Will cost city $100,000; could face pre- and post-election legal challenges due to new legislation possibly making the initiative moot and costing city even more.

By Allen Payton

In response to the direction given by a judge in a court case over two initiatives affecting new home development in the Sand Creek Focus Area that the council adopted in 2018, the Antioch City Council voted 5-0 to place the one initiative sponsored by the environmental community on the November 2020 ballot.

That court case resulted in the judge tossing out the council’s adoption of the environmentalist-backed Let Antioch Voters Decide (LAVD) initiative. It also invalidated both the initiative sponsored by Richland Communities, the developer of the 1,100-home project known as The Ranch, as well as their development agreement. In his ruling, the judge also ordered the city council place the LAVD initiative on the ballot. However, the decisions in the lawsuits by adjacent property owners The Zeka Group owners of Zeka Ranch, and the Oak Hill Park Company are still being appealed by the backers of the LAVD initiative. (See related articles here, and here)

According to a previous Herald news report, following a 30-day study by city staff, their report found the initiative limited the total number of housing units to 2,100 in the entire Sand Creek Area. Since the past and current councils had already approved more than 2,300 homes, then no more homes could be built, including the proposed 301-unit, gated senior home community east of Deer Valley Road, known as The Olive Groves on the Albers Ranch property. However, both Seth Adams of Save Mount Diablo and the attorney for Richland said that the intent of each initiative was to only affect property on the west side of Deer Valley Road.

The LAVD initiative will directly impact the proposed Zeka Ranch project (see related article), west of The Ranch project, on the west side of Empire Mine Road, as well as three other properties directly south of Richland property, including Oak Hill’s. Zeka’s proposed number of homes would be reduced from 300 to 400, down to just one home per 80 acres, resulting in just a total of eight homes.

In addition, since the judge’s decisions, new legislation, SB330, was passed by the state legislature and signed into law by Gov. Newsom, last year which prevents cities from downzoning land already zoned residential, either by council action or through the initiative process.

Yet, according to Derek Cole, the city’s contract attorney working on matters dealing with the Sand Creek initiative, “cities have mandatory duties whenever proposed ballot measures receive the signatures necessary to qualify for the ballot.  In this case, because the ‘9212’ report and approval of the initiative are no longer options, the City can only take action to call an election as to the initiative.  City staff is aware of the SB 330 legislation that took effect this year, but as the Staff Report explains, the City Council cannot assume the role of the courts in deciding any legal issues associated with the measure.  The State Supreme Court made very clear in a 2017 decision that the duty to call an election on an initiative is mandatory, even when an initiative’s legality is questioned.”

“The council could adopt an argument against the initiative,” added City Attorney Thomas Smith.

During public comments Joanna Garaventa, with the East Bay Chapter of the California Native Plant Society, spoke in favor of the initiative. She submitted a letter to the council, but when speaking it was difficult to understand her for the purpose of adding her comments to this report.

Andrew Bassak, an attorney with Hanson Bridgett, representing The Zeka Group, opposed the placement of the initiative on the ballot as “it would negatively affect the development that’s been planned for the past 30 years.”

He referred to SB330, the new residential development law.

“The city lacks authority to place the initiative on the ballot…under the California Elections Code. That passed years ago,” Bassak explained. “There is no authority under the stayed Superior Court ruling. That judgement is currently subject to appeal, by one of the proponents of the initiative. Save Mt. Diablo wants to have its cake and eat it, too.”

“The cost of putting it on the ballot will be over $100,000,” he stated. “Placing it on the ballot will result in more litigation” both before…and after the November election. Those litigations could easily double the $100,000 amount. This is just squandering resources that could be spent elsewhere. The city should wait until the court of appeals decision is over.”

Bassak submitted a letter to the mayor and council before the meeting. In it he wrote, “the Initiative is fundamentally flawed and, if placed on the ballot, will be subject to avoidable costly pre-election litigation.” 06-09-20 Zeka Group Attorney Letter to Antioch re LAVD Initiative

Seth Adams, the Land Conservation Director for Save Mt. Diablo, which sponsored the LAVD initiative said, “Please move forward with placing our initiative on the ballot and please formally endorse the initiative.”

“Over 9,000 citizens signed the petition to place the initiative on the ballot,” he continued. “The courts said to place the initiative on the ballot. It did not invalidate the initiative.”

“Our attorneys have provided information to the city that explains why they can place the initiative on the ballot,” Adams added. Emails from Save Mt. Diablo’s attorney to City of Antioch re LAVD Initiative

All the other thirteen public comments were in favor of placing the initiative on the ballot.

Councilwoman Lori Ogorchock then asked about how SB 330 affected the initiative.

“SB330 is legislation…that became effective in January of this year and is retroactive two years,” Smith said. “Under the new regulation any affected city is precluded from adopting policy…of lesser standard. It is preventing the downzoning of land, from residential to something that would not allow development.”

“It is one of the factors that would have to be taken into consideration if the initiative passed,” he continued. “However, at this time, the council can move forward.”

“There may be a pre-election challenge or a post-election challenge,” Smith added. “SB330 could affect it in determining if the initiative is valid.”

“Not only did 9,000 of our citizens sign petitions to place this on the ballot, but the courts directed the council to place it on the ballot,” said Mayor Pro Tem Joy Motts. “I believe it’s an environmentally sensitive, efficient development. So, I am in favor of moving the initiative forward and placing it on the November ballot.”

Ogorchock then moved to place the initiative on the ballot. Councilwoman Monica Wilson seconded the motion.

Smith then asked if the two actions could be separated, with the council deciding if they want to include a ballot argument against the measure.

Ogorchock then shortened her motion to not include a ballot argument.

Thorpe then asked staff to come back with something at a future council meeting, for council to decide whether or not to endorse or oppose the initiative.

However, the council can only submit an argument against the initiative, Smith explained.

Ogorchock and Wilson withdrew their motion and Ogorchock made a new motion and Thorpe seconded it.

“Do we want to make an argument against the initiative?” she asked. Wilson, Thorpe and Motts all said “no”.

“I just need you to make a motion that you do not want to make an argument against the initiative,” Smith explained.

Ogorchock then made a friendly amendment to her own motion that the council will not include an argument against the initiative. Thorpe accepted the amendment to the motion.

That motion passed on a 5-0 vote, that the council will not include a ballot argument against the initiative.

Then Ogorchock returned to her original motion to place the initiative on the November ballot. It was seconded by Wilson and the motion also passed 5-0.

Efforts to reach Seth Adams and city staff to obtain a copy of the letter sent to the City from Save Mt. Diablo’s attorney before the meeting, were unsuccessful prior to publication time. Please check back later for any updates to this report.

Thorpe seeks six of eight immediate policy reforms, claims only two have already been implemented

By Allen Payton

In response to the death of George Floyd at the hands of four former Minneapolis Police Officers, and the ensuing protests in Antioch and throughout the country, Antioch Councilman Lamar Thorpe has jumped on the bandwagon of a nationwide effort led by the Obama Foundation, to limit police interactions with suspected criminals by proposing a list of reforms for the Antioch Police Department he wants the rest of the council to consider.

In a press release he issued on Monday, Thorpe said he “fully endorses the enactment of eight specific policy recommendations that are part of the national 8 Can’t Wait Campaign” and claims “two of eight recommendations are policy in Antioch.”

Thorpe is calling on Antioch Chief of Police to enact the remaining six.

“Something is happening with the consciousness of America. People all over the country and here in Antioch are saying ‘enough is enough,’ and they expect change,” Thorpe said. “After 15 days of sustained protest, demonstrations and civil unrest, it’s time to take action, before one more senseless killing takes place. Let’s think globally and act locally.”

The most controversial of the remaining six recommendations is the banning of chokeholds and strangleholds, including a technique Antioch police use called the carotid restraint, which involves placing pressure on a person’s neck to restrict blood flow. In an independent autopsy, medical examiners determined that pressure placed on Floyd’s carotid artery impeded blood flow to his brain and contributed to his death.

More than a dozen California cities have banned carotid restraints following Floyd’s murder. Assembly Bill 1196, introduced last week by state Assemblyman Mike Gipson, D-Carson, would make the carotid restraint illegal in California. Thorpe is calling on Gov. Gavin Newsom to sign the bill.

Following are the eight policy recommendations:

1. Ban police use of chokeholds and strangleholds, including the carotid restraint
2. Require officers to de-escalate situations whenever possible
3. Require officers to exhaust all options before shooting, including less lethal force
4. Ban officers from shooting at moving vehicles
5. Establish a use of force continuum that restricts using the most severe force to most extreme situations
6. Require comprehensive reporting for each time an officer fires or points their weapon at someone
7. Require verbal warnings before using deadly force (already an Antioch policy)
8. Require officers to intervene to stop excessive force by other officers (already an Antioch policy)

According to the Obama.org website, “More than 1,000 people are killed by police every year in America, and Black people are three times more likely to be killed than White people.” That’s because, as a CNBC article on police violence in America reports, “according to Mapping Police Violence, one research group…Black people accounted for 24% of those killed, despite making up only about 13% of the population.” But the article also reports that, “no comprehensive official database exists for tracking police violence, though there have been efforts at the federal level to create one.”

That article further reports, “the data from Mapping Police Violence is sourced from three databases — killedbypolice.net, fatalencounters.org and the U.S. Police Shootings Database — as well as original research focused on social media, obituaries, criminal records databases, police reports and other sources, according to the group.”

At the Tuesday, June 9, 2020 Antioch Council meeting, Councilmember Thorpe will call for the formation of a City Council Ad-Hoc Committee on Police Reforms to be composed of council members, legal advisers, police leaders, police union representatives and community advocates. The role of the committee will be to examine potential long-term reforms in the following areas:

1. Demilitarize our local police
2. Increase police accountability
3. Improve police hiring practices
4. Excessive use of force
5. Budget appropriations

“While it’s important for our city to take immediate preventative steps, such as banning use of carotid restraints, creating successful police reforms will require the involvement of the entire community,” Thorpe said. “The ad-hoc committee approach is one of the best tools we have as city councilmembers to create lasting policy change that works.”

Additionally, he has signed the Obama.org’s “My Brother’s Keeper Alliance Pledge”, to have Antioch become an “MBK Community” which asks local officials to:

1. Review the police use of force policies in my community
2. Engage my community by including a diverse range of input, experiences, and stories in our review
3. Report the findings of our review to my community and seek feedback within 90 days of signing this pledge
4. Reform my community’s police use of force policies based on findings

When asked for his thoughts on Thorpe’s proposed reforms, Antioch Police Chief T Brooks responded, “I look forward to hearing the discussion between Councilman Thorpe and the rest of the city council on this proposal.  I am especially interested in what specific reforms they believe are necessary at the Antioch Police Department.”

A question to the chief asking if there any of the other six reforms on the proposed list have been implemented by the Antioch Police Department went unanswered prior to publication time.

The online Antioch City Council meeting begins at 7:00 p.m. and can be viewed on Comcast Local Cable Channel 24 or via livestream on the city’s website at www.antiochca.gov/government/city-council-meetings/live/.

Please check back later for any updates to this report.