SHUTE, MIHALY & WEINBERGER
Attorneys At Law
396 Hayes Street
San Francisco, CA 94102
Telephone: (415) 552-7272
Telecopier: (415) 552-5816

Summary of Legal Opinions by Shute
(September 12, 1997)

By letters dated August 15 and August 25 I answered several questions pertaining to the McCracken-Byers property. This document provides a short statement of the questions and my conclusions. I have paraphrased the questions for simplicity.

Question 1 (August 15 letter)

If the County were to deny any development on the property because of the "Park" designation, would the owners have a takings claim?

Answer 1

The owners would have a very substantial case against the County for interim damages if the County were to deny development based on the "Park" designation.

Question 2 (August 15 letter)

If the County perceives a legal risk from defending the "Park" designation, what is likely to happen?

Answer 2

The County would not be likely to defend its "Park" designation and instead would be willing to entertain development on the property to avoid a takings claim. The amount of development the County would allow would be a product of planning considerations as well as the relative political power of the developer as compared to the opponents.

Question 3 (August 25 letter)

If the County were to allow 2 to 6 homes based on the existing zoning, would the owners have a strong takings case?

Answer 3

This question involves legal and factual issues. Experts for the County and owners would give their opinions as to whether 2 to 6 homes would cost the developer more to develop than the developer would receive from sale of the homes. The outcome of this battle of experts can not be predicted. But, given the costs of such litigation, it is likely that some effort would be made to settle the case by having the County amend its planning documents to allow more development. The amount of development which might be allowed would be a function of which side (the developer or the opponents) had the most political power.

Question 4 (August 25 letter)

Would a citizens group have a good lawsuit to require the County to maintain the "Park" designation and/or the existing low density zoning.

Answer 4

No. The County would be able to present a reasonable basis for allowing more development which a court would not reject. And, courts can not order the County to maintain or adopt particular legislation. The citizens group would have a very weak case.

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