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1 THOMAS J GEARING Esq, SBN 121473
LAW OFFICES OF THOMAS J GEARING
2 12445 Woodhall Way
Tustin, California 92782
3 Telephone: (310) 497.8556
Email: thomasgearing@aol.com
4
Attorney for Father and Son
5 Thomas J. Gearing and Daniel K. Gearing
6 SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN MATEO
7 CITY OF HALF MOON BAY, Case No. 21-CIV-01560
8 Plaintiff, THIRD AMENDED CROSS-COMPLAINT BY
DEFENDANTS AND CROSS-COMPLAINANTS
9 v. THOMAS J. GEARING AND DANIEL K. GEARING
42 U.S.C. § 1983 CIVIL RIGHTS ACTION FOR
10 THOMAS J. GEARING; DANIEL K. UNCOMPENSATED TAKINGS IN VIOLATION OF
GEARING; DOES 1 through 50, inclusive; THE FIFTH AMENDMENT INVERSE
11 and all persons unknown claiming an CONDEMNATION; VIOLATIONS OF
interest in the property, SUBSTANTIVE DUE PROCESS RIGHTS;
12 VIOLATIONS OF PROCEDURAL DUE PROCESS
Defendants. RIGHTS; VIOLATIONS OF EQUAL PROTECTION
13 _____________________________________ RIGHTS; DAMAGES FOR DIMINUTION IN
PROPERTY VALUE RESULTING FROM
14 THOMAS J. GEARING AND DANIEL K. UNREASONABLE STATEMENTS, DELAY, AND
GEARING, OTHER CONDUCT KLOPPING V. CITY OF
15 WHITTIER, 8 CAL.3D 29 (1972); FOR
Cross-Complainants, DECLARATORY RELIEF AND INJUNCTIVE
16 RELIEF TO RENDER VOID HMB’S VOTER
v. INTIATIVE RESIDENTIAL GROWTH CAP
17 GOVERNMENT CODE § 66300; FOR
CITY OF HALF MOON BAY, COASTSIDE DECLARATORY RELIEF AND INJUNCTIVE
18 LAND TRUST and DOES 1 through 100, RELIEF TO DETERMINE THE RIGHTS OF THE
inclusive GEARINGS UNDER THE CONSERVATION
19 EASEMENT PLACED ON THE PUBLIC ACCESS
Cross-Defendants. STREETS; REQUEST FOR DECLARATORY
20 RELIEF AND INJUNCTIVE RELIEF TO
DETERMINE THE RIGHTS OF THE GEARINGS
21 PERTAINING TO HMB BLOCKING AND BERMING
VEHICULAR TRAFFIC ON THE PUBLIC ACCESS
22 STREETS; PUBLIC NUISANCE, PRIVATE
NUISANCE, FAILURE TO ABATE ARTIFICIAL
23 CONDITION ON LAND CREATING NUISANCE
AND FOR RECOVERY OF REASONABLE COSTS,
24 DISBURSEMENTS, AND EXPENSES, INCLUDING
REASONABLE ATTORNEY’S FEES, AND
25 APPRAISAL AND OTHER EXPERT FEES 42 U.S.C.
§ 1988; CCP § 1036; CCP § 1250.410; CCP § 1021.5
26
Complaint Filed: March 23, 2021
27 Jury Trial Demanded
28
1
THIRD AMENDED CROSS-COMPLAINT BY THOMAS J. GEARING AND DANIEL K. GEARING
1 I. PROCEDURAL POSTURE
2 1. It is undisputed that the Federal and State courts have coequal powers to adjudicate Federal and
3 State court claims. The City of Half Moon Bay (“HMB”) does not dispute this. Thomas J. Gearing and
4 Daniel K. Gearing (collectively, “the Gearings”) asserted their claims in state court. It is undisputed after
5 demurrer the Hon. Judge Danny Chou kindly gave the Gearings through their previous lawyers the
6 absolute right to file an amended complaint to draft their lawsuit correctly. There was no question or
7 issue that the Gearings 42 U.S.C. §1983 Civil Rights action for Inverse Condemnation and the Gearings’
8 state cause of action for Klopping v. City of Whittier (1972) 8 Cal.3d 39 was and is before this State
9 Court.
10 2. The issue before the court was whether the Gearings’ previous lawyers adequately allege causes
11 of action in this state court for 42 U.S.C. 1983 Civil Rights violations for deprivation of the Gearings’
12 Federal Constitutional rights under Federal Due Process and Federal Equal Protection Clauses. The clear
13 unequivocal decision of the Hon. Judge Chou was that the Gearings’ previous lawyers did not make the
14 proper allegations to sustain their causes of action but kindly gave the Gearings the right to file an
15 amended complaint.
16 3. The Hon. Judge Chou ruled that HMB attorney Catherine Engberg, Esq. acting as a matter of
17 law as HMB’s zoning administrator made a final decision when she denied the Gearings application for
18 building permits. That decision became final, there was no motion for reconsideration, and no
19 interlocutory appeal. Therefore, HMB was and is bound by the court’s ruling under the principles of
20 Judicial Estoppel. The decision was sound, logical, and well reasoned as HMB candidly admitted in
21 their own moving papers to the court that HMB had made a “final decision”. Furthermore, it would be
22 disingenuous of HMB to proclaim they were going to allow the Gearings to exercise their Vested
23 Constitutional Right to build one home on one legal lot in an already existing neighborhood after they
24 and their predecessors in title paid taxes to the Government, San Mateo County, for 118 years as R1 B1
25 legal lots and HMB through judicial admissions in their answer to the complaint HMB admits that those
26 tax payments went to the benefit of the Government, HMB, to establish that city and its governmental
27 duties and the creation of its infrastructure in the neighborhood where the Gearing’s legal lie to build a
28 home to fulfill the American Constitutional Right, when at the exact same time they were proceeding at
2
THIRD AMENDED CROSS-COMPLAINT BY THOMAS J. GEARING AND DANIEL K. GEARING
1 breakneck lightening speed and did in fact file their retaliatory eminent domain cause of action to take
2 the Gearings’ property.
3 4. Moreover, the court ruled that it would have been futile to challenge HMB’s decision that they
4 made a final decision, as HMB’s LUP section 9.3.5 and its Gov. Code §§ 65103(b) and 65450 Specific
5 Plan requirement, a legislative act, that only applies to a developer who applies seeking to build the
6 entire PUD was impossible and onerous to comply with. For example, it mandated that the Gearings do
7 a “complete re-planning, re-platting” of all the approximately 150 legal lots in the WRR area.
8 Accordingly, the Hon. Judge Chou ruled that the Gearings’ state, Not Federal causes of action for
9 Inverse Condemnation, Due Process and Equal Protection were time-barred, and dismissed them
10 because in state court that decision must be appealed within 90 days. 1 On the Federal causes of action
11 for Inverse Condemnation, Due Process and Equal Protection there is no such statute of limitations. On
12 the state claims the Gearings concede to the Court’s order and in no way are trying to reassert those
13 state causes of action.
14 5. Upon the Hon. Judge Chou’s kind granting of the Gearings’ right to file an amended complaint
15 on the Gearings’ Federal causes of action for violation of their 42 U.S.C. § 1983 Civil Rights action for
16 their Federal Due Process and Federal Equal Protection rights based on a properly alleged complaint to
17 give them their day in court, against the Gearings’ will, their previous lawyers punted those claims back
18 to the Federal Northern District Court on English reservation causing an unwilling bifurcation of the
19 Gearings’ righteous claims. The Federal 42 U.S.C. § 1983 Civil Rights action for Inverse Condemnation
20 and the State cause of action for Klopping are in this state court and the Federal 42 U.S.C. 1983 Civil
21 Rights action for violation of the Gearings Due Process and Equal Protection causes of action in the
22 Federal Northern District Court on England reservation. See footnote 2.
23 6. HMB’s lawyer Sarah Sigman recognized the Gearings absolute right to bring back to the State
24 Court the Federal Constitutional claims for violation of the Gearings Federal Due Process rights and the
25
1 It
will be demonstrated to this State Court through the Gearings' pleadings and evidence that when HMB denied the
26 Gearings’ application for building permits to exercise their Fundamental Constitutional Vested Right to build One home on
One Legal Lot, HMB denied the Gearings their Federal Constitutional Right to Procedural Due Process of the Law by
27 offering no recourse by appeal to the City Council, no appeal to the San Mateo County Superior Court by Writ of Mandamus,
and gave no warning to take action to file a petition for writ of mandamus into Superior Court within 90 days to challenge
28 their administrative decision. Simply put No to your Constitutional Rights and No Recourse.
3
THIRD AMENDED CROSS-COMPLAINT BY THOMAS J. GEARING AND DANIEL K. GEARING
1 Federal Equal Protection Rights that had been punted to the Federal Northern District Court on England
2 reservation against the Gearings will. Accordingly, HMB and the Gearings reached a stipulation with
3 HMB whereby the Gearings could bring those claims back to the state court without leave to amend.
4 7. On May 16, 2023, at 4:28 PM, the Gearings requested of Attorney Sarah Sigman in the last
5 paragraph of the correspondence, “I also would like to meet and confer with you, about voluntarily
6 allowing me to file a third amended complaint. I am quite certain when you see the newly amended
7 complaint you will agree it’s proper and there will be no need to file any further actions to attack the
8 pleadings.” Attached hereto as EXHIBIT A and incorporated by reference is true and correct copy of
9 that correspondence. On May 25, 2023, at 10:59 AM, Counselor Sigman responded by stating, “Finally,
10 please clarify the status of your various claims especially in light of your plan to amend the cross-
11 complaint. The second amended cross-complaint expressly reserves the federal equal protection and due
12 process claims for adjudication in your federal case. Do you intend to amend the claims that are
13 currently reserved from this case or to withdraw the reservation? The city would oppose amendments to
14 reinstate the state constitutional claims for which the Court previously sustained the city’s demurrer
15 without leave to amend.” Attached hereto as EXHIBIT B and incorporated by reference is true and
16 correct copy of that correspondence. The Gearings would never defy this Court’s order and attempt to
17 bring back the state causes of action which it dismissed. Accordingly, on May 25, 2023, at 2:40 PM, the
18 Gearings responded in the last page of their correspondence and stated, “alternatively please consider
19 letting me to do a reverse English, so to speak, and let me bring them back to the state court. I will
20 amend them into the 3rd amended complaint. Then I will bring a motion for summary adjudication on the
21 per se taking arguments and the due process and equal protection arguments.” Attached hereto as
22 EXHIBIT C and incorporated by reference is true and correct copy of that correspondence. On May 26,
23 2023, at 4:39 PM, Counselor Sigman honorably agreed by stating, “you are welcome to reverse the
24 England reservation and litigate those claims in state action. As I said in my previous email yesterday,
25 the city will oppose an amendment that reinstates any claims that the state court has denied without
26 leave to amend, but it will proceed on the merits of the federal claims.” Attached hereto as EXHIBIT D
27 and incorporated by reference is true and correct copy of that correspondence. Ergo, accordingly, HMB
28 stipulated to the filing of a third amended complaint without leave to amend.
4
THIRD AMENDED CROSS-COMPLAINT BY THOMAS J. GEARING AND DANIEL K. GEARING
1 8. Moreover, the Gearings did not have to obtain HMB’s permission to file an amended complaint
2 because the Hon. Judge Chou granted the right. It was the Gearings’ previous lawyers who, against the
3 Gearings’ will, bifurcated their constitutional rights and elected to punt the Gearings’ 42 U.S.C. § 1983
4 Civil Rights violations for deprivation of the Gearings’ Federal Constitutional rights under Federal Due
5 Process and Federal Equal Protection Clauses to the Northern Federal District Court under an English
6 Reservation. 2 Now they are back home in this state court, together.
7 9. Henceforth, now comes the Gearings’ third amended complaint properly alleged to sustain the
8 Gearings’ causes of action.
9 10. For clarification, the only cause of action against the Coastside Land Trust (“CLT”) in this
10 complaint is Count 7: Request For Declaratory Relief and Injunctive Relief.
11 11. Defendants and Cross-Complainants Thomas J. Gearing and Daniel K. Gearing (collectively,
12 “the Gearings”) allege:
13 II. INTRODUCTION
14 12. “Half Moon Bay, as a result of prior development patterns and very early subdivisions, is an
15 urban area. It is, in fact, the only urban center for its sub-region, the San Mateo County Coastside.
16 Therefore, Coastal Act policies would favor concentration of new development within the City as an
17 urban area in lieu of development in substantially more rural areas to the north, east, or south.”
18 (Emphasis added.) (LUP, p. 127.)
19 13. This Third Amended Cross-Complaint states the following counts, based on multiple theories of
20 flaunted violation of law executed with animus, each of which concurrently justifies recovery and other
21 relief prayed for on its distinct terms, for conduct by the City of Half Moon Bay (“HMB”) alleged
22 herein, including, but not limited to: (1) its adoption of its certified 1996 Land Use Plan (“LUP”) which
23
2 England v. Louisiana State Bd. of Medical Examiners (1964) 375 U.S. 411. The Gearings previous lawyer Kristen Renfro
24 stated in her pleadings to this court, “Notwithstanding this England reservation, in an abundance of caution, to avoid waiving
any claims for failure to assert them by means of a cross-complaint in the herein action, the Gearings plead herein both their
25 state and federal claims, stating for purposes of reservation only their due process and equal protection claims. The
Gearings do not intend by such pleadings to in any way diminish the effectiveness of their England reservation. They do not
26 raise such claims voluntarily, but to preserve their rights and avoid prejudice to their interests pursuant to potential
operation of Code Civ. Proc. section 426.30 and/or the first final judgment rule.” Emphasis added. Second Am. Cross-
Compl. by Defs. And Cross-Compl. at 52:16-22. After the Gearings replaced their previous lawyers, all court filings, and
27 appearances by Thomas Gearing on behalf of his son and himself began with an announcement that the Gearings were
presenting and proceeding with their Federal 42 U.S.C. 1983 Civil Rights action for Inverse Condemnation in the state court,
28 and there was no objection by HMB.
5
THIRD AMENDED CROSS-COMPLAINT BY THOMAS J. GEARING AND DANIEL K. GEARING
1 included LUP 9.3.5 and 9.3.2 which contained knowingly impossible and onerous conditions which
2 included but not limited to a mandate that in order for Gearings to pursue their constitutionally vested
3 right to build one home on one legal lot in an already existing residential neighborhood, already 100%
4 legally subdivided, in a lawfully created early subdivision 3 that they (1) shall first replot their legal lots
5 and do a “complete re-planning and re-platting” 4 of all of the approximately 150 legal lots in the early
6 subdivision known as the West of Railroad area (“WRR”) in HMB when it unlawfully applied LUP
7 9.3.5. The Gearings were also mandated to “remap” the already existing legally mapped dirt city streets.
8 (2) and then HMB knowingly flouted the law with animus against the Gearings by unlawfully applying
9 LUP section 9.3.5 and its Gov. Code §§ 65103(b) and 65450 Specific Plan Requirement, which is a
10 legislative act, intended for a developer, who applies to build, and intends to build, the whole Planned
11 Unit Development (“PUD”), to ordinary individuals, the Gearings, who are not developers, and did not
12 apply as developers intending to develop the whole PUD, and only applied to exercise their
13 constitutionally vested right to build one home on one legal lot. (3) and then HMB flouted the law with
14 animus against the Gearings by engaging in a litany of related unreasonable, intentional, unlawful
15 conduct, announcements, preliminary actions and actions for pretextual reasons intended to prevent, to
16 make impossible, to make onerous, to make financially infeasible, the building of individual homes on
17 the Gearings’ individual legally subdivided, legal lots, located on legally mapped dirt city streets, each
18
3 HMB is essentially a city made up of early subdivisions. The WRR early subdivision is not a 32-acre parcel of land in
19
single ownership awaiting subdivision at the mercy of the government to make a discretionary decision to allow
approximately 130 to 150 residential homes to be built. The WRR early subdivision is a 32-acre area of land already 100%
20 legally subdivided containing approximately 150 legal lots, on existing legally mapped dirt city streets, with vested
constitutional development rights to build one house on one legal lot. (Palazzolo v. Rhode Island (2001) 533 U.S. 606, 608–
21 09.) Under Article 1, Section 19 of the California Constitution, the Fifth Amendment to the United States Constitution,
Felkay v. City of Santa Barbara, 62 Cal.App.5th 30, 39 (2021), and McAllister v. California Coastal Comm’n, 169
Cal.App.4th 912, supra, at p. 939, 87 Cal.Rptr.3d 365, an owner seeking to build one home on one legal lot has the
22 Constitutional Vested Right to the “economic benefit or productive use” of their legal lot, and to “constitutionally
reasonable economic use of his or her property.’” (Ibid.) (Emphasis added.) The legal lot owners and their predecessors in
23 title have paid tax to the government San Mateo County for approximately 118 years with the reasonable expectation of
building one house on one legal lot and HMB has admitted that they have received those funds for the benefit of HMB to
24 build and maintain its infrastructure to accommodate the residential usage of the legal lots. Therefore, HMB is also Estopped
from taking a contrary position under the principles of equitable estoppel. “It has been said generally that a governmental
agency may not be estopped by the conduct of its officers or employees [Citation], but there are many instances in which an
25 equitable estoppel in fact will run against the government where justice and right require it. (Citation of authorities.) It has
been aptly said: ‘If we say with Mr. Justice Holmes, “Men must turn square corners when they deal with the Government,” it
26 is hard to see why the government should not be held to a like standard of rectangular rectitude when dealing with its
citizens.’ (48 Harv.L.Rev. 1299.)” Farrell v. County of Placer, 23 Cal.2d 624 (1944).
27 4 It is impossible for the Gearings to “replot” their own legal lots, to do a “complete re-plotting” of all the legal lots and to
“remap” the already existing legal streets in the 32-acre neighborhood because they are not a King or Queen or Lord of an
28 ancient time and do not carry the power of eminent domain.
6
THIRD AMENDED CROSS-COMPLAINT BY THOMAS J. GEARING AND DANIEL K. GEARING
1 containing full development rights, in the early subdivision known as the WRR area in HMB. All of the
2 conduct and actions engaged by HMB was to appropriate the Gearings’ right of ownership 5 for itself or
3 someone else, to restrict the Gearings’ ability to use their own property and to drive down and suppress
4 private property values in furtherance of an unlawful ultimate objective of obtaining public ownership
5 of the Gearings’ real property without payment of just compensation 6, which is an unlawful exercise of
6 eminent domain law and unlawful exercise of HMB’s police powers; and (4) with animus, the
7 commencement of retaliatory condemnation proceedings long after the Gearings unequivocally
8 announce their intention to file their 42 U.S.C. Civil Rights action for Inverse Condemnation and did file
9 it to punish them, and HMB further punished the Gearings by filing for immediate possession (which
10 this Court denied), without any conceivable rational and lawful basis in direct violation of the Decker
11 Rule, targeting the Gearings and their six legal lots out of the approximately 150 legal lots in the WRR
12 area in response to their unequivocal announcement on July 27, 2020 and on September 11, 2020 in
13 lengthy correspondences directly to HMB and to their lawyer, Matthew Zinn, Esq., of the Gearings’
14 clear unequivocal intent to file a Federal 42 U.S.C. § 1983 Civil Rights Action to vindicate their
15 constitutional rights for Inverse Condemnation. So now the Gearings assert their righteous legal causes
16 of actions as follows:
17
• COUNT 1: 42 U.S.C. § 1983 CIVIL RIGHTS ACTION FOR
18 UNCOMPENSATED TAKINGS IN VIOLATION OF THE FIFTH AMENDMENT
OF THE UNITED STATES CONSTITUTION, INVERSE CONDEMNATION
19
20 • COUNT 2: 42 U.S.C. § 1983 CIVIL RIGHTS ACTION FOR VIOLATIONS OF
SUBSTANTIVE DUE PROCESS RIGHTS UNDER THE FOURTEENTH AMENDMENT
21 OF THE UNITED STATES CONSTITUTION
22 5 InCedar Point Nursery v. Hassid, 210 L. Ed. 2d 369 (2021), Justice Roberts stated: “[O]ur cases have often described use
restrictions that go ‘too far’ as ‘regulatory takings’… But that label can mislead. Government action that physically
23 appropriates property is no less a physical taking because it arises from a regulation… The essential question is not, as
the Ninth Circuit seemed to think, whether the government action at issue comes garbed as a regulation (or statute, or
24 ordinance, or miscellaneous decree). It is whether the government has physically taken the property for itself or someone
else—by whatever means—or has instead restricted a property owner's ability to use his own property… Whenever a
regulation results in a physical appropriation of property, a per se taking has occurred….” (Emphasis added).
25 Accordingly, it is not as HMB so thinks, whether they garb it with a city council LUP 9.3.5…. a per se taking has occurred.
26 6 “Such compensation means the full and perfect equivalent in money of the property taken. The owner is to be put in as
good position pecuniarily as he would have occupied if his property had not been taken.' ... [¶] “The word `just' in the Fifth
Amendment evokes ideas of `fairness' and `equity'...."' Thus, the City cannot enact restrictions on property it seeks to
27 condemn for the express purpose of preventing development and thereby freeze or depress property values, and then attempt
to show that that same zoning restriction prevents a highest and best use inconsistent with its terms. Such a position is
28 contrary to established eminent domain law. City of San Diego v. Rancho Penasquitos Partnership, 105 Cal. App. 4th 1013,
1032, 1033 (2003), as modified on denial of reh’g (Mar. 3, 2003).
7
THIRD AMENDED CROSS-COMPLAINT BY THOMAS J. GEARING AND DANIEL K. GEARING
1 • COUNT 3: 42 U.S.C. § 1983 CIVIL RIGHTS ACTION FOR VIOLATIONS OF
PROCEDURAL DUE PROCESS RIGHTS UNDER THE FOURTEENTH
2 AMENDMENT OF THE UNITED STATES CONSTITUTION
3 • COUNT 4: 42 U.S.C. § 1983 CIVIL RIGHTS ACTION FOR VIOLATIONS
OF EQUAL PROTECTION RIGHTS UNDER THE FOURTEENTH
4 AMENDMENT OF THE UNITED STATES CONSTITUTION
5 • COUNT 5: DAMAGES FOR DIMINUTION IN PROPERTY VALUE
RESULTING FROM UNREASONABLE STATEMENTS, DELAY, AND OTHER
6 CONDUCT, KLOPPING V. CITY OF WHITTIER (1972) 8 CAL.3D 39
7 • COUNT 6: REQUEST FOR DECLARATORY RELIEF TO RENDER
VOID THE 1999 VOTER INITIATIVE (MEASURE D) WHICH CAPS
8 RESIDENTIAL GROWTH AT 1% IN THE CITY OF HALF MOON BAY
PURSUANT TO GOVERNMENT CODE § 66300 AND FOR AN INJUNCTION
9 DECLARING THE 1999 VOTER INITIATIVE VOID AS A MATTER OF LAW
UNTIL 2034 AS A RESULT OF THE WORST HOUSING CRISIS EVER IN THE
10 HISTORY OF THE STATE OF CALIFORNIA
11 • COUNT 7: REQUEST FOR DECLARATORY RELIEF TO DETERMINE
THE RIGHTS OF THE GEARINGS UNDER THE CONSERVATION
12 EASEMENT PLACED ON THE PUBLIC ACCESS STREETS/EASEMENTS BY
THE JOINT ACTION OF THE CITY OF HALF MOON BAY AND COASTSIDE
13 LAND TRUST AND FOR AN INJUNCTION PROHIBITING THE CITY OF
HALF MOON BAY AND COASTSIDE LAND TRUST CLAIMING AND/OR
14 ENFORCING THEIR CONSERVATION EASEMENTS IN A MANNER THAT
BLOCKS THE GEARINGS’ AND THE OTHER WRR AREA LEGAL LOT
15 OWNERS’ RIGHT TO UTILIZE THE PUBLIC LEGALLY MAPPED DIRT
ACCESS STREETS AND/OR EASEMENTS TO THEIR LEGAL LOTS
16
• COUNT 8: REQUEST FOR DECLARATORY RELIEF TO DETERMINE
17 THE RIGHTS OF THE GEARINGS PERTAINING TO HMB BLOCKING AND
BERMING VEHICULAR TRAFFIC ON THE PUBLIC ACCESS STREETS,
18 WHICH ARE LEGALLY MAPPED DIRT CITY STREETS/EASEMENTS, WITH
RAISED MOUNDS OF DIRT, RAISED MANHOLES, AND ABANDONED
19 WATERLINES IN A MANNER THAT BLOCKS THE GEARINGS’ AND THE
OTHER WRR AREA LEGAL LOT OWNERS’ RIGHT TO UTILIZE THE
20 PUBLIC RIGHT-OF-WAYS AND/OR EASEMENTS TO THEIR LEGAL LOTS
AND FOR AN INJUNCTION ORDERING HMB TO OPEN UP VEHICULAR
21 TRAFFIC ON THE ACCESS STREETS AND PROHIBITING HMB FROM
BLOCKING AND BERMING THEM AGAIN
22
• COUNT 9: PUBLIC NUISANCE, PRIVATE NUISANCE, FAILURE TO
23 ABATE ARTIFICIAL CONDITION ON LAND CREATING NUISANCE
24 III. THE PARTIES
25 14. Thomas J. Gearing is the fee owner of five Legal Lots of real property situated in City of Half
26 Moon Bay (HMB) in the area commonly referred to as the WRR area and identified more particularly as
27 Assessor’s Parcel Nos. (“APNs”) 056-096-240, 056-096-480, 056-127-030, 056-127-040, and 056-128-
28 090. Each of the APNs owned by Thomas Gearing were acquired or caused to be acquired for him
8
THIRD AMENDED CROSS-COMPLAINT BY THOMAS J. GEARING AND DANIEL K. GEARING
1 during the 1990s. HMB has Judicially Admitted Thomas Gearing’s ownership of his legal lots in its
2 answer to the Gearings’ cross-complaint.
3 15. Daniel K. Gearing is the fee owner of one Legal Lot of real property in the WRR in HMB, APN
4 056-125-210. Daniel was gifted APN 056-125-210 by his grandmother Juanita Kendrick, who originally
5 purchased the parcel with her husband Philip Kendrick in 1993, who passed away. HMB has Judicially
6 Admitted to Daniel Gearing’s ownership of his legal in its answer to the Gearings’ cross-complaint.
7 16. The Cross-Defendant, HMB, is an incorporated city within the County of San Mateo, California,
8 and is vested by law with the authority to exercise the power of Eminent Domain to acquire property for
9 public uses, and now after decades of denial, makes judicial admissions in its answer to the Gearings’
10 Federal and State Complaints, that the streets upon which the Gearings legal lots lie are not paper
11 streets, as in 1959 when HMB incorporated as a matter of law, the paper streets became the legally
12 mapped streets of the city of HMB. Furthermore, HMB admits, through their own documents, and sworn
13 testimony of their person most knowledgeable (PMQ), after decades of denial, proclaiming that the
14 Gearings’ legal lots were located in an “antiquated subdivision,” and did not have the status of legal lots
15 legally subdivided, that they are in fact located in an early subdivisions, and have been legally
16 subdivided, and that it issued certificates of compliance recognizing their legal status as legal lots, with
17 development rights, and now finally recognized them as legal lots with development rights.
18 17. The Cross-Defendant, Coastside Land Trust (“CLT”), is a registered 501(c)(3) nonprofit
19 organization. At all times mentioned had full knowledge of the true facts alleged in this complaint and
20 took their actions knowingly of the true facts.
21 18. DOES 1–100, inclusive, are the fictitious names of the cross-defendants sued herein under the
22 provisions of CCP § 474. The true names or capacities of the cross-defendants sued under the fictitious
23 names DOES 1–100 are currently unknown. However, the Gearings are informed and believe and
24 thereon allege that each of the fictitious and named cross-defendants are responsible in some manner for
25 the occurrences and injuries herein alleged, and that the Gearings’ damages as herein alleged were
26 proximately caused by such cross-defendants. The Gearings will amend this Third Amended Cross-
27 Complaint to show such true names and capacities when the same have been ascertained.
28
9
THIRD AMENDED CROSS-COMPLAINT BY THOMAS J. GEARING AND DANIEL K. GEARING
1 IV. VICARIOUS LIABILITY AND RESPONSIBILITY
2 19. The Gearings are informed and believe and allege thereon that at all times herein mentioned,
3 cross-defendants and each of them were the agents, ostensible agents, servants, employees, partners,
4 joint venturers acting in a joint venture, acting on a joint mission, acting as a quasi-governmental
5 organization, with each other as co-defendants, and in doing the things herein after alleged were acting
6 within the scope of their authority as such, with the permission and consent of their co-defendants and
7 condoned and ratified the behavior and actions of each other.
8 20. The Gearings are informed and believe and allege thereon that at all times herein mentioned, that
9 CLT, a registered 501(c)(3) nonprofit organization; Michael Kimsey, the founder of CLT, Vice
10 President, Chair of the Development Committee and various other roles for CLT; Jo Chamberlain,
11 former Executive Director of CLT who was recently terminated and rehired in another role; members of
12 its Board of Directors; its lawyers; and its affiliated appraiser, Kenneth Habeeb, were acting as partners,
13 joint venturers, agents, ostensible agents, co-conspirators, employees, a quasi-governmental agency,
14 servants of CLT and HMB and Kenneth Habeeb at all times was acting also as an affiliated appraiser for
15 both CLT and HMB.
16 21. The Gearings are informed and believe and allege thereon that at all times herein mentioned,
17 CLT and those persons stated above were acting as a quasi-governmental agency in concert, as a partner,
18 as joint venturers, agents, ostensible agents, co-conspirators, employees, a quasi-governmental agency,
19 servants of CLT and HMB on a joint mission with HMB to unreasonably, intentionally, unlawfully
20 diminish the value of the Gearings’ legal lots and the other legal lots in the WRR early subdivision and
21 the Wavecrest early subdivision, and other early subdivisions in HMB in anticipation of acquiring the
22 Gearings’ legal lots and the other WRR legal lots by eminent domain or purchase contract, and took
23 actions jointly to unreasonably, intentionally, and unlawfully, flaunting the law with animus to diminish
24 the Constitutional Fair Market Value of such legal lots.
25 V. THE HISTORY OF THE GEARINGS’ LEGAL LOTS AND THE WRR AREA
26 19. HMB is a city of early subdivisions formed in the early 1900s. HMB’s history dates back to the
27 mid-1800s as an unincorporated part of San Mateo County. The now-incorporated HMB began as an
28 agricultural area intended to support surrounding larger communities, including San Francisco. In the
10
THIRD AMENDED CROSS-COMPLAINT BY THOMAS J. GEARING AND DANIEL K. GEARING
1 early 1900s, the Ocean Shore Railroad line began to service the area with tracks following the coastline
2 as it ran through San Mateo County, including the City of HMB. The railroad eventually stopped
3 operating, but the historical vestiges of the railroad’s presence are still a part of HMB, including the old
4 right-of-way by the coast, along what is now known as Railroad Avenue and the old Railroad Right-of-
5 Way (“RROW”) (referred to herein as “Railroad Avenue” or “Railroad”). The Once upon a time train
6 tracks are no longer there.
7 20. As HMB progressed and began to develop in these early days, owners of various tracts of large
8 acreage subdivided their lands into individual lots designed for single family residential and supporting
9 uses. Maps of these early subdivisions were recorded by San Mateo County. Such subdivisions were
10 created from 1905 to 1909 around present-day Railroad Avenue, with a large land area known as
11 Rancho Miramontes. These consisted of the Miramontes Tracts, Arleta Park, and Additions, and
12 included the “Frank P. Brophy’s Subdivision of the Miramontes Tract” and “Ocean Boulevard Tract.”
13 21. The Subject Parcels are located within the Brophy and Ocean Boulevard Tracts, on the west side
14 of Railroad Avenue.
15 22. The Arleta Park subdivision (located immediately south of the Ocean Boulevard Tract) and the
16 Brophy subdivision both straddle and are comprised of a significant number of lots on either side of
17 Railroad Avenue.
18 23. HMB, in their Answers to the Federal and State Complaints, admit that the “County of San
19 Mateo accepted the streets shown on the above-referenced subdivision maps as dedicated to public use,
20 and these paper streets later became legal streets of the City by operation of law when it incorporated in
21 1959.” (Emphasis added). These judicial admissions are binding on HMB.
22 24. The typical lot size within each of the subdivisions referenced herein is 50-feet by 150-feet,
23 though the lots vary in size and shape, with most ranging between 6,000 and 7,500 square feet. The R1
24 B1 lots were created for residential/commercial development, and in the time since the original maps
25 were first recorded, buildout of nearly all of the areas within these subdivisions has occurred, with the
26 exception of the Ocean Boulevard Tract and in those portions of the Brophy Tract and Arleta Park
27 subdivisions located west of Railroad Avenue.
28 //
11
THIRD AMENDED CROSS-COMPLAINT BY THOMAS J. GEARING AND DANIEL K. GEARING
1 25. The Gearings’ legal lots are zoned as R1/B1. The LUP 9.3.5 proposed land uses include
2 residential and commercial.
3 26. The Subject Parcels are situated in the Ocean Boulevard Tract and that portion of the Brophy
4 Tract located in what is now known as the WRR area, a 32-acre span of ocean-view bluff area, which
5 contains approximately 150 7 individually-owned legal lots, previously subdivided for residential use,
6 consistent with the build-out that has occurred in the rest of the Brophy Tract, Arleta Park, and adjacent
7 subdivisions of Rancho Miramontes and the Miramontes Tract.
8 27. The Gearings individual Subject Parcels have been sold among various property owners as
9 individual lots since 1905. This confirms their legal status as legal lots.
10 28. At the time Thomas Gearing purchased his first legal lot in HMB and had a contractor build his
11 first home at 300 Central and Railroad, property values in the area both east and west of Railroad
12 Avenue were negatively impacted because HMB operated an open landfill known as Poplar Landfill in
13 close proximity to the neighborhood. The Poplar Landfill, which is now known as a toxic waste site, was
14 eventually closed and buried. With the landfill out of sight, as stated by Jo Chamberlain with CLT,
15 “current residence do not even realize it was there,” and accordingly the property values have exploded
16 alongside the rising value of California coastal land in general. With the burying of the landfill,
17 multimillion dollar homes were constructed in the area east and west of Railroad Avenue. A substandard
18 legal lot (3,465 square feet) recently sold for $495,000.00 on the east side of Railroad Avenue. A
19 conforming legal lot (6,100 square feet) also sold on the west side of Railroad Avenue in 2010 for
20 $780,000.00. 8
21 29. Further, Thomas Gearing had prior experience purchasing property in the neighborhood and
22 hired a contractor to successfully build his first home at 300 Central Avenue at its intersection with
23 Railroad Avenue. He purchased the lot in approximately 1980 for $8,000.00. Today the Fair Market
24 Value of the property in total, based on an average between Zillow and Redfin, is approximately
25
26 7HMB's earlier LUP claimed there were approximately 130 lots in the WRR area and now and the latest version HMB
claims there are approximately 150 lots in the WRR area.
27 8 Simply because once upon a time a train traveled down the old Railroad Right-of-Way (“RROW”), that fact does not
diminish the value of the Gearings Oceanfront, Oceanview legal lots on the west side of the previous but now nonexistent
28 train tracks.
12
THIRD AMENDED CROSS-COMPLAINT BY THOMAS J. GEARING AND DANIEL K. GEARING
1 $2,469,465.00. The San Mateo County Assessor’s Office upon sale and reassessment would reassess the
2 land value only at approximately $1,234,732.00 as the Assessor’s Office in San Mateo County is
3 allocating approximately 50% of the total assessed value to the land. Thomas Gearing previously sold
4 this home. The Gearings’ six legal lots that are the subject matter of this litigation are in front, west of
5 this home, and are the Oceanfront and Oceanview legal lots.
6 30. When they acquired the Subject Parcels, Thomas Gearing and Daniel Gearing’s grandfather were
7 aware that the legal lots were separate, legally subdivided lots, on legally mapped dirt city streets, with
8 full development rights, that taxes had been paid on the parcels, that the parcels had been subdivided for
9 residential purposes, and were in size, physical characteristics, on solid buildable soil, and other
10 respects, of the same character and configuration as parcels immediately east of Railroad Avenue, that
11 had been successfully developed.
12
VI. HMB IS EQUITABLY ESTOPPED FROM DENYING THAT THE GEARINGS OWN
13 LEGAL LOTS AND THAT THEY CAN EXERCISE THEIR VESTED CONSTITUTIONAL
RIGHT TO BUILD ONE HOME ON ONE LEGAL LOT.
14
15 31. The Gearings and their predecessors in title have paid taxes on the Subject legal lots as
16 individual lots as originally zoned, R1/B1, for the entire span of approximately 118 years with the
17 expectations of building one home on one legal lot in the residential neighborhood. HMB admits in its
18 Answer to the Gearings’ Complaint that the property taxes paid went to the benefit of HMB. HMB used
19 this tax revenue to build and develop HMB and its infrastructure to provide for the residential use of
20 their six legal lots. Therefore, HMB is estopped under the principles of equitable estoppel from denying
21 their individual right, their constitutional vested right to achieve that reasonable expected goal: one
22 home on one legal lot, constitutionally reasonable economic use of his or her property. 9 Two of the lots,
23 the Subject Lots, are contiguous with one another, and together makeup one building site.
24 //
25
9 “Ithas been said generally that a governmental agency may not be estopped by the conduct of its officers or employees
26 [Citation], but there are many instances in which an equitable estoppel in fact will run against the government where justice
and right require it. (Citation of authorities.) It has been aptly said: ‘If we say with Mr. Justice Holmes, “Men must turn
27 square corners when they deal with the Government,” it is hard to see why the government should not be held to a like
standard of rectangular rectitude when dealing with its citizens.’ (48 Harv.L.Rev. 1299.)” Farrell v. County of Placer, 23
28 Cal.2d 624 (1944).
13
THIRD AMENDED CROSS-COMPLAINT BY THOMAS J. GEARING AND DANIEL K. GEARING
1 32. At 149 Miramontes Street, HMB, directly east of the Gearings’ legal lots, the home and legal lot
2 together have a Constitutional Fair Market Value of approximately according to the average of Zillow
3 and Redfin, and the current tax bill according to the San Mateo County Tax Assessor at $4,317,660.00.
4 The Government, San Mateo County Tax Assessor, is assessing the land only at $2,699,800.00. At the
5 same time the Government, HMB, proclaims that the Gearings’ legal lots the true oceanfront and ocean
6 view lots in front of 149 Miramontes Street are only worth approximately $30,000.00 each,
7 unconscionable.
8 33. Neighboring homes have recently sold for more than $3 and $4 million dollars. The Gearings are
9 informed and believe that the San Mateo County Tax Assessor assesses the land value under the homes
10 in the area at approximately half of the sales value, placing the Government’s, San Mateo County tax
11 assessor’s taxable value of each legal lot under these homes in the range of $1.5 to $2 million.
12 34. The Gearings reasonably believed that they would ultimately be able to build homes on the
13 Subject legal lots, just as Thomas Gearing had done a stone’s throw across Railroad Avenue at 300
14 Central Avenue, HMB, with the Alsace Lorraine et al Assessment District, which was preliminarily
15 approved approximately in March 1983. The legal lots on the east side of the once-upon-time railroad
16 track were subdivided at the same time. HMB approved of the building of all the homes on the east side.
17 There were no proclamations that these lots were not legal lots or were in “antiquated subdivisions” or
18 that they did not comply with the Land Map Act, or that they were somehow defunct and not buildable,
19 or that the streets there were inadequate, designed wrong, only had paper status, or that those lots
20 contained the San Franciso Garter Snake and the Red-Legged Frog, or wetlands, or ESHAs. The lots and
21 the streets were the same in configuration and the composition of the soil was exactly the same. HMB
22 does not explain how it could possibly be that just because a train once-upon-a-time went down the
23 railroad tracks that no longer exists that everything on the west side would be as they now proclaim.
24 35. Thomas Gearing always reasonably believed that HMB would either prepare its own Gov. Code
25 § 65450 and § 65103(b) Specific Plan as a legislative act 10, or that it would not ultimately unreasonably
26
10 Itis undisputed that the creation of a specific plan is a legislative act and Daniel and Thomas Gearing are not legislators. It
27 is incumbent upon local planning agencies, upon adoption of a general plan, to adopt specific plans for the systematic
implementation of the General Plan. (Gov. Code §§ 65103(b); 65450.) “Adoption or amendment of a specific plan for the
28 systematic implementation of the general plan is … a legislative act.” (The Park at Cross Creek, LLC v. City of Malibu
(2017) 12 Cal.App.5th 1196, 1204.) Further, “[t]he adoption of a specific plan is a legislative act similar to the adoption of a
14
THIRD AMENDED CROSS-COMPLAINT BY THOMAS J. GEARING AND DANIEL K. GEARING
1 and unlawfully use and apply the LUP’s provisions to bar individual property owners from processing
2 building applications to build one home on one legal lot because his understanding was that such a bar
3 would be unlawful, unconstitutional and cause a taking without just compensation.
4 36. The Gearings are not barred from challenging HMB’s actions because they purchased their legal
5 lots after the LUP was adopted. HMB retained discretion to implement the LUP’s provisions in a
6 manner that would not work a taking or other violation of the Gearings’ rights including their vested
7 constitutional right to build one home on one legal lot. Further, the United States Supreme Court has
8 held that a post-enactment transfer of title does not absolve the government of its obligation to defend its
9 unreasonable actions restricting land use. (Palazzolo v. Rhode Island (2001) 533 U.S. 606, 608–09.)
10 VII. AS HMB FILED THEIR CAUSE OF ACTION FOR EMINENT DOMAIN, THIS
LITIGATION FALLS UNDER THE UNIQUE SPECIAL RULE UNDER CITY OF LOS
11 ANGELES V. DECKER, 18 CAL.3D 860 (1977) (“DECKER RULE”).
12 37. At all times mentioned, as this case involves HMB’s cause of action for Eminent Domain, the
13 condemnor, HMB, and its condemning attorneys must comply with the Decker Rule. In City of Los
14 Angeles v. Decker, 18 Cal.3d 860, 871 (1977), Justice Sullivan stated, “7-105 of the Rules of
15 Professional Conduct of the State Bar of California requires: "In presenting a matter to a tribunal, a
16 member of the State Bar shall: (1) Employ, for the purpose of maintaining the causes confided to him
17 such means only as are consistent with truth, and shall not seek to mislead the judge, judicial
18 officer or jury by an artifice or false statement of fact or law." As suggested by the American Bar
19 Association, a government lawyer may be under an even higher duty: "A government lawyer in a
20 civil action ... has the responsibility to seek justice and to develop a full and fair record, and he should
21 not use his position or the economic power of the government to harass parties or to bring about
22 unjust settlements or results." (ABA Code of Prof. Responsibility, canon 7, ethical consideration 7-
23 14.) Occupying a position analogous to a public prosecutor, he is "possessed ... of important
24 governmental powers that are pledged to the accomplishment of one objective only, that of
25 impartial justice." (Professional Responsibility: Report of the Joint Conference (1958) 44 A.B.A.J.
26 1159, 1218.) [6] The duty of a government attorney in an eminent domain action, which has been
27
general plan or zoning ordinance.” Cal. Governor’s Off. of Plan. and Rsch., The Planner’s Guide to Specific Plans 4 (January
28 2001 Ed.).
15
THIRD AMENDED CROSS-COMPLAINT BY THOMAS J. GEARING AND DANIEL K. GEARING
1
characterized as "a sober inquiry into values, designed to strike a just balance between the
2
economic interests of the public and those of the landowner" (Sacramento etc. Drainage Dist. v.
3
Reed (1963) 215 Cal. App. 2d 60, 69 [29 Cal.Rptr. 847]), is of high order. "The condemnor acts in a
4
quasi-judicial capacity and should be encouraged to exercise his tremendous power fairly,
5
equitably and with a deep understanding of the theory and practice of just compensation." (Hogan,
6
Trial Techniques in Eminent Domain (1970) pp. 133, 135.) (Emphasis added.)
7
38. At all times mentioned, the condemnor HMB and its condemning counselors have breached their
8
legal and ethical duties under the Decker Rule. They have not acted in a quasi-judicia
Preview
1 THOMAS J GEARING Esq, SBN 121473 LAW OFFICES OF THOMAS J GEARING 2 12445 Woodhall Way Tustin, California 92782 3 Telephone: (310) 497.8556 Email: thomasgearing@aol.com 4 Attorney for Father and Son 5 Thomas J. Gearing and Daniel K. Gearing 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN MATEO 7 CITY OF HALF MOON BAY, Case No. 21-CIV-01560 8 Plaintiff, THIRD AMENDED CROSS-COMPLAINT BY DEFENDANTS AND CROSS-COMPLAINANTS 9 v. THOMAS J. GEARING AND DANIEL K. GEARING 42 U.S.C. § 1983 CIVIL RIGHTS ACTION FOR 10 THOMAS J. GEARING; DANIEL K. UNCOMPENSATED TAKINGS IN VIOLATION OF GEARING; DOES 1 through 50, inclusive; THE FIFTH AMENDMENT INVERSE 11 and all persons unknown claiming an CONDEMNATION; VIOLATIONS OF interest in the property, SUBSTANTIVE DUE PROCESS RIGHTS; 12 VIOLATIONS OF PROCEDURAL DUE PROCESS Defendants. RIGHTS; VIOLATIONS OF EQUAL PROTECTION 13 _____________________________________ RIGHTS; DAMAGES FOR DIMINUTION IN PROPERTY VALUE RESULTING FROM 14 THOMAS J. GEARING AND DANIEL K. UNREASONABLE STATEMENTS, DELAY, AND GEARING, OTHER CONDUCT KLOPPING V. CITY OF 15 WHITTIER, 8 CAL.3D 29 (1972); FOR Cross-Complainants, DECLARATORY RELIEF AND INJUNCTIVE 16 RELIEF TO RENDER VOID HMB’S VOTER v. INTIATIVE RESIDENTIAL GROWTH CAP 17 GOVERNMENT CODE § 66300; FOR CITY OF HALF MOON BAY, COASTSIDE DECLARATORY RELIEF AND INJUNCTIVE 18 LAND TRUST and DOES 1 through 100, RELIEF TO DETERMINE THE RIGHTS OF THE inclusive GEARINGS UNDER THE CONSERVATION 19 EASEMENT PLACED ON THE PUBLIC ACCESS Cross-Defendants. STREETS; REQUEST FOR DECLARATORY 20 RELIEF AND INJUNCTIVE RELIEF TO DETERMINE THE RIGHTS OF THE GEARINGS 21 PERTAINING TO HMB BLOCKING AND BERMING VEHICULAR TRAFFIC ON THE PUBLIC ACCESS 22 STREETS; PUBLIC NUISANCE, PRIVATE NUISANCE, FAILURE TO ABATE ARTIFICIAL 23 CONDITION ON LAND CREATING NUISANCE AND FOR RECOVERY OF REASONABLE COSTS, 24 DISBURSEMENTS, AND EXPENSES, INCLUDING REASONABLE ATTORNEY’S FEES, AND 25 APPRAISAL AND OTHER EXPERT FEES 42 U.S.C. § 1988; CCP § 1036; CCP § 1250.410; CCP § 1021.5 26 Complaint Filed: March 23, 2021 27 Jury Trial Demanded 28 1 THIRD AMENDED CROSS-COMPLAINT BY THOMAS J. GEARING AND DANIEL K. GEARING 1 I. PROCEDURAL POSTURE 2 1. It is undisputed that the Federal and State courts have coequal powers to adjudicate Federal and 3 State court claims. The City of Half Moon Bay (“HMB”) does not dispute this. Thomas J. Gearing and 4 Daniel K. Gearing (collectively, “the Gearings”) asserted their claims in state court. It is undisputed after 5 demurrer the Hon. Judge Danny Chou kindly gave the Gearings through their previous lawyers the 6 absolute right to file an amended complaint to draft their lawsuit correctly. There was no question or 7 issue that the Gearings 42 U.S.C. §1983 Civil Rights action for Inverse Condemnation and the Gearings’ 8 state cause of action for Klopping v. City of Whittier (1972) 8 Cal.3d 39 was and is before this State 9 Court. 10 2. The issue before the court was whether the Gearings’ previous lawyers adequately allege causes 11 of action in this state court for 42 U.S.C. 1983 Civil Rights violations for deprivation of the Gearings’ 12 Federal Constitutional rights under Federal Due Process and Federal Equal Protection Clauses. The clear 13 unequivocal decision of the Hon. Judge Chou was that the Gearings’ previous lawyers did not make the 14 proper allegations to sustain their causes of action but kindly gave the Gearings the right to file an 15 amended complaint. 16 3. The Hon. Judge Chou ruled that HMB attorney Catherine Engberg, Esq. acting as a matter of 17 law as HMB’s zoning administrator made a final decision when she denied the Gearings application for 18 building permits. That decision became final, there was no motion for reconsideration, and no 19 interlocutory appeal. Therefore, HMB was and is bound by the court’s ruling under the principles of 20 Judicial Estoppel. The decision was sound, logical, and well reasoned as HMB candidly admitted in 21 their own moving papers to the court that HMB had made a “final decision”. Furthermore, it would be 22 disingenuous of HMB to proclaim they were going to allow the Gearings to exercise their Vested 23 Constitutional Right to build one home on one legal lot in an already existing neighborhood after they 24 and their predecessors in title paid taxes to the Government, San Mateo County, for 118 years as R1 B1 25 legal lots and HMB through judicial admissions in their answer to the complaint HMB admits that those 26 tax payments went to the benefit of the Government, HMB, to establish that city and its governmental 27 duties and the creation of its infrastructure in the neighborhood where the Gearing’s legal lie to build a 28 home to fulfill the American Constitutional Right, when at the exact same time they were proceeding at 2 THIRD AMENDED CROSS-COMPLAINT BY THOMAS J. GEARING AND DANIEL K. GEARING 1 breakneck lightening speed and did in fact file their retaliatory eminent domain cause of action to take 2 the Gearings’ property. 3 4. Moreover, the court ruled that it would have been futile to challenge HMB’s decision that they 4 made a final decision, as HMB’s LUP section 9.3.5 and its Gov. Code §§ 65103(b) and 65450 Specific 5 Plan requirement, a legislative act, that only applies to a developer who applies seeking to build the 6 entire PUD was impossible and onerous to comply with. For example, it mandated that the Gearings do 7 a “complete re-planning, re-platting” of all the approximately 150 legal lots in the WRR area. 8 Accordingly, the Hon. Judge Chou ruled that the Gearings’ state, Not Federal causes of action for 9 Inverse Condemnation, Due Process and Equal Protection were time-barred, and dismissed them 10 because in state court that decision must be appealed within 90 days. 1 On the Federal causes of action 11 for Inverse Condemnation, Due Process and Equal Protection there is no such statute of limitations. On 12 the state claims the Gearings concede to the Court’s order and in no way are trying to reassert those 13 state causes of action. 14 5. Upon the Hon. Judge Chou’s kind granting of the Gearings’ right to file an amended complaint 15 on the Gearings’ Federal causes of action for violation of their 42 U.S.C. § 1983 Civil Rights action for 16 their Federal Due Process and Federal Equal Protection rights based on a properly alleged complaint to 17 give them their day in court, against the Gearings’ will, their previous lawyers punted those claims back 18 to the Federal Northern District Court on English reservation causing an unwilling bifurcation of the 19 Gearings’ righteous claims. The Federal 42 U.S.C. § 1983 Civil Rights action for Inverse Condemnation 20 and the State cause of action for Klopping are in this state court and the Federal 42 U.S.C. 1983 Civil 21 Rights action for violation of the Gearings Due Process and Equal Protection causes of action in the 22 Federal Northern District Court on England reservation. See footnote 2. 23 6. HMB’s lawyer Sarah Sigman recognized the Gearings absolute right to bring back to the State 24 Court the Federal Constitutional claims for violation of the Gearings Federal Due Process rights and the 25 1 It will be demonstrated to this State Court through the Gearings' pleadings and evidence that when HMB denied the 26 Gearings’ application for building permits to exercise their Fundamental Constitutional Vested Right to build One home on One Legal Lot, HMB denied the Gearings their Federal Constitutional Right to Procedural Due Process of the Law by 27 offering no recourse by appeal to the City Council, no appeal to the San Mateo County Superior Court by Writ of Mandamus, and gave no warning to take action to file a petition for writ of mandamus into Superior Court within 90 days to challenge 28 their administrative decision. Simply put No to your Constitutional Rights and No Recourse. 3 THIRD AMENDED CROSS-COMPLAINT BY THOMAS J. GEARING AND DANIEL K. GEARING 1 Federal Equal Protection Rights that had been punted to the Federal Northern District Court on England 2 reservation against the Gearings will. Accordingly, HMB and the Gearings reached a stipulation with 3 HMB whereby the Gearings could bring those claims back to the state court without leave to amend. 4 7. On May 16, 2023, at 4:28 PM, the Gearings requested of Attorney Sarah Sigman in the last 5 paragraph of the correspondence, “I also would like to meet and confer with you, about voluntarily 6 allowing me to file a third amended complaint. I am quite certain when you see the newly amended 7 complaint you will agree it’s proper and there will be no need to file any further actions to attack the 8 pleadings.” Attached hereto as EXHIBIT A and incorporated by reference is true and correct copy of 9 that correspondence. On May 25, 2023, at 10:59 AM, Counselor Sigman responded by stating, “Finally, 10 please clarify the status of your various claims especially in light of your plan to amend the cross- 11 complaint. The second amended cross-complaint expressly reserves the federal equal protection and due 12 process claims for adjudication in your federal case. Do you intend to amend the claims that are 13 currently reserved from this case or to withdraw the reservation? The city would oppose amendments to 14 reinstate the state constitutional claims for which the Court previously sustained the city’s demurrer 15 without leave to amend.” Attached hereto as EXHIBIT B and incorporated by reference is true and 16 correct copy of that correspondence. The Gearings would never defy this Court’s order and attempt to 17 bring back the state causes of action which it dismissed. Accordingly, on May 25, 2023, at 2:40 PM, the 18 Gearings responded in the last page of their correspondence and stated, “alternatively please consider 19 letting me to do a reverse English, so to speak, and let me bring them back to the state court. I will 20 amend them into the 3rd amended complaint. Then I will bring a motion for summary adjudication on the 21 per se taking arguments and the due process and equal protection arguments.” Attached hereto as 22 EXHIBIT C and incorporated by reference is true and correct copy of that correspondence. On May 26, 23 2023, at 4:39 PM, Counselor Sigman honorably agreed by stating, “you are welcome to reverse the 24 England reservation and litigate those claims in state action. As I said in my previous email yesterday, 25 the city will oppose an amendment that reinstates any claims that the state court has denied without 26 leave to amend, but it will proceed on the merits of the federal claims.” Attached hereto as EXHIBIT D 27 and incorporated by reference is true and correct copy of that correspondence. Ergo, accordingly, HMB 28 stipulated to the filing of a third amended complaint without leave to amend. 4 THIRD AMENDED CROSS-COMPLAINT BY THOMAS J. GEARING AND DANIEL K. GEARING 1 8. Moreover, the Gearings did not have to obtain HMB’s permission to file an amended complaint 2 because the Hon. Judge Chou granted the right. It was the Gearings’ previous lawyers who, against the 3 Gearings’ will, bifurcated their constitutional rights and elected to punt the Gearings’ 42 U.S.C. § 1983 4 Civil Rights violations for deprivation of the Gearings’ Federal Constitutional rights under Federal Due 5 Process and Federal Equal Protection Clauses to the Northern Federal District Court under an English 6 Reservation. 2 Now they are back home in this state court, together. 7 9. Henceforth, now comes the Gearings’ third amended complaint properly alleged to sustain the 8 Gearings’ causes of action. 9 10. For clarification, the only cause of action against the Coastside Land Trust (“CLT”) in this 10 complaint is Count 7: Request For Declaratory Relief and Injunctive Relief. 11 11. Defendants and Cross-Complainants Thomas J. Gearing and Daniel K. Gearing (collectively, 12 “the Gearings”) allege: 13 II. INTRODUCTION 14 12. “Half Moon Bay, as a result of prior development patterns and very early subdivisions, is an 15 urban area. It is, in fact, the only urban center for its sub-region, the San Mateo County Coastside. 16 Therefore, Coastal Act policies would favor concentration of new development within the City as an 17 urban area in lieu of development in substantially more rural areas to the north, east, or south.” 18 (Emphasis added.) (LUP, p. 127.) 19 13. This Third Amended Cross-Complaint states the following counts, based on multiple theories of 20 flaunted violation of law executed with animus, each of which concurrently justifies recovery and other 21 relief prayed for on its distinct terms, for conduct by the City of Half Moon Bay (“HMB”) alleged 22 herein, including, but not limited to: (1) its adoption of its certified 1996 Land Use Plan (“LUP”) which 23 2 England v. Louisiana State Bd. of Medical Examiners (1964) 375 U.S. 411. The Gearings previous lawyer Kristen Renfro 24 stated in her pleadings to this court, “Notwithstanding this England reservation, in an abundance of caution, to avoid waiving any claims for failure to assert them by means of a cross-complaint in the herein action, the Gearings plead herein both their 25 state and federal claims, stating for purposes of reservation only their due process and equal protection claims. The Gearings do not intend by such pleadings to in any way diminish the effectiveness of their England reservation. They do not 26 raise such claims voluntarily, but to preserve their rights and avoid prejudice to their interests pursuant to potential operation of Code Civ. Proc. section 426.30 and/or the first final judgment rule.” Emphasis added. Second Am. Cross- Compl. by Defs. And Cross-Compl. at 52:16-22. After the Gearings replaced their previous lawyers, all court filings, and 27 appearances by Thomas Gearing on behalf of his son and himself began with an announcement that the Gearings were presenting and proceeding with their Federal 42 U.S.C. 1983 Civil Rights action for Inverse Condemnation in the state court, 28 and there was no objection by HMB. 5 THIRD AMENDED CROSS-COMPLAINT BY THOMAS J. GEARING AND DANIEL K. GEARING 1 included LUP 9.3.5 and 9.3.2 which contained knowingly impossible and onerous conditions which 2 included but not limited to a mandate that in order for Gearings to pursue their constitutionally vested 3 right to build one home on one legal lot in an already existing residential neighborhood, already 100% 4 legally subdivided, in a lawfully created early subdivision 3 that they (1) shall first replot their legal lots 5 and do a “complete re-planning and re-platting” 4 of all of the approximately 150 legal lots in the early 6 subdivision known as the West of Railroad area (“WRR”) in HMB when it unlawfully applied LUP 7 9.3.5. The Gearings were also mandated to “remap” the already existing legally mapped dirt city streets. 8 (2) and then HMB knowingly flouted the law with animus against the Gearings by unlawfully applying 9 LUP section 9.3.5 and its Gov. Code §§ 65103(b) and 65450 Specific Plan Requirement, which is a 10 legislative act, intended for a developer, who applies to build, and intends to build, the whole Planned 11 Unit Development (“PUD”), to ordinary individuals, the Gearings, who are not developers, and did not 12 apply as developers intending to develop the whole PUD, and only applied to exercise their 13 constitutionally vested right to build one home on one legal lot. (3) and then HMB flouted the law with 14 animus against the Gearings by engaging in a litany of related unreasonable, intentional, unlawful 15 conduct, announcements, preliminary actions and actions for pretextual reasons intended to prevent, to 16 make impossible, to make onerous, to make financially infeasible, the building of individual homes on 17 the Gearings’ individual legally subdivided, legal lots, located on legally mapped dirt city streets, each 18 3 HMB is essentially a city made up of early subdivisions. The WRR early subdivision is not a 32-acre parcel of land in 19 single ownership awaiting subdivision at the mercy of the government to make a discretionary decision to allow approximately 130 to 150 residential homes to be built. The WRR early subdivision is a 32-acre area of land already 100% 20 legally subdivided containing approximately 150 legal lots, on existing legally mapped dirt city streets, with vested constitutional development rights to build one house on one legal lot. (Palazzolo v. Rhode Island (2001) 533 U.S. 606, 608– 21 09.) Under Article 1, Section 19 of the California Constitution, the Fifth Amendment to the United States Constitution, Felkay v. City of Santa Barbara, 62 Cal.App.5th 30, 39 (2021), and McAllister v. California Coastal Comm’n, 169 Cal.App.4th 912, supra, at p. 939, 87 Cal.Rptr.3d 365, an owner seeking to build one home on one legal lot has the 22 Constitutional Vested Right to the “economic benefit or productive use” of their legal lot, and to “constitutionally reasonable economic use of his or her property.’” (Ibid.) (Emphasis added.) The legal lot owners and their predecessors in 23 title have paid tax to the government San Mateo County for approximately 118 years with the reasonable expectation of building one house on one legal lot and HMB has admitted that they have received those funds for the benefit of HMB to 24 build and maintain its infrastructure to accommodate the residential usage of the legal lots. Therefore, HMB is also Estopped from taking a contrary position under the principles of equitable estoppel. “It has been said generally that a governmental agency may not be estopped by the conduct of its officers or employees [Citation], but there are many instances in which an 25 equitable estoppel in fact will run against the government where justice and right require it. (Citation of authorities.) It has been aptly said: ‘If we say with Mr. Justice Holmes, “Men must turn square corners when they deal with the Government,” it 26 is hard to see why the government should not be held to a like standard of rectangular rectitude when dealing with its citizens.’ (48 Harv.L.Rev. 1299.)” Farrell v. County of Placer, 23 Cal.2d 624 (1944). 27 4 It is impossible for the Gearings to “replot” their own legal lots, to do a “complete re-plotting” of all the legal lots and to “remap” the already existing legal streets in the 32-acre neighborhood because they are not a King or Queen or Lord of an 28 ancient time and do not carry the power of eminent domain. 6 THIRD AMENDED CROSS-COMPLAINT BY THOMAS J. GEARING AND DANIEL K. GEARING 1 containing full development rights, in the early subdivision known as the WRR area in HMB. All of the 2 conduct and actions engaged by HMB was to appropriate the Gearings’ right of ownership 5 for itself or 3 someone else, to restrict the Gearings’ ability to use their own property and to drive down and suppress 4 private property values in furtherance of an unlawful ultimate objective of obtaining public ownership 5 of the Gearings’ real property without payment of just compensation 6, which is an unlawful exercise of 6 eminent domain law and unlawful exercise of HMB’s police powers; and (4) with animus, the 7 commencement of retaliatory condemnation proceedings long after the Gearings unequivocally 8 announce their intention to file their 42 U.S.C. Civil Rights action for Inverse Condemnation and did file 9 it to punish them, and HMB further punished the Gearings by filing for immediate possession (which 10 this Court denied), without any conceivable rational and lawful basis in direct violation of the Decker 11 Rule, targeting the Gearings and their six legal lots out of the approximately 150 legal lots in the WRR 12 area in response to their unequivocal announcement on July 27, 2020 and on September 11, 2020 in 13 lengthy correspondences directly to HMB and to their lawyer, Matthew Zinn, Esq., of the Gearings’ 14 clear unequivocal intent to file a Federal 42 U.S.C. § 1983 Civil Rights Action to vindicate their 15 constitutional rights for Inverse Condemnation. So now the Gearings assert their righteous legal causes 16 of actions as follows: 17 • COUNT 1: 42 U.S.C. § 1983 CIVIL RIGHTS ACTION FOR 18 UNCOMPENSATED TAKINGS IN VIOLATION OF THE FIFTH AMENDMENT OF THE UNITED STATES CONSTITUTION, INVERSE CONDEMNATION 19 20 • COUNT 2: 42 U.S.C. § 1983 CIVIL RIGHTS ACTION FOR VIOLATIONS OF SUBSTANTIVE DUE PROCESS RIGHTS UNDER THE FOURTEENTH AMENDMENT 21 OF THE UNITED STATES CONSTITUTION 22 5 InCedar Point Nursery v. Hassid, 210 L. Ed. 2d 369 (2021), Justice Roberts stated: “[O]ur cases have often described use restrictions that go ‘too far’ as ‘regulatory takings’… But that label can mislead. Government action that physically 23 appropriates property is no less a physical taking because it arises from a regulation… The essential question is not, as the Ninth Circuit seemed to think, whether the government action at issue comes garbed as a regulation (or statute, or 24 ordinance, or miscellaneous decree). It is whether the government has physically taken the property for itself or someone else—by whatever means—or has instead restricted a property owner's ability to use his own property… Whenever a regulation results in a physical appropriation of property, a per se taking has occurred….” (Emphasis added). 25 Accordingly, it is not as HMB so thinks, whether they garb it with a city council LUP 9.3.5…. a per se taking has occurred. 26 6 “Such compensation means the full and perfect equivalent in money of the property taken. The owner is to be put in as good position pecuniarily as he would have occupied if his property had not been taken.' ... [¶] “The word `just' in the Fifth Amendment evokes ideas of `fairness' and `equity'...."' Thus, the City cannot enact restrictions on property it seeks to 27 condemn for the express purpose of preventing development and thereby freeze or depress property values, and then attempt to show that that same zoning restriction prevents a highest and best use inconsistent with its terms. Such a position is 28 contrary to established eminent domain law. City of San Diego v. Rancho Penasquitos Partnership, 105 Cal. App. 4th 1013, 1032, 1033 (2003), as modified on denial of reh’g (Mar. 3, 2003). 7 THIRD AMENDED CROSS-COMPLAINT BY THOMAS J. GEARING AND DANIEL K. GEARING 1 • COUNT 3: 42 U.S.C. § 1983 CIVIL RIGHTS ACTION FOR VIOLATIONS OF PROCEDURAL DUE PROCESS RIGHTS UNDER THE FOURTEENTH 2 AMENDMENT OF THE UNITED STATES CONSTITUTION 3 • COUNT 4: 42 U.S.C. § 1983 CIVIL RIGHTS ACTION FOR VIOLATIONS OF EQUAL PROTECTION RIGHTS UNDER THE FOURTEENTH 4 AMENDMENT OF THE UNITED STATES CONSTITUTION 5 • COUNT 5: DAMAGES FOR DIMINUTION IN PROPERTY VALUE RESULTING FROM UNREASONABLE STATEMENTS, DELAY, AND OTHER 6 CONDUCT, KLOPPING V. CITY OF WHITTIER (1972) 8 CAL.3D 39 7 • COUNT 6: REQUEST FOR DECLARATORY RELIEF TO RENDER VOID THE 1999 VOTER INITIATIVE (MEASURE D) WHICH CAPS 8 RESIDENTIAL GROWTH AT 1% IN THE CITY OF HALF MOON BAY PURSUANT TO GOVERNMENT CODE § 66300 AND FOR AN INJUNCTION 9 DECLARING THE 1999 VOTER INITIATIVE VOID AS A MATTER OF LAW UNTIL 2034 AS A RESULT OF THE WORST HOUSING CRISIS EVER IN THE 10 HISTORY OF THE STATE OF CALIFORNIA 11 • COUNT 7: REQUEST FOR DECLARATORY RELIEF TO DETERMINE THE RIGHTS OF THE GEARINGS UNDER THE CONSERVATION 12 EASEMENT PLACED ON THE PUBLIC ACCESS STREETS/EASEMENTS BY THE JOINT ACTION OF THE CITY OF HALF MOON BAY AND COASTSIDE 13 LAND TRUST AND FOR AN INJUNCTION PROHIBITING THE CITY OF HALF MOON BAY AND COASTSIDE LAND TRUST CLAIMING AND/OR 14 ENFORCING THEIR CONSERVATION EASEMENTS IN A MANNER THAT BLOCKS THE GEARINGS’ AND THE OTHER WRR AREA LEGAL LOT 15 OWNERS’ RIGHT TO UTILIZE THE PUBLIC LEGALLY MAPPED DIRT ACCESS STREETS AND/OR EASEMENTS TO THEIR LEGAL LOTS 16 • COUNT 8: REQUEST FOR DECLARATORY RELIEF TO DETERMINE 17 THE RIGHTS OF THE GEARINGS PERTAINING TO HMB BLOCKING AND BERMING VEHICULAR TRAFFIC ON THE PUBLIC ACCESS STREETS, 18 WHICH ARE LEGALLY MAPPED DIRT CITY STREETS/EASEMENTS, WITH RAISED MOUNDS OF DIRT, RAISED MANHOLES, AND ABANDONED 19 WATERLINES IN A MANNER THAT BLOCKS THE GEARINGS’ AND THE OTHER WRR AREA LEGAL LOT OWNERS’ RIGHT TO UTILIZE THE 20 PUBLIC RIGHT-OF-WAYS AND/OR EASEMENTS TO THEIR LEGAL LOTS AND FOR AN INJUNCTION ORDERING HMB TO OPEN UP VEHICULAR 21 TRAFFIC ON THE ACCESS STREETS AND PROHIBITING HMB FROM BLOCKING AND BERMING THEM AGAIN 22 • COUNT 9: PUBLIC NUISANCE, PRIVATE NUISANCE, FAILURE TO 23 ABATE ARTIFICIAL CONDITION ON LAND CREATING NUISANCE 24 III. THE PARTIES 25 14. Thomas J. Gearing is the fee owner of five Legal Lots of real property situated in City of Half 26 Moon Bay (HMB) in the area commonly referred to as the WRR area and identified more particularly as 27 Assessor’s Parcel Nos. (“APNs”) 056-096-240, 056-096-480, 056-127-030, 056-127-040, and 056-128- 28 090. Each of the APNs owned by Thomas Gearing were acquired or caused to be acquired for him 8 THIRD AMENDED CROSS-COMPLAINT BY THOMAS J. GEARING AND DANIEL K. GEARING 1 during the 1990s. HMB has Judicially Admitted Thomas Gearing’s ownership of his legal lots in its 2 answer to the Gearings’ cross-complaint. 3 15. Daniel K. Gearing is the fee owner of one Legal Lot of real property in the WRR in HMB, APN 4 056-125-210. Daniel was gifted APN 056-125-210 by his grandmother Juanita Kendrick, who originally 5 purchased the parcel with her husband Philip Kendrick in 1993, who passed away. HMB has Judicially 6 Admitted to Daniel Gearing’s ownership of his legal in its answer to the Gearings’ cross-complaint. 7 16. The Cross-Defendant, HMB, is an incorporated city within the County of San Mateo, California, 8 and is vested by law with the authority to exercise the power of Eminent Domain to acquire property for 9 public uses, and now after decades of denial, makes judicial admissions in its answer to the Gearings’ 10 Federal and State Complaints, that the streets upon which the Gearings legal lots lie are not paper 11 streets, as in 1959 when HMB incorporated as a matter of law, the paper streets became the legally 12 mapped streets of the city of HMB. Furthermore, HMB admits, through their own documents, and sworn 13 testimony of their person most knowledgeable (PMQ), after decades of denial, proclaiming that the 14 Gearings’ legal lots were located in an “antiquated subdivision,” and did not have the status of legal lots 15 legally subdivided, that they are in fact located in an early subdivisions, and have been legally 16 subdivided, and that it issued certificates of compliance recognizing their legal status as legal lots, with 17 development rights, and now finally recognized them as legal lots with development rights. 18 17. The Cross-Defendant, Coastside Land Trust (“CLT”), is a registered 501(c)(3) nonprofit 19 organization. At all times mentioned had full knowledge of the true facts alleged in this complaint and 20 took their actions knowingly of the true facts. 21 18. DOES 1–100, inclusive, are the fictitious names of the cross-defendants sued herein under the 22 provisions of CCP § 474. The true names or capacities of the cross-defendants sued under the fictitious 23 names DOES 1–100 are currently unknown. However, the Gearings are informed and believe and 24 thereon allege that each of the fictitious and named cross-defendants are responsible in some manner for 25 the occurrences and injuries herein alleged, and that the Gearings’ damages as herein alleged were 26 proximately caused by such cross-defendants. The Gearings will amend this Third Amended Cross- 27 Complaint to show such true names and capacities when the same have been ascertained. 28 9 THIRD AMENDED CROSS-COMPLAINT BY THOMAS J. GEARING AND DANIEL K. GEARING 1 IV. VICARIOUS LIABILITY AND RESPONSIBILITY 2 19. The Gearings are informed and believe and allege thereon that at all times herein mentioned, 3 cross-defendants and each of them were the agents, ostensible agents, servants, employees, partners, 4 joint venturers acting in a joint venture, acting on a joint mission, acting as a quasi-governmental 5 organization, with each other as co-defendants, and in doing the things herein after alleged were acting 6 within the scope of their authority as such, with the permission and consent of their co-defendants and 7 condoned and ratified the behavior and actions of each other. 8 20. The Gearings are informed and believe and allege thereon that at all times herein mentioned, that 9 CLT, a registered 501(c)(3) nonprofit organization; Michael Kimsey, the founder of CLT, Vice 10 President, Chair of the Development Committee and various other roles for CLT; Jo Chamberlain, 11 former Executive Director of CLT who was recently terminated and rehired in another role; members of 12 its Board of Directors; its lawyers; and its affiliated appraiser, Kenneth Habeeb, were acting as partners, 13 joint venturers, agents, ostensible agents, co-conspirators, employees, a quasi-governmental agency, 14 servants of CLT and HMB and Kenneth Habeeb at all times was acting also as an affiliated appraiser for 15 both CLT and HMB. 16 21. The Gearings are informed and believe and allege thereon that at all times herein mentioned, 17 CLT and those persons stated above were acting as a quasi-governmental agency in concert, as a partner, 18 as joint venturers, agents, ostensible agents, co-conspirators, employees, a quasi-governmental agency, 19 servants of CLT and HMB on a joint mission with HMB to unreasonably, intentionally, unlawfully 20 diminish the value of the Gearings’ legal lots and the other legal lots in the WRR early subdivision and 21 the Wavecrest early subdivision, and other early subdivisions in HMB in anticipation of acquiring the 22 Gearings’ legal lots and the other WRR legal lots by eminent domain or purchase contract, and took 23 actions jointly to unreasonably, intentionally, and unlawfully, flaunting the law with animus to diminish 24 the Constitutional Fair Market Value of such legal lots. 25 V. THE HISTORY OF THE GEARINGS’ LEGAL LOTS AND THE WRR AREA 26 19. HMB is a city of early subdivisions formed in the early 1900s. HMB’s history dates back to the 27 mid-1800s as an unincorporated part of San Mateo County. The now-incorporated HMB began as an 28 agricultural area intended to support surrounding larger communities, including San Francisco. In the 10 THIRD AMENDED CROSS-COMPLAINT BY THOMAS J. GEARING AND DANIEL K. GEARING 1 early 1900s, the Ocean Shore Railroad line began to service the area with tracks following the coastline 2 as it ran through San Mateo County, including the City of HMB. The railroad eventually stopped 3 operating, but the historical vestiges of the railroad’s presence are still a part of HMB, including the old 4 right-of-way by the coast, along what is now known as Railroad Avenue and the old Railroad Right-of- 5 Way (“RROW”) (referred to herein as “Railroad Avenue” or “Railroad”). The Once upon a time train 6 tracks are no longer there. 7 20. As HMB progressed and began to develop in these early days, owners of various tracts of large 8 acreage subdivided their lands into individual lots designed for single family residential and supporting 9 uses. Maps of these early subdivisions were recorded by San Mateo County. Such subdivisions were 10 created from 1905 to 1909 around present-day Railroad Avenue, with a large land area known as 11 Rancho Miramontes. These consisted of the Miramontes Tracts, Arleta Park, and Additions, and 12 included the “Frank P. Brophy’s Subdivision of the Miramontes Tract” and “Ocean Boulevard Tract.” 13 21. The Subject Parcels are located within the Brophy and Ocean Boulevard Tracts, on the west side 14 of Railroad Avenue. 15 22. The Arleta Park subdivision (located immediately south of the Ocean Boulevard Tract) and the 16 Brophy subdivision both straddle and are comprised of a significant number of lots on either side of 17 Railroad Avenue. 18 23. HMB, in their Answers to the Federal and State Complaints, admit that the “County of San 19 Mateo accepted the streets shown on the above-referenced subdivision maps as dedicated to public use, 20 and these paper streets later became legal streets of the City by operation of law when it incorporated in 21 1959.” (Emphasis added). These judicial admissions are binding on HMB. 22 24. The typical lot size within each of the subdivisions referenced herein is 50-feet by 150-feet, 23 though the lots vary in size and shape, with most ranging between 6,000 and 7,500 square feet. The R1 24 B1 lots were created for residential/commercial development, and in the time since the original maps 25 were first recorded, buildout of nearly all of the areas within these subdivisions has occurred, with the 26 exception of the Ocean Boulevard Tract and in those portions of the Brophy Tract and Arleta Park 27 subdivisions located west of Railroad Avenue. 28 // 11 THIRD AMENDED CROSS-COMPLAINT BY THOMAS J. GEARING AND DANIEL K. GEARING 1 25. The Gearings’ legal lots are zoned as R1/B1. The LUP 9.3.5 proposed land uses include 2 residential and commercial. 3 26. The Subject Parcels are situated in the Ocean Boulevard Tract and that portion of the Brophy 4 Tract located in what is now known as the WRR area, a 32-acre span of ocean-view bluff area, which 5 contains approximately 150 7 individually-owned legal lots, previously subdivided for residential use, 6 consistent with the build-out that has occurred in the rest of the Brophy Tract, Arleta Park, and adjacent 7 subdivisions of Rancho Miramontes and the Miramontes Tract. 8 27. The Gearings individual Subject Parcels have been sold among various property owners as 9 individual lots since 1905. This confirms their legal status as legal lots. 10 28. At the time Thomas Gearing purchased his first legal lot in HMB and had a contractor build his 11 first home at 300 Central and Railroad, property values in the area both east and west of Railroad 12 Avenue were negatively impacted because HMB operated an open landfill known as Poplar Landfill in 13 close proximity to the neighborhood. The Poplar Landfill, which is now known as a toxic waste site, was 14 eventually closed and buried. With the landfill out of sight, as stated by Jo Chamberlain with CLT, 15 “current residence do not even realize it was there,” and accordingly the property values have exploded 16 alongside the rising value of California coastal land in general. With the burying of the landfill, 17 multimillion dollar homes were constructed in the area east and west of Railroad Avenue. A substandard 18 legal lot (3,465 square feet) recently sold for $495,000.00 on the east side of Railroad Avenue. A 19 conforming legal lot (6,100 square feet) also sold on the west side of Railroad Avenue in 2010 for 20 $780,000.00. 8 21 29. Further, Thomas Gearing had prior experience purchasing property in the neighborhood and 22 hired a contractor to successfully build his first home at 300 Central Avenue at its intersection with 23 Railroad Avenue. He purchased the lot in approximately 1980 for $8,000.00. Today the Fair Market 24 Value of the property in total, based on an average between Zillow and Redfin, is approximately 25 26 7HMB's earlier LUP claimed there were approximately 130 lots in the WRR area and now and the latest version HMB claims there are approximately 150 lots in the WRR area. 27 8 Simply because once upon a time a train traveled down the old Railroad Right-of-Way (“RROW”), that fact does not diminish the value of the Gearings Oceanfront, Oceanview legal lots on the west side of the previous but now nonexistent 28 train tracks. 12 THIRD AMENDED CROSS-COMPLAINT BY THOMAS J. GEARING AND DANIEL K. GEARING 1 $2,469,465.00. The San Mateo County Assessor’s Office upon sale and reassessment would reassess the 2 land value only at approximately $1,234,732.00 as the Assessor’s Office in San Mateo County is 3 allocating approximately 50% of the total assessed value to the land. Thomas Gearing previously sold 4 this home. The Gearings’ six legal lots that are the subject matter of this litigation are in front, west of 5 this home, and are the Oceanfront and Oceanview legal lots. 6 30. When they acquired the Subject Parcels, Thomas Gearing and Daniel Gearing’s grandfather were 7 aware that the legal lots were separate, legally subdivided lots, on legally mapped dirt city streets, with 8 full development rights, that taxes had been paid on the parcels, that the parcels had been subdivided for 9 residential purposes, and were in size, physical characteristics, on solid buildable soil, and other 10 respects, of the same character and configuration as parcels immediately east of Railroad Avenue, that 11 had been successfully developed. 12 VI. HMB IS EQUITABLY ESTOPPED FROM DENYING THAT THE GEARINGS OWN 13 LEGAL LOTS AND THAT THEY CAN EXERCISE THEIR VESTED CONSTITUTIONAL RIGHT TO BUILD ONE HOME ON ONE LEGAL LOT. 14 15 31. The Gearings and their predecessors in title have paid taxes on the Subject legal lots as 16 individual lots as originally zoned, R1/B1, for the entire span of approximately 118 years with the 17 expectations of building one home on one legal lot in the residential neighborhood. HMB admits in its 18 Answer to the Gearings’ Complaint that the property taxes paid went to the benefit of HMB. HMB used 19 this tax revenue to build and develop HMB and its infrastructure to provide for the residential use of 20 their six legal lots. Therefore, HMB is estopped under the principles of equitable estoppel from denying 21 their individual right, their constitutional vested right to achieve that reasonable expected goal: one 22 home on one legal lot, constitutionally reasonable economic use of his or her property. 9 Two of the lots, 23 the Subject Lots, are contiguous with one another, and together makeup one building site. 24 // 25 9 “Ithas been said generally that a governmental agency may not be estopped by the conduct of its officers or employees 26 [Citation], but there are many instances in which an equitable estoppel in fact will run against the government where justice and right require it. (Citation of authorities.) It has been aptly said: ‘If we say with Mr. Justice Holmes, “Men must turn 27 square corners when they deal with the Government,” it is hard to see why the government should not be held to a like standard of rectangular rectitude when dealing with its citizens.’ (48 Harv.L.Rev. 1299.)” Farrell v. County of Placer, 23 28 Cal.2d 624 (1944). 13 THIRD AMENDED CROSS-COMPLAINT BY THOMAS J. GEARING AND DANIEL K. GEARING 1 32. At 149 Miramontes Street, HMB, directly east of the Gearings’ legal lots, the home and legal lot 2 together have a Constitutional Fair Market Value of approximately according to the average of Zillow 3 and Redfin, and the current tax bill according to the San Mateo County Tax Assessor at $4,317,660.00. 4 The Government, San Mateo County Tax Assessor, is assessing the land only at $2,699,800.00. At the 5 same time the Government, HMB, proclaims that the Gearings’ legal lots the true oceanfront and ocean 6 view lots in front of 149 Miramontes Street are only worth approximately $30,000.00 each, 7 unconscionable. 8 33. Neighboring homes have recently sold for more than $3 and $4 million dollars. The Gearings are 9 informed and believe that the San Mateo County Tax Assessor assesses the land value under the homes 10 in the area at approximately half of the sales value, placing the Government’s, San Mateo County tax 11 assessor’s taxable value of each legal lot under these homes in the range of $1.5 to $2 million. 12 34. The Gearings reasonably believed that they would ultimately be able to build homes on the 13 Subject legal lots, just as Thomas Gearing had done a stone’s throw across Railroad Avenue at 300 14 Central Avenue, HMB, with the Alsace Lorraine et al Assessment District, which was preliminarily 15 approved approximately in March 1983. The legal lots on the east side of the once-upon-time railroad 16 track were subdivided at the same time. HMB approved of the building of all the homes on the east side. 17 There were no proclamations that these lots were not legal lots or were in “antiquated subdivisions” or 18 that they did not comply with the Land Map Act, or that they were somehow defunct and not buildable, 19 or that the streets there were inadequate, designed wrong, only had paper status, or that those lots 20 contained the San Franciso Garter Snake and the Red-Legged Frog, or wetlands, or ESHAs. The lots and 21 the streets were the same in configuration and the composition of the soil was exactly the same. HMB 22 does not explain how it could possibly be that just because a train once-upon-a-time went down the 23 railroad tracks that no longer exists that everything on the west side would be as they now proclaim. 24 35. Thomas Gearing always reasonably believed that HMB would either prepare its own Gov. Code 25 § 65450 and § 65103(b) Specific Plan as a legislative act 10, or that it would not ultimately unreasonably 26 10 Itis undisputed that the creation of a specific plan is a legislative act and Daniel and Thomas Gearing are not legislators. It 27 is incumbent upon local planning agencies, upon adoption of a general plan, to adopt specific plans for the systematic implementation of the General Plan. (Gov. Code §§ 65103(b); 65450.) “Adoption or amendment of a specific plan for the 28 systematic implementation of the general plan is … a legislative act.” (The Park at Cross Creek, LLC v. City of Malibu (2017) 12 Cal.App.5th 1196, 1204.) Further, “[t]he adoption of a specific plan is a legislative act similar to the adoption of a 14 THIRD AMENDED CROSS-COMPLAINT BY THOMAS J. GEARING AND DANIEL K. GEARING 1 and unlawfully use and apply the LUP’s provisions to bar individual property owners from processing 2 building applications to build one home on one legal lot because his understanding was that such a bar 3 would be unlawful, unconstitutional and cause a taking without just compensation. 4 36. The Gearings are not barred from challenging HMB’s actions because they purchased their legal 5 lots after the LUP was adopted. HMB retained discretion to implement the LUP’s provisions in a 6 manner that would not work a taking or other violation of the Gearings’ rights including their vested 7 constitutional right to build one home on one legal lot. Further, the United States Supreme Court has 8 held that a post-enactment transfer of title does not absolve the government of its obligation to defend its 9 unreasonable actions restricting land use. (Palazzolo v. Rhode Island (2001) 533 U.S. 606, 608–09.) 10 VII. AS HMB FILED THEIR CAUSE OF ACTION FOR EMINENT DOMAIN, THIS LITIGATION FALLS UNDER THE UNIQUE SPECIAL RULE UNDER CITY OF LOS 11 ANGELES V. DECKER, 18 CAL.3D 860 (1977) (“DECKER RULE”). 12 37. At all times mentioned, as this case involves HMB’s cause of action for Eminent Domain, the 13 condemnor, HMB, and its condemning attorneys must comply with the Decker Rule. In City of Los 14 Angeles v. Decker, 18 Cal.3d 860, 871 (1977), Justice Sullivan stated, “7-105 of the Rules of 15 Professional Conduct of the State Bar of California requires: "In presenting a matter to a tribunal, a 16 member of the State Bar shall: (1) Employ, for the purpose of maintaining the causes confided to him 17 such means only as are consistent with truth, and shall not seek to mislead the judge, judicial 18 officer or jury by an artifice or false statement of fact or law." As suggested by the American Bar 19 Association, a government lawyer may be under an even higher duty: "A government lawyer in a 20 civil action ... has the responsibility to seek justice and to develop a full and fair record, and he should 21 not use his position or the economic power of the government to harass parties or to bring about 22 unjust settlements or results." (ABA Code of Prof. Responsibility, canon 7, ethical consideration 7- 23 14.) Occupying a position analogous to a public prosecutor, he is "possessed ... of important 24 governmental powers that are pledged to the accomplishment of one objective only, that of 25 impartial justice." (Professional Responsibility: Report of the Joint Conference (1958) 44 A.B.A.J. 26 1159, 1218.) [6] The duty of a government attorney in an eminent domain action, which has been 27 general plan or zoning ordinance.” Cal. Governor’s Off. of Plan. and Rsch., The Planner’s Guide to Specific Plans 4 (January 28 2001 Ed.). 15 THIRD AMENDED CROSS-COMPLAINT BY THOMAS J. GEARING AND DANIEL K. GEARING 1 characterized as "a sober inquiry into values, designed to strike a just balance between the 2 economic interests of the public and those of the landowner" (Sacramento etc. Drainage Dist. v. 3 Reed (1963) 215 Cal. App. 2d 60, 69 [29 Cal.Rptr. 847]), is of high order. "The condemnor acts in a 4 quasi-judicial capacity and should be encouraged to exercise his tremendous power fairly, 5 equitably and with a deep understanding of the theory and practice of just compensation." (Hogan, 6 Trial Techniques in Eminent Domain (1970) pp. 133, 135.) (Emphasis added.) 7 38. At all times mentioned, the condemnor HMB and its condemning counselors have breached their 8 legal and ethical duties under the Decker Rule. They have not acted in a quasi-judicia