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HomeMy WebLinkAboutAGENDA REPORT 1996 0807 CC REG ITEM 07IROBERT J. ZWEBEN CITY ATTORNEY (510) 524 -9205 FAX (510) 526 -9190 e• �qr ((�� CITY OF MOPWRK CITY HALL 1000 SAN PABLO AVE. • ALBANY, CALIFORNIA; J July 1, 1996 RE: Citizens for Responsible Government v. City of Albany, et a - Alameda County Superior Court Case No. 746987 -9 Dear Colleague: The purpose of this letter is to request that your city join an amicus brief in support of the City of Albany's position that pre- election CEQA review is not required when a City Council determines to place a measure before the voters. The issue is simple and quite important to all California cities. Can a city council, in reliance on Guidelines section 15378(b) (4) and cases such as Lee v. City of Lompoc place a measure before its voters for their approval without conducting pre- election CEQA review? The voters in Albany approved a zoning amendment, a development agreement, and a gaming ordinance. The voters' approval was challenged and Alban Superior Court. The plaintiffs have appealed this ud in the intend to argue judgment and gue that Lee is incorrect, even though a CEQA review will be undertaken- if a project application is filed under the development agreement. The League Advocacy Committee reviewed this matter but could not take an official position because the City of Berkeley expressed its disagreement with Albany's legal views and the Advocacy Committee requires absolute uniformity of interest among all California cities. The firm of Remy, Thomas and Moose, a well known pro - environmental law firm, will prepare the amicus brief. The City of Albany would be very grateful for your participation in the amicus brief. For your convenience, I have enclosed a form you may fill out and return to my office. If you have any questions, please call me. S' cerely, emu RECEIVED, /�,�� 8 1996 R bert J Zweben C'ty of Moorpark Y CITY ATTORNEY r' ; RJZ:jl ALBANY Encl . c: \atbany \citizens \amicus \join.req M��`� Of Mo e,r orpark City of Berkeley Office of the City Attorney Martin Luther King, Jr. Civic Center Building 2180 Milvia Street Berkeley, Califo-nia 94704 Telephone: (510) 644 -6380 Telecopy: (510) 644 -8641 MEMORANDUM Date: July 10, 1996 To: All Interested Cities From: Manuela Albuquerque, City Attorney Zach Cowan, Assistant City Attorney Re: Amicus Request Citizens for Responsible Government (CRG) v City of Albany Alameda County Superior Court Case No. 746987 -9 You may have recently received a letter from the City of Albany asking you to join an amicus brief to be prepared on its behalf in this case. This letter is to notify you that the City of Berkeley and three other cities have recently filed an amicus brief in opposition to Albany's position, and to ask that you either join Berkeley's brief or at a minimum take no action. On July 10, 1996, the City of Berkeley and three other cities (Mountain View, Sausalito and Tiburon) filed an amicus curiae brief in support of the petitioner and appellant, Citizens for Responsible Government, in CRG v. City of Albany presently pending in the Court of Appeal. The case and issues are summarized below; please feel free to call Zach Cowan of the Berkeley City Attorney's Office at (510) 644 -6380 for more information. Facts of the Case The City of Albany and Ladbroke Racing negotiated a complex set of land use changes including a development agreement granting vested rights to a 150 -table card room at Ladbroke's horse racing facility (Golden Gate Fields) on the eastern shore of San Francisco Bay. The development agreement would permit 150 tables to be operated 365 days per year, 24 hours per day. Golden Gate Fields is adjacent to Berkeley's waterfront -- in fact its parking lot lies partially within the Berkeley waterfront. Although no environmental review has been conducted, if successful, the project has the potential to significantly add to trafgcRECEIVED — M City of Moorpar` Tolnrnmmnnirahi��nc llnvjr.� �.,r thn rin,f i;l(11 !dd_�Q1 � Amicus Request Citizens for Responsible Government (CRG) v City of Albany July 10, 1996 Page 2 on Berkeley streets, including to some extent residential streets. The City of Berkeley also has concerns about possible increases in crime related to development of another card room in the area. In order to permit the development of the card room on an expedited basis, Albany did not follow its pre- existing requirements for consideration of development agreements see Government Code §65864(c)), but rather simply rescinded them, and placed the development agreement, along with a zoning amendment and other measures, on the ballot. All of these discretionary actions were taken without any review or analysis under CEQA. Albany takes the position that CEQA was not applicable to its actions because it "approved" nothing for CEQA purposes; rather it merely submitted to voters the land use changes that it had negotiated and endorsed. After the election, the City filed a CEQA Notice of Exemption for the "project" as defined in the Development Agreement, i.e., a 150 -table card room consisting of a specified area at a specific location operating on a 24 -hour per day basis. Albany's position is based on Lee v. Lompoc (1993) 14 Cal.AppAth 1515, a Second District case which held that a city- sponsored ballot measure which was necessitated by a council deadlock was exempt from pre- election CEQA review. Subsequent to the filing of the court challenge, Albany adopted a resolution stating that it would prepare an EIR; however the development agreement severely constrains Albany's ability to condition or deny the project approval. Issues The petitioner and appellant CRG raised several issues, including a challenge to the ballot language as violating Business & Professions Code §19819, which requires a citywide vote in order to authorize card rooms and specifies the language to be included on the ballot. The amicus brief being prepared by Berkeley will focus on the CEQA question, i.e., whether a city and developer can negotiate a development agreement defining the developer's vested rights in a project and then evade environmental review of the project and feasible alternatives thereto by placing the development agreement on the ballot for approval by the voters in the first instance. First, the City of Berkeley will argue that the development agreement statute establishes the exclusive method by which cities may enter into development agreements -- namely, after public hearings and approval by the city council, and only upon formal action of the city council approving the underlying project. Although such an approval may be subject to referendum, the voters may not approve the development agreement in the first instance. Amicus Request Citizens for Responsible Government (CRG) v City of Albany July 10, 1996 Page 3 Accordingly, the decision to place the development agreement on the ballot was ultra vires, and the court need not reach the CEQA issue or Lee. Second, Berkeley's amicus brief will argue that even if the Albany City Council's decision to place the development agreement on the ballot was not a violation of the development agreement statute that Lee should be limited to its unique facts (i.e., a council deadlock and requirement of a future EIR) and should not be extended to the situation here, where the development agreement places strict constraints on the City of Albany's ability to require mitigations under the promised future EIR. Finally, Berkeley will argue that Lee is simply wrongly decided and should not be followed by the First District. In this regard, however, and unlike the appellants, Berkeley will not be advancing a categorical rule that any discretionary council- sponsored initiative is subject to environmental review. Rather, it will articulate a rule which would exempt from environmental review those council - sponsored initiatives (1) intended to compete with citizen - sponsored initiatives, and (2) whose impacts fall within the envelope of impacts of the CEQA- exempt citizens initiative with which they are competing. Although Albany has argued that this case does not raise serious environmental concerns, in fact Berkeley, as a neighboring city, has strong concerns about the environmental impacts of the project on the streets and neighborhoods (primarily in Berkeley) adjacent to the project. Moreover in the absence of any environmental review, it is premature to make any assertion about the scope of the project's environmental impacts, and any such assertions are unsupportable. As you know, often CEQA is the only vehicle for a city to ensure that its neighboring jurisdictions account for the adverse extraterritorial impacts of their land use and development decisions. Thus, from Berkeley's perspective, the ballot box was abused in this case in order to evade the requirements that the impacts on the environment (and on Berkeley) be evaluated at the outset of the planning and approval process. An opinion upholding Albany's technique could open the door to other evasions of CEQA by aggressive developers and compliant local officials and voters. This could in turn significantly lessen the bargaining position of local governments that endeavor to promote responsible change and development through observance of the letter and intent of CEQA. Finally, it should be said that the Berkeley City Council is aware of the sensitive and unfortunate nature of this controversy, which finds two neighboring cities on opposite sides of a legal issue of great significance. Nevertheless, in a dense, fully- developed urban area such as the inner San Francisco Bay Area, where a decision in one jurisdiction will inevitably Amicus Request Citizens for Responsible Government (CRG) v City of Albany July 10, 1996 Page 4 affect others, it is critical that all cities play by the rules, rules which allow all those who will be affected by a decision to have a voice in it, regardless of which side of a boundary line they happen live on. Since an appellate decision on this issue will be forthcoming as a result of this case, Berkeley feels compelled to articulate for the court the competing interests at stake. Very truly yours, MANUELA ALBUQUERQUE City Attorney By: ZACH COWAN Assistant City Attorney ZC:pab