Wednesday, January 4, 2012
Appellate Panel Rejects Brown Act Challenge to Montebello Property Deal
By KENNETH OFGANG, Staff Writer
A real property purchase agreement between a businessman and the City of Montebello and its redevelopment agency did not violate the Ralph M. Brown Act, the Court of Appeal for this district has ruled.
Div. One Friday affirmed a Los Angeles Superior Court ruling that the City Council, which is required to hear public comment at its meetings, did not breach the state open meetings law by approving $3.2 million deal during a closed meeting that preceded a public meeting.
The closed session was noticed as a joint meeting of the council and the redevelopment agency board, which is made up of the council members. The public meeting was of the council itself.
“Although the Council’s practice of noticing closed sessions to commence before regular sessions does not appear to comport with the spirit of the Brown Act that public comment be heard before matters are discussed in closed session, its practice does not invalidate the Purchase and Sale Agreement in this case,” Justice Frances Rothschild wrote. “The Council is not a party to the Agreement; the Agency is the purchaser of the properties.”
The litigation stems from a battle between factions in the city. The disputed meeting took place in November 2009, following an election in which then-Mayor Rosemarie Vasquez was voted out, and council members Kath Salazar and Robert Urteaga were recalled.
The three were still serving at the time of the meeting, which was noticed for Nov. 23, 2009. The notice, issued by Vasquez, identified 5:30 p.m. as the time for the closed session, pursuant to the real estate negotiations exception to the Brown Act requirement that meetings be open to the public, with an open, regular meeting to follow at 6:30 p.m.
The closed session agenda indicated that Jose Bazua, the city’s economic development director, would be negotiating on behalf of the city, and that the property owner was Ara Sevacherian and his company, Arsev, Inc. Six properties on W. Whittier Blvd. and S. 4th Street were identified as the subjects of the negotiation.
A group of voters opposed to the council majority, Citizens for Open and Public Participation, responded to the notice with a “cure or correct” letter under the Brown Act, contending that certain prior actions by the council violated the act, that the Nov. 23 notice was not given properly, and that the council should not meet again until its regularly scheduled meeting of Nov. 25, after Vasquez, Salazar, and Urteaga were to leave office.
The council/redevelopment board went ahead as noticed, however, and approved the sale, which the citizens group opposed. The agreement was executed the next day.
The citizens group petitioned to stop the sale, but retired Los Angeles Superior Court Judge Robert O’Brien, sitting as a temporary judge, sided with the city.
Rothschild, in concluding that the trial judge correct, noted that public comment was heard before the redevelopment board went into closed session.
“No evidence suggests that members of the public were misled by seeing only the notice of the Council and not the Agency so that they were unaware of the Agency meeting’s 5:30 p.m. start time or simply arrived for the 6:30 p.m. start time of the Council’s regular session after approval of the Purchase and Sale Agreement in the closed session,” the justice wrote.
In a footnote, the justice rejected the plaintiff’s contention that the notice was faulty because Nick Pacheco, the former Los Angeles councilman and district attorney candidate who served briefly as the city administrator before being sacked by the new council majority, actually served as the city’s negotiator. That claim was not supported by the evidence, Rothschild said.
Attorneys on appeal were C. Robert Ferguson for the plaintiff; Arnold M. Alvarez-Glasman, Matthew M. Gorman, David H. King and Christopher Cardinale of Alvarez-Glasman & Colvin for the city, and Rutan & Tucker’s Jeffrey M. Oderman, Mark J. Austin and Megan K. Garibaldi for Sevacherian.
The case is Citizens for Open and Public Participation v. City of Montebello (Sevacherian), B232700.
Copyright 2012, Metropolitan News Company