Feds Prevail on Right to Take McKay

Neptune Beach Roller Coaster

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.

Surplus federal property Google Earth imageMaking 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

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6 Responses to Feds Prevail on Right to Take McKay

  1. Tim S. says:

    It’s terrible that the federal government can take state property simply because the taking would increase the value of property it already owns. It seems like an abuse of power.

  2. It appears that our California Congressional Delegation is either uninterested in helping the park district and local residents, or that they are helpless in the face of an entrenched, unaccountable federal agency, the GSA. Letters have been sent to them from environmental groups and the city of Alameda over the past year or more. Meanwhile, they fiddle away billions in tax dollars on dubious aid to unaccountable shadowy human-rights-violating regimes.

    A letter was also sent to former Attorney General Eric Holder from all major environmental and parks and open space groups in the Bay Area more than a year ago asking that the feds end their overbearing disregard for local land use priorities. Nothing has changed. There’s no change to believe in, Prez. As for the president’s reputed community organizing skills, his administration has certainly helped generate some community organizing in Alameda to oppose his administration.

    Lastly, the feds (both the GSA and the judge) ignore the original intent of the land conveyance from the feds to CA Department of Parks in the early 1960s. If the feds were concerned about future marketability, they would have retained ownership of McKay Avenue for themselves and granted easement rights to the state. But they did not do that. They gave the street to the state, along with about 90 acres that was to become Crown Memorial State Beach. There was a presumption that once the land became a park, it was unlikely to ever become something else, especially on a shoreline.

    On the other hand, it was reasonable to assume that some day there would be no need by the feds for the seven acres of office buildings and parking lot. Hewing to the customary disposal of property rules, a state or local agency would then be offered the property – which would mean it would continue to be government owned. If no government agency would be interested, then it would be proper to consult with the owner of the street – CA State Parks – as to how much extra burden on this entrance to a state park it would be willing to accept. But the odds are that the state and the park district would gladly accept all seven acres. The space for educational opportunities, park projects work space, and park revenue generating opportunities would be just three of the reasons to accept it all.

    The judge and the GSA ignore history, or rather try to re-write it. Too bad the military doesn’t own the west side of McKay. They gladly give away land for free, as public benefit conveyances and otherwise.

  3. mike says:

    Can we recreate Neptune Beach again? Alameda has so much rich history that seems to be just buried away. We had Coney Island of the West. Bring it back.

  4. And isn’t the photo wrong? McKay is the access road for Crab Cove, not an adjacent street.

    • Irene says:

      Hi Kris, The photo is authentic and McKay is the access road to Crab Cove. Part of the roller coaster was on what is now the Federal Center property. It’s up against Neptune Court Apartments that are still in existence today.

  5. Tim S. says:

    If Boxer, Feinstein, or Lee tried to stop the eminent domain, they haven’t told the public about it. Maybe we need a Republican who believes in state’s rights to step in.

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