HMB lawyers issue city’s statement on AB 1991

Press release

By on Tue, April 15, 2008

We just received the following statement from Half Moon Bay’s attorneys via email. My initial reaction is in the comments. Let’s hear yours.

Statement by Half Moon Bay

The City of Half Moon Bay is faced with two options, and only two options - either AB 1991 passes or the City must pay Mr. Keenan $18 million, a cost which will seriously burden the City and its citizens.  Although people may disagree with the specific terms of the settlement, it was the best the City was able to negotiate. Now is not the time to ask what might have been.  The combination of specific facts of the Beachwood litigation are unique and, as a result, AB 1991, the legislation approving development on Beachwood and Glencree, would not set a precedent for any future exceptions to California environmental regulations because:

1.  The wetland conditions on the Beachwood property are the man-made result of a half-completed grading and drainage improvements undertaken by the City of Half Moon Bay (Exhibit I); and

2.  Development on the Beachwood property was always part of the City of Half Moon Bay’s growth plan and vesting tentative maps were approved in 1990 after an environmental review by the City that found no significant impact on the environment (development of the pre-existing natural wetlands in the southeast corner of Beachwood was prevented, as it is under this agreement), before delays caused wetland conditions to develop (Exhibit II); and

3.  The City of Half Moon Bay faced a $41.1 million judgment concerning Beachwood that could have bankrupted the city and forced cutbacks in vital city services (Exhibit III).

Regarding the inclusion of the 12-acre Glencree parcel that is adjacent to Beachwood, the developer required the inclusion of that parcel in the settlement agreement.  In addition, it should be noted that Glencree also had been previously approved for development, at approximately the same time as Beachwood with no adverse environmental impact.  From current observations, there appear to be wetland conditions on Glencree that one can reasonably assume developed after the construction activities by the City in the 1980s.  (See also Sierra Club statement that "even Judge Walker acknowledges the Glencree wetlands!")

All three facts must be present for the California Legislature to ever use this legislation as precedent for permitting development on wetlands, whether naturally-occurring or manmade.  Only having one or two of the criteria present would not be sufficient.

For example, if a wetland is manmade but the other two facts are not present, it would not meet the requirement for legislative action.  If a city has a vesting tentative map that is approved for a property and wetlands later occur on that property, that would not meet the requirement for state legislation permitting the development if the city does not also face a court judgment that would result in the city’s bankruptcy.  If a court enters a judgment for an amount that forces a city into bankruptcy because of manmade wetlands created by actions taken by a city, such a situation would not meet the requirement for legislation if a vesting tentative map for the property was never issued.

In order for this legislation to be a precedent, all three specific facts would have to be present.

Orrick, Herrington & Sutcliffe LLP
Columbia Center
1152 15th Street, N.W.
Washington, D.C. 20005-1706

Contacts: Lanny J. Davis 301-928-7532 and Josh Galper 202-744-4047