San Mateo County, CA: Local Government's Permit Policies Cost Taxpayers

It is seldom that we find a community so devastated by a lawsuit that it faces bankruptcy. It is even more unusual to see the exposure potentially repeat itself in a similarly explosive lawsuit. Unfortunately, this seems to be me case in San Mateo County.

In January, I published a Viewpoint article about the case of Joyce Yamagiwa, Trustee vs. City of Half Moon Bay. The City of Half Moon Bay had prohibited development on a 24-acre parcel because the parcel was determined to constitute wetlands. The California Coastal Act prohibits residential development on wetlands. However, the California and United States Constitutions mandate me payment of just compensation for the taking or damaging of private property for public use.

On November 28, 2007, Chief Judge Vaughn Walker of the United States District Court for the Northern District of California awarded Ms. Yamagiwa $36,795,000 for the taking of what was once 24 acres of developable land. Chief Judge Walker made one crucial finding which closed the door on Half Moon Bay. He concluded that Half Moon Bay had caused me formation of wetlands on the 24-acre parcel as a result of the installation of storm drains m 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" of Beachwood. Half Moon Bay chose not to welcome evidence mat wetlands had not formed on Beachwood. This finding would have minimized the potential for liability for damaging the parcel. Half Moon Bay instead shopped for a hydrologist who would conclude that wetlands had always been present at Beachwood.

Half Moon Bay and the developer proceeded to consider settlement proposals, inasmuch as the county did not have $36,795,000. (It is now over $46 million due to interest and attorneys' fees.) An accord was reached whereby me lawsuit would be dropped in return for guaranteeing permits for 129 homes. This would require legislative approval. If denied, then payment of $ 18,000,000 would be made. Unfortunately, after clearing the State Assembly, the legislation failed in the Senate. The $18,000,000 is now due.

Now one year later, another federal lawsuit, this time against the County of San Mateo, has been filed by Oscar Braun and his wife. Dr. Andrea Braun, DDS, also residents of Half Moon Bay. The Brauns estimate their damage to be in excess of $25,000,000.

In 1988, me Brauns purchased a 70-acre undeveloped ranch overlooking the City of Half Moon Bay and its bay. The property is located on the first ridgeline to the east and is 1 1/2 miles from the city limits. It extends one mile wide and Vz mile deep. Without hesitation, they proceeded to make substantial improvements to the ranch.

One of Oscar's other interests involves sponsoring the outspoken activities of a "watch-dog" organization whose mission is "to protect me integrity of governmental institutions, report possible violations of the law, regulations, and rules governing the conduct of governmental officials and employees." His "watch-dog" role has drawn the ire of many in local government.

The background to the current dispute is as follows: On June 4, 1991, the Brauns' property s water system was originally installed and properly permitted by the California Coastal Commission. On August 7, 2001, they listed their property for sale at $25,000,000. On February 5, 2002, the County of San Mateo, claiming that a local permit was also required, initiated a process against the Brauns' two relocated 5,000-gallon water tanks that store water from their residential well. (February 5, 2002 Environmental Services Agency Notice of Building Code Violation.)

On July 23, 2002, the San Mateo County Board of Supervisors denied the Brauns' requests for permits relating to the water tanks. On August 28, 2002, the Board of Supervisors ordered the immediate abatement of both residential water well storage tanks. (August 28, 2002; Recorded Notice to Abate Building and Zoning violations.)

This action caused the Brauns' property value to plummet to its "original" undeveloped parcel purchase price value of $300,000. The County of San Mateo's action blocked any sale or refinancing of their ranch, which still was on the market for $25,000,000. Multiple state and federal lawsuits evolved. On November 1, 2005, in the midst of trial, the parties entered into a settlement agreement written and supervised by the United States District Court, Northern District, San Francisco Division, and signed on October 17,2006. The settlement agreement provided that:

1. The Brauns would dismiss their action; 2. A final decision on legalization of the Brauns' structures would be reached within 90 days of signing the settlement agreement; 3. The County would approve a "property-wide" Coastal Development Permit conforming to the requirements of the County's Local Coastal Program and any associated use permits for a wireless antenna site on the Brauns' property within 90 days of the date of the signing of the settlement agreement; 4. A study would be made by the County Controller to determine the feasibility of incorporating the rural and unincorporated areas of San Mateo County; 5. The Court would retain continuing jurisdiction of the matter; and 6. The settlement agreement was not to be considered as an admission of liability on the part of any of the signators to the settlement agreement.

With that, the lawsuit was settled as of October 17, 2006 - or was it? The current federal lawsuit filed on October 21, 2008 claims the County has continued its retaliation against the Brauns in violation of the Federal Civil Rights Act and has failed to comply with the terms of the October 17, 2006 settlement agreement.

The 90-day time period for county compliance with the settlement agreement has run long ago. In the meantime, the Brauns remain unable to sell or refinance their property. This development, in addition to the cost of litigation (over $2.8 million), rendered the Brauns unable to meet their mortgage payments. Foreclosure proceedings began in early 2008 Without taking sides on this dispute, it is disturbing that matters would disintegrate to such a degree. In view of the earlier Yamagiwa judgment of $36,795,000 against the City of Half Moon Bay and the disastrous impact on the community, citizens are entitled to have their government avoid such devastating exposure. Why don't those responsible just take the necessary steps that would enable the Brauns to obtain additional financing on their ranch and save it from foreclosure?

It is the individual property owners and unsuspecting local taxpayers who are and will continue paying for the final outcome of these cases. Tough financial times have better uses for such finances. What in the world is going on in Half Moon Bay and the County of San Mateo?

*RonaldA. 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. You can leam more about the Zumbrun Law Firm at www.zumbrunlaw.com.

Far as I am concerned, the more bankrupted local governments the better. We need to be dismantling these tiny, useless, money grubbing, tax hogs, not encouraging them.

Where the people have allowed their eyes taken off of decisions made on their behalf, I could agree about culpability of the people getting what they deserve as well. Even so, I will almost always prefer local governments to the state and fed. When they do go under, we all end up picking up the tab. Local governments these days engage in a myriad of ways to expose their constituents.

As a side note, please forgive my crappy proof reading. I imported the article with an OCR into Word and missed many mistakes. The linked article is of course a clean .pdf file.

Be sure to tune into the show (info posted below article) to hear details that will frost your hair.

I lived in the region between Palo Alto and Monterey for 15 years. It never struck me that the local governments were very smart, no matter who was elected.

In Mountain View one election season, the largest issue was that the Mayor had once parked in a handicapp parking spot when she was late for a council meeting.

oh, thx very much. This just re-iterates the need for a “California Total Recall” campaign, with the objective of Completely and Utterly Purging the Zeros from all public offices. In the HMB case, the current HMB administration complained that the whole problem was caused by previous officials who had since retired. They seemed utterly clueless.

I mink it was scanned in using an Optical Character Reader (OCR) but men it wasn’t read b4 posting it.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.