ALAMEDA -- The City Council gave final approval Tuesday to rezoning a property near the Crab Cove Visitor Center at Robert Crown Memorial State Beach as open space. But the council also backed a companion ordinance aimed at protecting the city if a lawsuit is filed over the zoning change, which supporters say helps set the stage for expanding the park.

The change, which will take effect Aug. 14, follows more than 6,000 people signing a petition that called for placing an initiative on the November ballot to designate the approximately 4-acre parcel off McKay Avenue as open space. The council's decision means the initiative will not appear on the ballot.

"It seemed clear to me that the will of the people has been expressed in terms of rezoning the area," said Councilmember Tony Daysog, who wanted the companion measure to include an option of dipping into the General Fund and possibly cutting services as a way to offset any potential legal costs.

The option was in keeping with the widespread public support for transforming the property into open space, Daysog said. "The people basically said, 'Damn the torpedoes. Full steam ahead," he said.

Councilmember Marilyn Ezzy Ashcraft also said she favored keeping the option of using the General Fund to fight a legal challenge or judgement. But others on the council, including Mayor Marie Gilmore, said the money should come from raising taxes or possibly selling the property, which is still owned by the federal government. The General Fund must be protected in order to maintain city services, Gilmore said.


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The council ended up voting 3-2 to support the companion measure -- without having the General Fund option -- and to forego wording in it that would have allowed the council to reverse the zoning change, either temporarily or permanently, in the event someone sued the city.

The measure will go before the council for final approval later this month. It would be in effect for 120 days, or the timeframe for when someone can mount a legal challenge. Some residents who gathered petition signatures told the council to scrap the companion ordinance, saying it signaled the city was vulnerable to a lawsuit.

"By spelling it out, it looks more dire than it really is," Debrorah Arbuckle said.

The property's future also could be in limbo for up to a decade while the issue plays out in court if the council were to suspend the zoning change following a lawsuit, Irene Dieter said.

"To me, that is where the problem is," Dieter said. "It's against the voter intent."

The East Bay Regional Park District wanted to acquire the nearly 4-acre site off McKay Avenue as a way to expand Crab Cove, but was outbid by developer Tim Lewis Communities in a June 2011 auction hosted by the U.S. General Services Administration. The developer, which has proposed building homes on the property, bid about $3 million. The sale has not been completed, however.

The council's move to change the zoning comes as the city is in mediation with the park district, which is suing the city over an earlier decision to change the property's zoning to residential in order to meet state housing requirements.

"The inability to settle has nothing to do with the council's actions this evening," Councilmember Lena Tam said Tuesday.

While the council has the green light for an ordinance aimed at fighting another lawsuit, city officials also said it's unlikely another suit will happen. The federal government, or the owner of the property, is exempt from local zoning laws, they noted. The developer Tim Lewis Communities also would not want to undermine public support for its other, bigger projects along the northern waterfront, including at the former Del Monte warehouse, city officials said.

Reach Peter Hegarty at 510-748-1654 or follow him at Twitter.com/Peter_Hegarty.