Californians for Property Rights

Have you heard about the Watershed Protection Ordinance that will soon be applied to all unincorporated areas of San Mateo County? The information below, put together by Emerald Hills Community Coalition, Friends for Fair Government, and Californians for Property Rights, will help you learn about the issue.

(Download here if you would rather print it out)

Recommendation for Immediate Withdrawal of Staff Proposal for Watershed Protection Ordinance

On 12/18/07, the Board of Supervisors approved a resolution to hold public outreach workshops and seek public input regarding the drafting of a Watershed Protection Ordinance. The intent of this new ordinance was to address the potential policy gaps identified in a 2001 Fishnet 4C study pertaining to actions that may impact steelhead and Coho salmon and their habitat (See Resolution dated 12/11/07 ).

It is the position of the Emerald Hills Community Coalition, Friends for Fair Government, and Californians for Property Rights that the Watershed Protection Ordinance being crafted by County staff should be immediately withdrawn from consideration by the Board of Supervisors because:

1. The proposed Ordinance does not address the policy gaps identified in the 2001 Fishnet 4C study, but instead uses a one-size-fits-all, no-growth zoning code that currently exists in the Local Coastal Plan with no regulatory or scientific basis for applying it to Bayside residential hillside developments.
2. The proposed Ordinance places an inappropriate, unnecessary, and inequitable financial burden on residential hillside property owners in unincorporated San Mateo County that would not substantially mitigate any perceived watershed protection issues.

Policy Gaps Identified in 2001 Fishnet 4C Study
Of the policy gaps identified in the 2001 Fishnet 4C Study, only two applied to non-coastal areas of San Mateo County:

• Designation of riparian corridors
• Sedimentation control policies

Designation of Riparian Corridors: This gap has already been filled by current regulations and needs no further policy changes.
Direction for conserving sensitive habitat is given in the General Plan’s Chapter 1 dealing with vegetative, water, fish and wildlife resources and is similar to that in the coastal zone. Buffer zones adjacent to sensitive habitats are to be established. Uses within buffer zones must be compatible with protection of habitat. However if no feasible alternative exists, land uses compatible with surrounding land uses are permitted in the buffer zone. The general plan directs the county to establish performance criteria and development standards which prevent or mitigate impacts to sensitive habitats (GP-1.32). Current San Mateo County Zoning codes establishes Resource Management Districts and (6325.2) requires supplemental review for proposed projects within those areas. The criteria for review prohibit significant reduction of primary habitat areas, change in ecological characteristics, and development in spawning and nesting areas. In addition, the ordinance states that watersheds whose streams are used for fish spawning and nurseries should be managed to maintain stream flow for fish.

Sedimentation Control: This gap was identified as applying ONLY to County Public Works projects and was not to be applied to residential hillside development because sufficient regulations already exist to address this concern.
The Fishnet4C study did not recommend restrictions for hillside development. In fact, the study acknowledged that the County already adequately regulates grading and erosion in private residential projects . The report did identify a “policy gap” for sedimentation and erosion, but this policy gap pertained to a lack of controls for the County’s public projects, not private development.

“The county’s excavating, grading, filling and clearing ordinance covers only private projects. The Draft Performance Standards for Rural Roads covers only public road projects. There may be county sponsored projects that are not covered by the performance standards for rural roads and would not need to get a grading permit, and therefore might not include erosion control plans in the project.”

In their 2002 Report on the Evaluation of San Mateo County’s Stormwater Program by the Regional Water Quality Control Board, the County was recognized for implementing strong erosion and sediment controls in private projects such as single family residential development as follows:

“The County requires erosion and sediment controls for virtually all sites that require a building permit. As a standard condition of approval, the County requires applicants to submit an erosion and sediment control plan for review and approval by the Planning Division prior to issuance of a building permit. In addition, the County attaches a one-page brochure on construction pollution prevention BMPs to project plans. The erosion and sediment control plan is required regardless of the amount of disturbed acreage for the project.”

Need to Comply with State and Federal Requirements
County staff have told community members they believe the County has to implement additional regulations on residential hillside development as a requirement from state and federal regulatory bodies because of concern over agricultural pollutants such as diazanon (organophosphates) and sedimentation caused from hillside development. This is not true.

San Mateo County’s Urban Runoff Program is a requirement stemming from the County’s participation as a co-permittee in the regional National Pollution Discharge Elimination System (NPDES) Stormwater Permit. The Regional Water Quality Control Board issues the NPDES Permit through regulation with the State (Cal EPA) and Federal government (USEPA). The regional NPDES Permit is in the process of being renewed and a Tentative Order detailing the proposed new requirements has been released with a planned implementation date of July 1, 2008.

It is important to note that the current NPDES Permit and the Tentative Order for the revised permit do not require the measures County staff have proposed to regulate single family residential development on hillside lots. Further, although the NPDES Permit (Section C3) contains requirements for new development involving 10,000 feet of impervious surface, it specifically exempts single family residences.

In addition, Stanford University recently completed a 5-year study that shows the San Franciscito Creek and its surrounding watershed has no, zero, detectable levels of diazanon or any other organophosphate pollutant. So the answer to the question being posed by County staff “What new regulations do we need to protect the San Franciscito Watershed?” is “ None – the ones we have are already doing it!”.

Conclusion
The draft Watershed Protection Ordinance being crafted by County staff and presented to the public for comments would:

• Impose stringent regulations on any development, including single family residences, in unincorporated San Mateo County, that are on a slope of 10% or greater irrespective of proximity to creeks or streams, i.e., nearly all of Emerald Hills, Palomar Park, Devonshire Oaks, Ladera Oaks, etc. etc.
• Require discretionary permits subject to environmental review for properties on slopes greater than 30%, again irrespective of their proximity to creeks or streams
• Prohibit development for properties on slopes greater than 50%
• Require up to 100 feet of setback for permitted building near any creek or stream
• NOT APPLY TO ANY PROPERTIES in any incorporated areas of the County, i.e., Redwood City, San Carlos, Woodside, Portola Valley, Menlo Park, San Mateo, Belmont, etc. etc. etc.

Clearly, County staff has failed in its service to the Board of Supervisors in this effort because they have not:

• Shown how the proposed new regulations to restrict new single family residences or home remodels on sloped lots directly benefits steelhead and Coho salmon
• Evaluated the cost burden of these regulations on property owners although they admit it could create unbuildable parcels after the fact
• Demonstrated how the current controls on sediment and erosion pertaining to private development are insufficient even though local, state, and federal regulatory agencies say that they are.

In summary, the Supervisors should direct the County Manager to immediately withdraw the currently proposed Watershed Protection Ordinance because it does not do the job the Supervisors requested, i.e., address identified policy gaps for watershed protection and because it would irreparably and unnecessarily harm constituents who are residential hillside property owners.

Ronald A. Zumbrun’s article in the January 14 The Daily Recorder takes an indepth look at Half Moon Bay’s Beachwood decision. You can download the pdf file from here or a Mircrosoft Word document from here or read the entire article below.

THE DAILY RECORDER Official Newspaper for the City of Sacramento 901 H St, Suite 312, Sacramento,Calif 95814 • (916)444-2355 • Vol. 98,No.9 • 75¢ • Monday, January 14,2008

THE COST OF WETLANDS IN HALF MOON BAY

By Ronald A. Zumbrun

In 1976, the California Coastal Act was adopted by popular vote. Pervasive in reach and colossal in scope, the Coastal Act contains hundreds of sections and an equal number of interpretive regulations. The Coastal Act’s definition of “development” is so deliberately broad it would conceivably encompass the construction of a sand castle and the planting of a beach umbrella (the “placement or erection of any solid material or structure”). The Coastal Act’s definition of “wetlands” is likewise so deliberately broad that a puddle created by tire tracks could trigger California Coastal Commission oversight (lands which “may be covered periodically or permanently with shallow water”).

These definitions serve two overarching objectives of the Coastal Act: regulation of development and “permanent protection of the state’s natural and scenic resources.” And “permanent” means permanent. The California Court of Appeal in Bolsa Chica Land Trust v. Superior Court of San Diego County (1999) confirmed the prohibition against residential development on wetlands.

Seemingly unbeknownst to the drafters of the Coastal Act, however, there are state and federal constitutional provisions mandating the payment of just compensation for the taking or damaging of private property for public use. Curiously, neither the Coastal Act nor its interpretive regulations acknowledge the cost of environmental preservation, as if implementation of this objective should be free for the taking. Emboldened by decades of judicial deference to legislative environmental policies and secure in the inability of the average citizen to afford the cost of constitutional enforcement, local governments have acquired an aura of invincibility. The Constitution is viewed as a pesky irritant in the battle against development.

In Half Moon Bay, however, Joyce Yamagiwa fought back in court – with a vengeance. In a 167 -page opinion filed on November 28,2007, Chief Judge Vaughn Walker of the United States District Court for the Northern District of California reminded Half Moon Bay that the Constitution is not going anywhere. Ms. Yamagiwa’s trust was awarded $36,795,000 for the taking of what was once 24 acres of developable land. ( Joyce Yamagiwa, Trustee v. City of Half Moon Bay, Case No.C05-4149.) The case was tried by Edward Burg and Kathrin Wanner of Manatt, Phelps & Phillips on behalf of Ms. Yamagiwa.

Although the case has a factual and procedural history of herculean proportion, Chief Judge Walker made one crucial finding which closed the door on Half Moon Bay. Chief Judge Walker concluded that Half Moon Bay had caused the formation of wetlands on the 24-acre parcel as a result of the installation of storm drains in the 1980s. Prior to the installation of the storm drains, there were no documented wetlands on the parcel, known as Beachwood. The storm drain project “completely changed the topography” on Beachwood, resulting in a parcel of land that now resembles an elongated bathtub, Chief Judge Walker also found that Half Moon Bay’s maintenance plan for the storm drains was nonexistent. Indeed, Half Moon Bay’s maintenance supervisor testified that he was “not aware of any maintenance the City has ever done to any storm drain system on Beachwood.’” In one instance when Beachwood’s owner attempted self-help maintenance, Half Moon Bay called the police and other state and federal agencies to put a stop to it. In another instance, Half Moon Bay denied the owner permission to regrade a portion of Beachwood to fill in low spots created by Half Moon Bay’s own storm drain project.

In light of the lack of maintenance and the alteration of Beachwood’s topography, one would expect Half Moon Bay to welcome evidence that wetlands had not formed on Beachwood, thus minimizing the potential for liability for damaging the parcel. Half Moon Bay nevertheless shopped for a hydrologist – any hydrologist – who would conclude that there were wetlands on Beachwood. In 1999, Half Moon Bay’s Planning Commission concluded that the Army Corps of Engineers would decide whether there were wetlands on Beachwood, pursuant to the Army Corps’ definition of “wetlands.” Nine months later, the Army Corps completed its analysis and found no wetlands on Beachwood outside the southeast comer, an area which was already offlimits to development under the vesting tentative map that had previously been issued.

Unhappy with this determination, Half Moon Bay found a different hydrologist to determine whether wetlands existed under its local coastal plan definition of “wetlands” – a much broader definition. Under the Army Corps’ definition, wetlands required wetland hydrology (water-saturated soils for at least 18 consecutive days), hydric soils (special soils formed over a lengthy period of time due to saturated conditions) and hydrophytic vegetation (plants that tend to be found in wetlands). In Half Moon Bay’s local coastal plan, however, not all of these parameters need be present for an area to qualify as a wetland.

Dr. Michael Josselyn, a Certified Professional Wetland Scientist, was then retained by Ms. Yamagiwa to determine whether wetlands existed on Beachwood under both the Army Corps’ definition as well as Half Moon Bay’s broader definition. Dr. Josselyn concluded that there were no wetlands under the Army Corps’ definition. This conclusion was reviewed and approved by the Army Corps. The only wetlands that did exist were water-filled depressions created in dry land incidental to Half Moon Bay’s storm drain project, and therefore fell under an exemption under the Army Corps’ definition, Dr. Josselyn also concluded that there were no wetlands under Half Moon Bay’s local coastal plan definition because of the absence of hydric soils. Dr. Josselyn understood the local coastal plan definition of “wetlands” to exclude vernally wet areas (areas that are temporarily wet in the spring and winter) where the soils are not hydric. Because all of the wetlands lacked hydric soils, Dr. Josselyn concluded that there were no wetlands, even under Half Moon Bay’s broader definition.

In light of Dr. Josselyn’s conclusions, Half Moon Bay had a second opportunity to conclude that development could proceed in light of the absence of wetlands on the Beachwood parcel. It was not to be. In May 2000, Half Moon Bay adopted a resolution labeling Dr. Josselyn’s interpretation of the vernally wet exception “erroneous” and refused to allow development to proceed.

Ms. Yamagiwa then sought a writ of mandate in superior court to direct Half Moon Bay to issue the permits. The central issue was whether the local coastal plan’s definition of “wetlands” required the existence of hydric soils. The trial court granted the writ, yet it was reversed on appeal. On appeal, Half Moon Bay (and the California Coastal Commission, as intervenor) argued, and the court of appeal in an unpublished decision agreed, that Dr. Josselyn had taken an unnecessarily strict reading of the local coastal plan definition of “wetlands,” and that vernally wet areas covered with hydrophytic vegetation should be considered wetlands, whether or not hydric soils are present. ( Yamagiwa v. City of Half Moon Bay, Case Nos. A105612 and A105613.) Based on the court of appeal’s decision, Dr. Josselyn was forced to concede that Beachwood contained wetlands because all of the study areas contained hydrophytic vegetation. (The litigation was subsequently removed to federal court on Bay’s own motion.)

Curiously, yet another wetlands consultant retained by Half Moon Bay cited the presence of wetlands in only those locations where residential development was proposed by Ms. Yamagiwa, but not where Half Moon Bay wanted to construct a new street. Thus, Half Moon Bay could proceed with its intended development, while denying Ms. Yamagiwa the right to build homes. The poetic irony of this result was not lost on Chief Judge Walker, who understandably questioned the “trustworthiness” of Half Moon Bay’s experts on the key wetlands issues.

Even more curious, Half Moon Bay’s decision to deny development of Beachwood came shortly after it had lifted a seven year ban on sewer permits due to a shortage of sewer treatment capacity. Ms. Yamagiwa was required to pay close to one million dollars to Half Moon Bay for her proportionate share of the cost of expanding the sewage treatment plant. Although Half Moon Bay denied development of Beachwood, it kept the money.

Half Moon Bay thus got its wish: An expert conclusion that wetlands existed on Beachwood sufficient to deny Ms. Yamagiwa the right to develop. As the saying goes, however, be careful of what you wish for as it just might be granted. Having pursued a wetlands designation for the Beachwood parcel with a zeal bordering on avarice; Half Moon Bay successfully halted development. Yet still unanswered was the question of who pays for the loss of use of Beachwood, Half Moon Bay or Ms. Yamagiwa. The answer to that question hinged on whether Half Moon Bay created the wetlands condition as a result of its storm drain project, or whether wetlands preexisted the storm drain project.

Chief Judge Walker concluded that Half Moon Bay caused the formation of wetlands due to its storm drain project and the dearth of follow-up maintenance. Ms. Yamagiwa was not required to ‘‘bear all of the loss herself’ and should not be called upon to contribute more than her proper share to the public storm drain project. This is consistent with the United States Supreme Court’s oft repeated admonition that the takings clause is designed to prevent the government from “forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Surely the residents of Half Moon Bay cannot balk at paying S5,OOO each to satisfy the judgment, preclude residential development of Beachwood, and maintain the wetlands in perpetuity. Half Moon Bay wanted wetlands, and it got wetlands. Would it be more equitable to demand that Ms. Yamagiwa alone pay the cost of Half Moon Bay’s environmental objectives? The Constitution answers the question in the negative.

The reaction of the Half Moon Bay City Council to the $36,795,000 judgment was a mixture of shock, mystification and dismay – akin to a 16-year-old being given the keys to his first car and realizing for the first time the cost of gasoline, insurance and maintenance. In addition to compensating Ms. Yamagiwa for the loss of private property, it is hoped that Chief Judge Walker’s opinion will remind all government decision makers at the state and local levels, when considering the implementation of environmental policies, to first ask the question: “What about the Constitution?”

Ronald A. Zumbrun is Managing Attorney of The Zumbrun Law Firm, a Sacramento-based public issues firm. Zumbrun’s column appears in the Daily Recorder on the second Monday of each month. Timothy V. Kassouni, Senior Attorney with The Zumbrun Law Firm, assisted in preparing this article. You can learn more about The Zumbrun Law Firm at http://www.zumbrunlaw.com .

(This letter was sent to the HMB City Council by Coastside Community First You may download a pdf file of this letter, including the map, here)

December 10, 2007

Subject: Recommendations Concerning Beachwood Crisis

Honorable Councilmembers:

In May 2006, Coastside Community First submitted a document to the public and the City Council that on the subject of Beachwood stated: “Rather than defend against a $30,000,000 lawsuit in federal court, the City should consider seeking a settlement with the developer that preserves wetlands while permitting a tasteful housing development accessible to Highways 92 and 1 via Foothill/Bayview.” In December 2006, CCF provided the Council a Road Map for the Pacific Ridge/Beachwood Area with a section titled: “Settle the Beachwood Lawsuit.” Unfortunately, the road ahead is now steeper and rockier than it was a year ago, but the map is essentially the same. With the understanding that the City Council is presently considering all viable solutions to this crisis, CCF offers for your consideration an updated and expanded version of the Road Map, with six recommendations that are first listed then treated in turn:

1. Interpret and Apply the City’s Wetlands Definition Exactly as it Reads.

2. Establish as Public Policy that the City Needs Foothill/Bayview to Bypass the 92/Main/1 Bottleneck.

3. Question the Tactic of Appealing the Beachwood Decision as a Negotiating Technique.

4. Retain New Legal Counsel.

5. Renegotiate the Pacific Ridge Settlement Agreement.

6. Forge a Unified Beachwood/Pacific Ridge/Podesta Development Project.

1. Interpret and Apply the City’s Wetlands Definition Exactly as it Reads.

Councilmembers will recall that the 2005 California appellate decision the City won concerning Beachwood upheld the City’s interpretation of its own wetlands definition. That definition’s first sentence states that a wetland “is an area where the water table is at, near, or above the land surface long enough to bring about the formation of hydric soils or to support the growth of plants which normally are found to grow in water or wet ground.” Its next sentence then states that “Wetlands do not include…vernally wet areas where the soils are not hydric.” The City chose to disregard the second sentence in its wetlands delineation for Beachwood, and it was the Court’s central task to determine if that interpretation was reasonable.

After observing that “There is undoubtedly some tension in the wetland definition because it provides, first, that a wetland is an area where water is at, near, or above land long enough to bring about the formation of hydric soils or to support the growth of hydrophytic plants, and second, that vernally wet areas with nonhydric soils are not wetlands,” the Court concluded: “...the City rationally interpreted its LCP to treat vernally wet areas covered with hydrophytic vegetation as wetlands, whether or not hydric soils are also present.” It never found that to be the only rational interpretation.

The Court was not asked to determine, and did not comment upon, whether a literal reading of the City’s wetlands definition would also be a reasonable interpretation, or even more reasonable than the City’s interpretation, which essentially treated the second sentence as though it did not exist. Indeed, if the Court did find a literal interpretation unreasonable, it would have stated so, because that would have strengthened the Court’s argument, by eliminating other interpretations than the City’s as unreasonable. In that case, the Court could have been expected, as a corrective remedy, to direct the City to expunge the second sentence from its wetlands definition.

The Court did not find a literal interpretation of the wetlands definition unreasonable because following the plain language (i.e., the letter) of a law or policy or legal definition cannot in any case be considered unreasonable. The second sentence of the wetlands definition is undeniably there to qualify or modify the first sentence, otherwise there is no answer to the obvious question: why was the sentence included at all, if not to add meaning to the definition? The City’s wetlands definition was drafted and edited by City planning staff, scrutinized by the public, deliberated upon and passed by the Council, then finally certified by the Coastal Commission after extensive staff review, a process that took years: it is not possible that the second sentence to such a crucial definition was mistakenly included as a contradictory appendage.

The City has every legal right to interpret its own wetlands definition as it literally reads, and it is not contradicting the 2005 appellate decision by doing so. The Court did not dictate a specific interpretation: it did no more than accept one questionable interpretation as reasonable. CCF recommends that the City Council establish an explicit policy, directing all City officials–employees, appointees and elected officials–to interpret and apply the City’s wetlands definition exactly as it reads. This action would significantly redelineate the wetlands on Beachwood.

2. Establish as Public Policy that the City Needs Foothill/Bayview to Bypass the 92/Main/1 Bottleneck.

CCF’s central argument concerning Foothill/Bayview–that a bypass road around the 92/Main/1 bottleneck has been needed for a long time–is borrowed directly from numerous City and Coastal Commission documents. The details of that position can be found in our May 2006 “Outline for a Public Discussion of Solutions to Half Moon Bay’s Hwy. 92/Main St./Hwy. 1 Bottleneck,” and will not be repeated here. CCF recommends that the City Council make a renewed finding that there is an ongoing (and steadily worsening) public need for Foothill/Bayview as a bypass around the bottleneck. More than fifteen years ago, the City included a requirement for Foothill in its General Plan Circulation Element, to comply with “the Coastal Commission mandate that Foothill Boulevard be constructed as an alternative to Highway 1 for improved coastal access.”

CCF believes that Foothill/Bayview could be routed to avoid seasonal wetlands. However, if any wetlands needed to be impacted, the Bolsa Chica ruling clarified that “wetlands could be eliminated if needed for a road or highway.” That could only occur if the City “made a required finding” that the need for Foothill/Bayview “outweighed the value” of preserving any affected wetlands. The same type of finding was required to allow the Devil’s Slide tunnel to cross wetlands. Bolsa Chica also clarified that although any wetland intrusion can be mitigated, there is no provision in the Coastal Act requiring, or even mentioning, wetlands mitigation.

3. Question the Tactic of Appealing the Beachwood Decision as a Negotiating Technique.

There has been a good deal of sentiment, in the wake of the massive judgment against the City, that it should be appealed as a way to buy time, or perhaps to improve the City’s negotiating position with the developer. CCF cautions that while an appeal would definitely prolong the process, there is no reason to believe that it would necessarily improve the City’s negotiating position. On the contrary, it might stiffen the resolve of the developer, and discourage him from entertaining the kinds of compromises the City would need to satisfy the Court’s damages award.

Moreover, the developer is not relegated to merely playing defense on appeal. As has been widely noted, the judge’s cash award to the developer was based only on the estimated value of 83 vacant, subdivided lots sold at current market value. According to the federal standard cited by the judge (“highest and best use before the damage”), the award actually could have been based on the estimated value of 83 finished homes sold at current market value, minus construction costs. This of course would result in a vastly greater cash award to the developer upon appeal.

If the City appeals the decision, it is asking a higher court to accept an argument that the City in fact owes no money whatever to the developer. If the City in that same context attempts to negotiate a settlement, the developer may understandably perceive that the City is negotiating

in bad faith. The City cannot with any consistency hold the position that, on the one hand, it owes no damages, and on the other, that the damages should be negotiated. Stripping the situation to its bones, the City has two distinct alternatives: negotiate or litigate. Combining those two alternatives into one approach is much easier said than done.

The best reason to appeal is if the City is convinced it can argue compellingly that the lower court judgment was in error, and that there is an actual probability that the higher courts will recognize that error. It should be emphasized that asking appellate attorneys whether the City should appeal is something akin to asking a barber whether you need a haircut. While barbers and trial lawyers can provide honest opinions, they are also hard-wired to cut hair or lock horns in court. If the City does appeal, CCF urges your Council to participate with the developer as soon as possible in the mediation services offered by the judiciary.

A better position from which the City can negotiate a settlement is an acknowledgment of responsibility, and an acceptance of the judgment. A good-faith negotiating stance should begin with a detailed, sincere apology–combined with concrete actions as described in this document to correct the underlying problems–that establishes a non-adversarial, proactive environment for the negotiations. The City must make it clear from the outset that it is not able–and will never be able–to directly pay the awarded damages. Therefore the compensation to the developer must come from Other People’s Money, that is, from the buyers of homes that the developer is permitted to build as a result of the negotiated settlement. This ‘OPM’ compensation approach is the carrot the City can offer.

The stick, if the developer were to insist on direct payments the City simply cannot make, is to seek bankruptcy protection. Creditors are normally loathe to go this route, because they understand that bankruptcy court exists primarily to protect the debtor, not them, and that creditors routinely receive dime-to-the-dollar in compensation. This stick–the plausible threat of seeking bankruptcy protection if negotiations fail–is predictably more effective than the pseudo-stick that an ad hoc judicial appeal represents. On the other hand, there is a very steep downside to bankruptcy protection, because it turns over much of our local decisionmaking authority to bankruptcy court, which will focus on financial resolution of the crisis, almost to the exclusion of other community considerations.

4. Retain New Legal Counsel.

An essential component of either an effective appeal or negotiated settlement is a new legal team. If the City appeals, a new legal approach is clearly required. If the City seeks a win-win negotiated settlement, a non-adversarial legal team, that does not carry the inevitable baggage acquired through a long and acrimonious court battle, can help heal the wounds with the developer.

5. Renegotiate the Pacific Ridge Settlement Agreement.

CCF has expressed thoroughgoing disagreement with the settlement agreement in a number of documents, especially in our November 2006 analysis of the draft environmental impact report. Those arguments will not be revisited here.

New fiscal realities dictate that the City simply cannot afford the generosity it previously showed the Pacific Ridge developer. Concerning traffic mitigation, the City must insist that Terrace as sole access, with or without a stoplight, is unacceptable, and that no development will occur without Foothill. To compensate the developer for the costs of road construction, the in-lieu payments for lot retirement and the Terrace traffic signal should be forgiven. Until a Beachwood settlement is negotiated, the practice of exacting mitigations in the form of physical improvements, rather than in-lieu payments, should be applied to all planned development within the City, as cash payments may be subject to seizure.

6. Forge a Unified Beachwood/Pacific Ridge/Podesta Development Project.

CCF wrote in last year’s Road Map that “Summit meetings conducted by the City could organize stakeholders and beneficiaries into a broad-based leadership coalition to help bring a unified project to completion,” a recommendation that is truer today than ever.

The bare bones of a comprehensive package might look like the following. Beachwood and Pacific Ridge would have a similar low-density development, with no jarring differences in types or density of housing along a scenic Foothill/Bayview winding roadway. Podesta, closer to shopping and schools, could be slated for more affordable, smaller-unit housing, perhaps clustered with a community or performing arts center. An essential requirement for Podesta is that it not exacerbate traffic problems on North Main. This could be achieved by secondary access east through Lewis Foster to Foothill, and (if possible) tertiary access north through Highland Park to Bayview.

The City has other tools in its bargaining kit, including 70-odd City-owned properties. Another, wider-lens perspective on potential solutions might be provided by the City’s August 2005 “Infill and Expansion Areas” map, which color-codes properties throughout the City according to their developability (its most relevant section is attached here for reference). In any event, tasteful development of the area in question should be planned as a comprehensive package, both to ensure that a “one for all, and all for one” spirit infuses the permitting process, and that the project unfold in an orderly and carefully staged manner. The bottom line, as CCF has emphasized in the past, remains the same: cooperative community-building.

December 4, 2007

Half Moon Bay City Council
Subject: Yamagiwa Lawsuit and Judge Walker ruling of November 28, 2007

The recent Yamagiwa decision is a watershed for our coastal community. It appears that Judge Walker supports the property owner on all issues. Now is the time for leaders of Half Moon Bay to reconcile the reality of the law with their perceptions of past actions.

Judge Walker’s decision will have a lasting effect on our coastal community. The imminent actions or inactions of this Council over the next 23 days, will critically impact our coastal community forever. Whatever this Council decides to do will ultimately have to be explained to the community, and the sooner the better.

I urge each of the Council and staff, if you have not yet read, please read the 167 page Findings of Fact and Conclusions of Law from Judge Vaughn Walker. If this Council continues to rely only on Myers and Nave, I believe the Council is putting our city at increasing risk.

Please compare the conclusions from Judge Walker with the City’s 3 page press release and court positions. If one tries to reconcile the two positions, one quickly realizes the breadth and depth of the gulf between the two positions. I am not a lawyer, but it appears that the central disagreements are

On existence of wetlands pre Terrace Avenue Assessment District—TAAD,
City says flooding and wetlands were present pre-TAAD, Judge states “The City’s primary defense regards the factual question whether wetlands on Beachwood pre-dated TAAD, an issue that favors Yamagiwa, not the City”

On whether the owner requested the city to form TAAD,
City says TAAD was requested by property owner, Judge notes this consent defense fails

On the City causing wetlands on Beachwood with TAAD construction ,
City says not, Judge says City was responsible

On failing to establish the City’s other defenses (consent, statute of limitations, mitigation of damages, and Bolsa Chica),
City maintains defenses, Judge says all other defenses fail

On determining damages,
City offers $30.996M, Plaintiff offers $36.795M, Judge rules $36.795 M

So what can we observe in summary?

This HMB Council very quickly needs to take a fresh look at the many legal, financial, and possible negotiation options to resolve this dire situation. Leaders learn from mistakes, make corrections, and act.

Most of our coastal community wish to help this Council, but lacking any ground truth or stipulated facts we are unable to do so. If this Council continues to follow the same path and policies that prior Councils have promulgated regarding these issues with Yamagiwa, and as described in Judge Walker’s comprehensive and very detailed review of the past 25 years for just one property, our community confronts a very bleak future.

CPR remains hopeful for a thorough and fair resolution of these many grave and recurring problems for our community, and hopeful for the many other coastal property owners that also have land use issues and problems.

CPR stands ready to help the community.

Respectfully yours,

Terrence D Gossett
President, Californians for Property Rights

Download a pdf version of the above letter.