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Home My WebLink About10-04-2010 CRA• MINUTES OF THE REGULAR MEETING OF THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA, CALIFORNIA OCTOBER 4, 2010 CALLED TO ORDER COUNCIL CHAMBER 22 CIVIC CENTER PLAZA SANTAANA, CA 7:56 P.M. ATTENDANCE: AGENCY MEMBERS Present: MIGUEL PULIDO, Chair CLAUDIA ALVAREZ, Vice Chair P. DAVID BENAVIDES VINCENT F. SARMIENTO CARLOS BUSTAMANTE MICHELE MARTINEZ SAL TINAJERO AGENCY MEMBERS Absent: None • STAFF Present: CYNTHIA J. NELSON, Executive Director JOSEPH FLETCHER, General Counsel MARIA D. HUIZAR, Recording Secretary CONSENT CALENDAR MOTION: Approve staff recommendations on the following Consent Calendar items. (Items 1 and 2) MOTION: Alvarez SECOND: Bustamante VOTE: AYES: Alvarez, Benavides, Bustamante Pulido, Martinez, Tinajero, Sarmiento (7) NOES: None (0) ABSTAIN: None (0) ABSENT: None (0) CRA MINUTES 1 OCTOBER 4, 2010 1. REGULAR MEETING OF SEPTEMBER 7, 2010 MOTION: Approve Minutes. 2. EXCUSED ABSENCES - None *** END OF CONSENT CALENDAR *** REGULAR BUSINESS ITEM *Chair Pulido, Vice Chair Alvarez, and Agency member Martinez excused themselves from participating on Item #3 due to conflict of interests. Vice Chair Alvarez noted a conflict of interest due to the nature of her employment, and Chair Pulido and Agency member Martinez abstained due to campaign contributions. They left the room and did not participate in consideration of the item. MOTION: Elect Agency member Bustamante to Chair the meeting (pursuant to SAMC 2-101 due to unavailability of Chair and Vice Chair). MOTION: Sarmiento VOTE: AYES: NOES: ABSTAIN: ABSENT: SECOND: Benavides Benavides, Bustamante, Sarmiento, Tinajero (4) None (0) Alvarez, Pulido, Martinez (3) None (0) 3. POTENTIAL RESCISSION AND RE-APPROVAL OF SANTA ANA STATION DISTRICT AFFORDABLE HOUSING DISPOSITION AND DEVELOPMENT AGREEMENT Agency General Counsel Fletcher stated that the purpose of item is consideration of a rescission and future re-approval of the Disposition and Development Agreement "DDA" on Station District project, in light of potential impact campaign contribution issues that arose after approval of project in June, 2010. The effects of the contributions have been reviewed by his office with assistance of special counsel - Law Offices of Richards, Watson, and Gershon. The Community Redevelopment Agency held a Special Meeting on September 27, 2010 to give potential re-negotiation directions to the Executive Director; CRA MINUTES 2 OCTOBER 4, 2010 discussion resulted in item being agendized as rescission and re-approval of DDA. • DDA is a contract that has been approved; the Agency board may not unilaterally rescind the contract, but requires mutual agreement by the developer; first step would be to allow the Agency to rescind contract; if approved, then the Agency may reconsider re-approval. General Counsel Fletcher noted for the record that prior conflict of interest for Agency member Sarmiento was due to clients and other interested in the downtown area affecting only the Transit Zoning Code "TZC" action by the City Council, but zoning issue not being considered and therefore he has not conflict of interest in participating as an Agency member on the DDA; also, any conflicts of interest Agency members Tinajero and Benavides had due to campaign contributions were not related to the DDA or the parties to the DDA and therefore they could participate on the DDA matter.. Steven Dorsey of the Law Offices of Richards, Watson, and Gershon summarized risks and legal implications if the Agency decided on a revote. He strongly recommend not to revote since Agency faces greater legal risks from rescinding or reconsidering the matter, than due to the issue of campaign contributions. Legal reasons for recommendation include: action would open up possibility of additional legal challenges; statute of limitations and ability to challenge previous actions have run out with prior approval and time clock would • start again if re-voted; potentially more lawsuits with additional issues may be filed; questioned how far back to reconsider items; contracting parties have vesting rights and would require their approval to reconsider; properties have been acquired that would be questioned. Mr. Dorsey opined that despite irregularities on the last vote it does not invalidate the vote; The Charter section implicated does not provide for remedy; and chances of being challenged are greater since there are no legal basis for reconsideration in Charter or State law. Agency member Benavides requested clarification from special counsel on Agency's exposure if item reconsidered and questioned whether other jurisdictions have had similar situations. Mr. Dorsey said no. Law firm is conflict of interest experts and have not had experience with re-votes. Agency member Tinajero stated that he had written a letter to the Mayor requesting reconsideration of the matter when he found out about possible conflict of interest; has not raised money since being elected; believes in transparency; Agency members on the dais are not conflicted; and would like to rectify the situation. Made motion to reconsider and was seconded by Agency member Benavides. Agency member Benavides commented on issues of transparency and full disclosure, referred to as sunshine ordinances; asked that item be brought back • to the Council for consideration in 60 days with research on what other jurisdictions have done to ensure public trust and also include clarification on CRA MINUTES 3 OCTOBER 4, 2010 codes regarding campaign contribution - what defines a violation, and what remedies, if any, exist. Agency member Sarmiento opined that City regulations on campaign contributions are confusing - lack clarity and remedy; revote would cause more harm than good and expose City to potential litigation. Project is a good project that will offer opportunities for residents -provide low income housing, public transportation; affordable rental units, open space, provide for dignified housing; and a community center; stalling project will be jeopardized with revote and statute of limitations will be created; democracy established on checks and balances; need to move forward as project stands. He would not support the motion. Agency member Bustamante inquired about the constitutionality of the Charter section that prevents members from voting because of campaign contributions. Mr. Dorsey indicated that in some cases Courts have held that campaign contributions cannot give given rise to direct conflicts of interests, but none have addresses a local ordinance such as here. Mr. Fletcher said that cases in question pre-date the City's Charter provision and that they are regarding public hearings where developers made a contribution that would not disqualify member from voting - fundamental first amendment rights. He stated that because of such cases Santa Ana's provisions should be narrowly interpreted the provisions so as to maximize and protect first amendment rights and minimize impairment on functions of the council; need regulations clarified on campaign contributions. Agency member Benavides said that project is sought after by the community and intent of motion is to clear votes. Executive Director Cindy Nelson indicated that affordable housing would be in jeopardy if item re-voted; community center is on school district property and not part of the developer's responsibility; preliminary steps on design and approvals by the Agency are forthcoming; open space (park) would require additional acquisitions; child care located in rental portion of the project would also be jeopardized; development projects include: affordable housing units, rental homes; open space, child care, community room, and neighborhood serving retail uses. Chair Bustamante called for the question. MOTION: Consider rescission of the Disposition and Development Agreement with Santa Ana Station District LLC (Developer), subject to Developer's consent, and re-submittal of the Disposition and Development Agreement for Agency Board approval at a future date. MOTION: Tinajero SECOND: Benavides *Motion failed 2-2 vote (Bustamante and Sarmiento, No). CRA MINUTES 4 OCTOBER 4, 2010 Agency members returned to the dais and Chair Pulido re-assumed the Chair. • COMMENTS 4. COMMUNITY REDEVELOPMENT AGENCY MEMBER COMMENTS - None ADJOURNED - 8:23 p.m. Maria D. Huizar, Recording Secretary • • CRA MINUTES 5 OCTOBER 4, 2010