Recap of the MAC Land Use Meeting

Governance
31

On Monday night, a capacity crowd jammed into the Castro Valley Library to attend the latest Castro Valley Municipal Advisory Council (MAC) meeting.

The “Public Comment” section was very diverse.  Topics covered the entire Valley spectrum and included the ongoing garbage situation in the Canyonlands, as well as a downed tree in Baywood ignored by the County for over a year.  The ever popular topic of cell phone towers was broached, as well as the potential sale by CalTrans of a Native American burial site near Douglas Morrison Theater.  By far, the most crowd reaction came from the topic of a potential conflict of interest by the MAC Chair Marc Crawford regarding the matter of a new housing development off of Proctor Road.

You can hear an audio recording of the public comment period by clicking here.

After that, the topic shifted to a proposal to upgrade an existing Cell Tower on the property of Pete’s Hardware.  The MAC has stated that they would like the site to be “camouflaged” but the company, Crown Castle (servicing a Verizon facility,) refused saying that their Site Development Review (SDR) issued in 1991 had no expiration date, and did not require camouflage.  Debate ensued as to whether the site was operating under that same SDR, or a later Conditional Use Permit (CUP) which would require eventual renewal and review by the MAC. County staff could not answer definitively, so the item was continued -pending review by County Counsel.

The meeting then moved on to review a proposed development on the so called “Proctor Court” subdivision designed to occupy the undeveloped hillside between Proctor and Almond Roads.  This is the third proposal brought before the MAC to develop this hillside.  Due to public and MAC comments, the project has been shrunk to 18 houses on a private road. MAC Chair Crawford had recused himself from the topic, so Vice Chair Miraglia oversaw 24 concerned citizens who made comments on the new proposal.  A new developer, Braddock and Logan, gave a very informative Power Point presentation on the project. The latest iteration includes fewer home sites, elimination of a proposed cul-de-sac, and a different approach to waste water disposition.

Public comments (of which there were many,) focused on the potential public safety and infrastructure  impacts on the site to enable the new homes.  All proposed home sites include an “oversized”  two car garage and a two car driveway, but on-street parking is limited to 18 spots -one per home. The developer noted that the new development would be under an HOA with a CC&R that would require the maintenance of two parkable spaces in each garage for resident use to mitigate on street parking issues, but many in the crowd found this far from adequate.

Many commentators, including one current Oakland Firefighter, noted that the proposed street and parking configuration would make it very difficult to fight a fire with the largest of the current Alameda County Fire Department vehicles.  Many parallels were shown between this neighborhood and the ones devastated by the Oakland Hills Fire of 1991.

One commenter noted that no consideration had been given to the increased impact on Castro Valley Schools.  She noted that all Elementary Schools in Castro Valley were currently completely full in grades K-3 and could accept no more students.  Adding a development of 18 units with no mitigation would not benefit the town as a whole.

Additionally, concerns were raised about the potential impact on rare local native species such as the Burrowing Owl, and the Alameda Whip Snake.

Overall, many people said that they were opposed to the scope (i.e. number of homes) in this new proposal, and not the idea of a housing development in general.  This has been a theme for all development proposals at this site so far.

After comments were heard, the MAC continued a decision until October. They would like to see more environmental impact report information, confirmation from CVUSD about the mitigation from increased enrollment.  The MAC would also want the developer to explore expanded parking and the feasibility of a smaller scale project, and verify with EBMUD that there is ample water pressure in the neighborhood before & after development.

This is just another example of why we have a MAC in Castro Valley. If you come and talk about what concerns you, you will be heard. The MAC exists solely to transmit the desires of the community to the Board of Supervisors.  Come on down! The next meeting will be on Monday , September 22nd. Come down to the Library and be a part of the solution!

Good report. I would like to add that several weeks ago one of the residents of the Proctor area brought to the attention of Supervisor Miley the concern that MAC Chair Marc Crawford may have a conflict of interest. Mr. Crawford owns a piece of property that abuts the Proctor development.

MAC Chair Crawford Contacted County Counsel for advice. Legally Mr. Crawford does not have a conflict of interest but Mr. Crawford chose to recuse himself because of the possible perception of conflict.
Bob Swanson

Thanks for the comment Bob. The point that concerns me is that Marc Crawford did not inform Supervisor Miley’s staff, the other MAC members, or the community that he had a potential conflict of interest. He had over a year of meetings to decide to reveal this and he choose not to. During this time he met with the developer, county staff, and the MAC subcommittee multiple times. The question I asked at Monday’s meeting is still unanswered. “Why is he suddenly deciding to recuse himself now?”
You are correct that there may be a perception of a conflict of interest. There is also a perception that the only reason he is recusing himself at this time is that neighbors discovered he owns adjacent property. The fact that he did not recuse himself earlier makes it look like he was hiding this fact. This is why people are concerned.

Hi Peter,
There is no legal conflict. Therefore, there was nothing that had to be said. When citizens became concerned Marc communicated with County Counsel. Marc decided that because of the misconception that there may be a conflict of interest he decided voluntarily to recuse himself. Marc has conducted himself in an honorable manner and I thank him for it.
Bob Swanson

Hi Bob. Thanks for confirming the concerns of the neighborhood. The reason that Marc recused himself is that someone discovered he owned property next to the site. Marc did not recuse himself earlier because nobody was aware of the issue.
Perhaps there should be an update on the conflict of interest rules. There is a perceived conflict, and that should be enough to consider recusal.

So what you are saying is that County Counsel determined that the value of a property adjacent to a proposed development would not change (either up or down) based on that development?

I have served (worked for) city councilmembers who have recused themselves from proceedings whenever an issue that they were working on could possibly affect their property values (either way). In fact, some have recused themselves when the subject properties were simply in the immediate neighborhood (not adjacent) to proposed developments.

Hi Mary,
If Marc thought that there was a conflict of interest and he hid it, that could pose an ethical question.

If Marc did not think there was a conflict there is no ethical question. I believe the latter to be true.

When a concern was brought to his attention he sought legal counsel and behaved honorably. Therefore I think ethically.
Bob

My good friend Brian,
You’re a political and government insider, as am I. If you need clarification contact County Counsel and they would be pleased to confer with you on the issue.

Maybe County Counsel would be interested in making an informative presentation to the MAC and freely open to the community regarding the legalities of volunteering to be on a County Board or Commission such as the MAC.

It is allot of work to serve on these boards. I wouldn’t want do to it.
Bob

Let me preface this to say this is not a criticism of any member of the MAC or the County of Alameda.

Does Alameda County have a copy of its conflict of interest policy available online? Doesn’t each jurisdiction implement a policy under the Political Reform Act (http://www.fppc.ca.gov/index.php?id=51)? My question is about an overarching policy, not about whom the county requires to file a “Statement of Economic Interest” (Form 700).

It seems like communicating this policy so that all county commission members and the public can educate themselves about such a policy would be helpful. It would help everyone understand the rules of the game and protect commission members from unfounded accusations.

Bob,

That would be a great idea to have County Counsel do this presentation to the MAC and to the Community. How can we make this happen? Would a Castro Valley resident need to make this request or can you take the lead?

Susan

Hi Susan and Michael,
Education about how government works is an important duty of government. I will contact County Counsel and the MAC Chair, Marc Crawford and see what we can do. When questions are asked they can be answered.

It is of great benefit to have an educated population. Local Professional journalism is inadequate at best and the hodgepodge of social media is fat in emotion, but slim on facts.
Bob

The California Office of Attorney General (OAG) issues guidelines on Conflict of Interest issues. In the introduction to this document, the Attorney General stated:

“Conflict-of-interest laws are grounded on the notion that government officials owe paramount loyalty to the public, and that personal or private financial considerations on the part of government officials should not be allowed to enter the decision-making process.”

The Attorney General also includes a checklist of Financial Conflict of Interest, as follows:

• Is a state or local official participating in a government decision?

• Does the decision affect an interest in real property or an investment of $2,000 or more held by the official? Or a source of income to the official of $500 or more? Or gifts to the official of $420 or more?

• If so, is there a reasonable possibility that the decision will affect significantly any of the economic interests (e.g., real property, business entities, or sources of income or gifts) involved?

• Are the official’s economic interests affected differently than those of the general public or a significant segment of the public?

• If the answer to these questions is yes, the official may have a conflict of interest and be required to disqualify from all participation in that decision. (See Ch. I.)

I am certainly not an attorney and not qualified to render a legal opinion. I am left wondering whether MAC members are considered “local officials.” Perhaps the value of the Proctor Road development does not rise sufficient to be subject to consideration. Since I am ignorant of the law’s application in this matter, I am left only with questions.

To review the Attorney General’s document on Conflict of Interest, go to:

http://oag.ca.gov/sites/all/files/agweb/pdfs/publications/coi.pdf?

Hi Brian,
Good information. I have communicated to County Counsel the interest in an informative presentation regarding the legal challenges of serving on County Boards and Commissions.

Since I too am not an attorney, I have also asked to see if my understanding of the issue is correct or if it needs modification.

I will find out this coming week and let you know.
Thanks,
Bob

Yes, Bob, we all know that Marc Crawford walks on water and would never, ever, do or say anything while on the MAC that would benefit him personally or because of a personal vendetta.

Except when he does.

Isn’t this the same “honorable” man who threatened to lobby local businesses to drop out of the Chamber of Commerce if the Chamber did not do as he (for purely personal reasons) demanded?

Nothing was done then, and I’m sure nothing will be done now, but I have three quick observations/questions:

1. You didn’t answer Brian’s question. To paraphrase, do you believe the value of Marc’s property would not change due to this development?

2. It isn’t Brian’s job as a citizen to contact County Counsel to get to the bottom of this. Once the beans were spilled, it is Nate’s job to do so and to explain any consequent action or inaction to the people who elect him.

3. You and I have known each other for many years, so please excuse me if this sounds like a lecture, but I believe your loyalties belong to Nate and not to Marc. And this situation is not making Nate look good.

Hi Steve,
1. You didn’t answer Brian’s question. To paraphrase, do you believe the value of Marc’s property would not change due to this development?

I don’t know. If no development goes in. No change. The value of his property could be affected negatively if a really bad project went in. If a really good project went in it may affect his property positively but I have no way of knowing. Not psychic.

2. It isn’t Brian’s job as a citizen to contact County Counsel to get to the bottom of this. Once the beans were spilled, it is Nate’s job to do so and to explain any consequent action or inaction to the people who elect him.

Brian is a very smart guy. I am not qualified to answer the in depth questions that he is capable of asking. It would be best for Brian to talk directly to County Counsel.

3. You and I have known each other for many years, so please excuse me if this sounds like a lecture, but I believe your loyalties belong to Nate and not to Marc. And this situation is not making Nate look good.

This is not about loyalty to anyone it is about what is true in this particular situation. But since I am plagued by imperfection I could be wrong.
Bob

Bob, my old friend, are you playing with me? Do we need to chat over donuts?

I think we all know that we cannot determine the effect of a development until after it is done. If that were the test for conflict of interest, then NO ONE would ever recuse themselves. It’s all about the possibility or expectation of a financial impact.

Second, why in the world would County Counsel expend time and resources to respond to a citizen’s request when they are not compelled to do so? I have worked with many city attorneys and county counsels, and without direction from their appointed or elected superiors, they would likely sit on such a request. In fact, some cities or counties might find fault in spending resources on a citizen request over a more important or urgent item that they might be working on. Indeed, I have had legal staff sit on requests for weeks or months even after they have been given direction to respond.

Going back to the original issue, you said that County Counsel had already opined that Marc was not in a conflict of interest position. I was just curious as to the reasoning and logic behind that opinion.

Hi Brian,
As I stated above: “I have communicated to County Counsel the interest in an informative presentation regarding the legal challenges of serving on County Boards and Commissions.

Since I too am not an attorney, I have also asked to see if my understanding of the issue is correct or if it needs modification.”

Donuts are good.
Bob

But Bob, you’ve just ADMITTED that there is a conflict of interest. If a bad project goes in Marc’s property “could be affected negatively.” A good project “may affect his property positively.” That is the very definition of conflict of interest.

As Brian pointed out in different words, it’s not that the project WILL affect his property or that we have to be psychic in order to know whether there’s a conflict. What’s important is that it MAY affect his property.

And if there is a conflict, you don’t qualify as an “honorable” guy by recusing yourself only after you’re caught.

I’m not a member of this organization, but I’m happy that you’ve seen the light and come around to the other side of the argument. The question now becomes “what’s to be done about it?”

Hi Steve,
Caught implies that Marc was hiding something and that he thought that there was a conflict, so he hid it. I don’t believe that is the case and no one has shown me any evidence to the contrary.

Marc did recuse himself after consulting with County Counsel and to the best of my knowledge that is correct procedure.
Bob

To my friend Bob:

You’re evading the issue. You know there’s a conflict and Marc isn’t stupid; he knew it, too.

I like donuts, also.

To the members of this organization:

What County Counsel has to say is totally irrelevant. Possibly Marc gets a pass because he’s not an elected official. Possibly there is some other reason why his ACTUAL conflict of interest doesn’t meet the definition of “conflict” in the county’s rule book. So he gets off on a technicality. That doesn’t make it any less wrong. “County Counsel says I don’t have a conflict” is the lamest of excuses. An honorable person would have disclosed the facts at the very beginning rather than waiting until he was…uh, until it was made public.

Let’s say that one of the middle managers in my organization — who works directly under me — does something wholly unethical. When my customers complain, or when there is a newspaper article about it, he goes to company HR and gets a ruling that there is nothing in the employee handbook specifically prohibiting whatever it was that he did. Like Marc, he gets off on a technicality. That does not make it right.

Further, after the situation comes to light, he stops doing whatever it was that he did. Does this now make him “honorable?”

As his supervisor (or might I say “Supervisor?”), do I defend him and keep repeating that HR said he broke no rules? Not this boy. I either fire him outright or find the first valid excuse for getting rid of him. I may not be wholly honorable myself in the eyes of some people, but in this situation, this is the only honorable action to take. I, as upper management, and my company have reputations to maintain, not technicalities to hide behind.

I believe it was Dr. Johnson who once said, “A technicality is the last refuge of a scoundrel.”

Exactly Steve– and skirting behind the legalities is making Bob and Nate look bad.. and furthering the damage Marc caused. Does the supervisor work for us or for MAC?

I think a fair barometer would be to examine what each of us would personally do in the same situation. Bob, if YOU owned land next to a proposed development would you disclose that (at least to your colleagues) at the first possible chance? I certainly would, and in my opinion it’s ridiculous to view this in carefully crafted legal terms rather than a simple consideration of what would the average ethical person disclose.

Marc seems like a pretty smart guy and being a developer I would expect he would understand this could be a conflict of interest.– even I know that what goes on in my neighborhood affects my home values. I understand he devotes a lot of time to MAC and it probably is a thankless job — but he still can be wrong can’t he???

I will offer my opinion for the first time in this matter. (Up to now, I have asked questions, referred to State documents, and expressed explicit ignorance.) My opinion is that of all non-attorneys in the non-town of Castro Valley, Marc Crawford is the most experienced among us in the area of conflict of interest.

Marc earned that honor and distinction when in 2010 he personally sought and obtained from the California Attorney General an opinion of conflict of interest regarding an incumbent on the Castro Valley Sanitary District Board. Marc’s investigation resulted in a resignation from the Sanitary District Board, a seat on which he now seeks your vote in the November 2014 election.

If Marc knew enough about conflict of interest to raise it to the attention of the California Attorney General for guidance, then certainly Marc knows far more than the average person. Marc can not claim ignorance on this issue, nor can he redefine away what the average person knows to be true.

In the end, though, nothing is going to happen. We’re all wasting our breath (so to speak.)

I enjoy a good debate and this one has been very civil and very enlightening. But we can opine all day long, we can demonstrate rationally that something is rotten, we can give logical arguments until the cows come home. Nothing is going to happen.

For some reason, Marc is sacred. He’s the Teflon man. Nothing sticks to him. It doesn’t matter that he threatened the Chamber of Commerce for his own personal reasons. It doesn’t matter that he threatened a Sanitary District board member for personal reasons and then brought the Attorney General into the picture. It doesn’t matter that he went after an EBMUD board member for personal reasons. It doesn’t matter that he tried to go after the school board for personal reasons.

Nothing is going to happen.

Bob Swanson knows all this and has admitted on this board that Marc has a conflict of interest in the present situation, although it allegedly isn’t a violation of the county’s HR policies. But nothing is going to happen.

I really, really like Nate Miley. I’ve always supported him and always trusted him. I hosted a meet-and-greet fund raiser for him at my house and have attended many of his other fund raisers. I believe he truly cares about Castro Valley. And I really like Bob Swanson and believe he does his job honestly and completely, informs Nate of all local issues of note and represents Nate in the community on these issues as well as anybody could.

But…

But in this case…nothing is going to happen. And I don’t have the first idea why. All I know is that I’m powerless. You folks are powerless. This non-elected, semi-governing body can keep on making decisions that affect all of us — evidently without answering to anybody.

My advice? Save your breath for arguments you might possibly be able to win. As for me, I’m going to bed now.

Hi Folks,
As I stated above, I rechecked with County Counsel and I was informed that I have misinterpreted what they communicated to me. The misunderstanding surrounds the recent repeal of a regulation that I have heard referred to as the “500 foot rule”.

Marc Crawford’s property abuts the Tran property on Proctor. This property falls within 500 feet of Mr. Crawford’s property. Even though the rule was repealed, Mr. Crawford needed to recuse himself which he has.

I was wrong and I apologize. It was my mistake and not the County.

County Counsel said they would be pleased to prepare a presentation for the MAC and we the Public regarding the legal issues relating to citizens serving on boards and commissions. I for one am looking forward to greater clarity from it.

Bob Swanson
CV Resident

Bob,

I have done my own research on the conflict rules. Even though the 500-foot rule was repealed, the basic rule remains: If you are asked to vote on something that may affect the value of your property, you recuse yourself. Period. I’ll have more to say about this later. (And the regulations are pretty clear that members of the MAC fall under them.)

Anybody who knows you knows that you would never deliberately mislead the public, and I thank you for the correction. But is it still correct that Crawford VOLUNTARILY chose to recuse himself, when County Counsel said he didn’t have to? Do you know (and if so, can you share with us) what CC actually told Crawford?

I think a presentation by CC is a great idea, so long as the public is allowed to ask questions and have CC respond to them. (And by the public, I do NOT mean the members of the MAC. Were they elected, they might be able to say “we are the public.” As they are not, they cannot.)

Hi Steve,
Thanks for your post. I will have to decline from commenting anymore on any legal issues. Law is obviously not my forte.

What I would like to see is a kinder, gentler Castro Valley. We really have a very nice community. We have many folks who volunteer their time to contribute positively to the community. I have met so many wonderful people in the 41 years I have lived in Castro Valley. Previous to that while I was in the Navy I lived in Ashland and very much enjoyed dragging the strip on East 14th and CV Blvd.

I have enjoyed working for Supervisor Miley for nearly 14 years. I am 68 now and I have some health issues so I will be retiring shortly after the first of the year. I will never leave Castro Valley if I can help it.
Bob

If I read you correctly, Bob, what you are saying is that any and all discussion about a 500 foot rule, whether in or out of the regulation, is irrelevant because Marc’s property abuts that Tran property on Proctor. So, that entire discussion is a red herring.

The real issue, and the one that most of us know even on an intuitive level, is that Marc stands to gain financially from his position on the MAC by using his powers to affect the proposed Proctor development.

Marc knows he owns his own property. Marc knows that his property abuts the proposed development. Marc has been continuously involved in discussions and decisions about the proposed development. At a fundamental, conceptual level, this situation almost defines Conflict of Interest.

Marc is very well aware of the concept of Conflict of Interest. As far back as 2010, Marc went to the California Attorney General to seek a Conflict of Interest opinion on a Castro Valley Sanitary District Board Member. Marc cannot claim ignorance on this issue.

Yet, less than two weeks ago when I asked him directly about his involvement on the proposed Proctor development, Marc said to my face “There is no conflict of interest.”

Conflict of Interest laws were put in place to prevent people from lining their own pockets through the use of their governmental authority. The secondary effect was to build the public’s trust in government.

While a general presentation on Conflict of Interest would be informative, I would find such a presentation to be too general and distracting from the main point. I would much rather have a presentation on this particular situation: was there a Conflict of Interest in Marc’s case, and if so, what are the penalties for breaching that trust?

I am the person that “face to face” informed Supervisor Miley and Mr. Swanson about the fact that Chairman Crawford owns land adjacent to the Proctor Road Development. I knew about it last year and I had assumed that Mr. Crawford would do the right thing or be forced to do it, but as it didn’t happen and the plan was going to be discussed again before the MAC Board I felt it necessary to confront our representative, Supervisor Miley. I found out very quickly that Supervisor Miley takes no responsibility for the people that he appoints as he said to my face, Chairman Crawford does not work for him. That may be true but he picked him and so they are joined at the hip. He did console me by saying that if it was him, he would recuse himself. Perhaps Mr. Miley should appoint himself as the MAC Board chairman, then we would have someone with integrity rather than reappointing Mr. Crawford for another term.

I read with interest all the discussions on this website and I find Mr. Swanson’s statement begs the question:

“If Marc thought that there was a conflict of interest and he hid it, that could pose an ethical question.”

Most people in a position of power believe that “right” is always on their side and of course they know better than everyone else so there is no reason to ask anyone’s opinion. The courts and jails are full of people that didn’t think they were doing anything wrong, until they got caught. I have no idea if Mr. Crawford has gained financially and I really don’t care, but I do care about the behavior of public officials, be they elected or appointed, and I expect them to be transparent when it comes to conflicts of interest perceived or not.

I was also the person at the MAC Board Meeting on September 8th that called for Chairman Crawford to resign, but it seems that was not motivation enough. It is very hard not think about him every day as we hear his construction team working. Pretty nice of him, now we will be prepared for the noise that will be generated once the construction in the canyon begins, thank you Chairman Crawford!

Wayne Mindle
Castro Valley Resident

Governance
Supervisors to hear proposal for incorporation fiscal analysis

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Community
6
Chick-fil-A next to Burger Island? Where’s the beef?

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Governance
Crawford to resign from MAC, be appointed to Alameda County Planning Commission

Supervisor Nate Miley has nominated current Castro Valley Municipal Council (MAC) Chair Marc Crawford to serve on the Alameda County Planning Commission, according to the agenda posted for Tuesday’s Board of Supervisors meeting. Crawford’s resignation from the MAC is also included on the agenda. The Planning Commission is made up …