Meyers Nave

Halus, City Set to Lose Wind Turbine Case

 Halus, City Set to Lose Wind Turbine Case  Legal  No Responses »
Jan 212014
 

turbineThe Heron Bay Homeowners Association is set to win the lawsuit they filed against the City of San Leandro, concerning the City’s decision to give a height variance to Halus Power Systems to build a wind turbine tower on their property, for research and testing purposes.  The HOA objected to the turbine for aesthetic reasons, but grounded their legal pleadings on assorted – though very weak – environmental concerns.  Still, the judge overseeing the case issued a tentative ruling (TR) granting the HOA’s petition that Halus obtain an environmental impact report  (EIR) on the project.  The EIR would cost Halus hundreds of thousands of dollars and may very well prompt the small wind turbine company to move out of San Leandro.

The City is challenging the tentative ruling and a hearing has been scheduled for February 11.  Judge Evelio Grillo, somewhat unusually, did not post the actual contents of the TR online and, instead, only e-mailed it to the lawyers.  It’s thus impossible to actually comment on his reading of the case.  However, it’s rare for a judge to change his position once a TR is filed.  Best known as the judge in the Jahi McMath case, Grillo has a reputation for being smart and “by the book.”  Still, the City’s attorney – in particular, Meyer Nave‘s Edward Grutzmacher, who seemed to be the principal litigator in this case – didn’t precisely  ingratiate himself to Grillo by getting involved in petty legal shenanigans early in the procedures.   Now, Halus and San Leandro taxpayers may be paying for their lack of professionalism.

When plaintiffs sue a city under the California Environmental Quality Act (CEQA), they need a copy of the administrative record detailing all the  proceedings on the matter before the different City bodies. This has to be assembled and certified by the City and the plaintiff must pay for it. The City estimated that it would cost between $4800 and $6200, which the plaintiff’s lawyer accepted. The City started compiling the record, but did so at a slow pace.  There are  e-mails after e-mails from the plaintiff’s lawyer asking for updates on the status and cost estimates of the compilation.  Replies by Grutzmacher were less than responsive.   Finally, Grutzmacher said the record was ready but the HOA’s attorney could only have it  after delivering a $24K+ check.  He contended that it had taken 187 paralegal hours to compile the record, each charged at $125/hour.   He would not, however, give an actual accounting of how they came up to that amount and instead held the record hostage – though at one point, he gave the HOA’s attorney a one-time, take-it-or-leave-it opportunity to get the record for about $20K.    Finally, the HOA’s attorney had to ask the Court to force the City to give them the record.  The Court ruled that they could have it upon payment of $6200.

While I am the Heron Bay’s HOA number one critic – I thinks this lawsuit is an abuse of process, based purely on prejudice and animus by the HOA’s leadership -, the behavior of the lawyer representing the City was just as contemptible.  The impression I got after reading the e-mail exchange between Mr. Grutzmacher and the HOA’s lawyer, was very much that Mr. Grutzmacher was playing a game: first denying the HOA’s lawyer the information he needed, then holding the record hostage by demanding an absurd amount of money, and then, when the HOA’s lawyer asked for an explanation of the charges, by falsely claiming that the HOA lawyer wanted to get the whole thing for free.  Mr. Grutzmacher’s behavior on e-mails and pleas was not only childish, but offensive. We can speculate how the judge reacted to Grutzmacher’s attempt at gamesmanship.

We will not know Judge Grillo’s reasons for ruling for the HOA until the hearing – unless one of the parties decides to release the brief or some enterprising journalist goes to the trouble of obtaining it -, but we do know that it’s likely that these legal shenanigans will cost the taxpayers plenty.  If the HOA wins, the City will not only be stuck with having to pay its own attorney costs, but also the $25K Grutzmacher alleges it cost to assemble the administrative record.  It will also have to pay for the court costs and the HOA’s attorney’s fees, which are much greater than they would be if he didn’t have to spend countless hours fighting Grutzmacher over the administrative record. Once again, Meyers Nave profits from getting the City into a legal mess and the taxpayers are left to pay for it.

This was a case that the City should have won easily.   But Meyers Nave has shown that it either lacks the competence or the will to actually offer sound legal representation for the City.   Indeed, the tens of thousands of dollars their botched representation will cost this City in this case pales in comparison to the almost $3 million the City lost on the Faith Fellowship case, the $4 million+ it lost on the former Albertsons’ property case and the almost $8 million it lost on the King Family Trust lawsuit.   While these were all lawsuits that the City should not have had to face to begin with – and wouldn’t, if they had gotten competent advise from the let go -, Meyers Nave poor representation definitely did not help along the way.

I said it almost three years ago: “It’s time to fire Meyers Nave” and it’s even more true today.   San Leandro’s taxpayer money should go to pay for fixing our streets, housing our homeless and providing after-school activities for our children.  It should not go to pay for expensive lawyers who give the City bad legal advice, and then benefit when the City gets sued.

 

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: No to Theater but Yes to Strip Bars?

 San Leandro City Council: No to Theater but Yes to Strip Bars?  City Hall, Faith Fellowship v. SL case, Legal  No Responses »
Mar 122012
 

The Fox Cinema in Vancouver shows adult movies all day long.

Proposed Amendments to the Zoning Code would ban recreation and entertainment from the industrial area – but would allow “adult businesses” to continue.

Ban likely to be unconstitutional and won’t help with the Faith Fellowship lawsuit.

If Meyers Nave, the law firm that represents the City of San Leandro, gets its way, strip bars and peep shows could flourish in the industrial area of San Leandro.  But theaters, cinemas and recreational venues would not be welcomed.  Shakespeare would be OK, but only if all the actors were nude and got frisky with one another.

At its next meeting, the City Council will again consider banning entertainment and recreational uses from the industrial area of town.  This short-sighted plan was concocted by Meyers Nave  in response to the Faith Fellowship litigation.  Currently, the Zoning code allows entertainment and recreational uses of properties zoned industrial, but not assembly or religious uses.  The 9th Circuit recently ruled that such unequal treatment violates RLUIPA.

The City has potentially two ways in which to amend the code to comply with federal law.  It can either allow religious/assembly uses in the industrial area or it can ban entertainment and recreational uses.  The former approach can contribute to the development of the industrial area, it can bring new people to San Leandro – who will then be likely to shop and dine in this city -, and it can create competition for the purchase of properties, bringing up property values.

The City Council, however, has chosen to focus on the second option: banning entertainment and recreational uses in the industrial area.  I have written before as to why this is a bad idea: the high-tech companies we want to attract realize the importance of combining entertainment and recreation with work – it makes for happier, more productive employees.  Indeed, this is a point that David Johnson, CEO of the San Leandro Chamber of Commerce, has repeatedly made to the City.  Johnson spent a decade working on economic development in Oakland and knows first hand how companies seek to move to cities that don’t make them jump through hoops.  When presented with these facts, the Planning Commission voted twice to reject the entertainment and recreation bans.

The City’s attorneys, however, are adamant about further restricting uses in the industrial area, and they hold a lot of sway with the City Council.  At the last Council meeting, Deborah Fox admitted that the only reason to amend the code was to facilitate the city’s legal strategy on the Faith Fellowship case.  She stated that the district judge will consider the Zoning code as it stands when trial begins, and thus there is a hurry to make these changes soon.

I am unable, however, to figure out what advantage Fox thinks the City will gain by making these changes.  Leaving the issue of adult entertainment aside, the proposed changes in the Zoning code would likely prevent the Church from obtaining a declaratory judgment to the effect that the City’s Zoning code violates RLUIPA.  The district court, however, would still have to decide whether the City violated the equal terms clause of RLUIPA back when it stopped FF from moving into the property they’d bought, and if so, award monetary damages to the Church.  The only “advantage” I can see for the City is in being able to stop Faith Fellowship from acquiring another property in the industrial section and putting a church there.  This may seem very petty, but the City Attorney may have been able to sell this approach to the Council as some sort of “victory”.

In any case, their strategy is very unlikely to work. The Zoning code amendments will bar entertainment and recreational uses from the industrial area, but will continue to allow adult businesses, including adult entertainment businesses, to operate.  The City doesn’t have much of a choice about this, it must allow such businesses to locate somewhere in town and the industrial area seemed the most unobjectionable one when the code was last amended.  But this means that in order to ban adult entertainment in the industrial area, the City must first allow it elsewhere within City limits.  That would open a whole new can of worms that the City, of course, wants to avoid.

But if the Zoning code isn’t changed to disallow adult entertainment in the industrial area, the City is in exactly the same position that it is today: treating churches differently than entertainment venues, and that’s what the 9th circuit has said they cannot do.

As if this wasn’t enough, it seems quite likely that the City doesn’t have the right to ban entertainment from the industrial area in the first place.  Entertainment is considered a form speech and therefore protected by the first amendment.  In Schad v. Mount Ephraim, the US Supreme Court ruled that any ban on entertainment must be “narrowly drawn and must further a sufficiently substantial government interest”.    Schad concerned a city ordinance which prohibited live entertainment in the commercial district, while allowing businesses such as motels, lumber stores, restaurants and office buildings.  In that case, the Court could not find any “substantial government interest” accomplished by the ban.  But a Court looking at an entertainment ban in San Leandro would not even have to look that far – Deborah Fox is on record saying that the only reason for the ban was to gain an advantage in their litigation against Faith Fellowship.  No Court in the land will consider that to be a legitimate, much less a “substantial,”  reason for restricting speech.

We are left with the question, then, of what the City’s attorneys reasons for pushing these changes are.  As I’m not a mind reader, I can only speculate:

– Incompetence.  Meyers Nave handled this case badly from the start, neglecting to tell the Council about the risks and potential costs of stopping FF from building their church.   Deborah Fox, in particular, did a horrendous job of arguing the case before the 9th circuit; she seemed surprised by the questions posed by the judges and had no answers.  Her whole handling of the situation since does not inspire confidence in her legal acumen.  So it may simply be that Meyers Nave didn’t look carefully enough at the Zoning code or the law to actually understand the issues at play.

– Presumed incompetence.   Meyers Nave tried very hard to have the amendments to the Zoning code be made as quietly as possible.  City staff made up reasons for why these changes were needed, they hid the actual nature of the changes, and the City Council was only informed about them in closed session – very likely in violation of the Brown Act.   They probably believed that they could sneak them by without Faith Fellowship’s attorneys noticing.  I wouldn’t be surprised if Meyers Nave is also hoping that FF’s lawyers won’t re-read the Zoning code and notice that the “adult-oriented businesses” clause will remain in place.

– Profit.  The City pays Meyers Nave a very generous amount for general City Attorney services, but they must pay them by the hour for any litigation services.  This means that the more bad advice Meyers Nave gives the city, the more likely the city is to get sued, and the more money Meyers Nave will make in attorney’s fees.  Smart cities avoid this clear conflict of interest by having the City Attorney be an employee, and thus not personally benefit from any litigation.

So what now? We can hope that the City Council will see reason, and will realize that what’s best for Meyers Nave is not what’s best for the City.  We can ask that they do what they were elected to do and include the citizens in any and all decisions that will have such a great impact in the community.  And we can urge them to let get independent legal advise on this matter – from a firm not hired or recommended by Meyers Nave.

Unfortunately, I’m not too hopeful.

City Reveals Real Reasons behind Entertainment Ban in San Leandro

 City Reveals Real Reasons behind Entertainment Ban in San Leandro  Short Notes  1 Response »
Feb 232012
 

The Daily Review wrote a good summary of the Tuesday night City Council meeting on the plans to ban recreation and entertainment in the industrial area of San Leandro.  At the meeting, Meyers Nave attorney Deborah Fox was forced to admit that the real reason behind the proposed ban was one of legal strategy in the Faith Fellowship case.  Fox is the attorney that represented that unsuccessfully represented the City before the 9th Circuit in this case.  The City had prohibited the Faith Fellowship church from opening a Church in the industrial area of town in violation of federal law.

I will write  more myself about the revelations at the meeting , but what became very, very clear is that the staff (presumably by order of the city’s attorneys) lied to the Planning Commission and the community about the real reasons for the change. I find that completely outrageous.  It also appears that the City Council was fully aware that the zoning change was part of the legal strategy in the Faith Fellowship case, presumably they were briefed during the numerous closed sessions they’ve held on this case.   However, per the Brown Act all discussions about public policy have to take place in open session. It would appear that once again they flouted the law.

 

 

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

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