Tuesday, July 11, 2006

Arkley Likely to Sue County Despite State’s Decision

The McKinleyville Press


Daniel Mintz

A local multimillionaire’s quest to open more land for development won’t end with the state’s recent decision not to reverse its approval of a county housing plan, and his attorney says a lawsuit is imminent.

The famously arch-conservative Rob Arkley, Jr. has channeled some of his considerable riches into hiring Sacramento-based consultants and attorneys to challenge county planning work. The county’s Housing Element, a five-year plan for meeting state residential development requirements, has been a primary item of contention for Arkley. He’s met with state officials in an effort to convince them to reverse their approval of the county plan.

But after reopening its review of the element and estimates of developable land, the state’s Department of Housing and Community Development (HCD) recently announced that the county’s work meets housing standards and actually exceeds them for moderate and above moderate income categories. The HCD also found that enough sites have been identified for development of lower income high density housing – although it’s a category that the state wants more attention paid to along with infrastructure to support it.

That result is not what Arkley sought and the Sacramento consultant for HELP, the developers’ advocacy group he’s funded, has questioned the county’s submittal of what’s been called a “secret report” to the HCD. In a letter to Board of Supervisors Chairman John Woolley, HELP consultant Kay Backer describes the allegedly back-room document as “a violation of state law.”

And Bob Best, an attorney for the Sacramento-based Trainor-Robertson law firm hired by Arkley, has said that the county has “made themselves more vulnerable to a legal attack” with its documentation and actions during the state review. He warned that a lawsuit is likely unless the county responds quickly to the concerns enumerated in Backer’s letter to Woolley.

From the county’s – and the state’s – point of view, however, the planning work is both legally sound and unusually thorough.

Arkley Attorney: State’s Wrong

Woolley responded to Backer in a July 7 letter and said that “we remain secure in the (land) inventory procedures we have developed.” The state is also confident about that -- the HCD deputy director who’s supervised the state’s review has said that Backer’s “secret report” characterization is incorrect and credited the county’s planning department for making its land inventory available online and open to adjustments.

There is aggressive disagreement from Arkley’s corner that seems to be leading to a long-threatened lawsuit against the county. In an interview, Best said that the state’s findings will be struck down if they’re argued in court, and he believes that the “secret report” will be damning evidence.

“I think the HCD is dodging its responsibilities,” said Best. “The report that county staff ginned up is the county itself saying that the element doesn’t comply with state law … our position is that the report finally recognized what we’ve been saying all along – that what’s in the housing element is virtually meaningless.”

Best believes that the county’s report on the inventory should have been treated as a General Plan amendment subject to approvals from the planning commission and board of supervisors. He said that the HCD “erroneously” handled the report.

“This is a staff report that was prepared in a back room with the cooperation of the HCD,” Best continued. He said the county is “digging itself into a deeper hole” legally and “cannot look a judge straight in the face and say its housing element is accurate.”

Saying that the element’s land inventory overestimates development capacity by thousands of parcels, Best added that making it legal will take time and “the county will have to get busy – if we do not see action by the county soon, we will probably have to initiate a lawsuit.”

The litigation would be directed at the county and not include the state, Best said, as “the law does not require the HCD to create valid housing elements.”

But the HCD will defend its work in court if it comes to that – and will also back up the county’s.

Public Meeting on a ‘Secret Report’

The “secret report” is dated April 24 and updates the content of the county’s inventory. Asked about it, HCD Deputy Director Cathy Creswell questioned the characterization and pointed out that the report was the subject of a public workshop that was held last October and attended by 45 people.

“I don’t know why they’d describe the report that way,’” Creswell said. “Our understanding is that the county held a public meeting on the inventory, so I don’t how they could possibly characterize it as a secret document.”

A General Plan amendment wasn’t necessary for the report, she added, and she praised the county for doing updated annual reviews of its five-year housing plan. “Not many counties do that,” Creswell said. She also said that the county’s interactive online posting of the inventory is “very unique” and an important tool for achieving housing construction.

Asked about Backer’s and Best’s legal arguments, Creswell said her department worked hard to review the housing plan with HELP’s concerns in mind. “They clearly have a different perspective than we do, and they disagree with our findings,” she continued. “But we tried to work cooperatively, and we feel we fulfilled our responsibilities in a way that’s been fair and equitable to all parties, and in a manner that fulfills the state’s interest in providing housing opportunities that are real.”

Kirk Girard, the county’s planning director, has been aggressively targeted by Arkley. He said Best’s claim that the April 24 report admits inadequacy is a mischaracterization. About 200 units were subtracted from the thousands reflected in the inventory, said Girard, a response that probably wasn’t legally necessary but responded to HELP’s contentions.

“In a sense, we’re being criticized for being responsive,” he said.

Woolley’s response letter to Backer emphasized that the county’s planning work has been “well-documented” locally and “most importantly, agreed to by the state.”

Which won’t satisfy Arkley. “We’re headed to court if the county continues to stonewall us,” said Best. “If there is a lawsuit, it will be because the county’s asked for it.”

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Friday, July 07, 2006

Public Trust Doctrine Could Stop Balloon Tract Retail Development


By Elaine Weinreb, Humboldt Advocate

July 7, 2006

Although Security National’s proposed Balloon Tract development in Eureka is named the Marina Center, it does not contain a marina – or anything else that is related to water, boats, or the bayshore on which it is located.

This, according to the project’s opponents, could be the downfall of the project. Aldaron Laird, a local consultant specializing in regulatory compliance for water-related projects, has uncovered a doctrine buried deep in the heart of the California legal system that could bring the development to a stop, if anybody wanted to take it to court.

In researching old historical documents and records, Laird discovered that the Balloon Tract was once a tideland, an area that was covered and uncovered twice each day by the waters of Humboldt Bay. Even though the area was subsequently diked and filled, Laird says that legally the land remains subject to the doctrine of public trust.

The doctrine of public trust, which goes back to Roman times, and is the underlying basis of common law, says that resources such as the seashore, must be used in a way that benefits the entire public, not just a few people.

"The doctrine of public trust says that you can’t own the seashore, the air, the ocean, or the navigable waterways," Laird told the Humboldt Advocate.

"That became the basis of English common law. When California joined the Union in 1850, all its tidelands became its sovereign lands. All those lands are encumbered with the public trust."

Laird said that early state legislatures were under a lot of pressure to sell off tidelands, so that they could be diked and used for agriculture. "In the 1800’s, people had to raise all their food around here; they couldn’t bring it in. Flat land was at a premium, so the state legislature allowed the sale of all these tidelands. But the fact that they sold it doesn’t remove the public’s trust easement that’s associated with those lands. They can’t sell off the public trust easement."

"If you’re going to use Public Trust lands, they have to be used for a water-related purpose, because public trust lands are associated with public trust waters. Public trust can include industrial uses, and commercial uses, and recreation. But it has to be water-related. It has to have something to do with being on the seashore. You can’t just occupy the seashore for something that has no seashore relationship," said Laird.

Laird adds that public trust uses associated with shorelines include shipping, boating, fishing, swimming, the maintenance of open space, and the maintenance of natural ecosystems. Several court decisions have demonstrated that this legal principle is alive and well, and can trump other aspects of the law.

"There was a famous court case in Illinois," he said, "where the Illinois state legislature granted all the lakeshore frontage in Chicago to the railroad. They got sued, and the case went to the Supreme Court which said, ‘You can sell the underlying dirt, but you can’t sell the public’s right to use the shoreline of Lake Michigan.’ So the court reversed the state legislature and they took all the land back.

"A 1971 court case, called Marks v. Whitney, dealt with tidelands along Bodega Bay [in Marin County]. There was a property owner that owned the shoreline and wanted to block off access to the bay. All the other people said, ‘you can’t do that. What you bought is former tideland. We all have a right to go up there.’" The courts eventually ruled in favor of public access.

Unlike most legislation in the U.S., public trust doctrine can operate retroactively. "Look at the famous Mono Lake case in 1983," Laird said. "The city of Los Angeles was diverting all the streams that went into Mono Lake, so the lake was drying up. The court determined, based on the Marks v. Whitney case, that the public trust protects and preserves the natural ecosystem. The ecosystem of Mono Lake was dying. So they reversed the water rights granted to LA.

"LA said ‘You can’t do that. You gave them to us,’ and they said, "No, we own the water, we can take it back whenever there’s a valid reason. And protecting the public’s right to use Mono Lake and have a natural ecosystem trumps your right as a water right permit holder. So they reversed it."

Larry Glass, a spokesperson for Citizens for Real Economic Growth (CREG), a group that opposes the proposed "Marina Center" on the Balloon Tract, told the Humboldt Advocate that he was amazed to discover historical photographs of the Balloon Tract, showing large portions of it underwater.

"I’ve been stunned to learn about the true history and reality of the Balloon Tract, that actually half of it was part of Humboldt Bay, that within the past 60 years it was part of the bay, and that part that wasn’t part of the bay was mud flats," he said, holding out a large black-and-white photograph of a watery Balloon Tract. "I’d been led to believe that this had been a railyard since the 1800’s, but based on this 1948 picture, they had just started filling in the Balloon Tract in 1948 with dredgings from the bay.

"Sixty or seventy years ago, Clark Slough was a large freshwater stream that flowed all the way from a spring near Bucksport to the Balloon Tract," he continued. "This area was an important part of the ecosystem of Humboldt Bay. There’s a historical document, in which railroad passengers were complaining to the railroad about the naked children swimming in Clark Slough. Now the slough is just a little culvert, going under Waterfront Drive. That gives you an idea as to how much the environment has changed over this 60-year period of time."

CREG’s position is that the City of Eureka should have studied the area comprehensively and forced the Union Pacific Railroad to clean up the polluted site, before consenting to its development. The city, at one point, was offered a $45,000 grant from the Headwaters Foundation to develop a master plan for the Balloon Tract, but turned it down. Glass said that four of the five City Council members were heavily influenced by Rob Arkley, the owner of Security National, the company which is presently planning on developing the site.

"The city has never even asked the railroad to clean the site up or consulted with any agencies about getting it cleaned it up," Glass said. "This isn’t some poor little struggling railroad. This is Union Pacific, one of the fattest corporations out there right now, and Cherie Arkley’s worse case scenario of $12 million to fully clean the site, is four days’ profit for Union Pacific."

Another local group, the Humboldt Baykeeper, took matters into its own hands and took legal action against Union Pacific, to try to force them to clean up the site.

"Back in March we filed a 60-day notice against Union Pacific," Pete Nichols, spokesperson for the Humboldt Baykeeper, told the Humboldt Advocate. "The 60 days has since passed, so in early June we filed our lawsuit with the courts. We have two claims under the Clean Water act and another federal statute called the Resources Recovery Conservation Act.

"We’re saying that Union Pacific needs to be held responsible for cleaning up the contaminants on the Balloon Tract that are entering Humboldt Bay. Those contaminants are causing immanent and substantial endangerment to the environment."

Security National, the project’s developer, has said that they will place a cap over the polluted land, but Nichols has said that is inadequate and the site needs a much more extensive cleanup.

Nichols said that the case was being heard in the 9th Circuit Federal Court in San Francisco. Mark Lovelace, representing the local group called Healthy Humboldt, agrees with Laird and Glass, and says the "Marina Center" is an example of poor city planning.

"The Humboldt Bay Harbor Management Plan, the Humboldt Bay Harbor Revitalization Plan, the City of Eureka’s Zoning and General Plan, the Local Coastal Plan, and Eureka’s ‘Prosperity!’ strategy all say what should or should not happen on this property---and they effectively say ‘don’t do this here,’" he said.

"Public trust doctrine speaks to lands that are common to everyone," Lovelace said. "Ownership of these lands does not mean that you have the right to do something that is against the public interest. No one, regardless of their ability to own land, has the right to destroy resources that are needed for the common good."

Lovelace also faulted the City Council for not taking a more active role in planning for other possible uses of the Balloon Tract, and forcing the railroad to clean up after itself.

"The city has renovated its waterfront, and redefined itself as an attractive Victorian seaport," he said. "This is a property that has a 230 degree panorama of Humboldt Bay, over _ mile of waterfront frontage, and if that were ready for development you could pick and choose the type of developer you wanted. The city could be in the catbird seat. But because they haven’t said ‘word one’ about Union Pacific living up to its basic responsibilities, it’s been left in such a poor condition that people aren’t clamoring to build there."

"Two of those four city council members could turn this thing around and do something that they’ll be proud to have their name on, in the future, and not defending for the rest of their careers.

"Measure J from 1999 was very clear. It asked if the city should change the zoning of the Balloon Tract to Service-Commercial. 61 percent of the public said ‘No.’ It’s the only property in all of Eureka whose use has ever been put to a vote of the public. It’s the only use that the public has said we don’t want. But that use is exactly what they’re asking for now."

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