thanks for responding, we share your concern for PC as well as any endangered or even threatened species of plant or animal in Oakland – as a 45 year resident of Oakland who grew up in the south hills, hiked Redwood and Joaquin Miller too many times to count, and attended Skyline high, I’m with you – I have a few quick questions that would help a lot:
-what would you consider evidence?
-what as you see it triggers the requirement for a report if a condition is not met?
-what proof do we have to provide to code enforcement staff that a condition was not met?
-have you noted the PC on this property?
-if so, have they recently removed some or all of the PC on site?
Thanks! we’ll get to the bottom of it, talk to you soon.”
On April 21, 2016 the dialog with Rose continued with my response: “In past years Presidio clarkia have been observed on this property and the adjacent property. This site is noted in the CNDDB as having Presidio clarkia present and is called the Old Redwood Road population. The requirements clearly state a qualified biologist was to survey the site. That means there would be a written report with the results of the survey. If the City does not have a copy of that report, the terms have been violated. The COA’s do not address the impacts to habitat for the species, and how habitat should be protected. Because Presidio clarkia is an annual species, the protections put in place have to protect habitat more than individual plants. The CEQA Guidelines make it clear that when a special status species is involved, CEQA review is required. CEQA review still needs to be done on the project.” Rose responded: “That’s good information, so you do feel the applicant is out of compliance – maybe I should make a site visit right away, are you available to meet me?” My response: “If the biologist has not surveyed to site, then they are out of compliance. I am not available today to visit the site. This project requires CEQA review. I was never sent a copy of the approval, or any other information about the project approval, even though I had inquired about the project. When was the project approval issued? The date of the approval is August 11, 2015, but I corresponded with you on September 4, 2015, and the Presidio clarkia conditions were not in the permit at that time.” The response: “Correct, and the approval was amended, your help on that was appreciated – fast forward to now: I communicated with the applicant this morning who put me in touch with the contractor – I put the contractor on notice to respond how they are or are not meeting the condition – sounds like you feel they will not be able to demonstrate, so we’ll be looking at next steps right away such as SWO, etc – talk to you soon.” My response: “What is the latest on this? The conditions of approval, if not followed, should be amended to make sure the habitat for the species on the site is not impacted by the project. Water run-off into the habitat area should be prohibited/limited since it is the time the plants are blooming and setting seed.” Rose Response: “They responded but it was inadequate – I asked for more information and did not receive – so I’ll go see the Inspections Dept for next steps – talk to you soon.”
My April 25, 2016 communication to Rose: “I drove by the site on Saturday and it appeared some work was being done. What is the current status of the project?” Rose response: “I spoke with the contractor today: there is no work or staging at the unimproved area (upslope beyond a retaining wall)” My response: “Where is the biologist’s report, and where is the fencing around the potential habitat for the special status species?” April 26, 2016 reply from Rose: “There is no report, but I can speak with them about fencing” My reply: “The biologist’s report is how the fence location would be determined. Will you be stopping the project until there is the required CEQA review?” Rose’s reply: ” If we need to; but, wouldn’t the fence encircle all undeveloped area? There is no work or staging in the undeveloped area btw” My reply: “CEQA review is the process by which it is determined what mitigation measures are appropriate to protect a species on a particular project site. Without CEQA review the project is in violation of the law.” I received no response from Rose to this last email.
On May 10, 2016 I received an email from Scott Miller the Zoning Manager for the City stating in part, “I am reviewing the situation at 5150 Redwood Road and hope to have a formal response to you in the next few days.” This was followed by Mr. Miller’s letter of May 19 where he mentions condition of approval #23, but does not explain why a biological survey of the site never occurred.
After more refusals to answer why a biological survey was not performed, even though the COA’s do not make the survey optional, on July 1, 2016 I went to the offices of planning and asked to review the file for the project. There was nothing in the file but my email correspondence with Rose and Miller and the original application and a set of plans. The signed copy of the Approval was nowhere to be seen. There was no communication from the project applicant, no records of phone calls, no record of the September 2015 HOLD, or the May 13, 2016 site visit referred to in the letter. I asked Mr. Rose where a signed copy of the Approval was and he said he did not have a copy, which I found hard to believe. COA #6 requires a copy of the approval be attached to the submitted plans. As a result I went over to the building department and got a copy of the plans for the project with a copy of the approval attached. The copy of the approval attached to the plans does not have COA 23. As anyone can see when looking at the Approval sent to me by Rose, there is a large blank space on Page 8 of the document after COA #22. COA #23 start on the next page and then the signature line is on Page 10. The Copy of the Approval that is attached to the plans in the Building Department stops at COA 22 on page 8 with a signature line right below the conclusion of COA #22. Mr. Miller’s signature is on Page 1 of the copy attached to the plans, so it is a signed copy.
The project at 5150 Redwood Road is minor, and the impact to Presidio clarkia during construction could easily be mitigated. COA #23 would be similar to what the mitigation measures for the project would have been had CEQA review taken place. But without the biological survey of the site, it is impossible to know what impacts to Presidio clarkia have occurred. More importantly, and probably the reason the City cut corners, is that CEQA requires biological surveys before project approvals. Because Presidio clarkia is an annual species, and it blooms between April and July, and surveys must take place during the blooming season to ensure proper identification of the plant, the project would have been delayed a year.
Ultimately, what occurred with this simple problem is reflective of the ethical climate in the City of Oakland where we have a police department scandal and a Mayor more concerned with City employees leaking scandalous information than the public’s right to know.
There can be no conclusion other than the document sent to me on April 20, 2016 that purported to be the Approval for the project at 5150 Redwood Road is a FRAUD. What will the City of Oakland do?