Several of us raised a series of questions we sent to a dear friend who is a thinker and a well regarded municipal law expert. Here is his memo back to us
The City of Oakland has allowed members of
Occupy Oakland to put up tents, other structures and cooking facilities and
porta-potties in City Hall Plaza. The City Council is now considering a Resolution that would in effect approve this Encampment on a permanent or semi-permanent basis. The specific language of the Resolution is:
“FURTHER RESOLVED, That the Oakland City Council urges the City Administration,whenever reasonably possible to address any public health issues, fire safety issues, noise disturbances of neighbors or violence in the camp, with verbal communication among the protestors and city or county officials ; and be it FURTHER RESOLVED, That the Oakland City Council declares that it does not support the use of force to remove the encampment unless absolutely necessary, after, engaging in verbal communications, whenever reasonably possible; and urges Mayor Jean Quan, and the City Administration to exercise their administrative powers, if possible, in a manner that will not involve the use of force to remove the encampment.”
It is important to recognize that the Encampment is different from the right of Occupy Oakland – or any other group – to lawfully and responsibly exercise their free speech rights. City Hall Plaza has often been used for rallies and assemblies where people – citizens of Oakland and others – have demonstrated and expressed their free speech rights. The ‘Encampment” which allows people to stay in City Hall Plaza overnight and essentially to live in the Plaza is different from the expression of free speech.
This Resolution effectively ratifies the actions of the Mayor and City Staff in authorizing the Encampment to stay in City Hall Plaza for an indeterminate time.
The question – not addressed by the Resolution or any public staff
report – is whether this constitutes an action changing the allowed uses in
this public park. Clearly under any reasonable definition the authorization of this Encampment constitutes a change in use for this open space.
It is useful to consider what approvals would be required if the owners of the vacant lot adjacent to 555 12th Street decided they wanted to create a
temporary or permanent encampment of tents and cooking facilities on that site. There would be no question that this would require a major process of review and approval including a change to the General Plan and zoning regulations and the granting of a Conditional Use Permit.
The General Plan and the Zoning
Code designates City Hall Plaza as Open Space Special Use (Zoning Code S.17.11). Neither the City Council nor the Mayor can arbitrarily change the permitted use of this space and yet that is exactly what the proposed Resolution and the City staff’s explicit approval of the Encampment
The Oakland Planning Code has
very specific provisions for a change in use in any area designated as Open
Space under the General Plan. The specific procedures are described on Attachment A. They include notices to the surrounding
neighborhood – which in this case would include the office and retail users in the immediate downtown area who have suffered very real losses because of the Encampment– and hearings before and action by the Planning Commission and the Parking and Recreation Advisory Commission.
In addition, most of the uses related to the Encampment – including residential use, child care, and serving of food – would require a major or minor conditional use permit. None of these procedures have been followed by the City.
Since the decision to approve any of these changes in use to accommodate semi-permanent or permanent residential use and the other activities related to the Encampment would be discretionary and are not consistent with existing uses, the California Environmental Quality Act would require an initial assessment of the activities and almost certainly would then require a full Environmental Review considering the impact of the
Encampment on the surrounding business uses as well as the historic
characteristics of City Hall and the surrounding buildings and the historic and environmental importance of the Oak tree at the corner of 14th and
Again, it is important to emphasize that none of these requirements apply to the exercise of the rights of assembly and free speech in City Hall Plaza during the day – they may or may not be subject to other requirements. But these requirements absolutely do apply to the clear change of use represented by the tents, other structures and cooking facilities that comprise the Encampment. If the City Council and or the Mayor and City
staff desire to allow the Encampment to remain, they need to follow the
law. Until they do, they need to make reasonable arrangements to end this change of use just as they would for any such change of use in violation of the General Plan established on private property.