The Feb. 2, 2010 election to decide SunCal's fate at Alameda Point won't take place at all if Oakland attorney Alan S. Yee has his way. Yee has promised to file a lawsuit to bar the city's plan to hold the electon. Yee sits as chair of the Oakland Chinatown Advisory Committee. He is also the attorney for the Oakland Chinatown Chamber of Commerce and Asian Health Services. Neither organization is at all happy with the SunCal initiative going before the voters without a proper environmental impact report (EIR).

Yee says in a letter to the city that if the city holds the election it would be in jeopardy for not complying with a settlement reached in a lawsuit settled five years ago. The 2004 lawsuit involved the cities of Alameda and Oakland as well as the Oakland Chinatown Chamber of Commerce and Asian Health Services. Yee claims that the settlement requires the city to complete the EIR before putting the initiative before the voters.

"The settlement agreement requires the City of Alameda to prepare at least one project-level EIR in compliance with the California Environmental Quality Act (CEQA) before taking any steps to further the SunCal project as proposed in the initiative," he said. However state law exempts voter-sponsored initiatives, and Alameda voter Kathy Moehring is on record as sponsoring SunCal's initiative. Yee counters that the initiative is partly a city initiative and says that state law forbids Alameda to sponsor SunCal's initiative without the EIR. Papers filed with the initiative show that the city of Alameda played no role in its filing.

An EIR is presently underway. The report won't be completed, however, until after the Feb. 2, 2010 election, something Yee claims goes against earlier agreements and breaks California law.

The city does play a role in the EIR. Although the report is an independent analysis, the city selects the consultants; these consultants report to the city and not to SunCal, which is paying the $2 million cost. According to SunCal, the EIR will study, among other issues, the initiative's impact on wildlife, air and water quality, traffic, climate change, geo-technical issues as well as the health of wildlife in the area.

This legal volley aimed at city hall from across the Estuary is not the first. In June Yee accused the city of not presenting SunCal's initiative to his clients; something he says was agreed on in the wake of the 2004 lawsuit.

Yee is demanding to see minutes of meetings between SunCal and the city. He claims that these minutes will show that the city and SunCal have been working hand-in-glove. Yee is not entitled to see the minutes of any closed-door meetings between SunCal and the city council or the between SunCal and council sitting as Alameda Reuse and Redevelopment Authority) (ARRA). While California's Sunshine Law - the Brown Act - allows public access to most meetings, the law also permits ARRA and the city council to meet with SunCal behind closed doors on "matters such as property negotiations."

He doesn't mince his words. "We therefore demand that Alameda and the parties to the agreement meet and confer to attempt to resolve this dispute as provided in Section 6 of the agreement. If settlement efforts are unsuccessful, we will have no alternative but to undertake legal action," Yee said in his letter.

The City of Oakland has chimed in on the debate. Eric Angstadt, a strategic planning manager with Oakland's Community and Economic Development Agency said that he agrees with Yee's claims that the city of Alameda is sponsoring SunCal's initiative. Angstadt also says that the city cannot schedule an election until the EIR is finished.

"Oakland believes there is support for contrary positions - that the initiative is sponsored by Alameda, at least in part, and that the Alameda city council is obligated not to allow a vote of the electorate until CEQA review has been completed," Angstadt wrote in a letter to Alameda's Interim City Manager Ann Marie Gallant. Angstadt says the 2007 exclusive negotiating agreement between SunCal and the city shows that Alameda is a partner in the ballot measure.

"Alameda entered an exclusive negotiating agreement with SunCal in 2007, and various Alameda officials, staff, and boards and commissions have provided substantive input and offered support for the initiative. Thus, Alameda has taken an active and constructive role in shaping and advancing this initiative," Angstadt said. The question remains whether the voters can decide whether the initiative will stand or fall or whether Yee has a powerful enough argument for the courts to intervene.