Fingers were crossed yesterday across our city as it was the final day for the California Department of Finance to file an appeal regarding the recently upheld appeals court decision siding with The City of Emeryville. At the end of the day though, it was announced that the state has indeed filed this appeal with the State Supreme Court (Darn!). A Supreme Court hearing would put the fate of the project’s back in limbo. The good news for E’villains is that although the appeal was filed, the State Supreme court could deny hearing the case. The bad news is that the state is pushing a bill that if enacted would effectively render this decision null anyway.
Our current slate of California Supreme Court Justices:
The Petition for Review was filed by the State on February 24, 2015. Accordingly, the City/Successor Agency has 20 days, or until March 16, 2015 at the latest, to file an answer in opposition to the Petition (Rules of Court 8.500 (e)(4)). The State then has 10 days from the date our answer in opposition is filed, March 26, 2015 at the latest, to file a reply. (Rules of Court 8.500 (e)(5)). The Supreme Court has up to 60 days from the date the Petition for Review was filed, or until April 27, 2015, to order review; the Supreme Court may extend this period to 90 days, or May 27, 2015. (Rules of Court 8.512 (b)(1)). If the Supreme Court does not rule on the Petition within the 60 day period ending April 27, 2015, or 90 days ending May 27, 2015 if extended by the Court, then the Petition is deemed denied. (Rules of Court 8.512 (b)(2)).
According to City Attorney Michael Biddle:
The Supreme Court does not have to hear the case if they do not want to and roughly less than 5% of cases that seek review by the Supreme Court are granted; the majority of those are death penalty cases which are granted as of right. In any event we will have to wait and see on that front. Even if the decision of the Court of Appeal is upheld, the Governor and the Department of Finance are currently pushing a bill tied to the state budget that would have the intended effect of rendering null and void the agreements between the City and Successor Agency that provided the funding for the South Bayfront Pedestrian/Bicycle Bridge. Thus Emeryville and cities throughout the state are lobbying members of the State Senate and Assembly to reject the bill.
The proposed Center for the Arts was initially part of the suit but was apparently split off as part of a defense strategy and recommendation by our oversight committee according to Biddle:
The City and Successor Agency initially approved 5 agreements – one each for the 3 that are at issue (Ped/Bike Bridge – Transit Center – Brownfield Loan Repayment) in the lawsuit and the 2 other were to fund the Art Center Project and ECCL Project. To be effective and considered an enforceable obligation, each agreement had to be approved by the Emeryville Oversight Board. The Oversight Board only approved the 3 agreements that are part of the lawsuit, they did not approve the agreement to fund the Art Center or the ECCL Project.
However, other provisions of the Dissolution Act allowed the Successor Agency to utilize unspent bond proceeds that we had on hand. We had roughly $24.5M in bond proceeds – $21.2M has been pledged to the ECCL Project and the remaining $3.3M has been pledged to other capital projects that are located in the former Shellmound Park Redevelopment Project Area, such as the Ped/Bridge, Art Center etc.
So it looks like we’ll have to keep our fingers crossed until at least April 27th, and presumably longer of the State succeeds in passing the aforementioned bill. A detailed list of the former redevelopment projects in question including the Transit Center and South Bayfront Bridge are listed in this recent article.