McKay Avenue, the street leading to Crab Cove, used to house a roller coaster before it became a street. It is living up to its legacy.
In recent years the battle over the street, and what will become of the surplus federal property at the end of it, has had its ups, downs, twists and turns.
The roller coaster ride began when the federal General Services Administration (GSA) held a public auction to obtain the highest price for the vacant surplus land at the end of McKay Avenue. Next the city zoned the parcel residential, which led to a lawsuit against the city by the East Bay Regional Park District. A citizens’ initiative then rezoned the parcel as open space, and the park district dropped its suit.
GSA meanwhile used eminent domain to seize the street from the state to gain utility access rights for its surplus property. The state and the park district cried foul and tried to reverse the taking in federal court.
In order to take the state-owned street, GSA had to prove that the taking qualifies as a “public use.” Gaining unfettered access to the utilities under the street would allow GSA to transfer that access to a nongovernmental entity in a possible future real estate sale.
The state Attorney General and the East Bay Regional Park District argue, among other things, that GSA should not be permitted to take property when no plan exists that lets the courts measure if the taking is related to a public purpose.
The district court judge suggested, and the parties agreed, to have him summarily decide the matter so that a panel of judges at the federal court of appeals could review it. The facts of this case are unprecedented.
On June 12, the judge issued his ruling, saying GSA has the right to take the street.
Making the federal land adjacent to McKay Avenue more valuable for sale serves a public purpose, according to District Court Judge William Alsup. “GSA’s authority to dispose of surplus property includes condemnation of property necessary or proper to secure marketable title in the property to be disposed,” he wrote. GSA has the right to “clear up the problem of access” before it seeks a buyer, his order said.
Upon learning at a court hearing that it would take a vote of the people to overturn the open space zoning, Judge Alsup inquired whether the entire issue was a “moot exercise.” He said it was the state’s best argument and noted that open space zoning reduces the likelihood that a developer would ever want to purchase the property. He nonetheless ruled that GSA “is entitled to clear up this thicket of problems one at a time.”
Court documents, however, reveal that the taking of the street may be more than just a hypothetical exercise. While the taking was premised on the “continuing operation” of the remainder of the federal buildings located on McKay Avenue, the future of those buildings, and the lots on which they sit, is uncertain.
The current lessee on the remaining three acres of federal property along McKay Avenue, the U.S. Department of Agriculture, is planning to move out of its offices in 2016 to property it owns in Albany. GSA has spent about $3 million to consolidate and upgrade the McKay Avenue offices and does not know if all the federal property on McKay will be sold, court documents show.
The East Bay Regional Park District has repeatedly expressed interest in buying the vacant surplus property to expand the park at Crab Cove. It is unclear when, if ever, GSA will sell the open space parcel to the park district.
“We are disappointed that the United States [GSA] continues to prosecute this action in spite of the desire of the citizens of Alameda that this property be dedicated as parklands,” said Robert E. Doyle, the park district’s general manager. “We believe the taking of public parklands for private development is bad public policy.” The board of directors “is evaluating the court’s ruling,” said Doyle.
Hang tight. The roller coaster ride isn’t over.
The state Attorney General and the regional park district have 60 days to file an appeal.
The issue of fair compensation for the taking of the street is scheduled to go to trial in the fall of this year. GSA has previously said McKay Avenue was worth $10.
Originally published in Alameda Sun