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| By Joe Cotchett-Matter of Opinion Published/Last Modified on Wednesday, January 30, 2008 12:54 PM PST Now is the time to act on Beachwood problem On Nov. 29, the good people of Half Moon Bay woke up to the news of a $37 million federal court judgment against their city over a piece of land. Few people knew what the judgment was or is all about. In fact, while the case was recently in trial, few people in Half Moon Bay had a clue of what was going on in court or about to happen. Only a handful of people knew the city was sued on the Beachwood property in San Mateo County Superior Court in September 2005. Then the case was mysteriously removed to federal court by the city of Half Moon Bay's prior lawyers! After many years of litigation and more than $5 million of tax dollars paid to lawyers, the Beachwood case still sits in high-gear litigation. After an arrogant former City Council told the landowner, "if you don't like what we do - take us to court," it appears that the same attitude prevails. Many citizens of Half Moon Bay know what brought on this debacle. Some years ago, a City Council composed of people who thought they were the rulers of the Coastside were intent on stopping all growth rather than working on behalf of the public's best interest. Everyone knows who the council members were - you only had to ask and they would tell you. Some are still around. The new Beachwood $37 million judgment has little to do with environmental land use - it is a clear result of arrogance on behalf of a prior City Council. The history is clear; the Beachwood development and a proposed road called Foothill Boulevard were all on the same radar screen of certain previous council members. Foothill was to be built in conjunction with Beachwood and was designed to spur off to the north of Highway 92 just east of Highway 92 and Main Street. Foothill Boulevard would wind through the Beachwood property and intersect Highway 1 north of Terrace Avenue. It would allow commuters to make their way north without having to continue into Half Moon Bay and through the intersectionof Main and Highway 92. However, keeping Main and Highway 92 a busy and impacted intersection was central to an anti-development City Council's plan to use traffic congestion as an argument against any new homes being built on the coast. Foothill had to be stopped and the then-City Council was very active in its plans to make sure nothing went forward on Beachwood or Foothill. In the latest decision, U.S. District Judge Vaughn Walker's ruling was really very basic and straightforward. On March 21, 2000, the City Council voted to deny Beachwood a Coastal Development Permit. The council took six weeks to figure out how to justify its actions and on May 2, 2000, members adopted Resolution No. C-26-00, formally denying the CDP. The "new" wetlands were the reason for the denial. Former Mayor Deborah Ruddock, who has since called the owner a "predatory developer," voted to deny the owner a permit on a unanimous vote of the council without any questions asked. It all started when the present owner bought the property in 1993 after the city granted the prior owner a tentative building permit. The new owner was then prevented from building anything because of a seven-year moratorium due to sewer capacity, even though he put up $1 million for the sewer. When the new owner re-applied in 2000, he was denied an application because of alleged "wetlands." He then filed lawsuits in San Mateo County Superior Court to get a permit to build. The Court of Appeals in state court ruled the city was correct in denying the permit because of wetlands. The issue then presented was how the wetlands came about. This caused the present suit that ended up in federal court for inverse condemnation - the taking of land in violation of the Constitution, which calls for just compensation. Without getting into the legal issue of whether the federal court had jurisdiction, a combination of cute lawyering and a total failure of understanding by the City Council landed the case in federal court under the Fifth Amendment taking clause. Walker wrote a 167-page opinion that essentially said the city created the wetlands starting back in 1984 through its own acts, and damages flowed to present owner Charles J. "Chop" Keenan. Now, instead of immediately sitting down with the owner to discuss a resolution, the City Council hired a legal team, that collectively is charging at the rate of $3,185 per hour, to appeal (San Jose Mercury News, Dec. 19) and then issued a "Letter to Residents" (Half Moon Bay Review, Jan. 9), that is an embarrassment both factually and legally. The letter states that the lawyers will ask the appellate court to consider evidence rejected by the court (that Keenan knew the land to be wetlands and that Keenan bought the land at a "fire sale") among other things. Surely, the new lawyers, hired by the city to appeal - the excellent firm of Orrick, Herrington and Sutcliffe in San Francisco - could not have authorized this letter. Obviously, the city must appeal, but more important than running up further millions of dollars in legal fees, city leaders should be working with the owner to correct their own mistake. The owner of the property knows what he risks on appeal as his lawyers have correctly explained subject matter jurisdiction to him.Unfortunately, the city's prior lawyers didn't understand this basic rule of law. All of Keenan's posturing will not affect reality. He is smart enough to know that bankruptcy is an option for the city (i.e., Orange County - 1995) and the time to act reasonably is now or he could end up with very little. In case one hasn't figured it out, we are in a recession. Six weeks after the court decision, we are now told that the city's new lawyers finally began talks with Keenan. Whatever the reason for the delay, one thing is certain: With the clock ticking, these obviously will be very expensive talks for the taxpayers of Half Moon Bay. As a San Francisco Chronicle editorial recently noted, there is a swamp in Half Moon Bay - created by its own Catch-22 and a bureaucracy that is paralyzed. The city leaders are playing roulette with the citizens of Half Moon Bay. If the judgment is affirmed, it will cost every resident $3,500 (and growing larger by interest every day) and may approach $50 million over two years. The result is obvious - either a bankruptcy or de-incorporation and shutting down City Hall. What to do? Engage in the thought process of resolving the problem through skilled people - and then look inward at how this problem came about. At the next election, people will surely ask some hard questions and demand responsible answers from this council and vote accordingly. Sadly, the result of the above will be to cause more lawsuits against the city on different issues and make lawyers richer. Since the judgment, I have received hundreds of calls from Coastsiders. My response is to talk to council members and ask them to act responsibly. This is not about the environment of the coast, the land-use policies or keeping Half Moon Bay the great community that it is. It is about accountability, responsible action and resolution. The time to act is now for those who wish to enjoy our beautiful coast in the future. The council should engage some people who can and should resolve the matter - NOW. Joe Cotchett is an attorney and owner of property on Main Street.He is the author of several books, including "The Coast Time Forgot" about the San Mateo County coast. |