2007-10-09 CS Submittal10 MILLER STARR
REGALIA
October 9, 2007
Via Hand Delivery
Mayor Beverly Johnson
Vice Mayor Lena Tam
City Councilmember Doug deHaan
City Councilmember Marie Gilmore
City Councilmember Frank Matarrese
City of Alameda
2263 Santa Clara Avenue
Alameda, CA 94501
RECEI
1331 N. California Blvd.
1? eek, CA 94596
2001 OCT -9 A H: 53
CITY OF ALi MEDA
CITY CLERK'S OFFICE
Re: Harbor Bay isle Associates, Inc. v. City of Alameda
Alameda Superior Court, Case No. RGO7- 330828
Dear Mayor, Vice Mayor and Honorable Councilmembers:
T 925 935 9400
F 925 933 4126
www.msrlegal.com
Arthur F. Coon
afc@msrlegal.com
925 941 3233
This office represents Peet's Coffee & Tea, Inc. ( "Peet's) and Citizens League for
Airport Safety and Serenity ( "CLASS "), proposed intervenors in the above -
referenced litigation. Peet's and CLASS are moving to intervene to protect their
interests against illegal relief being granted, either in litigation or in settlement
thereof.
We understand that you are meeting in closed session today to consider settlement
of this litigation. We assume that you are fully aware that Peet's and CLASS have
filed a Motion to Intervene which is scheduled for hearing on October 30, 2007 at
9:00 a.m. in Department 31, before Judge Roesch, of the Alameda County Superior
Court. We also assume that you are deliberately considering settlement in advance
of that time in disregard of my clients' legitimate rights and interests, despite
assurances by the City Attorney and staff that nothing of substance would happen in
the action until the intervention motion was heard.
Please be advised that, for the reasons stated in Peet's and CLASS' intervention
motion and proposed Complaint in Intervention in this matter, granting the relief of
general plan amendment and rezoning sought by plaintiff Harbor Bay Isle
Associates ("HB1A") in the lawsuit by settlement or otherwise is illegal, and
will be challenged if the City takes such illegal action. The City cannot, as a
matter of state law, amend its General Plan or rezone a property, including HBIA's
property adjacent to Peet's property and CLASS' neighborhood, through a
development agreement (present or past), or any other agreement. While a
Re: Agenda Item #3-A
Special City Council Meeting
Offices: Walnut Creek 1 Palo Alto 10-09-07
Mayor, City of Alameda
Vice Mayor, City of Alameda
City Councilmembers, City of Alameda
October 9, 2007
Page 2
statutory development agreement may allow a City to lawfully freeze the General
Plan designations and zoning classifications governing a project, neither a
development agreement nor any other type of agreement may legally "contract
away" the right of the government entity to exercise its police power in the future.
(E.g., Trancas Property Owners Assn. v. City of Malibu (2006) 138 Cal.App.4th 172,
181 -183.) Courts have not been hesitant to set aside settlements by public
agencies that have illegally contracted away their legislative discretion and the
police power under the guise of a settlement agreement.
In summary, we are extremely disappointed in the City's actions, and will challenge
any illegal settlement, through another lawsuit if necessary. The City may not agree
to exercise its legislative discretion through a settlement to redesignate or rezone
HBIA's property, and must follow all required procedures prior to taking such
legislative action, including full compliance with the California Planning and Zoning
Law and the California Environmental Quality Act. We wish to emphasize in the
strongest possible terms that failure to follow these procedures scrupulously,
or entry into any unlawful settlement agreement, is unacceptable to my clients
and will be challenged by all available legal means.
Very truly yours,
MILLEF7RR RE ALIA
Arthur F. Coon
AFC : klw
cc: Peet's Coffee & Tea
Citizens League For Airport Safety And Serenity
Allan Moore, Esq.
Wilson Wendt, Esq.
Teresa L. Highsmith, City Attorney, City of Alameda (e -mail)
PETC1466551714957.1