Values of community made clear by willingness to give away control of dwindling public space
By Michelle Weidman
The original idea for opening a food truck court in Redding, CA was proposed by Todd Franklin, founder of TF Investment Group LLC, to city representatives. Carnegie Park was recommended by city employees as a potential location for the court. Kim Niemer, Director of Community Services for the City of Redding, recommended a concession agreement with Franklin to the city council for approval in 2017. Her reasons for doing so included a “reduction of vandalism and calls for public safety” and to “draw more people to the park and reduce illegal activities.” According to a number of sources, the park had become a site plagued by illegal drug use, camping, and other issues that were seen as preventing the general public from using the space for recreational purposes.
Despite some legal ambiguity of how public park land can be repurposed, the Redding City Council approved a non-exclusive concession agreement with Franklin on March 21, 2017.
“The sale of goods and services…by persons or entities for commercial gain potentially adversely and seriously impacts the use of park facilities for use by the general public for recreational purposes.” according to Section 2.56.070 of the City of Redding Municipal Code.
“Any such sales must be regulated through the use of concession contracts to insure that the goods and services marketed will promote the beneficial use of park facilities for recreational purposes,” the Code continues.
These declarations make obvious the tension between public and private interests as well as the city’s responsibility in upholding the interests of the public. Why then did the City of Redding vote to approve a concessions agreement that turns Carnegie Park, one of only two public parks in Downtown Redding, into a fenced and only minimally accessible food truck court? Do this agreement and its implementation meet the goals of the city code to “promote the beneficial use of park facilities for recreational purposes?” Lastly, what is the precedent and motivation for this kind of public/private agreement, and what does it say about the priorities of the City of Redding?
I. The public land
The land where Carnegie Park now exists was once the site of Redding’s Carnegie Library, constructed with the help of a $10,000 grant from the Andrew Carnegie Foundation in 1903. The historic library building was demolished in 1965, at which point the site became Carnegie Park.
According to a Memorandum to City Council obtained through a public records request in 1963, then Mayor Fulkerth questioned whether the city had the power to sell the land. City Attorney Earl D. Murphy advised that due to certain wording in the deed and precedent in other cases it was unlikely that the city had the power to sell the land to a private entity.
Murphy also cited San Francisco vs. Linaries, a case that allowed the City of San Francisco to build a sub-surface parking lot on park property. According to the ruling, the use of park property depends in part on how the land was acquired and whether any part of the grant or deed has any specifications for use. Basically, if the city acquires land for specifically stated purposes, the city cannot necessarily decide to change the use of the land.
Part of the original 1903 deed for the land where Carnegie Park is located did specify the property for the use and maintenance of a park and library. Additionally, Murphy cited Spinks vs. City of Los Angeles, “Where a tract of land is donated to a City with a restriction upon its use in as [sic], for instance, when it is donated or dedicated solely for a park—the City cannot legally divert the use of such a property to purposes inconsistent with the terms of the grant.” In 1963 the park remained a park, although the library would be demolished two years later.
Carnegie Park underwent a renovation in the 1990s and has been used for special events such as Marketfest, a weekly concert series that was held on the Carnegie Park stage but has since moved to a different location. During the concession agreement approval process Niemer stated, “this important Downtown public space can and should host more activities.”
II. The agreement
The initial two year (June 1, 2017, through May 31, 2019) agreement involved The Park paying $850 per month in rent with certain other provisions regarding accessibility and maintenance of the park.
The Park is a privately managed food truck hub meaning it offers a designated place for food trucks to park and serve customers. There is a central trailer where alcohol is served in addition to the rotating participating food trucks. To accommodate the trucks and traffic, much of the green space of the park has been removed and replaced with gravel, a large patio, and other ground covering and seating. The entire area was permanently fenced in during the construction and is only accessible when The Park is open and operating, which has been primarily between 5:00 pm and 9:00 pm from Wednesday through Sunday, the minimum amount of time designated by the concession agreement with the City of Redding.
When the initial agreement came before the council, members Kristen Schreder and Julie Winter motioned to defer action to allow more discussions with existing downtown stakeholders. Some business owners were voicing concerns around the impact on their businesses, as well as preferential treatment considering The Park would not necessarily have to pay the same fees and permits that new brick and mortar restaurants would. The motion failed and the agreement was passed 3-2 with council members McElvain, Sullivan, and Weaver voting in favor of the agreement.
Parking and access to the park and stage for community events were early concerns voiced by community members. The agreement experienced a number of other community based and natural disaster setbacks including a challenge by residents of neighboring Lorenz Hotel to the ABC license application and delays due to the Carr Fire. However, all delays were eventually resolved and construction of the park began in mid–July 2017, although due to the Carr Fire and other delays The Park would not open until September 27, 2018.
On September 18, 2018, the agreement came back before the city council with a request to amend the length of the contract. The reason for the extension was a run for city council by Erin Resner, co-owner of Dutch Brothers along with husband Chris Resner. The Resners had since the initial agreement partnered with Todd Franklin on The Park project.
According to the city, if Resner were elected (which she was in November 2018) the council would not be able to act on the agreement during her time on the council. Another option for Resner to run without a conflict of interest would have been for the Resners to divest from the project, although this solution was not publicly discussed.
The city ultimately opted to approve a 10-year long concession agreement on a project whose success had not yet been proven, as The Park was not yet open to the public, instead of leaving the burden of working out any conflict of interest with the Resners and Franklin.
During the September 18, 2018, meeting, council member Julie Winter raised more questions about rental analysis and the anticipated cost of utilities, which the city would be paying for a period of time. She also asked about the absence of any section of the agreement mandating security. Although council members Winter and Schreder had voted against the initial agreement voicing similar concerns, their hesitation in favor of more research and analysis were met with surprise and displeasure both online and from other members of the public and council.
During the council meeting on Oct 3, 2018, to revisit the questions, both Franklin and Chris Resner spoke to the council to urge the approval of the agreement. According to Resner, “During the previous meeting, I left here surprised mostly because Todd and I have been pouring so much of our time and effort into this project and money. We have close to $200,000 in this project. I took it personally to hear so much focus on minor details when comparing the value that we are bringing to downtown. I understand the commitment that the city is making with this lease, but it is also a commitment that we are making. If this agreement goes for the length of the life of the 10-year lease, we are prepared to really own that space, and do our part to make it successful.” Resner’s statement was a bit on the nose considering that the true ownership of the space is the main issue of consequence.
Councilmember Brent Weaver spoke at length about his feelings surrounding the request for additional information about the agreement. Despite the fact that these questions had been raised and overruled during the first approval process he stated, “I was frustrated because of the optic that was created. I think that had this been pre-signing of the agreement, I would understand really getting into the details of the contract, but for me what this was about was an unforeseen situation where someone happened to be running for city council that became a partner of the principal...” Weaver was not concerned with the need to review the terms of the agreement before forfeiting the city’s ability to make any changes to that agreement for the next 10 years.
Redding citizen Tyler Shuster, the only person to speak out against the execution of The Park agreement at this council meeting, voiced concerns about the prejudicial nature of the fencing of the park. Making the point that claiming that the agreement will benefit the public’s access to the park by disallowing public intoxication and other illegal activity while simultaneously applying for a liquor license to allow only paying customers to consume alcohol on the premises may be a tad hypocritical. In his words, “the drunk people will only be the ones who have paid to get drunk.”
At the October 3 meeting, the amended agreement was passed with only council member McElvain voting against out of concern over the longer contract. McElvain, now Vice Mayor of Redding, explains his decision to vote no, “I had assured other downtown business owners, who were concerned about how the food truck court would impact their business, that we would be able to review the contract within a shorter period of time to evaluate any issues if they came up. I wanted to uphold that assurance.”
McElvain noted that some business owners were not happy about the city essentially subsidizing a potential competitor by providing public space for use without requiring that competitor to adhere to all the same regulations or fees, such as an impact fee, like other privately owned brick and mortar restaurants. In addition to the potential difference in permitting or fees, the City of Redding would continue to pay utilities for the area during the first year of the agreement, a benefit not afforded to other fledgling business owners. McElvain declined to say which businesses he had spoken to about these concerns but did note that he had not heard any complaints since The Park opened for operation.
III. The terms
The terms of the agreement include a number of factors that bring to light how much control TF Investment Group has over the public space and what control remains with the city. The agreement states The Park is required to be open to the public at least four days a week during the hours of 9:00 am and 10:00 pm. During those four days, there must be a minimum of three trucks and a maximum of seven. If The Park is open in excess of those days/hours they may have fewer than three trucks. The proprietor is excused from operating if the weather is over 110 degrees Fahrenheit or below 40 degrees Fahrenheit. The Park may also remain closed if there has been one–inch of rain total in the preceding 24–hours.
The agreement is technically a non-exclusive license. It states, “Concessionaire shall not interfere with City’s or the public’s use of Carnegie Park to include, but not limited to, making use of the stage for performances or the establishment of vendor space at Carnegie Park during events scheduled by City.” Ultimately, there are more restrictions to the space than the City originally foresaw from the ABC license, which will not allow the fenced space to be open unless The Park is operational. When asked, Kim Niemer disclosed that no public requests for use of the Carnegie Park have been received as of June 2019.
IV. The precedent
In 2012 the State of California had a large budget gap and faced closing up to 278 state parks. A last-minute budget change and the acceptance of agreements to outsource the management of some of the parks by corporate entities saved many of the parks from closure, making California the first state to implement private management of public parks. Six state parks had all or part of their operations and management taken over by private entities, including “running concessions, visitor services, security, and parks’ legal liabilities,” according to the Wall Street Journal. Under many of these new agreements, private companies would aim to make a profit from various admission or user fees, and the state would receive a percentage of that annual revenue.
Niemer explained that, even in the City of Redding, concessions and management agreements are not a new phenomenon. Tiger Field and the California Soccer Park are two examples of public land that are managed by non-profit, private organizations.
A number of reasons that these kinds of agreements are common include the lower labor costs possible for a private entity. “The folks I hire for my employees—there’s no getting around the fact the public agency people who are paid in a certain way and have these benefit packages are often hired for the full 12 months, even for a seasonal park,” explained Warren Meyer in an article for the National Recreation and Park Association. Meyer is one of the most prominent and successful advocates of the public/private model and the owner of Recreation Resource Management. Niemer echoes this sentiment, noting that it costs a lot more to employ a city employee making the city costs of managing the parks unfeasible without a larger budget.
Despite the growing occurrences of privately managed public parks on the federal, state, and local levels, Redding’s situation is rare in that the company tasked with managing Carnegie Park is not a non-profit organization with the foundational purpose of maintaining or managing the park.
Since no admission fee to The Park is collected, presumably The Park’s revenue comes from the sale of alcohol and agreements with the food trucks that utilize the space, although in a recent video posted on Facebook, Todd Franklin says that The Park and its counterpart in Anderson, California, are not currently charging the trucks any percentage of revenue. The city does not receive a percentage of revenue but a current monthly rent of $850. This means that the company does not have park management built into its revenue model, although certain aspects of the park management are required in their agreement with the city.
The potential downfalls of allowing private use of public space were illustrated by the great GoogaMooga disaster in Prospect Park, New York City. GoogaMooga was a fund-raising event that fenced off a large section of Prospect Park starting back in 2012. The first year saw around 40,000 attendees and left massive damage to the green spaces of the park. Although repairs were paid for by the festival organizer, Superfly Productions, local residents claimed that the repairs did not return the park to its original condition. After a second run in 2013, the Parks Department did not renew the event. Critics of the event argue that, although GoogaMooga raised around $75,000 for the Prospect Park Alliance, that amount was not enough even to cover the damage caused to the grass in the section of the park where the festival took place.
IV. The execution
There is no question that The Park is a popular destination. Now open and operating for over a year, any criticism of the project seems to have dissipated, been replaced, or been overshadowed by Franklin’s enthusiasm.
At least one of the businesses, Armando’s Gallery House, whose owner originally voiced concerns over the impact of the agreement on other downtown businesses closed but has not publicly listed The Park as one of the causes for that closure. Popularity, however, is not the only motivation to question the process and execution of decisions made by our elected officials.
Niemer notes that it has been a huge success in decreasing illegal activity and the need for police presence in the area. When asked about the limited operating hours she admitted that yes, the city would like it to be open more often, but The Park has been working within the confines of their concession agreement that allows for a reduction of hours based on the weather. There is, however, some doubt about whether The Park has been following these requirements.
According to a Facebook post from October 3, 2018, The Park determines its hours based on the predictions of the National Weather Bureau. The post states “if the National Weather Bureau predicts less than 50% chance of rain at the time of opening...then we will open! Now here’s the catch…As we all know the weather can change, so since we open at 5 PM today the last time we would update this is at noon giving you and our trucks 5 hours notice of any closure.” More recently on June 26, The Park closed “due to crazy weather!” which, unless they were open four other days that week, does not meet the designations of the agreement.
While The Park has fulfilled its stated purpose of displacing the homeless population, it is not clear that privatizing management of the park was most beneficial for the public at large. Our only option now is to hope for the success of The Park and ignore the fact that its construction merely displaced Redding’s unaddressed crises of homelessness, addiction, and poverty.
Relying on private entities like The Park to resolve these issues is tenuous both ethically and practically. Ethically, it further substantiates an us-versus-them mindset. “The Homeless” become something to despise and eradicate by any means imaginable rather than a multifaceted and complex social problem that needs cohesive, community-based solutions.
At a time when many small local businesses on the west side of Redding are already struggling to remain open, how can we know if the food truck court is a viable long-term solution? Roquito’s Taqueria will close its doors after September 30, 2019. Wild Card Brewing closed earlier this summer and plans for its reopening have recently fallen through. Crown Camera, a Redding institution, will be closing its downtown location after 62 years of business. Other independent businesses like The Brasserie, a downtown creperie, have voiced fears of closing. Will the city’s support aid in the long-term success of The Park? If it does, what does that mean for the viability of businesses that are not assisted by the city or other wealthy entities? If it doesn’t, what will be the fate of Carnegie Park after The Park?