Novato City Hall’s Fiasco on Grant Avenue

It has been an unnecessary debacle in City planning and an embarrassment to City Manager Regan Candelario who has no one to blame but himself. And, it will cost cash-strapped Novato money because the City is buying its way out of a mess the City Manager created.

Simply put, the placement of a first-of-its-kind “parklet” outdoor dining area in front of Finnegan’s Bar & Restaurant and an adjacent building with retail stores did not follow typical City planning procedures because the City Manager apparently decided it was his prerogative, without involving the City Council, to unilaterally authorize approval.

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Candelario could have potentially avoided the predicament in which he finds himself if he had bothered to reach out to and consult with senior Councilmember Pat Eklund who was intimately involved with the past $11 million rehabilitation in 2006 of Grant Avenue. He could have worked with Councilmembers Eklund and Drew rather than risking the humiliation of the planning train wreck he now faces.

Instead, he decided to go it alone. What should have been a great project enlivening downtown has now crashed and burned. This decision raises substantive questions regarding what the City Manager’s perception is of his scope of authority and his civic acumen, or lack thereof.

This fiasco should come as no surprise simply because the 3-vote automatic-approval bloc of passive Councilmembers (Fryday, Athas and Lucan) has taken a “hands off” attitude towards how the City operates. They blindly rubber stamp anything the City Manager submits for cursory Council approval without the expected and responsible substantive public discussion between all members of the Council.

In the vacuum of leadership created by the deferential Council majority bloc (Fryday, Athas, Lucan) the inevitable result is the opening for the City Manager’s unilateral assumption of authority to act, then answer questions later.

The majority bloc automatically has Manager Candelario’s back unless the Novato Chamber of Commerce’s Board of Directors takes exception, making its preference known directly or informally through its Government Affairs Committee. The Governmental Affairs committee members are free to directly contact City Staff and Councilmembers to promote the Chamber’s initiatives, unlike Councilmembers who are prohibited from direct Staff contact according to current City Manager policy. Whether you like it or not, the Chamber is a dominant political force in Novato politics.

Several key Citizen Advisory Committees, such as the Planning Commission and Economic Advisory Commission, have a “majority” of Council appointed members with identifiable ties to the Novato Chamber of Commerce through membership or business-related association. The lack of diverse viewpoints on key Committees smothers debate, with Novato residents on the losing end.

With such direct specific influence by these appointed Committee members, the Chamber becomes vulnerable to accusatory comments of being a political “deep state” within the City of Novato government gestalt. And rightly so. The alarming speed with which an unfunded downtown SMART station was approved has been used to validate this belief.

Surrounded by the cocoon of continual City Council deference, City Manager Candelario secure in his self-defined prerogatives, allowed public property encroachment and building permits to be issued to Finnegan’s Restaurant & Bar for a parklet on Grant Avenue occupying several prime parking spaces in front of two adjoining businesses. The consent of that building’s owner (Uhlmann Properties) had not been received before the permits were issued. Big stupid costly mistake.

Manager Candelario maintains the City was not required to notify adjacent property owners of the encroachment. Common sense and civic administrative professionalism say formal advance notification to adjacent property owners by the City regarding potential negative effects of forthcoming City actions on or near their property is a required no-brainer.

Henry Hattau, owner of Finnegan’s, was elated upon receipt of the necessary permits validating the City’s approval. The parklet turned out to be very popular with restaurant patrons and added new vitality to Grant Avenue. 2,400 people signed an on-line petition to the Novato City Council in support of the parklet being retained in its present form. That’s a lot of happy people on Grant Avenue enjoying downtown Novato.

Less charmed were the owners of the adjacent Uhlmann building who promptly sued the City and Finnegan’s for giving away the City’s Right-of-Way in front of their building. Inexplicitly, Uhlmann property owners decided not to wait and see if the parklet and its 2,400 supporters would have ultimately increased their retail tenants’ business – a reasonable possibility.

Uhlmann Properties retail tenants have struggled to succeed and recently several have moved or closed. Has the Uhlmann property owners’ attitude toward change been a negative influence on Grant Avenue’s business environment?

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The parklet structure eliminated prime public parking spaces directly in front of the Uhlmann Properties building marginally hindering public access to its two tenants. The reality is the loss of the spaces would have little or no significant effect. Incredibly, there was no prior formal or informal consultation by the City Staff with the Uhlmann building owners.

The Uhlmann property owners proceeded to file a lawsuit for damages against Finnegan’s and the City of Novato. Henry Hattau’s response to Uhlmann Properties was “sue the City” not me, I have the approval permits.

Finnegan’s did what was required in accordance with City municipal code and received building and encroachment permits detailing what was going to be built and where. Finnegan’s defense was they had signed permits and did nothing without the City’s prior approval, or should we say City Manager Candelario’s approval. Upon reflection, sage legal counsel surmised the Uhlmann owners could potentially win in court.

Remarkably, City of Novato encroachment permits require an applicant to pay all costs if a lawsuit is filed even if the permit was incorrectly issued by the City. Henry Hattau faced paying the City’s legal costs and Finnegan’s costs if the threatened lawsuit was adjudicated in court. Finnegan’s Restaurant & Bar could potentially be plunged into financial difficulty if the Uhlmann property owners were awarded substantial monetary compensation for damages.

From the outside looking in, it looks like the City of Novato threw Hattau under the bus deciding not to fight the Uhlmann building owners in court. The City Manager folded like a wet newspaper despite his default support by the somnolent 3-vote majority (Lucan, Fryday, Athas) on the Council. Once a strong supporter of the parklet, Candelario decided not to fight and abandoned ship leaving Henry Hattau’s Finnegan’s Restaurant & Bar twisting in the legal winds.

This dilemma would never have happened if the City Manager had from the beginning brought the “first parklet” in Novato issue before the Planning Commission, the Design Review Commission and the City Council. Common sense says this expected procedure should have been followed, but it was not.

But, why bother when there is an unquestioning compliant sympathetic 3-vote majority in place on the City Council that provides complicit protection? The parklet concept is a popular idea with great potential for stimulating business on Grant Avenue.

0 - Settlement agreement
In July, the Uhlmann property owners issued an ultimatum to the City and Finnegan’s Restaurant & Bar to accept their terms of an “agreement” that substantially changed the parklet’s use to Uhlmann’s satisfaction or to go to court. Henry Hattau was forced to sign the agreement with the City of Novato and Uhlmann building owners as any City legal support to fight the Uhlmann property owners in court vanished reaffirming it “fair weather friend” status.

The City of Novato indirectly admitted culpability by agreeing to pick up the cost for restructuring the parklet in a form acceptable to Uhlmann property owners. Finnegan’s was left with less than half of the original parklet to use for outdoor dining. The extent of Finnegan’s economic loss is a work in progress, but in the near term it is $50,000++ in construction and permit costs. The City of Novato will probably pay around $20,000+ in structure-modification costs, project administration costs, and incur all future maintenance costs of the public bench and deck in front of the Uhlmann building.

There are no winners in this self-inflicted mess. The losers include Novato taxpayers who wind up footing the bill for reconfiguration of the parklet to meet the terms of the agreement with Uhlmann Properties and patrons of Finnegan’s outdoor dining patio. The parklet provided a very enjoyable outdoor dining experience to over 2,400 signers of the petition to the City Council. That is lost unless the City gets some backbone and renegotiates the agreement with the Uhlmann owners. The City Manager stands accused by many frustrated Finnegan’s patrons of being a less-than-clever surrender monkey.

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Candelario attempted to publicly paper over his mess with a vapid Memorandum published online where it would mostly escape the public’s attention. The strategy worked. There was no ensuing public ruckus.

Later, a sympathetic headliner front-page article in the Novato Advance inexplicitly defined the City administrative disaster a euphemistic “experiment” – terminology that is very misleading. Apparently, it was hoped the public would remain unaware of the administrative disaster precipitated by Uhlmann’s successful threat of a lawsuit by redefining the project as an “experiment”. Finnegan’s in no way considered the project an “experiment”. The headline made the Novato Advance appear complicit in an “after the fact” cover-up deception.

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The frequently maligned Marin IJ Editor finally recognized in a Sunday issue editorial the obvious seriousness of the deficient project administration by Novato City Staff and the City Manager and its embarrassing consequences. The editorial directly chastised the City of Novato’s poor administrative quality and the lack of civic due process manifested by its deliberate decision not to involve standing City Commissions who very likely would have sounded the alarm over potential legal issues. It was a humongous editorial smackdown on the quality of the City of Novato’s administration’s execution of a straightforward permitting process and is cause for concern regarding future stealth projects.

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Adding credence to the depth of the IJ Editor’s concern with what happened was the appearance the following Monday of a Marin Voice article at the bottom of the IJ’s editorial page by Novato City Mayor-Elect Pam Drew and veteran Councilmember Pat Eklund. They expressed their concern over how the matter was mishandled, but took the high road and refrained from direct criticism of the reputation-battered City Manager Regan Candelario.

City Manager Candelario has previously pointedly alienated and stonewalled Councilmembers Eklund and Drew over pre-discussion information requests relating to potentially contentious upcoming agenda items. Drew and Eklund had use of the powerful IJ editorial page Marin Voice platform. But, with seasoned judgement they elected not to directly criticize City Manager Candelario whose professional reputation has suffered serious fundamental damage.

Candelario is sporting a self-inflicted “black eye” as he publicly maintains he alone runs the City of Novato operations. This makes him singularly accountable for this administrative debacle. Perhaps, he should consider not alienating Council members who occasionally disagree with his preferences and work with them – not against them. It’s in his job description for a very good reason.

Candelario’s intimidation campaign relentlessly continues against Councilmembers Pam Drew and Pat Eklund who independently seek background information on upcoming Council policy issues other than that which has been filtered and then spoon-fed to them through the City Manager’s office.

City employee Candelario’s repressive campaign took an an ominous turn when the non-elected City Manager hired a San Francisco law firm Liebert Cassidy Whitmore that champions its experienced trial lawyers specializing in representing cities in employment disputes, First Amendment retaliation, harassment, etc.

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Manager Candelario at the City’s expense has hired a Partner of the litigious San Francisco law firm to develop and conduct a “communications training” session utilizing only Candelario’s input to its relevant-to-Novato content and the title “…Values, Conduct, Communication and Policy”. Really? A hired gun to take aim at two Councilmembers? It’s time to talk about intimidation and the First Amendment.

Novato’s unelected City Manager is determined to “train” its elected City Councilmembers using a San Francisco based litigation law firm to define Novato’s “values”, how to conduct City Council business, how and with whom Councilmembers can communicate with inside City Hall, and how to interpret City policy that was developed by the Council itself. Will an “elected” City Manager and an “advisory” City Council be the next step?

Originally, Manager Candelario naively attempted to partially camouflage the real intent of his “Council training” session by including a “formal Brown Act” training section. This was quickly shot down by the City Attorney.

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There are very good reasons to establish a framework of free communication channels between Novato’s elected City Council members and the support Staff that is employed to run the City as directed as the elected representatives of Novato residents. It is reasonable to protect time-limited City Staff from unreasonable time demands and predatory information requests by Councilmembers. A balance must be struck between these two legitimate interests. It has been done in other cities where residents are treated as participants – not consumers of pre-packaged information.

Novato has made progress in this area thanks to the efforts of Assistant City Manager Peggy Flynn and her staff who have done an exceptional job improving the quality and extent of information publicly available. The City’s web site is outstanding. It is complete and relatively easy to use once you get the hang of it.

The quality of available information continues to increase in part driven by factual information-based commentary and discussion. However, the City Manager’s office frequently uses the web site as a tool to promote pre-ordained “successful” City projects, e.g. utilizing biased questions on resident “engagement” surveys, claiming on-line responses are representative of the City as a whole, etc. The knock-on effect is site visitors do not fully trust the site as being completely forthright and honest.

It could be much better if the information was not filtered by one individual, i.e. the City Manager (a citizens’ oversight committee would be better). The result is the awareness of dissent and diversity of opinion on contemporary issues or decisions to be made is conveniently missing. The constant danger is the “foregone conclusion” impression becomes prevalent. Posted City Staff Reports increasingly become tools of persuasion, not balanced information. People tune out and quality democracy in local government declines. Cynicism and confrontation rise and rule.

Prior attempts by City Managers to muzzle inquisitive conscientious Councilmembers fortunately have failed. After all, this is a government entity – not a private business or a military task force. Debate, diverse discussion, and disagreement are the norm – not the exception.

Rather than censoring and attempting to publicly vilify selected Novato Councilmembers with his repressive militaristic “chain of command” communications modus operandi, Manager Candelario should enroll himself in a training course for “effective communications” between City Managers and their City Councils. It may save him from himself.

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