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The Council's action likely ensures the matter will now end up in court. As previously reported by LBReport.com, appellants Gigi "Fast Elk" Porter (President of "Stop Taking Our Parks" -- STOP), park protection advocate Ann Cantrell and Earthcorps President Don May have retained environmental lawyer Jan Chatten-Brown to handle the matter.
Attorney Chatten-Brown told the Council she considered the EIR's treatment of alternatives legally inadequate. (Ms. Chatten-Brown also noted she grew up in the Bixby Knolls area and was quite familiar with Scherer Park.)
City staffer Amy Bodek said City Hall planned to "mitigate" the 2.5 acres of Scherer park land that would be lost by cleaning up a "brownfields" (i.e. polluted) site on 55th Way in NLB and turning it into five acres park land. Ms. Bodek indicated the major problem at the site is methane gas and City Hall planned to spend roughly $2 million on remediation, about half of which is expected to be an EPA loan.
Councilman Rob Webb, in whose district Scherer Park is, said he was comfortable with a "2 for 1" replacement of park land and predicted other City Hall projects would boost the actual ratio higher. Several other Councilmembers cited the 2 for 1 formula during the debate.
However, near the end of the Council hearing, City Attorney Mike Mais pointed out that the EIR and the Planning Commission's actions below only guaranteed a "one for one" replacement of Scherer park land. Despite being told this, neither Councilman Webb nor any other Councilmember moved to amend the guarantee to specify a "2 for 1" replacement of park land (which several had indicated they considered significant).
City Attorney Mais also said that although the LB Unified School district is (as documented yesterday by LBReport.com) in escrow to acquire the former Dooley's site -- a site the EIR treated as a possible alternative to use of Scherer Park -- the Dooley's site remains a viable alternative for purposes of the EIR.
Mr. Mais said City Hall remained legally able to acquire the Dooley's site for use as a police facility (if the Council so chose) if the escrow doesn't close (LBUSD says it's in a due diligence phase). He added that even if LBUSD did acquire it, City Hall could move to buy it or take other steps to acquire it so in the city's view, the EIR's stated alternative remained viable..
Those testifying in support of using Scherer Park land for the police facility included Steve James, President of the LB Police Officers Association (a public employee union representing police officers), Maria Norvell (on behalf of City Hall's appointed "Public Safety Advisory Commission") and NLB/Bixby Knolls/Los Cerritos area neighborhood/business leaders including Linda Ivers, John Deats, Mike Kowal
Those testifying in opposition included appellants Porter, Cantrell and May, as well as Adrea Stoker, Ann Dennison, Bry Myown (focused on process leading to hearing), Diana Lejins, Diana Mann and Marshall Blesofsky.
As previously reported on LBReport.com, members of City Hall's appointed Recreation Commission previously sent a letter to the Council in their individual, non-official capacities (posted verbatim on LBReport.com) opposing use of Scherer Park but adding that if the Council did so, it should be mitigated with park space elsewhere.
Councilman Ray Grabinski voted "no" on the Scherer Park site, criticizing City Hall for "poor planning" which he said would now likely lead the matter to court and produce further delays. Grabinski said he expected park protection advocates would gather signatures for a park protecting ballot measure and he would support it.
Less than a year ago, after letting a Council deadline pass for placing a park protecting charter amendment on the November 2000 ballot, Councilman Grabinski publicly told Ann Cantrell a charter amendment wasn't going to happen at that time and proposed a lesser Muni Code measure he called "parks in perpetuity." Grabinski's measure, discussed at hearings but never brought back to the City Council, would simply give residents more opportunities to be heard if City Hall (again) tries to take park land for non park uses.
In contrast, after announcing she would vote "yes" on the Scherer Park site, 5th district Councilwoman Jackie Kell said she believed this would be the last non-park use allowed in a LB park and said that on next week's Council agenda, she would "urge the Council to look at putting a proposal on the ballot to stop any more building in our parks except for maybe very basic recreational kinds of activities."
Before the Council vote on the Scherer Park site, Councilman Frank Colonna made a substitute motion (seconded by Councilman Dennis Carroll) to approve the project with a footprint similar to the currently existing site, consuming less park land by using subterranean parking. This would mean referring the matter back to the Planning Commission.
Earlier in the hearing, LBPD Chief Jerome Lance (responding to a question from Councilman Webb) said he would not support such a configuration, citing operational reasons. In other fora, city staff has also indicated subterranean parking would significantly increase the cost of the project.
After Councilman Colonna made his substitute motion to have the Planning Commission examine underground parking and a smaller park footprint (seconded by Councilman Carroll), Carroll invited the appellants back to the microphone, then pressed them to state on the record whether, as a general principle, they would agree not to file a lawsuit if the Council adopted a modified plan with subterranean parking (Colonna's plan).
A transcript of this remarkable exchange follows, preceded by our comments.
Appellant Porter indicated she supported reducing the facility's footprint but hadn't seen the plans (which Carroll conceded do not yet exist) and wanted further information. Appellants Cantrell and May restated their position that the Council should not approve the EIR and should send the entire matter back to the Planning Commission.
Carroll, a lawyer and judge pro item, repeatedly brushed aside their responses, pressing them to answer while they basically stuck to their positions. After several minutes of this, Carroll abruptly withdrew his second and Colonna withdrew his substitute motion.
[LBReport.com comment: Councilman Carroll's interrogation was disturbing to us. Was it reasonable to press appellants to forego a legal challenge to City Hall's record and commit to something in principle they hadn't seen (and couldn't see since it didn't yet exist)? Hadn't Councilman Carroll just met with the appellants days earlier, a meeting in which they already indicated they did not support the underground parking alternative? Did Councilman Carroll's interrogation make the appellants appear to be inflexible and lawsuit-happy, spurning a good faith offer, or did it show Councilman Carroll's willingness when seated behind the Council rail to use his legal training to badger those challenging City Hall's actions? We've posted an extended transcript excerpt below which speaks for itself, allowing our readers to decide.].
Begin extended transcript excerpt:
Councilman Carroll: ...Parks are precious. Parks are special. Parks are different. And I have gone over there many times. I had an opportunity to see the surrounding potential sites, the mitigated sites. And I hope that I have done enough homework to have the belief there is a true treasure there at Scherer Park that I would like to see preserved.
I also met with the appellants, some of whom I knew and a couple I had the opportunity to meet, and one of the nice things about being involved as I am as a Councilperson, I do get to meet and establish relationships with me, caring persons in our community.
One of the things that, a very pleasant meeting with an honest and frank exchange of views, was my hope that there would be some flexibility, some compromise, some listening from their point of view, that would allow us to create enough sentiment on this Council to try and resolve this issue here tonight, to get the police a building as soon as we possibly can, not go back into court and start that whole process.
And it seemed to me that as heartfelt a concerns that the environmentalists do have, and I certainly respect their points of view, this may present one opportunity for us to find that middle ground. That is, this may not be one of those times where it's an either-or circumstance as I perceived the [El Dorado Park] Sports Park to be, and as I perceived the 911 center to be.
And if you would indulge me for just a moment, I'm going to invite the appellants down here and I'd like to ask a couple of questions for the record. Miss Porter, Reggie, Ann and...Don May.
Thank you. And I say this in all sincerity. I am prepared to support voting for sending this back to an EIR for the sole and exclusive purpose of creating a more specific and more detailed plan with respect to underground parking and a footprint similar to, but not exactly the same as, is currently in place at Scherer Park.
And as Councilman Webb earlier indicated, it might be a little bit larger than we would hope but not substantially. And I'm going to put my vote in your hands and give you the opportunity to save those two acres of Scherer Park if you would like to do it that way, and I respect your answer whatever it might be, rather than risk going to court and losing and giving up those two acres.
And I'm a lawyer. I sit as a judge pro tem, And I know when one goes into court, nobody knows how it's going to turn out. Versus, and it may be that you would prevail if you went to court and a new site would be found more suitable to your wishes.
But if I were prepared to support that proposal, would you as meeting us half way, listening us and hearing us, be prepared to forego litigation and support what I'll call a modified police station at Scherer Park.
And Miss Porter, perhaps you might have the honor of answering first.
Ms. Porter: May I answer on my own behalf by asking a question of Concilman Shultz?
Councilman Carroll: Let me ask you to do this, and in court I have been a trial lawyer and I know how to box somebody in, but let me offer you this possibility. I would like...
[Ms. Porter attempts to interject, Councilman Carroll overtalks her]
Councilman Carroll: ...either yes or no, with an explanation. And I'm happy to hear you, but I'd like to know if you're prepared to meet us half way. And I think you might find some sentiment on this Council. And I know from your perspective it may not be half way, I don't want to...
[Ms. Porter interjects, Councilman Carroll proceeds]...No sir, you, you misunderstand...
Councilman Carroll (continuing): ...mischaracterize you, but would you be willing to give away the threat which really hands over, in my view, this project. It adds time, money and the kinds of concerns that we're trying to avoid if we can, and I ask you the question in good faith.
Ms. Porter: And in good faith, I will ask again. This is something that I'm happy to address and the reason I asked for Mr. Shultz's input on this, and this is because I would like him to work with you on this if this happens.
The reason being is Mr. Shultz and I have conversations about the possibility of working with ergonomic type construction and we got so busy we haven't had a chance to have our little meeting but that's still on the agenda, I hope.
And it, we're talking about how to work with a green environment but yet utilizing buildings. Case in point, whacky as it sounds, is an earth-covered building. OK, that's an example just, far out, but it's an example...
Councilman Carroll (interrupting): Well let me...
Ms. Porter (trying to continue): Am I...
Councilman Carroll (continuing): Let me...
Ms. Porter: (continuing): am I able...
Councilman Carroll: (continuing): narrow the frame of my question, Ma'am, and I appreciate that it would be easy to derail an Environmental Impact Report with a variety of demands. Certainly, you would have the opportunity to contribute.
But as a general principle, would you be willing to represent this evening that you would agree not to file a lawsuit if this Council were to adopt what I'll call a modified plan with subterranean parking?
Ms. Porter: As long as it was not unilaterally without us looking at it first. We would not want to adopt the current plan, and Mr. Webb knows our position on that. Would we be willing to work with you to find another plan? I would, but I can only answer for myself, so that is my answer that yes, on my behalf and my behalf alone, I can answer that I would be willing to forego my litigation aspects of this case in order to work with you to find some form of modification to a structure that would take less than what we're discussing, as long as, again, you know, I haven't seen the plans, so I don't know what...
Councilman Carroll (interrupting): Nobody's seen the plans, they don't...
Ms. Porter: Right...
Councilman Carroll: ...exist yet.
Ms. Porter: And on the proviso that it went back to Planning, I would redicuss this and we reexamine this, I'm willing to meet half way.
Councilman Carroll: Thank you. Miss Cantrell.
Ann Cantrell: I think what we said tonight was that we felt that this EIR should go back to Planning and other solutions be found to this. This could be one of the solutions. And we certainly won't being a lawsuit on an EIR that hasn't been confirmed. What you have to do tonight, as I see it, is not OK the EIR as it stands but send it back to Planning so that there can be other solutions for this. And the underground...
Councilman Carroll (interrupting): That was not my question. I know you were married to a lawyer. [Transcriber's note: Ms. Cantrell's husband Richard, a prominent LB lawyer, succumbed to cancer several years ago.] My question is, would you support a facility there at that park at that site if it was on or about the same footprint as the current one?
Ms. Cantrell: I can't make that promise. I would like to see this go back...
Councilman Carroll (interrupting): I do understand that...
Ms. Cantrell: ...and other solutions.
Councilman Carroll: All right, thank you. Mr. May?
Don May: Well I think that members of the public are just like this Council and are proscribed to take a position before you adequately look at the facts. And I do think that it's appropriate to send this measure back to the Planning Commission for reconsideration and I do believe that your alternative proposal should be looked at as an alternative, not your only alternative but would look at one.
Councilman Carroll: Of course that was not my question. Would you support, sir, a new facility there at that site, on or about the size of that footprint?
Mr. May: Again, you can't ask somebody to make up their mind before you've...
Councilman Carroll: That's what I'm asking, sir. That's what I'm asking, what you are prepared to do. Are you prepared to forego litigation if we were to support and vote for that plan tonight.
Mr. May: We would, of course, forego litigation if you would send it back to the Planning Commission for total reconsideration.
Councilman Carroll: OK. Thank you.
Mr. May: If you don't, that's your...
Councilman Carroll: No, I appreciate your position and I appreciate your willingness to come down here and share it. Vice Mayor, I'm going to withdraw my second to that motion [substitute motion by Councilman Colonna]. Thank you.
Councilman Frank Colonna: Vice Mayor, I will withdraw the [substitute] motion.
[LBReport.com comment: Before his election to the City Council, Councilman Carroll worked with Ann Cantrell to draft a ballot initiative charter amendment that would protect park land from large commercial (over 1,500 sq. ft) encroachment (unless voters approved). The measure gained over 20,000 signatures, a few thousand short of making the ballot. Since being sworn in a year ago, Councilman Carroll has not moved to put a park protection charter amendment on the ballot, which the Council could do with five votes.]
After Councilman Carroll withdrew his second to Councilman Colonna's substitute motion, and Councilman Colonna withdrew his substitute motion, the Council voted 8-1 (Grabinski dissenting) to approve motion(s) (by Councilman Webb, seconded by Councilman Shultz) certifying the EIR and rezoning the Scherer Park area involved "institutional."
LBReport.com plans to update this article with further transcript excerpts and details over the coming days. Check back on this page and click "reload" or "refresh" on your browser to make sure you get the updated version,