Thursday, July 21, 2016

City to fight residents after settling with developers

Coast News:
Encinitas will defend itself against a lawsuit launched by residents opposed to a settlement the city approved with the Building Industry Association that paved the way for the recent approval of a density bonus project in Leucadia.

The City Council emerged from a closed-session meeting July 13 and announced it would defend itself against the suit, which was filed in June by the Encinitas Resident Alliance.

City officials declined comment, citing closed-session confidentiality.

The lawsuit challenges the 2015 settlement between the city and BIA, which the citizens group says unconstitutionally tied the city’s hands as it pertains to six density bonus projects, including Hymettus estates, a nine-unit project the council approved amid criticism from neighbors.

31 comments:

  1. What the city did was wrong. Let the citizens prevail. Just imagine how much City Attorney Sabine will mire us in fees.

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  2. After the city bends over to whatever Meyer and the BIA desire, they choose to fight their own constituency over a project that will only serve to degrade one of our neighborhoods.

    What is wrong with this picture? Every fracking thing.

    We elect council persons to represent us and what do we get in return? Not so much and what a shame.

    There has to be a better way than what we have been given to us by trusting our council members to defend us.

    Just tonight at the Planning Commission session, they wholeheartedly supported the rounding up of every density project now and in the foreseeable future. Meyer and his likes get every little desire and get monetarily compensated, while residents get screwed over again and again.

    I must be mistaken, but I had thought the lawsuit brought by the heroic Hymettus residents would have prevented any ruling on this by the city since this is part of their lawsuit. Maybe it is just wishful thinking on my part, but the caving in every time to developers and choosing to fight the residents seems off. This stinks.

    Considering who we have to choose from, as of today, it is as bleak an outlook as some of our many foggy gray days.

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  3. I didn't think this needed to be addressed, but apparently I was wrong:

    Our legal system isn't like sports. Fighting harder usually doesn't change the result. The facts of the case applied to statutory and case law determine who wins and who loses. Judges do not consider the level of intensity or effort of the litigants.

    Some people seem to think that the city chooses to settle (lose) against developers, and chooses to fight (and usually win) against residents. As if it's this choice (settle or litigate) on the part of the city that determines the outcome. In fact, that's backwards. The city looks at the facts of the case applied to law, and chooses to fight cases it thinks it will win, because the facts support the city's case. When the facts do not support the city's case, they settle. So it's the underlying strength of the case that determines when the city chooses to litigate, not who the opponent is.

    The fact that the city has elected to litigate this case is actually a very good indicator that the residents have brought a suit not strongly supported by the facts or the law.

    Time will tell if their passion and effort can overcome the weakness of their case.

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    1. It's not only that "time will tell." Also, what will tell is the corrupting influence of special interests on legislators and judges in passing laws and interpreting them. "The facts of the case" are usually opinions that vary, and which are influenced by behind the scenes wheeling and dealing. Don't imagine that judges aren't influenced by special interests, as well as our Council, which is in the position, locally, to act as judge, jury and executioner when it comes to writing local laws, hearing appeals, and enforcing ordinances.

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  4. 5:40 Normally I would agree with you, however, I'm not so sure about this. 2 reasons. First, there is a lot the city could do to find another city attorney that might give them better advice. I refer to the Desert Rose Case where Evert DeLano managed to show us that he could legally make a case against the other attorneys involved. DeLano has indirectly made the case that Sabine in not giving good advice to the Council. He does make a lot of money from us by turfing cases to his own firm. So, it is seems to me that is a conflict of interest. If he is going to be our city attorney, perhaps he should not be allowed to use his own firm, in addition.

    The citizens, who are paying for his services, often don't get the same treatment as the developers. Maybe just not enough money? I have heard DeLano many times say he doesn't think Sabine is doing us any favors. Ask the Desert Rose folks. In fact, it would actually be in our best interest to hire our own full time city attorney and let Sabine go.

    Carlsbad has their own city attorney and he is paid about $230,000 a year. He has 2 staff members. Sabine is paid a hell of a lot more than that as a part time attorney. He also represents La Mesa. Their citizens are not too happy with him either. The reasons given for Sabine to stay have come down to what many Council members call "institutional history". That makes no sense to me. The law is the law. You don't need to have institutional history for that. You need to be a good attorney and look for loopholes in the law, as the BIA attorneys know.

    The law, can be interpreted many ways. I think we would do better as citizens if Council at least put out an RFP for other attorneys. I will vote for the candidate that says he or she will do that. Barth said it when running, but she didn't even second Shaffer's motion to do an RFP. Can't wait to ask the candidates if they will at least look at other attorneys. Nothing is black and white with the law. And, to prove it, just look at what is going on with all of the people who are getting away with allegedly illegal things. You can start with Trump and Clinton. Both of them have broken countless laws, and yet they have not been convicted of a single thing. And the best one was OJ Simpson. With a team of 5 highly skilled and very expensive attorneys, he was found not guilty of killing 2 people. So the law is not equally applied to all, and it is no different in our city.

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    1. Sabine has been ripping Encinitas off for too long. He is under no pressure to perform - he is second rate, at best. He should have been sacked a long time ago. "Institutional history"??? Hire a friggin' mummy then - this guy represents the developers and big land holders.

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    2. Evert DeLano LOST the Desert Rose case and the city WON. there may be plenty of instances where Sabine/the city got it wrong but Desert Rose was not one of them.

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    3. 9:55 AM

      As 2:30 PM Delano lost the Desert Rose case on appeal and the judges issued their opinion in record time.

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    4. The Hymettus case pointing to the illegality of ceding land use control to an outside agency is only half the story.

      That very same settlement requires the HEU to pass - no matter the outcome of November's vote.

      Yep, you heard right: your Council signed away your vote last summer, a small point they've neglected to mention. .

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    5. 11:52 PM

      While both settlements (BIA & DCM) require the city to have an adopted and HCD certified housing element state law requires it. Before you claim that the law doesn't formally require HCD certification, the courts view it as an official stamp of approval that the housing element meets all the requirements mandated by the statute.

      Prop A requires a vote. However, Since Prop A is a local initiative it can't frustrate a state law, so a majority no vote in November means, in all likelihood, bye bye Prop A.

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    6. I know that it's popular on this blog to turn your anger against individuals like council members, city manager, and often the city attorney but your ignorance about these lawsuits is getting old. I'm using "ignorance" here not as a slur but to point out many of you don't appear to understand how things work. The city often hires more experienced attorneys to actually handle court cases. For the lawsuits by the BIA and DCM (Meyer) the city hired Barbara Kautz, a well respected land use attorney, to take the lead not Sabine.

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    7. 11:06 is right.

      Corporations and government entities might have a whole legal department, but they almost never use those lawyers to litigate in court. The best practice is to use in-house council (e.g. City Attorney) as a generalist to hire and manage specialists to handle litigation.

      People who think one lawyer should be an expert in contracts, procedure, employment, land use, litigation, etc. just don't understand.

      Good analogy is the general practitioner family doctor vs. oncologist, pediatrician, orthopedic surgeon, neurologist, etc. There are many subspecialties in the legal profession.

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    8. Sabine has no talent on any level, other than fleecing the city coffers.

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    9. A local initiative can't frustrate State law, but most Government Code (state law which regulates local governments), including that part of the GC dealing with Housing Elements, states that local laws (such as General Plans and Municipal Codes) MUST be taken into account when interpreting and enforcing state requirements.

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    10. 2:24 AM

      Yes local laws and plans must be taken into account when interpreting and enforcing state requirements. It's when local laws and plans are in conflict with state laws that the state laws prevail.

      8:24 PM

      Can't let it go, can you.

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    11. State law might require an HEU, but it doesn't mean we have to accept the currently proposed plan. Vote NO on the HEU this November, and then the city will just have to get back to work and propose a new one.

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    12. 10:16 AM

      You are right that state law doesn't limit how a city's HEU meets the requirements only that it does, stating requirements like so much land available at certain density and allowing shelters by right in certain areas. But in reality there is only so much flexibility and if your hope is to meet our RHNA numbers with accessory units forget it. Thirty units per acre is specified in the statute as is the general RHNA process with the local distribution left to the regional agencies and cities/counties.

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  5. At 5:40 and 9:55 above, we have something unusual in the comments on the EU blog: A rational discussion between two knowledgeable people.

    Sabine is basically inept. He's been milking the city, and giving council and staff bad advice for years.

    Note that he advised fighting the Cummins and Stern cases and lost.

    Canning Sabine and hiring a competent, salaried attorney would save the city lots of money while it benefited from better legal advice and services.

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    1. 1:41 PM

      How do you know Sabine advised "... fighting the Cummins and Stern cases ..."? He may have but the decision is with the council not city attorney.

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    2. 7:42,

      1) Well, if Sabine advised otherwise and the council ignored his advice and did the opposite, then what's the point of paying him for his advice?

      2) Plenty of background on Sabine's record here, including ridiculous statements from his own mouth.

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    3. 8:04 AM

      The council is the client and has the final say on whether to proceed in legal matters or not. The city attorney lays out the legal foundation, past rulings and may offer an opinion on the merit and strength of a case. In responding to lawsuits the city attorney will file the initial response but then usually turning it over to specialists, apprising the council along the way (all those closed sessions).

      Have you never hired an attorney?

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    4. 4:34 PM Sabine can't even accomplish the rudimentary steps in your theoretical progression. He should have been sacked years ago.

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  6. Why not hire a big law firm with many competent specialists. Put the firm on a fixed price retainer, with a part time general counsel dedicated to Encinitas, and appropriate specialists available at pre-negotiated rates when needed.

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    1. As long as it is not Coast Law!

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    2. Sounds as if 1:48 has a good idea. It's like having a primary care physician who's backed up by specialists.

      Everett and Felix are lawyers out to make money. They convince potential clients they have a good case with a good chance of winning. The clients are not legally sophisticated enough to know if the advice is valid or not.

      Win or lose, the lawyer gets paid.

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    3. 3:36, as someone who has worked with Everett, that's not true (though I cannot speak about Tinkov). DeLano gave us good advice and several times advised against certain actions when he thought the outcome would not work... even when we pushed and said we'd be fine paying.

      Yes, everyone (not just lawyers) is out to make money, but for us, Everett did the opposite of what you are claiming. He convinced us NOT to spend more money.

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    4. The case went to the state Supreme Court. Where else could you go to spend money?

      And didn't the fact that it failed indicate you didn't have a strong case in the first place?

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  7. I like 1:48's idea as well. Does anyone know if there are firms like that around here. I agree about not hiring Coast Law. Marco threatens to sue us much of the time. And, the rest of the attorneys at that firm already are in good standing with some council members. I think a firm, not located in Encinitas would be our best bet. I know I would like to get rid of Sabine. Personally I have nothing against the man, I just don't think he cares all that much anymore. Some of the things he has done in La Mesa, like threatening a citizen on the Mayor's letterhead, without the Mayor's knowledge doesn't sit well with me. Nor did it sit well with the citizens of La Mesa. It was a pretty big story when it happened.

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  8. The Council knows what it has in Sabine and it likes it that way. Wasted breath suggesting we get someone who knows his or her business. Sabine knows the business the city wants and everyone's happy except residents.

    We can have good ideas till the cows come home, but the bottom line is the city is getting exactly what it wants in Sabine's services. The same goes for former Planning Director Jeff Murphy and now acting Director Manjeet Ranu. They are more than happy with what these connivers are producing.

    Who will get a crowd down to city hall on a regular basis, invite the press, and get some real pressure going? Anyone who's attended just one Planning Commission or Council meeting knows that asking nicely gets you absolutely nowhere.

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  9. The original snippet is not from the Encinitas Advocate. The Coast News maybe?

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