HMB City Council votes to fight


Posted by on Wed, December 19, 2007

At Tuesday night’s meeting, the Half Moon Bay City Council voted unanimously to appeal the Yamagiwa decision and introduced its new attorneys for the appeal: Orrick, Herrington & Sutcliffe of San Francisco.  While the decision itself was not terribly surprising, the County Times reported that the decision received "mixed support from the audience". Coastsider was there and will have gavel-to-gavel video of the meeting online as soon as possible.

"We believe the judge’s decision is erroneous and contains many grounds for appeal ... and we are confident in our position," added John Knox, a partner with Orrick, Herrington & Sutcliffe.

Knox would not say what those grounds of appeal might be. He did say that, typically, an appeals case will proceed differently from the case Walker heard, which was filled with technical evidence and expert testimony concerning the presence of wetlands on the Beachwood site and the city’s role in dealing with them. Heard by a three-judge panel, this case will look at whether Walker correctly applied the law or consider errors made by the judge — legal, procedural or otherwise, according to Knox.

Walker has yet to issue a final document in the case, also called a judgment, which will outline pre- and post-judgment interest Keenan’s law firm is hoping Half Moon Bay will pay. A separate document, due in to Walker by Dec. 28, will enumerate the legal fees the city will have to pay if it does not appeal.

It’s still unclear whether the city will have to post a bond to appeal or how much money the city will have to borrow to fund the effort. The council voted to hired investment banker Piper Jaffray to assist with financing.


Darin Boville started a topic about the appeal on Talkabout see http://talkabout.hmbreview.com/topic.php?c=1&d;=&o;=&t=1073#comment_form 

I am very interested in getting the maximum input from coastsiders regarding the development of options for Half Moon Bay and its citizens.

Time is of the essence, and resources are being depleted as we chat.  If you have constructive ideas, it could help us all.

terry gossett
moss beach

Comment 2
Thu, December 20, 2007 8:57pm
Barry Parr
All my comments

Terry, you’re right, the city doesn’t have a lot of time.  What do you think they should do?

I’ve seen you involved down to the wire in enough hair-breadth elections to know you’re not a capitulationist.

Hey Barry,

Nor are you.  (Is that a word? capitulationist?, no time to look it up, time is ticking along rapidly)

Any way. I am involved with Coastside Community First as a director, and we placed an ad in the HMB Review this week, with some actions that we hope the HMB Council will consider.

I will paste those ideas in here.

  ALL ON THE SAME PAGE: SUMMARY OF PROPOSED HMB ACTION PLAN

1. Interpret and Apply the City’s Wetlands Definition Exactly as it Reads.
If the City established a policy to follow its two-sentence wetlands definition to the letter, in particular the final clause (“Wetlands do not include…vernally wet areas where the soils are not hydric”), Beachwood would be developable and potential compensation for court-awarded damages. In 2000, the City chose to ignore the second sentence of its wetlands definition to deny the Beachwood CDP; in 2005, the state appellate court decided the City had “rationally interpreted” its language. The court never prohibited the City from interpreting its own wetlands definition literally, i.e., exactly as it reads.

2. Establish as Public Policy that the City Needs Foothill/Bayview to Bypass the 92/Main/1 Bottleneck.
For many years, the Coastal Commission and City have consistently made the finding that Foothill and/or Bayview are necessary to alleviate traffic congestion and improve coastal access. The City should renew its finding that there is an ongoing (and increasing) public need for Foothill/Bayview. If Pacific Ridge and Beachwood wetlands are redelineated according to the City’s exact definition, Foothill/Bayview appears to be routable to avoid all seasonal wetlands. If not, the City can make the finding that the need for the road outweighs the need for the seasonal wetlands, which if desired can be mitigated elsewhere on the properties.

3. Question the Tactic of Appealing the Beachwood Decision as a Negotiating Technique.
An appeal should be made for one fundamental reason: if and only if the City believes it has found a legal silver bullet that will overturn the lower court’s judgment. Appealing for purely tactical reasons may backfire, and is a bad-faith basis for settlement negotiations. Good-faith negotiations will begin for the City with an acceptance of the judgment – and an apology. For the developer it will begin with an understanding that the City will never be able to pay the awarded damages. As a carrot, the City can offer tasteful development of Beachwood and/or Podesta. As a stick, the City can raise the spectre of bankruptcy protection if the negotiations fail. Bankruptcy is a wild card for all concerned, and should be treated as a last-ditch scenario.

4. Retain New Legal Counsel.
No matter what course the City chooses, it needs a new legal team. On appeal, a very different legal approach would be needed. At negotiations, new personalities with fresh ideas would be a must.

5. Renegotiate the Pacific Ridge Settlement Agreement.
The City should make it clear that Terrace as sole access, with or without a stoplight, is unacceptable, and that no development will occur without Foothill. The cash payments for lot retirement and a Terrace stoplight can be forgiven as compensation for the costs of the roadway construction.

6. Forge a Unified Beachwood/Pacific Ridge/Podesta Development Project.
A comprehensive and interdependent – not piecemeal – planning approach that packages the future development of these neighboring properties, is not only the key to settling the Beachwood judgment against the City, it can provide the opportunity for cooperative community-building.

terry gossett

So CCF wants to enforce the wetlands definition “exactly as it reads”? Did I read that correctly?

Now why on earth would a pro-development group like CCF wish to enforce wetland definitions? Maybe because some genius in the organization thinks they might have found some kind of loophole, more than a decade after the City’s LCP has been certified by the Coastal Commission? That’s the only explanation I can think of. 

Well, it turns out that the definition of wetlands as it applies to Beachwood has been upheld in Court. It’s not an issue. The City already won that case Terry. Remember?

Comment 5
Thu, December 20, 2007 10:56pm
Dan Blick
All my comments

Just a quick comment on your #2, Terry:  We already have a bypass for the Hwys 1 & 92 bottleneck.  It’s called “Main Street,” and it sure helps traffic, doesn’t it?  In fact, when the Slide was closed, the Main St. Bypass was coned off to improve the flow of traffic.

So I figure that the Foothill/Bayview Bypass will be as ‘helpful’ as the Main St. Bypass—with the added bonus of several hundred additional cars!

Plus, why would anyone want to increase the supply of housing on the coast at a time when so many people are trying to sell?  This can’t help existing homeowners preserve the value of their homes.

If I’m selling my house, and a nearby developer builds a few hundred houses, thereby reducing the value of my home—thru both aesthetics and supply & demand—can I sue?

Comment 6
Thu, December 20, 2007 11:32pm
Hal Bogner
All my comments

Mr. Gossett,

There are several things that I don’t understand about your proposed solution.

Didn’t state trial and appeals courts already review Beachwood in terms of the letter of the law regarding wetlands, and rule out the development proposed by the lady charged with looking after Mr. Keenan’s affairs, Ms. Yamigawa?

Didn’t the City and/or the Coastal Commission find some subest of the proposed Beachwood subdivision to be buildable, and the Ms. Yamigawa, who is charged with handling Mr. Keenan’s affairs, refuse to accept that?

Isn’t the City obliged as a matter of law to properly consider any development proposals made for the Podesta property, regardless of what happens in the matter of Beachwood?

The City and the Ailanto developer already reached a negotiated settlement after years of uncertainty and legal expenditures, and both sides have declared their intention to keep the deal.  The Ailanto developer gave several presentations last year about their intention to honor the deal, and in the course of their presentations, they stated that their own environmental experts believe your hypothetical bypass to be unbuildable due to wetlands.  Is your group advocating that the City and Ailanto go back to uncertainty and potential future disputes, and if so, is CCF in a position to indemnify the City and Ailanto against anything “going wrong” down the road?

By the way: the City should appeal if it believes that the judgement should be reviewed, and clearly, that is in the works.  Ms. Yamigawa, who looks after Mr. Keenan’s affairs, ought to stipulate to a waiver of any kinds of substantial deposits, as the moneys that would go to pay for such things would only come out of what the City would otherwise have available to meet the obligation of the judgement in her trustor’s favor (to the extent that the City is able to pay at all).  I would hope that in both sides interest, all concerned have already figured that out.  The size of this judgement reminds me of the old saw about owing so much that it’s not the borrower who has the problem, but rather the bank that has the problem.

Comment 7
Fri, December 21, 2007 10:31am
terry gossett
All my comments

Gentlemen,

CCF is simply trying to offer options and present them to the community and leaders of the city for their consideration in dealing with this Beachwood crisis.

I was hoping for, and asking for, more ideas and options from this discussion group. 

Mr Lansing, I have not seen you at the recent city meetings, but I trust that you have read the judgment by Judge Walker.  The Judge heard considerable expert testimony on wetlands and compared existing definitions from the Corps of Engineers, the Coastal Commission, and the HMB LCP.  You are right that the LCP definition has not changed since 1985. What was striking was that the current interpretation by the city does not address their own sentence concerning what wetlands are not.  You are also right that a prior state appeals court upheld that definition, and the right of the city to interpret it that way. However, after reviewing all of that, Judge Walker accepted Dr Josselyn’s testimony for Keenan that wetlands were caused by TAAD construction and rejected Dr Huffmans testimony for the city that wetlands existed long before TAAD in 1984.

Mr Blick, in most cities there are bypasses or loops to help people avoid congestion.  Are you suggesting they are all wrong to do so?  I don’t know how to respond to your assertion that the “the Main street bypass” hurts traffic flow.  Regarding, can you sue, absolutely, this is America. If you have some ideas on what to do rather than what not to do, I am eager to hear them.  Please come to some meetings and we can talk.  Maybe the city will have a public workshop someday.

Mr Bogner, Judge Walker ruled on your first two points. Regarding Podesta the city is obliged to consider development proposals as you state.  I am suggesting that if in considering proposals the city had an overall master plan for the nexus of their city it might offer advantages over dealing with each parcel separately.  The city has every right to appeal, I repeat, CCF is merely trying to offer some options regarding the Beachwood crisis.  Do you have any?

terry gossett

Comment 8
Fri, December 21, 2007 12:27pm
Dan Blick
All my comments

Terry,

Sure, there are many bypasses that work.  The Main St. and Foothill/Bayview Bypasses *don’t* work.  They reduce the flow of traffic instead of increasing it.

>> I was hoping for, and asking for, more ideas and options from this discussion group.

How’s this:  Don’t do something stupid.

You’re operating under the premise that the Foothill/Bayview Bypass is a net benefit to the Coastside.

I’m saying that your premise is idiotic. No amount of lipstick will make that pig look good.

—Dan

Comment 9
Fri, December 21, 2007 4:39pm
Barry Parr
All my comments

Terry, as I mentioned to your CCF colleague Charlie Gardner elsewhere on Coastsider, I don’t see how building a road on Beachwood helps the city one whit with the financial crisis brought on by Yamagiwa.

How do taking the developable bits of Beachwood (for which Keenan will have to be compensated) to build a thoroughfare improve, rather than exacerbate, the problem? Charlie didn’t answer me. I’m hoping you’ll take a shot at it.

I also don’t understand how you can in good conscience suggest that the city negotiate from a position of abject prostration. What kind of development will we get at the crossroads of 1 & 92 if they city can’t expect any concessions from the developer?

If the city has no reasonable hope of appeal, they should just declare bankruptcy and get on with the consequences.  To negotiate puts Chop Keenan at the head of the line in the inevitable dissolution of the city.

If they city has a decent chance of winning, it would be insane to negotiate when they are weakest. If they lose, they can always go back to declaring bankruptcy.

Comment 10
Fri, December 21, 2007 7:39pm
Hal Bogner
All my comments

Mr. Gossett,

Thank you for your response, and for asking if I can offer any options, as well.  I see no relevance in off-topic issues such as overall City plans, nor any value in reopening a Pandora’s Box with respect to the successfully resolved Ailanto settlement for the development of Pacific Ridge.  Here are some thoughts on the current situation:

As a chess master and as a consultant, I examine both strategic and tactical possibilities, and I have frequently dealt with being in disadvantageous situations, or with advising clients who were in such situations.  Not all disadvantageous situations end badly.

It was obvious from the moment that the judgment was announced that the City would have to appeal, for both strategic and tactical reasons: strategic, because an appeal will afford the City the opportunity to have the facts assessed more carefully than a single individual (Judge Walker) may have been able to do, and to have the law more carefully considered from angles perhaps not carefully considered at trial; and tactical, because the City cannot possibly commit to pay the trustee who handles Mr. Keenan’s interest the amount of money that the Court has awarded, and because the City must create both space and time in which to negotiate if there are to be negotiations at all, and in which to develop the necessary plans for how to pursue an appeal, as well as to assess and hunt for resources in the current situation.

Less than a decade ago, I actually spent time in Judge Walker’s courtroom, and was briefed by attorneys on the wide range of possible outcomes at trial there, so I have had a previous opportunity to consider some of the issues that exist here today.  Happily, the much smaller case that I was helping to manage was successfully resolved without ever needing to be appealed, but I did become aware that this is something that has happened in response to some of his decisions, and that more often than for other (perhaps less bold or wide-ranging) federal judges, he is sometimes reversed by higher Courts.

Frankly, the City has been in this situation before, in that Mr. Keenan’s trustee won a decision in state court some years ago, which the City and the Coastal Commission won a reversal of at the appellate level, so this is not unprecedented.

As I understand it, the City did, in fact, offer as many permits to build homes on parcels within the Beachwood subdivision as the existing ground conditions would allow, and Mr. Keenan’s trustee refused, choosing an “all or nothing” option, and currently, I would say that she has for the moment won a symbolic victory, in that she has obtained an award that exceeds the City’s ability to provide it. 

I do not see how the resolution of the Beachwood drama will come about yet, but it is early in my analysis, and I am still coming to understand more about various facets of the position on the board before us today.  Rest assured, though: a lot of very smart and experienced people will be examining this matter, and numerous possible options will be developed before they need to be winnowed down into the few best choices for all concerned.

And as Barry Parr writes above, the City holds all the cards, in the sense that they can declare bankruptcy at any point, because it is clear that this award far exceeds the City’s ability to pay, and it is absolutely unimaginable to me that City voters would agree to kick in decades of additional taxes, fees, or other assessments to meet the award.  Mr. Keenan’s trustee will inevitably be faced with finding a compromise, or choosing between two versions of simple victory: the symbolism of the decision by Judge Walker finding the City to blame for the wetlands that have been delineated on the Beachwood parcel, or the pyrrhic victory of seeing the City dissolved, and no way to collect the judgement, and still no way to build where the law does not allow. 

Along the way towards any possible compromise, Mr. Keenan’s trustee also needs to consider that moneys spent by the City that go to anyone other than to her trustor are moneys that are gone forever; therefore, I recommend to Ms. Yamigawa that she seriously consider stipulating to the Court a waiver to the potential requirement of posting a 10% bond.  I am told that such a bond would cost the City something like 1/3 to 1/2 of a million dollars, and that is money that she must certainly prefer to get if bankruptcy limits the amount to be collected, or if a settlement of any sort is reached prior to the two extremes of either bankruptcy or reversal on appeal.

The way I see it, we have a group of development cheerleaders (otherwise known as Coastside Community First) trying to leverage the $36 million judgement against HMB into a way to get some new housing subdivisions built together with their beloved “Foothill Bypass.”

Will somebody please explain to me how their so-called “bypass” can solve traffic problems when it comes packaged with hundreds of new houses along its route? The bypass is nothing more than a Trojan Horse for more houses.

Dan Blick is correct. It will not help traffic flow at all. Just the opposite, because it would come with new traffic lights at each end.

Regarding CCF’s six reccomendations above: this is really nothing more than a complicated (and thankfully unworkable) plan for building new housing subdivisions.

Hi Barry,

I welcome your questions.  Communication, as you well know, is essential to resolving long standing problems that we continually face living on our coastside.  That desire to communicate and educate is probably part of why you started Coastsider.  Please note that CCF is a state recognized and chartered non-profit educational corporation, with a state approved mandate and mission to educate, and to serve our community.  I am not sure of the status or recognition of Coastsider.com with the state.  Barry, perhaps you could enlighten your audience on your mission and state charter and funding, even if it is only as an internet domain. 

However, that said, we both are here for the long haul, have demonstrated a concern and commitment for our precious coast.  I felt I had to acknowledge that I recognize your efforts to help the coast, and would hope that you do likewise.  Sort of like a stipulation in court—“both sides so stipulate.”

As you know Charlie Gardner is the President and spokesman for CCF, I am only a director of CCF.  Charlie is out of town, and my comments are intended to clarify the CCF position and respond to your questions.  I will report back to the CCF Board for guidance at our next meeting.  I think the action plan is fairly clear.

If the wetlands definition is interpreted and applied as it is written, almost all of Beachwood is developable. As the Coastal Commission and City previously found, the development should include Bayview, which would connect to Foothill, the traffic mitigation for Pacific Ridge that the Commission and City required before they entered into the settlement agreement. If you don’t like Bayview/Foothill, tell it to Coastal Commission staff. The bypass wasn’t CCF’s idea: the Commission and City
required it.


terry gossett

Comment 13
Sat, December 22, 2007 12:53pm
Barry Parr
All my comments

Terry, you seem to be saying CCF doesn’t have an estimate of the net cost to the city of its recommended plan of action. 

To answer your questions: I don’t accept contributions. Coastsider is funded by my personal funds and supplemented by advertising. My mission is to understand the Coastside better by writing about it and to share what I know with the community.  My motivation is to make the Coastside a better place and stronger community.  My state charter is the first amendment.

Comment 14
Sat, December 22, 2007 2:49pm
Hal Bogner
All my comments

Barry - May I suggest that you undertake to split this commentary into two or more topics? 

My posts were intended to be part of a discussion of how the City might deal with the current Beachwood judgement, but some of the comments are more focussed on concepts of overarching plans for the coastside, or on arguments about what the world would be like if wetlands were interpreted differently than the state court of appeals found at Beachwood.

No doubt, there are those who have agendas outside of contributing to the resolution of the current issue, just as there are those who wish to point fingers at one side or the other from this or that period of time.

Unfortunately, developing new plans for the City will take much longer than the time available for payment or appeal of Judge Walker’s award, and recriminations over events or decisions from the 1970s, 80s, or 90s, or even of the current council’s choices over the last two years, will not change the current situation at all.

If one or more threads of discussion could be restricted to practicalities applicable to the situation at hand, that would be appreciated.

Please feel free to utilize one of my posts as an Opinion piece if that would be helpful in restarting the discussion afresh.

Hal M. Bogner
Half Moon Bay

Comment 15
Sat, December 22, 2007 5:00pm
Barry Parr
All my comments

I don’t think we should split this topic. All this stuff is tied together in any event and the ultimate resolution of this mess could cause a whole bunch of dominoes to fall: Beachwood, Pacific Ridge, Podesta, Terrace Ave, Foothill, Bayview, and more. That’s certainly what CCF has in mind.

Comment 16
Sat, December 22, 2007 8:44pm
Carl May
All my comments

Hal,

I think we are smart enough to keep the specifics for this plot of land clear while also recognizing the attempted use of the situation as a stalking horse for related agendas (including the road/new congestion points on 1 and 92/overdevelopment desires of CCF or a ploy by Keenan’s company to negotiate for development rights on other properties).

In fact, it is important to not lose sight of the fact that this is yet another instance of HMB’s urban sprawl process playing itself out—a process begun decades ago (and long before Prop. 20 and the Coastal Act). HMB permitted a “leapfrog” pattern of development on agricultural land north and south, of the city center along 1. This is a classic process for sprawl. It jacks property values and serves the short-term incomes of land-sellers and developers as it extends development out from a city’s core *much more rapidly* than if sprawl is continuous from the edge of a city’s developed area. Unless a city becomes enlightened along the way and caps total development, the open spaces jumped over in leapfrog development are doomed to fill-in over the long term as long as population is growing.

The fill-in is what is happening with the incidents and legal process on this property, as it has already happened in other tracts and is proposed to happen elsewhere (note how Podesta et al. are being mentioned as corallaries). It is instructive, sometimes eye-opening for people who didn’t get it before, to see the details and manuevers as part of the general sprawl process in addition to issues that must be dealt with in the immediate situation. They’ll be seeing versions of this again, and again.

Carl May

Comment 17
Thu, December 27, 2007 11:26am
Don R. Whitt
All my comments

Where are the sign-ups for the new HMB All-Volunteer Fire department?

Comment 18
Thu, December 27, 2007 11:38am
Barry Parr
All my comments

The fire department is a separate entity from the city, so they’re safe. However, they may need a volunteer police department.

Just to be clear, however, we have no reason to believe that the decision to appeal the decision is any likelier to bankrupt the city than a decision not to appeal.

Terry, does CCF have an estimate of the incremental cost of building the Bypass?

You’re a director of CCF and the organization has taken a very public position, buying a full-page ad in the Review.  What does CCF say this will cost and how did you arrive at the figure?

I know you’ve been waiting for Charlie to get back. Is he still gone?