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HomeMy WebLinkAbout28- Development Services CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTIO R l G i N A L From: Valerie C. Ross, Director Subject: An Ordinance amending Development Code Section 19.08.020, Table 08.01 to Dept: Development Services permit emergency shelters within the Emergency Shelter Overlay District in the Date: August 12, 2009 OIP, Office Industrial Park land use district, and adding Area 6 to the Emergency Shelter Overlay District as provided in Section 19.10-E.020. MCC Date: August 17, 2009 Synopsis of Previous Council Action: 10-20-2008 Mayor and Council adopted Urgency Ordinance No. MC-1288, establishing the Emergency Shelter Overlay District. 11-25-2008 Mayor and Council adopted Urgency Ordinance No. MC-1290, amending and extending MC-1288, amending the Development Code and establishing 5 Areas within the Emergency Shelter Overlay District. 3-16-2009 Mayor and Council considered the appeal by Human Potential Consultants of the Planning Commission denial of CUP No. 08-21. The appeal has been continued pending a search for an alternative site in the Emergency Shelter Overlay District. Recommended motion: That the item be referred to the Planning Commission for consideration as a Development Code Amendment. Valerie C. Ross Contact Person: Terri Rahhal, City Planner Phone: 3330 Supporting data attached: None Ward(s): City Wide FUNDING REQUIREMENTS: Amount: N/A Source: (Acct. No.) Acct. Description: Finance: Council Notes: Agenda Item No. 8-)1-09 &M7�'&&k4�0 i 2 ORDINANCE NO. 3 AN ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING SAN BERNARDINO MUNICIPAL CODE (DEVELOPMENT CODE) SECTION 19.08.020, 4 TABLE 08.01, MODIFYING THE LAND USE DISTRICTS OVERLAIN BY THE EMERGENCY SHELTER OVERLAY DISTRICT AND ADDING AREA 6 TO THE 5 AREAS DESIGNATED WITHIN THE EMERGENCY SHELTER OVERLAY DISTRICT 6 AS PROVIDED IN DEVELOPMENT CODE SECTION 19.10-E.020. 7 The Mayor and Common Council of the City of San Bernardino do ordain as 8 follows: 9 WHEREAS, Section 40(z) of the City Charter vests the Mayor and Common Council 10 with the power to make and enforce all laws and regulations with respect to municipal affairs, 11 12 subject only to the restrictions and limitations provided in the Charter or by State law; and 13 WHEREAS, Human Potential Consultants LLC ("HPC") has filed an appeal of the 14 Planning Commission's denial of Conditional Use Permit No. 08-21 to convert an existing 6,747 15 square foot church building into a 56-bed emergency homeless shelter (later reduced to a 36-bed 16 emergency homeless shelter by HPC) at 840 North Sierra Way; and 17 WHEREAS, the safety of women and children staying at Option House Inc.'s domestic 18 19 violence shelter, located in close proximity to 840 North Sierra Way, would be jeopardized if 20 CUP No. 08-21 is approved; and 21 WHEREAS, HPC has requested that the Mayor and Common Council consider the 22 property located at 673 South Waterman Avenue as an alternative site for the emergency 23 homeless shelter HPC proposed to establish at 840 North Sierra Way; and 24 WHEREAS, 673 South Waterman Avenue is a 0.86-acre parcel identified as APN 0280- 25 021-45, with a vacant 9,500-square foot warehouse building located in the OIP, Office Industrial 26 Park land use district; and 27 28 1 1 WHEREAS, 673 South Waterman Avenue is a fenced site on a major arterial street, 2 isolated from sensitive land uses, with convenient access to transit and other services; and 3 WHEREAS, on October 20, 2008, the Mayor and Common Council adopted Urgency 4 5 Ordinance No. MC-1288 (incorporated herein by reference) which created the Emergency 6 Shelter Overlay District to permit the establishment of emergency shelters without requiring 7 approval of a discretionary Conditional Use Permit; and 8 WHEREAS, on November 25, 2008, the Mayor and Common Council adopted Urgency 9 Ordinance No. MC-1290, which amended and extended MC-1288, amended the Development 10 Code and established five areas(Areas 1 —5) within the Emergency Shelter Overlay District; and 11 12 WHEREAS, HPC has represented to the City that if HPC is granted a Development 13 Permit to establish an emergency homeless shelter at 673 South Waterman Avenue, that HPC 14 will withdraw its appeal and application to establish an emergency homeless shelter at 840 North 15 Sierra Way; 16 17 18 19 20 21 22 23 24 25 26 27 28 2 1 NOW THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN 2 BERNARDINO DO ORDAIN AS FOLLOWS: 3 4 Section 1. The Mayor and Common Council find that the above-stated Recitals are true 5 and hereby adopt and incorporate them herein. 6 Section 2. San Bernardino Municipal Code (Development Code) Section 19.08.020, 7 Table 08.01, Industrial Districts List of Permitted Uses, is hereby amended to allow Emergency 8 Shelters as a permitted use, requiring a Development Permit Type 1 in the OIP, Office Industrial 9 10 Park land use district pursuant to Development Code Chapter 19.10-E (See Exhibit A). 11 Section 3. Area 6 is hereby added to the five Areas previously designated within the 12 Emergency Shelter Overlay District as provided by Development Code Section 19.10-E.020 and 13 Urgency Ordinance No. MC-1290. Area 6 consists of a 0.86-acre parcel identified as APN 0280- 14 021-45, located at 673 South Waterman Avenue, as depicted on the maps attached and 15 incorporated herein as Exhibit B. 16 17 Section 4. This Ordinance is based upon the recitals and findings set forth above, and the 18 accompanying Staff Report and the attachments to this Ordinance, and is adopted pursuant to the 19 authority granted to the City of San Bernardino in Article 11, Section 7 of the California 20 Constitution, and Section 40(z) of the Charter of the City of San Bernardino. 21 Section 5. Compliance with the California Environmental Quality Act. The Mayor and 22 Common Council find that this Ordinance is not subject to the California Environmental Quality 23 24 Act (CEQA) pursuant to Section 15061(b)(3) of the CEQA Guidelines, California Code of 25 Regulations Title 14, Chapter 3, because the activity will not result in a direct or reasonably 26 foreseeable indirect physical change in the environment. 27 28 3 I Section 6. Severability. If any section, subsection, subdivision, sentence, clause or 2 phrase in this Ordinance or any part thereof is for any reason held to be unconstitutional, invalid 3 or ineffective by any court of competent jurisdiction, such holding shall not affect the validity or 4 effectiveness of the remaining provisions of this Ordinance, or any part thereof The Mayor and 5 6 Common Council hereby declare that each section of this Ordinance would have been adopted 7 irrespective of the fact that any one or more subsections, subdivisions, sentences, clauses or 8 phrases may be declared unconstitutional, invalid, or ineffective. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 1 AN ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING SAN 2 BERNARDINO MUNICIPAL CODE (DEVELOPMENT CODE) SECTION 19.08.020, TABLE 08.01, MODIFYING THE LAND USE DISTRICTS OVERLAIN BY THE 3 EMERGENCY SHELTER OVERLAY DISTRICT AND ADDING AREA 6 TO THE AREAS DESIGNATED WITHIN THE EMERGENCY SHELTER OVERLAY DISTRICT 4 AS PROVIDED IN DEVELOPMENT CODE SECTION 19.10-E.020. 5 I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor and 6 Common Council of the City of San Bernardino at a meeting thereof, held 7 on the day of 2009, by the following vote, to wit: 8 9 COUNCIL MEMBRS: AYES NAYS ABSTAIN ABSENT 10 ESTRADA 11 BAXTER 12 BRINKER 13 SHORETT 14 KELLEY 15 16 JOHNSON 17 MC CAMMACK 18 19 City Clerk 20 The foregoing Ordinance is hereby approved this_day of 2009. 21 22 23 PATRICK J. MORRIS, Mayor City of San Bernardino 24 Approved as to form: JAMES F. PENMAN 25 City Attorney 26 27 By: 28 5 INDUSTRIAL DISTRICTS- 19.08 EXHIBIT A CHAPTER 19.08 INDUSTRIAL DISTRICTS 19.08.020 PERMITTED, DEVELOPMENT PERMITTED AND CONDITIONALLY PERMITTED USES The following list represents those primary uses in the manufacturing/industrial zoning districts which are Permitted(P), subject to a Development Permit(D)or a Conditional Use Permit(C): TABLE 08.01 INDUSTRIAL DISTRICTS LIST OF PERMITTED USES MC 88812/6/93 LAND USE ACTIVITY CH OIP IL IH IE 1. Accessory structures/uses typically appurtenant to a D D D D D principally permitted land use activity; 2. Agricultural Production-crops; — D D 3. Agricultural Services; D — D D — 4. Assembling,cleaning,manufacturing,processing,repairing D D' D D — or testing of products including automotive related(except dismantling)and welding and excluding explosives, conducted entirely within an enclosed structure except for screened outdoor storage areas; 5. Assembling,cleaning,manufacturing,processing, repair of D D — products,research, storage,testing or wholesale land uses (except explosives)with a portion of the operation(other than storage)occurring outside of the enclosed structure: A. Outside land uses in the CH and 1H districts within 150 feet of a residential land use district; C — — C — 6. Concrete batch plants,processing of minerals and — — — C C aggregate and other related land uses, not including extraction activities; 7. Crematory; D — D D — 8. Dwelling unit for a full-time security guard and family; D D D 9. Educational Service, including day care; D D D C — 10. Emergency Shelters Dz D2 Dz —11. Entertainment/Recreational Uses: A. Adult Entertainment C — C — — INDUSTRIAL DISTRICTS- 19.08 LAND USE ACTIVITY CH OIP IL IH IE B. Auditoriums,Convention Halls and Theaters C C C. Miscellaneous Indoor; and D C D D D. Miscellaneous Outdoor C C C C 12. Financial; D D — — — 13. Fuel Dealers; C — C D — 14. Funeral Parlors/Mortuaries; D — D D — 15. Gasoline Service Stations; D — D D — 16. Heliports/Helipads; C C C C C 17. Impound Vehicle Storage Yards(with or without towing) C — C D — 18. Membership organizations, including religious facilities, D D D meeting halls,and fraternal lodges; 19. Mining/Extraction, including aggregate,coal, gas,metal — — — — C and oil; 20. Mobile Home Dealers(sales and service); D — D D — 21. Offices/Services(administrative and professional); D D D — — 22. Outdoor contractor's, lumber, and rental yards and storage D — D D D areas for building supplies; 23. Outdoor Horticultural Nurseries; D — D D D 24. Parking Lots; D D D D D 25. Personal Services; D D3 D3 — — 26. Pipelines(As defined by Section 19.20.030[12][E]or as C C C C C superseded by State or Federal law); 27. Public utility uses,distribution and transmission D D D D D substations and communication equipment structures; 28. Publishing(Printing Plants; D D D D — 29. Railroad Yards; — — — D — 30. Recycling Facilities; (In compliance with Section 19.06.030[2][P]) 31. Research and Development, including laboratories; D D D D — 32. Retail Commercial; D D3 D3 — — 33. Salvage and Wrecking(dismantling)yards; — C C 34. Salvage and Wrecking Facilities(completely within an C — C C — enclosed structure); 35. Social Service Centers; C4 — — 36. Swap Meets; C — C C C INDUSTRIAL DISTRICTS- 19.08 LAND USE ACTIVITY CH OIP IL III IE 37. Towing Services; D — D D — 38. Transportation/Distribution; D — D D — 39. Truck Stops; C C — 40. Veterinary Services/Animal Boarding; D — D 41. Warehousing and Wholesaling, including self-service mini- D — D D — storage;and 42. Other A. Antennas, Satellite and Vertical; D D D D D B. Cleaning/Janitorial; D D D — — C. Copy Centers/Postal Service Centers/Blueprinting; D D D — — D. Equestrian Trails; P P P P P E. Fences/Walls; D D D D D F. Police/Fire Protection; D D D D D G. Single-Family Residential P P P P P (Existing-MC 823 3/2/92);and H. Temporary Uses(Subject to[T]Temporary Use Permit) T T T T T 'Except auto related. 2Permitted in the Emergency Shelter Overlay District,pursuant to Chapter 19.10-E. 3 Incidental to a primary use,and contained within a primary structure(15%max.). °Commission recommends to Council for final determination. Other similar uses which the Director finds to fit within the purpose/intent of the zones, in compliance with Section 19.02.070(3). EXHIBIT B E OF SAN BERNARDINO NING DIVISION erlay District Area 6 NORTH --- DRAKE AREA 6 1 1 !z w i �J a z Q LL DRAKE Ix LU I 1 -� - - - CENTRAL AVE 1114 ' CITY OF SAN BERNARDINO Development Services Department Interoffice Memorandum TO: Mayor and Common Council FROM: Valerie C. Ros , irector THROUGH: Charles McNeely, City Manager SUBJECT: Urgency/Regular Ordinance adding area 6 to the areas designated within the Emergency Shelter Overlay District as provided in Development Code Section 19.10-E.020. DATE: July 30, 2009 COPIES: Rachel Clark, City Clerk; James F. Penman, City Attorney Background: At the July 20, 2009 Mayor and Common Council meeting, the discussion on the Emergency Shelter Overlay District and the continued appeal hearing on Conditional Use Permit No. 08-21, the appeal filed by Human Potential Consultants, LLC, ("HPC") of the Planning Commission's denial of a CUP to convert an existing 6,747 square foot church building into a 56-bed homeless shelter with related support facilities and office space located at 840 North Sierra Way in the RM, Residential Medium, land use district were continued to August 3, 2009. The staff report identified two sites that could be considered for establishment of a homeless facility as requested by Human Potential Consultants. Those sites were 225 W. Orange Show Lane and 673 S. Waterman Avenue. Staff received a fax dated July 29, 2009 from Sidley Austin LLP, the law firm representing Human Potential Consultants in which staff was notified that 225 W. Orange Show Lane site was no longer an option. However, the site at 673 S. Waterman Avenue is still a viable option. As noted in the July 20, 2009 staff report to the Mayor and Common Council, 673 S. Waterman Avenue consists of a 0.86 acre parcel (APN 0280-21-45), with a 9,500 square foot warehouse- type building in the OIP, Office Industrial land use district. The OIP land use district is adjacent to both sides of Waterman Avenue from south of Orange Show Road to north of Mill Street. The IL, Industrial Light land use district abuts the OIP on both sides of Waterman Avenue. Unlike the Orange Show Lane site, this building is a stand-alone, self-contained site, similar to many of the uses in the vicinity. Bus service is available on Waterman Avenue. This site is more visible than the Orange Show Lane site, however, that can be seen as a positive attribute. The higher visibility should reduce the potential for real and/or perceived problems associated with a homeless shelter. This sit is also not located in close proximity to sensitive uses. Agenda Item No. 26 PC Memo 07.30.09 Page 2 of 2 Financial Impact: Undetermined. Recommendation: That the item be continued to August 17, 2009 and that Planning staff be directed to prepare an ordinance to allow homeless facilities at 673 S. Waterman Avenue, subject to the City Attorney's determination as to whether to proceed with a regular or urgency ordinance or both. Attachments: July 29, 2009 Fax Transmittal from Sidley Austin LLP 07/29/2009 04 : 32 : 'Lti PM 5ialuy or.uicy ��b� SIDLEY AUSTIN UP BEIJING GENEVA SAN FRANCISCO T 555 WEST FIFTH STREET BRUSSELS HONG KONG SHANGHAI SIDL 2188988600FXA 900[3 DALLAS NEW ANGELES WASHINGTON.DC dem se.browndlisidl ey.com (213)898$882 FOUNDED 1888 FACSIMILE TRANSMISSION FORM Date: July 29,2009 No. of pages including cover sheet: 4 To: Henry Em eno,Es 909 384-5238 O To: Terry Rahhal 909 384-5080 �? G G To: Lou Schne (909)888-9413 l a .D To: Rachel Clark 909 3845158 �O From: Denise D. Brown Ext. 46882 Floor: 41 COMMENTS: Appeal of the Planning Commission's Denial of Human Potential Consultants' Application for Conditional Use Permit No. 08-21 (Appeal No. 08-07) IRS Circutar 230 LTisclosere: to comply with certain U.S.Treasury regulations,we inform you this,unless expressly stated otherwise,any US. federal tax advice contained in this communication,including attachments,was not intended or written to be used,and cannot be used,by any taxpayer for the purpose of avoiding my penalties that maybe imposed on such taxpayer by the Internal Revenue Service. in addition,tf any such tax advice is used or referred to by other parties in promoting,mmketing or recommending any partnership or other entity,investment plan or srrangement,then(i)the advice should be colu rmed as written in connection with the promotion or marketing by others of the transaction(s)or matter(s)addressed in this communication and(ii)the taxpayer should seek advice lased cm the taxpayer's particular circumstances from an independent(ax advisor. Problems with this transmission should be reported to: (213)8966-i THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE WDIVIDUAL(S)OR ENTITY(IES)TO WHICH IT IS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED,CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT OR TTIE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE MESSAGE TO THE INTENDED RECIPIENT,YOU ARE HEREBY NOTIFIED IHAT ANY DIS5EMDNATION,DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUN14CA'FIUN IN ERROR,NOTIFY LS IMMEDIATELY BY'I ELE PHONE AND RETURN THE ORIGINAL MESSAGE TO US AT THE ABOVE ADDRESS VW THE U.S.POSTAL SERVICE. siss,Ausun w'is a imudaiitln pamwm4 mist w„session» aln..sea Avnn Ps+aamP. SIDLEY AUSTIN Ua BEIJING LOS ANGELES 555 WEST FIFTH STREET BRUSSELS NEW YORK S y 51L Y�1 (2013)898 5800 FAX 90013 FRANKFURT SINNNO SINGAPORE CHICAGO SAN GENEVA SYDNEY HONG KONG TOKYO LONDON WASHINGTON,D.C. InsvMQsiCIeY.c= (213)896-8689 FOUNDED 1888 July 29, 2009 By Fax and FedEx Councilmember Esther Estrada City of San Bernardino 300 North D Street San Bernardino, California 92418 Re: Appeal of the Planning Commission's Denial of Human Potential Consultants' Application for Conditional Use Permit("CUP")No 08-21 (Anneal No. 08-07) Dear Councilmember Esther Estrada: As you know,we represent Hunan Potential Consultants("HPC") in the above- referenced appeal. At the April 6, 2009,Mayor and Common Council meeting,the Council directed HPC to consult with City staff in identifying an alternate location for HPC's proposed emergency shelter. The Common Council represented that it was in the City's best interest to find an altemativc site so as to address concerns about sensitive uses near the North Sierra Way location. Moreover,the Council recognized that a denial of HPC's CUP for the North Sierra Way site would likely result in litigation.) For the past four months,HPC has collaborated with the City Attorney's Office,the Planning Department, and the Economic Development Agency to identify alternate locations. Throughout this process,HPC has contemplated and analyzed over thirty sites with City staff. Lou Schnepp of the Economic Development Agency and Liz Roubidoux, HPC's real estate agent from NAI Capital, selected sites for discussion. Every identified potential site was additionally vetted by the City Attorney's Office and the Planning Department. HPC and City staff have scheduled numerous meetings and conference calls to discuss these potential sites. I Smote Bill 2 prohibits local governments from taking discretionary action to disapprove emergency shelters unless one of five narrow exceptions is met. These Housing Accountability Act exceptions are: 1)die jurisdiction has adopted a revised and compliant housing element and has met or exceeded its need for emergency shelter according to its annual and seasonal need assessment in its housing element;2)the project would have"a specific,adverse impact upon die public health or safety and there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact without rendering the development financially infeasible;"3)the denial of the project is required for compliance with state or federal law;4) the project is proposed on land that is zoned for agriculture or resource preservation;5)the project is"inconsistent with both the jurisdiction's zoning ordinance and general plan land use designation as specified in any element of the general plan as it existed on the date the application was deemed complete,and thejurisdiction has adopted a revised housing element."Cal.Gov't Code§65589.5(d). Silly 4uCn ii o'u a linile!IubJiry puMUYp Onniaro n rIRlrCenxM,otly,SHUy AUSYn ptNteSMOf SIDLE Councilmember Esther Estrada July 29, 2009 Page 2 This search culminated in the selection and presentation of two sites to the Mayor and Common Council at the July 20,2009 meeting: 225 West Orange Show Lane and 673 South Waterman Avenue. The City Attorney's Office and Planning Department identified the site at 225 West Orange Show Lane as the City's top choice for an alternate site. As directed by City staff,HPC engaged in extensive negotiations with the property owner of 225 West Orange Show Lane to agree on the terms of a lease. However, less than 72 hours before the July 20, 2009 Mayor and Common Council meeting, negotiations with the property owner collapsed. It quickly became apparent that the property owner was being pressured by neighboring tenants in the industrial development to reject the contract. While the site at 225 West Orange Show Lane is no longer an option, HPC remains hopeful that the four-month long search for an alternate site will come to fruition. The site at 673 South Waterman Avenue remains an ideal alternative. As explained in the July 16,2009, Staff Report authored by the Development Services Department,the 673 South Waterman site is located in the OIP, Office industrial Park Land use district. The site contains a 9,570 square foot stand-alone building with a completely fenced-in yard. The building is comprised of a conference and training room, a reception area,a kitchen, offices, restrooms, and a 6,800 square foot open space that can easily be converted into dormitory-style living. Furthermore,the 673 South Waterman Avenue site is isolated from sensitive uses. The property is contiguous to the former Emergency Shelter Overlay District adopted by the City on or about October 2008. Surrounding properties to the north,south, and west of the site are non- residential and are zoned Light Industrial (IL)and Office Industrial Park(OIP). Therefore,not only is the layout of the building appropriate for conversion into an emergency homeless shelter, but also the site is remote from uses such as schools and residences. HPC has continually demonstrated its commitment to cooperate with the City so as to avoid litigation and fulfill the mutually beneficial goal of opening an emergency homeless shelter to house the City's residents in need. The result of HPC's four-month long collaboration with City staff is the recommendation of a viable, alternate site located at 673 South Waterman Avenue. The owners of 673 South Waterman Avenue have negotiated the terms of a Letter of Intent and HPC is ready and willing to move forward with executing a lease for this property. Upon approval of this site and the required subsequent amendment of the Urgency Ordinance(MC-1290)by the Common Council as well as the Planning Department's processing of the development permits for the 673 South Waterman Avenue, HPC will dismiss the appeal pending on the original CUP application for 840 North Sierra Way. HPC remains hopeful that the Common Council will validate our collaborative efforts with City Staff by approving the 673 South Waterman Avenue location. We look forward to the City's positive response. 07/30/2009 03 : 25 : 48 PM Sidley Sidley Page 1 r RIDLEY AUSTIN sea BEIJING GENEVA SAN FRANCISCO 555 WEST FIFTH STREET BRUSSELS HONG KONG SHANGHAI 51DLEY AUSTIN LOR L0 60 ES GA 90813 CHICAGO LONDON SINGAPORE 213898 896 88!10 DALLAS L09 ANGELES TOKYO SIDLEY2138%Saw FAX NEW YORK WASHINGTON,OC denise.brownas I dlay.ecm 12131 695-6882 FOUNDED 1868 FACSIMILE TRANSMISSION FORM Date: July 30,2009 No. of pages including cover sheet: 3 To: James F.Penman,Es 909)384-5238 To: Henry Empeno,Es q. (909)384-5238 To: Ester Estrada 909 384-5105 To: Mayor Patrick J. Morris 909 384-5067 To: Fred Shorett 909 384-5105 To: Tobin Brinker(909)384-5105 To: Dennis Baxter 909 384-5105 To: Terry Rahhai 909)384-5080 To: Chas Kelley(909)384-5105 To: Rikke Van Johnson(909)384-5105 To: Wendy McCammack 909 384-5105 To: Rachel Clark(909) 384-5158 From: Denise D. Brown Ext. 46882 Floor: 41 COMMENTS: Appeal of the Planning Commission's Denial of Human Potential Consultants' Application for Conditional Use Permit No. 08-21 (Appeal No. 08-07) IRS Cr ular 230 Disclosure: To comply with certain U.S.Treasury regulations,we intbrm you that,units expressly stated attanwlse,my U.S. federal tax advice contained in this communication,including attachments,was not intended or written to be used and cannot be used,by my taxpayer for the purpose of avoiding my penalties that may be imposed on such taxpayer by the Internal Revenue Service. In Widmer,if my such tax advice is used or referred to by other parties in promoting,marketing a recormnending my partnership or other entity,imrestmeM plan or arrangement,then(i)the advice should be construed as written in connectim with the promotion or marketing by others of the transaction(s)or matter(s)addressed in this communication and(ii)the taxpayer should seek advice based on the taxpayer's pasiculy circumstances from an independent tax advisor. Problems with this transmission should be reported to: (213)896-6882 THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL(S)OR ENTITV(IES)TO WHICH IT LS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED,CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LA W. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE MESSAGE TO THE INTENDED RECIPIENT,YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION,DISTRIBUTION OR COPYING OF TINS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR,NOTIFY US IMMEDIATELY BY TELEPHONE AND RETURN THE ORIGINAL MESSAGE TO US AT THE ABOVE ADDRESS VIA THE U.S,POSTAL SERVICE- SdayAWAuPisarmi IQWIy Pfa ip 0.61�9n a1aKLm wM M.%. YAPaMaa M*6 #n r 8- 3-Oq 07/30/2009 03 : 26: 01 PM Sidley Sidley Page 2 SIDLEY AUSTIN"n BEIJING LOS ANGELES 666 WEST FIFTH STREET BRUSSELS NEW YORK SSIDLEY AUSTIN LLP LOS ANGELES,CA W013 CHICAGO SAN FRANCISCO IDLEY (213)6968600 FAX PRA FRANKFURT SINGAPORE GENEVA SYDNEY HONG KONG TOKYO LONDON WASHINGTON,D.C. InBVllt�aMNy.com (213)696-8889 FOUNDED 1866 July 30, 2009 By Fax and U.S.Mail James F. Penman,Esq. City Attorney City of San Bernardino 300 North D Street San Bernardino,California 92418 Re: Human Potential Consultants' ("HPC")Appeal of the Planning Commission's Denial of the Application for Conditional Use Permit("CUP")No. 08-21 (Appeal No 08-07) Dear Mr. Penman: As you know,we represent HPC in its appeal of the Planning Commission's denial of the application for a CUP. For the past four months,HPC has been collaborating with the City Attorney's Office, the Planning Department, and the Economic Development Agency to identify an alternative location for HPC's proposed emergency shelter. Leading up to the July 20, 2009 Mayor and Common Council Meeting, HPC and the City Attorney's Office agreed to recommend to the Common Council a site located at 225 West Orange Show Lane. As directed, HPC engaged in extensive negotiations with the property owner of that site to the point that HPC was close to reaching an agreement on a tease with that landowner. I Iowever, a few days prior to the July 20,2009 meeting, negotiations with the property owner collapsed. HPC was informed that one of the reasons that the negotiations with the owner of 225 West Orange Show Lane deteriorated was that an electronic message("email")allegedly authored by Kathleen"Katie" M. Willis,the daughter of the Mayor of San Bernardino, was circulated amongst real estate agents and property owners in the surrounding industrial development. HPC received a copy of this email and was concerned that such communications could potentially threaten the four-month long collaboration with City staff to identify an alternative location and to avoid litigation. On July 20, 2009, HPC brought the existence of the email to the attention of the City Attorney's Office as part of our discussions regarding the last minute failure of securing a lease for the 225 West Orange Show Lane site. One day later, upon request from the City Attorney's Office, HPC shared a copy of the email with the City. The City Attorney's Office explained to SdkyAuYnuvNaWni h�"YPa�*K"5wV^a Wan Mna r%dry AUm P�M'" 07/30/2009 03 : 26:26 PM Sidley Sidley Page 3 SID James F. Penman, Esq. July 30, 2009 Page 2 HPC that it would investigate the matter. Although HPC requested that it be kept apprised of the situation, it did so only to the extent that these communications would or could affect HPC's continuing collaboration with City staff. The City Attorney's Office requested a meeting with HPC on Tuesday, July 28,2009,to further discuss alternative sites suggested by Lou Schnepp of the Economic Redevelopment Agency and Liz Roubidoux, HPC's real estate agent. At the meeting,which was attended by representatives of HPC both in person and telephonically, additional locations were assessed. The City Attorney's allegations directed towards the Mayor's Office were not discussed during this meeting. When the meeting concluded, it is our understanding that the City Attorney's Office distributed a copy of the July 28, 2009, Legal Memo No. 09-053 from James F. Penman to Mayor Patrick J. Morris. While HPC expects that the Mayor and his staff will conduct themselves with due regard, at no point has f iPC issued allegations of any kind against the Mayor or his staff. Rather,it has always been, and remains, HPC's goal to collaborate with the City to pursue the mutually beneficial goal of housing the City's homeless population. Sincerely, SIDLEY AUSTIN LLP (/ M, By Lauren Nevitt cc: Mayor Patrick J. Morris; Henry Empefto, Senior Deputy City Attorney; City Councilmembers Esther Estrada, Dennis Baxter, Tobin Brinker, Fred Shorett, Chas Kelley, Rikke Van Johnson,Wendy McCammack; Rachel Clark,City Clerk CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: Valerie C. Ross, Director Subject: An Urgency Ordinance adding area 6 to the areas designated within the Emergency Dept: Development Services Shelter Overlay District as provided in Development Code Section 19.10-e.020, Date: July 16, 2009 declaring the urgency thereof, and taking effect immediately. File: MCC Date: July 20, 2009 Synopsis of Previous Council Action: 05-19-2008 Mayor and Council approved Resolution 2008-151, an Agreement with The Planning Center to provide an update of the City's General Plan Housing Element, including an analysis of the need for emergency homeless shelters. 10-20-2008 Mayor and Council adopted Urgency Ordinance No. MC-1288, establishing the Emergency Shelter Overlay District. 11-17-2008 Mayor and Council received information from The Planning Center regarding the emergency shelter component of the proposed revised Housing Element and the requirements of Senate Bill 2, and continued this matter to November 25, 2008. 11-25-2008 Mayor and Council adopted Urgency Ordinance No. MC-1290, amending and extending MC-1288, amending the Development Code and establishing 5 Areas within the Emergency Shelter Overlay District. Recommended motion: That the hearing be closed and that: (A) Said Urgency Ordinance be adopted; or (B) Said Ordinance be laid over for final adoption; or (C) The matter be continued for two weeks and staff be directed to prepare an amendment to the Urgency Ordinance (MC-1290) to include the OIP, Office Industrial Land Use District and the area included in Option 2. Valerie C. Ross Contact Person: Terri Rahhal, City Planner Phone: 5355 Supporting data attached: Staff Report, Ordinance (2) Ward(s): City Wide FUNDING REQUIREMENTS: Amount: N/A Source: (Acct. No.) Acct. Description: Finance: Council Notes: 7 p 9 4t2-2—a Z6 Agenda Item No. oZ 17- 09 CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION STAFF REPORT Subject: An Urgency Ordinance adding area 6 to the areas designated within the Emergency Shelter Overlay District as provided in Development Code Section 19.10-e.020, declaring the urgency thereof, and taking effect immediately. Background: On October 20, 2008, the Mayor and Common Council adopted MC-1288, an Urgency Ordinance which established the Emergency Shelter Overlay District, to pennit emergency shelters with approval of a building permit within the IL, Industrial Light, land use district lying south of 3`d Street, east of Waterman Avenue, and north of Central Avenue. On November 25, 2008, the Mayor and Council adopted MC-1290, which extended the Urgency Ordinance for 10 months and 15 days, and replaced the geographic area previously designated with five new areas in the IL or CH (Commercial Heavy) land use districts of the City, as shown on the attached maps (Areas 1 through 5). Currently scheduled on the July 20, 2009 Mayor and Common Council meeting agenda is the continued appeal hearing on Conditional Use Permit No. 08-21, the appeal filed by Human Potential Consultants, LLC, ("HPC") of the Planning Commission's denial of a CUP to convert an existing 6,747 square foot church building into a 56-bed homeless shelter with related support facilities and office space located at 840 North Sierra Way in the RM, Residential Medium, land use district. HPC agreed to decrease the capacity of their proposed homeless shelter to 36 beds. At the April 6, 2009 Mayor and Common Council Meeting, supporters from Option House, Inc. opposed granting the CUP. Option House, Inc. is a nonprofit organization created thirty-two years ago in 1977, which provides basic services to victims of domestic violence, including 24 hour shelter, 24 hour crisis hotline, temporary housing and food, psychological support and peer counseling, children's services, emergency transportation, resources and referral. Supporters of the Option House opposed the CUP because HPC's proposed location was in such close proximity to Option House's primary shelter facility, established in 1983, so as to jeopardize the safety of the women and children staying there. At the April 6, 2009 Council meeting, the Mayor and Common Council directed City staff to research alternative locations for HPC's proposed emergency shelter at 840 North Sierra Way. In the more than three months since that date, HPC and City staff have held several meetings and phone conferences and discussed over twenty potential sites located throughout the City. Well over 30 sites were identified,but some were discarded because of proximity to sensitive uses such as schools or parks. Other sites were discarded because the site owner did not want to enter into a lease agreement to house an emergency shelter. Some sites that had merit were leased or sold and no longer available. And still other sites contained substandard buildings. Two sites in particular were identified as having the most potential for further consideration. 1 One site (Option 1) is located at 225 West Orange Show Lane. This 0.63 acre parcel, (APN 0141-281-44)has a vacant 10,476 square foot warehouse-type building, and is located in the IL, Industrial Light land use district. It is not near sensitive uses such as schools and residences, and is immediately abutting the Warm Creek Wash and other light industrial buildings. These light industrial buildings contain typical small warehouse and light industrial uses. However, the buildings along Orange Show Lane abut the rear of the buildings that front on Orange Show Road. These contain a mix of office and service uses that have more employees and customers. Bus service is available on "E" Street, which would require clients to walk from Arrowhead Avenue adjacent to the Humane Society, over to `B" Street. The walk is less than %z mile as required by the existing urgency ordinance. This is the subject matter of the Urgency Ordinance or the regular Ordinance. (See attached map of Area 6, Option 1.) The second site(Option 2) is located at 673 S. Waterman Avenue in the OIP, Office Industrial Park land use district. The site consists of a 0.86 acre parcel (APN 0280-21-45), with a 9,500 square foot warehouse-type building. Although this site is more visible than the site in Option 1, it is a stand-alone building with a completely fenced yard. Bus service is available along Waterman Avenue. The OIP land use district is adjacent to both sides of Waterman Avenue from south of Orange Show Road to north of Mill Street. The IL land use district abuts the OIP. Option 2 would require an amendment to the Urgency Ordinance (MC-1290) to allow emergency shelters in the OIP, Office Industrial Park land use district. (See attached map of Area 6, Option 2.) The Urgency Ordinance proposes to add the property located as Area 6 (see attached map of Area 6, Option 1) to the Emergency Shelter Overlay District. Approval of this Urgency Ordinance (Option 1) will allow HPC to submit and process an application for a Development Permit 1 (DP-1) to establish an emergency shelter. Upon approval of the DP-1, HPC has stated that they will withdraw t rr heir appeal and application for CUP No. 08-21 for 840 North Sierra Way. Financial Impact: Undetermined. Recommendation: That the hearing be closed and that: (A) Said Urgency Ordinance be adopted; or (B) Said Ordinance be laid over for final adoption; or (C) The matter be continued for two weeks and staff be directed to prepare an amendment to the Urgency Ordinance (MC-1290) to include the OIP, Office Industrial Land Use District and the area included in Option 2. Attachments: Area 6—Option 1 Area 6—Option 2 Urgency Ordinance Ordinance 2 I LOCATION MAP CITY OF SAN BERNARDINO PLANNING DIVISION Area 6 Option 1 NORTH I: HILLCn=ST : ORANGE SHDW W W d W 3 w ORANGE SNOW RD N n- LOCATION MAP CITY OF SAN BERNARDINO PLANNING DIVISION Area 6 Option 2 NORTH J U DRAKE n , HULDEJ W (w -.� .._. DRAKE j _..__ CENTRAL AVE ( I 1 ORDINANCE NO. 2 AN URGENCY ORDINANCE ADDING AREA 6 TO THE AREAS DESIGNATED 3 WITHIN THE EMERGENCY SHELTER OVERLAY DISTRICT AS PROVIDED IN DEVELOPMENT CODE SECTION 19.10-E.020,DECLARING THE URGENCY 4 THEREOF,AND TAKING EFFECT IMMEDIATELY. 5 6 The Mayor and Common Council of the City of San Bernardino do ordain as 7 follows: 8 WHEREAS, Section 40(z) of the City Charter vests the Mayor and Common Council 9 10 with the power to make and enforce all laws and regulations with respect to municipal affairs, 11 subject only to the restrictions and limitations provided in the Charter or by State law; and 12 WHEREAS, Sections 31 and 121 of the City Charter provide for the adoption of an 13 urgency ordinance for the immediate preservation of the public peace,health, or safety if passed 14 15 by a two third's (2/3) vote of the Council; and 16 WHEREAS, Human Potential Consultants LLC ("HPC")has filed an appeal of the 17 Planning Commission's denial of Conditional Use Permit No. 08-21,to convert an existing 6,747 18 square foot church building into a 56-bed emergency homeless shelter(later reduced to a 36-bed 19 homeless shelter by HPC) at 840 North Sierra Way; and 20 21 WHEREAS, the safety of women and children staying at Option House Inc.'s domestic 22 violence shelter, located in close proximity to 840 North Sierra Way, would be jeopardized if 23 CUP No. 08-21 is approved; and 24 25 WHEREAS, HPC has requested that the Mayor and Council consider the property located 26 at 225 West Orange Show Lane as an alternative site for the emergency homeless shelter HPC 27 proposed to establish at 840 North Sierra Way; and 28 F9EMPENMOrdinancesTmergency Shelter Urgency Ordinance 7-14-09.wpd 1 WHEREAS, 225 West Orange Show Lane is a 0.63 acre parcel, APN 0141-281-44,with 2 a vacant 10,476 square foot warehouse-type building, and is located in the IL, Industrial Light, 3 land use district; and 4 5 WHEREAS, 225 West Orange Show Lane is located immediately abutting Warm Creek 6 Wash and other light industrial buildings, and is isolated from sensitive uses such as schools and 7 residences; and 8 WHEREAS, on October 20, 2008, the Mayor and Council adopted Urgency Ordinance 9 10 No. MC-1288 (incorporated herein by reference)which created the Emergency Shelter Overlay 11 District,to permit the establishment of emergency shelters without requiring approval of a 12 discretionary Conditional Use Permit; and 13 14 WHEREAS, on November 25, 2008, the Mayor and Council adopted Urgency Ordinance 15 No. MC-1290,which amended and extended MC-1288, amended the Development Code and 16 established 5 Areas of the City within the Emergency Shelter Overlay District; and 17 WHEREAS, HPC has represented to the City that if HPC is granted a Development 18 19 Permit to establish an emergency homeless shelter at 225 West Orange Show Lane,that HPC will 20 withdraw their appeal and application to establish an emergency homeless shelter at 840 North 21 Sierra Way; 22 23 24 25 26 27 28 FdEMPENO\Ordinances\Em rgency Shelter Urgency Ordinance 7-14-09.wpd 2 1 NOW THEREFORE,THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN 2 1 BERNARDINO DO ORDAIN AS FOLLOWS: 3 Section 1. The Mayor and Common Council find that the above-stated Recitals are 4 5 true and hereby adopt and incorporate them herein. 6 Section 2. Area 6 is hereby added to the 5 Areas previously designated within the 7 Emergency Shelter Overlay District as provided by Development Code Section 19.10-E.020 and 8 9 Urgency Ordinance No. MC-1290. Area 6 consists of a 0.63 acre parcel, APN 0141-281-44, 10 located at 225 West Orange Show Lane, as depicted on the maps attached and incorporated 11 herein as Exhibit A. 12 Section 3. This Ordinance is based upon the recitals and findings set forth above, and 13 14 the accompanying Staff Report and its attachments to this Ordinance, and is adopted pursuant to 15 the authority granted to the City of San Bernardino in Article 11, Section 7 of the California 16 Constitution, and Sections 31, 40(z), and 121 of the Charter of the City of San Bernardino. 17 Section 4. Urgency. Pursuant to Sections 31 and 121 of the Charter of the City of 18 19 San Bernardino, this Ordinance shall require passage by a two-thirds (2/3)vote of the Council, 20 and shall take effect immediately, for the immediate preservation of the public peace, health, or 21 safety. Unless this Urgency Ordinance is adopted, Human Potential Consultants LLC will pursue 22 their appeal of Conditional Use Permit No. 08-21, to establish an emergency homeless shelter at 23 24 840 North Sierra Way. The establishment of an emergency homeless shelter at 840 North Sierra 25 Way will jeopardize the safety of the women and children staying at Option House, Inc.'s 26 domestic violence shelter located in close proximity. The property in Area 6 will provide an 27 28 FAEMPENO\Ordinances\Emergency Shelter Urgency Ordinance 7-14-09.wpd 3 i i i 1 alternative location for Human Potential Consultants LLC to establish an emergency homeless 2 shelter. 3 4 Section 5. Compliance with the California Environmental Quality Act. The Mayor 5 and Common Council finds that this Ordinance is not subject to the California Environmental 6 Quality Act(CEQA)pursuant to Sections 15061(6)(3) (the activity will not result in a direct or 7 reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity 8 9 is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of 10 Regulations, Title 14, Chapter 3,because it has no potential for resulting in physical change to 11 the environment, directly or indirectly. 12 Section 6. Severability. If any section, subsection, subdivision, sentence, clause or 13 14 phrase in this Ordinance or any part thereof is for any reason held to be unconstitutional, invalid 15 or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or 16 effectiveness of the remaining portions of this Ordinance or any part thereof. The Mayor and 17 Common Council hereby declares that it would have adopted each section irrespective of the fact 18 19 that any one or more subsections, subdivisions, sentences, clauses, or phrases be declared 20 unconstitutional, invalid, or ineffective. 21 22 23 24 25 26 27 28 F:\EMPENo\Ordinances\Em rgency Shelter Urgency Ordinance 7-14-09.wpd 4 1 AN URGENCY ORDINANCE ADDING AREA 6 TO THE AREAS DESIGNATED 2 WITHIN THE EMERGENCY SHELTER OVERLAY DISTRICT AS PROVIDED IN DEVELOPMENT CODE SECTION 19.10-E.020,DECLARING THE URGENCY 3 THEREOF,AND TAKING EFFECT IMMEDIATELY. 4 5 I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor and 6 Council of the City of San Bernardino at a meeting thereof, held on the 7 day of 2009,by the following vote, to wit: 8 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT 9 10 ESTRADA 11 BAXTER 12 BRINKER 13 SHORETT 14 15 KELLEY 16 JOHNSON 17 MC CAMMACK 18 19 20 Rachel Clark, City Clerk 21 The foregoing Ordinance is hereby approved this day of 2009. 22 23 PATRICK J. MORRIS, Mayor City of San Bernardino 24 Approved as to form: 25 JAMES F. PENMAN City Attorney 26 27 28 P9EMPENMOrdinancesTntergency Shelter Urgency Ordinance 7-14-09.wpd 5 Exhibit "A" LOCATION MAP CITY OF SAN BERNARDINO PLANNING DIVISION Area 6 NORTH r; ALLCRE5T W ORANGE SHOW LN_. a N o 2 w a o lX ORANGE SHOW RD i J i Exhibit "A" ��: �t zil�F��i'+GL',Ls Lip ��� �' h-+.a�. �icc��f�Y�� • ' a� F � � � iu_2 g.n• ..., • s• t 1�•rriYLd-7 �'4 a�!�tr t7i' �!1 _ a � I J7 y _%two L , IV, v .. 4R sIF9L_wIA � C r C - -I � I ,I � �► o � ail + � .%! co w 1 N � N `'�.'", . �.',(�� — ___•;' ' ' �� �"�.;� 'N ���i�R�it z � m v d " .,. �r 3( n?W W tl Nl i� � ice. w .�. .. w � � _ • C i rox - - .• 6 TL Or i" �. ♦f rr d � � _ �� • � �•3''K7�� � ' � '•�� a I. h {R V tw �1� W. J , As In SOM IR E Y� j• 10 +....MMM...w Exhibit "A" t a ; 5 eel . N_ (CNj Q d y f0 ci O N { QQQ O C _ "'_' ....,,.� J r 1:7 r.• V 30 N t .t Em CO 00) 5, y a � o � Z�N 1 N 1 U N Y oLL� yypp$$ :ia 6�dpu � 1 ORDINANCE NO. 2 ORDINANCE ADDING AREA 6 TO THE AREAS DESIGNATED WITHIN THE 3 EMERGENCY SHELTER OVERLAY DISTRICT AS PROVIDED IN DEVELOPMENT CODE SECTION 19.10-E.020. 4 5 The Mayor and Common Council of the City of San Bernardino do ordain as 6 follows: 7 8 WHEREAS, Section 40(z) of the City Charter vests the Mayor and Common Council 9 with the power to make and enforce all laws and regulations with respect to municipal affairs, 10 subject only to the restrictions and limitations provided in the Charter or by State law; and 11 WHEREAS,Human Potential Consultants LLC ("HPC")has filed an appeal of the 12 13 Planning Commission's denial of Conditional Use Permit No. 08-21, to convert an existing 6,747 14 square foot church building into a 56-bed emergency homeless shelter(later reduced to a 36-bed 15 homeless shelter by HPC) at 840 North Siena Way; and 16 WHEREAS, the safety of women and children staying at Option House Inc.'s domestic 17 18 violence shelter, located in close proximity to 840 North Siena Way,would be jeopardized if 19 CUP No. 08-21 is approved; and 20 WHEREAS,HPC has requested that the Mayor and Council consider the property located 21 at 225 West Orange Show Lane as an alternative site for the emergency homeless shelter HPC 22 23 proposed to establish at 840 North Siena Way; and 24 WHEREAS, 225 West Orange Show Lane is a 0.63 acre parcel, APN 0141-281-44, with 25 a vacant 10,476 square foot warehouse-type building, and is located in the IL, Industrial Light, 26 land use district; and 27 28 FAEMPENO\Ordinances\Emergency Shelter Ordinance 7-16-09.wpd 1 1 WHEREAS, 225 West Orange Show Lane is located immediately abutting Warm Creek 2 Wash and other light industrial buildings, and is isolated from sensitive uses such as schools and 3 4 residences; and 5 WHEREAS, on October 20, 2008, the Mayor and Council adopted Urgency Ordinance 6 No. MC-1288 (incorporated herein by reference)which created the Emergency Shelter Overlay 7 District, to permit the establishment of emergency shelters without requiring approval of a 8 9 discretionary Conditional Use Permit; and 10 WHEREAS, on November 25, 2008, the Mayor and Council adopted Urgency Ordinance 11 No. MC-1290, which amended and extended MC-1288, amended the Development Code and 12 established 5 Areas of the City within the Emergency Shelter Overlay District; and 13 14 WHEREAS, HPC has represented to the City that if HPC is granted a Development 15 Permit to establish an emergency homeless shelter at 225 West Orange Show Lane, that HPC will 16 withdraw their appeal and application to establish an emergency homeless shelter at 840 North 17 Sierra Way; 18 19 20 21 22 23 24 25 26 27 28 FAEMPENMOrdinancesTinergency Shelter Ordinance 7-16-09.wpd 2 1 NOW THEREFORE,THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN 2 BERNARDINO DO ORDAIN AS FOLLOWS: 3 4 Section 1. The Mayor and Common Council find that the above-stated Recitals are 5 true and hereby adopt and incorporate them herein. 6 Section 2. Area 6 is hereby added to the 5 Areas previously designated within the 7 Emergency Shelter Overlay District as provided by Development Code Section 19.10-E.020 and 8 9 Urgency Ordinance No. MC-1290. Area 6 consists of a 0.63 acre parcel, APN 0141-281-44, 10 located at 225 West Orange Show Lane, as depicted on the maps attached and incorporated 11 herein as Exhibit A. 12 Section 3. This Ordinance is based upon the recitals and findings set forth above, and 13 14 the accompanying Staff Report and its attachments to this Ordinance, and is adopted pursuant to 15 the authority granted to the City of San Bernardino in Article 11, Section 7 of the California 16 Constitution, and Section 40(z) of the Charter of the City of San Bernardino. 17 Section 4. Compliance with the California Environmental Quality Act. The Mayor 18 19 and Common Council finds that this Ordinance is not subject to the California Environmental 20 Quality Act(CEQA)pursuant to Sections 15061(b)(3) (the activity will not result in a direct or 21 reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity 22 is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of 23 24 Regulations, Title 14, Chapter 3,because it has no potential for resulting in physical change to 25 the environment, directly or indirectly. 26 Section 5. Severability. If any section, subsection, subdivision, sentence, clause or 27 phrase in this Ordinance or any part thereof is for any reason held to be unconstitutional, invalid 28 FAEMPENO\Ordinances\Emergency Shele Ordinance 7-16-09.wpd 3 1 or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or 2 effectiveness of the remaining portions of this Ordinance or any part thereof. The Mayor and 3 4 Common Council hereby declares that it would have adopted each section irrespective of the fact 5 that any one or more subsections, subdivisions, sentences, clauses, or phrases be declared 6 unconstitutional, invalid, or ineffective. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FAEMPENO\OrdinancesTmergency Shelter Ordinance 7-16-09.wpd 4 1 ORDINANCE ADDING AREA 6 TO THE AREAS DESIGNATED WITHIN THE 2 EMERGENCY SHELTER OVERLAY DISTRICT AS PROVIDED IN DEVELOPMENT CODE SECTION 19.10-E.020. 3 4 I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor and 5 Council of the City of San Bernardino at a meeting thereof,held on the 6 7 _day of 2009,by the following vote, to wit: 8 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT 9 ESTRADA 10 BAXTER 11 12 BRINKER 13 SHORETT 14 KELLEY 15 JOHNSON 16 17 MC CAMMACK 18 19 Rachel Clark, City Clerk 20 The foregoing Ordinance is hereby approved this day of 2009. 21 22 PATRICK J. MORRIS,Mayor 23 City of San Bernardino Approved as to form: 24 JAMES F. PENMAN 25 City Attorney 26 27 28 F:\EMPENO\Ordinances\Emergency Shelter Ordinance 7-16-09.wpd 5 Exhibit "A" LOCATION MAP CITY OF SAN BERNARDINO PLANNING DIVISION Area 6 NORTH "LL 8HW ( R ©W W W f� ORANGE SHOVv RD Exhibit "A" e.!4 4. e c F Vie ; N N tt� p"^tt YtiJC i i; �t I144,t - ' t � k� r�a. tk -AmrAgA 1 palm 77g E > M'WiME t k pg� F r ksx 4d [ -� M { 0 ys 12 t t t ,V , C �a ice,. s. '�yQ � .yg�; •? '� y ':. ice^ O d O r .zip 4 jwr. 3 L •y"".- _ - r �--� ,edL.r �p„ a a T 4�M. 1:s? ,F,.,. w-r .� � e 6�+• s 4� C rL.^e�� �. i`� V n . v 3 t i�� r `a rii. 119 'r -. cn Y.- ro d 0 Iml t t n Af jv i NIP Air IIII ytp _ � s MH4z , Exhibit "A" i o ' t, Ard L - _ OD U,) O � § C,4 Cq{ l 4Fiti, o ICI y o rc . (D z .a. W O N O E CO ca tm L x x W O " nw Ip �` U N a N y t man 9 i1 d i Y E ON IDENTIA! RECEIVED-CITY CLE , Note to All Recipients of the Enclosed Confidential Memorandum to the Common Council Dated July 31, 2009 From City Attorney James F. PIONG -3 AM 9: 29 The enclosed 22 page document contains a good deal of information. I believe all of it is important for you to study. Some of you will read all of it, some of you may not. I do encourage all of you to read the entire memorandum prior to the August 3,2009 Council meeting. Pages 1 - 5 and 18 -22 contain some particularly significant information, in my opinion. Q 3-;Z61 g/3�� 9 8I/7/D 06RNA QI 4� Y - _ CONFIDENTIAL 3 a^ INTER OFFICE MEMORANDUM OFFICE OF THE CITY ATTORNEY CITY OF SAN BERNARDINO fpDENTIAI Legal Confidential Memo No. 09-054 To: Common Council From: James F. Penman City Attorney Date: July 31, 2009 Subject: Alleged Conflict of Interest by Mayor Moms Relating to the Potential Site for Homeless Parolee Facility at 225 West Orange Show Lane Related to Liability Copies: Patrick J. Morris,Mayor; Rachel Clark, City Clerk © The City Attorney's Office does not provide confidential advice to public officials on conflicts of interest matters. The League of California Cities and the California State Bar Association have consistently held that a public official who has a conflict arising from his private life has no right to expect a City Attorney to keep confidential any information provided to the City Attorney on a conflict of interest matter,even if it is provided to the City Attorney by the officer holder himself or herself. The City Attorney only advises the public official on his official acts, not on any private situation that might or might not create a conflict of interest for the public official. In other words, the private side of the official's difficulty removes him from the confidential attomey-client relationship as to his/her personal problem. In 1987, Councilman Jack Strickler filed a complaint with the State Bar alleging that Senior Assistant City Attorney Allen Briggs,working in the office of then-City Attorney Ralph Prince,had violated a confidential attorney client communication by making public to the press information Strickler had provided Briggs when Strickler was seeking advice on a conflict of interest issue from Briggs. It its "turndown" letter of May 18, 1987 the State Bar informed Strickler, "(d)uring our recent telephone conversation,I advised you that the(City) attorney does not represent you,he represents the City of San Bernardino, therefore the informaf%fP you gave him was not confidential. It is for this reason that your complaint file is being closed." O G Memo to Common Council July 31, 2009 Page 2 In 1997, former Planning Commissioner Donald Strimple filed a complaint with the State Bar against City Attorney James F.Penman and then-Deputy City Attorney Henry Empeno,alleging that we had violated an attomey-client communication by disclosing during a criminal jury trial against Strimple, and by disclosing to the FPPC, the Mayor and Common Council and the press our allegation and supporting facts that Strimple had violated California's Fair Political Practices Act in performing his duties as a Planning Commissioner. The State Bar concluded that there "was no clear or convincing evidence that (the attorneys) committed any ethical violation in relationship to the allegations presented by Mr. Strimple," and the complaint file was closed. Strimple was convicted and removed from office. Conflict of interest advice is not given to the officer holder in a confidential manner by the City Attorney. The advice is given to"the City,"usually in an open session of a city council meeting or in a public letter to the Mayor and Common Council, to the Common Council or, on occasion, addressed to the officer holder but with copies to the Mayor and Common Council. Said communications are subject to disclosure pursuant to the Public Records Act. �i The previous communications from this office on the above-referenced subj ect matter have not been confidential for that reason. However, what follows includes an analysis with some detail of the liability risk to which the City has been placed, especially in regards to the threat made by Human Potential Consultants to sue the City if their application for a Conditional Use Pen-nit is not approved. Therefore, the following information should be considered to be a confidential attomey-client communication and treated as such. THE ALLEGATION: On July21,2009,Senior Deputy City Attorney Henry Empeno received atelephone call from Lauren Nevitt, the attorney representing Human Potential Consultants (HPC). During the phone call Ms. Nevitt told Mr. Empeno that the Mayor's office was opposing HPC's interest in acquiring a lease for the property at 225 West Orange Show Lane for use as a homeless shelter due to the business interests of the Mayor's daughter, Kathleen"Katie"M. Willis. THE PURPORTED EVIDENCE: According to an email from Mr. Empeno (copy attached), Ms. Nevitt said that "Katie" was communicating opposition to the site and was contacting"other real estate agents asking about other sites Human Potential Consultants is interested in." Memo to Common Council July 31, 2009 Page 3 According to Ms. Nevitt, Ms. Willis sent an email to her real estate broker, Mr. Toby Tewell, a broker with Lee & Associates in the City of Riverside, seeking his assistance in sharing the information in her email to Mr. Tewell with the agent for the property owner of 225 West Orange Show Lane. Mr. Tewell forwarded Ms. Willis' email to a broker named Joe (Joe Stewart?)who is in the same firm, NAI Capital, with Liz Roubidoux, the real estate broker/agent for Human Potential Consultants. That email was forwarded to Ms. Nevitt who then forwarded the same to Mr. Empeno. The following email(copy attached)is purportedly from the Mayor's daughter,Katie Willis,to her real estate broker Mr. Toby Tewell and reads as follows: "Hey Toby- Have you heard anything back from the Orange Tree property? [Orange Tree Lane C is a street name in the City of Redlands. It appears that the author of this email confused that Redlands'street with Orange Show Lane in San Bernardino. The factual information contained in the email matches the facts,so far as we know them, of the situation involving HPC's proposed homeless parolee shelter alternative site located at 225 West Orange Show Lane in San Bernardino.] I thought that you might need to know that the below pertinent information regarding the Orange Tree Lane location and perhaps you can pass this on to the other agent and property owner. Maybe it will even `light a fire under them': A 64-bed`for profit'parolee house has put in an application to the City to locate just north of Orange Tree Lane and Sierra Way(in one of the warehouses that they plan to convert), which is just east of the building that we are trying to get [emphasis added]. This came up `on radar' at City Hall on Wednesday and I was urgently told this by the Mayor's Office because of our interest in the location [emphasis added]. The Orange Tree Lane/Sierra Way location has been OKed by the City Attorney's office for the parolee housing[this information is not correct]and should it make it through the City Counsel [sic], I will no longer be interested or able to lease the Orange Tree Lane. Katie" This Office is treating the phone call from HPC's attorney, Lauren Nevitt as a "complaint" of a I Memo to Common Council July 31, 2009 Page 4 conflict of interest on the part of the Mayor. It is noted that on July 30, 2009 this office received a letter from Ms.Nevitt that says,in part,"on July 20, 2009,HPC brought the existence of the email to the attention of the City Attorney's Office as part of our discussions regarding the last minute failure of securing a lease for the 225 West Orange Show Lane site. One day later, upon request from the City Attorney's Office,HPC shared a copy of the email with the City. The City Attorney's Office explained to HPC that it would investigate the matter. Although HPC requested that it be kept apprised of the situation, it did so only to the extent that these communications would or could effect HPC's continuing collaboration with City staff." Thus, HPC has now acknowledged in writing that it communicated the email from the Mayor's daughter to Mr. Empeno. It should be noted that the intentions of HPC in informing this office of the alleged conflict of interest by the Mayor due to his daughter's attempt to lease the property next door to 225 West Orange Show Lane are irrelevant. Once this office has received notice from anyone,anonymous or otherwise,and whether the notice is received in writing or verbally of an alleged conflict of interest, especially when that allegation is supported by documentary evidence(such as the purported email from the Mayor's daughter,)we will perform all followup work which we deem necessary to protect the City and to insure that no violation of law is occurring. The necessary followup includes notifying the Common Council of the allegations at the appropriate time. On occasion,there may be a delay in so informing the Common Council so as not to compromise an investigation or if it is requested that we delay the notification by another investigatory agency. Ms. Nevitt's letter goes on to say, `while HPC expects that the Mayor and his staff will conduct themselves with due regard, at no point has HPC issued allegations of any kind against the Mayor or his staff. Rather, it has always been and remains, HPC's goal to collaborate with the City to pursue the mutually beneficial goal of housing the City's homeless population." Regardless of the semantics in which HPC may feel they need to engage to avoid incurring the displeasure of the Mayor and some City officials while its application is still pending,the fact is Mr. Empeno reported that HPC's attorney,Lauren Nevitt, complained to him that"the Mayor's office was opposing the 225 West Orange Show Lane alternative site because of the Mayor's daughter's interests." HPC's letter of July 30, 2009 does not change the above factual situation nor the following facts: HPC has threatened to sue the City if their application is not approved; HPC contacted the City Attorney's Office and"complained"to a Senior Deputy City Attorney about an alleged conflict of interest by the Mayor; HPC provided documentary evidence in support of that accusation (in the ^ Memo to Common Council July 31,2009 Page 5 form of an email from the Mayor's daughter); and HPC asked that "it be kept apprised of the situation." We have no doubt that if the Council ultimately makes a decision that is contrary to HPC's application that HPC will carry through with its threat to sue the City, and will name the Mayor in both his official and individual capacities and include a conflict of interest allegation against the Mayor and the City in the lawsuit complaint. We also believe that HPC will name those City Council members who vote against HPC's application in both their official and individual capacities. We also have no doubt that if there is a lawsuit,HPC will argue to a judge and jury that even after HPC complained to the City Attorney's Office the Mayor continued to participate in the discussions, meetings and decision-making process of the City in regards to HPC's application and appeal. Also, if HPC sues,we believe HPC will argue that the Council Members who voted against HPC's request did so at the urging of the Mayor, despite the fact the Council Members knew of HPC's allegation that the Mayor has a conflict of interest. C THE BACKGROUND: To refresh your recollection as to the facts leading up to this memorandum the following information is provided. In 2007 the California State Legislature enacted SB 2. That law took effect on January 1,2008 and cities in the SCAG region were required to be in compliance by June 30,2008. Among its impacts, the law required each city to designate, within its general plan, sufficient areas within city boundaries where emergency shelters could be placed without the necessity of first obtaining a Conditional Use Permit. State law also requires that the Revised Housing Element of each city's general plan receive approval from the California Department of Housing and Community Development(HCD). The City of San Bernardino, on May 19, 2008, retained the services of a consultant, The Planning Center,to assist the city in revising its general plan housing element. The designation of appropriate areas specified in SB 2 would be a part of that general plan revision. Although the City of San Bernardino has adopted an "Emergency Shelter Overlay District" designating areas of the City pursuant to the requirements of SB 2 where emergency shelters may be located without the usual requirement of a conditional use permit, the City is not yet in formal compliance with SB 2. As of July 15, 2009, only two cities in San Bernardino County are in compliance with SB 2, Chino and Yucaipa. O Memo to Common Council July 31,2009 Page 6 HPC applied for a Conditional Use Permit for 840 North Sierra Way and that CUP application was denied by the Planning Commission on November 5, 2008. HPC appealed the denial by the Planning Commission to the City Council,Appeal No. 08 -07,and a hearing was held by the Council on April 6, 2009 to consider that appeal. [As of March 10,2009,less than a month before Human Potential Consultants appeal was heard by the San Bernardino City Council, only one city in San Bernardino County had submitted a revised general plan housing element to HCD for approval, and no such approvals had been granted at that point by HCD for any city in San Bernardino County]. At the April 6,2009 hearing,the Mayor and Common Council(MCC)heard testimony and received other evidence. Included in the evidence was an objection by Option House, a battered women's shelter located in close proximity to the proposed homeless parolee location on Sierra Way,asserting that the granting of the CUP and the location of the homeless parolee facility would place the residents of Option House in danger. Other evidence showed that a new elementary school was planned for that immediate area in the next two years. Also at that meeting, and in discussions leading up to it, HPC made it clear that they would commence litigation against the City if the CUP was not granted. At the conclusion of the hearing the MCC adopted the following motion: "That the hearing be closed; that staff be directed to meet with HPC to research finding another location;and that staff work with the City Attorney's office and come back to the meeting of April 20,2009,with conditions to substantially mitigate issues the Council is concerned about, at which time the Council will make a decision on whether or not they can grant the appeal." HPC has agreed to continuances of this item at each meeting of the MCC since April 20, 2009 in order to pursue locating an alternate site that is acceptable to both HPC and the City. Since April 6,2009,pursuant to direction from the Mayor and Common Council,the City Attomey's office and the Development Services Department,with the excellent assistance ofLou Schnepp from EDA,have reviewed over thirty sites,working with HPC trying to find locations that are acceptable to them. From time to time,reports have been made to the MCC in closed session under"significant exposure to litigation"due to the lawsuit threat by HPC. The Brown Act, specifically § 54956.9(6),permits Csuch closed session discussions. The objective of the MCC throughout these meetings has been to Memo to Common Council July 31, 2009 Page 7 settle the case by agreeing with HPC on an alternative site. Until the July 20, 2009 meeting of the MCC, Mayor Morris has supported these closed session discussions as well as the strategy of preventing a lawsuit by negotiating with HPC in an attempt to find them a suitable alternative location. THE JULY 6, 2009 MEETING OF THE SAN BERNARDINO CITY COUNCIL: The following are my recollections of the events discussed after conferring with other members of the City Attorney's Office who were present. If your recollections differ from mine,please rely on your own memories. At the meeting of the MCC on Monday, July 6, 2009,we were advised in closed session by Terri Rahhal that City planners had concluded there were two potential alternative sites to the Sierra Way site proposal, one at 225 West Orange Show Lane and one at 673 South Waterman Avenue. Ms.Rahhal advised at that time her department was not looking favorably on the Waterman Avenue site as it was on a major thoroughfare and the facility and its numerous parolees would be highly �►r visible to the public motoring through that area. Concern about a school a short distance from the site was also mentioned. The Mayor at first expressed concern over what he termed the"most high end industrial business park,"referring to the 225 West Orange Show Lane site. Once it was made clear,however,that the location being discussed was not the Orange Show Road thoroughfare(which extends from the freeway on the west to Tippecanoe on the east)but the smaller street, Orange Show Lane, one block north of Orange Show Road, the Mayor agreed and said it (referring to the Waterman Avenue proposed alternative)would draw too much negative attention to the City. A motion was made and after discussing whether to have the staff explore both sites further,or just the Orange Show Lane site, the Council voted to only have the staff give further attention to the Orange Show Lane location. Planning and City Attorney staff who were present throughout the discussion, interpreted that direction to mean we were not to explore any further into the Waterman Avenue site. It appeared to us that the Mayor supported that direction. He made no objection to it. Following the July 6th Council meeting,the Development Services staff continued to work, along Cwith Senior Deputy City Attorney Henry Empeno, on the Orange Show Lane site with HPC. C Memo to Common Council July 31,2009 Page 8 THE JULY 20, 2009 CITY COUNCIL MEETING: Again, the following are my recollections of the events discussed after conferring with other members of the City Attorney's Office who were present/involved. Ifyour recollections are different from mine,please rely on your own memories. When the first draft(purple)agendas were prepared for the July 20,2009 Council meeting,only one area was listed to be considered for inclusion in the urgency ordinance adding Area 6 to the Emergency Shelter Overlay District. That one proposed addition was the Orange Show Lane area as directed by the MCC at the July 6,2009 Council meeting. (There were ultimately four different draft agendas prepared for the agenda briefing meeting on July 15, 2009, each one had some difference in either language or in agenda items). At the Agenda Briefing meeting in the MIC room on Wednesday,July 15,2009,where final changes are customarily discussed and directed to be made to agenda items, the Orange Show Lane area remained unchanged as the only addition to the Emergency Shelter Overlay District. That item was (� #22 on the July 20th agenda. However, on Thursday, July 16, 2009, when the final agenda was posted, an additional motion appeared under item # 22 adding the Waterman Avenue site to the Emergency Shelter Overlay District. This new motion specifically included a new direction to staff to include the Waterman Avenue site in the area to be studied further, and to continue the matter for two weeks so the staff could return with a recommendation on the Waterman Avenue area as well as the Orange Show Lane area. This was done contrary to the MCC closed session vote to exclude the Waterman Avenue site at the previous MCC meeting. Shortly after the final (green) agenda was posted on July 16th, Mr. Empeno informed me that he thought the City Manager had directed Valerie Ross, the Director of Development Services,to add that additional language and motion to the agenda for the July 20 meeting. On Friday,July 17th,I observed Development Services Deputy Director/City Planner Terri Rahhal emerging from a meeting in the MIC room with the owners of Quiel Brothers Signs,Larry Quiel and one of his brothers. At the elevator, I asked Ms. Rahhal if I could speak to her for a moment. Once we were out of the hearing range of others, I asked her if she knew why the additional motion had been added to the O Council agenda after the MCC had determined that the Waterman Avenue site not be considered further. I i I 1 r j O Memo to Common Council j July 31,2009 Page 9 She informed me that"the decision came out of a meeting yesterday between Valerie Ross[Director of Development Services] and [City Manager] Mr. [Charles] McNeely." I thanked her for the information and the conversation was concluded. This seemed odd to me because on several occasions since he began work here as City Manager on June 1,2009,Mr. McNeely has stated to the MCC and others that once the Council has voted on a decision that is "the end of it." He has repeatedly stated that he will not revisit an item once the MCC has made a decision on that item. At the July 20, 2009 meeting of the MCC, the matter came up again in closed session. Three Council Members strongly objected to the fact that agenda item#22 had been changed to include consideration of the Waterman Avenue site after the MCC had voted not to consider that site any further. During that closed session discussion,the MCC was notified that business owners in the area of 225 West Orange Show Lane had been contacted by someone and were supposedly circulating a petition in opposition to the facility being located at that site. The MCC was also informed at that time that �r the owner of the building had doubled the asking price for the lease and now seemed "hesitant" about the modifications to permit showers and sleeping quarters being proposed by HPC. However,Mr. Empeno informed the MCC that HPC was still interested in the site,was willing to pay the additional monthly lease amount and wasn't sure that if they negotiated further,the building owner might not agree to the sleeping and shower modifications requested by HPC. Mr. McNeely was asked why he placed the Waterman Avenue site on the agenda. He responded and said because there were some concerns about the Orange Show Lane site. He also said he did not think the (Orange Show Lane) site had been approved(by the MCC). The Mayor and the City Manager at first denied that a vote had been taken at the July 6th Council meeting on that issue. They said only a"consensus"had been reached. Only when several people in the room spoke up saying they remembered the vote being taken did the Mayor and the City Manager back away from that position. [According to information obtained from the City Clerk's office on July 27,2009,the motion on this issue in closed session on July 6, 2009 was made by Council Member Baxter and Seconded by Council Member Estrada"to approve the Orange Show Lane site." The vote was: Ayes: Estrada, Baxter, Shorett, Johnson, and Nayes: Brinker,Kelley and McCammack.] C Memo to Common Council July 31, 2009 Page 10 When I asked the Mayor if he had directed Mr. McNeely to put the item on the agenda adding the Waterman Avenue site,he said he had not. After further questioning,however,the Mayor said he had"discussed"it with Mr. McNeely. He went on to say, "the two of us did take a look at the two properties." At that point, the Mayor was asked if he had directed Mr. Tobin Brinker to contact the other businesses in the area to object to the homeless parolee facility being located there. The Mayor did not respond. Mr. Brinker then volunteered the information that he had decided to contact the businesses there because the city was not following the law. He said we were not following our municipal code and past practice of notifying the surrounding property owners (businesses) of the hearing, and then having the matter discussed at the Planning Commission and acted upon there before it went to the City Council. Mr. Brinker said the matter needed to be decided in open session and not in closed session and r ` needed to go to the Planning Commission before coming back to the City Council. �r The Mayor then began to make the same argument Mr.Brinker was making,and challenged the fact that we were not following"normal procedures,"saying the entire matter should have been done in open session from the beginning and implied that we might be in violation of the law. (One wonders if the Mayor and Mr.Brinker did discuss and plan what they would say in this meeting prior to the closed session taking place. If so, an allegation of complicity, if not more, could be forthcoming). The Mayor also said the matter should not be discussed in closed session,but in open session, and after it was heard by the Planning Commission. I then asked the Mayor why he had not raised that objection until now, since the matter has been discussed in closed session several times since HPC threatened to sue us. I reminded him that he had participated in those discussions and never questioned the right of the MCC to have those discussions in closed session. The Mayor did not respond to my question. Alluding to the comments by Mr.Brinker and the Mayor that our procedure was not in compliance with the law,I stated that our procedure was legal, that the MCC had adopted an emergency shelter Oordinance in open session(based on Government Code § 65858 allowing a two year duration for Memo to Common Council July 31, 2009 Page 11 such emergency ordinances), and that the matter was being properly discussed in closed session in an attempt to reach a settlement with HPC since HPC has threatened to sue us if we deny their pending CUP application to place their homeless parolee shelter at 840 North Sierra Way. At that point,Mr. Wilson reminded the MCC that because the ordinance was limited to two years, HPC could currently receive approval from the MCC to be at whatever site was selected for two years only anyway and then all sites would have to go through the regular process to get approval. Mr.Wilson explained that if the temporary site of HPC's homeless parolee shelter wasn't included in the final approval,HPC would have to relocate whatever temporary homeless parolee facility they established as a result of the present process. Mr.Wilson then explained that the reason for the urgency ordinance was so the City would have the time to consider and discuss potential sites for homeless shelters before arriving at any permanent decisions and locations. He pointed out that the additional time period for consideration would include the process of notifying nearby property owners of proposed sites so they could be heard before a final decision was made. All of that had been explained previously to the MCC before they voted to establish the emergency shelter ordinance. �— At that point,Mr.Empeno informed the MCC that HPC understood the emergency shelter ordinance ramifications and was only pursuing a two year lease for wherever they ultimately located their temporary shelter during the current process. One Council Member then said that having the entire discussion in open session was agreeable to her and she wanted to "go out there"and inform the public of the fact that the Mayor had changed his position since the previous Council meeting. She said the public should know that the Mayor had told the City Manager to place on the agenda an area to be considered for a homeless shelter despite the contrary direction of the MCC at the previous meeting. She referred to the City Manager as the "eighth council member" and said it needs to be made known that "the Mayor and City Manager are running the City and there is no longer any need for the people to elect a city council." The Mayor then discontinued his opposition to the matter being discussed in closed session and proceeded to voice objections to the Orange Show Lane site and a preference for the site on Waterman Avenue to be studied further. When the Mayor was asked by a Councilmember why he was changing his opinion on the matter since he opposed the Waterman Avenue site at the July 6th meeting and supported the Orange Show Lane site,the Mayor first denied that he had done that. But when two other Council Members and I reminded him that he had spoken up and had opposed the Waterman Avenue site at the previous MCC meeting,the Mayor said he hadn't had time to check both sites previously. C Memo to Common Council July 31, 2009 Page 12 By this time,a number of angry comments were being exchanged and at least three council members said they would discuss the matter in open session since it was on the open session agenda. Two of the Council members said they would"expose"the fact that the Council had voted in closed session not to consider the Waterman site, and that the Mayor and City Manager had defied the Council by pursing that site anyway and by putting it on the agenda contrary to the Council's vote. The Mayor then urged the Council just to continue the item and wait until the staff came back with their report at the next Council meeting scheduled for August 3rd. Some Council Members said they would not do that and asked me if they could discuss the item in open session. In response to a question from Council Member Estrada, I told the MCC that we were only discussing the issue in closed session due to HPC's threatened litigation but they could discuss it in open session because it was on the open session agenda and it would eventually have to be voted on in open session anyway. The Mayor then reversed his previous position and said there was no need for an open session v discussion and said we should just continue the matter for two weeks"now." I pointed out to the Mayor that the additional language he had the City Manager place on the open session agenda under item#22 included a two week continuance. Therefore, I said, a vote on his recommended language, in open session, would accomplish what he wanted - a two week continuance so the staff could research the Waterman Avenue site further. I also told the Mayor that it was obvious he had the four votes for the continuance so what difference did it make? "You had it put on the [open session] agenda so they are permitted to do it in open session,"I told him. The Mayor disagreed that they should discuss it in open session and the shouting match between the Mayor and several elected officials resumed. Council members and staff began to leave the closed session room and the Mayor adjourned the closed session portion of the meeting. Immediately after adjourning the closed session meeting,while still in the closed session room,the Mayor walked up to me. Most,but not all of those who had been attending the closed session,had left at that point. The Mayor urged me to try and convince the Council members not to discuss the matter in open session but to continue it for two weeks instead. O Memo to Common Council July 31, 2009 Page 13 I told the Mayor"if you hadn't told the City Manager to put it on the open session agenda that would be an easier sell. I don't know why you did that as it has been discussed in closed session up until now under `significant exposure to litigation,' and you never objected before." He said, "that [putting it on the open session agenda] may have been a mistake,but we don't need to get into that out there [gesturing towards the open session council chambers.]" I told him that under the circumstances,I doubted that the council would listen to me anyway. I told him,"I have been trying to get them to work through the City Manager and now they believe the City Manager is doing whatever you tell him to do." I also told him(some of) the Council Members were very angry that he and the City Manager put the item on the agenda to direct staff to discuss the Waterman Avenue site after the previous vote to not explore the Waterman site any further. I also reminded him again that he had opposed the Waterman Avenue site at the Council meeting on July 6th. I asked him why he had Mr.Empeno and Development Services go through all of that work, look at over thirty sites, and then decide that we should do the entire thing from scratch,beginning with the Planning Commission? OHe said it was because he had not visited the sites prior to the meeting on July 6th. But since that meeting, he said he had the opportunity to look at both sites and was concerned that the route the parolees would take to reach the bus line from the Orange Show Lane site would cause them to pass by a number of businesses on the way and that could cause problems for those businesses. By comparison,he said there was a bus stop adjacent to the Waterman Avenue site. I told him that sounded like a reasonable concern to me and had he brought it up during the closed session that just concluded I thought it might have found traction. However,I told him,by you and the City Manager and Mr. Brinker insisting the matter be on the open session agenda, and by objecting to any further closed session discussion, you agitated the Council members and I don't think I can dissuade them from discussing it in open session now even if I agreed with him. At that time we both walked out into the council chambers. I was subsequently informed that the Mayor approached Council Member McCammack and tried to persuade her not to go into a discussion of the facts relating to agenda item#22. At some point in the Council proceedings before we reached agenda item#22,the Mayor called an unscheduled recess. CAs the recess began, I observed Council Member Brinker walk up to five or six people near the Memo to Common Council July 31,2009 Page 14 public speakers' podium and engage in a conversation with them. I was informed that the people he was speaking with were business owners on Orange Show Lane and they were claiming to have Conditions, Covenants,and Restrictions,commonly referred to as CC&R's,which prohibited any business in their area from having anyone sleep overnight in any of the premises. Mr. Brinker subsequently approached me and asked me to "speak to the property owners from Orange Show Lane." He told me"they have questions about their CC &R's." I informed Mr.Brinker that I could not give them advice on their CC&R' s,even if I had read them which I hadn't. I told him they would need to seek advice from their own attorneys. Mr. Brinker then returned to the group. After a few minutes I walked over to the north end of the auditorium and was having a discussion with someone when it was pointed out to me that the Mayor, who was standing near Council Member Estrada's chair,was trying to get my attention. I looked towards the Mayor and saw him motion with his index finger for me to come to where he was. I walked over to him as he walked towards me. The Mayor told me he felt we should not have an open session discussion on the homeless shelter item, but instead should go back into closed session so I could advise the Council that my office needed the matter to be continued for two weeks so we could look at the CC &R's. I told the Mayor I wished he had been as concerned about our office having the time to do research on the Arden-Guthrie agenda item at the last Council meeting (on July 6th when he argued strenuously against a two week continuance to give us time to review contractual language for spending$8.4 million for low-income apartments) as he was now so we could look at some CC & R's. I told him, "certainly we will look at them but I don't see the need to go back into closed session to tell the Council that [information.]" I told him that could be done in open session. The Mayor then said he was going to reconvene the meeting and go into closed session for that purpose. I told the Mayor he was presiding and could do as he wished. Shortly thereafter, the meeting was reconvened and the Mayor announced we would be going into closed session. O Memo to Common Council July 31, 2009 Page 15 Upon going into closed session, we discussed the reported existence of the CC & R's and I confirmed that I had asked Mr.Empeno to ask the people who had been speaking with Mr. Brinker for a copy of their CC &R's. [Subsequently Mr. Empeno informed me that he had spoken to the people in the lobby after the motion to continue passed. Mr.Empeno said they told him they would email the CC &R's to him,which they did.] The Mayor said we should not have a public discussion on item#22 but continue the item for two weeks so the CC&R's could be reviewed by Mr.Empeno. Objections to that were voiced by some Council Members. We adj oumed to open session and when item#22 was called,it was continued with some comments being made but no involved discussion, as I recall. It is noted that at no time, during either open or closed session, did the Mayor inform the Common Council, or the public, of the fact that he had learned, since the Council meeting on July 6'that his daughter was attempting to lease the property next door to 225 West Orange Show Lane for her for-profit business. Nor did he recuse himself from further discussion and/or presiding over the meetings while this issue was being discussed Had the Mayor provided that information and recused himself as required by law,none of the actions taken by this Office since the Council meeting on July 20`s would have occurred. When we received the complaining telephone call from HPC attorney Lauren Nevitt we would have told her we are aware of the possible conflict, the Mayor has announced it as required by law and has abstained from taking any part in the discussions on the issue and has recused himself from presiding over any discussion, including any vote on HPC's item. That would have been the end of it. The Mayor's decision not to follow the law and not to recuse himself has placed the City, the Common Council and the City Attorney's Office in a difficult position legally. We are likely to be sued and, under all of the circumstances, especially due to the Mayor's refusal to recuse himself according to law,HPC will have a high possibility of success in any such lawsuit. The Mayor's actions have driven this matter,including the timing of the issue rising to the level of public knowledge, and he could have avoided the problem easily had he complied with the law. ANALYSIS: The information provided by HPC including the email, purportedly sent by Katie Willis, raises questions about the Mayor's reversal of his position. On July 6,2009,he spoke in opposition to the J I I I Memo to Common Council July 31, 2009 Page 16 Waterman Avenue site. At the July 20, 2009 Council meeting, he argued against the 225 West Orange Show Lane site and spoke in favor of the Waterman Avenue site. One interpretation of the events described above is that in between the July 6th Council meeting and the July 20th Council meeting, the Mayor learned or remembered that his daughter was searching for a new location for her gymnastic business and was attempting to acquire the building immediatelywest ofthe 225 West Orange Show Lane site for the proposed homeless parolee facility. Realizing that his daughter's gymnastic program,and the fact that it would be children who would be attending it, would not be compatible with an adult, homeless parolee facility next door, the Mayor took steps to prevent the site from being approved by the MCC. This scenario is particularly plausible if the Mayor feared the parolee center might include pedophiles. c Even absent such a concern, it is not likely that parents would want to place their children in a gymnastics program conducted next door to a live-in parolee facility. Thus, if his daughter leased the building she was trying to acquire, she would face a negative economic impact if the homeless r" parolee center was located at 225 W. Orange Show Lane. Ms. Willis would have to abandon her err efforts to lease the building to the west,an effort it appears she did not want to abandon if the email attributed to her is genuine. Reviewing the statement attributed to Katie Willis by HPC in the email, ". . . . should it [the homeless parolee facility] make it through City Counsel (sic) I will no longer be interested or able to lease the Orange Tree Lane,"the purported email appears to be the"smoking gun"of a purported Common Law conflict of interest allegation, as explained more fully below. It is pertinent that in Ms. Willis' purported email, she allegedly says she was informed of the situation by the Mayor's office and the reason she was so informed was because the Mayor's office knew she was attempting to lease the adjacent building- "I was urgently told this by the Mayor's Office because of our interest in the location." The facts, as presented to us, lend themselves to the preceding interpretation. Another plausible interpretation of the above information is that someone is trying to"set the Mayor up" by manufacturing an email, purportedly from his daughter, that lays out the elements of a Common Law conflict of interest involving the Mayor and his daughter. The fact that the email itself establishes all of the elements of a Common Law conflict of interest allegation (except the relationship,familial and financial,between the Mayor and"Katie,")mandates that the authenticity and the source of this document be carefully investigated. C Memo to Common Council July 31, 2009 Page 17 THE LAW: "There are numerous conflict of interest provisions in state law which relate to financial or contractual conflicts. These can be found in Government Code Section 1090 et seq., Government Code Section 87100 et seq.,(the Political Reform Act of 1974),and Health and Safety Code Section 33130(relating to redevelopment agencies)." City Attorney Legal Opinion No. 87-57; 10.37. California Government Code Section 1090 prohibits elected officials from participating in the making of a contract in which they have a financial interest. We have no evidence that the Mayor has a financial interest in the gymnastic business of his daughter Katie Willis. Absent evidence of such a financial interest, there is no need to go through the remainder of the required legal analysis to determine if there is a Section 1090 violation. An investigation of whether the Mayor does or does not have such a Section 1090 financial interest is in the purview of the District Attorney or the California Attorney General, not the City Attorney's office. The provisions of the California Political Reform Act of 1974, Government Code Section 8700 et seq., similar to the prohibition in Government Code Section 1090,prohibits a public official from making or participating in making or in any way attempting to use his official position to influence a governmental decision in which he knows or has reason to know he has a financial interest. A determination by the District Attorney or the Attorney General of such a financial interest would be a possible result of an investigation conducted by either of those offices into either a Section 1090 violation or a violation of the Political Reform Act. In addition to the question of whether or not the Mayor has a financial interest in his daughter Katie Willis'business as apart owner,investor or lender to his daughter's business, is the issue ofwhether or not Katie Willis is a source of income to the Mayor. No such information has been reported on the Mayor's Statements of Economic Interest to date. Nor has this office heard of or seen any evidence that would lead us to suspect that such a financial relationship exists. Although this office does have jurisdiction over violations of the Political Reform Act committed within the territorial boundaries of the City of San Bernardino, I believe any such investigation should be conducted by the District Attorney or the Attorney General at the same time a Section 1090 investigation is pursued,should that occur. Because a violation of Government Code Section 1090 is a felony, any investigation by the District Attorney or the Attorney General would take precedence over any misdemeanor investigation the City Attorney's Office might otherwise conduct. The Attorney General and the District Attorney both have concurrent jurisdiction with the City Attorney over violations of the Political Reform Act. Health and Safety Code Section 33130 relating to redevelopment agencies does not appear to be Memo to Common Council July 31, 2009 Page 18 relevant here. The preceding are the state statutes most frequently involved in contractual or other financial conflict of interest issues. However,this issue may not relate to a contractual conflict of interest; rather,it may relate to whether or not the public officer can in every instance give complete loyalty to the public. What may be even more important in these situations than individual intent is perception. Public officers should at all times not only be impartial, but give the appearance of impartiality. The relevant provision in this question is the Common Law doctrine concerning conflicts of interest: "Such doctrine. . . strictly requires public officers to avoid placing themselves in a position in which personal interest may come into conflict with their duty to the public." (67 Ops.Cal.Atty.Gen.381 and 59 Ops. Cal. Atty. Gen. 604, 613) The Common Law doctrine of Conflicts of Interest maybe the applicable legal focal point for this situation involving the Mayor and his daughter. The Attorney General in the above-quoted authority went on to say"that the courts have traditionally predicated their decisions on the dual basis of the statutes and the common law rule, . . . . and were a violation of the common law rule found to exist, such could form the basis of an allegation of willful misconduct in office within the meaning of [Government Code] section 3060 et seq."(The"Removal From Office" statute). The California Attorney General has also held that if a situation arises where a common law conflict of interest exists as to a particular transaction, the official "is disqualified from taking part in the discussion and vote regarding"the particular matter. See 26 Ops. Cal. Atty. Gen. 5, 7; 1955. In Clark v. City of Hermosa Beach (1996) 48 Cal. App. 4`s 1152, the court concluded that in an adjudicatory hearing(such as HPC's appeal of a denial of a CUP),the common law is violated if a decision maker is tempted by his or her own pecuniary interests. In addition,the doctrine applies to situations involving a nonfinancial personal interest. (Id at p. 1171,fn. 18)[Emphasis added]. One more recent opinion(January 14, 2009) of the Attorney General, 92 Ops. Cal. Atty. Gen. 19, is close to the situation facing the Common Council. That opinion discussed the situation where a recipient of a proposed loan was a corporation solely owned by an adult,non-dependent son of an agency board member who resided with the board member in the same rented apartment. Even if the board member did not have a statutory interest in her son's contract, the Attorney General's analysis stated, "it is difficult to imagine that the agency member has no private or personal interest in whether her son's business transactions are successful or not. At the least, an appearance of i Memo to Common Council July 31, 2009 Page 19 impropriety or conflict would arise by the member's participation in the negotiations and voting upon an agreement that,if executed,would presumably redound to her son's financial benefit." The Attorney General went on to quote one court's statement in regards to the common law doctrine and the need for its strict enforcement, "a public officer is impliedly bound to exercise the powers conferred on him with disinterested skill, zeal, and diligence and primarily for the benefit of the public . . . ." [Citations omitted]. The Attorney General also said, " under theses circumstances,we believe the only way to be sure of avoiding the common law prohibition is for the board member to abstain from any official action with regard to the proposed loan agreement and make no attempt to influence the discussions, negotiations, or vote concerning that agreement" The Attorney General formally concluded that the circumstance by itself did not "preclude the agency from entering into an agreement to make that loan. However, to avoid a conflict between her official and personal interests, the board member should abstain from any official action with regard to the proposed loan agreement and make no attempt to influence the discussions, negotiations, or vote concerning that agreement." [Emphasis added]. In advising the Common Council on this problem the members should keep in mind the fact that the preceding and following comments should not be viewed as a conclusion by the Office of the City Attorney that the Mayor has violated the common law doctrine against conflicts of interests. The allegation by HPC has not yet been investigated. Statements in this memorandum are an attempt to explain an existing legal problem facing our client, the Common Council of the City of San Bernardino. Regardless of the possible liability and ethics problems raised by the Mayor's conduct while involved in this matter, it should be remembered throughout this memorandum that in the United States, one is presumed innocent unless proven otherwise. THE PROBLEM BEFORE THE COMMON COUNCIL: It would appear that "a nonfinancial personal interest"(as stated in Clark v. City of Hermosa Beach above)by the Mayor in the financial welfare of his adult child might be a violation of the Common Law doctrine prohibiting conflicts of interests. If a public official has put his concern for his adult child's financial well-being, in a private business transaction that will be impacted by his city's governmental decision, above his duty to his office, has a violation occurred? Here, it appears that the Mayor might have concluded at or prior to the July 6,2009 meeting of the MCC that the Orange Show Lane site was the best location for a homeless parolee facility despite �•/ the problems it might cause nearby businesses. Such a conclusion might have been prompted by a Memo to Common Council �j July 31,2009 Page 20 balancing of concerns and concluding that a visible homeless parolee facility on Waterman Avenue might be more damaging to the city's interests than such a facility would be if located in a less- traveled, less-visible area of the city. Such was the position of city planners at the closed session meeting on July 6, 2009. But it also appears that when the Mayor factored-in the purported financial interest of his adult child in opening a business in close proximity to that proposed homeless parolee shelter, the Mayor's concern for nearby businesses appeared to increase to the point that it caused him to change his position on where the facility should ultimately be located. The argument will be: "The Mayor didn't object to placing homeless parolees in a shelter near our businesses until his daughter wanted to move her business into our neighborhood. Then he used his position as Mayor to take steps to stop that from happening." We note that even if the Mayor renews his denial that he opposed the Waterman Avenue site at the July 6th Council meeting,and even if,for the sake of argument,we accept that assertion as true,such denial does not relieve the Mayor of the appearance that he may have acted contrary to the common law prohibition against conflicts of interests. The fact that the Mayor,in closed session on July 20, 2009, spoke in support of studying the site at 673 South Waterman Avenue and in opposition to the site at 225 West Orange Show Lane appears to be a conflict of interest under the common law if his daughter has a business interest in the immediate area of 225 West Orange Show Lane. This is because such an interest would be negatively impacted if a parolee homeless shelter opened near that location. The Mayor should have recused himself from the discussion of the two sites and from chairing that portion of the meeting altogether. It does not matter whether the Mayor first opposed the Waterman Avenue site or not. The fact that his daughter has a financial interest in the one site, pursuant to the Common Law doctrine of conflicts of interest, should have been sufficient information to alert the Mayor to remove himself from discussing, presiding or attempting in any way to influence the outcome of the controversy. Unfortunately, it does appear that the Mayor may have used his official position to influence the making of a governmental decision that would impact his daughter's business. This appears to have been done by(at least)"discussing"with the City Manager the placing of an item on the Council agenda to consider the Waterman Avenue site for the facility. The Mayor has acknowledged having had this discussion with the City Manager subsequent to the July 6th meeting, even though he and the Council had decided by a formal vote at that meeting to consider the site at !" 225 West Orange Show Lane. At that time,the Council considered,discussed and,by choosing the Memo to Common Council July 31, 2009 Page 21 Orange Show Lane site, chose not to direct the staff to study the Waterman Avenue site any further due to the negative impact it would have on people traveling through the City on Waterman Avenue, one of the City's main entrance and exit routes. It also appears, as stated above, that the fact the Mayor presided and participated in the discussion of the issue in closed session on July 20th constituted a violation of the common law doctrine of conflicts of interests. Appearance also suggests that the Mayor may have used his official position to influence the making of another governmental decision by attempting to dissuade any open-session discussion ofthe issue, a discussion which might have lead to the discovery of his alleged conflicts of interests. Had Council Member Tobin Brinker's constituent business owners spoken during public comments on the item on July 20th,or had HPC done so,the likelihood of the alleged involvement of the Mayor's daughter being mentioned was high. Again, none of what may actually have occurred, as opposed to what appeared to have happened, may be determined to any degree of certainty until a careful and thorough investigation is commenced and concluded. This office will be inquiring further into the actual facts as well as researching further the several legal issues involved in these occurrences and the alleged relationship between the Mayor and Ms. Katherine Willis. Hopefully we may learn that the information we have received thus far is not accurate and there is no culpability on the part of the Mayor and no violation of any statute or Common Law prohibition. What has been done has been done, and although the bell cannot be "un-rung,"the Mayor should refrain from any further attempt to influence the outcome of this controversy pending an investigation into his overall conduct throughout the pendency of this issue before the City's governmental bodies. If the Mayor fails to recuse himself he risks adding the additional allegation of"willful conduct" to the conflict of interest allegation. "Willful conduct," in the opinion of some authorities is necessary to remove a public official from office pursuant to Government Code § 3060. This Office has conferred with both the State Attorney General's Office and the San Bernardino County District Attorney's Office on this situation. We have decided to first refer this matter to the Attorney General for review on the issue of the Common Law doctrine prohibiting conflicts of interests and the removal provisions of California Government Code § 3060 only. Memo to Common Council July 31, 2009 Page 22 Following further appropriate consultation with the Attorney General's Office and the District Attorney's Office,this Office will report back to the Common Council as to whether or not any civil legal action(s)needs to be considered by the Common Council. We anticipate that the Mayor,with the possible assistance of some Council members,will engage in a campaign to discredit this Office though the press and will seek to interfere with this Office's ability to perform its duties through complaints to other State and County agencies. Such attempts to dissuade us from performing our duties under the City Charter and the Political Reform Act were repeatedly made when this Office investigated and pursued the prosecution of Council members for bribery in 1995. In that case,character assassination was also attempted by those being investigated. Through the press, word of mouth and by complaints to other agencies numerous attempts over a number of years to dissuade this Office from performing its duty were made. We were not deterred from performing our duty then and will not be deterred during the present instance. The Mayor can expedite the ultimate conclusion of this matter if he chooses to recuse himself from further involvement in this issue and by cooperating in an investigation which,absent any evidence of a financial interest in his daughter's business, will probably clear him of any violation of Government Code § 1090 and the Political Reform Act. This will leave only the issue of the Common Law doctrine of conflicts of interests. A decision by the Mayor to recuse himself at this point would possibly preclude a finding of"willful conduct"and would probably result in no further action being taken pursuant to Government Code § 3060. If the Mayor,after carefully studying 92 Ops. Cal.Atty. Gen. 19,decides to recuse himself from all involvement in this issue, including the related agenda items scheduled for the August 3, 2009 Council meeting,such conformance to the law will probably be sufficient to terminate further action and will improve the City's position and provide us with the basis for some defense of an allegation of a conflict of interest by the Mayor that will be raised in any lawsuit which may be filed by HPC. Re pectfully submitted, es F. Penman ty Attorney O CITY OF SAN BERNARDINO INTEROFFICE MEMORANDUM TO: James F. Penman, City Attorney FROM: Henry Empeflo Jr., Senior Deputy City Attorney DATE: July 24, 2009 Re: Human Potential Consultants,LLC("HPC") On July 21,2009,HPC's attorney,Lauren Nevin of Sidley Austin,LLP,called me and sent me the attached email,which includes an email forwarded to her by HPC's real estate agent/broker, Liz Roubidoux, of NAI Capital. Ms. Nevitt sent me this email and complained that the Mayor's office was opposing the 225 West Orange Show Lane alternative site because of the Mayor's daughter's interests. In my telephone conversation with Ms. Nevitt, she said that "Katie" is the Mayor's daughter,and that Katie was wanting to lease a building near 225 West Orange Show Lane. Ms.Nevin said that Katie was not only communicating opposition last week regarding the 225 West Orange Show Lane alternative site, that she continued to make phone calls this week to other real Cestate agents asking about other sites HPC was interested in, and was trying to sabotage HPC's project. On July 22, 2009, 1 called Ms. Nevin and asked her to provide me with the full name and employer of"Toby'and to send me the complete email that Katie sent,which would include Katie's email address. Ms.Nevitt said she would call Liz Roubidoux to request this information but that Ms. Roubidoux was out of town and that Ms. Nevitt would not get back to me until the next day. In our telephone conversation on July 23,2009,Ms.Nevitt said that Liz Roubidoux does not have the complete email from Katie which shows Katie's email address. Ms. Nevin said that Ms. Roubidoux said that real estate agents routinely cut and paste emails and delete the email addresses of their clients out of fear that the receiving real estate agent will"cut them out of the deal". Ms. Roubidoux told Ms. Nevin that Katie's full name is Kathleen M. Willis, with a business called Inland Empire Gymnastics Academy;that Katie sent this email to her real estate agent,Toby Tewell of Lee&Associates in the City of Riverside; and that Toby Tewell then forwarded this to"Joe", a real estate agent in Ms. Robidoux's office,NAI Capital,who then forwarded it to Ms.Roubidoux. Ms. Nevitt said that Joe did not want to be involved so Ms. Roubidoux deleted his name from the email. Ms.Nevin also said that the Mayor's daughter continues to contact real estate agents asking about HPC's alternative sites,which undermines and is adverse to HPC's and the City's efforts to find an alternative location for their proposed homeless shelter. Ms.Nevitt said that she did not want to antagonize the Mayor or Councilmembers, that she only wanted Katie to stop these Ccommunications. FAEMPENO\Human PotmtialVFPHum PotentiaiConsultants.Mem.wpd Page 1 of 2 Henry Empeno From: Nevitt, Lauren[Inevitt @Sidley.com] %�it: Tuesday,July 21, 2009 2:26 PM To: Henry Empeno Cc: Remy De La Peza Subject: Email re: Orange Show Lane Henry, See below for a copy of the email that we discussed. This email was forwarded from Toby(the recipient), a real estate agent, to another real estate agent who works in Liz's office. It is my understanding that it was authored by Katie, who is the Mayor's daughter. Lauren Nevitt I Sidley Austin LLP 555 West Fifth Street Los Angeles,CA 90013 Phone:213.896.6669 Fax:213.896.6600 Inevitt@sidley.com I www.sidley.com From: Liz Roubidoux [mailto:lroubidoux @naicapital.com] Sent: Sunday, July 19, 2009 6:04 PM To: Nevitt, Lauren Subject: FW: Orange Show Lane Liz Roubidoux I Senior Vice President NAI Capital Commerical Real Estate Services, Worldwide 2280 Market Street ISuite 150 1 Riverside, CA 92501 Tel: 951.346.0807 Fax: 866.491.2108 Cell: 951.751.0009 Cell:909.440.0967 lroubidoux@naicapital.com O&R-$900+ million in Total Sales Volume Investment Sales,Leasing,&Property Management 1YA1 Capital wmmome Pu Erato sow,woram is $45 Billion, 5,000 Commercial Real Estate Professionals,325 Offices in over 55 Countries APlease consider the environment before printing this message. Liz, requested. Hey Toby - Have you heard anything back from the Orange Tree property? 7/24/2009 Page 2 of 2 1 thought that you might need to know the below pertinent information regarding the Orange Tree Lane location and perhaps you can pass this on to the other agent and property owner. Maybe it will even "light a fire under them": A b4-bed "for profit" parolee house has put in an application to the City to locate just north of Orange Tree Lane and Sierra Way (in one of the warehouses that they plan to convert), which is just east of the building that we are trying to get. This came up "on radar" at City Hall on Wednesday and I was urgently told this by the Mayor's Office because of our interest in the location. The Orange Tree Lane/Sierra Way location has been OKed by the City Attorney's office for the parolee housing and should it make it through City Counsel, I will no longer be interested or able to lease the Orange Tree Lane. Katie ----------------------------------------------------------------------------------------------------- IRS Circular 230 Disclosure: To comply with certain U.S. Treasury regulations, we inform you that unless expressly stated otherwise, any U.S. federal tax advice contained in this communication, including attachments,was not intended or written to be used, and cannot be used, by any taxpayer for the purpose of avoiding any penalties that may be imposed on such taxpayer by the Internal Revenue Service. In addition, if any such tax advice is used or referred t&y other parties in promoting, marketing or recommending any partnership or other entity, tment plan or arrangement,then (i) the advice should be construed as written in connection with the promotion or marketing by others of the transaction(s) or matter(s) addressed in this communication and (ii)the taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor. This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. O 7/24/2009 Wds [aw. 92 Ops.Cal.Arty.Gen. 19,09 Cal.Daily Op. Serv.660,2009 Daily Journal Page I CD.A.R 800,2009 WL 129874(Cal.A.G.) 92 Ops.Cal. Arty. Gen. 19,09 Cal.Daily Op. Serv. 660,2009 Daily Journal D.A.R. 800,2009 WL 129874 (C8LA.G.) Office of the Attorney General State of California Opinion No. 07-807 January 14, 2009 THE HONORABLE NORMA J. TORRES MEMBER OF THE STATE ASSEMBLY THE HONORABLE NORMA J. TORRES,MEMBER OF THE STATE ASSEMBLY, has requested an opinion on the following question: May a city redevelopment agency enter into a loan agreement for commercial property improvement where the Orecipient of the proposed loan is a corporation solely owned by the adult, non-dependent son of an agency board member who also resides with the board member in the same rented apartment? CONCLUSION The circumstance that the recipient of a proposed commercial property improvement loan from a city redevelop- ment agency would be a corporation solely owned by the adult, non-dependent son of an agency board member who also resides with the board member in the same rented apartment does not, by itself, preclude the agency from entering into an agreement to make that loan.However,to avoid a conflict between her official and person- al interests, the board member should abstain from any official action with regard to the proposed loan agree- ment and make no attempt to influence the discussions,negotiations,or vote concerning that agreement. ANALYSIS We are informed that a city redevelopment agency is considering whether to enter into a loan agreement for commercial property improvement and that the recipient of the proposed loan is to be a corporation solely owned by the adult son of an agency board member. We are also told that,while the son resides with the board member in the same rented apartment, we may assume for purposes of this analysis that he is not dependent on the board member for support. [FN II Given this context, we are asked whether the agency may enter into the proposed loan agreement without violating any conflict-of-interest laws. As relevant here, those laws consist of two statutory schemes,Government Code section 1090 and its related provisions and the Political Reform Act of 1974,as well as the common law doctrine against conflicts of interest. For the reasons that follow, we conclude that the given circumstances,by themselves,would not preclude the agency from entering into the proposed loan agreement, but that, to avoid a conflict between her official and personal interests, the board member should 0 2009 Thomson Reuters/West.No Claim to Orig.US Gov.Works. 92 Ops.Cal.Atty.Gen. 19,09 Cal.Daily Op.Serv.660,2009 Daily Journal Page 2 D.A.R 800,2009 WL 129874(Cal.A.G.) completely abstain from any official action with regard to the proposed loan agreement and make no attempt to influence the discussions,negotiations,or vote concerning that agreement. Government Code section 1090 Our consideration of the question presented first requires that we undertake an analysis under Government Code section 1090, [FN2] which generally forbids the board of a public agency from entering into a contract in which one of its members has a personal financial interest. [FN3] In the words of the statute, "Members of the Legis- lature,state, county, district,judicial district,and city officers or employees shall not be financially interested in any contract made by them in their official capacity, or by any body or board of which they are members...." [FN4] i •2 A city redevelopment agency is a public body, [FN5] and members of its governing board are thus public of- ficials within the meaning of section 1090, which applies to virtually all members, officers, and employees of such agencies. [FN6] An agreement by a public agency to loan money is treated as a contract for purposes of section 1090. [FN7] Section 1090 is concerned with financial interests,other than remote or minimal interests,that prevent public of- ficials from exercising absolute loyalty and undivided allegiance in furthering the best interests of their public agencies. [FN8] Under section 1090, "the prohibited act is the making of a contract in which the official has a financial interest." FN9 [ ] Such an interest may be direct or indirect,but the"evil to be thwarted by section ]090 O is easily identified: If a public official is pulled in one direction by his financial interest and in another direction by his official duties,his judgment cannot and should not be trusted,even if he attempts impartiality."[FN10] A contract that violates section 1090 is void. [FN 11] With these principles in mind,we consider whether the familial relationship between the redevelopment agency board member and the member's adult son will, by itself, render the proposed loan agreement between the agency and the member's son's corporation invalid under section 1090. We considered a similar question in 88 Ops.Cal.Atty.Gen. 222 (2005). At issue in that opinion was whether the adult son of a redevelopment agency board member could acquire real property within the redevelopment zone without causing the member to violate Health and Safety Code section 33130(a), which prohibits agency officers and employees from acquiring "any interest in any property included within the project area within the community," including "any indirect finan- cial interest" in such property. [FN12] Because the statute under analysis did not further specify what consti- tuted a prohibited"indirect financial interest," we found it appropriate to consult other conflict-of-interest stat- utes, including section 1090,to determine whether the parent-adult child relationship between the agency mem- ber and his son would give rise to the member having a cognizable financial interest in the property his son sought to purchase. [FN13] Our review of analogous statutory schemes led us to conclude that no such prohib- ited interest would arise solely on account of the parent-adult child relationship. [FN 14] Here, where we are called upon to analyze section 1090 and its related provisions directly, rather than by com- parison, the result is the same. For purposes of this analysis, we note that the Legislature has expressly defined certain"remote interests"[FN 15] and"noninterests" [FN 16) that do not come within section 1090's general pro- hibition. If a "remote interest" is present, as defined in section 1090, the proposed contract may be made, but only if(1)the public official or board member in question discloses his ar her financial interest in the contract to the public agency,(2)such interest is noted in the entity's official records, and(3)the individual with the remote O 0 2009 Thomson Reuters/West.No Claim to Orig.US Gov.Works. 92 Ops. Cal.Atty.Gen. 19,09 Cal.Daily Op. Serv.660,2009 Daily Journal Page 3 D.A.R.800,2009 WL 129874(Cal.A.G.) interest abstains from any participation in the making of the contract. [FN17] If a "noninterest" is present, as defined in section 1091.5,the contract may be made without the official's abstention,and generally a noninterest does not require disclosure. [FN 18] We have found that an examination of these statutory exceptions is useful in determining what would otherwise be viewed by the Legislature as constituting a proscribed"financial interest." [FN 19] *3 In our 2005 opinion,we observed that,although the Legislature deems a parent to have a remote financial in- terest for purposes of section 1090"in the earnings of his or her minor child for personal services,"[FN20]there is no similar determination that a parent has either a direct or indirect financial interest in the property or earn- ings of an adult child. [FN21] And we have previously found that the familial relationship between a county su- pervisor and his adult brother, in that instance an automobile dealer, would not result in a violation of section 1090 if the brother sold automobiles to the county."Neither brother has any proprietary'interest' in the financial attainments of the other;neither is entitled to any contribution or support from the other."[FN22] The situation here is analogous. A parent is not legally compelled to support an adult child absent special cir- cumstances not present here,such as the child's incapacity. [FN23] Conversely, an adult child has no legal duty to support a parent, unless the parent is "in need and unable to support himself or herself by work," [FN24] a circumstance also not present here. We are informed that the board member's son's corporation will receive the proceeds of the agency's loan. There is no indication that the member will personally profit from this transaction. While the Legislature could have characterized the inherent "interest" that a self-supporting parent may be said to have in the financial attain- ments of an adult child as one that, by itself, amounts to a prohibited financial interest, it has not done so. Nor have we located any judicial determination that the parent-adult child relationship, in itself, creates a financial conflict of interest in situations of the sort considered here. [FN25] Thus,we conclude that the familial relation- ship between the board member and her adult son does not invalidate the proposed loan agreement under section 1090. For similar reasons, we believe that a housing arrangement in which a public official and his or her adult child live together in the same rented apartment does not necessarily give the parent a prohibited financial interest in the contractual dealings of the child for purposes of section 1090. Although by statute a landlord has a"remote interest" in his or her tenant's official contracts and vice versa, [FN26] the same is not the case for individuals who share a rented apartment, and whose legal obligations to one another are different in kind from those owed between landlord and tenant. Thus, we conclude that section 1090 does not preclude the redevelopment agency from entering into the contract at issue due solely to the circumstance that an agency board member and her adult son share living space in a rented apartment. Having so concluded, however, we-caution that if there were other circumstances suggesting that the member had a financial interest in the proposed contract, those circumstances would need to be analyzed separately to determine whether an impermissible conflict existed. [FN27] The Political Reform Act *4 We next consider what effect, if any, the Political Reform Act of 1974 [FN28] has on this question. The Political Reform Act generally prohibits public officials from participating in "governmental decisions" in which they have a financial interest. [FN29] Of potential relevance here, the Political Reform Act requires offi- C ©2009 Thomson Reuters/West.No Claim to Orig.US Gov.Works. 92 Ops.Cal.Atty.Gen. 19,09 Cal.Daily Op. Sm. 660,2009 Daily Journal Page 4 D.A.R.800,2009 WL 129874(Cal.A.G.) O cials to abstain from participating in such a decision when it will have a material financial effect on a member of his or her "immediate family." [FN30] The term"immediate family"includes only the official's "spouse and de- pendent children." [FN31] As stated earlier, we are assuming here that the board member's adult son is not her dependent. I No other provision of the Political Reform Act purports to link a public official's personal financial interests to those of an individual(other than the official's spouse and/or dependent children)with whom he or she shares a rented residence. Therefore, we find that the Political Reform Act's prohibitions are not triggered by the circum- stance that the board member shares a rented residence with her adult son, whose corporation seeks to contract with the agency. Common Law Doctrine against Conflicts of Interest Having found no disqualifying financial interests within the meaning of section 1090 or the Political Reform Act, we now analyze the circumstances under the common law doctrine against conflicts of interest. The com- mon law doctrine"prohibits public officials from placing themselves in a position where their private, personal interests may conflict with their official duties." [FN32] While the focus of the statutes analyzed above is on ac- tual or potential financial conflicts, the common law prohibition extends to noneconomic interests as well. [FN33] Thus,we have previously cautioned that, even where no conflict is found according to statutory prohibi- tions, special situations could still constitute a conflict under the common law doctrine. [FN34] While the com- mon law may be abrogated by express statutory provisions, [FN35] the statutes we have considered thus far do not address the circumstances we have been asked to evaluate, nor are we aware of any other statutes that ad- dress those circumstances. Here,even if the agency board member cannot be said to have a statutory financial interest in her son's contract with the agency within the meaning of section 1090 or the Political Reform Act, it is difficult to imagine that the agency member has no private or personal interest in whether her son's business transactions are successful or not. At the least,an appearance of impropriety or conflict would arise by the member's participation in the nego- tiations and voting upon an agreement that,if executed,would presumably redound to her son's financial benefit. As one court has said with regard to the common law doctrine and the need to strictly enforce it: *5 A public officer is impliedly bound to exercise the powers conferred on him with disinterested skill,zeal, and diligence and primarily for the benefit of the public.... [11.... [¶] Actual injury is not the principle the law proceeds on.Fidelity in the agent is what is aimed at,and as a means of securing it the law will not per- mit him to place himself in a position in which he may be tempted by his own private interests to disregard those of his principal. This doctrine is generally applicable to private agents and trustees, but to public of- ficers it applies with greater force, and sound policy requires that there be no relaxation of its stringency in any case that comes within its reason.... [FN36] In our view, the agency board member's status as the private contracting party's parent and co-tenant places her in a position where there may be at least a temptation to act for personal or private reasons rather than with "disinterested skill,zeal,and diligence"in the public interest,thereby presenting a potential conflict. In an earli- er opinion, we advised that a common law conflict of interest may "usually be avoided by [the official's) com- plete abstention from any official action"with respect to the transaction or any attempt to influence it. [FN37] Under these circumstances, we believe that the only way to be sure of avoiding the common law prohibition is ®2009 Thomson Reuters/West.No Claim to Orig.US Gov.Works. 92 Ops.Cal.Atty.Gen. 19,09 Cal.Daily Op.Serv.660,2009 Daily Journal Page 5 D.A.R.800,2009 WL 129874(Cal.A.G.) for the board member to abstain from any official action with regard to the proposed loan agreement and make no attempt to influence the discussions,negotiations,or vote concerning that agreement. Accordingly, we conclude that the circumstance that the recipient of a proposed commercial property improve- ment loan from a city redevelopment agency would be a corporation solely owned by the adult, non-dependent son of an agency board member who also resides with the board member in the same rented apartment does not, by itself, preclude the agency from entering into an agreement to make that loan. However, to avoid a conflict between her official and personal interests, the board member should abstain from any official action with re- gard to the proposed loan agreement and make no attempt to influence the discussions,negotiations,or vote con- cerning that agreement. Edmund G.Brown JR. Attorney General Marc J.Nolan Deputy Attorney General [FN I]. In support of this assumption, we have been informed that the agency board member does not claim her son as a dependent for tax purposes. [FN2]. All further references to the Government Code are by section number only. [FN3]. 89 Ops.Cal.Atty.Gen. 217,218 (2006). [FN4]. Govt. Code§ 1090. [FNS].Health&Safety Code § 33100; see 88 Ops.Cal.Atty.Gen.222(2005). [FN6). See 61 Ops.Cal.Atty.Gen. 243, 248-250 (1978) (applying § 1090 to members of a local redevelopment agency). [FN7].E.g.,Carson Redevelopment Agency v.Padilla, 140 Cal.App.4th 1323, 1329-1330(2006). [FN8]. Stigall v.Taft, 58 Cal. 2d 565,569(1962). [FN9]. People v. Honig,48 Cal.App.4th 289,333 (1996). [FN 10].Carson Redevelopment Agency, 140 Cal. App.4th at 1330. [FNI1].Thomson v. Call, 38 Cal. 3d 633,646(1985). [FN 12].88 Ops.Cal.Atty.Gen. at 224. [FN13].Id.at 224-225. [FN14].Id. 0 2009 Thomson Reuters/West.No Claim to Orig.US Gov.Works. 92 Ops.Cal.Any.Gen. 19,09 Cal.Daily Op. Serv. 660,2009 Daily Joumal Page 6 D.A.R. 800,2009 WL 129874(Cal.A.G.) Q [FN 15].§ 1091. [FN 16].§ 1091.5. [FN17]. See 88 Ops.Cal.Atty.Gen. 106, 108 (2005); 83 Ops.Cal.Atty.Gen. 246, 248 (2000); see also People v. Honig,48 Cal.App.4th at 318-319. [FN181. City of Vernon v. Central Basin Mun. Water Dist., 69 Cal. App. 4th 508, 514-515 (1999); 84 Ops.Cal.Atty.Gen. 158, 159-160(2001). [FN 19].85 Ops.Cal.Atty.Gen. 34,36-37(2002); see Honig,48 Cal.App.4th at 289,317. [FN20].§ 1091(6)(4). [FN21].88 Ops.Cal.Atty.Gen. at 225. [FN22].28 Ops.Cal.Atty.Gen. 168, 169(1956). [FN23].In re Marriage of Chandler, 60 Cal. App. 4th 124, 130 (1997); In re Marriage of Lambe&Meehan, 37 Cal. App.4th 388,391-392 (1995);see Fam. Code§ 58. [FN24]. Fam. Code § 4400; see also Chavez v. Carpenter, 91 Cal. App. 4th 1433, 1445 & fn. 8 (2001) (noting © statutory standard). [FN25].An example of an indirect financial interest stemming from a parent-adult child transaction is found in Moody v. Shuffleton, 203 Cal. 100(1928). There, a county supervisor sold his printing business to his son and took back a promissory note secured by a chattel mortgage on the business. Because the business helped to se- cure the value of the official's mortgage,it was held that a conflict existed when printing contracts were awarded to the son. Id, at 103-104; see also Thomson, 38 Cal. 3d at 645. In that case, the public official had a financial interest in the transaction (that of a mortgage holder in a printing business seeking to contract with the county) that was separable from and not dependent on the parent-child relationship. [FN26].§ 1091(b)(5). [FN27].See,e.g.,88 Ops.Cal.Atty.Gen. at 225. [FN28].§§ 87100 et seq. [FN29].See § 87100; 88 Ops.Cal.Atty.Gen. 32,33-34(2005). [FN30].§ 87103. [FN31]. § 82029. [FN321. Clark v. City of Hermosa Beach, 48 Cal. App. 4th 1152, 1171 (1996), quoting 64 Ops.Cal.Atty.Gen. 795,797(1981);see also Kunec v.Brea Redevelopment Agency,55 Cal.App.4th 511, 519(1997). 0 2009 Thomson Reuters/West.No Claim to Orig.US Gov.Works. 92 Ops.Cal.Arty.Gen, 19,09 Cal.Daily Op. Serv.660,2009 Daily Journal Page 7 D.A.R. 800,2009 WL 129874(Cal.A.G.) [FN333.Clark,48 Cal. App. 4th at 1171 &fn. 18; 70 Ops.Cal.Atty.Gen. 45,47 (1987); 64 Ops.Cal.Atty.Gen. at 797. [FN34].See 53 Ops.Cal.Atty.Gen. 163, 165-167(1970). [FN353.70 Ops.Cal.Atty.Gen.at 47;67 Ops.Cal:Atty.Gen. 369,381 (1984). [FN361.Noble v. City of Palo Alto 89 Cal. App. 47, 51 (1928) (citations omitted); see also Clark, 48 Cal. App. 4th at 1170-1171. [FN371. See 70 Ops.Cal.Atty.Gen, at 47; 64 Ops.Cal.Atty.Gen. at 797; see Clark, 48 Cal. App. 4th at 1171 (conflicted official is disqualified from taking any part in the discussion and vote regarding the particular mat- ter); Eugene McQuillin, The Law of Municipal Corporations vol. 4, § 13.35, 840-841 (3d ed. rev. 1992); 26 Ops.Cal.Atty.Gen. 5,7(1955). 92 Ops. Cal. Atty. Gen. 19, 09 Cal. Daily Op. Serv. 660, 2009 Daily Journal D.A.R. 800, 2009 WL 129874 (Cal.A.G.) END OF DOCUMENT O ®2009 Thomson Reuters/West.No Claim to Orig.US Gov.Works. V CITY OF SAN BERNARDINO INTEROFFICE MEMORANDM Into Rec. at MCC/CDC Mg:! TO: James F. Penman, City Attorney by' A nda Re FROM: Henry Empeiio Jr., Senior Deputy City Attorney ity Derkl Secretary DATE: July 24, 2009 City of San Bernardino Re: Human Potential Consultants,LLC("HPC") On July 21,2009,HPC's attorney,Lauren Nevitt of Sidley Austin,LLP,called me and sent me the attached email,which includes an email forwarded to her by HPC's real estate agent/broker, Liz Roubidoux, of NAI Capital. Ms. Nevitt sent me this email and complained that the Mayor's office was opposing the 225 West Orange Show Lane alternative site because of the Mayor's daughter's interests. In my telephone conversation with Ms. Nevitt, she said that "Katie" is the Mayor's daughter,and that Katie was wanting to lease a building near 225 West Orange Show Lane. Ms.Nevitt said that Katie was not only communicating opposition last week regarding the 225 West Orange Show Lane alternative site,that she continued to make phone calls this week to other real estate agents asking about other sites HPC was interested in, and was trying to sabotage HPC's project. On July 22, 2009, I called Ms. Nevitt and asked her to provide me with the full name and employer of"Toby"and to send me the complete email that Katie sent,which would include Katie's email address. Ms. Nevitt said she would call Liz Roubidoux to request this information but that Ms. Roubidoux was out of town and that Ms. Nevitt would not get back to me until the next day. In our telephone conversation on July 23,2009,Ms.Nevitt said that Liz Roubidoux does not have the complete email from Katie which shows Katie's email address. Ms. Nevitt said that Ms. Roubidoux said that real estate agents routinely cut and paste emails and delete the email addresses of their clients out of fear that the receiving real estate agent will "cut them out of the deal". Ms. Roubidoux told Ms. Nevitt that Katie's full name is Kathleen M. Willis, with a business called Inland Empire Gymnastics Academy;that Katie sent this email to her real estate agent,Toby Tewell of Lee&Associates in the City of Riverside; and that Toby Tewell then forwarded this to "Joe", a real estate agent in Ms. Robidoux's office,NAI Capital,who then forwarded it to Ms. Roubidoux. Ms. Nevitt said that Joe did not want to be involved so Ms. Roubidoux deleted his name from the email. Ms.Nevitt also said that the Mayor's daughter continues to contact real estate agents asking about HPC's alternative sites, which undermines and is adverse to HPC's and the City's efforts to find an alternative location for their proposed homeless shelter. Ms.Nevitt said that she did not want to antagonize the Mayor or Councilmembers, that she only wanted Katie to stop these ccommunications. FAEMPENMHumen PotentialVFPHum PotentialConsultants.Mem.wpd Pagel of 2 Henry Empeno From: Nevitt, Lauren[Inevitt @Sidley.comj .it: Tuesday,July 21, 2009 2:26 PM To: Henry Empeno Cc: Remy De La Peza Subject: Email re: Orange Show Lane Henry, See below for a copy of the email that we discussed. This email was forwarded from Toby (the recipient), a real estate agent, to another real estate agent who works in Liz's office. It is my understanding that it was authored by Katie, who is the Mayor's daughter. Lauren Nevitt I Sidley Austin LLP 555 West Fifth Street I Los Angeles,CA 90013 Phone:213.896.6669 1 Fax:213.896.6600 Inevitt@sidley.com I www.sidley.com From: Liz Roubidoux [mailto:lroubidoux @naicapital.com] Sent: Sunday, July 19, 2009 6:04 PM To: Nevitt, Lauren Subject: FW: Orange Show Lane Liz Roubidoux I Senior Vice President NAI Capital Commerical Real Estate Services, Worldwide 2280 Market Street JSuite 150 1 Riverside, CA 92501 j Tel: 951.346.0807 Fax: 866.491.2108 Cell: 951.751.0009 Cell:909.440.0967 Iroubidoux@naicapital.com O&R-$900+ million in Total Sales Volume Investment Sales,Leasing,&Property Management NAI Capital damn rod Fame!estam svvloes,wor cvo4Ym. $45 Billion,5,000 Commercial Real Estate Professionals,325 Offices in over 55 Countries APlease consider the environment before printing this message. Liz, s requested. Hey Toby - Have you heard anything back from the Orange Tree property? 7/24/2009 r Page 2 of 2 I thought that you might need to know the below pertinent information regarding the Orange Tree Lane location and perhaps you can pass this on to the other agent and property owner. Maybe it will even "light a fire under th-m A 64-bed "for profit" parolee house has put in an application to the City to locate just north of Orange Tree Lane and Sierra Way (in one of the warehouses that they plan to convert), which is just east of the building that we are trying to get. This came up "on radar" at City Hall on Wednesday and I was urgently told this by the Mayor's Office because of our interest in the location. The Orange Tree Lane/Sierra Way location has been OKed by the City Attorney's office for the parolee housing and should it make it through City Counsel, I will no longer be interested or able to lease the Orange Tree Lane. Katie I ----------------------------------------------------------------------------------------------------- IRS Circular 230 Disclosure: To comply with certain U.S. Treasury regulations, we inform you that, unless expressly stated otherwise, any U.S. federal tax advice contained in this communication, including attachments, was not intended or written to be used, and cannot be used, by any taxpayer for the purpose of avoiding any penalties that may be imposed on such taxpayer by the Internal Revenue Service. In addition, if any such tax advice is used or referred UsOther parties in promoting, marketing or recommending any partnership or other entity, tment plan or arrangement, then (i)the advice should be construed as written in connection with the promotion or marketing by others of the transaction(s) or matter(s)addressed in this communication and (ii)the taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor. This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. O ' /nA/�nnn