Opinion: City should do the right thing and win on appeal


Posted by on Mon, December 10, 2007

Judge Walker handed Chop Keenan an arbitrary and capricious victory that should lose if the City appeals. The case revolved around a simple argument, that the city created wetlands in 1984 where none existed before. The City provided witnesses and testimony to the contrary, but the judge’s summary findings of "fact" only cited the witnesses’ for the plaintiff, none from the City.

There is lots of blame and a host of irrelevancies spewed by many who, while acting doleful, are actually gleeful about this loony decision. Well known operators like Terry Gossett (Californians for Property Rights), George Muteff (past candidate for HMB City Council) and CCWD’s Directors Chris Mickelsen and Jim Larimer are wildly pointing fingers at Mike Ferreira and other League for Coastside Protection-backed council members of the late 90’s and post-2000 years for standing up to Developer Keenan’s blustering legal assault. Remember that Keenan had twice lost in State court claiming there were no wetlands at Beachwood. Blaming the officials forced to defend the city against this wealthy and determined individual is merely politics as usual here on the Coastside.

Having moved onto the east end of Terrace in 1976, and living just 120 feet across from the southeast edge of Beachwood, I grasped that this area was a wetland biome in my first encounter. Why? Maybe it was the two mature Arroyo Willows on my property (photos and description of where they’re found: http://www.calflora.net/bloomingplants/arroyowillow.html , or the patchwork of willows extending north and northwest into the fields that constitute Beachwood.

Leaving aside the hydrology the case turned on for a moment, the inhabiting birds were wetland species. Lincoln sparrows and Rough legged hawks in the winter, breeding Yellowthoats and Swainson thrushes in the summer. There was an intermittent creek that flowed from a ravine near the high school southeast past my property and north out into Beachwood. By mid summer, some stagnant pools usually remained with aquatic garter snakes and Rough skinned newts, dragonfly nymphs and water striders. There were other wetland plant species like grasses, mint, sedges, a whole community that did not just magically appear the year I arrived. However much of this disappeared after 1984 because of the engineering effort to alter the drainage of the overall area.

Despite the biological details I mention, most of the Beachwood case focused exclusively on hydrology, the flow and containment of water pertinent to the property. Having read Walker’s findings with my interest of decades following these issues here, there is much I could say, but won’t to try to keep this brief. Here are some observations correlated with some of his numbered findings—there are 384 in all, and out of all of these findings, not one favors the City’s presentation. It’s hardly an exaggeration to call this one-sided.

16-17 An original condition: runoff from surface area B "flowed westerly in a creek along Beachwood’s southern boundary." Since when aren’t creeks wetlands?

50 This creek was "incorporated into the storm drain system" in 1984. Does this support the case of how the city "created" wetlands?

25-28 Two reports say the "depression" in the middle of the property "apparently causes ponding," which Walker denied because of the word "apparently." Because they didn’t actually see it, it did not exist. (Really, that is Walker’s harebrained conclusion.) If the depression in the middle has wetland plants like mint and sedges, plants that thrive under water, is it a reasonable conclusion ponding does not occur? Can not occur? This is more than a little arbitrary. But key is what he fails to note, that there was a significant depression the consultants did see.

40-72 Detailed account of TAAD project, especially the alleged mistakes of the contracted firms according to the notes of Mr. Gary Whelen. In reading Walker’s decision, it is fair to surmise the case for the city was undermined by Whelen’s testemony and notes. Who, then, is Gary Whelen, what did he do, what was his motive for testifying on behalf of the litigant, and why did he go unchallenged as a witness?

52 (My favorite.) "Gary Whelen, coincidentally a long-time Terrace Ave. resident, was the City’s inspector during construction of the TAAD project," and was "the City’s eyes and ears on the project." Not mentioned, however, nor does it appear to have been brought up, is the fact that Whelen owned a lot on east Terrace near the southeast corner of Beachwood, where the the aforementioned creek (16-17) flowed into Beachwood. Whelen’s property was across the street from mine and subject to ponding (I have photographs showing this).

69-70 Because much of the work the City undertook benefited Whelen personally, I have trouble seeing him as a credible witness. These remedial (and most likely, unpermitted) ditches drained his property at city expense, as much as they aided Beachwood.

63-68 A critical dirt shortage. Needed fill at Hwy 1 end of Silver, allegedly took it from Beachwood. Besides there being no proof this happened, the other end of Silver was a huge angular hill they scraped away at a year and a half to create the foundations of Highland and Silver. Taking fill from Beachwood when the 500 block of Terrace stood in the way is unlikely to have happened when the opportunity of continuing to degrade the Silver end of the hill provided ample fill. Standing on top of Silver today, you’d not guess they carted off as much as they did - it’s still that steep.

74 "The TAAD project totally altered the topography of Beachwood, and consequently affected the flow of surface water onto and off the property." The word "totally" is unwarranted, even given Whelen’s description of his own, and the other project participants’ general ineptness. Reading the saga of the project unfolding is disturbing to an environmentalist such as myself: it ought to make anyone who is thoughtful squirm.

177 Judge claims no agencies before 1984 ever said there were wetlands there, so they could not have been there until the city created them. This is a cute piece of legerdemain to inflict his silly idea of how to compensate our erstwhile builder, Mr. Chop Keenan.

178 Of historical interest only: in September 1976, the same month I moved into my illegally permitted aquatic palace, the same planning commission that illegally approved my home being set down in an active wetland, affirmed that the planned 97 homes in Beachwood would have no "significant effect on the environent." The night they made that ruling, we were eating our dinner with about a dozen Pacific Tree Frogs crawling over our dining room window, catching the insects attracted by the light. I am sure the other hundred-or-so homes wouldn’t have bothered them any more than mine did, although, come to think of it, they aren’t here any more.

There is much much more to be said, especially about the zany economic reasoning arriving at the attribution of damages, but suffice it to say, that even if the city loses later, say at the level of the US Supreme Court, I doubt anyone will support guaranteeing the builder an out-of-sight profit on virtual homes when the US homebuilding industry is under water.

Ken has it right. The “water bullies” Mickelsen and Larimer are just exploiting this event to promote their own crony-developer agenda.

Uh oh. Maybe I shouldn’t have said that. I’ll probably be receiving another obscene missive in the mail from Mickelsen this weekend (see link below).


By the way, I heard that Mickelsen was once again giving people the finger at last week’s special City Council meeting on Monday. This is a guy who is an elected official—somebody who makes decisions about how to spend our money.

I really think someone from CCWD should be in charge of making sure he takes his medication.

Comment 2
Tue, December 11, 2007 7:43pm
Matt Berman
All my comments

I am so glad to hear someone saying what I have been thinking. On appeal, it’s unlikely that this lunatic decision, from a judge with a record of being overturned, would be upheld.

But even the worst-case scenario is that the court agrees with the decision but lowers the amount of the judgment substantially. The American court system is simply not in the business of deliberately bankrupting American cities.

Right now Keenan has the City over a barrel. With a reversed decision, or at worst a substantially lowered judgment, he’ll be singing a different tune.

Some who are more knowledgeable about such things have suggested that the City needs better counsel. Perhaps so. But whether they do or not, the City must appeal.

Comment 3
Wed, December 12, 2007 3:54am
Carl May
All my comments

Although I have no actual knowledge of such, it is reasonable to speculate the pro-overdevelopment types in city government may be resistant to approving an appeal if they see this as an opportunity to wedge open a development door by way of a settlement with Keenan. All kinds of things might be “justified” in the guise of not bankrupting the city. I do know players in this kind of legal game seldom show all their cards at the outset.

Carl May

Comment 4
Thu, December 13, 2007 11:46pm
Ken King
All my comments

If the City appeals, it will be with a law firm specializing in appeals. It’s a complex undertaking, and an expensive one, but the options aren’t good either way. The council majority doesn’t have a taste for this and might have rolled over much easier for Keenan had the judge not handed him such a one-sided, outlandish victory.