COUNSEL

Robert R. Outis, Weatherford & Taaffe and Daniel J. Taaffe for Plaintiff and Appellant.

Manuela Albuquerque, City Attorney (Berkeley), Zach Cowan, Assistant City Attorney, Anne E. Simon and James L. Pierce as Amici Curiae on behalf of Plaintiff and Appellant.

Robert Zweben, City Attorney, Cassidy & Verges, Stephen K. Cassidy and Anna C. Shimko for Defendant and Respondent.

Remy, Thomas and Moose, Michael H. Remy, Whitman F. Manley and Paula A. Hartman as Amici Curiae on behalf of Defendant and Respondent.

Gibson, Dunn & Crutcher, Robert W. Loewen, Fred L. Pillon, Amy R. Forbes and Steven J. Johnson for Real Parties in Interest and Respondents. [56 Cal.App.4th 1205]

OPINION

SWAGER, J.-

Citizens for Responsible Government, a nonprofit public benefit corporation, appeals from a judgment of dismissal of its complaint for a writ of mandate and declaratory relief against the City of Albany (hereafter City) and real parties in interest, Ladbroke Racing California, Inc. and SF Casino Management Inc. (hereafter Ladbroke). We reverse in part and remand.

Procedural and Factual Background

The appeal concerns a series of actions by the City, culminating in a vote of the electorate, to permit cardroom gaming at Golden Gate Fields, a horse racing track managed by Ladbroke. The racetrack is the only present use on 160 acres of land, locally known as the Albany Waterfront, located along the shore of San Francisco Bay to the west of interstate 80. The underlying land in the vicinity of the racetrack is owned by Catellus Development Company which leases it to Ladbroke.

The waterfront is zoned for "commercial recreation" and allows the racetrack as a conditionally permitted use. The Albany general plan, adopted in 1975 and updated in 1992, assumes the horse racing facility "will remain unchanged throughout the planning period" but also contemplates "development of public parks and public access at the Waterfront." It states that "[g]aining increased park and open space lands and formal public access for this area are important City goals." For more than a decade, the East Bay Regional Park District has endeavored to assemble an Eastshore State Park and Bay Trail, ringing the entire shore of the Bay. The general plan provides that any future development must account for "the proposed park and open space development as part of the Eastshore State Park."

Reflecting public concern about the future of the waterfront, in 1990 the Albany electorate approved an initiative measure, identified as Measure C, which amended the zoning ordinance to require voter approval of any future zoning amendment, change in the general plan, or development agreement with the City which would have a material impact on the present use of the area. The measure was proposed and adopted as an exercise of Albany's legislative power as a charter city.

Golden Gate Fields racetrack is a major source of revenue for the City but it has experienced declining patronage. Crowds have fallen from around 15,000 to 20,000 people per day 10 years ago to a current range of between 4,000 to 10,000 people. In 1992, the city council formed a fiscal task force [56 Cal.App.4th 1206] and requested it to study the possibility of cardrooms at the racetrack. In a report given May 25, 1994, the fiscal task force announced that it had initiated discussions with Ladbroke on the subject of a cardroom and recommended further exploration of the proposal.

At a meeting on June 6, 1994, the city council directed its staff to prepare necessary documents to put a ballot proposal for a cardroom on the ballot for the next General Election under the authority of Measure C. The deadline for placing the measure on the November ballot was August 12, 1994. Apparently to expedite the proceeding, the city council rescinded its existing procedures for approval of development agreements reflected in resolution No. 85-78, relying instead on the less demanding procedural requirements of state law. (Gov. Code, § 65867.) Between June 6, and August 1, 1994, the city council held no fewer than seven public hearings relating to the cardroom proposal, and the planning commission held another four public hearings. This intense activity produced: (1) a zoning amendment allowing gaming as a permitted use in the waterfront area, (2) a gaming ordinance regulating cardroom gaming, (3) a 95-page development agreement with Ladbroke, and (4) a ballot proposal to authorize gaming within the city limits as required by Business and Professions Code section 19819.

As described in the development agreement, the gaming facility would be built largely in the northern portion of the existing grandstand structure of Golden Gate Fields but would include a new 2-story structure with up to 34,000 square feet, projecting no more than 80 feet into an existing parking lot and a porte cochere structure of up to 4,000 square feet. The entire facility would occupy a maximum of 125,000 square feet and would accommodate as many as 150 gaming tables serving between 800 and 1,000 people, together with restaurants, bars, and administrative areas. It would be open 24 hours a day, 365 days per year.

On August 1, 1994, the city council passed three resolutions ordering the development agreement, zoning amendment, gaming ordinance and authorization of gaming within the City be placed on the ballot for the General Election on November 8, 1994, as parts of a single ballot proposal, combining all legal approvals in one package. In the General Election on November 8, 1994, the ballot measure, designated Measure F, passed by 3,281 to 3,095 votes, or by a margin of 51.5 percent to 48.5 percent.

On January 27, 1995, appellant filed its petition alleging six causes of action in the superior court. The petition was subsequently amended to add two additional causes of action. The causes of action which are before us on [56 Cal.App.4th 1207] appeal are: the first cause of action alleging that City failed to comply with California Environmental Quality Act (CEQA) prior to submitting Measure F to the voters; the second alleging that City did not comply with the requirements of Measure C; the fourth challenging the constitutionality of the development agreement; the sixth alleging that Measure F violated Business and Professions Code section 19819; the seventh alleging that Measure F is unconstitutional; and, the eighth alleging that Measure F failed to meet certain city procedural requirements. The trial court dismissed the fourth, sixth, seventh and eighth causes of action after sustaining demurrers to those causes of action. A hearing was held on the remaining causes of action and this appeal followed.

Over a year later, and subsequent to the conclusion of the hearing in the trial court, the Albany city administrator and a Ladbroke officer executed an "Administrative Implementation Memorandum" dated February 7, 1996, in which they agreed that the City would prepare a full environmental impact report upon Ladbroke's submission of "a project application." Subsequently, the City, Ladbroke and the Sierra Club entered into an "Agreement Relating to Albany Cardroom" (hereafter Sierra Club Agreement), which the Albany mayor was authorized to sign by a resolution of an executive session of the city council on February 20, 1996. The Sierra Club Agreement states that "[n]otwithstanding anything to the contrary in the development agreement," the City would prepare an environmental impact report and adopt mitigation measures "to the extent required by CEQA."

The full decision can be found at http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/56/1199.html (registration required).