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RE: Are flawed Staff Reports being used to hasten Commissioner deliberation or to fuel false talking points about Measure M

From: domainremoved <Paul>
Date: Mon, 27 Oct 2014 20:44:28 -0700

Mr. Mayor,

Please forgive my delay.
Thank you for your response to my email of October 5th. I've been away for
three weeks, please forgive my delay.

The Opinion Letter is Satisfactory. Thank you for taking me seriously.
The letter of October 6th, 2014 by Gregory W. Stepanicich entitled, "Cap on
Medical Office Space Under Measure M", sent to me by Thomas Rogers satisfies
my request that legal claims paraphrased in the relevant Planning Commission
Staff Report be cited and documented. I ask nothing further. Thank you
for responding quickly and appropriately.

I reserve comment on Mr. Stepanicich's Opinion
I reserve comment on the opinion regarding the Cap on Medical Office Space
for another time.

Here is my comment on what the Opinion omits
Here, I simply re-note that the paraphrased legal advice in the Planning
Commission Staff Report referenced multiple proposed amendments, three to be
exact, and it also asserts an if-then syllogism about approval timing.

"The contract attorney providing services regarding Measure M has relayed
that if the proposed amendments are not acted on in advance of the election,
and Measure M subsequently passes, the proposed amendments would require
approval by the voters in a subsequent election, due to the provisions of
Measure M regarding voter control." [My emphasis]

The Opinion substantiates only one of three amendments, and contradicts the
logic of the approval syllogism
Mr. Stepanicich's letter speaks to one amendment only, the medical office
amendment, and it fails to substantiate the implied logic of the syllogism
that adopting the amendments including the cap on medical office "in advance
of the election" would avoid the need for "approval by the voters in a
subsequent election" were Measure M to pass. In fact, for the medical
office cap, the letter argues quite the opposite.

The Staff Report assertions about two of the amendments are baseless, and
the approval logic is baseless and/or incorrect.
Putting the medical office legal opinion aside, and assuming that Mr.
Stepanicich is the "contract attorney" mentioned in the paraphrase, the
Planning Staff Report attributes legal advice to Mr. Stepanicich about
Measure M voter control for two amendments that he failed to substantiate in
writing and which I suspect never originated with him, and it asserts an
if-then syllogism about approval timing for the medical office cap that is
unsubstantiated and arguably contradicted by him.

What it means: Opinion notwithstanding, the Staff Report exaggerated voter
control and created false urgency.
In short, the Opinion confirms the most obvious flaws. Irrespective of any
good faith disagreement over the legal opinion, the Staff Report overstated
the scope of Measure M voter controls and created a false urgency to adopt
the amendments in advance of the election.

How? Why?
Hopefully, the Planner mis-understood or mis-transcribed a legal
conversation with the contract attorney. There's no need for a consultant.
Simply ask for an explanation of how it happened.

My opinion doesn't matter. Are you satisfied, Mr. Mayor?
The assessed property value for the City of Menlo Park is on the order of
$10T with a market value of probably more like $30T. The Planning
Commission is the main regulatory body the City relies on to oversee one of
the most lucrative real estate markets in the world. Do you really think
staff Planners should be giving legal advice to Commissioners?

Again, thank you for our diligence.

Sincerely,

Paul Collacchi

-----Original Message-----
From: Mueller, Raymond [mailto:RDMueller_at_(domainremoved)
Sent: Monday, October 06, 2014 10:47 AM
To: Mueller, Raymond; Paul Collacchi; _CCIN; _Planning Commission;
gabriellejohnck_at_(domainremoved)
Subject: RE: Are flawed Staff Reports being used to hasten Commissioner
deliberation or to fuel false talking points about Measure M

Dear Mr. Collacchi:

I have been assured that an opinion from the City's contract attorney will
be released today, in writing, in response to the issues both you and Ms.
Johnck raised last evening. As I have not heard back from you with respect
to the questions of clarification I raised below, it is my hope that this
action, taken by the City's contact attorney, will satisfy your concerns. I
really don't want to spend anymore public funds on independent consultants.
However, I realize that your satisfaction may be somewhat dependent on the
substance of the opinion.

Let's wait to the cross that bridge until we come to it, and not make any
assumptions in the meantime.

With kind regards,
Ray Mueller

________________________________________
From: Mueller, Raymond
Sent: Sunday, October 05, 2014 11:07 PM
To: Paul Collacchi; _CCIN; _Planning Commission; gabriellejohnck_at_(domainremoved)
Subject: RE: Are flawed Staff Reports being used to hasten Commissioner
deliberation or to fuel false talking points about Measure M

Dear Mr. Collacchi:

Thank you for your email this evening and for raising the matter to my
attention. Until you and Ms. Johnck raised it, I was unaware of it.

I would like to be helpful. But first, let me make certain I am clear what
your are requesting.

1. Are you asking that I personally review, verify, and if necessary modify
the work product of the City Planning Staff and the City's contract attorney
before tomorrow night's Planning Commission meeting?

2. When you asked that I obtain a written analysis that cites which sections
of Measure M apply, are you requesting that analysis come from City Planning
Staff and/or the City "contract attorney", or are you requesting that I
obtain that opinion from a third party consultant?

I appreciate both your and Ms. Johnck's concerns. I will investigate them.
However, it may well be that you both have a good faith disagreement on the
interpretation of Measure M, with the City's contract attorney.

Before rushing to judgement with inflammatory innuendo, please allow me to
investigate the matter.

With best regards,
Ray Mueller









________________________________________
From: Paul Collacchi [pjcoll_at_(domainremoved)
Sent: Sunday, October 05, 2014 7:11 PM
To: _CCIN; _Planning Commission
Subject: Are flawed Staff Reports being used to hasten Commissioner
deliberation or to fuel false talking points about Measure M

The Honorable Ray Mueller

Mayor, City of Menlo Park



RE: Oct 6, 2014 Planning Commission Staff Report



Dear Mr. Mayor,

The Staff Report for the October 6 2014 Planning Commission meeting may
contain a serious error attributed to the City's "contract attorney" in his
interpretation of the text of Measure M.

"The contract attorney providing services regarding Measure M has relayed
that if the proposed amendments are not acted on in advance of the election,
and Measure M subsequently passes, the proposed amendments would require
approval by the voters in a subsequent election, due to the provisions of
Measure M regarding voter control."

 
October 6 2014 Planning Commission Staff Report p2.

For the record, the three proposed amendments to the Specific Plan in
question are:


1. Revise text to clarify that implementation of the Burgess Park
Linkage/open space Plaza" public space improvements is not dependent on the
High Speed Rail Project.

2. Eliminate "Platinum LEED Certified Buildings" as a suggested Public
Benefit Bonus element ; and

3. For new medical/dental office uses on El Camino Real, establish an
absolute maximum of 33,333 square feet per development.

These items are clearly outside the scope of Measure M, particularly the
first two, and I hope that as a former lawyer familiar with Measure M that
you will see this immediately.

I also question the integrity and professionalism of the Staff Report.

. The statement is presented as hearsay.

. The hearsay is un-attributed. The alleged source is never
identified.

. The claim is unsubstantiated. The Report contains no written legal
opinion, and fails to justify the claim by citing specific provisions of
Measure M that apply.

. The claim is false. It contradicts the City's own impartial
analysis of Measure M and is refuted by my own analysis below.

Mr. Mayor, are flawed Planning Staff Reports being used to hasten or
manipulate Planning Commission decisions? Are they being used to create or
fuel false talking points for Measure M opponents?

I respectfully ask that you review and modify the Report, identify the
source, obtain a written analysis that cites which sections of Measure M
apply, and why, and, if, in your opinion, the claim is substantively wrong,
issue a Press Release saying so.

Sincerely,


/s Paul Collacchi





Why Measure M voter approval does not apply to the Specific Plan amendments
under consideration by the Planning Commission


The planned amendments do not fall within the scope of Measure M. Voters
control provisions in Measure M Section 3 not the Specific Plan. If the
text of a proposed Specific Plan amendment does not already appear verbatim
within Measure M Section 3, or "frustrate" Section 3 text, then with one
exception (see below) its not subject to voter control.

"The City Council cannot amend the definitions and development standards set
forth in the Measure as these provisions can be amended only with voter
approval. In addition, voter approval is required to exceed the office space
and non-residential square footage limits. Impartial Analysis of Measure M


Section 3 contains static verbatim copies of Specific Plan text "readopted"
on behalf of voters.

"... The Measure readopts specified definitions and standards in the current
Downtown Specific Plan relating to open space and office space."
Impartial Analysis of Measure M



The scope of voter control can't "accidentally" expand to "unintended" or
future (text) changes to the Specific Plan because Measure M cannot
magically write new subsections for itself that contain the unintended or
future text.



As shown in the attached outline of Measure M, Section 3 specifically
contains sections of text that refer to the following Specific Plan pages



. H8, H10, H11

. E35, E50,E55,E60,E65,E70,E75,E81,E86,E92,E97 and

. G16



Texts for the proposed amendments seem to be on following Specific Plan
pages The text of the proposed amendments is not that referred to in
Section 3.



. D45,D46

. E17,

. E49,E54,E59,E64,E69,E74,E80,E85,E91,E96



Finally, Measure M "office" limits are in addition to other applicable
Specific Plan limits (Sections 3.3.7 & 3.4.5). The proposed limit on
Medical Offices does not "frustrate" Measure M office limits, and is
therefore (Section 4.2) not subject to voter control.



For convenience Measure M Section 3 subsections topics are summarized below.



. Section 3.1 Defines "ECR Specific Plan Area" for use in Section 3.4

. Section 3.2 Defines "Open Space" for the Specific Plan and excludes
above grade open space in calculations of minimum open space.

. Section 3.3 Defines "Office Space" for Measure M and sets the
project maximum "Office Space" of 100,000 square feet.

. Section 3.4 sets the ECR Specific Plan Area limit for Office Space
to 240,820 square feet.



This summary is confirmed by the City's Impartial Analysis of Measure M.

"The Measure amends the open space definitions and standards in the Downtown
Specific Plan ... The Measure mandates that office space in any individual
development project not exceed 100,000 square feet and caps the total net
new office space approved after July 12, 2012 at 240,820 square feet."
Impartial Analysis of Measure M
Received on Mon Oct 27 2014 - 20:40:04 PDT

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