Appellate court throws out Dalidio ruling

August 4, 2009

By KAREN VELIE

A state appellate court ruling Tuesday paved the way for Ernie Dalidio’s proposed multi-faceted plan to develop his land and, at the same time, gave him the option of refilling a RICO lawsuit against the San Luis Obispo Downtown Association and the mysterious corporation that opposed his proposal.

“They have blown these guys (opponents) out of the water,” Dalidio said after the decision was made public. “It is unbelievable how strongly the appellate court knocked them out.”

The Second Appellate District of the state Court of Appeal voted unanimously to throw out Superior Court Judge Roger Picquet’s ruling last year that overturned a 2006 San Luis Obispo County ballot initiative approved Dalidio’s project by a 65-35 percent margin.

“This is not just about me,” Dalidio said. “It is about the public that voted for this thing. They have been vindicated.”

The approved vote would have allowed Dalidio to incorporate business, retail, and residential development on his 131-acre site that runs along the west side of U.S. Highway 101 between Los Osos Valley and Madonna Roads.

The appellate court noted in its 3-0 decision that the Measure J initiative was legislative and not adjudicative (adjudicative issues cannot go through the initiative process). In addition, the issue of the Measure J trumping the airport land use was ruled to be “without merit.”

“Respondents’ remaining arguments can be disposed of summarily,” the decision said.

The court noted that a case Picquet relied on for his ruling against Dalidio was not relevant, concluding that Picquet erred in his reasoning for his decision against Dalidio.

Opponents of the development, Citizens for Planning Responsibly (CPR), and the Environmental Center, said they have not yet decided how they plan to react to the decision. Their options include making a motion to the appellate court for reconsideration or to ask the state Supreme Court to hear their arguments.

“We were disappointed when we read this decision and think the court of appeals got it wrong,” said CPR President Rosemary Wilvert. “We are going to review the decision and look at our legal options.”

In early 2008, Dalidio filed a declaration to allow a Racketeer Influenced and Corrupt Organizations Act (RICO) lawsuit against the LLC and the downtown association that opposed the No on Measure J Campaign and the downtown association. Dalido’s multimillion-dollar lawsuit claims that the downtown association and Responsible County Development LLC conspired and implemented unlawful business practices to thwart the proposed development.

U.S. District Judge Christina Snyder in Los Angeles tentatively dismissed Dalidio’s case alleging conspiracy and unlawful business practices, noting Picquet’s ruling.

At this time, Dalidio is undecided on how he will proceed in the future with his proposal, but he said he is not going to “quit.”

“It is a long and winding road where someone in the system has heard Dalidio’s voice,” said Dalidio attorney James McKiernan. “The shovel can break the ground. It breathes new life and resurrects our clients’ option on the tort lawsuit.”

Following information from Dalidio’s attorneys that the downtown Association and the No on Measure J had run an illegal campaign against the Dalidio proposal, the Fair Political Practice Commission (FPPC) researched the claims and determined they had merit.

“The FPPC has authorized us to act as representatives of the state in an election fraud case,” McKiernan added.

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One Comment

  1. ccn_debate says:

    Member Opinions:
    By: pismoclam on 8/12/09
    Yes – Sue the pants off everyone who, illegally constained your plans. The Downtown Assn should pay till they Squeek and the individuals on the board as well. Piquet shouldn’t be reelkected. He only ruled the wauy he did because of politics. Remember, he was a City SLO attorney. He should have reclused himself.

    By: NorthCountyGuy on 8/8/09
    SLO-town should be congratulated for its cruel and unusual discrimination against the handicapped thru its ban on drive-thru windows. The audacity of those lazy and shiftless handicapped people for not being able to quickly get in and out of their cars.

    By: Cindy on 8/7/09
    “Picquet had awarded attorneys’ fees to ECOSLO and CPR.” Was this judge a piece of work or what? Its one thing to mis-interpret the law and rely on a previous case that has no relevance but to award Attorneys fees! Isn’t that usually done when a case has no merit to begin with? Ernie really had it stacked against him. SLO is a scary place to do business.

    By: FRACTUREDFAIRIETALES on 8/6/09
    Obispan: Why would they crash exactly there?! Because you don’t want the property developed. Just cut to the chase and state that and stop wasting OUR time purporting to care if there is a crash or explosion. They could just as easily smash into the freeway, the box stores or the mountain.

    By: BeenThereDoneThat on 8/5/09
    I was wondering. The fact that this has dragged on for the last eight years (I think) since they announced some of the stores and some have defected over to L.O.V.R, does anyone know if LOWE’S is still a go now that it is about a month and a half from opening in Paso?

    I figure they gave up on SLO and went with Paso. Just like Costco was about to till SLO stopped messin around.

    The LOWE’S is the first on the ENTIRE central coast (Ventura to Gilroy)and took years to get. I can’t see them being in a hurry to get to SLO. Especially after all the crap they gave Ernie.

    By: pismoclam on 8/5/09
    I’m looking forward to Mr. Dalidio wraping a lawsuit and a multi million $ judgement around the Downtown Association’s neck (and by extension the City of SLO), and unnamed individuals. Good for you Dalidio.

    By: WazzUp on 8/5/09
    If mccdave, Lewy, Al or obispan owned the Dalidio property they would be spewing the b__LSh_T I’m reading. Their just another few who are in the Copeland’s pocket.

    By: SanSimeonSam on 8/5/09
    I for one remember that the bogus save san luis group sold out to kelly gearhart way back when. they took a bribe from him and let him proceed to put in a used car lot next to the dalidio property. I guess romero and copeland were not worried about competition from used car dealers. Its a sad thing that the likes of Dan Devaul and Ernie D are not well thought of by the Copelands and Miss mouth Mullholland. They get the shaft and all the graft goes to Copeland, Romero, Gearhart and countless others. In the meantime, get this prediction…..all the flagship stores Ernie was counting on have already been put in place or contracted with by Madonna except for one…..HELLO WALMART SUPERSTORE
    And you SLO SLOB SNOBS deserve nothing less than the best walmart can offer with plenty of room left over for a trailer park.

    By: rogerfreberg on 8/5/09

    Hmmm… this underscores an inherent problem in our county: where can one go for a fair hearing?

    Whether you are a lawyer or a judge, you have to ‘live’ in this county and that means listening to some of the powerful players walking around ( these are not just individuals but institutions). Those who play their game seem to survive, those who don’t get run out of town. That’s just the way it is.

    So, I am not surprised that E.D. had the local court’s decision reversed when he took it up the ladder. Local rules and practices don’t always sound the same in different ears. Although there are deep pockets behind the anti-e.d.effort, I would question their wisdom if they try to take it to the next level. They’d have to pay E.D.’s legal costs… again.

    As for all the finger pointing on economic issues, I wouldn’t worry about it … from the planning commissions to the city councils so many folks are economically illiterate that it boggles the mind. I am sure they’ll just raise taxes and that will solve things? riiiiight!

    Roger

    By: mccdave on 8/5/09
    Otis: “If you own property zone for commercial, and your plans for dev. meet established local codes (sq. ft/density etc.) then you should be able to build.”

    Okay, that’s a reasonable view especially for that property, even if it’s a little more complicated than that. (Architectural review has a role, and Madonna Rd is a code-compliant nowheresville.)

    Black_Helicopter_Pilot: “you gonna give credit to the extreme environmentalists for not having a bigger recession?”

    No, I’d give that one to reasonable planning, inherent constraints (water, roads, etc.) and some restraint on developers’ desire to make a fast buck by spreading tarmac, drywall and sod everywhere. It is not “extreme environmentalism” to want to avoid converting every square foot in town into a plastic mall, especially since credit-fueled consumption (a word that used to be synonymous with disease) abruptly went out of fashion recently.

    And one shouldn’t forget how much the property bubble was an environmental tragedy. If you consider all the resources — money, material, land, labor — that were misspent on development mania, it’s heartbreaking. Even from a hard-nosed return-on-investment point of view, it was utterly insane.

    By: OtisCampbell on 8/5/09
    Mccdave – Re: “”Build all he wanted” is patently absurd” – I’m in no way a follower of the Ayn R crap, but do believe that if you own property zone for commercial, and your plans for dev. meet established local codes (sq. ft/density etc.) then you should be able to build. Overbuilding of useless commercial dev., is a bad as poor/corrupt local planning, corrupt developers, and the changing the rules in ‘the middle of the game’.

    By: Black_Copter_Pilot on 8/5/09
    “”The only reason the crash hasn’t been as bad here as in places like Stockton and San Berdoo is because we didn’t let developers “build all they wanted.” “”

    So Mcdave, you gonna give credit to the extreme environmentalists for not having a bigger recession? Then be prepared to blame them when recovery is not as big as others as well..

    The markets should be the determining factor in this, not a minority of do-gooders

    By: mccdave on 8/5/09
    Otisberg: “If Dalidio’s land was zoned commercial, then he should have been able to build all the commercial space he wanted”

    “Build all he wanted” is patently absurd, and this is the crux of the matter. Virtually any development has externalities and this is why property rights do not entitle you to do anything you want with your property. The Ayn Rand brigade needs to understand that the world is complicated and everything affects everything.

    Of course the Dalidio property should be developed. The tough question is how, and deciding such things by ballot initiative is crazy.

    The only reason the crash hasn’t been as bad here as in places like Stockton and San Berdoo is because we didn’t let developers “build all they wanted.”

    By: George on 8/5/09
    Too bad about the off site greenspace acreage
    that went down with the original plan. The Downtown Business Association should be ashamed of themselves for getting involved undermining the SLO city planners and wasting the membership funds.

    By: Cindy on 8/5/09
    RIGHT ON post dr_gray. I just went and stuck it on the Tribune blog.

    By: Nancy on 8/5/09
    McDave – Where you selling or buying?

    By: Cindy on 8/5/09
    mcdave, Guess we don’t have to ask what you were doin over at the Shandon whorehouse.

    By: OtisCampbell on 8/5/09
    If Dalidio’s land was zoned commercial, then he should have been able to build all the commercial space he wanted. Of course, it would been interesting, given the downturn, to see how much of it would now be vacant.

    Re: the jet crash. I was there on the foggy morning when a Citation jet failed to follow the regs and crashed into the field and exploded. But hey, what are the odds?

    By: ds_gray on 8/5/09
    To those opposed to developing this postage-stamp-sized piece of ground: WHERE WERE YOU WHEN EVERY OTHER STITCH OF DIRT AROUND THIS LAND WAS DEVELOPED?! This land has been converted to commercial land BY DEFAULT, as it is no longer suitable for farming due to encroaching development on all sides. Dalidio’s land was surrounded and he should’ve been allowed to convert his land just like every OTHER landowner. He was singled out for mistreatment by the SLO government machine, just like so many other individuals, and has been attacked for standing up to the corruption. I sincerely hope he goes through with his RICO suit…something tells me the trail will lead back to ‘elected’ officials trying to keep the project from moving forward.

    By: mccdave on 8/5/09
    I keep running into a guy who was opposed to opening a brothel in downtown SLO right next to the Children’s Museum. Where do I see him? At the Shandon whorehouse. Nuff said.

    By: BeenThereDoneThat on 8/5/09
    I have to laugh. A ex concil person I know from Atascadero told me a couple years ago about running into here and there, one of the top people who was oppossed to Wal-Mart in Atas. and big box stores. Where did they keep running into the person. Wal-Mart in Paso. Nuff said.

    By: Paso_Guy on 8/5/09
    Glad to see that The People’s Republic of SLO will be able to do something with that weedpatch off of Hwy 101.

    With the water-treatment plant on the east side, the entry view was already compromised. And, the car lot to the south wasn’t SLOesque to say the least.

    Congrats, Ernie, almost restores my belief in the court system, almost.

    By: mccdave on 8/5/09
    It’s reassuring to know that voters in the fair city of Atascadero (see Booty_Juice’s characterization) get to do city planning in SLO. Fortunately economic conditions aren’t exactly ripe for building another big strip mall, so maybe something reasonable will be built on the Dalidio property.

    Has John Galt (jesus, some people insist on self-parody) ever seen the road bearing Alex Madonna’s name? It’s easily the most hideous thoroughfare in the county — even worse than El Camino in Atascadero or “Grand” avenue in Grover. I’ll never understand why Alex’s funeral procession went down Higuera when it should have gone past the Denny’s, McDonald’s, Chili’s, Taco Hell, Motel 5’s and other nowheresville ticky-tacky that lines that treeless hellscape. The Madonna Inn, by contrast, seems nicer — until you go inside. People with no f-ing taste should not be allowed to develop property without being guided step-by-step by folks who didn’t grow up in a cracker county abattoir.

    But let’s just let every local landowner cash out the countryside to the merchants of metastatic plastic. That worked out well for Southern Cal.

    By: mccdave on 8/5/09
    “”It is a long and winding road where someone in the system has heard Dalidio’s voice,’ said Dalidio attorney James McKiernan.”

    Damn straight, Jimmy. Now settle Ernie’s case without asking him first. Wait—did you hear that? I think I heard an ambulance…

    By: R.Hodin on 8/5/09
    No surprise that jim McKiernan would be excited over the prospect restarting the tort lawsuit—his client “won’t quit.”

    By: JorgeEstrada on 8/4/09
    Congratulations Mr. Dalidio, looks like you get to develope your refund check first. I didn’t particularly support more building but I do support your right to vote, so shame on those who tried to take it away.

    By: BeenThereDoneThat on 8/4/09
    Does anybody against this never go into a store? Own a house? Go to a Church? Public building? Are those against saying they still live in trees? If so then you have my full support against building.

    It’s like the oil arguement. Do you use plastic? Take medicine? Use fertilizer? Eat food that has been fertilized? Use pest control products? Have carpet in your house? Use nylon products? Use Tupperware?

    You get the picture. I don’t say rape the land and plant. Do it smart. If we aren’t going to build then everybody stop pro-creating tomorrow PLEASE!

    By: Lewy on 8/4/09
    “The shovel can break the ground.”

    Break the ground for what? A Payless shoe store?

    By: Al on 8/4/09
    who is “JohnGalt”(Don’t really care)
    … When Alex MAD-ON-nA Mountain ran those pink D-9’s up San Luis Mountain for the “fire road” to Swiss Chalet project, most folks around here smelled a “PIG”. I liked the man but personally some times actions make your S___ stink. Once you go beyond the right to develop issue what do we get? Another “Dollar Store”… duh

    By: BeenThereDoneThat on 8/4/09
    Ah come on now Newsome. You are being hard on people here. We should not let places be near airports. To that end we are closing LAX, San Fran, San Jose, Kennedy, La Guardia, etc. etc. etc. Now everyone TAKE THE BUS!!!

    Just kidding. Great point.

    By: Newsome on 8/4/09
    Obispan:

    I am probably as or more simple than Galt. However, it seems like the airport spewing wreckage and fire in your example is more like the chemical plant in terms of keeping its messes within its property lines.

    Further, pig farms BELONG on ag land. If pig farms are not compatible with the housing that has encroached on the ag land in the last 30 years, there are two things you can do about it. One is get rid of the encroaching houses. The other is rezone the ag land to something compatible with the neighborhood.

    The plane wreck drivvel is cute. A desperate grasp at straws, but cute. You probably were not here in the 60s to contest the placement in the flight path of the Laguna neighborhoods. Nor were you likely here in the 90s to contest the placement of the Margarita neighborhoods.

    By: Al on 8/4/09
    Oh great, now WE get to pay for the Prado Road freeway overpass fiasco. Atascadero gets Walmart and we get more empty big boxes. One step forward for compulsive shoppers, another step backwards for mankind.

    By: obispan on 8/4/09
    Sorry JG but you have a poor understanding of “property rights” due to the Atlas Shrugged simplicity of your thought process. Pig Farm, sure, likewise I have the right to put a chemical plant spewing carcinogens next to your house as long as my building’s on my side of the fenceline.

    So, Mr. Dalidio can develop land in-line with the airport’s main runway and the exact site of a an explosion and fire from a jet crashing on approach.

    The finer points of property rights and the law should not be debated by ignorant simpletons like yourself.

    By: JohnGalt on 8/4/09
    You go, Mr. Dalidio! The City of SLO has done enough damage already. You have every right to develop your land. I hope you go after the LLC and the City. When the City of SLO was giving Alex Madonna such a hard time, I thought it would be great, that if his plans were thwarted, he should put in a pig farm. You should do the same. See if those socialists in SLO like the smell of that!!!

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