Jayne Williams

Heron Bay HOA Huffs but Doesn’t Puff

 Heron Bay HOA Huffs but Doesn’t Puff  Businesses, Legal  No Responses »
Apr 072013
 

turbineHOA Misses Deadline for CEQA Lawsuit on Halus Wind Turbine

For the last half a year or so, the Heron Bay Homeowners Association has been threatening to sue the City of San Leandro if it approved the variance requested by Halus Power Systems to install a single wind turbine on an 80-foot tower on its property. Halus is on the business of refurbishing wind turbines and wants to be able to do on-site research and testing.  The Zoning Code requires that a property owner get a variance to erect any structure over 60 ft of height.

Heron Bay is a planned community resting on the site of a former ammunition factory across the creek from the industrial area where Halus is located.  It counts among its neighbors a PG&E substation, a salvage yard, a sewer water treatment facility and various industrial buildings.  When built, the turbine will share the skyline with massive electrical transmission towers, cell phone towers and cranes.

The HOA’s objections to the turbine have ran the gamut from then-HOA President and now Council Member Benny Lee‘s argument that it would acerbate his wife’s migraines to the fact that it will cast a shadow over some Heron Bay homes after 8:30 AM on December 21st of every year. Their main complaint, however, has been that the turbine is “ugly”.

The California Environmental Quality Act (CEQA) requires cities to evaluate the potential substantial environmental effects of any project they are asked to approve.   The main concern on this case was the potential danger the turbine might cause to the birds that inhabit or visit the nearby wetlands.  Halus commissioned a study on this very subject from a premier environmental consulting firm with a lot of experience working on the San Leandro shore.  It concluded that the turbine would pose only a minimal risk to birds (about one bird death every six years or so).  The California Department of Fish and Wildlife suggested how to further minimize the dangers but otherwise had no objections to the project.  The City carefully evaluated this and other potential environmental effects, and found there was no substantive evidence to suggest that any such effect would be substantial.  It prepared a mitigated negative declaration to this effect.  On February 7th, the Board of Zoning Adjustments approved the variance and on February 8th the City filed a Notice of Determination (NOD) with the County Clerk approving the project.

The Heron Bay HOA appealed the BZA decision to the City Council.  On April 1st, the Council voted 5-1 in favor of the variance.  The HOA, however, continues  threatening a lawsuit, apparently not realizing that their chance had passed.  Under CEQA (PRC §21167 (b)), any litigation “alleging that a public agency has improperly determined whether a project may have a significant effect on the environment”  must commence within 30 days from the date the NOD is filed.  That is to say, if the HOA wanted to challenge the City’s finding that there was no need for an Environmental Impact Report on this case, it had to file its lawsuit by March 10th.  It did not, so it would seem that the HOA is out of luck.

It’s not surprising that the HOA missed that particular deadline.  Throughout this process they were represented by an attorney that specializes in HOA law and not in CEQA law.  That’s like asking your podiatrist for advice on heart problems.  And this is a somewhat tricky legal matter.  Normally, decisions by the BZA must be appealed to the City Council before they are ripe for litigation.   And that’s true in this case of the BZA’s decision to grant Halus a height variance. The Heron Bay HOA can potentially challenge the variance decision in court, as long as it finds grounds to do it other than CEQA.  It seems unlikely that they will, and they certainly will not be able to do it without first spending considerable amounts of money to document any actual harm they have incurred.

This is probably a blessing in disguise for the Heron Bay HOA, however.  A relatively new law (PRC §21169.11) allows courts to impose sanctions of up to $10,000 for frivolous claims on the parties or attorneys that make them.  Given the claims advanced so far by the HOA, a lawsuit could quickly empty their bank account – and their lawyer’s.

**Update**

Assistant City Attorney Jayne Williams responded to an inquiry from the San Leandro Patch on this matter with the following statement:

The Heron Bay HOA’s appeal to the City Council specifically challenged adoption of the Mitigated Negative Declaration (MND) and was timely filed. As a result, the first 30 day Statute of Limitation from the BZA actions stopped running. Following the April 1st City Council public hearing, the City filed the CEQA “Notice of Determination” for the appeal on Tuesday afternoon- April 2nd . Therefore, a new 30-day Statute of Limitations began to run for challenging the MND from the April 2nd date.

CEQA, however, does not have any provisions to stop the clock on the status of limitations.  Indeed, Courts have repeatedly ruled that it starts running from the moment the project is initially approved.  And the California Supreme Court has been stated very clearly that filing a NOD triggers a 30-day statute of limitation for any litigation to be filed, even if there are problems with the NOD.  So far the Court has not carved any exceptions.

The Fifth District Court of Appeals, however, did recently find that when a Notice of Exemption (NOE) to CEQA is improperly filed prior to the project actually being approved, that notice is invalid and the statute of limitations does not start running.  William’s argument might fit within this analysis, given that NOEs are quite similar to NODs.  At the very least, it seems that if the Heron Bay HOA appeals, the City will not assert the statute of limitations as a defense.

Halus, however, may still chose to do so.  After all, the Fifth District’s decision is not binding on the First District (ours) and there is concern among CEQA practitioners that it does not jive with the Supreme Court decision referred to above.  Moreover, it is not at all clear that the City’s argument that the BZA’s approval of the project was not final, and that therefore the February NOD was improper, has merit.  Without a specific ordinance codifying the CEQA appeals process, the nature of the City Council’s review is an open question.

However, given the City’s position, it may not behoove Halus to assert the status of limitations, as the law is murky enough on this matter that if Halus wins, the HOA could appeal turning this into an expensive legal battle.   It would seem that responding to the suit on the merits could be a better strategy.   After all, the “evidence” of environmental effects submitted by the HOA was so poor that it should not be difficult for Halus’ and the City’s attorneys to argue that both the HOA and its attorney should be sanctioned for making frivolous claims.   CEQA provides for an objective test of what constitutes a frivolous claim and does not require bad faith, so the question the Court will entertain is whether a reasonable attorney – not the attorney actually representing the HOA – would believe the claim is totally without legal merit.   If they press on their claim that a couple of hours of wind turbine shadows one day a year constitute a substantial environmental effect, I’m pretty sure the Court will not be amused at the waste of its valuable time.

The Faith Fellowship v. San Leandro Case Continues and it’s not all bad for the City

 The Faith Fellowship v. San Leandro Case Continues and it’s not all bad for the City  Faith Fellowship v. SL case, Legal  No Responses »
Aug 212012
 

District judge Phyllis J. Hamilton is presiding over the case.

Court rules City is not responsible for lost contributions.

San Leandro won a partial victory on August 20th in its ongoing legal battle against the Faith Fellowship Four Square Church.  A federal judge ruled that the City is not liable for the contributions the Church alleged it has lost by not being able to grow its congregation.  Faith Fellowship had been rapidly growing through 2006, when they reached the limit of how many people their existing facilities could accommodate.  They bought a much larger property in the industrial area of town, but the City stopped them from using it as the zoning code did not allow non-commercial assembly use in that area.  Faith Fellowship alleges that this has cause them $19M to $23M in total damages, including $10.4M to $14.3M in contributions it would have received, had it been able to move to its new facilities and further grow its congregation.  The Court  found these specific damages were too speculative to be considered.

The Court also found, however, that the City may be liable for the “hard” damages incurred by the Church as it was forced to sell the property at a loss, as well as for the mortgage, insurance and taxes it paid while it owned the property.  According to the Church, these add up to about $8.4M.

The case is scheduled to go to trial in October, when a jury will decide whether the City imposed a “substantial burden” on the Church by not allowing them use of their newly acquired property.  If so, the jury will also determine the amount of damages that should be paid to the Church.  The Court will then decide whether the City must also pay the Church’s legal fees.  The City has spent close to $1M on its own legal fees, and may be liable to the Church for a similar amount for theirs.

If the jury finds for the City, the Church may still appeal to the 9th Circuit alleging that the City violated the equal treatment clause of the Religious Land Use and Institutionalized Persons Act (RLUIPA) by allowing commercial entertainment in properties zoned industrial, but not religious assemblies.  Recent jurisprudence makes it very likely that the Church would win on these grounds.  The case may then be sent back to trial for a determination of the monetary damages.  This whole procedure is likely to cost the City hundreds of thousands of dollars in additional legal fees.  We better hope we lose at trial this October and the jury doesn’t feel too generous with the Church.

Many interesting things have been happening on this case in the last few months, and I will write about them in a different post.

 

 

 

San Leandro City Council Systematically Violates Open Meeting Laws

 San Leandro City Council Systematically Violates Open Meeting Laws  City Hall, Legal, Transparency  3 Responses »
Feb 062012
 

It’s worse than I thought, but is it intentional or just careless?

Just ask public officials, perhaps over a few beers, how they feel about the pesky public looking over their shoulder as they try to “get things done.”   They hate it.  Public oversight means they have to worry about following the law, hiding any corrupt deals and being held accountable for their actions.

As the corruption facilitated by secrecy has dire consequences for society at large (just think of the City of Bell), the California legislature long ago passed the Brown Act to guarantee the public notice and access to government meetings, and the California Public Records Act to grant access to government documents.  Local governments have been trying to skirt them ever since.

I have noted before actual and threatened violations of these laws by the San Leandro City Council.  Recently, I’ve become aware of a number of recurring and and very serious violations that allow the City Council to deliberate secretly.  I’ve given the City the benefit of the doubt – perhaps nobody at City Hall is actually aware of the law or perhaps they’ve just been careless – and I’ve written to City officials* requesting that they cease these violations.  How (and whether) they respond, and more importantly whether they actually comply with my request to obey the law, will be very indicative of the trustworthiness and ethics of our City Officials and our City Attorney.

The following are the Brown Act violations that I’ve discovered in the last few days

The City Council Appears to Have Deliberated Secretly on the Sale of the former Albertson’s Property

The City Council agenda for Feb. 6th, 2012 lists “Conference with Real Property Negotiators”  as one of its closed session items.  It says that they are currently negotiating the “price and terms of payment” with Innisfree Ventures II, David Irmer’s development firm.  This implies that the City Council has already agreed to sell the former Albertson’s property to Irmer, or at least has discussed it; you don’t negotiate a price for a property you are not ready to sell.   The Brown Act requires that any discussion on the sale of the property as well as any instruction to the City Manager (or anyone else) to initiate negotiations for the sale of the property, must be done in open session, after being properly agendized.  A search of the agendas, minutes and other public records in the online Public Records Database maintained by the city, did not produce any records of such discussions or decisions.  It would appear that these discussions were made informally or in closed session, in violation of the law.

The City Council Mislabels Public City Council Meetings as “Closed Sessions”

The City Council publishes agendas both for its open and closed sessions.  Closed sessions usually start at 6PM and open sessions at 7PM.  Agendas for closed sessions are labeled “Closed Session” while those for open sessions are labeled  “Regular Meeting”  or “Joint Meeting with Redevelopment Agency.”   I was just informed by the City Clerk, however, that a portion of the meeting labeled closed session is actually an open session, in which the City Council can transact all sorts of business, including making required announcements.  But as the meeting is not labeled “open session,” or “regular meeting”  or anything other than “closed session,” the public has no reason to know that this is a meeting they are free to attend.  The results are that practically nobody is likely to go to these meetings, and thus nobody witnesses what was said or not said there.

The City Council Fails to Include All Required Items in the “Open/Closed Session”  Agendas

The Brown Act provides that “[n]o action or discussion shall be undertaken on any item not appearing on the posted agenda.”  However, it would appear that actions and discussions not appearing in the agenda are actually carried out in what the City considers to be the “open” part of closed sessions (hereby described as “open/closed sessions”).  This came to my attention on Friday, when I e-mailed the City Council et al. to alert them to the fact that while the Brown Act allows the City Council to meet in closed session with property negotiators, as it was itemized in the agenda for the Feb. 6th meeting, the negotiators’  identities must first be announced in open session.  The City Clerk responded by saying that there would be an open session prior to the closed session in question, thus suggesting that the announcement would be made at that point.  However, the agenda for that open/closed session only included two items: Roll Call and Public Comments.  This is, indeed, the case with all the closed session agendas that I’ve seen.  So it would appear that the City Council conducts business during these open/closed sessions that is not disclosed in the agenda

The City Council Fails to Keep Minutes of the “Open/Closed Session” Meetings.

California law requires the City Clerk to “keep a correct record of [City Council] proceedings”, and indeed, minutes and/or recordings** are produced and posted online for regular open session meetings.  This does not appear to be the case, however, with respect to open/closed meetings.  For example, there are no minutes for the Dec. 13th, 2010 open/closed session, even though a number of people (including myself) attended and made public comments at that meeting.

So basically we have a situation in which the City Council seems to 1) be holding public meetings without alerting the public about it, 2) not including all items to be discussed in the agenda and 3) not keeping minutes of those meetings – all in violation of state law.

There is yet another serious way in which the City violates the Brown Act:

The City Council Fails to Disclose the Subject of Anticipated Litigation

The Brown Act allows the City Council to meet in closed session to discuss exposures to litigation against the City.  However, the law also provides that the closed session agenda must describe the “facts and circumstances” which have exposed the City to litigation, except when such facts are not known to the potential plaintiff.  A quick look through a sample of City Council agendas from 1998 on suggests that those facts and circumstances are never disclosed, even in cases where it’s very clear that the potential plaintiff is quite aware of what those facts are (e.g. the murder of Gwendolyn Killings and the disagreement with Dan Dillman about the use of the Bal Theatre).

The disclosure of this information is very important for the public as it allows San Leandrans to keep a closer tab on how the City is fulfilling its legal obligations towards the community.  A plethora of circumstances that make litigation against the Police Department likely, suggests that there are serious troubles with that institution.  The City Attorney’s judgement that the City may be sued for employment discrimination or Brown Act violations, will shine some light into what’s going on at City Hall.  Litigation is also very expensive, so it behooves the public to keep a close eye on what the City is doing to bring about lawsuits against it.

I find this pattern of violations of Open Meeting laws to be very disturbing.    I can only hope that they will be addressed immediately by our City Officials.  I will keep you posted of any response I receive.

 

– * I sent my initial e-mail to Mayor Stephen Cassidy, City Council Members Michael Gregory, Ursula Reed, Diana Souza, Joyce Starosciak, Pauline Cutter and Jim Prola, City Attorney Jayne Williams, Community Relations Representative Kathy Ornelas and City Clerk Marian Handa.  Handa responded to that message, also copying City Manager Chris Zapata and Assistant City Manager Lianne Marshall.

– ** Minutes and/or audio from meetings from January 2011 on can be found at http://www.sanleandro.org/depts/cityhall/council/audio/audiostream.asp

The Faith Fellowship lawsuit: it’s time for the city of San Leandro to settle

 The Faith Fellowship lawsuit: it’s time for the city of San Leandro to settle  City Hall, Faith Fellowship v. SL case, Legal  No Responses »
Apr 222011
 

(Note, to understand the particulars of this case please read A primer on the Faith Fellowship v. San Leandro lawsuit first).

The 9th circuit court of appeals has just denied the City of San Leandro’s petition for an en banc hearing of the apellate decision against the City on the Faith Fellowship case.  None of the 29 9th circuit judges requested to hear the case.  That is of little surprise, the petition not only had no merit but was terribly and insultingly written.  It was so bad that I’ve argued that it should be grounds to fire Meyers Nave, the law firm that represents the city and wrote the petition.  The City Council will be meeting next Monday in closed session to discuss what to do next.  They have three choices:  appeal to the Supreme Court, go to trial or settle.

I daresay that City Attorney Jayne Williams will recommend the first option.  A Supreme Court appeal will mean that Meyers Nave gets to charge the City even more money on attorney’s fees. It also allows Williams to continue telling the City Council that the her firm’s advise to deny Faith Fellowship’s rezoning petition was correct: the 9th circuit just got it wrong.  Most members of the San Leandro City Council are not very astute legally and may not realize that not only are the chances of the Supreme Court taking the case minute, but in all likelihood the current conservative, religious-loving Supreme Court would not side with the city against the church.  It is thus possible that the City Council may go along with Williams.  An appeal would slow down the case,  putting off paying the church’s damages for some years, but it will increase the legal costs for the city.

Going to trial presents significant legal risks to the city.  The facts are with the Church: former City Manager John Jermanis himself said that there we no other properties suitable to Faith Fellowship’s needs in San Leandro.  The City led the church on for a year, suggesting it would let it use the property if the church jumped through enough hoops, only to deny them the use of the property after they had bought it and for what looks like arbitrary reasons.  I think a jury, looking at the facts, is likely to agree with that conclusion.  But even if it doesn’t,  the church still gets to re-appeal the case to the 9th circuit on “equal protection” grounds, and the 9th circuit panel that heard the case originally hinted that it would side with the church.  Personally, I think the substantial issues on this case are already lost: the city violated RLUIPA and the church is entitled to “appropriate relief”.  The question the city should be addressing is what that means.

RLUIPA provides that “a person may assert a violation of this Act as a claim or defense in a judicial proceeding and obtain appropriate relief against a government”.  It also provides for attorney fees’ for the prevailing plaintiff.  While it is universally accepted that this “appropriate relief” includes injunctive relief and that the court could order the City to allow the church to operate on the Catalina St. property, Faith Fellowship no longer owns said property.  It was forced to sell it last year, for $2.5 million under what it paid for, when it could no longer afford to pay its mortgage and run its existing facilities at the same time.  Faith Fellowship has indicated that at this point what it seeks are monetary damages, the $1.2 million that it made in mortgage payments while it owned the property and perhaps even the $2.5 million it lost when it sold it.

But it is not clear that RLUIPA allows for money damages.  While some courts have found that it does, following the Supreme Court’s reasoning in Franklin v. Gwinett, the US Supreme Court just ruled in Sossamon v. Texas (in a case involving prisoners’ religious rights) that  the phrase “‘[a]ppropriate relief’ is open-ended and ambiguous about what types of relief it includes” and that, at least in the case of lawsuits against states (which, unlike municipalities, enjoy sovereign immunity) it should not be interpreted to include monetary damages.  Now, because the Sossamon court ruled on very specific circumstances, it’s not clear how lower courts will interpret the decision.  They may very well conclude that it would be inconsistent to read RLUIPA’s grant of “appropriate relief” to include monetary damages when the state actor is a municipality or county, but to not include them when the actor is a state.  Or they may decide that the fact that Supreme Court specifically differentiated Sossamon from Franklin means that Franklin applies to non-sovereign RLUIPA defendants.  Personally, I think the latter is the more compelling interpretation of the Sossamon decision, but I think that the City (if it hired a good law firm to represent it) could make a viable argument that “appropriate relief” does not include monetary damages.  At the very least, the City should be able to convince the court to limit those damages.

But litigation is expensive.  The City admits that it has spent $450,000 pursuing this case so far, though the real amount may indeed be higher.  It will likely be on the hook for Faith Fellowship’s attorney fees as well – which may very well be higher than the city’s.  A trial, even if purely on the money issues, and the appeals that would follow it, would prove terribly expensive.  Personally, I think the city needs to do whatever it can to settle the case – as long as Faith Fellowship is reasonable on its demands.  Now, the City Attorney should go to the City Council and put the figures on the table: this is how much we’ve spent so far, this is how much we’re on the hook for the Church’s attorney’s fees, this is how much more we’re likely to have to spend if we go to trial and lose.  Then, based on those costs and on Faith Fellowship’s damages, the city should make a reasonable settlement offer.  Without knowing those figures, I’d say something like $1.5 million plus attorney’s fees seems reasonable.   City help in identifying and rezoning a suitable property should be part of the deal as well.  It would behoove Faith Fellowship to accept such a settlement as well: they could get the money now rather than in a few years.  That would mean they could go on and buy a new property now – when prices are still low – and be able to move soon rather than years from now, when all the litigation would be finally over.  I can only hope that both sides will see reason.

Update 10/11:  The City appealed this case to the US Supreme Court last summer, their appeal was denied.

San Leandro sues to keep redevelopment money

 San Leandro sues to keep redevelopment money  City Hall, Legal  No Responses »
Apr 162011
 

The city of San Leandro is joining 5 other cities, all represented by the Meyers Nave lawfirm, in a lawsuit that asks the court to validate their redevelopment activities.   The city has not yet disclosed the particulars of the case, but this article discusses the type of lawsuits cities like San Leandro are filing.  It’s unclear whether this lawsuit has legal merit or is necessary, but it’s sure to generate lots of attorney fees for Meyers Nave.

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