Palo Alto Weekly

News - December 23, 2011

Suit filed over Palo Alto's park 'undedication'

Opponents of Measure E claim city failed to follow City Charter in making land available for waste-to-energy facility

by Gennady Sheyner

Opponents of Palo Alto's plan to build a waste-to-energy facility in the Baylands have filed a lawsuit against the city challenging the November election that made land for such a facility available.

Thomas Jordan, a local environmental attorney and opponent of Measure E, is alleging in his lawsuit that the city did not follow the proper procedures when it went ahead with the vote, which "undedicates" 10 acres of parkland at Byxbee Park and makes this land available for a possible anaerobic digestion facility. The measure passed overwhelmingly on Nov. 8, with 64 percent of the city's voters approving it.

Jordan, who is one of several prominent conservationists who opposed the measure, is asking the Santa Clara County Superior Court to declare Measure E "null and void" and to issue an injunction that would restrain the city from "engaging in any activity pursuant to, or implementation of, Measure E," and for attorney fees.

Jordan alleges in the suit that the city didn't follow the City Charter when it proceeded with the undedication of parkland. The Charter, he wrote in his suit, requires the council to declare that it is considering a vote on the undedication, make findings of "public interest" and convenience that require the undedication and hold a hearing at which protesters have a chance to state their objections.

"Circumvention of any one of these protections violates the City Charter and dilutes the City Charter's protections of parkland that jealously guard parkland unless the Council and the electorate both agree that it is no longer necessary to hold such land as parkland," the suit states.

Though the council remains deeply divided over the proposed waste-to-energy plant, members had voted unanimously to bring the item to the voters. The council placed the item on the ballot after a large coalition of volunteers gathered more than 5,000 signatures, more than enough to qualify it for the election.

The coalition, known as the Palo Alto Green Energy and Compost Initiative, was led by former Mayor Peter Drekmeier, attorney Walt Hays and curbside-recycling pioneer Bob Wenzlau.

Hays disputed Jordan's allegations, saying that the provisions cited in the lawsuit apply to instances in which the council undedicates parkland. In this case, he noted, it was the voters who undedicated it.

"Jordan's petition relies on provisions in the City Charter stating that if parkland is to be undedicated by the Council, it must follow certain procedures that were not followed in Measure E," said Hays, who wrote the ballot initiative. "However, the whole purpose of the initiative process is to enable citizens to enact laws when their elected representatives fail to do so, and since Jordan's interpretation would deprive the public of that right, his lawsuit should fail."

The heated debate was prompted by this year's closure of the city's landfill, which includes the city's composting operation. The current plan calls for shipping local yard trimmings to the Z-Best station in Gilroy. Drekmeier's group has argued against exporting local waste to another city.

The Measure E result does not guarantee that the new plant would be built, but it gives the council an option for where such a facility could potentially be located. The city has hosted numerous public hearings, featuring packed houses, on the proposed anaerobic digestor over the past two years.

City Attorney Molly Stump disputed Jordan's argument that the Measure E process prevented citizens from registering their opposition to the undedication.

"On the contrary, there was a lengthy and robust public debate leading up to Measure E," Stump told the Weekly in an email.

Wenzlau said his group had expected the lawsuit from the opposition camp, which includes prominent conservationists and former council members Emily Renzel and Enid Pearson.

"We expect this lawsuit to be defeated, but our campaign will in any case always make sure that this project is respectful of the adjoining natural habitat, even though the project itself is on the very unnatural site right next to the sewage treatment plant," Wenzlau said in a statement released by a coalition.

Staff Writer Gennady Sheyner can be emailed at gsheyner@paweekly.com.

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