HomeMy WebLinkAbout49-San Bernardino Housing
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SAN BERNARDINO CITY HOUSING AUTHORITY
ORIGINAL
FROM: - Maggie Pacheco
. Deputy Director
SUBJECT: BEARING - RESOLUTION OF PUBLIC
INTEREST AND NECESSITY FOR
ACQUlSmON OF REAL PROPERTY AT
THE NORTHWEST CORNER OF RIALTO
AVENUE AND ALLEN STREET (APN 0135-
191-39), SAN BERNARDINO, CALIFORNIA
DATE: March 25, 2005
Svnoosls 01 Previous Comml..IQo/CouadVCommlttee Aetloa(s): -
On Febroary 3, 2003, the Community Development Commission approved the Single Family Meadowbrook Grant Agreement
between the Agency and ANR IndusIries. Inc. ("Grant Agreement") for the development 0123 siDgle family homes in the area
between Sierra Way and Allen, 2'" Street and Rialto Avenue (phase I - "Project''), commonly referred to as the Meadowbrook
Area.
On May 17,2004, the San Bernardino City Housing Authority ("Authority") and the Redevelopment Agew;y entered into a
Redevelopment Cooperation Agreement in order that the Authority could assist the Agency in tUlfilling its obligatioDs under the
Grant Agreement with ANR Industries, Iuc., also referred to as Meadowbrook Homes, Iuc., and to fi1ciIitate the development of
affordable housing in the Meadowbrook Area.
On January 10, 2005, the Community Development Commission approved the 2poS Meadowbrook SiDgIe Family Residential
Development Agreement (" Agreemenf') with Meadowbrook Homes, Inc. for the development of eight (8) more single fiunily
. homes in the Meadowbrook Area.
(San Bernardino Cltv HousiJur Authoritv)
MOTION: RESOLUTION OF THE SAN BERNARDINO CITY HOUSING AUlHORITY DECLARING THE
PUBLIC INTEREST AND NECESSITY OF ACQUISITION OF REAL PROPERTY BY THE SAN
BERNARDINO CITY HOUSING AUlHORITY OVER THE PROPERTY LOCATED AT THE
NORTHWEST CORNER OF RIALTO AVENUE AND ALLEN STREET, SAN BERNARDINO,
CALIFORNIA (AP# 0135-292-39) IN THE INLAND VALLEY REDEVELOPMENT PRO,JECT AREA
Contact Person(s):
Gary Van OsdellMaggie Pacheco
Phone:
(909) 663-1044
Project Area(s) IVDA Redevelopment Project Area Ward(s): I
Supporting Data Attached: 0 Staff Report 0 Resolution(s) 0 Agreement(s)/Contract(s) 0 Map(s) 0 Letters
Approx.
_ FUNDING REQUIREMENTS Amount $ 90,000 Source: Agency LowlMod Housing Fund
Budget Authority:
2004/2005 BOA Budg~ -
SIGNATURE:
.,,~ ~.Q'
~ . Van _ I, Execuuve Director
~~
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Comm....oo/CouneU Notes:
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Agenda It!
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SAN BERNARDINO CITY HOUSING AUTHORITY
STAFF REPORT
HEARING - RESOLUTION OF PUBLIC INTEREST AND NECESSITY FOR
ACQUISmON OF REAL PROPERTY AT THE NORTHWEST CORNER OF RIALTO
AVENUE AND ALLEN STREET (APN 0135-292-39), SAN BERNARDINO, CALIFORNIA
BACKGROUND/CURRENT ISSUE:
In order to facilitate the implementation of the Agreement, the Authority authorized the appraisal
and ma4e offers to purchase to various property owners within Phase I ("Project"), including but
not limited to, the Property Owners of the parcel located on the northwest comer of Rial to Avenue
and Allen Street ("Property"). Although a number of conversations have occurred between Agency
Staff and Representatives (Mr. John Dukes) of the Property Owners, the Authority has had no
success in acquiring the subject Property. Consequently, on March 15, 2005, in conformance with
the Code of Civil Procedure Section 1245.235, a notice of the April 4, 2005 hearing on adopting a
Resolution of Public Interest and Necessity was sent by first class mail to the Property Owners
whose name and address appears on the last equalized county assessment roll as set forth in the
Resolution, in order to afford such Property Owners a reasonable opportunity to be heard by the
Authority. The Hearing for the Owners by the Authority and the adoption of the Resolution of
Public Interest and Necessity are legal preconditions to the exercise of the Authority's power of
eminent domain. Moreover, Code of Civil Procedure Section 1245.230 requires that the Authority
make the following findings and that each be included in the Resolution of Necessity:
1. The public interest and necessity requires the acauisidon of the PropertV:The Agency
and the Authority have a Redevelopment Cooperative Agreement ("Agreement") to
facilitate the development of affordable housing units within the IVDA Redevelopment
Project Area ("Project Area"). Furthermore, to assist in the implementation of the
Agreement, the Agency has a 2005 Agreement with Meadowbrook Homes, Inc. for the
development of affordable housing within the Project Area, which includes the Property.
During the past year, together, the Agency and the Authority have acquired several parcels
ofland within the vicinity of the Property. The Agency and the Authority find it appropriate
to continue the program of land assembly and to acquire this additional Property to provide
needed affordable housing units.
2. The Proiect is planned or located in a manner that wiD be most compati~le with the
ereatest pubUc eood and the least Private iniurv: The Agency and the Authority have
increased their efforts to address conditions of blight in this area of the Project Area and to
foster the development of affordable housing, increase property values and to prevent the
spread of blight in the Project Area into other surrounding neighborhoods. The Property is
vacant and displays a number of conditions of blight and redevelopment of the Property will
eliminate blight and provide needed affordable housing units in the Project Area.
3. The sub~ect Property is necessarY for the Proiect: The Authority previously acquired
several parcels of real property in the vicinity of the Property and desires to acquire the
Property to provide sufficient contiguous land for the Project. The Project is planned or
located in the manner that will be most compatible with the greatest public good and the
P:\AplIdu\IIouIinI AoIhority'<l5-04-04 __ HA SR.doc: HOUSING AUTHORITY AGENDA
Meeting Date: 0410412005
Alenda Item Number: f( 'lCf
- r.'
San Bernardino City Housing Authority Staff Report
Meadowbrook Property Acquisition-APN: 0135-292-39
Page 2
least private injUry in light of the fact that the Property included in the Project Area displays
a number of symptoms of blight The Project shall also facilitate land assembly and reuse of
an underdeveloped urban area that has shlrAted in recent years under the burdens of small
lot size, diverse ownership, abandoned properties, and property tax liens. The Project will
also confer substantial environmental benefits upon the Project Area and the community
generally, in accordance with the General Plan of the City of San Bernardino.
.4. The Goverument Code 6 7267.2(a) offers have been mllde to the record~rroDeUv
Owners: On December 18, 2003 and Febnwy 11,2005, the Authority submitted formal
acquisition offers to th~ Property Owners of the subject Property. The offers comply with
GOvernment Code ~ 7267.2. No affirmative respoi1ses were received in response to the
statutory off'ers.
. .ENVIRONMENTAL IMPACT:
The proposed action or Project is exempt from CEQA, pursuant to ~ 15332, Class 32 which consists
of projects characterized as in-fill development meeting the conditions described as follows: (a) the
Project is consistent with the applicable general plan designation and all. applicable general plan
policies as well as with applicable zoning designation and regulations; (b) the Project occurs within
city limits on a project site of no more than five acres substantially surrounded by urban uses; (c)
the Project site has no value as habitat for endangered, rare or threatened species; (d) approval of
the Project would not result in any significan~ effects relating to traffic, noise, air. quality, or water
quality; and (e) the site is adequately served by all required utilities and public services. As a result,
the Mayor and Common Council and Community Development CommiRlliOD. adopted a
categorically Exempt determination under the California Environmental Quality Act (CEQA) with a
Notice of Exemption filed with the County Clerk for the Project pursuant to the approved 2005
Meadowbrook Single Family Residential Development Agreement on January 14, 2005
FISCAL IMP~CT:
The cost of this transaction includes acquisition costs, legal and court costs normally associated
with ~.uon procoodiDp at an ~ated cost ofS90,OOO.. .
RECOl\{MENDATION:
That the San Bernardino City Housing Authority adopt the attached Resolution.
~v
. Maggie Pacb . ,Deputy Director
P:~~_HASIldoc
HOUSING AlTI'HORITY AGENDA
. MeetiDg Date: 04lO4I1005
Agenda Item Number: ~
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RESOLUTION NO. ~ ~ lPlf
RESOLUTION OF THE SAN BEJ;lNARDINO CITY HOUSING
AUTHORITY DECLARING THE PUBLIC INTEREST AND NECESSITY
OF ACQUlSmON OF REAL PROPERTY BY THE SAN BERNARDINO
CITY HOUSING AUTHORITY OVER THE PROPERTY LOCATED AT
THE NORTHWEST CORNER OF RIALTO AVENUE AND ALLEN
STREET, SAN BERNARDINO, CALIFORNIA (AP# 0135-292-39) IN THE
INLAND V ALLEY REDEVELOPMENT PROJECT AREA
WHEREAS, the San Bernardino City Housing Authority (the "Authority"), a public
entity created pursuant to the Housing Authorities Law (Health & Safety Code ~34200, et seq.),
is authorized to acquire and redevelop blighted properties located within the City of San
Bernardino, as authorized by the Housing Authorities Law; and
WHEREAS, the Authority authorized the assemblage and acquisition of real property
for future redevelopment of new affordable housing in the Inland Valley Redevelopment Area
(the "Project Area'') in accordance with the provisions of the Housing Authorities Law; and
WHEREAS, the Authority hired an appraiser to appraise certain Project Area parcels for
acquisition for future development of affordable single family housing within the Project Area
("Project Development") on or about October 6,2003 and again on February 4,2005; and
WHEREAS, the Authority sent purchase offers to property owners, in an attempt to
purchase the parcels in the Project Area at the appraised value in lieu of condemnation, and the
18 Authority Il'lailed purchase offers to the Property Owners of the parcelidentified by County
19" Assessor Parcel Number tAPN") 0135-292-39, at the northwest comer of Rial to Avenue and
20' Allen Street, San Bernardino, California 92408 ("Property"), within the Project,Area, based on
21 the appraised value of the Property, on December 18, 2003 and on February 11, 2005 and the
22, Property Owners have not accepted the purchase offers submitted by the Authority; and
, 23 WHEREAS, the Authority has not been able to satisfactorily complete a negotiated
24 purchase with the Property Owners to assemble and acquire the Property described in this
25 Resolution for the Project Development; and
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WHEREAS, the Authority desires to acquire the Property for the Project Development;
WHEREAS, the assembly and acquisition of the Property for Project Development is
4 exempt from the requirements of the California Environmental Quality Act of 1970, as
S amended, Public Resources. Code ~ 21000 et seq. ("CEQA") relative to an environmental
6 review conducted for such land assembly and acquisition activities of the Authority, according
.7 to 14 California Code of Regulations ~ 15332 Class 32 because: (a) the project is consistent
8 with the applicable general plan designation and all applicable general plan policies as well as
9 with applicable zoning designation and regulations; (b) the proposed development occurs within
city limits on a project site of no more than five acres substantially surrounded by urban uses;
10
11
(c) the project site has no value as habitat for endangered, rare or threatened species; (d)
approval of the project would not result in any significant effects relating to traffic, noise, air
12
quality, or water quality; and (e) the site can be adequately served by all required utilities and
public services; and.
IS
WHEREAS, the Mayor and Common Council and Community Development
Commission adopted a categorically Exempt determination under the California Environmental
16
Quality Act (CEQA) with a Notice of Exemption filed with the County Clerk for the project
17
pursuant to the approved 2005 Meadowbrook Single Family Residential Development
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Agreement on January 14,2005 for development of new affordable single family housing,
-~i9"
includes the following key elements:
o
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(i)
Area; and
Acquisition of unimproved land identified as the Property within the PrOject
21
22 (ii) Construction of affordable infill single family housing within the Project Area.
23 WHEREAS, the Authority transmitted an offer to purchase the Property situated within
24 the Project Area, based on the appraised values of such Prop~rty, to the Property Owners of the
2S Property, as more particularly described in this Resolution; and
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WHEREAS, the purchase otTer mailed to Bonnie Johnson and George Ashworth as the
Property Owners of the Property, at the address of record on file at the office of the County
Recorder as 115 South Watennan Avenue, San Bernardino, CA 92408, was delivered by the
4 Post Office with a returned receipt received from the Post Offic~ on March 17, 2005 showing
5. the Property Owners received the purchase offer at that address as evidenced by the signature on
6 a Post Office return receipt card; and
7
WHEREAS, the Property more particularly described in this Resolution is subject to real
8 property tax liens for delinquent tax payments and City of San Bernardino liens, that could
9. result in sale of the Property by the County Tax Collector to satisfy delinquent property taxes;
10
and
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WHEREAS, the Authority desires to adopt this Resolution to allow the Authority to
acquire the Property situated within the Project Area by condemnation, if necessary, in lieu of
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negotiated purchase; and
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WHEREAS, on March 15, 2004, notice was mailed to the Property Owners of the
Property that the Authority may adopt a resolution on April 4, 2005 declaring the public interest
and necessity of acquisition of the Property; and
WHEREAS, on April 4, 2005, after not less than fifteen (15) days written notice to the
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Property Owners of the Property more particularly described in this Resolution, the Authority
18
conducted a hearing for the pwpose of affording the Property Owners of such P~perty a
.19
reasonable opportunity to appear and be heard on the. matters referred to. in Code of Civil
20 Procedure ~ 1240.030 and whether the Authority has met all other prerequisites for the exercise
21
of Eminent Domain to acquire the subject Property, described in this Resolution, for community
22 redevelopment purposes; and
23 WHEREAS, the Authority has detennined as a result of such hearing on April 4, 2005,
24 that the public health, safety and welfare require the Authority to acquire the subject Property,
25 as more particularly described below in this Resolution, for community redevelopment
o purposes.
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NOW, THEREFORE, IT IS HEREBY RESOLVED, DETERMINED AND ORDERED
BY THE SAN BERNARDINO CITY HOUSING AUTHORITY, AS FOLLOWS:
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Section 1.
The information set forth in the above recitals of this Resolution is true
4 and correct.
Section 2.
The Property to be acquired Under the authority of this Resolution,
located on the northwest comer of Rialto Avenue and Allen Street, in the Project Area in the
City of San Bernardino, California 92408. The Property is more particularly described in the
legal description attached as Exhibit "A." The interest in the Property to be acquired consists of
all of the fee simple absolute title interest in the Property, and all of the right,title, and interest
of each person and owner of the Property including the acquisition of each and every possessory
interest and all easements and appurtenances to the Property.
Section 3.
The Authority transmitted a notice of hearing to the known Property
Owners of record, on March 15,2005 by mail as follows:
Bonnie Johnson and George Ashworth, the owners of record of the Property were
notified at the address of record on file at the office of the County Recorder at 115 South
Waterman Avenue, San Bernardino, CA Copies of such notice of hearing are on file with the
,
Clerk: of the Authority.
Section 4.
The Authority acknowledges receipt of the written reports and
information relating to the proposed Project Developrnent~ including without limitation the
appraisals of the Property, staff reports, and oral reports and information submitted to the
Authority during the, course of the hearing conducted on April 4, 2005.
Section S.
The Authority finds and determines that the hearing conducted by the
Authority on this matter on April 4, 2005, was full and fair, and that each interested person has
been accorded a full and fair opportunity to present evidence and testimony relating. to the
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proposed assembly of the Property, Project Development including future redevelopment of the
Project Area, and the matters described in Code of Civil Procedure ~ 1240.030, and the
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acquisition of the Property, and all interests in it, by the Authority for community
4
redevelopment purposes by the exercise of Eminent Domain and other relevant matters. .
5
The Authority declares its intent to acquire the Property for community
Section 6.
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redevelopment pwposes in the name of the Authority in accordance with the laws of the State of
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California and the Housing Authorities Law (Health and Safety Code ~ 34240.40). The
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Authority further finds and determines that all of the prerequisites to the exercise of Eminent
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Domain by the Authority with respect to such acquisition of the Property have been met
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Section 7.
In accordance with the provisions of Code of Civil Procedure ~ 1245.230
12 the Authority finds, determines, and declares as follows:
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(a)
The public interest, convenience, and necessity require the alCquisition of the
014 Property for the Project Development, which is necessary to alleviate conditions of blight in the
15 . Project Area and to provide for the orderly redevelopment of the Property and other real
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property included in the Project Area. The assembly and redevelopment of the Property
o
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included in the Project Area, is necessary as the Project Area displays a number of conditions of
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blight including the presence of old ~tructures that show signs.Qf dilapidation and deterioration,
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small lot configurationS within the Project Area, including the subject Property, prevent or
20
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substantially hinder the economically viable use of such real property in their present condition
and City zoning classification. Redevelopment of the Property as affordable infill housing will
22
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eliminate the aforementioned conditions of blight within the Project Area and provide needed
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affordable housing in the Project Area, and assist with elimination of blight in other areas in
proximity to the Project Area, by providing affordable housing that is needed due to the
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insufficiency of new affordable housing throughout the City.
(b) The Project is planned or located in the manner that will be most compatible with
the greatest public good and the least private injury in light of the fact that the Property included
in the Project Area displays a number of symptomS of blight, and the Project Development shall
also facilitate land assembly and reuse of a developed urban area that has stagnated in recent
years under the burden of small lot size, diverse ownership, property tax liens, and inadequate
public improvements. The Project Development shall also confer substantial environmental
benefits upon the Project Area and the community generally, in accordance with the General
10 Plan of the City.
11
(c)
The Property described in this Resolution is necessary for the Project
12 Development as its acquisition and reuse for affordable housing purposes is part of an integrated
13 design plan to eliminate blight and provide for the improvement of all of the lands included
o 14 within the Project Area.
15
(d)
The purchase offer required by Government Code ~ 7267.2 has been mailed to
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the Property Owners of record of the Property by the Authority, and the Authority has not been
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successful in negotiating a purchase of the Property with such Property Owners based upon
18
. such offer of the Authority on terms that 8I;'e. acceptable to the Property.Owners of the Property.
19'
The' law firm of Lewis Brisbois Bisgaard & Smith LLPas special
Section 8.
(a)
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legal counsel to the Authority, is authorized and directed to prepare, institute and p~secute in
22 the name of the Authority such proceedings in the court having jurisdiction, as ~y be
23
necessary for the acquisition of the Property. Special legal counsel to the Authority is further
24 authorized and directed to obtain an order of the court granting the Authority and contractors.
25 and licensees of the Authority, the right of prejudgment possession and occupancy of the
o
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Property at the earliest feasible time in order to implement the redevelopment project and
commence Project Development
(b) The sum payable by the Authority as probable compensation for the acquisition
of the Property by Eminent Domain shall accompany the filing of an application for
prejudgment possession of the Property and shall be deposited as follows: (i) with the State of
California in the manner provided by law, or upon the recommendation of Authority special
legal counsel to the County Treasury; or (ii) at the election of the person(s) who may claim an
interest in the Property to be acquired by such condemnation proceedings, in such other manner
as such interested person(s) may request in writing, subject to the approval of the Authority
Executive Director and special legal counsel to the Authority.
Section 9.
The Resolution shall become effective immediately upon its adoption.
III
III
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hereof: held on the day of
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Commissioners: ~
9 ESTRADA
10 LONGVILLE
11 MCGINNIS
12 DERRY
13 KELLEY
014 JOHNSON
MC CAMMACK
IS
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RESOLUTION. OF 'THE SAN BERNARDINO CITY HOUSING
AUTHORITY DECLARING THE PUBLIC INTEREST AND NECESSITY
OF ACQUlSmON OF REAL PROPERTY BY. THE SAN BERNARDINO
CITY HOUSING AUTHORITY OVER THE PROPERTY LOCATED AT
THE NORTHWEST CORNER OF RIALTO A\1ENUE AND ALLEN
STREET, SAN BERNARDINO, CALIFORNIA (AP## 0135-292-39) IN THE
INLAND VALLEY REDEVELOPMENT PROJECT AREA .
4
.S
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the San
6
Bernardino City Housing Authority of the City of San Bernardino at a
, 2005, by the following vote to wit:
meeting
Hm
Abstain
Absent
\-
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Secretary, San Bernardino City Housing
Authority .
18
The foregoing resolution is hereby approved this
day of
,2005.
.19
20
Judith Valles, ChairPerson
San Bernardino City Housing Authority
. .21
22 Approved as to Fonn and Legal Content:
o
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By:
24
Agency Legal Counsel
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Exhibit "A"
~all:lm:et!rfuri'l/Jer: ..H.d.
All that certain real property situated In the County of San Bernardino, State of california,
described as follows: '. .
. . ,.
lots 22, 23 and 24, Block "AI< of the Daley Tract, In the City of San Bernardino, County of
San Bernardino, State of california, as per map recorded In Book 6, page(s) 34, of Maps, in
the office of the County Recorder of San Bernardino County.
Assessor's Parcel Number: 013$;'292-39-0-000
.~'I .
ClTA Guarantee FOml No. 1
UtIgatlon .Guarantee (Rev 12-16-93)
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F AIR POLITICAL PRACTICES COMMISSION
428 J Street . SUlle 620 . Sacramento, CA 95814-2329
(916) 322-5660 . Fax (916) 322-0886
May 19, 2005
Huston T. Carlyle Jr.
LEWIS BRISBOIS BISGAARD & SMITH LLF
!\~1i'rncys At Law .
650 East Hospitality Lane, Suite 600
San Bernardino, CA 92408
Re: Your Request for Advice
Our File No. A-05-081
Dear Mr. Carlyle:
This Jetter is in response to your request on behalf of Councilmember Rikke Van
Johnson for advice regarding the conflict-of-interest provi3ions of the Political Reform
Act (the "Act"), I
QUESTION
Is Councilmember Rikke Van Johnson disqualified from voting and making,
participating in making, or using or attempting to use his official position to influence the
outcome on agenda item(s) coming before the San Bernardino City Council/Community
Development Commission which involve real property owned by a relative who is also
the sole owner of a company which employs Councilmember Jahnson?
CONCLUSION
Councilmember Johnson is disqualified from taking any part in these decisions,
because it is reasonably foreseeable that these decisions would have a material financial
effect on his aunt and employer, Ms. Bonnie Johnson.
FACTS
Councilmember Rikke Van Johnson was elected.intheNovember 2003 election.
He is also the sole employee and the manager'of a bail bonds company wholly owned by
I Government Code sections 81000 - 91014. Commission regulations appear at Title 2, sections
18109-18997. of the California Code of Regulations.
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File No. A-OS-081
Page NO.2
his aunt, Ms. Bonnie Johnson, who is doing business under the name of Greenwood Bail
Bonds, a business located in the City.
Councilmember Johnson and his aunt are the only persons on the Greenwood Bail
Bonds payroll. Councilmember Johnson is a salaried, at-will employee, who is paid
twice a month. His annual salary is considerably in excess of$500.
In her individual capacity, Ms. Johnson owns a parcel of real property in the City,
which currently is the subject of purchase and sale negotiations and/or eminent domain
proceedings with the City's Redevelopment Agency. This property is located more than
500 feet from Councilmember Johnson's residence and his place of business, Greenwood
Bail Bonds.
The Redevelopment Agency's governing body is the San Bernardino Community
Development Commission, composed of the mayor and city council. Any agreement
negotiated relative to this property would require Commission ratification. If no agree-
ment is reached, authorization to initiate eminent domain proceedings would require
Commission approval after a public hearing. As previously noted, Councilmember
Johnson is a member of the Commission by virtue of his position on the city council.
The property at issue in these proceedings has been appraised at approximately
$75,000. Ms. Johnson, as owner of the property, is asking for $3~O,000. Councilmember
Johnson indicates that his salary and/or annual im,ome would not be affected by the -
money received by his aunt for the subject real property.
ANALYSIS
Your question concerns the Act's conflict-of-interest provisions. Section 87100
prohibits any public official from making, participating in making, or otherwise using his
or her official position to influence a governmental decision in which the official has a
financial interest. A public official has a "financial interest" in a governmental decision,
within the meaning of the Act, ifit is reasonably foreseeable that the governmental
decision will have a material financial effect on one or more of the official's economic
interests. (~87103; reg. 18700(a).) The Commission employs an eight-step analysis for
determining whether an official has a disqualifying conflict of interest in a governmental
decision. (Regulation 18700(b)( 1 )-(8).)
Step One: Is Councilmember Johnson a Public Official?
The Act's conflict-of-interest provisions apply only to "public officials."
(~~ 87100, 87103; regulation 18700(b)(l).) A "public official" is "every member,
officer, employee or consultant of a state or local government agency...." (~82048.) As a
member of the city council, Councilmember Johnson is a public official subject to the
Act's conflict of interest rules.
.i
File No. A-05-081
Page No.3
Step Two: Will Councilmember Johnson Be Making, Participating In Making, Or
Using His Official Position To Influence A Governmental Decision?
The Act's conflict of interest provisions come into play only when a public
official makes, participates in making, or in some way attempts to use his or her official
position to influence a governmental decision in which the official knows - or has reason
to know - that he or she has a financial interest. (~871 00.)
A public official "makes a governmental decision" when the official, acting
within the authority of his or her office or position, votes on a matter, obligates or
commits his or her agency to any course of action, or enters into any contractual
agreement on behalf of his or her agency. (Regulation 18702.1.) A public official
"participates in a governmental decision" when, acting within the authority of his or her
position and without significant intervening substantive review, the official negotiates,
advises or makes reco'mmendations to the decisionmaker regarding the governmental
decision. (Regulation 18702.2.) A public official is attempting to use his or her official
position to influence a decision if, for the purpose of influencing, the official contacts or
appears before any member, officer, employee, or consultant of his or her agency.
(Regulation 18702.3.)
Your question presupposes that, unless disqualified by conflict of interest rules,
Councilmember Johnson will make, participate in making, or us~his official position to
influence a governmental decision regarding negotiation of a real property purchase-
agreement and/or an eminent domain proceeding against the property.
Step Three: What Are Councilmember Johnson's Economic Interests?
There are six kinds of economic interests recognized under the Act. Those
potentially relevant to the facts you describe are the following:
. A public official always has an economic interest in any source of income, including
promised income, which aggregates to $500 or more within 12 months prior to the
decision (~87103(c); Reg. 18703.3).
. A public official has an economic interest in any business entity in which he or she is
an officer, director, partner, trustee, employee, or holds any position of management.
(S 87103(d); Reg. 18703.1.)
. A public official has an economic interest in his or her personal finances, including
those of his or her immediate family - this is the "personal financial effects" rule
(~ 87103; Reg. 18703.5).
You advise that Councilmember Johnson is employed by Greenwood Bail Bonds,
a business entity paying him a salary "considerably in excess" of $500 per year. It seems
clear then that Councilmember Johnson has an economic interest in this business entity.
File No. A-OS-081
Page No.4
You have not offered any details on the legal form of this business entity, whether
it is a wholly-owned corporation or a sole proprietorship, for example. But you indicate
that the business is wholly owned by Ms. Johnson, and your account of the facts does not
suggest that any person other than Ms. Johnson directs or controls its business decisions.
You describe Councilmember Johnson as an at-will salaried employee, and you state that
there is no third person on the payroll.
Assuming that Ms. Johnson is the sole owner of Greenwood Bail Bonds and that
she; is the person who controls the business, we must conclude that Ms. Johnson herself is
a source of income to Councilmember Johnson. The Commission has long advised that
when the ownership and control of a business entity is vested in a single person, that
person herself will be regarded as a "source of income" under the Act in addition to the
business entity she owns and operates. See generally In re Nord, (1983) 9 FPPC Ops. 6,
and the Korb Advice Letter, No. A-99-113.
You have told us that Councilmember Johnson's salary and annual income will
not be affected by any decision on Ms. Johnson's real property, and you have not offered
any other reason to believe that this decision would have a personal financial effect on
Councilmember Johnson or members of his immediate family, so we will not consider
"personal financial effects" further. 2
Step Four: Will Councilmember Johnson's Economic Interest~' Be Directly Or
Indirectly Involved in Governmental Decisions?
The Act's conflict of interest rules distinguish between economic interests that are
directly involved in govenunental decisions, and those that are only indirectly invol~ed.
Regulation 18704.1 (a) provides:
"(a) A person, including business entities, sources of
income, and sources of gifts, is directly involved in a decision
before an official's agency when that person, either directly or by
an agent:
(1) Initiates the proceeding in which the decision will be
made by filing an application, claim, appeal, or similar request or;
(2) Is a named party in, or is the subject of, the proceeding
concerning the decision before the official or the official's agency.
A person is the subject of a proceeding if a decision involves the
issuance, renewal, approval, denial or revocation of any license,
permit, or other entitlement to, or contract with, the subject
person. "
2 "Immediate family means the spouse and dependant children." (982029.) Financial effects on
his aunt, Ms. Johnson, therefore would not disqualify Councilmember Johnson as "personal financial
effects. "
00
File No. A-05-081
Page No.5
In all other cases, persons that are sources of income will be "indirectly" involved
in the decision. As you describe the circumstances, Ms. Johnson will be a named party
in, and her real property the subject of, any negotiation for purchase of the property, and
of any subsequent decision regarding eminent domain proceedings against the property.3
Ms. Johnson and her real property are therefore directly involved in the govenunental
decisions you describe.
Steps Five and Six: At What Point Does The Effect Of A Governmental Decision
On These Economic Interests Become Material, and Is it Reasonably Foreseeable
That The Effects Will Be Material?
The next step involves determining the materiality standard applicable to
Councilmember Johnson's economic interests, as established by regulations 18705 et seq.
After determining the level of economic effect considered to be "material" for each
economic interest, we must then decide whether it is "reasonably foreseeable" that the
effect of a given decision on a given economic interest will be "material." (Regulation
18700(b)(6).) An effect is considered "reasonably foreseeable" if it is "substantially
likely." (Regulation 18706; In re Thorner (1975) 1 FPPC Ops. 198.) Whether the
financial consequences of a govenunental decision are "substantially likely" at the time
the decision is made depends on the specific facts surrounding the decision. A financial
effect need not be a certainty to be considered reasonably foreseeable. On the other hand,
if an effect is only a mere possibility, it is not reasonably foreseeable. (Id.) .
Absent exceptions which do not apply to the circumstances you have described,
any financial effect on a source of income which is a business entity directly involved in
a govenunental decision is presumed to be material (regulation 18705.I(b)(I)). Asto
Ms. Johnson, any financial effect is deemed to be material under regulation 18705.3(a).
The presumption regarding effects on the business entity may be rebutted by contrary
evidence. However, it is Ms. Johnson, not Greenwood Bail Bonds, who owns the real
property at issue. Our focus is thus on Ms. Johnson, and Regulation 18705.3(a)
conclusively provides that any financial effect on her would be material. 4
Since the inevitable outcome of any transfer of Ms. Johnson's real property,
whether by purchase under a negotiated agreement or through eminent domain, is a
payment to Ms. Johnson ranging from $75,000 to $350,000 in exchange for her rights in
3 When a parcel of real property is the subject of the kinds of governmental decisions at issue here,
the owner of that real property is necessarily a party to the proceedings and thus is directly involved in that
decision. (See, e.g., the Hallinan Advice Letter, No. A-OO-282.)
4 There is also a separate materiality provision which applies in cases where there is a "nexus"
between duties owed by a public official to a source of income and to the official's public agency. This rule
is applicable when a public official is paid by a private person to accomplish some action within the
official's public decisionmaking authority. (Regulation l8705.3(c).) However, the nexus standard does not
apply in the present case since it does not appear that Councilmember Johnson is being paid by
Ms. Johnson to assist in her real estate sales negotiations or any subsequent eminent domain proceedings.
.,~.
File No. A-05-081
Page No.6
the real property, it is reasonably foreseeable that governmental decisions on the transfer
would have a material financial effect on Ms. Johnson. Councilmember Johnson then
would have a conflict of interest in such decisions.
Steps Seven and Eight: Exceptions.
An official who might otherwise have a conflict of interest in a particular decision
may still participate in that decision if the circumstances are such that an exception to the
conflict of interest rules might apply. The "public generally" exception may be invoked
when the financial effect of a decision upon a public official's economic interests is not
distinguishable from the effect of the decision on a significant segment of the public
generally. (Section 87103; regulation 1 8707(a).) Your account of the facts does not
suggest that the "public generally" exception might apply in this case.
An official with a conflict of interest may still participate in the decision under the
"legally required participation" exception. This is an exception that typically applies
when an agency is unable to assemble a quorum of its members without participation of
an official who has a conflict of interest. Again, you have not suggested that this
exception need be considered at present.
If you have other questions on this matter, please contact me at (916) 322-5660.
Sincerely,
Luisa Menchaca
General Counsel
By:
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Lawrence T. Woodlock
Senior Counsel, Legal Division
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LEWIS BRISBOIS BISGAARD & SMITH LLP
ATTORNEYS AT LAW
650 EAST HOSPITALITY LANE, SUITE 600, SAN BERNARDINO, CA 92408
PHONE: 909.387.1130 I FAX: 909.387.1138 I WEBSITE: www.1bbs1aw.com
April 21, 2005
Ms. Luisa Menchaca
General Counsel
Fair Political Practices Commission
428 J Street, Suite 620
Sacramento, CA 95814
Re: Request for Formal Written Advice Provided Pursuant to Government Code
Section 83114(b)
Dear Ms. Menchaca:
The law firm of Lewis Brisbois Bisgaard & Smith and the undersigned attorney have been
retained by the City Council of the City of San Bernardino/San Bernardino Community Development
Commission to seek a formal written advice letter from the Fair Political Practices Commission, as
provided pursuant to Government Code ~83114(b), on behalf of the elected San Bernardino City
Councilman for the Sixth Ward, Mr. Rikke Van Johnson. Mr. Johnson also joins and authorizes this
request on his behalf.
QUESTION PRESENTED
Is Councilman/Commission member Rikke Van Johnson disqualified from voting and
making, participating in making, or using or attempting to use his official position to influence the
outcome on agenda item(s) before the San Bernardino City Council/San Bernardino Community
Development Commission which involve real property owned by a relative who is also the sole
owner of a company which employs Mr. Johnson based upon the following facts?
FACTS PRESENTED
Councilman Rikke Van Johnson was elected to the San Bernardino City Council at the
November, 2003 City municipal election. He was sworn into office onMarch 1,2004. At all times
relevant herein, Mr. Johnson is the sole employee, and is the manager of a bail bonds company
solely owned by his aunt, Ms. Bonnie Johnson, who is doing business under the name of Greenwood
Bail Bonds. Mr. Johnson and his aunt are the only people on the Greenwood Bail Bonds payroll.
Greenwood Bail Bonds is located in the City of San Bernardino.
Los~ SANFi<ANaSCO SANDu:oo ClRANGECouNrY IN1ANDEMPlRE SACRAMENI'O NEW YORK LAsVEGAS PHoENIX TucsoN
213.250.1800 415.362.2580 619.233.1 006 714.545.9200 909.387.1130 916.564.5400 212.232.1300 702.893.3383 602.385.1040 520.202.2565
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LEWIS BRISBOIS BISGAARD & SMITH LLP
Ms. Luisa Menchaca
April 21, 2005
Page 2
Mr. Johnson is a salaried, at-will employee, who is paid twice a month. His annual salary
is considerably in excess of $500. Mr. Johnson is paid by direct deposit through transfer of funds
from the account of Greenwood Bail Bonds at one financial institution into his personal account
which is with another financial institution.
Ms. Bonnie Johnson, in her capacity as an individual, owns a piece of real property in the
City of San Bernardino, which is the subject of real property negotiations/eminent domain
proceedings with the Redevelopment Agency of the City of San Bernardino ("Redevelopment
Agency"). The governing body of the Redevelopment Agency is the San Bernardino Community
Development Commission ("Commission"), which consists oIthe same identical individuals who
are the Mayor and Common Council of the City of San Bernardino.
The subject real property is located more than 500 feet from Mr. Johnson's residence and
his place of business. Completion of successful negotiations on said real property would require
subsequent Commission approval; failing that, authorization to initiate eminent domain proceedings
against said real property would require prior Commission approval, and a hearing before such
approval action could be voted upon. Mr. Johnson, as previously noted, is a member of the
Commission by virtue of being the elected San Bernardino City Councilman for the Sixth Ward.
Relative to the subject property, this matter was on the Commission agenda for its April 4,
2005 meeting as a hearing and request to initiate eminent domain proceedings. The matter was
continued for the purpose of sending this letter and receiving the requested formal written advice.
The subject real property has been appraised at approximately $75,000. Ms. Bonnie Johnson is
asking for $350,000 from the Commission. Money received by Ms. Bonnie Johnson for said
property would be hers, as an individual. Mr. Johnson indicates that his salary and/or annual
income would not be affected by the money received by his aunt for the subject real property.
Relative to preparing this request, the undersigned has reviewed various FPPC Regulations
and the Conflict of Interest, Office of the Attorney General, 2004 Edition. If any additional
information is necessary in order to issue the requested formal written advice letter on the question
presented, please do not hesitate to have the undersigned contacted at the address and/or telephone
number indicated at the top of the first page of this letter. Thank you.
cc: Mr. Rikke Van Johnson
Councilman, 6th Ward
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MAY-02-05 09:51
9098853187
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9098853187
R-353
Job-299
May-02-05 09:52am From-LEWIS BRISBOIS BISGARO & SMITH LLP
T-518 P.02/02 F-740
F AIR POLITICAL PRACTICES COMMISSION
4111 J SUccI . S..II" 62u . Sacrlllllel1lo. CA 95814-1319
(916) 322-5llbU . F~~ (!lllOl 322-0886
Apnl 27. 2005
Huston T. Carlyle Jr.
Lewis Brisbois Bisgaard & Smith LLP
Attorney's At Law
65U East Hospitality Lane, Suite 600
San Bernardino, CA 92408
Re; Your Request for Advice
Our File NQ. O!M)81
Dear Mr. Carlyle:
y our l~ter requestmg adVlce lmGer the Political Reform Act was recelvt:d by the fair Pulitical
Practicc:s Commission ("Commission") on April 25, 200S. If you ha\le any questions about this Tcquc:st.
you may contact Laurence T. Woodlock. the staff 4;:01.Q1liI:1 wl\Q bas Jx;e:u assigned to your question at (916)
322-5660.
We uy to ansWeT all advice: requestS promptly. Therefore, LlIllt'.S$ your request poses panicularly
complex Icpl qu(:Stions, or unless more information is needed. you should exp('c1 a response within 21
working days if your request seeks tonnal written advice.
Howevc:r. due to staff shortagc=s, the: Commission may nOt be:: abl~ to respond to this request for
wrinc:n advice within tnt: 21 working days.l The time ptriod may vaJY. depeDding on the nature of the
request, lc:g-41 m18lysis required. and the date by which 1II1 the: needed infotmation is provided by yO\! to
Commission staff. if more infonnation is needed. we w1l1 collUlCt you to advise you as to the infonlUllion
needed, and we will strive to respond to your request as soon as possibl~. If your request is for informal
assistance, an answer will be provided as quickly as po$sible. (Sc:c: CommiSSion Regulation 18329 (2 CaL
Code of Regs. Sec. 18329).)
YOll also should be aware that your letter- and our rc=spollSf are public rc=corQ:i, which may be
discloseQ to the public upQn rec~ipt of a proper rc:.q~t tor chsclosurc. for general qLiQ;tions about Ihe
stat\.lS of your requ~t, you may contllCt Rene Pt:lUlis also at (916) 322-5660
v~'nul)' )'~.
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Lui~ Menchaca (t" d.S '
Gener41 Counsel ~
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** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
Moeting Dote (D"e T' I., l2. ' Q -( Item #
Vote: Ayes Nays
Change to motion to amend original documents D
If ~q ":t'lfion#_S61fAhbOg::,
Abstain~ Abse~t
Companion Resolutions
NullNoid After: days /
Resolution # On Attachments: D Note on Resolution of attachment stored separately: D
>!
PUBLISH D POST D RECORD W/COUNTY D
Dote Sent to May"" {; I} f; df" -
Date of Mayor's Signature: 1)--'1/ tpJ __
/:
Date of Clerk/CDC Signature: br )7/ () \
By:
Reso. Log Updated: .~/
Seal Impressed: ~
Date Memo/Letter Sent for Signature:
151 Reminder Letter Sent:
Date Returned:
2nd Reminder Letter Sent:
Not Returned: D
i
~
Request for Council Action & Staff Report Attached:
Updated Prior Resolutions (Other Than Below):
Updated CITY Personnel Folders(64~~, 6429,6433, 10584, 10585, 12634):
Updated CDC Personnel Folders (5551):
....-
Updated Traffic Folders (3985, 8234, 655,92-389):
YeS~~NO By_
Ye,---"- NO~_
Yes No By_
No .:::~_)~{
No...L By_
Yes
Yes
Copies Distributed to: ~/
;:, Animal Control D EDA Information Services D
~
"~ City Administrator D Facilities D Parks & Recreation D
;!
City Attorney D Finance D Police Department D
Code Compliance D Fire Department D Public Services D
Development Services D Human Resources D Water Department D
Others:
Notes:
//
Ready to File: V Datefl / leer
Revised 12/18/03