Metropolitan News-Enterprise


Monday, April 15, 2013


Page 1


Court of Appeal Rules:

Condemnation May Go Forward Pending CEQA Compliance




Failure to conduct mandated environmental reviews does not require that a certificate of necessity for the taking of private property be set aside, the First District Court of Appeal ruled Friday.

Div. Five rejected an appeal by the owner of Golden Gate Fields. The panel said the condemnation can go forward, subject to eventual compliance with the California Environmental Quality Act.

 The ruling allows the East Bay Regional Park District to proceed with plans to take eight acres of shoreline property behind the grandstand in order to complete the Eastshore State Park and construct a segment of the San Francisco Bay Trail. The Legislature authorized the district to complete the project, as agent of the state, in 1992.

The trail would eventually encircle the bay, linking nine counties and 47 cities and giving full access to recreational users.  joggers, bicyclists and others. The racetrack, although it has provided public access to the strip for a number of years, has been unable to reach an agreement with the park district as to the permanent acquisition of the land.

After the district’s formal offer of a little less than $1.7 million for the land was turned down, it began eminent domain proceedings in 2011. It passed a resolution of necessity, as well as a notice of CEQA exemption.

The district found that the project did not require an environmental impact report because it consisted “of the acquisition of land to protect open space and secure future public access to” the park and trail.

Trial Court Ruling

Alameda Superior Court Judge Evelio M. Grillo granted, in part, Golden Gate’s petition for writ of mandate. He ruled that the project was not exempt from CEQA because it included a number of aspects that did not fall within the claimed exemption, including the building of the trail, construction of fences and other structures, the loss of parking spaces, and changes to existing roads.

He determined, however, that the condemnation could proceed, subject to “an appropriate CEQA review,” as long as the district did not “actually acquire the property without first completing compliance with CEQA.”

Golden Gate argued on appeal that the ruling violated CEQA by changing the process of environmental review from a prerequisite to a project to one that will “be done to justify a decision already made and implemented.”

The district argued that the appeal was moot because an EIR and a superseding resolution of necessity were adopted late last year. But Justice Terence Bruniers, writing for the Court of Appeal, said the controversy was not moot in light of the racetrack’s argument that any EIR completed after the approval of a resolution of necessity is unlawful.

The jurist sided with the park district on the merits, however.

Bruniers said a trial judge who finds a CEQA violation has considerable discretion under Public Resources Code Sec. 21168.9 to fashion a remedy that will allow permissible parts of a project to go forward pending review of the remainder.

“...[T]he facts of this case are unique,” he wrote. “We are considering a project for open space preservation and recreational improvements.”

Argument Rejected

The justice rejected the racetrack’s concern that non-CEQA-compliant aspects of the project would go forward under the trial court’s ruling.

“There is no danger that construction of the improvements will begin without exploration of their environmental impact,” Bruniers wrote. “And, there is no danger that the District will be pressured to overlook adverse environmental consequences of a particular trail alignment because it has already spent millions of dollars acquiring the subject property rights.  In fact, the trial court specifically ordered that no acquisition would take place until CEQA review was complete.”

The justice acknowledged that the district has been expending public funds on the project since it initiated eminent domain. But there was no evidence that the sum expended was so great as to create “a strong incentive to ignore environmental concerns.”

The Bay Area News Group recently reported that another CEQA action is pending over the project, by a group called SPRAWDEF, which claims that the EIR filed regarding plans to renovate and restore Albany beach is inadequate. The racetrack property straddles the cities of Albany and Berkeley.

The case is Golden Gate Land Holdings LLC v. East Bay Regional Park District, A135593.


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