San Ramon

[James Edrington]

On tonight’s (1-13-09) City Council agenda are two items on the Consent Calendar regarding approving and ratifying “nunc pro tunc” (whatever that means) amendments of the development agreements for City Center. Any time I see things in Latin on a public agenda, my antennae start to quiver. There's more monkey business afoot.

I hope the City Council doesn't take action on these matters without going through the full public hearing process. If anyone's going tonight (I can't), they should ask that the items be pulled from the consent calendar.

[Martine Colvin]

There is a letter that's been sent in to the city council about the secret amendments to the City Center agreements asking to have them deleted because they were signed illegally. It's a request by the Citizens for City Center Disclosure to have more public information about City Center instead of deals behind closed doors which is the way its always been handled. I'll try to put a copy of it on this site if I can figure out how to do that.

[Martine Colvin]

Here is the letter sent to the Council

MILLER STARR REGALIA
1331 N. California Blvd.
Fifth Floor
Walnut Creek, CA 94596
www.msrlegal.com


Arthur F. Coon afc@msrlegal.com
925941 3233

January 22, 2009

Via Hand Delivery

Mayor Wilson and Honorable Members of the San Ramon City Council
City of San Ramon
2228 Camino Ramon
San Ramon, CA 94583

Re: Request for Reconsideration, To Cure Brown Action Violations, and to Set Aside City Council Resolution Nos. 2009-006 and 2009-007 Purporting To Approve "Nunc Pro Tunc" Amendments of Chevron and Sunset Development Agreements for City Center Project (Items 8.7 and 8.8 on City Council's January 13, 2009 Agenda)

Dear Mayor Wilson and Honorable Members of the City Council:

This office has been engaged to represent the interests of Jim Brennan and Citizens for City Center Disclosure (collectively, the "Citizens") with respect to the above-referenced matter and this letter is submitted on Citizens' behalf. Attached hereto and incorporated as Exhibit A is a true and correct copy of Citizens' January 13, 2009 letter to the Council objecting to the above-referenced actions.

The purpose of this letter is essentially twofold: (1) to request that the San Ramon City Council (the "Council") reconsider, cure Brown Act violations with respect to, and set aside its January 13, 2009 actions and decisions to approve, without proper notice or public hearing, and retroactively "nunc pro tunc," the City Manager's unlawful December 9, 2008 "administrative" approvals of amendments to (a) the Chevron Park Annexation and Development Agreement By and Between Sunset Building Company, LLC and the City of San Ramon Assigned To and Assumed By Sunset Building Company, LLC Relative to the City Center Project (the "Chevron DA"), and (b) the Annexation and Development Agreement By and Between the City of San Ramon and Sunset Development Company, Granada Sales, Inc., SDC 7, Annabel Investment Company, Sunset Land Company, LLC, Sunset Building Company, LLC and Alexander Properties Company Relative to the Development Known as Bishop Ranch (the "Sunset DA") (these purported December 9,2008 amendments are collectively referred to herein as the "Administrative DA Amendments"), and to disapprove, rescind and set aside the Administrative DA Amendments pending City's compliance with all applicable laws; and (2) to unequivocally pursue and exhaust any and all administrative remedies for the City's unlawful actions in approving the Administrative DA Amendments, to the extent available and not futile, so as to give the City a chance to correct its legal violations, and to obviate resort to the courts to remedy the City's legal violations, if at all possible.

The City's actions in approving the Administrative Development Agreement Amendments executed by the City Manager without legal authority, without proper notice or public hearings, without adoption of an ordinance and required evidence-supported findings, and without environmental review under the California Environmental Quality Act ("CEQA"; Pub. Resources Code, § 21000 et seq.) -was in violation of the California Constitution, the Development Agreement Statute, the City's Development Agreement ordinances, the provisions of the Chevron and Sunset DAs themselves, the Brown Act, CEQA, and due process, inter alia. The Administrative DA Amendments were significant amendments affecting the term of vested rights, the permitted uses of land, the timing and restrictions on land dedications and transfers, and the use and disposition of public funds and properties, effectively tying this (and future) City Councils' hands and contracting away City's police powers. The Administrative DA Amendments were not lawfully approved under applicable State law or City's own charter or ordinances, as set forth in more detail below, and they are wholly void and ultra vires acts.

The Citizens' interest in and challenge to the City's unlawful approval of the Administrative DA Amendments is not merely an academic or technical interest in legal compliance. The City's unlawful and ultra vires actions have deprived its citizens and the general public of their rights to attend and participate in duly-noticed public hearings before the City Planning Commission and the City Council, and to receive full disclosure and the opportunity to be heard with respect to important legislative actions of the City affecting the timing and completion, financial and other details of the proposed City Center project and City Hall facilities, inter alia. Even if there is ultimately economic, financial, planning and environmental support and justification for the Administrative DA Amendments which has not yet been disclosed to the public, the law required these justifications to be adduced, disclosed and vetted in an open and transparent public hearing process observing all legally-required substantive and procedural safeguards and formalities. Only if the City reconsiders and sets aside the Administrative DA Amendments and void "nunc pro tunc" approvals of the same, and follows the applicable law prior to again acting to approve these or any similar DA Amendments, will the Citizens' and the public's legal rights to full disclosure of and participation in City's legislative actions be respected and vindicated.

1. The Constitution Prohibits Municipalities "Contracting Away" Their Police Power Absent Adherence To Substantive And Procedural Safeguards Of The Public Interest, As Embodied In The Development Agreement Statute's Requirements.


Supplementing the U.S. Constitution, 10th Amendment's "reserved powers doctrine," the California Constitution confers on cities and counties the power to "make and enforce within [their] limits all local, police, sanitary and other ordinances and regulations not in conflict with general laws." (Cal. Const. Art. XI, § 7.) This "police power" cannot be "contracted away" because to do so would be "invalid and unenforceable as contrary to public policy." (Avco Community Developers, Inc. v. South Coast Reg. Com. (1976) 17 Cal.3d 785, 800 [government's agreement that zoning laws thereafter enacted would not be applicable to property would be invalid]; see Trancas Prop. Owners Assn. v. City of Malibu (2006) 138 Cal.App.4th 172, 180 [holding settlement agreement "intrinsically invalid because it includes commitments to take or refrain from regulatory actions regarding the zoning of Trancas's development project, which may not lawfully be undertaken by contract."].)'

The Development Agreement Statute (Gov. Code, § 65864) provides a legislatively-authorized "safe harbor" to "contracting away" challenges to certain development agreements that are adopted by local legislative action pursuant to an ordinance enacted with specified substantive and procedural safeguards. The Trancas court noted that absent compliance with these safeguards, an agreement to restrict the City's police powers would violate the constitutionally-mandated prohibition on "contracting away" the police power.

More specifically, the Trancas Court observed that while "there exist procedures by which a landowner-developer and a city or county may lawfully agree to permit a described development project, including fixing the zoning governing it[,] ... [u]nder the governing statute ... numerous and procedural and substantive limitations attend the making and performance of such a 'development agreement.'" , In Trancas, developer Trancas filed suit challenging the City of Malibu's disapproval of its final subdivision maps. It then entered a settlement agreement with the City which the City Council approved in the last of a series of closed session meetings. (Trancas, supra, 138 Cal.App.4th at 178.) Pursuant to the settlement agreement, Trancas agreed to dismiss the suit, downsize its development, and dedicate three-fourths of its property to City. In exchange, City agreed to reinstate Trancas's final maps, guaranteed not to block the proposed development with future zoning, and exempted Trancas's project from compliance with zoning density restrictions of whatever age. (Id. at 179.) The Trancas court reasoned that "contractual exemption from an element of the city's zoning" was an impermissible contracting away of the police power, and that it functionally resembled a variance, which by law would require public hearings and specified findings for which the agreed exemption might not qualify. (Id. at 182.) (Id. at 182, citing Gov. Code, § 65864; Santa Margarita Area Residents Together v. San Luis Obispo County Bd. Of Sup'rs (2000) 84 Cal.AppAth 221,226-227.) 'Without following the development agreement statutory process, the Court held that the settlement agreement's commitment to refrain from zoning action was invalid on the basis that it contracted away the city's right to exercise its police power." (Curtin & Talbert, Curtin’s California Land Use and Planning Law (2007 ed.), p. 270, emph. added, citing Trancas, supra, 138 Cal.AppAth at 181-182.)

Accordingly, and as set forth in more detail below, the Administrative DA Amendments are invalid and violate the California Constitution and fundamental public policy because they impermissibly contract away the City's police power without compliance with the Development Agreement statute's prescribed processes.

2. The Administrative DA Amendments Violated The Development Agreement Statute And City's Own Code Provisions.


Setting aside for one moment the specious characterization of changes extending substantial vested development rights for a major project for an additional three-year period as "insignificant," the State law applicable to development agreements nowhere provides that "insignificant amendments" are exempt from the noticed public hearing, ordinance-subject-to-referendum, and general plan consistency finding requirements of the statute, and no case law supports such a proposition, either. Government Code section 65867 requires a noticed public hearing on a development agreement application. Government Code section 65868 extends this requirement to a mutual proposal "to amend or cancel
These constitutional and public policy requirements apply equally to charter cities, such as the City of San Ramon, notwithstanding Government Code section 65803. (See Gov. Code, § 65803 ["Except as otherwise provided, this chapter shall not apply to a charter city, except to the extent that the same may be adopted by charter or ordinance of the city."].) Moreover, Chapter IV -Development Agreements -of Division D6 of the City's Code makes clear that the City adopts the Development Agreement statute as applicable to and governing its actions. (E.g., § D6-39C. ["The purpose of this Chapter is to establish procedures and requirements for consideration of development agreements by the City consistent with State law."]; § D6-40A. ["Compliance with State law required. An applicant may propose that the City consider entering into a development agreement in compliance with Government Code Sections 65864, et seq....'1;§§ D6-43C, D6-458 [notice of intention to consider development agreement application must comply with state law.]; § D6-45J. ["All agreement provisions are subject to modification or suspension in compliance with State law (Government Code Sections 65864, et seq.).1-) Finally, both the Chevron DA and the Sunset DA expressly provide they are entered into pursuant to the Development Agreement Statute, and having invoked the statute to authorize the DAs, the City may not "pick and choose" which of the adopted law's provisions will be applicable. any portion of the agreement[.]" (Gov. Code, § 65868.) Government Code section 65867.5(a) provides "[a] development agreement is a legislative act that shall be approved by ordinance and is subject to referendum." Government Code section 65867.5(b) provides "[a] development agreement shall not be approved unless the legislative body finds that the provisions of the agreement are consistent with the general plan and any applicable specific plan." (Gov. Code, § 65867.5(a), (b).) Government Code section 65868 likewise extends these mandatory requirements to amendments of an existing development agreement. (Gov. Code, § 65868 ["An amendment to an agreement shall be subject to the provisions of Section 65867.5"].) The law applicable to development agreements thus makes no distinctions between "insignificant," "administrative," or "minor" amendments, on the one hand, and "significant" or "major" amendments on the other hand, and to the extent any provisions of the DAs at issue here purport to authorize any amendments of their own provisions in a manner inconsistent with the statutes, those provisions are simply invalid and unenforceable.

As observed by one well-known treatise in discussing the topic of development agreements that "purport to require that only 'major amendments' must comply with the procedural requirements of Gov. Code, § 65868":
No case law currently addresses the legality of such administrative amendments or whether they might be subject to referendum. Accordingly, the authors caution that, depending on how they are written and administered, "minor" or "administrative" amendments that are not approved by ordinance under Govt. Code § 65867.5 may violate Govt. e § 65868 and be subject to referendum, even if they are authorized by a city's adopted procedures. (2 Cal. Land Use Practice (CEB 2008), § 16.39, p. 713, emph. added.) So it is here, and City's failure to comply with the Development Agreement Statute's requirements with respect to the Administrative DA Amendments voids those amendments.

Even if such "insignificant" or "administrative" amendments allowed for the usual and customary development agreement procedures protecting the public's rights to be waived (which they do not), amendments significantly contracting away the police power by extending the term of vested rights an additional three years can hardly be said to be "administrative" or "insignificant" in nature by any measure.

Additionally, City's own Code provides that: "All agreement provisions are subject to modification or suspension in compliance with State law (Government Code Sections 65864, et seq.)." (Development Agreement Ordinance, § D6-45J.) While another provision states that "[a]ny significant amendment shall be subject to the provisions of State law (Government Code Section 65867.5)" (§ D6-48C.), the only purported departure from State law identified for so-called "insubstantial" amendments is that "[t]he parties may identify an alternative notice procedure in the agreement for processing insubstantial amendments." (§ D6488.2, emph. added.) Nowhere does the City's Code purport to exempt "insubstantial" amendments from the hearing, findings, and ordinance-subject-to referendum requirements of State law that apply to all types of Development Agreement amendments.

3. In Any Event. The Administrative DA Amendments Violated The Provisions of the DAs Themselves.


The 1987 Sunset DA provides in its Section 1 that it "is entered into ... pursuant to the authority of Sections 65864 through 65869.5 of the Government Code of the State of California." The 1987 Chevron DA likewise recites the authority of the Development Agreement Statute numerous times in its recitals. (E.g., Chevron DA §§ 1.1, 1.8, 1.9.)

As amended, the Chevron DA provides in its § 2.5 that the "Agreement may be amended ... in accordance with the provisions of Government Code Sections 65867 and 65868" with stated exceptions for "processing exemptions" which are defined as amendments that do "not directly and materially relate to and modify the term, permitted uses, maximum height or size of buildings, or provisions for the reservation or dedication of land (the 'material terms')[.]" As to such amendments, the DA provides they "shall not require notice or public hearing" and that determination of what is a material term is to be "evaluated in the context of its significance in the overall Agreement[.]"
The Sunset DA, pursuant to the Amendment No. 5 of its § 3.4, provides that "Administrative Agreement Amendments," defined as not substantially affecting the Agreement's term, the Project's permitted uses, provisions for reservation or dedication of land, conditions, terms, restrictions or requirements for subsequent discretionary actions, the Project's density or intensity of use or maximum building height or size or the owners' monetary contributions, "may be executed by the City Manager and recorded following City Council approval." (§ 3.4.2, emph. added.)
Setting aside the fact that a city may not legally contract to amend development agreements -whether such amendments are characterized as "minor," "administrative," insubstantial" or otherwise -without compliance with all of the substantive and procedural requirements of its Development Agreement Statute, even if a city could do so, the Administrative DA Amendments here would still be invalid under the express terms of the DAs themselves.

The Sixth Amendment to the Sunset DA, inter alia, extends both
(1) the deadline for transfer of ownership of parcels of land between the Sunset entities and the City needed to implement certain entitlements on City Center Project, and
(2) the term of Amendment NO.5 to the Sunset DA, which vests rights in the Sunset entities to develop in accordance with the entitlements granted for the Plaza District portion of the City Center Project, for an additional three years, from January 1, 2010 to January 1I 2013. Without the Sixth Amendment, Amendment No.5 would terminate and vested rights therein granted for the specified City Center Project approvals would no longer be vested, unless the Sunset entities and City effected the necessary transfers of parcel ownerships on or prior to January 1, 2010.3
Upon termination of Amendment No.5, the provisions contained therein pursuant to Government Code Section 66452.6(a) extending the term of all Plaza District approvals to the end of the DA's term (Sunset DA, Amend. No.5, § 1.4) would be eliminated. Per Amendment No.4, the term of the Sunset DA has an outside expiration date of December 31,2020 unless further modified. (Sunset DA, Amend. No.4, § 1.) Clearly, the "Administrative" Amendment of the Sunset DA substantially affects the term of vested rights (by substantially extending the term of such vested rights), restrictions on the City's exercise of police power discretionary actions (by substantially extending the period of restriction of such police power exercise and discretionary actions to the extent they might affect the vested rights), and the provisions for the dedication of land (City has now sold the seven-acre parcel to Sunset on undisclosed terms as of 2008, and thus can no longer effect the exchange of parcels envisioned in the Project EIR as part of this public/private partnership). All of these aspects of the Amendment remove it from the Sunset DA's definition of "Administrative Amendment." Moreover, the Amendment was executed by the City Manager on December 9, 2008 and recorded on December 10, 2008, prior to the City Council's consideration and approval of the matter on its January 13, 2009 consent calendar. This directly violates the Sunset DA's requirement that execution and recordation by the City Manager must follow City Council approval. There is no record whatsoever of the City Council taking any public action in any open meeting to approve the Sunset DA Amendment by majority vote prior to January 13, 2009, and any prior secret action would have clearly violated the Brown Act.

For similar reasons, the Fourth Amendment to the Chevron DA is invalid under the terms of the Chevron DA itself. It directly and material relates to and modifies the term of vested rights granted and the provisions for land dedication, and does not fall under that DA's stated (though illegal) exemption from notice and public hearing requirements for "processing exemptions."
These vested entitlements include a Vesting Tentative Map, Development Plans and a Development Plan Amendment, Conditional Use Permits for a hotel and a theater, and Minor Use Permits and Architectural Review Approvals.

4. The City's Actions Violated The Brown Act. And The Administrative DA Amendments Purportedly Approved In This Manner Also Violated Both The City's And City Manager's Authority.


Whether or not public hearings are required, the Brown Act (Gov. Code § 54950 et seq.) generally requires the City's business to be conducted in open, public meetings. At its January 13, 2009 meeting, the City Council took two relevant actions. First, it met in closed session (presumably to discuss Jim Brennan's and San Ramon Citizens City Center Disclosure's January 13, 2009 letter) pursuant to the following notice provided to the public:
CONVENE TO CLOSED SESSION PURSUANT TO GOVERNMENT CODE SECTION 54956(b)(3)(a) [sic] FOR CITY COUNCIL TO DISCUSS WITH THE CITY ATTORNEY FACTS AND CIRCUMSTANCES THAT MIGHT RESULT IN LITIGATION BUT WHICH THE CITY ATTORNEY BELIEVES ARE NOT YET KNOWN TO A POTENTIAL PLAINTIFF OR PLAINTIFFS.
(1/13/09 City Council Agenda, p. 1, Item 1.)

This notice is illegal under the Brown Act's "pending litigation" exception because it materially departs in form and substance from the section that the City attempted (but failed) to cite and rely on, namely, Government Code § 54956.9(b)(3)(A), which references:
Facts and circumstances that might result in litigation against the local agency but which the local agency believes are not yet known to a potential plaintiff or plaintiffs. which facts and circumstances need not be disclosed. (Gov. Code, § 54956.9(b)(3)(A) emph. added; see, also, id. at § 54956.9(c) [requiring legislative body to state on agenda or publicly announce the subdivision of section authorizing closed session].)

The City's notice violated the Brown Act in numerous respects: (1) it cited an incorrect authorizing section; (2) it failed to refer to potential litigation against the local agency; and (3) it stated the City Attorney's belief, rather than the local agency's belief as to the knowledge of the facts by potential plaintiffs. (See Gov. Code, § 5495 [Brown Act definition of "local agency" does not include City Attorney or any individual].) The section cited by the City does not even exist, the potential litigation claim referenced must be one against the City, and the local agency itself -not merely the City Attorney -must believe the facts are unknown to a potential plaintiff. The legal violations are clear and material in this context. The City here received Jim Brennan's and the Citizens' letter before it went into closed session. If the City Council knew of any potential plaintiffs, it was bound to publicly announce the facts and circumstances that might result in litigation. (Gov. Code, § 54956.9(b)(3)(B).)

The second relevant action taken by the City Council at the January 13, 2009 hearing was its collective adoption by a unanimous consent calendar vote of Items 8.7 and 8.8 (Res. Nos. 2009-006 and 2009-007, respectively), which were purportedly to approve and ratify "nunc pro tunc" the Administrative DA Amendments executed by the City Manager and recorded over a month earlier. "Nunc pro tunc" is a Latin phrase meaning "now for then" and is "[a] phrase applied to acts allowed to be done after the time when they should be done, with a retroactive effect, i.e., with the same effect as if regularly done." (Black's Law Dictionary (1979 ed.), p. 964.) While the City's implicit concession that it did not do what it was legally required to do when it was supposed to is clear, its proposed "fix" is not lawful. Here, the acts were not allowed to be done after the time when they should have been done and were not properly taken and approved "nunc pro tunc."
Nothing in the Development Agreement Statute, City's Development Agreement Ordinance, or the Sunset and Chevron DAs allows "nunc pro tunc" approval by the City Council of an amendment to a development agreement previously executed without authority by the City Manager. The Sunset DA expressly provides that, even as to "administrative amendments," such amendments may only be "executed by the City Manager and recorded following City Council approval." (Sunset DA, Amend. No.5, § 3.4.2, emph. added.) The Chevron DA expressly provides it may only be amended by the original parties or their successors in interest in accordance with the provisions of Government Code § 65868, which requires notice and public hearing as with original adoptions. (12/22/87 Chevron DA, § 2.4, p. 6.) The same requirement of approval by the original "parties, or their successors in interest" applies to "processing exemptions" (4/27/93 First Amend. to Chevron DA, pp. 20-21) and nothing in any of the amendments to the Chevron DA authorized the City Manager to approve an amendment.

In fact, and significantly, all prior amendments of both the Chevron DA and the Sunset DA (1) were approved by the City only after public hearings were held under the Development Agreement Statute and (2) were duly signed by the Mayor. The City Manager is not a party to or successor of a party to either Chevron DA or the Sunset DA, and is not authorized to execute any amendment to either, except as to the Sunset DA and then only as to "administrative amendments", and even then only "following council approval." (Sunset DA, Amend No.5, § 3.4.2.) Under the City's Charter and Municipal Code, the City Manager has authority to execute certain specified types of contracts, but had and has no authority at all to execute development agreements, development agreement amendments, or any type of contract involving the City's power and authority to exercise its police power or to regulate and control land use or effecting a legislative action. The Sunset DA confers no such authority and the Chevron DA purports only to authorize the City Manager to execute certain minor amendments thereof with prior City Council approval. It is beyond dispute that "[a] contract entered into by a local government without legal authority is 'wholly' void,' ultra vires, and unenforceable." (Poway Royal Mobilehome Owners Assn. v. City of Poway (2007) 147 Cal.App.4th 1460, 1473; G.L. Mezzetta, Inc. v. City of American Canyon (2000) 78 Cal.App.4th 1087, 1092; Midway Orchards v. County of Butte (1990) 220 Cal.App.3d 765, 783.) The rule applies to charter law cities as well as general law cities. (E.g., Dynamic Ind. Co. v. City oblong Beach (1958) 159 Cal.App.2d 294, 298-300.) Where municipal contracts are ultra vires and therefore void, they cannot be ratified. (In re County of Orange (C.D. Cal. 1998) 31 F.Supp.2d 768, 774 [applying California law].)

The bottom line is just as with City's other violations of the Constitution, Development Agreement Statute, the Brown Act and its own ordinances -the City must reconsider and set aside the invalid Administrative DA Amendments and do them over again the right way, with proper notice, public hearings and findings. Pursuant to Government Code section 54960.1, Citizens hereby demand the City Council to cure its actions taken in violation of Government sections 54953 (failure to timely act in a public meeting on the Administrative DA Amendments), 54954.2 (failure to post proper agendas reflecting its actions on the Administrative DA Amendments), and 54954.5 (improper closed session item description) by agendizing, reconsidering, and setting aside its actions approving the Administrative DA Amendments (1/13/09 Agenda items 8.7 and 8.8) nunc pro tunc, and returning the matters to City staff for proper processing in compliance with all applicable laws, as set forth herein. Pursuant to Government Code section 54960.1 (c)(2), the Council must take specified action in response to this written demand within 30 days.

5. The Administrative DA Amendments Were Discretionary Project Approvals Approved With No CEQA Review Whatsoever And Therefore Also Violated CEQA.


It is well established that a development agreement is a "project" subject to CEQA, Le., an activity involving the issuance of an entitlement for use by a public agency. (Citizens For Responsible Government v. City of Albany (1997) 56 Cal.App.4th 1199, 1215.) As observed above, development agreement amendments are required to be approved with the same substantive and procedural prerequisite -notice, public hearing, adopted ordinance subject to referendum -as the original agreement. (Gov. Code, § 65868.) Here, the City not only failed to so proceed with respect to the Administrative DA Amendments, but failed to review them under CEQA at all, and therefore failed to make any effort to determine whether they were exempt. fell within the scope of prior environmental review, whether additional review was necessary due to changed circumstances or new information (such as project delay, increased traffic! global warming impacts, decreased mitigation, etc.), or whether a negative declaration, mitigated negative declaration, subsequent or supplemental EIR or addendum, or other CEQA document would be appropriately prepared. Failure to conduct any CEQA review is a failure to proceed in the manner required by law, and when the City reconsiders and sets aside the invalid Administrative DA Amendments, it should fully comply with CEQA (as well as the Development Agreement Statute, its own charter and ordinances and the Brown Act) before again approving any amendments.

6. Conclusion.


For all the reasons set forth above, and for such other and further reasons as may be advanced at or prior to Council's reconsideration of this matter, the Administrative DA Amendments are void and invalid, should be reconsidered and set aside, and the City should take any further steps to amend the Sunset DA or Chevron DA only in compliance with all applicable law. This will necessarily include properly noticed public hearings before the Planning Commission and City Council at which Citizens and other members of the general public may participate, ask questions and provide input. It will also include compliance with the Brown Act, CEQA, the Development Agreement Statutes, and City's own Code, and the adoption of any amendments by the Council through the making of required findings and ordinances, which will constitute legislative acts of the City Council subject to public scrutiny and referendum.

Citizens wish to make clear that they support the City Center Project, but object to the Council's and City's unlawful actions, as described hereinabove, taken relative to that Project. The public is entitled to full disclosure and due process with respect to the City Center Project, the related Development Agreements and all related decisions, and the City may not circumvent the laws requiring public disclosure and participation by means of "back room" agreements and deals which it deems more expedient for whatever reason.

Very truly yours,


MILLER STARR REGALIA


By: Arthur F. Coon

Attorneys for Citizens for City Center Disclosure

AFC:klw


cc: Citizens for City Center Disclosure
Byron Athan, City Attorney, City of San Ramon
Robia Chang, Esq.

[Martine Colvin]

Here is the first letter sent to the Council about two weeks ago that they completely ignored. They're just going to sweep this all under the rug. They don't care what the citizens of San Ramon want apparently, even though they elect them.

January 13, 2009

Honorable Mayor and Members of the City Council
c/o the City Clerk (for distribution to Council)
City of San Ramon
2228 Camino Ramon San Ramon, CA 94583

Re: City Council Agenda Items 8.7 and 8.8 Resolutions Ratifying Amendment of Development Agreements

Dear Mayor and Councilmembers:

I was surprised to see on tonight's agenda two items on the Consent Calendar regarding approving and ratifying "nunc pro tunc" actions of the City Manager amending development agreements for the City Center project. I am requesting that the Council remove the items from tonight's consent calendar and instead direct that staff process the proposed amendment through the normal Planning Commission and City Council process, in accordance with state planning laws and the City's own code. As it is, it looks like the City is trying to do something behind closed doors, and buried in consent items, because it doesn't want full public disclosure. Did the Council already give a nod and wink to these transactions, or did Herb Moniz just decide to go off on his own and do this? In short, isn't this "ratification" process designed only to offer cover in case these actions ever gets challenged legally or politically? And isn't the Closed Session regarding facts that might result in litigation also a part of this process? It appears this whole thing has been done in the back room, and the City Council is quietly being asked to rubber stamp it?

This is important. It concerns the City Center project, in which the City has millions tied up, and which is supposed to be a public/private partnership resulting in major benefits to the City, including a new City Hall. There should be more disclosure about this project than a typical project, not less. If you look back at the minutes of previous meetings on City Center (including the council meetings of 12/11/2007, 01/08/2008, 01/22/2008 and 06/24/2008), council and staff repeatedly report that full disclosure is just around the corner, but it hasn't happened yet.
The one certainty the public was given was that everything would be revealed soon, since the property transfers had to be completed by January 1, 2010, or Sunset would lose its Development Agreement amendments. The staff publicly announced at the hearing last June that "to ensure that the project moves forward expeditiously, both agreements require the transfer of ownership of all parcels by January 1, 2010 or the amendments will be terminated," and that all financial details would be revealed at a workshop tentatively scheduled for Fall 2008.

It's 2009, yet we still don't have any idea about the financials for this deal. Instead of a workshop and open public hearings, there have apparently been property transfers, closed session instructions on negotiations with the final deals never being announced, and vague references to "asset transfers," and "preliminary financial information" that was being kept private. Now we come to find out that the City Manager attempted to unilaterally extend the deadline for the property transfers (and presumably the development of City Hall and provision of benefits to the City) by three years, without any notice or opportunity for public comment, and staff is now proposing that the Council bless that action, on the consent calendar, without taking the matter to either the Planning Commission or the City Council before the amendments are signed.

In addition to violating the trust the people of San Ramon placed in you, this has to violate at least a dozen laws as well as the Development Agreements themselves. I don't see how you can amend a term you said was the key to protecting the City's interests in secret, especially when your own code says "any significant amendment shall be subject to the provisions of State law (Government Code Section 65867.5)." Even your own code allows you to dispense only with notice for so-called insubstantial amendments - it still requires hearings and recommendation from the planning commission, and public input. The City Center Development Agreements themselves require that the City engage in the usual public process for amendments such as the ones on the agenda tonight -that affect the term, permitted uses, conditions and restrictions for subsequent discretionary actions, land dedications, or monetary contributions by owners. And, at least one of them requires that the signing and recordation of the amendment be preceded by council approval.

State law, which applies to all development agreements, requires that amendments be subject to notice, recommendations from the Planning Commission, public hearings and the potential for referendum. These safeguards are necessary to make sure the City does not unconstitutionally contract away its power in the agreement.

These amendments go to the heart of the City Center deal. They extend the term of the vested rights to the City Center project. They affect the permitted uses because they give Sunset another three years of vested rights to engage in those uses, without any disclosure of the financial deal Sunset has (or has not) made with the City, and without any certainty as to what, if anything, the City will get from Sunset in exchange for the promises it has made to Sunset. They affect the conditions and restrictions for future discretionary approvals because the City will be limited, for another three years, in what it can do as to any of the permits and approvals subject to the vested rights protections and they set a new deadline for a discretionary transfer of property. And they affect the monetary contributions by the owners, since they delay them by three years. We deserve a full and public process to Honorable Mayor and consider these amendments, not a back-door deal the council attempts to "ratify" on the consent calendar.

The City also did not investigate whether there are any new or changed environmental impacts since the SEIR was certified -such as any effects from opening the extension of Windemere Parkway. Also, there is no indication the City got anything in exchange for agreeing to delay things and tie its own hands for three more years. The City shouldn't be giving away these years for free. I believe the Brown Act requires notice of all these substantial steps before the City takes them.

I am submitting this letter on my behalf, and on behalf of Citizens For City Center Disclosure, a group of people interested in obtaining full disclosure about the City Center deal, and making sure the developer and the City stand by the promises and agreements they made publicly before. We object to these amendments and the lack of financial disclosure. We want to know why weren't we told about any of these recent dealings? Where is the financial information? What's going on?

The Council should recognize that the amendments are void. Instead of approving the City Manager's actions on the consent calendar, the Council instead should return the proposed extensions to staff for a preliminary evaluation of environmental issues, then full, noticed planning commission and council hearings after the City has provided the promised full disclosure of financial details of the relationship between Sunset and the City concerning the City Center project.

I am unable to attend tonight, so I am submitting this letter for the record for the agenda items re ratifying amendments to the City Center Development Agreements (agenda items 8.7 and 8.8). This letter is for distribution to each councilmember, to the City Manager and to the City Attorney.

Very truly yours,


Jim Brenan