HomeMy WebLinkAbout09291975CITY
COUNCIL
MINUTES'
Special Meting
September 29, 1975
ITEM
Foothill, Litigation
Adjournment
CITY
of
PALO
ALTO
PAGE
239
246
234
913!/75
September 29, 1975
The City Council of the City of Palo Alto met on this date at 7:40 p.m.
in a Special Meeting to discuss foothills litigation; with Mayor No ton
presiding.
Present; Beahre, aervald, Carey, Comstock,
Clay (arrived 7:55 p.m.), Syerly,
Norton, Sher, Witherspoon
Absent: Nona
i3tiy.7 ia A i 1
Mayor Norton opened the meeting by stating that its putpose was rather
special in that it was to consider, principally in Executive Session, the
impact of and response to the opinion in the Arastra Case. He said Council
would hear from the public for one hour; but upon the advice of the City
Attorney, no Council er would answer questions or r :spard in any way to
comments made by any speaker. Lack of responses on the part of Council, hoa-
ever, should not be construed to be eFcquiescencs Mayor Norton invited the
public to address council.
Nils Nilsson, 150 Coquice ay, Menlo Park, President of the Committee for
Green Foothills, made the following statement on behalf of the Board of
Directors of thee organisetion: "We on the Committee respectfully urge you
to authorize the City Attorney to immediately appeal Judge Schnacke'e
decision in Arastra Limeted Partnership versus the City of Palo Alto. It
is our belief that the city's Open Spaces Ordinance was validly enacted after
careful consideration of enviroumental and other factors. The zone was,
and is, au imaginative, innovative step in protecting our fast shrinking
open space while at the same time allowing the der an economic use
of hia property. We were, thus, extremely disappointed with the Court's
decision. Our reading of the Judge's opinion indicates to us that he has
misunderstood the relevant facts; and his reasoning, if allowed to stand,
represents a sharp and distinct threat to the protection of open space
through sonins. Palo Alto has bed a Ioof and outstanding commitment to
enviroumental protection. We sincerely hops that you will continue that
fine record by authorizing the City Attorney to proceed with the appeal
in this case."
Jean Dawes, 350 Santa Rita, Vice Prestdeut of the liidpeninsu1a Citizens
for Fair Housing, wade the following et+eteMOtt for that organisation:
"The City Council has three options to consider tonight in naking its
decision about the foothills: I) It :,.an appeal Judge Schnacka's daoieioa,
2) 2't can purchase the laird to preesrvae it in permanent open space, 3) It
can settle with the developers in some nnttually acceptable way. Either
of the first two elte atiyes retains the Land in open space (at least
temporarily) , The eattleneut process, hoover, Will involve a number of
complex decisions. Council west be aware of the tremendous implications
of theme decisions if it decides to negotiate a oettlement. fifteen
to seventeen hundred units were originally proposed for the land
in question. This quantity of housing, or even half that amount,
would dramatically alter the basic premiss of both the Housing
Assistance Plan end the Moseing *le aaat. The impact of developing
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the foothills must be reflected in the Housing Element. If Council
is even considering settlement, opportunity should be provided for
careful consideration of this option by the staff, Comprehensive
Plan consultants, and Planning Commission, as well as interested
citizens. MCFH is concerned at the probable cost of the housing
that would be built in the foothills. If Palo Alto is to dramatically
increase the number of units which may be added to the housing stock,
it must consider how it will include some housing for lower paid
Palo Alto employees. Traffic implications, while not directly within
MCFH's area of concern or expertise, are obviously of major significance
also and affect the housing we already have. We urge very careful
deliberation of any alternative that would open the foothills to
residential development,"
Robert J. Debs, 3145 Flowers Lane, addressed Council as a former
Councilmember. He said that each present Councilmember campaigned
for his Council seat oa the grounds that he wished to make this city
a very fine place to live. Mr. Debs believed that it was the responsibility
of each Councilmember to appeal this court decision, regardless of
his individual philosophy in this particular case, for two reasons.
One was to protect the residents of Palo Alto from heavy financial
costs. The other reason was that Council should argue t' the limit
for the right to do long range planning and zoning for the ui t?.mate
good of the city.
Peter J. Gic. ,iis, 858 Rorke Way, made the following statement on
behalf of the Palo Alto Civic League: "The Palo Alto Civic League
requests th4t the city appeal Judge Schnacke's decision. The city
staff, Planning commission, outside consultants, and Council have
decided there were valid reasons for zoning the lower foothills as
open space. The City Council, as part of its power as ultimate planning
body, decided on the lower foothills zoning. We should not accept
one judge's decision as to whether the zoning was proper and within
the city's authority. The decision is so important to us that an
appeal should be taken. The long range implication of this decision
is that the city will lose its ability to control its destiny. This
issue deserves consideration by a higher judicial body. An important
point, perhaps overlooked, is that besides deciding whether t*etxe
were proper zoning or inverse condemnations, the decision 'clearly
implies that the zoning was fraudulent and merely a cover for the
city to confiscate the property. Some phrases used in the decision
were: 'on the pretense of protecting against non-existent Wizard'',
'the recitation of imaginary or non-existent hazards', and 'not a
bone fide attempt to impose limitations'. The whole flavor of the
opinion is that the City Cauacil is operating in an underhanded manner
end not operating in good faith. An appeal Should be made if only
to defend the integrity of the Council embers who voted for the open
space zoning. The vote was eight to one. Of the present Council,
Mayor Norton„ and Councilmambars Comstock and gervald voted for the
zoning along with ex.-Cou ciimiers Pearson, Henderson, Sossabaum,
Seeman, and Clark. It is one thing to find a City Council did not
make a legally recognised use of its zoning powers, and it is quite
another to impugn the integrity of the then existing Council."
Jahn S. _ Johnston, 813 C ro Way, Stanford, made the following statement
on behalf of the League of Women Voters of Palo Alto: "Aqe you know
from our letter of September 22, 1975, the League of Woman Voters
of Febo Alto believes that yon should appeal the decision medal by
Judge 8Chnecke. We believe that, with the appeal, it is important
to clarify the validity of the Open Space Zoning on the Arastrc parcel..
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110
There were several major factors taken under consideration by League
members, the community, a;td the Palo Alto City Council which, in
our opinion, Judge Schnacke'a decision does not adequately address.
One factor is fire hazard. In 1970 the State Division of Forestry
ranked Palo Alto foothills 4 in the state (out of 121 districts)
in potential fire loss, A City Report in 1968 pointed out that 1,000
acres could burn in one hour. Whale the Livingston and Blaney Report
#J said thct full development would reduce the fire danger, paradoxically
any development with grassland remaining would greatly increase the
fire hazard. League members believe that there are also geological
considerations to weigh in malr.ing foothill planning decisions. And
what would be the flood hazards? Where wnu2d the additional cars
from housing and industry in the foothills go? These were part of
the public safety and public cost considerations that were a factor
in the Council's deliberations in 1971 and 1972. The Council members
were not, es implied by Judge Schuacks, devious people. They were
nine thoughtful people responding to the concerns of their community.
League members believe that this court decision is unfair to this
community and urge its appeal to the higher court."
Joseph D. Harrington, 1788 Oak Creek Drive, said it seemed that land
developers were joining the ranks of munition makers and aircraft
manufacturers in seeking to be protected against the hazards of doing
business and having their profits protected by the government. Mr.
Harrington stated that the hazard in this particular case was one
of change, which is implicit in any development today. He thought
that ten years ago, a land developer could feel he could begin a
project and carry it to completion within a fairly consistent set
of economic limo, No land developer in the last five years, since
the passage of the Environmental Protection Act, would be so naive.
Mr. Harrington consented that the present plaintiff was not naive,
yet they were suggesting that the rigid coaditicna of 1969 should
prevail in 1975. During that period, they were well aware of studies
and changes that were made which modified the whole complexion of develop-
ment. The complaint implies that Palo Alto passed certain eoning
ordinances blindly and without sufficient evidence to indicate hazards,
etc. What was known both to the city and to the plaintiff was that
there was a major study being undertaken by the United States Government,
sponsored by Housing end Urban Development and conducted by the United
States Geological Survey, This study encuspasesd the nine bay counties,
was funded for several million dollars, and was to be conducted over
a period of five Co six years. This all began in 1969, and it is
continuing. The shady embraced geological factors, hydrological
Bettors, and all of the aspects of the earth sciences of which those
groups are comopetent. Every day these continuing studies are changing
the ccmzplesion of land development. These fasts are known to the
plaintiff, yet he purports in his complaint that the city acted blindly.
Mr. Serrington noted that those studies, as they, come out, are modifying
development plans end open space elements all over the peninsula.
The latest one 4r Harrington had come across without a great deal
of study wee the one done by San 14ateo, in which the residential
density of open space was changed from en ill-defined qaentity to
the decision that one unit per five acres was the highest density
cam ►etible with the area designated for open apace. That vas considered
to beethe maximum density which would s.aitttain the open visual character
of the area while providing reasonable aseurance of groused water
availability, septic tank suitability, etc. They go from one unit
in five agree to one unit in forty acres. Some other study sight
make zbsngrs in air quantities. What Mr. Harrington was pointing
out was that chenge is implicit in land development today. These
studies are making their impact on whet is permitted today; and what
was permitted six years ago, is not necessarily permitted today.
If tonight theta were a tremor that shook the peninsula and left
rifts through the 331 acres of the questioued property, opening it
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i
up and rendering it completely worthless for residential purposes,
would the city face the same damage suit? Mr. Harrington thought
that vas the key question.
Charlotte Jackson, 3498 Janice Way, rude the following statement
for the Palo Alto Branch of the American Association of University
Women: "Judge Schnacke'e decision of September 15, 1975 concerning
the open space zoning ordinance of the Palo Alto Foothills is very
persuasive; however, we believe it is based on the assumption that
the most significant value of the land is the economic value. In
spite of his lengthy and detailed discussion of the subjects of condemnation
and eminent domain, we feel the decision baeically ignores the right
of a city to use the zoning power in its own beat interests and in
this case, the greater good of the greater number of citizens. Judge
Sc.anacke failed to point out that the provision of urban services
to a development proposed on the 5153 acres of Arastra Land would
be extremely costly to the other taxpayers of Palo Alto and the city
treasury as pointed out in the Livingston & Blayney Report on the
foothills. Surely city government has the responsibility to avoid
this unfelo- economic situation. In retrospect, perhaps the city could
have handled the negotiations with the Arastra Land Company in a
somewhat more diplomatic manner. However, the circumstances involved
with a land corporation determined to make the best profit from a
monetary inves went versus a city determined to do what is best for
all of its citizens undoubtedly affected the events leading up to
the zoning ordinance. If the Arastra Land Company paid for development
rights that were not guaranteed (which they probably almost never
are in any land transaction), then they paid too much for the land
and should be held responsible for their own fiscal mistaken and
not the City of Palo Alto. Contrary to Judge Sehnacke's viewpoint,
economic gain should not be the inherent right of the buyer of land.
Again contrary to Judge Sehnacke's position, we agree with the quotation
on page 33 of the decision which atates, 'there was reasonable justification
for the legislative action, the court may not substitute its judgement
for that of the legislative body'. Because we strongly believe in
the open space value, we do not feel that the ordinance was 'unreasonably
oppressive or confiscatory' as the ruling states: It was based on
the well prepared Livingston & Blayney Report, In our opinion the
'health and safety factors' in the Open Space Ordinance of 1972,
referred to on page 35, are valid and should not be dismissed as
only factors for justification of the ordinance itself. The risk
of firs hazard in the foothills would seem great to us whether it -
be in terms of chaparral and other oaks or in terms of human life
and property due to the length of time it takes for fire fighting
equipment to reach these. The land in question it presently in a
state of natural equilibrium which should not be destroyed. It has
been estimated that the building of homesites, etc. may cause the
soil to 'creep' at the rate of one to five inches per year. Additionally,
citizens who hove taken field trips to the Arestrs property assure
us that the land does possess watershed characteristics which should
be preserved. It is time for the Federal Courts (since the Federal
Legislature remains unable) to make decisions which will strengthen
the position of local government is preserving open space. We believe
there is simply not enough aos.y..in the public treasury to buy all
of the land, that should - be left open for agriculture, for reasons
of public health and safety mud for the wellbeing of man in general.
Land is of value to and of itself which man cannot describe in economic
terms. Therefore, the use ofsening der - is a valid and rsaoonebls
tool of local government in safeguarding this value. We respectfully
urge that the Palo Alto City Council vote in favor of an appeal."
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Frank Cruet, It, 1701 Bryant Street, spoke as the representative
of three property owners in the foothills. He thought there was
something of a misapprehension about Judge Schnacke's ruling. The
Judge did not rule the city ordinance invalid, and Mr. Crust did
not argue with the laudable purpose of the ordinance. He said he
was in favor of open space in the foothills. :.owever, the Judge
did decide that a few property owners in the foothills should not
bear the burden for the privilege of the many who lived in the flatlands
to be able to look up and enjoy the open space; and that was the crux
of the decision. The question was simply one of who would pay, and
the Judge decided it was totally unethical and unfair for a few property
owners to pay for the privileges of open space, trails, wildlife,
etc- Mr. Crier reported that he had just heard of the decision in
the Eldridge Case, and the Stite Appellate Court upheld that the
City of Palo Alto's zoning ordinance was invalid on the basis that
the multitudes should pay for the privilege of open space. So now
there wsa a second decision that was contrary to the ordinance that
hod been passed by a previous City Council. In that opinion, it
was also indicated the Beyer case decision - unless there were certain
distinguishing factors - would be reversed. Mr. Crist felt that
Council, In deciding what to do, would have to tame several factcre
into consideration. It was a known fact that Palo Alto has spent
over one-half dollare on legal fees, so far. Before the
city finishes with ail of its fees, it will be spending one and one-
half to two million deltara. He pointed out there were some viable
alternatives. The city had the ability to negotiate now to buy some
open space, and it had the power to provide for some flexibility
so zoning could be granted in the pits of the valley in order to
preserve the vistas. If Judge Schnacke's decision is upheld, Palo
Alto would be buying the foothills. It seemed to Mr. Crist that
there was time for Palo Alto to face the reality OA two coures
had held against it and go ahead and eo asider alternatives. He pointed
out that the city had created unbelievable hardships for the owners
of the land in the down -zoning, and it was necessary for Palo Alto
to take into account the moral and ethical questions. Mr. Crist
commented that he always felt the purposes of the city were honorable,
but he eerioualy questioned the ethical right of making a few people
who own property in the foothills pay for the privilege of everyone
else being able to enjoy the view. It was really the duty of 50,000
people to help pay for such a privilege - not the duty of eleven
property owners.
Lien Henderson, 1935 Emerson Street, referred to Mr. Giamalis' earlier
comment that five of the eight Councilaember'a who voted for the open
space stoning were no longer on Council; end he was one of those five.
Since he was a party to the suit, Mr. Sanderson did dot feel he shott.'_0
go into any details in the case, although that was difficult after
bearing the last speaker. Mr. Henderson wanted to state publicly,
homear, his strong euppeort for the appeal of the case; and he urged
Council to take that action. He remarked that he learned quite a
bit during lest spring's campaign; and one thing he could may for
certain wea that m large majority of Palo Alto citizens continue
to strongly support the zoning action taken in 1972. Mr. Henderson
was certain those people would support the appeal of the case,
freak JManfredi, ?19 Addison Avenue, said that all of this reminded
him of the gannet of leap frog. First one Council leaps one way, and
then another Council leaps the other. Mr. Manfredi stated that the
only important part of this entire situation was that all of the
people must have the benefit of that land. He said Mr. Crist's cats
could be disregarded because he was speaking for the developers,
and be bad a financial interest. The people who owned the iamd bought
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it for a very email amount of money, and now those same people want
to milk the City of Palo Alto for millions of dollars for land they
have held for ten to twelve. years. Mr. Manfredi felt strongly that
Palo Alto had the right to limit the number of people in Palo Alto,
and it should do that. In Mr. Manfredi's opiglon, the land belonged
to the people; and it should be kept in open space. He concluded
by saying that people are more important than money and by asking
Council to appeal the decision.
Robert Mark, 725 Cowper Street, urged Council to appeal the decision.
David Fletcher, 2020 Waverley Street, speaking as a taxpayer and
a citizen, said he had been very concerned about the city's policy
with respect to the foothills right from the beginning of the adoption
of the open space zoning. His own opinion was that the city, in
pursuing this policy of attempting to maintain park and open space
through zoning, has been in error. The court has found that the
city has been over -reaching in this situation. It' has over -reached
the rights of the property owners; and although there was substantial
consensus in Palo Alto to maintain that area in open space, it was
time for Council to face up to the fact that the open spate zoning
was a subterfuge to acquire the property without having to pay for
it. Mr. Fletcher stated the land was a valuable resource, but the
property owners also had rights. The Fifth Amendment was still the
lava of the land - government shall not take land without due compensation.
If the facts as set forth in tbs decision were correct, then Mr.
Fletcher submitted to Council that the decision was correct. That
leaves the city with two alternatives. One of these would be to
attempt to restore the status quo, thus putting the property owners
back into the position they held prior to the open space zoning.
If Palo Alto decides it does not want to do that and prefers to maintain
the open space, it should decide how the money would be raised to
buy the property. Mr, Fletcher did not feel it was unfair or improper
to ask future generations of Palo Alto to help pay for the open space.
Hs pointed out there were essays through bonded indebtedness to spread
the coat over eeveraf generations, and he thought the taxpayers would
support raising money in that manner, Mr. Fletcher suggested that
Council take a straightforward approach, negotiate with the property
owners, purchase the property, and have open space in a constitutional,
fair way - protecting the interests of both the property owners and
the citizens,
large Sutton, 609 !Waits Street, Los Altos, representing Tho Sierra
Club, 1175 ysoa Street, Palo Alto, said the issue is the right
of a city to nee the police power to regulate the uses of land.
The whole situation with resources is very different from whet it
was *von ten years ago. There are limited finite resources now,
and everyone was having to face a very different kind of approach
to regulate and control their use. :;easy speakers had mentioned the
need to control land in order to protect people from hazards and
the a orbitant coat of the servicing of foothills land - which was
one of the reasons the sonins wee mebarkc_-"', upon in the first place,
Palo Alto has a stoat deal of rec oetionel Lead, and Ms. Sutton felt
the Council very wisely determined that this land lad to be protected
by zoning with use of the police power because of the need for public
recreation areas. She hoped that Coun►c4i would decide to appeal
the decisioa.
Mayor Porton commented that a good number of lettere and telephone
calla had been received; therefore, Council had quits a lot of input
from citizens on this matter, lie asked if anyone else wished to
address Conseil.
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Barry Girard, speaking for the Committee for Green Foothills, remarked
that the opinion handed down seemed to indicate that the zoning was
simply a subterfuge and bad faith on the part of Council. The opinion
nowhere indicates that there was a change in the Council after
November 1970, when, the opinion states, the Council unequivocably
made the decision to purchase the property. The citizens, by the
election of new members of Council in May 1971, did make a change
in policy - which the city then carried out. It is important for
local. governments to have the ability to respond to these changes,
and this decision certainly cuts against that. Another point is
that if, in fact, the city has to accept the decision, the Court
offers no option. In effect, the Court is calling the zoning ordinance
"invalid"; and the city will have to purchase the property. Ma.
Girard felt that rather than having the ordinance considered invalid,
it should be null and void. The city could then write a new zoning
ordinance or start again with new policies; however, the Court should
not be simply calling the zoning ordinance invalid and sending it
back to the city.
Elizabeth Keins, 1985 Cowper Street, mentioned that the present Councilmembers
have all spoken out individually in favor of open space and of preserving
the lower foothills. There was a hard campaigu in the spring; and
everyone running for office came out in favor of that issue even though there
was disagreement on other issues. Ma. Kains was aware there was
some disagreement as to the means of reaching the desirc-i end. She
urged Council to appeal the decision.
Lawrence Klein, 1433 Dana Street, believed tEte.t Mr. Crist and Hr.
Fletcher profoundly misunderstood the police powers of a municipality
through zoning. As Judge Schnacke admits in his decision, the United
States Supreme Court has upheld zoning where it decreased the value
of the property involved by more than ninety percent. Mr. Klein
commented that the zoning power is essential to any municipality
if there is to be intelligent land use in our communities and rot
have development run rampant, lie added that any time an intelligent
landowner buys a piece of property, he has to take as one of his
risks the fact that the zoning might change. There are no givens
in zoning, and anyone who believes there ars is not being realistic.
Mr. Klein stated there ware no givens in many areas of life. Various
governmental actions cause the stock market to go up and down, yet
no one believes hs has a guaranteed profit in the stock market.
Why do landowners feel they are any different? He said it is clear
from various Supremo Court decisions and from our own Federal Ninth
Circuit Court of Appeals with its recent Petaluma decision, that
local wznicipelitiet are empowered through the zoning authority to
make various changes to protect the citizens of their communities.
That this is a risk landowners have to chi a is ate of the facts o!.'
economic life, Mr. Klein wished to associate himaslf with those
via*, have urged Council to appeel the decision. It ceased to him
that there were two aspects of an appeal. The first referred to
the validity of the zone. Judge Schnaacka goes to great length to
say that ha is not finding the sons invalid; but, indeed, he is,
and it would be disingenuous to sty the contrary. The judge found
that the sons had no valid baais; and it seemed to Mr. Klein that
if that ware so, the ordinance could not stand. This, to him, was
the crucial issue with regard to the appeal. Not only would that
decision have an effect on this particular care, but it also has
d very serious affect an the other foothills cease which aye pending.
In other words -what gore on with the validity of the zone in this
case could have an effect on the other foothills cases. Mr. Klein
pointed out that the other foothills cases involve very serious fact
differences. Some of these involve very steep, basically unda'valopabls
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land; none of them involves any discussion that they were going to
be acquired by the City of Palo Alto; and things of that nature.
Therefore, it would be extremely unfortunate to allow this decision
to stand which casts some very serious doubts on the validity of
the ordinance. The other aspect of the appeal is less significant,
and that is what the appropriate remedy would be if the judge is
correct in his view. In the decision, the judge stated the only
alternative was to buy the property; and that is certainly appealable.
Mr. Klein urged Council not only to appeal, but to make it very clear
in the appeal that the validity of the zone is what the city is trying
to establish.
Ginger Wilson, 931 Lincoln Street, commented that she has been in
this area just long enough to see all of the orchards disappear;
and she did not wish to see the rest of the community's land disappear.
Barbara Silbeeling, 1421 Emerson Street, urged Council to appeal
the decision.
Tom Smith, 119 Bryant Street, noted that most people who came to
Palo Alto paid for their property.
At 8:30 p.m., Council adjourned to Executive Session. Following this
sess4on, Robert A. Booth, City Attorney, made the following statement:
"Tonight the City Council authorised attorneys for the city to seek
permission from the Trial Court and the Ninth Circuit Court of Appeals
to take an immediate interlocutory appeal to the Ninth Circuit from
the recent decision in Arastra Limited Partnership versus the City
of Palo Alto. The Council also authorized the attorneys to seek
a rehearing of the California Court of Appeal on its split decision
filed September 26, 1975 in the case of Eldridge versus the City
of Palo Alto, or to prepare a petition for hearing by the California
Supreme Court".
ADJOUNMENT
The Executive Session was adjourned at 12:03 a.m., September 30. 1975.
APPROVE:
ATTEST:
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