HMB to Sacramento: If you don’t support AB1991, we’ll kill this dog

Editorial

Posted by
Thu, April 17, 2008


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If a cynic is someone who knows the price of everything and the value of nothing, how cynical do you have to be to think Half Moon Bay’s settlement is a good deal for the community? How cynical do you have to be to think it’s a good deal for California?

You can’t put a price on creating the precedent of bypassing environmental laws in exchange for cash.

You can’t put a price on ignoring decades of state protection of the coast, environmental quality, wetlands, and endangered species habitat.

You can’t put a price on turning the clock back 20 years for one developer, to a time before Half Moon Bay’s citizens overwhelmingly approved growth limits, and before the developer himself allowed wetlands to develop in holes and clogged drains on his own property.

You can’t put a price on simply ignoring your own laws, after they were vindicated by the state supreme court, just to negotiate a cheaper deal.

The Half Moon Bay City Council is willing to do all that and more for about fifty cents on the dollar.

And they’re also willing to put Senator Leland Yee in an untenable position. Why else would they try to get him to commit to their secret settlement one day before he got a look at it? Why would they threaten him with a city bankruptcy that they knew was already off the table when they asked him to put his name on the bill?  Yee made a mistake signing on to this deal before he knew what it was, but at least he had the courage to take his name off it until he understood the stakes.

Once the legislature gets this thing out into the open air, we may discover that the city has committed to developing state- and federally-protected land. And that the city’s ultimate exposure—if it were to take ownership of Beachwood and develop it to the standard mandated by the city’s own laws—is a lot less than $18 million. And far short of bankruptcy. Especially if, as suggested by the Coastal Commission’s executive director, there is is a way to mitigate development of some of the wetlands.

Half Moon Bay’s City Council structured this settlement so that they would have no choice but to pay up if the state chooses to enforce its own laws. And now they’re telling us "Now is not the time to ask what might have been".  Citizens who don’t want to put a price on the protection of the law shouldn’t have to pay for Half Moon Bay’s cynical settlement.


“You can’t put a price on simply ignoring your own laws…”

Absolutely correct.  All of them, including the laws that support your right with respect to your own property.  You cannot pick and choose which laws you want to uphold.

Your ongoing cynical criticism of the City Council has once again turned full-circle.

I agree that you can’t take property without compensation.

I still think the city had a good argument that (1) they didn’t make Beachwood into wetlands and that even if you thought they did (2) the owner was at least as responsible as they were. They chose not to press the matter.

In the words of the anonymous author(s) of the city’s press release, “Now is not the time to ask what might have been”.

Now is the time to ask “Who should pay for the city’s settlement?”

I think the city of Half Moon Bay should pay. It’s a bad idea to pay the city’s settlement by selling dispensation from state and local law.

Brian, your comment doesn’t make any sense.

I can see how passage of AB1991 will jeopardize the state’s ability to protect state property (the coast) from activities on private property. But how does its failure to pass jeopardize ANY private property laws?

Comment 4
Thu, April 17, 2008 11:41am
Ray Olson
All my comments

Barry,
you stated this:
“I think the city of Half Moon Bay should pay. It’s a bad idea to pay the city’s settlement by selling dispensation from state and local law.”

You actually believe HMB city should pay the settlement?

If anyone should be held accountable for the settlement it would have to be the Coastal Commission.

Roy, how do you figure?

The wetlands definition was written by HMB, they were found to have created the wetlands, and they negotiated the settlement.

Comment 6
Thu, April 17, 2008 11:53am
Ray Olson
All my comments

Didn’t HMB’s definition of wetlands come from the Coastal Commission and they then told HMB we must enact our own LCP? Whatever definition the city came up with back then had to be approved by the Coastal Commission, correct? Maybe I misunderstood the LCP process, but it seems to me the Coastal Commission is the authority on these things.
Don’t get me wrong… I don’t believe anyone should pay for the settlement.
Ray

Why should the Coastal Commission (i.e., California taxpayers) pay for the settlement?

The problem was caused by HMB, not the commission. They’ve done what they’re supposed to do—enforce the California Coastal Act.

Comment 8
Thu, April 17, 2008 12:25pm
Ray Olson
All my comments

But see that’s thing…. The Coastal Commission is doing the enforcing by tell each city on the coast that they require an LCP, which must a have their definition of a wetlands. I don’t believe HMB just created their own unique interpretation of what is a wetland, did they? Regardless, HMB was only doing what they were told to do (to put an LCP in place, and then enforce it). Am I wrong?
Let’s put it another way. HMB didn’t even have the option of not abiding by the Coastal Commission, and an LCP, did they?

The California Coastal Act applies to the entire 1100 mile California Coast. The Act allows for coastal towns, cities and counties develop to develop and administer their own Local Coastal Plan (LCP). Once those LCPs are reviewed and approved by the Coastal Commission they become certified LCPs. The commission can only certify LCPs that conform to the Coastal Act.

Once an LCP is certified, it becomes the standard of review, even if a project is appealed to the Coastal Commission.

In unincorporated areas or areas that do not yet have a certified LCP, the standard of review is the Coastal Act.

The commission enforces state law, namely the Coastal Act, which happens to be very well-written and explicit.

Unless you can show that they erred enforcing the Coastal Act (or the LCP), then your problem is with the Act and not the commission.

OK, here is what I believe.  We are a nation that is governed by laws. No one can, or should, be allowed to cherry pick laws, you have to take the whole package, whether you are an individual, an NGO, or the Government in its many varied forms.

In the case of Beachwood, the definition of wetlands in the HMB LCP was cherry picked, most probably at the behest of the Coastal Commission, but with participation by prior City Councils.  See http://talkabout.hmbreview.com/topic.php?t=1784&c=5&d;= 

Now, with AB1991 this Council is trying to exclude the unique circumstances that created this crisis without setting a legal precedent, and I believe that to be feasible.
Why not support this one time solution to enable a compromise ?

I might add, why not also re-visit the interpretation of the term “wetlands” in the HMB LCP and bring it into conformity with some of the other 125 LCP in California as well as with definitions from other entities?
One last thing, please don’t forget the State and US Constitutions along the way.

“Let’s put it another way. HMB didn’t even have the option of not abiding by the Coastal Commission, and an LCP, did they?”

“Abiding by the Coastal Commission”?

Presumably you mean “abiding by state law, as required by the citizens of California through a ballot initiative that passed overwhelmingly”, right?

I see that TG is trying to claim, indirectly, that the Coastal Act is unconstitutional. I think that claim’s been put to bed; let’s not waste time on it.

Francis,
I think we are saying the same thing. I want to point out however that the definition of what is a “wetland” is definitely not black and white. I think California left it up to the Coastal commission (I may be wrong) to decide what space is considered wetland, and what is not, by applying some form of expertise. That is why I think they should be held accountable, and not a small community like HMB. You may infer that would mean taxpayers would be paying for it, but I would then look at it as one cost (of many, many costs) that is associated with the state of california to uphold the coastal act.
Ray

Jonathan,
You are assuming the state law around this subject is black and white. It definitely is NOT.. Isn’t the coastal commission the body that applies the decisioning of the act, where applicable?

All LCPs must conform to the Coastal Act, and the Coastal Act has a more strict interpretation of wetlands than the Army Corps of Engineers, US Fish and Wildlife and the California Department of Fish and Game.

You may want to check out the following URL for more details:

<http://ceres.ca.gov/wetlands/introduction/defining_wetlands.html>

There are good reasons for having a more strict defininition of wetlands in the coastal zone.

Again, the commission enforces state law. If you don’t like the definition codified in the Coastal Act you should try to amend the it, not criticize the commission for enforcing it.

Francis,
I’m not trying to criticize the coastal commission. I just think they need to be held accountable for their decisions, that’s all.
I did read through some document on the definition of a wetland: one of 3 situations I believe, if the soil appears to be of like soil that is found in a wetland, etc…. It is definitely open to interpretation which I think the coastal commission is needed. Your statements above could lead folks to think that it is a simple matter of:  speed limit being 55mph etc. It is definitely NOT that type of enforcement. Would you disagree?
Ray

Ray, refer to the URL provided in my previous post.

Although a wetlands definition isn’t provided in the initial act language, so there was a gray area. However, the definition they now use is codified in state law.

So again, I do not see how you can claim the commission has any responsibility for the predicament HMB finds themselves in.

I believe any attempt to hold the commission responsible will result in the commission suing to have the settlement set aside. Thoat could be a good thing for HMB.

Love the magazine front cover, Hilarious!

Well,
reading the url you provided merely confirms my point. For example, the statement here:
“long enough to promote the formation of hydric soils”

what is long enough, etc? My argument is not whether this is right or wrong, but that the coastal commission makes the decision. They should be held accountable for those decisions.

The presence of either standing water, hydrophytic soils or hydrophytic plants requires the commission to designate any lands meeting those conditions as wetlands.

Your argument seems to be founded on the notion that the commission is inconsistent and capricious when it comes to defining wetlands. They are not. All of the conditions described above can be established by scientific means—there isn’t any guesswork required of the commission.

Jonathon,
In no way am I trying to say that any law is unconstitutional.  Carefully re-read what I said.
Honor all law equally. Don’t cherry pick them.

All laws should be obeyed within some context.  When elected officials take office they swear to uphold and support the State and US Constitutions. So I submit our laws are in the framework of the State and US Constitution and should not conflict.
 
I went back to the Yamagiwa decision for an example of just what I am saying.  On page 65 it states that in the May 2, 2000 resolution by the City it said that “Dr Josselyn’s interpretation of the vernally wet exception was erroneous.”  However, I note that from page 61 the last sentence of the City’s LCP definition for wetlands has that statement of the vernally wet exception. And, so I wonder, did that council follow their own LCP that was approved by the Coastal Commission?
Thanks for the opportunity to clarify my first posting.

Now this thread is becoming comical..: presence of standing water, or hydrophytic soils, or hydrophytic plants is NOT open for interpretation. Oh, you left out the part of “at some time during each year..” 

You are the one that makes the leap of assuming inconsistency, I never said that, though it is interesting that you brought it up.

Well, that’s the point—we need a definition that isn’t open to interpretation, and we have one.

You can see if there’s standing water on a site. You can analyze the soil to see if it is hydrophytic, and identify plants that are defined as hydrophytic.

So where’s the problem? Are you arguing that the wetlands identified at Beachwood don’t meet these criteria?

At this stage, debate over the definition and source of the wetlands is a waste of time.  The new reality is the settlement and its homely lovechild AB1991.

And the question is whether it should become law. If AB1991 fails and the city is looking at developing the land, we’ll get to argue about Beachwood’s wetness to our hearts’ content.

Several points need to be brought into the discussion here:

Keenan chose to take this to court after he was allowed 19 homes by the Coastal Commission.  He was not denied the right to build anything, just all that he wanted.

There were naturally occurring wetlands as well as manmade wetlands on the property.  Walkers decision was only about the manmade wetlands, not all of those in existence on the single parcel.  The proof is in the fact that the property needed drainage from the start of the property.

The drainage facilities were installed at the then property owners request. 

It is the settlement agreement agreed to by the City that has reduced the options for the City to either have long standing State environmental protections overridden by State legislation or to pay $18,000,000 to Keenan.  Evidently there were other options that were not pursued.

The “vernally wet exception” was the crux of Yamagiwa’s original lawsuit and is precisely what the California Appellate Court flushed and the California Supreme Court refused to hear. That’s what led to the termination of the Beachwood map.

I’m surprised Mr. Gossett doesn’t seem to know that. Given his involvement in land use issues, he certainly should.

Barry,

Before dismissing the definition of “wetlands as a waste of time” and leaping to the issue of whether AB1991 should become law, consider this.  Any further appeal is dead.  We can all help craft a suitable AB1991, and support AB1991 or HMB will owe $18M.
Then, hopefully HMB will find ways to pay for it, and then own Beachwood for all time.  Is that what this is all about?  Another opportunity for a park? 
What of the cost to the citizens of HMB, which you and I are not.  I am doing this on behalf of property owners that have been denied access or use of their land, and you? We need to work together for a coastal solution.

From the HMB lawyers’ statement of April 15, 2008

“...Either AB 1991 passes or the City must pay Mr. Keenan $18 million, a cost which will seriously burden the City and its citizens…”

Two observations:

1. Barry and others are right to characterize this settlement as blackmail or holding a gun to the head, etc. Just read the language. Can’t you just picture Lanny J. Davis pointing his finger at us saying,

“Now listen here people, either AB 1991 passes, or we’re gonna seriously hurt your City.”

2. Who bargained for the $18 million folks? Answer: our own four esteemed City Council members, Muller, Patridge, Fraser and McClung.

Either Davis is admitting that our own Council agreed to pay a dollar figure that they knew could not be paid, or else he’s exaggerating and the $18 million can be paid off with a bond.

If $18 million really can’t be paid, then our Council is guilty of gross negligence and should be prosecuted for failing to uphold their fiduciary duty. They threw away the right to appeal when they agreed to pay $18 million. So they had better be able to show that they checked the City’s financial ability to pay up before throwing away the right of appeal. The SM County grand jury should look into this.

In my humble opinion without crunching all the numbers, the City probably can pay off the $18 million via a bond, and it should start preparing to do so.

The City’s current revenue exceeds $10 million per year and they currently spend about $5 million per year on Police Servces in a place with near-zero crime. The County Sheriff’s office is a mere 5 miles down the road. Do we really need all those HMB police officers?

Moreover, after the City pays-off Keenan, the City will own a valuable asset that can be sold to help pay down the bond (thanks to Dennis Paul for pointing that out).

Finally, my opinion of our esteemed City Council published in yesterday’s Review:

http://www.hmbreview.com/articles/2008/04/16/opinion/letters/doc480664b535187703625103.txt

Mr Ferreira,
I am not proposing to go backward in time to snapshots that you choose, and defend interpretations of past lawsuits which you assert.  I do not wish to go to the original lawsuit, or the Appellate Court, or to possible “reasons” the California Supreme Court “refused to hear” the case.  This is not a public meeting and the choice of venue is not yours.

I choose to make direct quotes from the most recent, relevant determinations in a court of law, and that would be the US District Court, Northern District of California.  I am citing from the Judge Vaughn’s decision on the Yamagiwa lawsuit, page 156, where it states “The City admits that “Yamagiwa did appropriately seek compensation in the California Courts by filing the complaint simultaneously alleging inverse condemnation under the state and federal constitutions.” ”, and goes on to state “Indeed it was the City that removed the case, thereby electing to proceed in the federal forum.”

And, in conclusion, Judge Walker stated, “Accordingly, judgment shall be entered in favor of plaintiff Yamagiwa and against defendant City of HMB in the amount $36,795,000.”

My hope and plan is to help the City of HMB and other coastsiders in any way I can to minimize the costs to the citizens of the HMB community, landowners or not.

What is your plan? From what I understand See the website http://talkabout.hmbreview.com/topic.php?t=1779&c=1&d;=  it appears you prefer to support the interests of the Sierra Club (or possibly the Coastal Commission) over the interests of the City of HMB and its ratepayers.

Regarding AB1991: I’m not a citizen of HMB and want to see the city solve its legal problems without circumventing environmental laws. I am also opposed to setting the bad precedent of combining legislative acts with civil lawsuits.

Regarding private property rights: Owners that have been denied any access or any use of their land by the commission must be compensated for their land. However, such “takings” are rarely the case.

If property owners propose development that fits the site (i.e., conforms to the Coastal Act) the commission will approve the project and issue a coastal development permit.

It is when property owners attempt to alter the site to fit the development that they run afoul of the commission. (Projects that close access to or views of the coast get stopped, too.) That is what the Coastal Act requires them to do.

Commission and staff are very forthright about what changes are required (or what additional information is required) in order to approve a project and issue a CDP.

When developers push the envelope to exceed the limits of the Coastal Act, they should not blame the commission for denying their project.

terry gossett asked of Mr. Ferreira:

What is your plan? From what I understand [snip] it appears you prefer to support the interests of the Sierra Club (or possibly the Coastal Commission) over the interests of the City of HMB and its ratepayers.

terry, please recognize that the Coastal Commission supports the interests of the people of California. Recall, Californians stated overwhelmingly that we want the coast to remain accessible and its environment protected from development activities on private property.

Francis,

I urge you to carefully read the Yamagiwa decision, and the Beachwood settlement agreement, and after having done so, ask you to re-visit your statement that “takings are rarely the case”.

I believe that a combination of private and government stewardship of land has opportunities for us all. This can be a Win- Win Outcome for us all, IF we choose to make that happen… Or it could be a fight to the death…with Appeals to Eternity.. It need not be Government ownership of land or Else…It need not be my definition is the Only interpretation, even if it is flawed or inconsistent…

I accept the Coastal Act, let it be fair and balanced, not a Club.  (like Club Sierra)

Francis,

Our messages are passing like two ships passing in the dark.

Do not despair. We can do this. Keep trying.

I support the Coastal Act. I have been at hundreds of meetings, over 80 on just Local Coastal Programs for HMB and Midcoast.

If we all want laws that work, the laws must not be vague, capricious, or apply to some and not others.  Laws cannot be cherry picked by people lacking morals or ethics…Or people will be outraged.

I suggest we start with a very simple issue.  The definition of “wetlands”.  If that definition can be understood by real people they will comply.  IF it requires a phalanx of biologists and lawyers the outcome is far less certain, and THAT is where we are today in HMB…

Terry,
Your comment on 7:20pm is spot on.

Francis,
Because you don’t live in our community (Looks like you live up in Gualala) there is not much weight to your comments. It would be appreciated if you kept your armchair quarterbacking to your own backyard.

Kevin,
As a citizen of HMB for many years now, I don’t want to have to pay for the settlement, a problem introduced by the HMB council a decade or more ago. That is where the gross negligence should be applied, as well as the coastal commission of course.
I am very supportive of what our current council has had to go through to try to end this litigation that has persisted for so long. I’m not saying I’m in favor of Keenan developing the land, but based on what the HMB council of the late 80s-90 decided, we are now being forced into this situation.

What I find interesting to keep reading is the constant outrage that the City caved in and settled this $41 million judgment.  What I think is lost on people is the fact that the City was not bargaining from a position of strength.

In fact,  quite the opposite.  They were staring down the barrel of a judgment that could easily grow to $50 million with interest.  With that as the backdrop,  its kind of hard to pull out a winning hand.  And Mr. Keenan had the deep pockets to keep burying the City with crushing legal fees.  And he already proved that his lawyers worked smarter and cheaper the HMB’s.

I think the proposed law is,  to say the least,  an uphill battle considering the strong opposition.  Unfortunately,  I think this will not pass cause which would have been the cheapest option for HMB.

So the big question is,  where are we going to find $18 million?  The City will have to liquidate a lot of its real estate holdings.  That’s going to be tough cause raw land has been for years a hard sale.  Nobody wants to deal with permit hell.  They should start that now.

If the tax payers have to approve a bond measure to bail itself out,  I think that too will sink like AB 1991.  I don’t know of anybody personally whose willing to stick their hands in their pocket to pay for the way this place has been run for all these years.

The City can trim some of the fat out of their budget.  To me,  the biggest waste of money is the staggering amount spent on lawyers - $1.5 million per year.  Think about how much money we blew on this with nothing to show.  And add to that the lawyers fees for Pacific Ridge and N. Wavecrest.

What also angers many people with the City actions is that they settled.  That means the judge’s carefully worded 170 page decision is now case law.  This will hopefully be a wake up call to many other towns throughout the state and even the country that this behavior won’t be tolerated without serious financial consequences.

Of course,  this does noting for HMB because I’m not sure where they are going to find $18 million.  Somehow I don’t think the people who are determined to sink the City will be sticking their hands in their pocket to pay for the damage they did.

Steve,

What I am seeking, as are you, is solutions for the citizens of HMB, all the while noting a few lessons learned along the way. 
I agree with you, on the daunting task ahead of us, But if concerned citizens on the coastside pull together , we can do it.
Imagine the Cunha fire, yet less than 365 days later the store was rebuilt from ashes—-in the coastal zone.  If a City, even with a LCP, wants to do something important, it can be done.

I wish I could say that there is a pulling together for the greater good.  Frankly,  I don’t see it.  Quite the contrary.

I see the battle lines being clearly drawn and we are going to own an overpriced field of stupid weeds for $18 million.

The only good thing that has come out of this sad situation is that people are getting fed up with how the weed lovers are ruining this place.  Of course,  its $18 million too late.

Steve,
let’s just replace the stupid weeds with the homes and end this entire debacle. I frankly do not want to pay for one cent of the 18MM.

Ray,

That’s wishful thinking.  I don’t hear compromise.  I hear the same old thing that got us into this mess.  I guess people don’t learn from their mistakes.

Francis,

Don’t be disuaded by the self-interested spinners who refuse to take off the feedbag and admit how HMB has blundered in a manner that will have ramifications up and down the state. Do you live in Mendocino County? Doesn’t matter, but if you do, there are those of us who realize some of what your supervisors inland in Ukiah have done to try to weaken the Coastal Act over the years. There is reason for concern no matter where private attacks on the public interest are launched.

Unfortunately, the entire California coastline is a commons, and that subjects it to the sort of potential tragedies Garrett Hardin wrote about in his famous editorial.

You wrote: “Regarding private property rights: Owners that have been denied any access or any use of their land by the commission must be compensated for their land. However, such “takings” are rarely the case.”

And are not the case here, though the City of Half Moon Bay decided not to press the issue. Essentially, all uses must have been stripped from a property for a true takings to have taken place. Yet the City of HMB eventually allowed for 19 dwellings on the property in question, conforming to the presence of the “wetlands” as it did so. That was less than the poor little multi-millionaire developer wanted out of his relatively small, speculative, initial investment; and he figured the chances for a greater profit through lawyering up were more attractive. He was right about that, luckily getting a far-right judge on “property rights.”

It’s all about the money, and the City of HMB, now with a city council that itches to appease developers (some of this has to do with “Old Guard” agricultural landowners wanting to be free to sell off for the “final crop”) had no stomach for sticking up for government’s regulatory powers. (Perhaps they were a bit afraid they might actually succeed on appeal, but I have no way of knowing that.) They took the first deal their attorneys could drum up to create a payoff for the developer. They got out of the effort a well-pursued appeal would have required; and they managed to throw in another property they want developed. They probably also figured the $18 million that the city might have to pay could be absorbed without bankrupting the city and could be offset partially by selling off that portion the land on which development could be allowed. Any simpleton could scheme that out. And it becomes more plausible if your have lived around here for a few decades and see how the factions (predictably) work.

Don’t imagine for a moment that the four council people in HMB cared a whit about the possible effects of their oddball legislative manuever involving Assemblyman Mullin on the rest of the state’s heavily pressured coastline. As you can see by the messages, people going for the money locally care only about the here and now.

Hang in there with your to-the-point, logical, and objective messages. Daylight drives our local coastal vampires crazy.

Carl May

Non-residents of HMB clearly have a direct stake in AB1991. It’s a state law and has a direct impact on the future enforcement of state environmental laws as well as the Coastal Act.  Assembly members and state senators from all over California get to vote on this issue.

Mr. Gossett’s quotations from Walker’s decision are irrelevant to the California Court decisions regarding the “vernally wet” definition. Walker’s decision concedes that the City was right in its application of law but then concludes - in a legally adventurous string of findings - that the City “took” the property by muffing a drainage project in 1984.

The City Council of y2000 - Naomi Patridge, Toni Taylor, Jerry Donovan, Debbie Ruddock, and Dennis Coleman - voted unanimously to support denial of the project because the applicant refused to accept any reduction of the number of houses due to wetland evidence. The Coastal Commission’s y2001 hearing which reduced the number from 83 to 19 validates the Council’s vote.

The Walker decision’s “takings” scenario was a prejudicial string of assumptions belying better evidence and reading as though it were written by the plaintiff’s attorneys. It should have been appealed. There was a strong chance of success and the cost of an appeal was a heck of a lot less than than the settlement.  It may even have been less than what we are now paying - and have apparently been paying for the past two months - a Washington law firm to lobby the legislature for AB1991.

Appealing the judge’s decision was a high stakes crap shoot.  Maybe the City would have been successful in reducing the size of the judgment or maybe not. 

If the judgment was upheld,  the City’s debt would have mushroomed to $50 million.  There isn’t a prayer that the City could raise that amount of money.  The City would have ended up being dissolved.

The settlement was the logical course of action.  The City Council got the amount of money reduced which is the exact same thing that the appeal was trying to accomplish.  It also ended the cloud of uncertainty hanging over the City.  That was critical.

I know the settlement angers some because the judge’s decision is now the law.  That’s what happens when you go to court. Someone wins and someone looses.  Unfortunately,  here everybody, maybe except Keenan, looses.

So my question is how are we going to get $18 million?

The settlement was illogical. The original award was over the top and would easily have been reduced to something less than $18 million because the project hadn’t received final approval.

We should not lose sight of the fact that an appeal with good prospects was dropped in favor of this high risk approach.

Carl,

Just to clarify, I live in Novato and own vacant land in the Gualala area. I also participated in an appeal to the Mendocino County Board of Supervisors related to a project that was approved by the Coastal Permit Administrator despite clearly failing to conform to numerous provisions of the LCP.

There is no question that the Mendocino County Board of Supervisors is very hostile towards state and federal environmental laws and the Coastal Act in particular. If AB1991 passes, they will use special legislation to circumvent environmental laws in that county, too.

Everybody is entitled to their opinion about the verdict and settlement.  This wasn’t some LA OJ jury trial.  This case was heard by a federal judge wrote wrote a 170 page decision. 

The City after advice from an army of expensive lawyers decided to settle also shows that they agreed with the judge.

To me,  the appeal was the high risk avenue with horrible consequences should the City loose.  This was the smart thing to do.

Now we either need to get the law approved,  which unfortunately many HMB’ers want to defeat, or find $18 million.

Comment 46
Fri, April 18, 2008 11:43am
Ken King
All my comments

Steve Hyman: “The City after advice from an army of expensive lawyers decided to settle also shows that they agreed with the judge.”

The pro-growth majority picked a firm to do its bidding, which was to negotiate a deal with Keenan; Lawyer John Knox as much as said that was their preference at the January citizens’ “workshop” on Beachwood.

Anyone with a degree of critical judgment who read Judge Walker’s tormented 167 page decision would recognize the decision would not stand up to the scrutiny of a jury of Walker’s peers. Without even arguing the facts on the ground, which he cherry picked (Terry’s words), he wove together a takings decision by confounding physical and regulatory takings as applied in this case: despite his hard work trying to stitch these two ideas into a seamless cloth, he failed miserably. This will be rectified one day when some other defense leans on it and it gets a second look by an appeals court.

The point is that Knox, the hired hand, is doing the council’s bidding; Barry has it exactly right, the settlement agreement is not even subtle about it, having the “upset price” immediately follow the plan for the legislative approach in the same paragraph of a seven page document. Instead of the shooting the dog image though, I rather think of it as the Jonestown Kool-Aid chaser.

Are any of you folks espousing your opinions on the notion that Walker’s decision can be succesfully appealed have any sort of financial stake in the matter? Do you live in HMB and are willing to take on the risk of having to fork out the entire judgement? Somehow I think the answer would be a… no.

I know how we can pay for the coastal commission’s actions… Let’s have a toll both on the west side of of 92 right before main street. If you are NOT an HMB citizen, well you will have to pay 2$. I think that would work.

Ken,

Of course the City Council picked a new law firm.  I don’t think many people were in favor of retaining the old law firm that cost us over $5 million in fees and lost a lawsuit costing us another $41 million.

Appealing a lawsuit is a crap shoot.  Who knows what 3 other federal judges would decide.  They may have thought their buddy was correct.

And while I respect your opinion,  you’re no federal judge so you know as little about the outcome as me.

And I have to tell you that it is foolhardy to roll the dice with a $50 million lawsuit on money we don’t have.  At best,  and I think that would have been an amazing fantasy outcome,  the judgment would have been reduced by half.  With the settlement,  it was reduced by almost 60%.

I also think the settlement was actually pretty creative with the chance of changing the law so we don’t have to come up with the money.

Its likely we will never agree.  I think Beachwood was an incredibly expensive fight we never should have had.  There is not one thing special about this flat highway fronting infill tract other than it has some weeds on it.

When I point this property out to all of my clients as part of disclosure and perverted humor,  they stare at it in amazement and can’t believe the foolishness of the whole thing.

The large tracts to the north probably also had these wetland weeds on it but they’ve been turned into farm land. 

Unfortunately,  I don’t feel that Kodak moment when I drive up HWY 1 passing McDonalds and then the beautiful Stop the Traffic Light Sign to stop and take in the splendor of the weeds.

Maybe we can have some fitting monument placed here in testimony to the over priced piece of dirt we bought.  Of course,  this will never be approved by the Planning Commission because it casts some shadow over the weeds thwarting their growth.

AB1991 was a huge mistake. Suddenly the settlement became the problem of all Californians, as the city got Mullin to carry foul water for it in the state legislature. People who previously did not give a damn about how HMB handled its problem suddenly did because their ox was now being gored.

One can only guess at the reasons something so stupid is being tried. Ignorance of the many elsewhere in California who would be drawn in? Inherent disdain for coastal regulations in general? Arrogance, thinking they could lay off any failure of such legislation to go through on “obstructionists” who would forget history and abandon principles? Hope that the stupidity would succeed in spite of all, as other stupidities sometimes do in politicized California. The possibilities go on…but not on to one good reason why this bill should not be aborted for the good of all.

Carl May

Adam Lindgren is a fine attorney. He and his firm had an excellent record in court for HMB until they ran into an activist ideologue in Federal court. Given the tortured and inconsistent string of findings in Walker’s decision which disregarded better evidence it is unlikely any attorney could have prevailed with him on this case.

As the letter from the Coastal Commission (posted on this site) discloses, the California Attorney General would have been at our side during an appeal. That counts for a lot, especially since we would have been dealing with an Appeals panel that couldn’t help but be more moderate than Walker -  Walker being the wing tip.

Comment 51
Sat, April 19, 2008 10:56am
Ken King
All my comments

Steve,

The city chose a law firm willing to carry out its plan to negotiate with Keenan, exactly what its primary constituency, people like you lobbying long and hard for them to settle, not appeal. Given your full-court press (you will do as a surrogate for the development interests on the Coastside) the council did not seriously consider appealing. To claim they were following the best legal advice is a canard, especially now that everyone can see that the Coastal Commission had weighed in offering to help fight the appeal along with California’s Attorney General.

You say an appeal would have been a “crap shoot,” and that neither of us has any certainty about how events would have gone or how expensive it would have proven. The uncertainty of appeal in the company of co-defenders like California’s Coastal Commission, the State’s Attorney General, many other coastal cities and the environmental organizations we see weighing in should erode a degree of that solipsism you enshroud yourself in about the eventual outcome.

Going back to Judge Walker’s decision, the reaction of the old guard, real estate and business interests, and the property rights folks was universal acclamation for the judge’s decision while condemning the malfeasance of past councils for upholding HMB’s LCP, as well as the Coastal Act from which it derives. You write, “I also think the settlement was actually pretty creative with the chance of changing the law so we don’t have to come up with the money.” The Coastal Commission’s conclusion regarding the Glencree component applies to the entire agreement: “The Commission believes this is an inappropriate and opportunistic overreach.”

All of this for a pile of weeds across from McDonald’s - it’s not close to McDonald’s btw - maybe you are making fatuous remarks about the wrong property?

Ken,

None of us know what was really said behind closed doors.  But its tough to negotiate when you tell the opposition that just won a $41 million judgment that you won’t appeal.  There would be no incentive for the other side to move an inch.  Just dig in your heels and say give me $41 million now please.

I think the appeal was a smoke screen to buy time to work out a deal.  I also have to wonder how seriously they thought the chances of getting the bill approved was.  What this did accomplish was it put off writing a check for a few more years,  probably the same time it would have taken to go through the appeal.

I can’t tell you that I’m surprised the Coastal Commission and Sierra Club are against this settlement.  To me and many people I know,  that means this settlement scares them and their power and influence are evaporating.  And that’s a good thing too.

And as far as McDondald’s goes,  I said Beachwood was near it.  I bet some of the better golfers on the Coast could hit it from a nice clear part of the Beachwood property.  Although,  I hear the weeds are a horrible hazzard.

Steve Hyman: “I think the appeal was a smoke screen to buy time to work out a deal.”

Well there is something we agree on, except it was a particularly bad deal. You look to your elected representatives to keep your fiduciary interest primary, not the person’s they’re negotiating with.

I know many people here have repeatedly said this was a bad deal.  The City wasn’t bargaining from a position of strength.  They were in a $41 million hole.

That being said,  what could you offer Keenan that would motivate him to settle now instead of pushing for the whole enchilada plus interest?  As it was,  he agreed to wait a few years for money.  That was a generous concession cause it gave us a few years to find the money.

“Settling” for $18 million while claiming it would bankrupt the City, irrevocably dropping the appeal, and then crying to the legislature for unprecedented exclusions from major state laws to save the City from its own decision is a very high risk gamble.  The appeal route was a much, much lower risk.

Everyone is ignoring HMB’s attorney’s answer to a question I asked at the appeal workshop.  My question was “What happens if the City simply refuses to pay?”  The answer, from the attorney, was essentially “Nothing—they can’t take money that the city needs for provision of city services.”  Since HMB’s budget (as nearly all government budgets) is basically hand-to-mouth, there is no extra money beyond what’s needed to provide services, therefore the judgment would have been a hollow victory.  Under the Chapter 9 bankruptcy provisions, the developer may never have seen a dollar.

Steve Hyman, since you don’t think that any wetlands on “infill” properties are worth protecting, could you please identify the location of some wetlands that you think are worth protecting?

And to those who say or imply that limitations on development due to the Coastal Act are unconstitutional, that’s simply untrue.  It’s been litigated and settled.  The Coastal Act has been upheld.

The U.S. Supreme Court’s position is that a takings has only occurred when no viable use remains on the property.  Are all of you anti-environmentalists prepared to argue that 19 houses isn’t a viable use?  Under U.S. Supreme Court rulings, even a downzoning that reduces the property value to less than the original purchase price is not a takings as long as some value remains such that there is someone, somewhere, who is willing to pay a non-zero amount for the property.

Mike

Lets say HMB went forward with the appeal. Either the decision would have been overturned, reduced or upheld.  The settlement reduced the judgment by almost 60%.  That’s not too bad other than its still a staggering amount of money to find.

It also put some sort of closure on this.  A 2-3 year appeal could have made it hard for homeowners to sell their homes because some prospective buyers may have been afraid to locate here with such a huge judgment undecided.

Leonard

I’ve been blasted for being insensitive to the wetlands weeds on Beachwood but you seem to think its ok to ignore a federal judgment.  Look who’s cherry picking things.

Lets get real.  These weeds are on many undeveloped lots,  big and small.  I sold a 2 acre parcel in Moss Beach surrounded by roads and homes on all sides.  There were some sensitive weeds on it which caused the buyer to be careful of where to put his home.  So in the middle of his property he will have a bunch of weeds.  What a joke.

To many,  its the principal.  From a pragmatic point of view, this is an infill lot.  And its incredible that we have wasted so much money on this.

Now we are going to own this and we grossly overpaid for it.  Everybody, except the property owner,  lost.

Settling an outrageous award for an amount that is still claimed to have the potential to break the city cannot be viewed as “closure”.

“That being said, what could you offer Keenan that would motivate him to settle now instead of pushing for the whole enchilada plus interest?”

It should not surprise you that I would have offered him squat, then appealed and expected an easy reversal. The cost of litigation over two or more years is a speck next to more than 40-years of annual payments of $1.25 million.

Steve, you dodged answering my question (no surprise).  Please describe where there are wetlands that you think <u>should be protected</u>.  Please do not refer to any location that you think shouldn’t be protected.

Also note that regardless of whether what’s growing there are “weeds”, a pejorative that you use to denigrate those who believe there is valuable habitat there, some of the “weeds” aren’t necessarily the most important part—they are an indicator of the presence or possible presence of wetlands.  Wetlands are a complicated ecosystem, which is part and parcel of why they’re biologically valuable.

Leonard:

A bunch of messages above I wrote:

“Essentially, all uses must have been stripped from a property for a true takings to have taken place. Yet the City of HMB eventually allowed for 19 dwellings on the property in question, conforming to the presence of the ‘wetlands’ as it did so.”

That was based on the same very well known Supreme Court decision that you refer to. Was this argued in HMB’s appearance before Judge Walker? Amazing legal incompetence if it was not brought up. And amazing ignorance on the part of HMB government if they do not know about the current operating definition of a “taking.” If it was argued, the judge’s ruling was obviously contrary to a prior Supreme Court decision, which should have made an appeal on this matter alone a slam dunk. But I’m not an attorney and don’t understand any legal manuevering that may have nullified this matter.

The whole business of possible takings and coastal wetlands under the Coastal Act has been litigated ad nauseum in several prominent cases in Southern California. It has not escaped notice that HMB government its real estate greedseeds (“greedseed” = a hayseed more interested in the final crop than agricultural products) is behaving very much like SoCal coastal towns and counties dominated by right-wingers and real estate profiteers.

Which gets to another matter, which is that the Beachwood decision by Walker may be used to peck away at the current definition of a “taking.” This is constantly a pursuit of “property rights” law firms. So the City Council of HMB and its law firms might be responsible for a precedent that will have ramifications even beyond California. And they wonder why people outside HMB are slamming the sleazy settlement?

Carl May

Ken, 

I think this attitude is dangerous,  if not scary.  It is the height of irresponsibility to risk financial ruin on a gamble.  The potential of losing is too high.  Settling this was the logical thing to do.

Leonard,

I can’t look at Beachwood and see anything special. Its not part of the ecosystem that is going to save the planet.  Its near a sewer plant, homes, McDonalds.

As to what is special to me are the coastal bluffs, the mountains.  It wouldn’t bother me if all the land on both sides of HWY 1 from Ocean Colony to Montara were developed.  And since we can only build around 100 homes a year,  that’s decades till this place is built out.  There are a bunch of PUD’s in HMB that are going to be tough to develop.

There’s quite a lot of open space already here.  And more can be gotten if you want to write a check.  Unfortunately,  what I see here is that people want it for free.  The Burnham Strip is a perfect example of that.

Anyway,  its apparent to me that many of the posters here have different views than me.  And that’s OK.

And the good news is that the attitude here is changing again.  The shocking judgment has woken up the silent majority here.  What has happened in the past won’t be repeated,  hopefully.  If for no other reason than the City won’t have the cash to litigate thigs for decades.

Always speculative to count a silent majority before it has been heard from. When the citizens of HMB recognize how they were prematurely sold out, how they might be taxed to pay for the sellout, and how the settlement attempts to abandon major categtories of environmental protections for the city and load on more effects of unmanageable overpopulation, many of them may well have feelings very different from the vocal, developer-friendly, environment-disdaining, “property rights” minority.

The above nascent attempts to use Beachwood as a wedge issue, a stalking horse for avoidance of state and national environmental regulations elsewhere in the city, and an inhibition on future enforcement of environmental regulations were predicted. It was so obvious this would be a tactic by overdevelopment interests in that long-misguided city.

Steve, you are the one who thinks paying $18 million bucks to Keenan, should AB 1991 fail, is a bargain for the public, but you gloss over the true cost of $50 million including financing the debt. So don’t preach to me about the “height of irresponsibility” in risking financial ruin because that irresponsibility has already been reached and exceeded by your associates.

I think paying $18 million is better than $50 million.  0 is best but I think the City had an uphill battle in court.

I will also tell you that if the financing has to be approved by the public,  the chances of that happening are worse the AB 1991.

I vote for the City selling off some of their real estate holdings to settle their obligations.  I’ve been saying that since day one.  They need to contribute significantly to solving the problem they created. Otherwise,  they’ll never learn from their mistakes and we’ll keep being asked to bail them out.

And I’d be willing to give them a huge discount on my commission should they list their properties with me.  You see,  not all pro-grow people are evil and greedy.

Save the $50 million bogeyman for your grandkids’ slumber party, Steve. The $41 million Walker judgment was 4 times higher than even the plaintiff expected on his most hopeful days. Excessive awards are always reduced substantially.

Mr Ferreira,
If you are so certain that the plaintiff only expected $10.5M, why was the city estimate of damages (equivalent number to the $36.795 from Gimmy for Yamagiwa, page 102 of the Yamagiwa decision) $26.6M?
I you, and others, know so many “facts”, and assert them continuously, it would be helpful to this forum to provide the basis for your assertions.
Then we could move to a constructive solution for the community.  That is what we are all seeking, right?

Mr. Gossett’s citation of appraisal work conducted in response to specific judicial instructions regarding a pending judgment is disingenuous to the conversation as to the probity of the judgment itself.

Change the word “probity” to “merit” in the preceding post.

“And I’d be willing to give them a huge discount on my commission should they list their properties with me.  You see, not all pro-grow people are evil and greedy.”

Of course they are not. One would not want to think altruistic realtors in HMB would try to make an opportunistic buck selling off the city’s property assets.

Maybe the discount real estate sales office in Montara could be consulted on how to structure a real savings on sales commissions?

Carl May

HMB City Council,

PULL THE TRIGGER - FILE FOR BANKRUPTCY!

The City Council Majority has committed to an expenditure regime without rational expectation of success.  AB 1991 is DOA, yet funds are being expended on Orrick beyond that required in the Settlement Agreement. This is not ‘rational’ behaviour.

Bankruptcy represents an opportunity to set aside all, or a part, of the higher than justified cost of the Settlement Agreement.

Dissolution presents the opportunity to re-organize under court supervision, minimizing a sell off of public owned assets.

For better or worse, the Settlement Agreement has set a cap on the financial risk. All costs since 1 April 2008 on legal costs and anticipated legal costs represents a raising of this cap.

Ken Johnson

The City’s problem is that it spends and owes too much. One solution is reorganization under the bankruptcy code. But the City council sees reorganization as the problem and more spending as the solution. More spending can never be the solution for a City that already spends too much. Even if AB 1991 were to somehow pass, the City spending on beachwood will keep growing because other permits will still be needed.

Some seem disappointed that they couldn’t bury the City with a $50 million judgment so now they want to take the irresponsible tact of ducking their obligation by hiding in bankruptcy. That’s a poor option.

Assuming that the bill doesn’t pass,  the City needs to liquidate some of their real estate holdings to satisfy the judgment.  They probably own enough to take care of all if not most of the $18 million.

Without the City coming up with a lot of the money,  the public isn’t going to bail them out. The City needs to feel the pain from their past actions. There isn’t a prayer that the a bond would pass.  Otherwise we will keep wasting our money on silly lawsuits and have more judgments.

The one thing we agree on is that the spending here is out of control.  The least painful of all the cuts is to lawyers,  except to them.  But even if you took a meat cleaver to the budget,  you won’t find $18 million.  So the land has got to go.

Of course,  if you really want to cut expenses,  dissolve the City and let the county run this place like they do the rest of the coast.  They couldn’t do a worse job and they have deeper pockets. And then we aren’t wasting money by duplicating expenses on things like planning and building and staff.  And then there will be no need for the City Hall building so that can be sold for hard cash to settle part of our debt too.

The amended AB 1991 is scheduled for hearing 30 April. A small change in strategy. It is now a ‘Non-Urgency’ bill - majority only vote required. Also, added as Coauthor: Assembly Member Ma.

Although it is unlikely to make it out of the Committee on Local Government, I would like to see it make it to the Assembly floor. It would produce an ‘anti-environment hit list’ for the November election.

If you liked the Settlement Agreement, you will love reading: The Amended AB 1991 full text.

Ken Johnson

Comment 75
Sat, April 26, 2008 3:39pm
Jim
All my comments

I am a prospective new resident of Half Moon Bay, having just put an offer on a home. We love the house and the low-growth coastside community.  However, this story has just come to my attention as part of escrow disclosures and concerns me greatly. Has anyone analyzed what impact the failure or passage of AB1991 might have on HMB housing values, which are already depressed due to the chaos in the mortgage lending business?  I’m wondering if HMB is a safe investment, which might explain why existing homes are not selling as well as other Bay Area communities…?

Jim Davis

Jim,

You first and foremost need to have this conversation with your Realtor.

But I don’t think anyone knows how this will play out.  Will AB1991 pass?  If not, how will HMB pay for the debt?  Sell land, bond issue, raise fees, cut budget are all options should Plan A not fly.