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Home My WebLink About2019-05-21; City Council; ; Conference with Legal Counsel regarding Anticipated Litigation (2)CITY COUNCIL Staff Report Meeting Date: To: From: Staff Contact: 5/21/2019 Mayor and City Council Celia Brewer, City Attorney Celia Brewer, City Attorney CA Review l).)C- Subject Conference with Legal Counsel regarding Anticipated Litigation Recommended Action That the City Council, by motion, authorize a closed session regarding significant exposure to litigation of one case, pursuant to Government Code Section 54956.9(d)(2). In accordance with Government Code Section 54956.9(e)(3) a copy of the written communication threatening litigation is attached. May 21, 2019 Item #2 Page 1 of 2 Lawrence H. Posner Carlsbad, CA. 92009 May 11, 2019 Office of the City Clerk City of Carlsbad 1200 Carlsbad Village Drive Carlsbad CA 92008 Dear City of Carlsbad, Sent via Email Only This letter is to call your attention to what I believe was a substantial violation of a central provision of the Ralph M. Brown Act which may jeopardize the finality of the action taken by Carlsbad City Council. The nature of the violation is as follows: In its meeting of May 7, 2019, the Carlsbad City Council took action to approve by a formal vote "a Minute Motion by Council Member Schumacher and seconded by Council Member Hamilton, to oppose the San Diego County Board of Supervisor's selected D3 option ofthe Palomar Airport Master Plan." The action taken was not in compliance with the Brown Act because there was absolutely no notice to the public on the posted agenda for the meeting that the matter acted upon would be discussed, and there was no finding of fact by the Carlsbad City Council that urgent action was necessary on a matter unforeseen at the time the agenda was posted. As you are aware, the Brown Act allows the legal remedy of judicial invalidation of illegally taken action. Pursuant to Government Code Section 54960.1, I demand that the Carlsbad City Council cure or correct the illegally taken action as follows: the formal and explicit withdrawal from any commitment made, coupled with a disclosure at a subsequent meeting of the reasons why individual members of the legislative body took the positions that they did, with the full opportunity for informed comment by members of the public at the same meeting, notice of which is properly included on the posted agenda. This motion should once again be placed before the City Council for its action only after the prescribed public comment opportunity. As provided by California Government Code Section 54960.1, you have 30 days from the receipt of this demand to either cure or correct the challenged action, or inform me of your decision not to do so. If you fail to cure or correct as demanded, I am entitled to seek judicial invalidation of the action pursuant to Section 54960.1. Sincerely, Lawrence Posner cc: Celia Brewer, City Attorney cc: City Council To: Via: Carlsbad Council Members & City Attorney Carlsbad City Clerk Clo~ Se5S;10 r1 All Receive -~Item# _2,.. For the Information of the: qTY_ CO U N;!J-/ , Date .:51...fL CA CC / CM _L COO~ DCM (3) V Re: Carlsbad May 7, 2019 Council Meeting Agenda Item #6 Brown Act Compliance and Carlsbad Proposed May 21, 2019 Closed Session From: Ray & Ellen Bender [ 2019 RB letter to CCC Brown Act mayl 7 final] Date: Friday, May 17, 2019 Background By May 11, 2019 letter, a Carlsbad.resident asks the City Attorney to decide if the Carlsbad council on May 7, 2019 violated the Brown Act when taking certain votes related to Meeting Agenda #6. Carlsbad staff in Item #6 asked the council to rescind and then reapprove a Settlement Agreement that the council considered at its March 27, 2019 meeting. The Settlement Agreement said Carlsbad would dismiss its [CEQA] law~uit against the county and stop a proposed Carlsbad zoning ordinance. Carlsbad's CEQA complaint said the county failed to comply with CEQA when the county approved a 20-year McClellan-Palomar Airport Master Plan (PMP). Complaint ,rs 18, 30H, 31 D and E and 32 alleged county had not selected the appropriate PMP·alternative. PMP alternatives included a Palomar runway meeting FAA B or FAA D design requirements. The Carlsbad May 7 Council Meeting At its May 7 meeting, Carlsbad took several Agenda Item #6 actions. Among them, the council did "rescind and reapprove" the Settlement Agreement but also expressed its opposition to the county- selected PMP D-Ill alternative. The Issue The issue is: Did Carlsbad violate the Brown Act when the council expressed its opposition to converting Palomar from a B to a D airport without separately placing this item on the May 7, 2017 Carlsbad agenda? Observations Either both May 7, 2019 council actions [reapproving the CEQA Settlement Agreement and objecting to the D conversion] were valid or both were invalid for the below reasons. • Brown Act § G.C. 54954.2 states meeting agenda requirements: "At least 72 hours before a regular meeting, the legislative body ... shall post an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting .... A brief general description of an item generally need not exceed 20 words. • The May 7, 2019 Carlsbad Agenda Item 6 stated: 6. CITY OF CARLSBAD V. COUNTY OF SAN DIEGO LAWSUIT -SETTLEMENT AGREEMENT -Receive a report on a Settlement Agreement approved in closed session in connection with the lawsuit titled City of Carlsbad v. County of San Diego;· and, 1 Adopt a Resolution re-approving the Settlement Agreement and rescinding Resolution No. 2018-182, a resolution of intention to initiate a zoning amendment to restrict airport uses. • Notice that Agenda #6 says nothing about a CEQA lawsuit nor does it refer to Carlsbad challenging the environmental impacts of the county Palomar Master Plan to convert Palomar Airport from a B to a D airport. • A CEQA lawsuit typically questions whether (i) a project sponsor has selected the correct project alternative; (ii) what adverse impacts the selected alternative will cause; and (iii) whether mitigation for harms caused is adequate. County conceded in its PMP EIR that the PMP D-III alternative was NOT the least environmentally harmful alternative. • One of two things is true. Either readers of the Carlsbad May 7 Agenda Item #6 knew that a Carlsbad CEQA lawsuit against the county arising from county plans to expand Palomar would proceed or be dismissed OR they did not know what lawsuit was involved. • If readers did know that a Carlsbad CEQA lawsuit related to Palomar expansion was involved, then the Carlsbad Agenda Item 6 met the Government Code Section 54954.2 test. Agenda readers knew and could reasonably expect that the council discussion and motions would relate to Palomar PMP alternatives, environmental impacts, and mitigation -all discussed in the CEQA lawsuit. • Taken together, the above-noted two Carlsbad council motions simply said: We will rescind and reapprove the Settlement Agreement with the understanding that we do not support the PMP Program D-ID alternative, which the county itself said was not the least environmentally harmful. • On the other hand, if the Agenda Item #6 description was too ambiguous, then both of the above- noted Carlsbad May 7 motions fail. Why? Because the public was not aware that Agenda Item #6 would resolve a Carlsbad CEQA lawsuit involving PMP alternatives, environmental impacts, and mitigation related to expanding Palomar. Did the Agenda Item #6 Description Comply with Brown Act§ 54954.2? Yes for two reasons. First, the Agenda Item #6 context is relevant. Since February 2018, the Carlsbad council, county Palomar Airport Advisory Committee, and county have in open meetings discussed the county PMP and PMP EIR at least 9 times and Carlsbad conducted a lengthy workshop on these items. Hence Carlsbad agenda readers had extraordinary notice of the Carlsbad v. County lawsuit issues. Second and equally important, any Brown Act interpretation must embrace day-to-day city meeting realities. It is common for motions related to meeting agenda items to be amended and to be replaced with alternate motions and related motions. The May 11, 2019 Carlsbad resident objection letter is inconsistent with this principle; City business could not function if each and every time an amended or substituted motion or related motion were made, the item had to be continued to a future meeting. Accordingly, the above-noted Carlsbad May 7, 2019 Agenda Item #6 actions were proper and Agenda Item #6 satisfied the Brown Act G.C. 54954.2 very general description requirement. 2019 RB letter to CCC Brown Act Posner lttr mayl7 2 Morgen Fry From: Sent: To: Sheila Cobian Monday, May 20, 2019 3:54 PM Morgen Fry C. LoS c:-..1) .5£.SS ID~ /\II Receive -Agenda Item# 2 For the Information of the: f ITY COUNCIL Date15 ';1.Dll'\CA ✓ CC v,. CM JC, coo~ DCM{3) ~ Subject: FW: Did Ms. Schumacher violate the county settlement agreement? Importance: High Closed Session Item #2 Correspondence From: Cbad Guy ] Sent: Monday, May 20, 2019 3:46 PM To: City Clerk <Clerk@carlsbadca.gov> Subject: Did Ms. Schumacher violate the county settlement agreement? To Whom It May Concern, I write as a concerned citizen in regards to the attached item {http://www.carlsbadca.gov/civicax/filebank/blobdload.aspx?Blob1D=38550} for the closed session item tomorrow regarding exposure to litigation. {http://www.carlsbadca.gov/civicax/filebank/blobdload.aspx?Blob1D=38523}. In the letter, Mr. Bender {part of Citizens For a Friendly Airport) references a letter to the City Clerk on May 11th. Upon searching the public records requests made and completed {http://www.carlsbadca.gov/cityhall/clerk/records/prrequest.asp), I do not see Mr. Bender requesting for this information. This leads me to wonder if Council Member Cori Schumacher who made the Brown Act violating motion is worried and wants to cover her tracks by having Mr. Bender write in? How else would he have received this information? Can staff, Mr. Bender, or Ms. Schumacher confirm for us how he has access to this email without receiving it from a public records request? Why is Cori Schumacher working with special interest groups, i.e. Citizens for a Friendly Airport {many of her mayoral campaign supporters· are part of this group}, that are in pending litigation just so she can cover her ass on a vote that she should not have brought forward? ·While !'understand the need for making a statement, I am utterly disgusted at the lack of transparency by Ms. Schumacher, especially since she touts transparency. If this isn't information sharing on her part, then what is it? Wouldn't this also be a violation under the settlement agreement with the County where the settling parties cannot be working with and providing information to individuals or groups that are pending litigation? 1 . I'm scared to reveal my identity for fear of Ms. Schumacher attacking me as she has done with other residents: https://www.thecoastnews.com/private-feud-between-city-official-resident- goes-public/. Please add this to the record for transparency. Sincerely, Concerned Carlsbad Citizen 2