Don’t Let GSA Take McKay Avenue Away

The Alameda Sun received a copy of this letter addressed to Clark Van Epps, director of the office of real estate property utilization and disposal at the General Services Administration.

Dear Mr. Van Epps:

San Francisco Bay Conservation & Development Commission (BCDC) has been contacted by a number of stakeholders, including the Friends of Crown Beach, the Citizens for East Shore Parks, the East Bay Regional Park District (EBRPD), and the City of Alameda, regarding the actions of the General Services Administration (GSA) with regard to a 3.95-acre portion of the Alameda Federal Center known as Neptune Pointe. Consequently, we have investigated the matter and, with the assistance, in part, of information GSA has provided to us, reached the following findings and conclusions.

On July 9, 2008, pursuant to sections in the Coastal Zone Management Act (CZMA) and CZMA regulations, GSA submitted to the California Coastal Commission a negative determination for the auction sale of Neptune Pointe.

In its negative determination, GSA concluded that the sale of Neptune Pointe would have no effects on California’s coastal zone and, therefore, GSA is not required to prepare and submit a consistency determination under CZMA for this action. The Coastal Commission forwarded the letter to Tim Eichenberg, BCDC’s chief counsel at that time. By email dated September 12, 2008, Eichenberg concurred in GSA’s determination that submittal of a federal consistency determination for the sale of Neptune Pointe was unnecessary.

It has come to our attention from GSA’s memo dated Aug. 12, 2013, that GSA is in contract to sell Neptune Pointe. The memo further states that due to claims by the EBRPD regarding the federal government’s right to McKay Avenue, which is adjacent to Neptune Pointe and is owned by the State of California and managed by EBRPD, GSA intends to initiate condemnation or eminent domain proceedings to secure ownership of McKay Avenue.

A second GSA memo dated Aug. 30, 2013, under your signature, states that GSA intends to convey Neptune Pointe to Tim Lewis Communities (TLC), a developer of private residential housing. The memo further states that GSA made several attempts to work cooperatively with EBRPD and the state of California to secure their cooperation regarding access to McKay Avenue in connection with the sale of Neptune Pointe to TLC, but was unable to reach an agreement and therefore decided to pursue condemnation of the street.

The taking of McKay Avenue by eminent domain is not within the scope of the negative determination that GSA prepared, and in which BCDC concurred in 2008. As explained below, we have determined that GSA needs to complete a consistency determination for the taking of McKay Avenue.

San Francisco Bay Plan’s map 5 includes McKay Avenue as part of Robert W. Crown Memorial State Beach, which is shown as a "Waterfront Park" priority use area. Accordingly, the state beach, including McKay Avenue, is part of BCDC’s coastal zone. The State Beach also has the status of a "land use" as that term is defined in CZMA and, thus, a "coastal use or resource" as that term is defined.

According to CZMA the acquisition by a federal agency like GSA of a "coastal use or resource" constitutes a federal "development project." GSA’s acquisition of McKay Avenue by eminent domain is thus a "development project" within BCDC’s coastal zone for purposes of CZMA. As such, CZMA requires GSA’s condemnation of McKay Avenue to be "consistent to the maximum extent practicable with the enforceable policies of [BCDC’s] approved State [coastal] management
program."

Furthermore, CZMA directs GSA and other federal agencies to

"consider all development projects within the coastal zone to be activities affecting any coastal use or resource." CZMA requires federal agencies to submit to a state coastal management agency a consistency determination "for all Federal agency activities affecting any coastal use or resource." Accordingly, GSA must submit to BCDC a consistency determination for the condemnation or the taking by eminent domain of McKay Avenue.

The consistency determination should include a finding as to whether the taking of McKay Avenue is consistent to the maximum extent practicable with the policies of the San Francisco Bay Segment of the California Coastal Management Program and information and analysis sufficient to support that conclusion.

BCDC is the designated coastal management agency under CZMA for the San Francisco Bay region of California. CZMA’s consistency review process allows BCDC to monitor activities of federal agencies in and adjacent to the coastal zone and assess whether any such activities will have any negative impacts on the Bay. Consistency reviews allow BCDC to fulfill its duty to protect and enhance the resource values of San Francisco Bay and encourage the bay’s responsible use.

If you have any questions about the preparation of a consistency determination for the subject activities, please contact Brad McCrea at 415-352-3615.

— Lawrence Goldzband, Executive Director Bay Conservation & Development Commission