HMB’s Q&A about AB1991 translated from spin into plain English

1.  What is AB 1991?

AB 1991 is a special local rescue bill to help the City of Half Moon Bay avoid payment of an $18 million settlement for a $41.1 million court-imposed liability resulting from a dispute with the owner of property known as Beachwood. The bill is narrowly and carefully drafted to preserve the City’s and State’s commitments to protecting wetlands and the environment, and it sets no precedent for building on land with manmade wetlands. This is because AB 1991 is predicated on three facts unique to this situation only that combined into a perfect storm for the City: (1) the wetland conditions on Beachwood are man-made, accidentally resulting from a City drainage project; (2) development was approved in 1990 after a review found no environmental impact; and (3) the City faced a court-imposed liability that would have bankrupted the City. The bill explicitly states in its preamble that, without these three facts, it cannot be used as precedent.

AB1991 is a bill that will exempt a developer from all state and local environmental and planning laws in exchange for forgiving a debt of $18 million that the city of Half Moon Bay agreed to pay him.

2. What does AB 1991 do?

AB 1991 is a narrowly drafted bill that applies only to Beachwood and the adjacent property of Glencree, and it re-authorizes the subdivision maps for these properties originally approved in 1990 to help the City settle costly litigation and avoid payment of an $18 million settlement of a $41.1 million court-imposed liability.

It also provides a useful template for the future conversion of state and local environmental and planning laws into cash.

3.  Why didn’t Half Moon Bay appeal?

Although the City felt it had a strong appeal, litigation is costly and unpredictable, and the downside risk of having to pay a $41.1 million judgment was simply too great. With this settlement, the City now has only two options: (1) either AB 1991 passes; or (2) the City must pay the property owner $18 million, a cost that will seriously impact Cit y services, including public safety.

We’ve never opposed building out these lots beyond the legal maximum. And, although we’re telling you it will cost $18 million, we’re not talking about the indisputable fact that it will cost a lot less. That’s one reason we agreed to the settlement without consulting the Coastal Commission, the citizens of Half Moon Bay, our state Assemblyman, or Senator. Finally, although there’s no evidence that paying the settlement will affect public safety, you should take our word for it.

4. Is there some other way to pay the owner and save this property?

No. No organization, environmental or otherwise, has offered to pay the $18 million for the property or provide the City with the funds to do so. Furthermore, there’s nothing to save. Development of Beachwood and Glencree has always been a part of the City’s growth plan, and the properties are surrounded by residential subdivisions. Simply put, this is not the kind of property that the Coastal Act was meant to protect.

No. We’ve made that impossible.

5. How many authorizations and permits does AD 1991 bypass?

None. The proposed development received the required authorizations when the project was originally approved in 1990, including those under the California Environmental Quality Act (CEQA). AB 1991 would reinstate these approvals despite the lengthy delay due to litigation.

A Coastal Development Permit (CDP) could have been issued without a problem at the time of the original City approvals because no wetlands existed on the property. In fact, a U.S. District Court found: "The development history of this Property has been marked by a long series of approvals by the City, the California Coastal Commission and the California Department of Fish & Game. None of the agencies ever raised any issue regarding wetlands on Beachwood in the pre-TAAD years, and this lack of concern continued well after the construction of TAAD."

All of them. If it didn’t, we wouldn’t need a bill.

6. Are there wetlands on Beachwood?

Yes. The southeast comer of the Beachwood property contains wetlands, which were protected by the 1990 subdivision approvals and will continue to be protected under the settlement agreement.

Other portions of Beachwood and Glencree are subject to wetland conditions as a result of City construction activities. However, federal law does not consider these areas wetlands because they fall into an exemption for wetlands created by construction activities.

No federal agency has ruled on the source of the wetlands on Glencree. However, we hope that by telling the feds that we created the wetlands we can avoid paying the developer $18 million.

7. Are the wetlands on Beachwood federally protected?

No. In addition, we have no reason to believe that a federal permitting process is required before development. In 1989 and 1999, the U.S. Army Corps of Engineers said no permitting was required, and we have no reason to believe this time will be any different. Meanwhile, the previously-identified wetlands in the southeast comer of Beachwood will continue to be protected under the settlement agreement.

We hope not, but we have no idea whether there are federally-protected wetlands on Glencree.

8. Will endangered species be harmed?

No. No endangered species have been observed on the property during intensive review over many years, and the property does not contain habitat suitable for such species. A CEQA review of the property prior to approval of the subdivision plan concluded that no protected species would be affected by the development.

We have no idea. No one’s looked in 20 years.

9. Does AB 1991 "sell out" coastal wetland protection for all of California in order to protect Half Moon Bay from bankruptcy?

Absolutely not. AB 1991 is narrowly drafted so that it will only apply to Beachwood and Glencree, which have always been part of the City’s residential development plan, and no other properties. The bill is also carefully predicated on three facts unique to Half Moon Bay’s situation only that combined into the perfect storm the City now faces: (1) the wetland conditions on Beachwood are man-made, accidentally resulting from a City drainage project; (2) development was approved in 1990 after a review found no environmental impact; and (3) the City faced a court-imposed liability that would have bankrupted the City.

The bill explicitly states in its preamble that, without these three facts, it cannot be used as precedent.

California’s coastal wetlands, both natural and man-made, will continue to be protected by the Coastal Act and the California Coastal Commission on a state level, and the U.S. Army Corps of Engineers on a federal level. This bill has zero impact on these protections.

Yes.

10. Won’t developers in the future ask for special bills like AB 1991 that give them an exemption from the Coastal Act?

No. As we have said, the circumstances that led to AB 1991 are unique and will not be repeated. Specifically: (1) the wetland conditions on Beachwood are man-made, accidentally resulting from a City drainage project; (2) development was approved in 1990 after a review found no environmental impact; and (3) the City faced a court-imposed liability that would have bankrupted the City. Because this unique combination of facts will not occur again, AB 1991 is not a precedent for permitting development on wetlands, whether naturally-occurring or manmade.

Yes.

11. Does AB 1991 have any effect on how Coastal Development Permits will be issued in the future?

No. AB 1991 is a narrowly drafted bill affecting only Beachwood and Glencree. AB 1991 is based on the unique facts of the Beachwood litigation: (1) the wetland conditions are the result of half-completed grading and drainage improvements undertaken by the City of Half Moon Bay; (2) development was always part of the City’s growth plan and was approved in 1990; and (3) the City faced a $41.1 million judgment that could have bankrupted it.

Natural and man-made wetlands will continue to be protected by the California Coastal Commission and the City through its Local Coastal Program.

Yes.

12. Beachwood was originally zoned for 83 houses, and the settlement agreement allows construction of 129 houses. Why is the City allowing more houses on Beachwood than was authorized in 1990?

The 129 lots refers to the combined number of lots on Beachwood and an adjacent strip of land known as Glencree. AB 1991 authorizes development of 83 houses on Beachwood and 46 lots on Glencree, as originally planned by the City.

Good question.

13. Why is Glencree included in the settlement? I thought the litigation was over Beachwood.

The 12-acre Glencree parcel is adjacent to Beachwood. The City is facing pending litigation regarding Glencree that could subject the City to similar claims. AB 1991 would eliminate that threat to the City. Glencree had also 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 City’s construction activities in the 1980s.

We included Glencree because the developer told us to. It has nothing to do with the lawsuit that we settled other than the fact that the developer saw a chance to get it on the express track.

14. Does AB 1991 override the entire Coastal Act?

No. AB 1991 is narrowly drafted so that it will only apply to the properties of Beachwood and Glencree, both of which have always been part of Half Moon Bay’s residential development plan. AB 1991 does not apply to any property other than Beachwood and Glencree. The Coastal Act will continue to protect coastal wetlands through the Coastal Commission and Local Coastal Programs.
AB 1991 is limited to the unique circumstances of the Beachwood litigation and will not serve as precedent for any future legislation: (1) the wetland conditions are the result of half-completed grading and drainage improvements undertaken by the City of Half Moon Bay; (2) development was always part of the City’s growth plan and was approved in 1990; and (3) the City faced a $41.1 million judgment that would have bankrupted the City.
Because this perfect storm of unique facts will not occur again, AB 1991 is not a precedent for permitting development on wetlands, whether naturally-occurring or manmade.

If AB1991 didn’t override the Coastal Act, it wouldn’t be necessary. Any future damage to Coastal Act enforcement is strictly collateral damage, but it wouldn’t break our hearts, either.

15. How do you react to the fact that the California Coastal Commission voted unanimously to oppose AB 1991?

The Coastal Commission announced its opposition to the settlement agreement before reading the final bill or permitting the City to explain why it entered the settlement agreement, which would allow the City to avoid paying $18 million to settle a $41.1 million court-imposed liability.

It is ironic that the Coastal Commission, on whose advice the City originally relied when it denied a development permit for Beachwood, resulting in the $41.1 million liability, has now decided to oppose the settlement agreement that would allow the City to avoid this liability. The Coastal Commission did so with a predisposed set of opinions uninformed by the facts and without consulting the City, and thus resulting in misleading and false statements, as shown by the Commission’s inaccurate letter to the California Legislature.

The Coastal Commission didn’t get a look at the bill until the last possible second, but they knew exactly what was coming when they saw the settlement. We didn’t disappoint them. We’re dealing with this by disparaging their good will and legal competence.

16. Why did Senator Yee drop his name from the bill so quickly? What does that mean for the legislation?

We were disappointed Sen. Yee did not co-author the legislation. We hope he will support it when he learns all the facts - that the bill is narrowly tailored to Beachwood’s specific circumstances, that it does nothing to weaken environmental protections, and that it sets no precedent for the future. We commend Assemblyman Mullin for introducing the bill, and all parties intend to do whatever we can to help pass it.

Senator Yee agreed to be a co-author without looking at the bill. As soon as he saw the bill, he took his name off it.  Why do you think he did it?

17. Environmental groups have already come out against AB 1991. What is your reaction?

It’s unfortunate that they took this position before hearing all the facts before even seeing the legislation. We believe the bill’s text is explicit in creating no precedent for weakening protections for the environment, including wetlands of any kind. We have met with some of these groups and are reaching out to others to ask for their ideas and, if they are inclined, their help. We look forward to continuing to educate them on the facts.

We’re pretending to listen to them, but we’re also disparaging them in our testimony and in documents like this.

18. Is AD 1991 constitutional/legal?

Yes.

Has anybody seriously asked that question?

19. Can environmentalists prevent passage of AB 1991?

We can’t speculate. However, we are confident that AB 1991 will become law and are working hard to make that happen. We look forward to working closely with those in the environmental community who are concerned about AB 1991 to share the facts and to assure them that this bill will do nothing to weaken environmental protections. We hope they will appreciate the importance of this narrowly tailored, one-of-a-kind bill, which will help the City of Half Moon Bay avoid paying an $18 million settlement that would otherwise severely diminish city services, including public safety.

We ignored the environmentalists in the run-up to the settlement, and now we’re trying to convince them that night is day. It turns out that they’re not that stupid, but we’re betting the legislature is.