Tom Butt
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  City Council Passes Point Molate Security and Maintenance Policy Despite RPA Resistance
September 14, 2022

In the first regular meeting since August, the City Council last night managed to spend four and a half hours on an agenda that included only one non-consent calendar action item, a direction for staff to come up with a plan to secure and maintain Point Molate, as required by the Amended Judgment.

I placed the Point Molate item on the Agenda after observing that both security and maintenance, especially within the Winehaven Historic District, were badly deficient , if not non-existent. The development areas of Point Molate were deeded over to Upstream and Guidiville on August 29, 2022, at a price of $400, and The Judgment on Claims Between Plaintiffs Guidiville Rancheria of California and Upstream Point Molate, LLC, and Defendant City of Richmond states in paragraph 24, “City shall bear all expenses of maintaining and securing the Property, until the Development Areas are sold to a third party.” The City of Richmond is not in compliance with the Judgement because it is neither maintaining nor securing Point Molate.

Figure 1 - Collapsed roof at a historical cottage resulting in extensive interior damage

Figure 2 - The historic "Winemaker's Cottage." breached and trashed

The item resulted in an interesting discussion by RPA City Council members and their Greek Chorus. Councilmembers Martinez, McLaughlin and Jimenez, despite the legal requirement, questioned even the need for maintenance and security at Point Molate, citing far higher priorities for City resources. The Greek Chorus of RPA public speakers questioned the value of historic preservation and suggested the Winehaven Historic District, nominated to the National Register by Richmond icon Lucretia Edwards, could be decertified.

Councilmembers Johnson and Bates emphasized that leaving Point Molate unsecured posed a significant potential liability problem for the City.

The public speakers tried to blame me for the sales price of $400 and the requirement for the City to secure and maintain Point Molate. As I have pointed out many times, the settlement agreement was tentatively reached in a Federal Court mandatory settlement conference where the City Council was represented by three members, two of whom were RPA members. It was subsequently approved by a majority of the City Council.

The RPA City Council majority has been so laser focused on aborting development at Point Molate that they have not considered the multiple downsides for the City, including the loss of $22.5 million from the sale and millions of future dollars from taxes. The City is now spending millions of dollars on litigation, much of it initiated by allies of the RPA. They continue to ignore the fact that all of this resulted from an abuse of power by former Mayor Gayle McLaughlin. Let’s be clear. The conclusion that McLaughlin acted inappropriately and caused the case to be remanded back to the District Court (See Decision from the Ninth Circuit in the Upstream Pt Molate litigation) came from the Ninth Circuit, not from me.

The Ninth Circuit’s opinion is copied below:

The Third Amended Complaint (“TAC”) contains plausible allegations that the City violated the implied covenant of good faith and fair dealing by interfering with Appellants’ ability to obtain federal approval for the casino, thereby preventing Appellants from satisfying a condition precedent of the LDA. The TAC alleges that, beginning in 2009, the City, through Mayor Gayle McLaughlin, contacted the Bureau of Indian Affairs, Contra Costa County, and various public officials including the Governor of the State of California and United States Senator Dianne Feinstein, to encourage them to deny, delay, or otherwise oppose the Tribe’s quest to obtain the necessary federal and state approvals for gaming.

Appellants allege that this pressure delayed the federal approval process—a condition precedent of the LDA —sufficiently that the City abandoned the project in April 2011 in part because “[w]ithout these Federal approvals, a casino use at Point Molate is not legally permitted.” Resolution No. 23-11. Appellants further allege that the City’s pressure ultimately led the Department of the Interior (“DOI”)to determine in September 2011 that the Point Molate property was not eligible for gaming.

The TAC contains some of the alleged interfering communications from Mayor McLaughlin wherein she identifies herself as the Mayor acting on behalf of the City of Richmond. These allegations present an issue of fact concerning whether the Mayor was acting in her official capacity and are sufficient to plead a plausible claim of breach of the implied covenant of good faith attributable to the City

We therefore conclude that the TAC states a plausible claim that, by preventing the occurrence of the condition precedent and relying partially on the non-occurrence to deny the casino project and avoid carrying out the purpose of the LDA, the City breached the implied covenant of good faith and fair dealing when it promulgated Resolution 23-11 and discontinued consideration of a casino use for Point Molate.
In a surprise move, and much to his credit, Councilmember Willis broke from his RPA colleagues and voted to proceed with the plan for security and maintenance.

It is ironic that after the City has won many awards for historic preservation and saving historic landmarks like the Ford Building and the Riggers Loft, and is the home of a national historical park, the RPA City Council members (with the exception of Willis) are ready to throw out historic preservation as a public policy priority.