Citizens for Responsible Government v. City of Albany (1997) 56
Cal.App.4th 1199 , 66 Cal.Rptr.2d 102
[No. A073708. First Dist., Div. One. Aug 1, 1997.]
CITIZENS FOR RESPONSIBLE GOVERNMENT, Plaintiff and Appellant,
v. CITY OF ALBANY, Defendant and Respondent; LADBROKE RACING
CALIFORNIA, INC., et al., Real Parties in Interest and Respondents.
(Superior Court of Alameda County, No. 746987-9, Sandra Lynn Margulies,
(Opinion by Swager, J., with Strankman, P. J., and Dossee, J., concurring.)
Robert R. Outis, Weatherford & Taaffe and Daniel J. Taaffe for Plaintiff and
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
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
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
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
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).