SLO residents need to band together

April 1, 2014

OPINION By RICHARD SCHMIDT

The right of the people to know what their local government is doing is sacrosanct in California.

State law – the oft-referenced Brown Act – thunders: “The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.”

One might think honest adherence to such principles of openness and respect for the governed would be standard practice in a “happy place” like San Luis Obispo City. Think again. The city gives the Brown Act’s lofty premise of openness the upraised middle finger just as often as it can. And it minimizes public notice of just about everything that affects residents.

Individual residents find themselves frustrated by not knowing about important things the city council has decided that affect them. Few, however, understand the systemic process by which this happens, so it’s time to start connecting the dots, and I’ll do that by outlining a few of my personal encounters with a corrupt notification process carried out by city staff and condoned by elected council members, who do zilch to correct staff misbehavior even after it’s repeatedly pointed out to them.

Several weeks ago the council approved the Garden Street Terraces development, a controversial private project on a city-owned downtown parking lot – and remember who owns a “city-owned parking lot” – us, not them. So, surely we should have been fully informed about this deal, eh?

I’ve bird-dogged this project for years, since together with the various turnovers of city property to the Copelands for cents on the dollar, it is, in my opinion, a thoroughly-loathsome perversion of what good government should be about. Garden Street involves a heavy city subsidy to the developer – and again, folks, where do city subsidies come from? From us, from our tax dollars, from our collectively-owned public property, from Measure Y sales tax funds. The deals are negotiated in private, the public knows nothing about them till all’s resolved in a formal vote that takes place at a public meeting where everything’s already completely worked out behind closed doors. What an affront to the very notion of open government!

With Garden Street, I was particularly interested to view the detailed financial contract between the parties. In its previous form, it was a very bad deal for city taxpayers, who were to give the developer a $2.4 million cash subsidy for taking our parking lot and making a lot of money off it.

This sort of subsidy has only been reviewed by city voters once, when they got the chance to vote on something similar. That happened with the Dalidio shopping mall referendums where because of trickery by the city – an effort to make the deal referendum-proof – there had to be three separate simultaneous referendums, one of which was for a financial subsidy giving the developer the city’s sales tax for 30 years. Voters overturned the development by a resounding margin on all three referendums, but the financial subsidy referendum got the largest negative vote. That shows voters are smart when given facts – even some who voted for the mall were offended by the city’s subsidizing the developer. This history suggests the city might have good motive for concealing the details of its financial arrangements with Garden Street were they to involve a subsidy.

So I began my search through the huge agenda packet provided online under “Current Council Agenda.” In the staff report I read – several times in fact, since this seemed to be something staff wanted to trumpet — that the new financial agreement was much better for the city than the previous one, that the cash subsidy had been reduced from $2.4 million to a mere half million. But I also learned the developer was receiving a new subsidy from city taxpayers — being excused from having to pay parking fees all other downtown developers have to pay, with a cash value of $1.86 million — which means the new subsidy was $2.36 million instead of the old $2.4 million, which isn’t much different.

My interest piqued by this revelation, I really wanted to see that financial agreement! Careful reading of its predecessor showed its deal wasn’t at all as represented by staff to the council. Could this be a repeat of that?

But the financial agreement wasn’t in the council agenda packet. How could that be? It was what the council was to consider adopting at its meeting that evening. Surely something up for adoption must be part of the agenda packet.

So I did what seemed the only reasonable thing to do: before going to work I fired off a quick email to the city council, cc to City Manager Katie Lichtig, stating the obvious Brown Act problem.

“Dear Council Members and Ms. Lichtig,” I wrote. “In trying this morning to access the Memorandum of Understanding concerning the financial arrangements between the city and the developer of Garden Street Terraces, I find that it is not available to the public on the city’s website . . .” (Mistake number one on my part – referring to the city’s website rather than the council agenda packet!)

“Yet the agenda indicates your meeting is for the purpose of approving this MOU.

“The financial arrangements between the city and developer, especially given the corrupt nature of the prior arrangements in previous MOUs for this project, is a matter of public concern and interest. The public has every right to know what you’re up to with public property and public funds.”

I then outlined my case that this lack of access to the MOU in the published council agenda was a Brown Act violation, as would also be council action if approval of the project proceeded that evening.

I concluded, “You need to fix this violation by continuing the item, without any action tonight, to a future date at which time the city reveals to the public everything there is to know about this project, which will certainly include the public-private financial agreement . . .”

Total silence from city council members. But not from Ms. Lichtig, who responded:

“Richard –

“Here is the link to the MOA. It was issued on Friday under separate cover.

http://www.slocity.org/cityclerk/correspondence/2014%20March%204/03-04-14%20b1l.johnson.pdf.

“A redline will be issued as agenda correspondence later today.”

Imagine that – she thinks personally giving me a link to a report that’s concealed from the public by being “issued under separate cover” at some obscure location on slocity.org rather than as part of the council agenda packet will take care of the problem? What about people who didn’t think to email her? And issuing a “redline” later today – “today” being the day of the meeting, not the 72-hour notice required by law — is going to solve something? I was dumbfounded at the brazenness of it.

I responded:

“I don’t think this solves your Brown Act problem. Making it available to me privately is not making it available to the public on the same terms as the rest of the agenda.

“The MOU is not on the city website under Council Agenda documentation, which is where it should be. I looked at ‘Correspondence’ prior to contacting you this morning and could not find it there. . . I know my way around your web page, and if I cannot find something as important as this, how is Jane Doe supposed to find it? Or even know to search for it?

“You simply cannot make the case that this MOU was given fair public notice.”

Without so much as discussion of this issue, the council that night approved the Garden Street project and taxpayers’ perpetual financial entanglement in it.

This is but one example of the city’s playing fast and loose with public notice. Not long before, there was the vacation rental fiasco, which also featured a Brown Act violation – the immediate de facto change of existing law without noticing the public that such was even under consideration.

That council meeting was advertised as a “study session” to hear gripes from people who were caught violating long-standing prohibitions on vacation rentals. A “study session” is just that – it is not an action session. It’s an opportunity for discussion of an issue, and perhaps for thinking ahead about possible future actions to deal with the subject under study. That’s how the meeting was represented in the council agenda packet.

In fact, the council agenda explicitly stated that if the council desired to consider any law changes, it would provide guidance to staff to start drafting changes that would come back to the council for consideration at a future date. The agenda notice also stated that complaint-based enforcement of existing law would continue pending any consideration of changes to the law.

Nonetheless, with no public notice, caving to mob intimidation of the moment, the council made a de facto change (4-1 vote) to the city’s municipal code by immediately suspending all enforcement of the municipal code’s long-standing vacation rental prohibitions indefinitely, thereby effectively rewriting the law without following proper procedures – like public notice of their intent to consider such action.

Persons who might have cared to address the wisdom of a change in the law were denied the opportunity because the action taken wasn’t on the agenda. I sense the public weren’t the only ones caught off guard by this breath-taking council arrogance; enforcement staff were as blindsided as the public at large.

Lack of public notice has repeatedly arisen during the current rewriting of the city’s general plan.

The city has done minimal to zero notification of residents affected by huge changes that mysteriously appeared in the draft of what the council had ordered to be a minor, “focused” update of the existing excellent plan, but which has – driven by an arrogant staff and their friends at the Chamber of Commerce — turned into the most radical rewrite of the plan’s intent and purpose since 1977’s revolutionary plan, which abandoned the notion of county-wide LA-style sprawl as our future. The draft seeks to reduce or overturn just about every resident, neighborhood and environmental protection embodied in the existing plan. Yet residents mostly don’t know this. Because they haven’t been notified — not about things that affect them intimately, nor about things of city-wide resident impact.

This is particularly amazing because, not only does state law require notification, the city’s current general plan also requires the city to notify neighborhoods from the beginning of any process that affects them. This has not been done.

A few already-organized neighborhoods caught wind of what the plan “plans” for them, and have risen up to give the council an earful.

The Alta Vista Neighborhood, next to the Cal Poly campus, rallied against a Chamber-driven scheme to convert Pacheco School, right in the middle of their neighborhood, from public space to high density housing.

San Luis Drive neighbors, catching wind of another Chamber-driven scheme to radically intensify tourist development literally in their back yards, also gave the council an earful.

But most neighborhoods are in the dark, and through lack of notice have been denied the opportunity to speak on their own behalf. Take, for example, my own part of town, between the freeway and Foothill, regarded by many as a highly-desirable in-town neighborhood.

When the general plan update began, the council told staff: “This is a focused update. We do not need to fix what is not broken. The update needs to address actual problems.” Nonetheless, among the assaults it is aiming at neighborhoods throughout town, the perennially insubordinate and undisciplined-by-council staff came up with a scheme for massive reconstruction and realignment of our neighborhood streets designed to route regional, not local, traffic through the neighborhood.

The plan, to connect Chorro to Boysen (an obscure quiet tree-lined street of older apartments), and North Broad to North Chorro, would disconnect the two parts of Chorro, causing great confusion, and reconnect both Broad and Chorro directly to Highway 1, turning both neighborhood streets into de facto cross-town arterials, while fixing no identifiable neighborhood problem.

This will require demolition of numerous houses within the neighborhood (including the home of a sweet 93-year-old supporter of the three council persons who are pushing this scheme), confiscation of a valuable vacant commercial lot, demolition of a barbecue restaurant, much of the College Square Shopping Center, Black Horse Coffee, and perhaps the former McDonalds all on Foothill, yet those residents affected were not noticed of any of the many meetings by committees and the council where the matter was discussed. I only know of the scheme via an email from an acquaintance after the scheme had already been heard by an obscure “task force” used to sanitize the staff-driven “planning” process, and by the planning commission.

Why would a city whose general plan seeks to relieve neighborhoods of through traffic do something like this? They will not say. Where did the idea come from? Again, they will not say, other than that it was an anonymous suggestion dropped into a suggestion box at an “open house” where staff knows the Chamber dumped a lot of anonymous suggestions into that box.

When the scheme came before the city council, despite being notified by me that nobody in the neighborhood had received notice and therefore consideration was improper till such notice was given, three of them (Ashbaugh, Christianson, Marx) voted to move ahead and even to include it in the general plan’s Environmental Impact Report, something a fiscally responsible official only does if serious about a project. (EIRs are expensive. This EIR is budgeted at about $300K – not something one adds to willy-nilly.) Once in the EIR, no further environmental studies will ever be required to implement this neighborhood-killing atrocity – it can happen by three votes any Tuesday night. All with no notice at any stage of the process to those affected.

The city’s retort is that every resident has been noticed adequately because the scheme can be found on an obscure website called “SLO2035.com.” Ever heard of it? Even if you had, this isn’t public notice, it’s a cover-up for lack of public notice, just like placing the financial contract between the city and Garden Street developers at some obscure location on the city website instead of within the council agenda, where it belonged. Public notice means you notify people directly, not that you assume they’ll know enough to undertake a goose chase to search out what the city would just as soon keep them in the dark about. As the law states: “The people . . . do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control. . .”

When residents encounter messed up public notice of things happening to them, they need to understand they are not alone. This is generic to how Katie Lichtig and this city council operate. The solution is in residents banding together to do something about the problem.

The problem in SLO boils down to this: a manipulative staff sets up a city council that is both arrogant, as so many politicians unfortunately are, and ignorant of and/or indifferent to its responsibilities under the Brown Act and other public notice niceties. The result is bad things just keep happening to good residents because of actions by this city.

Have we had enough of this yet?