HomeMy WebLinkAboutAgenda item 9MILE S LAw GROUP
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April 9, 2013
VIA ELECTRONIC MAIL /rmageeWake-elsinore.org/ and U.S. MAIL
Honorable Mayor Robert `Bob' Magee and
Members of the Lake Elsinore City Council.
City of Lake Elsinore
130 South Main Street
Lake Elsinore, CA 92530
Re: March 26, 2013 City Council Agenda Item 9 and Action re Amendded and
Restated Development Agreement (Brighton)
Honorable Mayor:
For approximately six years now, Castle & Cooke Alberhill Ranch (by and through its counsel,
Miles Law Group, P.C. and consulting team, The Planning Associates and KWC Engineering)
has been working extensively and diligently with the City of Lake Elsinore (the "City") on
numerous legal issues surrounding the Brighton Development Agreement, the First Amended
Brighton Development Agreement, a draft Second Amendment to the Brighton Development
Agreement, and ultimately the reformulation of the amendments by the City Attorneys' Office
into a draft proposed Amended and Restated Brighton Development Agreement (the
"Amended and Restated DA "). We are submitting this letter to you to address the City Council
action that occurred on March 26, 2013, regarding the Amended and Restated DA.
The purpose of this letter is to memorialize that the action taken by the City Council was
limited to the denial of the Amended and Restated DA and to bring to your attention the
unusual procedural posture by which the City Council ultimately reviewed the Amended and
Restated DA action item without relationship to the City Planning Commission's review,
deliberation, and recommended approval of the Amended and Restated DA. This isolated City
Council review was the result of secretive meetings with WRCOG Staff and officials raising
serious implications about appropriate open meetings and public disclosure under the Ralph M.
Brown Act and Government Code Section 1090 (Conflict of Interest).
Honorable Mayor and Members of the City Council
April 9, 2013
Page 3 of 6
resolved and
recommends denial of
the
Amended and Restated
Development
Agreement." (Agenda, p.
4 of
5.)
Based on the express language of the Agenda and Report to the City Council, the City
Council's Action was clearly limited to the denial of the Restated and Amended DA and the
City Council took no gffrcial action regarding the existing First Amended Brighton
Development Agreement,
The Agenda Item (9) also provided an alternative action approving the Amended and Restated
DA Ordinance "if based upon the information presented at the public hearing and discussed in
closed session, the City Council believes that all relevant issues have been satisfactorily
addressed." (Agenda, p. 4 of 5.) Concerning this alternative action, no "relevant issues" were
ever presented to the applicant or deliberated upon by the City Council in open session. The
City Council was notably uninvolved with the Agenda Item and, unlike the Planning
Commission proceeding, the City Attorney presented the Report to City Council. In fact,
"relevant issues" of the City remain undisclosed where the Report to City Council confirms
that the only "issues" in play were those issues stemming from the secretive meetings held by
the City and WRCOG:
"On October 23, 2012, after consideration of the VTTM No. 35001 and
the Amended and Restated Development Agreement by the Planning
Commission, the Mayor, Interim City Manager and City Attorney met
with the WRCOG Executive Director and General Counsel regarding
the Amended and Restated Development Agreement.
WRCOG representatives were fundamentally opposed to the Amended
and Restated Development Agreement and rejected the proposed tolling
of the original Agreement and project exemption from payment of
TUMF fees. WRCOG's opinions were summarized in a letter to the
Mayor following consultation with the WRCOG Board (Attachment
4)." (March 26, 2013, Report to City Council ( "Agenda Report "), p. 3
of 64.)
The Agenda Report erroneously claims that the letter to the Mayor (dated December 11, 2012)
establishes WRCOG's opinions following "consultation with the WRCOG Board." The
December 11, 2012, WRCOG Letter (the " WRCOG Letter ") states that:
"The WRCOG Executive Committee met on Monday, December 3,
2012, as a committee of the whole, to discuss the matter. Those present
at the meeting unanimously voted to urge the City of Lake Elsinore to
reconsider the adoption of the Extended Development Agreement in its
Honorable Mayor and Members of the City Council
April 9, 2013
Page 5 of 6
disclosure of the employment relationship that the public officials of the City have with the
County of Riverside /WRCOG that may call into question their impartiality.
The absence of deliberation on March 26, 2013, following a more than four year effort
between Castle & Cooke and the City, and months of secretive meetings with the County of
Riverside /WRCOG is quite telling. This undue influence of the County of Riverside/WRCOG
is reflected in the Agenda Report's description of an erroneous "balancing" standard that is an
abuse of discretion:
"The Legal issues posed by the... WRCOG present a threat of litigation
to the City which has been the subject of City Council closed session
discussion. At this time, staff believes the potential consequences of
approving the Amended and Restated Development Agreement exceeds
the projected benefits and recommends that the City Council exercise
(sic) is lawful legislative discretion to deny the applicant's request."
(Agenda Report, p. 3 of 64.)
Annual review of development agreements and the application of tolling (as a matter of law)
and permitted delay to an existing development agreement, are ministerial obligations and
quasi- adjudicative proceedings —not a legislative act of the City. The review of an amended
and restated development agreement involves the assessment of existing contractual
obligations and does not entail the otherwise unfettered legislative authority to enter into a
development agreement in the first instance. While the undisclosed "potential consequences"
threatened by the County of Riverside /WRCOG raise perceptions of impropriety, a comparison
of those consequences to the "projected benefits" of the Amended and Restated DA is not the
standard by which a municipality reviews and clarifies its existing contractual obligations
under the Development Agreement Law.
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