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HomeMy WebLinkAboutVote Correction - CDP 97-15 - Mayer Financial/Calirfornia Coastal Commission - 2000-12-04. . • • TiCe Notes Office of the City CCerk Huntington Beach, CaCifornia , %'S 9/Y Af / ��A (19) • December 4, 2000 - Council/*cy Minutes - Page 19 --� (City Council/Redevelopment Agency) Approved Closed Session Actions of November 20, 2000 Re: Coastal Commission Suspension Letter Related to CDP 97-15 as Properly Posted, Acted Upon and Reported Per Report of City Council -Redevelopment Agency Closed Session Action Delivered to City/Agency Clerk from the City Attorney/ Agency General Counsel— Direct City/Agency Clerk to Reflect Correct City Council Vote — Authorize City/Agency Clerk to Sign Deed Restriction if Returned by the County Recorder (600.30) The City Council considered a communication from the City/ Redevelopment Agency Clerk requesting the Council/Agency members to state Redevelopment Agency approval of the Settlement Agreement and the Open Space/Wetland Preservation and Restoration Deed Restriction. Action of the Agency is needed due to an error that was made on the Closed Session Document prepared for the November 20, 2000 agenda. The Closed Session Document was prepared and The Agenda officially posted as an Exception to the Ralph M. Brown Act (open meetings) for the City Council; however, City Council sitting as the Redevelopment Agency in closed session was inadvertently omitted. As this document and the posted official agenda were deficient it is necessary to remedy the procedure. The closed session vote on the agreement and deed was reported out incorrectly following the closed session. It is requested that the vote be corrected so the record of the meeting reflects the actual vote of 5 ayes, Harman, Garofalo absent, rather than 6 ayes, Garofalo absent. City Administrator/Executive Director Silver stated that he understood that the Settlement Agreement has been executed but not recorded. Silver invited City Attomey/Agency General Counsel Gail Hutton to comment City Attomey/Agency General Council Hutton expressed her belief that the Brown Act requirements had been met relative to the legal posting and agendizing of the item. Hutton referred to points made in her Late Communication that had been announced earlier by Brockway dated December 4, 2000 titled Agenda Item F-1 for Council/Agency Meeting of December 4, 2000-- Closed Session Action by City Council/ Redevelopment Agency on November 20, 2000. City Council/Redevelopment Agency Member Cook dissented; stating her belief that the item did not meet the exception to the Ralph M. Brown (Open Meetings) Act. Cook stated that the Settlement Agreement should not have remained a closed session item, rather it should have been presented in open session, following the decision in closed session that the city would not be pursuing litigation against the Coastal Commission- City/Agency Clerk Brockway clarified the City CouncillRedevelopment Agency posting procedure, stating that the suspension letter had not been properly noticed on the official City Council/Redevelopment Agency posted agenda. CouncillAgency member Bauer stated that he would support the recommendation set forth as the City Attomey/Agency General Counsel's memorandum_ The City/Agency Clerk recommended that she be authorized to attest to the deed should the County Recorder return it for the Agency Certificate and to affix the Agency Seals_ (20) December 4, 2000 - Councill*ncy Minutes - Page 20 Council/Agency member Boardman inquired if the Settlement Agreement was appealable. Boardman stated that she is going to work to add language addressing proper buffers, screening of lighting and runoff. A motion was made by Council/Agency member and Bauer, second Dettloff to 1. Approve the City Attorney/Agency General Counsel's Recommended Actions set forth in the Late Communication dated December 4, 2000- (a) That the City Council and Redevelopment Agency find that their closed session actions on November 20, 2000 regarding the Coastal Commission Suspension Letter related to CDP 97-15 were properly posted, acted upon, and reported, and (b) That the City Council and Redevelopment Agency hereby confirm said closed session actions as more fully described in the Report of Closed Session Action delivered to the City/Agency Clerk from the City Attorney/Agency General Counsel on November 20, 2000_, and 2. Direct that the City/Agency Clerk prepare the minutes of the November 20, 2000, Council meeting to reflect the correct City Council vote of 5 ayes and 2 absent (Garofalo, Harman); and should the Council/Agency members desire the City Clerk to maintain said documents, a motion to that effect would be in order as Settlement Agreements approved in Closed Session need not be attested to by the City/Agency Clerk or maintained in the Office of the City Clerk, then: 3. Approve City Clerk/Agency Clerk to sign the deed restriction should it be returned to the City/Agency for such action. The motion carried by the following roll call vote- AYES: Green, Julien Houchen, Dettloff, Bauer NOES: Boardman, Cook ABSENT: None (Garofalo out of room) (City Council) Adopted Ordinance No. 3480 to Add HBMC §5.67 Pertaining to Non - Consensual Towing Services (Police Department Directed Towing) — Adopted Ordinance No. 3481 to Amend HBMC §5.66 Removing Permitting Requirements for Non -Consensual Towing Services (530.30) - Ordinance No. 3480 - An Ordinance of the City of Huntington Beach Adding Chapter 5.67 to the Huntington Beach Municipal Code Relating to Non - Consensual Motor Vehicle Towing Service,-" Ordinance No. 3481 -'An Ordinance of the City of Huntington Beach Amending Chapter 5.66 of the Huntington Beach Municipal Code Relating to the Motor Vehicle Towing Services." A motion was made by Green, second Bauer to adopt Ordinance No. 3480 and Ordinance No. 3481 after City Clerk read by title. The motion carried by the following roll call vote AYES: Green, Boardman, Cook, Julien Houchen, Garofalo, Dettloff, Bauer NOES- None ABSENT: None (City Council) Adopted Ordinance No. 3486 - Zone Change - Northeast Corner of Cypress Avenue and Elm Street From RM (Medium Density Residential to CG (General Commercial) Zoning Map Amendment No. 00-03 Sub Area "C" (Public Hearing Held on 11/20100) (450.20) - Ordinance No. 3486 - 'An Ordinance of the City of Huntington Beach Amending the Huntington Beach Zoning and Subdivision Ordinance by Changing the Zoning Designation from RM (Medium Density Residential) to CG (General Commercial) on Real Property Located at the !Northeast Corner of Cypress Avenue and Elm Street (Zoning Map Amendment No. 00-03, Sub -Area C). " • TO: FROM CITY OF HUNTINGTON BEACH 2000 MAIN STREET CALIFORNIA 92648 OFFICE OF THE CITY CLERK CONNIE BROCKWAY CITY CLERK 2 ] _ Ou PoN (tp,-A -F gjtp �CT� �� hi s Honorable Mayor and City Councilmembers � 1 `10 - ort'l-� t� Connie Brockway, City Clerk f-% � M � k ) GA-%.f KAV (V SUBJECT: City Cleft's Agenda Item (F-1 ) for the 1214100 Council Meeting Re: Error in Posting Requirements for the 11/20/00 Agenda and Closed Session — Exception to the Brown Act Posting Requirements for the Closed Session Held on 11/20/00 DATE: November 30, 2000 On November 20, 2000 a Settlement Agreement between the City of Huntington Beach, the Huntington Beach Redevelopment Agency, the California Coastal Commission, and Mayer Corporation was approved in City Council Closed Session. Also approved in closed session was an Open Space/Wetland Preservation and Restoration Deed Restriction. The Closed Session - Exception to the Ralph M_ Brown Act (open meeting) document on which the Councilmembers rely to meet in closed session was incorrectly prepared for only the City Council to meet, and did not include the Councilmembers to meet in closed session in their capacity as Redevelopment Agency members. This caused the November 20, 2000 official agenda posting to be deficient and incorrect. Further, it is necessary to correct the closed session vote, which was announced in open session The vote reported out was 6-1 (Garofalo absent). After the meeting adjourned the City Clerk's Office was advised it should be corrected to 5-2 (Garofalo, Hannan absent). Closed session actions often result in disagreement between the City Attorney's Office and the City Clerk's Office. This is because true Settlement Agreements approved in closed session do not require the City Clerk's attestation, or for the City Clerk to maintain, yet the City Clerk is sometimes requested to sign as in this case even though the Settlement Agreement and deed were not prepared for the City Clerk to attest to nor to affix the City Seal and the Redevelopment Agency Seal. The deed was prepared without the need for processing by the City Clerk_ The City Attorney has transmitted to me, and by copy to Council and staff, a copy of page number 6 of the Settlement Agreement as executed on November 15, 2000 by the Coastal Commission, the Mayer Corporation, and the City Administrator. I believe the City Attorney's 1 Telephone: 714536-5227 ) r � � Memo to Honorable Mayor and Councilmembers - Agenda Item Posting Req*ents — 12/4100 City Council Meeting - November 30, 2000 Page 2 requirement for the signature of the City Administrator may be in error as her memorandum points out that she had obtained the Mayor Pro Tem's signature on November 28, 2000. When the City Attorney's Office puts the pages together, it seems that the City Administrator's signature would not remain on the final agreement. Contrary to the City Attorney's memorandum to Council, I am informing the Mayor and City Councilmembers that the City Clerk's Office did not cause time constraints by my questioning of the closed session process_ The City Attorney's Office was not ready for the Mayor Pro Tem to sign until November 27, 2000- The Mayor Pro Tern came to the City Attorney's Office on November 27, 2000 and then again on November 28, 2000 and signed the documents allowing the City Attorney to expeditiously move forward. F. Item Submitted by the City Clerk F-1. (City Council/Redevelooment Aaencv) Need for Redevelooment Agencv to Approve Closed Session Action of November 20, 2000 Due to Error in Redevelopment Agency Closed Session Documentation and Agenda Posting Requirements — Approve Correction to Announcement of Vote Taken in Closed Session (Settlement Agreement and Deed Relative To Coastal Development Permit 97-151 Communication from the City Clerk/Redevelopment Agency Clerk requesting the Council/Agency members to state Redevelopment Agency approval of the Settlement Agreement and the Open SpacelWetland Preservation and Restoration Deed Restriction- Action of the Agency is needed due to an error that was made on the Closed Session Document prepared for the November 20, 2000 agenda_ The Closed Session Document was prepared and officially posted as an Exception to the Ralph M_ Brown Act (open meetings) for the City Council; however, City Council sitting as the Redevelopment Agency in closed session was inadvertently omitted. As this document and the posted official agenda were deficient it is necessary to remedy the procedure_ The Closed session vote on the agreement and deed was reported out incorrectly following the closed session_ It is requested that the vote be corrected so the record of the meeting reflects the actual vote of 5 ayes, Harman, Garofalo absent, rather than 6 ayes, Garofalo absent. Recommended Action: Motion as the Redevelopment Agency: approve action taken out of closed session on November 20, 2000 and authorize execution by the Agency of the Settlement Agreement between the California Coastal Commission, the City, the Redevelopment Agency and Robert Mayer and authorize recordation of the Open Space/Wetland Preservation and Restoration Deed Restriction and direct that the City/Agency Clerk prepare the minutes of the November 20, 2000, Council meeting to reflect the correct City Council vote of 5 ayes and 2 absent (Garofalo, Harman), and Recommended Action: City Council motion: Should the Council/Agency members desire the City Clerk to maintain said documents, a motion to that effect would be in order_ (Settlement Agreements approved in Closed Session need not be attested to by the City/Agency Clerk or maintained in the Office of the City Clerk.) CB -le Attachments: 1. November 20. 2000 Report of Closed Session Action 2. Memorandum from City Clerk dated 11/27/00 3. Memorandum from City Attorney dated 11/28/00 4_ November 20, 2000 Agenda Closed Session (prepared for Council only) 5. Exception to Brown Act Notice Prepared (prepared for Council only) g_1CBMemos\Closed5essionAgendaPosting4e doc i . i (9) December 4, 2000 - Counciancy Agenda - Page 9 t'2- 03 a(TW ThW F. Item Submitted by the City Clerk F-1. (City CouncillRedevelooment Aaencv) Need for Redevelopment Aaencv to Approve Closed Session Action of November 20, 2000 Due to Error in Redevelopment Agency Closed Session Documentation and Agenda Posting Requirements — Approve Correction to Announcement of Vote Taken in Closed Session (Settlement Agreement and Deed Relative To Coastal Development Permit 97-15) Communication from the City Clerk/Redevelopment Agency Clerk requesting the Council/Agency members to state Redevelopment Agency approval of the Settlement Agreement and the Open SpacelWetland Preservation and Restoration Deed Restriction- Action of the Agency is needed due to an error that was made on the Closed Session Document prepared for the November 20, 2000 agenda. The Closed Session Document was prepared and officially posted as an Exception to the Ralph M. Brown Act (open meetings) for the City Council-, however, City Council sitting as the Redevelopment Agency in closed session was inadvertently omitted- As this document and the posted official agenda were deficient it is necessary to remedy the procedure - The closed session vote on the agreement and deed was reported out incorrectly following the closed session. It is requested that the vote be corrected so the record of the meeting reflects the actual vote of 5 ayes, Harman, Garofalo absent, rather than 6 ayes, Garofalo absent - Recommended Action: (1) Approve City Attorneys Recommended Actions from a late communication dated 12-04-00: (a) That the City Council and Redevelopment Agency find that their closed session actions on November 20, 2000 regarding the Coastal Commission Suspension Letter related to CDP 97-15 were properly posted, acted upon, and reported; and (b) That the City Council and Redevelopment Agency hereby confirm said closed session actions as more fully described in the Report of Closed Session Action delivered to the City/Agency Clerk from the City Attorney/Agency General Counsel on November 20, 2000. Metmen as the Redevelopment Aq2m� approve Sion on NeyembeF AOA-and-authorize execution-by-tt A t A , the-Oity-the.RedeyelopFneet Agency -and -Robert -Mayer- and -author+ pacell4etland Presepmho and4R&Wo at*n-Deed-Restriction-and (2) Direct that the City/Agency Clerk prepare the minutes of the November 20, 2000, Council meeting to reflect the correct City Council vote of 5 ayes and 2 absent (Garofalo, Harman); and (Continued on Next Page) (10) December 4, 2000 - Councilancy Agenda - Page 10 Recommended Action: City Council motion: Should the Council/Agency members desire the City Clerk to maintain said documents, a motion to that effect would be in order as Settlement Agreements approved in Closed Session need not be attested to by the City/Agency Clerk or maintained in the Office of the City Clerk. [Approve City Clerk/Agency Clerk to sign the deed restriction should it be returned to the City/Agency for such action] [Approved 4-2-1 (Boardman, Cook No; Garofalo out of room)] • • ATTACHMENT #1 11/28/2000 10:42 7140486 • PAGE 02 JJ CITY dF HUNTING'T'ON REACH Iutet-Department Communication TO: Connie Brockway, City/agency Clerk FROM: Gail Hutton, City Attorney/Agency General Counsel DATE: November 20, 2000 SUBJECT: Report of Closed Session AetIon By City touncil/Redevelopment Agency On November 20, 2000, the City Council and Redevelopment Agency met in closed session to consider whether to initiate litigation against the California Coastal Commission over a suspension l.-rter issued by the Commission regarding the City's approval of Coastal Development Permit No. 97-15 A copy of the suspension Ietter is attached hereto as Attachment No. 1. Upon motion by Council/Agency Member Omkew , and second by Council/Agency Member S w I yjuA , and a vote of S in favor and Q against, the City Council/ Redevelopment Agency adopted the following actions: I . Approved the Settlement Agreement attached hereto as Attachment No- 2, and the Deed Restricuon attached hereto as Attachment No. 3. 2. Authorized the Mayor Pro Tem/Chairman Pro Tern to execute the Settlement Agreement acid Deed Restrictiuii on behalf of the City/Agency. 3. Authonzed the recordation of the Deed Restriction as set forth in the Settlement Agreement r GAIL HUTTON Citv AtiorneviAgency General Counsel Attachments: 1. Suspension latter dated September 12, 2000 2. Settlement Agreement I Deed Restriction TAI error, /,owejer repot.fea oot- ,; orEh sess,o" fhe ucfff was QQQ1 rn In 41�-ror A,rd •...ems ,`aroe4iq (p- j (co a4/o -1-be Cmwr3 o-ppr� 4 ..,as Adu_15VD Iln+-f- the closed SP.rs,avi Vo i e tv q 5 S- (G4 r � �a /o aasf�t 4-200ONlemos C,ryClerk — Repon oFC:osed St'sion Acvon 11 -20 YT�T! 4f GL!*OfYa� - 71i p�6�U11el1 aOiL}IC7 r� OR�r � r CALIFORNIA COASTAL COMMISSION, ---- •ow,"wr wn"r. ewm amm "M CA Mtes.WA vary Art TWO u63 rr►ta• September 12, zuUU r~— — V lA 1s ACSLNffLE & V. z. -MAIL Howard ,Zelefsky Community Developmer: t Director City of Huntington Head 2000 Main SuMn �-- -- — — — -- Huntington Bcacb, CA S,2648 RE; Cosital Dcvclopmeat Permit97-15 Dear. .'%-fr, Zelefshr As you are awwere Comni:ssion smElim been woridug on the prepaiailon of revised findings for Appeal No. A-5-MQ t-99-275_ These revised findings wit! reflect the Commission's conditional approval of the Ciry's rind Robot Mayer Corporation's coastal drvalopmtnr permit for the filling of � .8 ire wetlands on a 5.01 acre parcel along Beaeb Boulevard. However, as a result of c ucstious raised by the private developer about the con$guradom status and size of the identified property sWect to the appeal, we uow have questions about the adequacy of the notim of final local action received on awthes coastal development pc=t matter, specifically. Coa�W DcvelopmeJ+t Permit (CDP) #97-15. None of the qum ions raixd by the develoopet were raised before or dining the co=e of the Commission's rLwze~v of the appeal. However, last ihutaday, September 7, 2000, we were apprised by the dc,Reloper of a Innponed land division on the 5.01 acre property affected by A-54WB-91r-275 and we weir greeted to review CDP #97--15 for ftut er Womoadon. Although The notice of final local action on CDP 97-15 which the City soot to the Commission identified dw the City had approved a commercial developmoar, it did not identify approval of a coastal development permit for a subdivision of the 5.01 acre parcel affected by A-5-1INB-99-275. Tbm based as out review to date, tb= appear to be maxrW questions above the ronfigum inn, staters and size of tbt property affected by A S-1dM-99 275 as w r l as whether tho notice of final local action for CDP 97-15 identified &H of the dew lopment included vdthin the action on the coastal devci *m=t permit. The:cfbm purrmunt to Section 13572 ofthe California Code of Regulations, we are informing the City drat we do not believe that the information pro% ided in the notice of final local action for CE P 497-15 is sufficiently detailed to allaw the Corr LiAon- its mff or the public to adequan:ly review the C"ity's aedon for iu cmeormity with the c r ified LCP. At this juncutre, )vs will cenainly co4d=e to iovestigeLa the manor. However, we arc legally required to n ttify you whhin five c dendar days of learning about circu=tences • 4 -Zit ] _E _ : F4 : D: c t . Zc•_ S:: [d =r l Howard ZcIcf JW September 12.2000 Page .2. that indicate teat a notice of final local action is deficient and ties letter se-ms as that notification. Furthennon:, until such time as this matter can be resolved, the iocal government amian is st.,xnded. We appreciate the seriou :Hess of this mamr to both the City and the private developer. We will wideavor to resolve - he outstanding issues in an expeditious n==er and Rill be looking to the City for specific assi-, ice on the course of events and pemYitting procedurrs. Thank you in advance fir your cooper don and please don't besitaie to call me if you have que-560 s. Sincerely, 0 -K - DEBOAAH N. LEE aA4, Deptuy Dir=tor, South Coat cc. Peter Douglu Ms. Shirley Derdof f Larry Brose. Maya Trust • VL • ATTACHMENT #2 "T u rJU_' /� �7 k" c,� c hand o tea _ i - Coo CITY OF HUNTINGTON BEACH INTERDEPARTMENTAL COMMUNICATION TO: Gail Hutton, City Attorney Ray Silver, City Administrator Howard Zelefsky, Planning director FROM: Connie Brockway, City Clerk SUBJECT: Report of Closed Session Action By CitylAgency at the 11/20/00 Council Meeting (Announced After Closed Session) DATE: November 27, 2000 Attached please find the original Settlement Agreement/Deed and other documents handed to me following the announcement of action taken by Council after coming out of closed session at the 11/20/00 Council Meeting. It will be necessary to place this Settlement Agreement and Deed on the coming 12104/00 City Council Agenda as the agreement and deed were not on the posted City Council/Agency Agenda of 11120/00. The closed session item on the Agenda reflected only Council conferring with its attomey. This has happened in the past and has been remedied by placement of the item on the next Agenda. When you submit it for the 12/04100 Agenda, will you fix the deed signature lines as you usually do when deeds have been prepared by other than your office. Also the agreement signature lines needs to include an attestation space for the City Clerk/Agency Clerk to sign and affix the Official City Seal and Redevelopment Agency Seal. Thank you_ Attachments: (1) City Attorney Memorandum to City Clerk dated 11/20/00 (2) Coastal Commission Suspension Letter of 12/12/00 (3) Settlement Agreement (4) Deed Restriction (5) P.#3 of Council/Agency 11/20/00 Agenda Listing Closed Session (6) City Attorney's Closed Session Statement cc: Honorable Mayor and City Council (current members) Debbie Cook (Councilmember elect) Connie Boardman (Councilmember elect) cbmemo2DOGclosMsessionact ATTACHMENT #3 4 LIN CITY OF HUNTINGTON BEACH Inter -Department Communication TO: Connie Brockwav, Citv/Agenev Clerk FROM: Gail Hutton, Cite Attorney/Agency General Counsel DATE: November 28, 2000 SUBJECT: Response to Your Concerns Regarding Closed Session Action By Cite Council/Redevelopment Agency on 11/20/200 On November 20, 2000, the City Council and Redevelopment A�,,ency met in closed session under the pending litigation exception to the Brown Act regarding a suspension letter issued by the Coastal Commission regarding the City's approval of Coastal Development Permit No. 97- 15. This exception allowed the Council/Agency to consider in closed session whether to initiate litigation against the Commission regarding the suspension letter. Instead of initiating litigation. the Council/Agency decided to approve a settlement with the Commission. Since the other parties to the dispute had previously approved the settlement, the Council/Agency's action was reported out at the same meeting (See Gov t_ Code Section 54957.1(a)(3)(A)_) A copy of the closed session report, including the approved settlement documents, was delivered to you at the same meeting. On November 27, 2000, you returned the closed session report and attached documents to me, along with a memo which stated that "it will he necessary to place this Settlement Agreement and Deed on the coming 12/04`00 City Council agenda as the agreement and deed were not on the posted City Council/Agency Agenda of 11,120100 Apparently, you believe that in order for the Council/Agency to adopt a settlement agreement in closed session, the agreement must be separately identified on the Agenda There is no such requirement in the Brown Act. In fact. the Act specifically exempts from disclosure such materials in advance of their consideration by the legislative body_ (See Gov't. Corte Section 54956.9(b)(3)(F).) It is well settled law in California that legislative bodies may deliberate and act upon settlements in closed session under the pending litigation exception_ (See, e.g., 75 Ops. 11tn_ Gen. 14 (1992). copy attached hereto.) Our Councii/Agency, like nearly every other legislative body in this state, adopts settlement agreements affecting pending litigation in closed session. In the present case, like all others in this City, the notice for this matter was properly posted under the pending litigation exception. -1-2000-Memos Ocy Uierk - ReWn%c re cloied %cssion conecn,c 11 .28 In the future, if you have similar concerns, I would greatly appreciate it if you consult with me before unilaterally attempting to reject a properly adopted action of the Council/Agency. This particular matter is time sensitive, and I would have appreciated learning of your concerns prior to the elapse of one week's time. Finally, please note that the Cit- Charter requires you to be responsible for the recording and maintaining of a full and true record of all the proceedings of the City Council. (Section 310(a).) Since this closed session action was properly reported to you under the Brown Act, it is part of the record of the Council/Agency meeting of 11120100. Due to the time constraints presented by your delay, the documents in question have already been executed by the Mayor Pro Tcm as directed by the Council/Agency, notarized, and sent to the Coastal Commission for recording. I will provide you with conformed copies upon receipt. respectfully request and expect your cooperation in the future transmittal and storage of the approved settlement documents. If you have any further questions, please contact me at your earliest convenience. GAIT. HUTTON City Attorney./Agency General Counsel Attachments: 1. Cali fornia Attorney General Opinion No. 91-803, dated February 5, 1992 (75 Ops. Atty. Gen. 14) 2. Signature pages from Mayer and Coastal Commission 3. Cal. Gov't Code Section 54957.1 cc: Honorable Mayor and City Councilmembers Ray Silver, City Administrator Howard Zelefsky, Planning Director Connie Boardman, Councilmember-elect Debbie Cook, Councilmember-elect 4-2000kicinns City Clerk — Ropnn,e re clowd scSvun cuncems 1 1 -29 Page 2 Citation Found Document Rank 1 of 1 Database 75 Ops. Cal. Atty. Gen. 14 CA -AG (cite as; 1992 WL 469698 (Cal.A.G.)) *1 Office of the Attorney General State of California February 5, 1992 Opinion No. 91-803 THE HONORABLE MICHAEL D. BRADBURY DISTRICT ATTORNEY VENTURA COUNTY THE HONORABLE MICHAEL D. BRADBURY, DISTRICT ATTORNEY, VENTURA COUNTY, has requested an opinion on the following question May a local agency such as a county board of supervisors use the "pending litigation" exception of the Ralph M. Brown Act to go into closed session to deliberate and take action upon the settlement of a lawsuit? CONCLUSION A local agency such as a county board of supervisors may use the "pending litigation" exception of the Ralph M. Brown Act to go into closed session to deliberate and take action upon the settlement of a lawsuit_ ANALYSIS The Ralph M. Brown Act (Gov. Code, ss 54950-54962; "Act"), [FN1] originally enacted in 1953, requires "local agencies" [FN2] to hold their meetings open to the public except as provided in the Act. (See generally ss 54951-54952.5, 54953.) Although the Act did not until 1984 specifically provide for closed meetings between a local agency and its attorney with respect to its legal problems, both the courts and this office implied such an exception to the open meeting requirements within the confines of the generally recognized attorney - client privilege. (See Sutter Sensible Planning, Inc. v. Board of Supervisors (1981) 122 Cal.App.3d 813, 823-825; Sacramento Newspaper Guild v. Sacramento County Bd. of Suprs. (1968) 263 Cal.App.2d 41, 51-58; 67 Ops.Cal.Atty.Gen. 111, 112 (1984); 36 Ops.Cal.Atty.Gen. 175 (1960). In 1984 the Legislature added section 54956.9 (Stats. 1984, ch. 1126; amended, Stats. 1987, ch. 1320) to expressly authorize local agencies to meet with their attorneys in private. Section 54956.9 presently states "Nothing in this chapter shall be construed to prevent a legislative body of a local agency, based on advice of its legal counsel, from holding a closed session to confer with, or receive advice from, its legal counsel regarding pending litigation when discussion in open session concerning those matters would prejudice the position of the local agency in the litigation. "For purposes of this chapter, all expressions of the lawyer -client privilege Copr. 1�1 West 2000 No Claim to Orig. U.S. Govt. Works Page 3 75 Ops. Cal. Atty. Gen. 14 (Cite as: 1992 WL 469698, *1 (Ca1.A.G.)) other than those provided in this section are hereby abrogated. This section is the exclusive expression of the lawyer -client privilege for purposes of conducting closed -session meetings pursuant to this chapter. For purposes of this section, litigation shall be considered pending when any of the following circumstances exist "(a) An adjudicatory proceeding before a court, administrative body exercising its adjudicatory authority, hearing officer, or arbitrator, to which the local agency is a party has been initiated formally. "(b) (1) A point has been reached where, in the opinion of the legislative body of the local agency on the advice of its legal counsel, based on existing facts and circumstances, there is a significant exposure to litigation against the local agency. *2 "(2) Based on existing facts and circumstances, the legislative body of the local agency is meeting only to decide whether a closed session is authorized pursuant to paragraph (1) of this subdivision. "(c) Based on existing facts and circumstances, the legislative body of the local agency has decided to initiate or is deciding whether to initiate litigation. "Prior to holding a closed session pursuant to this section, the legislative body of the local agency shall state publicly to which subdivision it is pursuant. If the session is closed pursuant to subdivision (a), the body shall state the title of or otherwise specifically identify the litigation to be discussed, unless the body states that to do so would jeopardize the agency's ability to effectuate service of process upon one or more unserved parties, or that to do so would jeopardize its ability to conclude existing settlement negotiations to its advantage. "The legal counsel of the legislative body of the local agency shall prepare and submit to the body a memorandum stating the specific reasons and legal authority for the closed session. If the closed session is pursuant to subdivision (a) the memorandum shall include the title of the litigation. If the closed session is pursuant to subdivision (b) or (c), the memorandum shall include the existing facts and circumstances on which it is based. The legal counsel shall submit the memorandum to the body prior to the closed session if feasible, and in any case no later than one week after the closed session. The memorandum shall be exempt from disclosure pursuant to Section 6254.1. "For purposes of this section, 'litigation' includes any adjudicatory proceeding, including eminent domain, before a court, administrative body exercising its adjudicatory authority, hearing officer, or arbitrator." It is within the context of the pending litigation exception of section 54956.9 that we are asked whether a local agency, such as a county board of supervisors, may use this exception to go into closed session to deliberate and take action upon the settlement of a lawsuit. We conclude that a local agency may do so. In 69 Ops.Cal.Atty.Gen. 232 (1986), we analyzed section 54956.9 in the context of a proposed cease and desist order issued against a city by a regional water quality control board. We stated . . We believe that the requirement of section 54956.9 of the Government Code that the attorney for the legislative body shall state the specific reasons' for the closed session requires an articulation by him or her as to why Copr. m West 2000 No Claim to Orig. U.S. Govt. Works Page 4 75 Ops. Cal. Atty. Gen. 14 (Cite as: 1992 WL 469698, *2 (Cal.A.G.)) the facts and circumstances are such that an open session would prejudice the local agency in the litigation. In the context of the tentative cease and desist order discussed herein, we can certainly envision the need to have discussed the strength and weaknesses of the city's position with respect to the four out of seven tasks the public works board recommended should be contested at the hearing before the regional board. This is particularly true since not only could the city have been faced with a cease and desist order as proposed, but the city could also have been subject to civil penalties for failure to comply with the cease and desist order (either administratively or court imposed, see Water Code, s 13350), or could have been the subject of an injunction action brought by this office at the request of the local board (see Water Code, s 13331). *3 "Whether the city attorney and the city council made the proper . judgment call' under section 54956.9 is beyond the scope of our opinion function, being essentially a question of fact (Id., at pp. 238-239; emphasis added, fn. omitted.) We found that the policy considerations inherent in section 54956.9 were those articulated by the court in Sacramento Newspaper Guild v. Sacramento County Bd. of Suprs., supra, 263 Cal.App.2d 41, as follows . . Government should have no advantage in legal strife; neither should it be a second-class citizen. . . . "Public agencies face the same hard realities as other civil litigants. An attorney who cannot confer with his client outside his opponent's presence may be under insurmountable handicaps. A panoply of constitutional, statutory, administrative and fiscal arrangements covering state and local government expresses a policy that litigating public agencies strive with their legal adversaries on fairly even terms. We need not pause for citations to demonstrate the obvious. There is a public entitlement to the effective aid of legal counsel in civil litigation. Effective aid is impossible if opportunity for confidential legal advice is banned." ''Settlement and avoidance of litigation are particularly sensitive activities, whose conduct would be grossly confounded, often made impossible, by undiscriminating insistence on open lawyer -client conferences. In settlement advice, the attorney's professional task is to provide his client a frank appraisal of strength and weakness, gains and risks, hopes and fears. If the public's "right to know" compelled admission of an audience, the ringside seats would be occupied by the government's adversary, delighted to capitalize on every revelation of weakness. A lawyer worth his salt would feel a sense of treachery in disclosing that kind of appraisal." (Id., at p. 239.) Here, the application of subdivision (a) of section 54956.9 is apparent in the circumstances presented. Discussion with respect to the settlement of a lawsuit requires of necessity that litigation has commenced. Furthermore, the litigation would still be "pending" until a final adjudication or a dismissal of the cause. We see little difficulty in determining whether the local body may "deliberate" in private concerning settlemen- matters. The clear language of section 54956.9 permits the legislative body "to confer with, or receive advice from its legal counsel regarding pending litigation." "Confer" in this context means: "to hold conversation or conference now typically on important, difficult, or complex matters: compare views: take counsel: CONSULT, DELIBERATE." (Webster's New Internat. Dict. (3d ed. 1966) p. 475.) Copr. � West 2000 No Claim to Orig. U.S. Govt. Works Page 5 75 Ops. Cal. Atty. Gen. 14 (Cite as: 1992 WL 469698, *3 (Ca1.A.G.)) Unless section 54956.9 were given a strained and unnatural construction, the wording of the statute permits individual members of a legislative body not only to deliberate and exchange opinions with counsel but also among themselves in the presence of counsel. As we noted in 69 Ops.Cal.Atty. Gen. 232, 239, supra, the pending litigation exception fills the need to discuss confidentially with counsel "the strength and weakness of the" local agency's position in the litigation. And as articulated by the court in Sacramento Newspaper Guild, Inc., supra, with respect to both "settlement and avoidance of litigation," these are "particularly sensitive activities, whose conduct would be grossly confounded, often made impossible, by undiscriminating insistance on open lawyer -client conferences." (263 Cal.App.2d at p. 56.) *4 This leaves only the question whether section 54956.9 authorizes a local legislative body to "take action" in closed session with respect to the settlement of litigation. We believe that guidance may be found regarding this issue in section 54957, the Act's so-called "personnel exception." Section 54957 permits a legislative body to meet in closed session "to consider the appointment, employment, evaluation of performance, or dismissal of a public employee . . . ." (Emphasis added.) Nothing in section 54957 authorizes the local body to "take action" in closed session. Despite this, both the courts and this office have long acknowledged the right of the local agency to take action in closed session under the terms of section 54957. (See Krausen v. Solana County Junior College Dist. (1974) 42 Cal.App.3d 394, 404; Lucas v. Board of Trustees (1971) 18 Cal.App.3d 988, 991; Cozzolino v. City of Fontana (1955) 136 Cal.App.2d 608, 612; 40 Ops.Cal.Atty.Gen. 4, 6 (1962).) The parallel between section 54957 ("to consider") and section 54956.9 ("to confer") warrants similar treatment. Furthermore, we believe section 54956.9 itself must of necessity authorize a local agency to take action in closed session. Section 54956.9 is applicable to all phases of litigation, from the initial decision whether to commence litigation to its final disposition. Accordingly, various matters must necessarily be decided such as (1) whether or not to file a lawsuit, whether to file at a particular time, or whether to file against particular parties; (2) whether to add or delete causes of actions; (3) whether to add or delete parties; and (4) whether or not to file a cross -complaint or raise particular affirmative defenses. These are all matters which may arise in the normal course of litigation, and which require decisions to be made based upon the advice of counsel and the strength and weakness of the particular case. Yet they are of such a nature that they should be neither discussed nor decided in public session unless the local agency is to be required to divulge all its strategy in public. The same reasoning would be applicable to settlement matters as presented by the question here. Unless a local agency is to be a "second class citizen" with its opponents "filling the ringside seats," (Sacramento Newspaper Guild v. Sacramento County Bd. of Suprs., supra, 263 Cal.App.2d at 56), it must be able to confer with its attorney and then decide in private such matters as the upper and lower limits with respect to settlement, whether to accept a settlement or make a counter offer, or even whether to settle at all. These are matters which will depend upon the strength and weakness of the individual case as developed from conferring with counsel. A local agency of necessity must be able to decide and instruct its counsel with respect to these matters in private. Copr. cc�' West 2000 No Claim to Orig. U.S. Govt. Works Page 6 75 Ops. Cal. Atty. Gen. 14 (Cite as: 1992 WL 469698, *4 (Ca1.A.G.)) Finally, we note that other provisions of the Act (besides s 54957 already discussed) provide for or of necessity contemplate that action will be taken in closed session. (See, e.g., ss 54956.7 (closed session regarding applications for licenses by individuals who have criminal records), 54956.8 (closed session regarding real estate negotiations and to instruct the local agency's negotiators), 54957.6 (closed session to instruct the local agency's designated representative in collective bargaining matters).) *5 In short, despite the fact that the general thrust of the Act is for public agencies to hold their meetings, deliberate, and take action in public, the Act recognizes the need at times to both deliberate and act in private when necessary due to important policy considerations. We therefore conclude that a local agency such as a county board of supervisors may use the pending litigation exception of the Act to go into closed session to deliberate and take action upon the settlement of a lawsuit. [FN3] DANIEL E. LUNGREN Attorney General CLAYTON P. ROCHE Deputy Attorney General [FN1] All section references are to the Government Code unless otherwise indicated. [FN2] "Local agencies" are defined under the Act as including "a county, city, whether general law or chartered, city and county, town, school district, municipal corporation, district, political subdivision, or any board, commission or agency thereof . . . (§ 54951.) (FN3] See also Attorney General's Publication, "Open Revision, at page 41: "It should also be emphasized that the purpose of is to permit the (local) body to receive legal advice decisions only; it is not to be used as a subterfuge oriented policy decisions." (Emphasis added.) A prior version of this publication was given "great Henderson v. Board of Education (1978) 78 Cal.App.3d 75 Ops. Cal. Atty. Gen. 14, 1992 WL 469698 (Cal.A.G.) END OF DOCUMENT Meeting Laws," 1989 the (litigation) exception and make litigation to reach nonlitigation weight" by the court in 875, 8B2-883. Copr. m West 2000 No Claim to Orig. U.S. Govt. Works Adh E 1 § 54957 CITIES, Note 8 holding public executive session after teacher had requested public hearing, deciding thereat only to allow teacher another opportunity to answer certain questions. and. after refusal dur- ing second public hearing to answer, approving motion stating that teacher should be suspend- ed, teacher's rights were not prejudiced. and action of board was not invalidated. Hunting - ion Beach Union High School Dist. v_ Collins (App_ 4 Dist. 1962) 21 Cal-Rptr. 56. 202 Cal - App.2d 677. certiorari denied 83 S-Ct- 210, 371 U-S. 904. 9 L.Ed-2d 166- 9. New positions Under the provisions of the Ralph M. Brown Act (§ 54950 et seq_), which requires legislative bodies of local agencies to hold meetings which are open to the public. the subject of the estab- lishment of a new administrative position would not usually be a proper subject for an executive session by the governing body of a local agency- 63 Ops.Atty_Gen- IS3. 2-2640- 10. Independent contractors Where real estate specialists who met with school board in closed session to discuss their qualirications to assist board in disposing of surplus real property. were not public employ- ees. but were independent contractors, this sec- tion was inapplicable, and thus board violated § 54953. Ro,hen v Santa Clara Unified School Dist. (App. 1 Dist_ 1981) 175 Cal-Rptr_ 292. 121 Cal App-3d 231. 11. Police meetings 'I -he Ralph M_ Brown Act requiring that legis lative bodies of local agencies hold their meet tngs in sessions which are open to the public COUNTIES, & OTHER AGENCIES Title 5 applies to board of police commissioners of a chartered city and the Ralph M- Brown Act does not permit the board to go into executive ses- sion to conduct its usual business with the chief of police unless the executive session is neces- sary to fall within one of the express provisions of the act or is necessary to protect another confidentiality provision of the law_ 61 Ops- Anv.Gen. 220, 3-4-78- 12. School attendance The Ralph N1- Brown Act is applicable to count% boards of education when determining a matter of school district attendance of a student pursuant to Educ-C § 10803. and such matter must be made in a public meeting. 57 Ops-Atty. Gen- 189. 4-23-74. I3- agenda This section permitting school board to con- sider personnel matters in executive session rather than at a public meeting did not require publication of detailed agenda specifying termi- nation of superintendents contract of employ- ment as a matter to be considered at executive session. Lucas v- Board of Trustees of Armyo Joint Union High School Dist.. Solano County (App 1 Dist- 1971) 96 Cal Rptr 431. 18 Caf App 3d 988 14- Witnesses Neither members of the press nor any other individuals who are not witnesses in the matter being investigated may be admitted to an execu- tive session held by local agency pursuant to this section. and the Ralph M Brown Act. as found in § 54950 et seq., does not permit excep- tions- 46 Ops-Atty-Gen- 34. 9-8-65- § 54957.1. Closed sessions; public report of action taken (a) The legislative bodv of anv local agency shall publicly report any action taken in closed session and the vote or abstention of every member present thereon. as follows: (1) Approval of an agreement concluding real estate negotiations pursuant to Section 54956.8 shall be reported after the agreement is final, as specified below: (A) If its own approval renders the agreement final, the body shall report that approval and the substance of the agreement in open session at the public meeting during which the closed session is held. (B) If final approval rests with the other party to the negotiations, the local agency shall disclose the fact of that approval and the substance of the agreement upon inquiry by any person, as soon as the other patty or its agent has informed the local agency of its approval- (2) Approval given to its legal counsel to defend, or seek or refrain from seeking appellate review or relief, or to enter as an amicus curiae in any form 168 MEETINGS § 54957.1 , Div. 2 of litigation as the result of a consultation under Section 54956.9 shall be reported in open session at the public meeting during which the closed session is held. The report shall identify, if known, the adverse party or parties and the substance of the litigation. In the case of approval given to initiate or intervene i in an action, the announcement need not identify the action, the defendants, or other particulars, but shall specify that the direction to initiate or intentene in an action has been given and that the action, the defendants, and the other particulars shall, once formally commenced, be disclosed to any person upon inquiry, unless to do so would jeopardize the agency's ability to effectuate i service of process on one or more unserved parries, or that to do so would jeopardize its ability to conclude existing settlement negotiations to its advan- ta e- (3) Approval given to its legal counsel of a settlement of pending litigation, as defined in Section 54956-9, at any stage prior to or during a judicial or quasi- ' judicial proceeding shall be reported after the settlement is final, as specified below: (A) If the legislative body accepts a settlement offer signed by the opposing party, the body shall report its acceptance and identify the substance of the agreement in open session at the public meeting during which the closed session is held. (B) if final approval rests with some other party to the litigation or with the court, then as soon as the settlement becomes final, and upon inquiry by any person, the local agency shall disclose the fact of that approval, and identify the �. substance of the agreement. (4) Disposition reached as to claims discussed in closed session pursuant to Section 54956.95 shall be reported as soon as reached in a manner that identifies the name of the claimant, the name of the local agency claimed against, the substance of the claim, and any monetary amount approved for payment and agreed upon by the claimant. � (5) Action taken to appoint, employ, dismiss, accept the resignation of, or otherwise affect the employment status of a public employee in closed session pursuant to Section 54957 shall be reported at the public meeting during which the closed session is held. Any report required by this paragraph shall identify the title of the position. The general requirement of this paragraph notwith- standing, the report of a dismissal or of the nonrenewal of an employment E contract shall be deferred until the first public meeting following the exhaustion of administrative remedies, if any- (6) Approval of an agreement concluding labor negotiations with represented ; employees pursuant to Section 54957.6 shall be reported after the agreement is final and has been accepted or ratified by the other party. The report shall identify the item approved and the other party or parties to the negotiation. (b) Reports that are required to be made pursuant to this section may be made orally or in writing. The legislative body shall provide to any person who has submitted a written request to the legislative body within 24 hours of the posting of the agenda, or to any person who has made a standing request for all { �� documentation as part of a request for notice of meetings pursuant to Section I 169 j !E t w 1 § 54957.1 CITIES, COUNTIES, & OTHER AGENCIES Title 5 '++ 54954.1 or 54956, if the requester is present at the time the closed session ends, 1� = copies of any contracts, settlement agreements, or other documents that were finally approved or adopted in the closed session. if the action taken results in one or more substantive amendments to the related documents requiring - r C retyping, the documents need not be released until the retyping is completed i during normal business hours. provided that the presiding officer of the i legislative body or his or her designee orally summarizes the substance of the j amendments for the benefit of the document requester or any other person present and requesting the information_ (c) The documentation referred to in paragraph (b) shall be available to any person on the next business day following the meeting in which the action referred to is taken or, in the case of substantial amendments, when any necessary retyping is complete. (d) [nothing in this section shall be construed to require that the legislative body approve actions not otherwise subject to legislative body approval. (e) No action for injury to a reputational, liberty, or other personal interest may be commenced by or on behalf of any employee or former employee with respect to whom a disclosure is made by a legislative body in an effort to comply with this section. (Added by Stats-1975. c. 959. p. 2242. § 9. Stats.1980, c. 181. p. 402, § 1: Stats.1980 (A-B.1426). § 13. operative Aprii I. 1994: April 1, 1994: Stats.1994, c. 32 (S-B.752), 1994-) Amended by Stats-1977, c. 89. p. 506, § l: c- 1284, p. 4343, § 22: Stats.1993, c. 1136 Stat.s.1993. c. 1137 (S.B.36). § 13. operative § 13. eff. March 30, 1994, operative April 1. Historical and Statutory Holes Section affected by two or more acts at the same session of the legislature. see Government Codc § 9605 Operative effect of Stais.1993. c 1137 (S.B.36), see Historical and Statutory Notes un- der Government Code § 5.3952.7_ Operative effect of Stats-1993, c_ 1136 (A-B- 1426), see Historical and Staiucorti- Notes under Government Code § 54952-7- Law Review and Journal Commentaries Rel-rew of selected 1993 California legislation. 25 Pac.LJ. 793 (1994). Library References Municipal Corporations C-87_ WESTLAW Topic No. 268. CJ_S- Municipal Corporations § 393. Dotes of Decisions Claims t Employment matters 2 I. Claims Minutes containing deliberations of claim set• dement committee of county in settling claim of county jail inmate. whose throat was slashed were not exempt from disclosure under th Brown Act (§ 54950 et seq) since committee held secret meeting in clear violation of the Brown Act. Register Dtv- of Freedom Newspa- pers. Inc- v Orange County (App- 4 Dist_ 1984) 205 Cal.Rpir. 92. 158 Cal.App 3d 893- 2. Employment matters This section does not require board of di- e rectors of hospital district to report at its nett 170 It NUV-29-2ZU 437.46 i. =RC ^ GERSHON 'TC 17143741790 P. k zzzu ) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IA00S_ WATSON a GeRs.+oN IN WITNESS WHEREOF, the parties hereto have each approved and executed this Settlement Agreement on the date set forth below. DATED: 1 DATED. - DATED: DATED: 1 i 1 6 i2 o 0 0 DATED: 11/16/2000 DATED: 11/ 16/ 2 0 0 0 [Signatures Cont'd Next Page] CALIF I C6AS L COMMISSION By: Its: CITY OF HUNTINGTON BEACH By: Its. t �-- ) kj ks CITY OF HUNTINGTON BEACH REDEVELOPMENT AGENCY By: Its: Xr_G1, 77 c.4.10 ROBER MAY R C ORATION By: Its: President MAYER FINANCIAL, L.P. By: Its: vice Pre d t/Secretar ROBERT MAYER TRUST Its: Trustee 12063\0003\631622.4 Nou-29-2e2e e9:42 6 1 c? W.f� NGV-Z:-202e Gay 4� I-,c0r1 [CHH�P� 1~HTSON 8 GCR9!-UN id i'7?43r41590 P.03�L3 1 2 3 4 5 6 7 S 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 GC45 �+Or 4�OrPe�y i' Law. APPROVED AS TO FORM AND CONTENT: RALPH F4L;ST, JR., CHIEF COUNSEL lu R h Faust,,I ., Esq. Chi Counsp for CALIFORNIA COASTAL COMMISSION GAIL HUTTON, CITY ATTORNEY PAliL D. D'ALESSAINDRO, DEPUTY CITY ATTORNEY By. Paul D. D'Alessandro Attorney•s for CITY OF HUN'I'INGTON BEACH and CITY OF HUNTINGTON BEACH REDEVELOPMENT AGENCY RICHARDS, WATSON & GERSHON By: Steven H. Kaufmann Attorneys for ROBE MAYER CORPORATION, MAYER FINANCIAL, L.P. and ROBERT L. MAYER TRUST 1246310003N631622.4 7 TflTPL P.03 P.03 NOU-29-2000 t�19:43 • ATTACHMENT #4 (2) November 20, 2000 - Council/Agency Agenda - Page 2 Call Closed Session Of City Council/Redevelopment Agency Recommended Action: Motion to recess to Closed Session on the following items. (City Council) Closed Session -- Pursuant to Government Code Section 54956.9(a) to confer with its attorney regarding pending litigation which has been initiated formally and to which the city is a party. The title of the litigatioLi is Amwest Environmental Group, et al. v. City of Huntington Beach, et al., O. C. Superior Court Case No. 00 CC 08364. (120.80) (City Council) Closed Session — Pursuant to Government Code Section 54956.9(a) to confer with its attorney regarding pending litigation which has been initiated formally and to which the city is a party. The title of the litigation is Doherty v. City of Huntington Beach, O. C. Superior Court Case No_ 00 CC00677. (120.80) (City Council) Closed Session — Pursuant to Government Code Section 54956 9(a) to confer with its attorney regarding pending litigation which has been initiated formally and to which the city is a party. The title of the litigation is Bolsa Chica Land Trust v California Coastal Commission, O C Superior Court Case No. 00 CC005991. (120.80) (City Council) Closed Session — Pursuant to Government Code Section 54956.9(c) to confer with its attorney regarding pending litigation based on existing facts and circumstances, the legislative body of the local agency has decided to initiate or is deciding whether to initiate litigation. One potential case: Coastal Commission Suspension Letter Related to CDP 97-15 dated September 12, 2000. (120.80) (City Council) Closed Session — Pursuant to Government Code Section 54956.8 to give instructions to the Agency's negotiators, Matt Lamb and Ron Hagan, regarding negotiations with Jack Clapp concerning the purchase of Dwight's Beach Concession located on the east side of the Huntington Beach Pier, on the south side of Pacific Coast Highway, and north of the sand line from the Pacific Ocean. Instruction will concern price and terms of payment. (120.80) • • ATTACHMENT #5 0 Approved as Seption to the Ralph M Brown Act Coastal Commission Suspension Letter ' Subject- Related to CDP 97-15 dated 9112/00 �, ,-- 7", GAIL HUTTON. City Attorney/Agency Counsel STATEMENT FOR MAYOR/CHAIRMAN OF REDEVELOPMENT AGENCY PRIOR TO CLOSED SESSION OF CITY COUNCIUREDEVELOPMENT AGENCY Date: November 20, 2000 MOTION TO RECESS TO CLOSED SESSION PURSUANT TO GOVERNMENT CODE SECTION 54956.9(a) TO CONFER WITH ITS ATTORNEY REGARDING PENDING LITIGATION WHICH HAS BEEN INITIATED FORMALLY AND TO WHICH THE CITY IS A PARTY. (CHECK ONE.) -- The title of the litigation is _ Case No. - Identification of such litigation would jeopardize the City's ability to effect service of process upon one or -more unserved parties: or - Identification of such litigation would jeopardize the City's ability to conclude existing settlement negotiations to its advantage- 2 X MOTION TO RECESS TO CLOSED SESSION TO CONFER WITH ITS CITY ATTORNEY REGARDING PENDING LITIGATION PURSUANT TO GOVERNMENT CODE SECTION: 54956.9(b)(2)(A) (Facts and circumstances that might result in litigation against the local agency but which the local agency believes are not yet known to a potential plaintiff or plaintiffs, which facts and circumstances need not be disclosed.) Number of Potential Cases 54956.9(b)(2)(B) (Facts and circumstances, including, but not limited to, an accident, disaster, incident, or transactional occurrence that might result in litigation against the agency and that are known to a potential plaintiff or plaintiffs, which facts or circumstances shall be publicly stated on the agenda or announced.) X 54956.9(c) (Based on existing facts and circumstances, the legislative body of the local agency has decided to initiate or is deciding whether to initiate litigation_) Number of Potential Cases One 3. MOTION TO RECESS TO CLOSED SESSION PURSUANT TO GOVERNMENT CODE SECTION 54956.8 TO GIVE INSTRUCTIONS TO THE CITY'S NEGOTIATOR, . REGARDING NEGOTIATIONS WITH CONCERNING THE PURCHASE I SALE 1 EXCHANGE I LEASE OF THE PROPERTY LOCATED AT Instruction will concern: Price Terms of Payment Both 4. MOTION TO RECESS TO CLOSED SESSION TO MEET WITH ITS DESIGNATED REPRESENTATIVES REGARDING LABOR RELATIONS MATTERS PURSUANT TO GOVERNMENT CODE SECTION 54957.6. Agency Negotiator: Name Employee Organizations Unrepresented Employees 5_ MOTION TO RECESS TO CLOSED SESSION TO CONSIDER PERSONNEL MATTERS PURSUANT TO GOVERNMENT CODE SECTION 54957- 6. MOTION TO RECESS TO CLOSED SESSION PURSUANT TO GOVERNMENT CODE SECTION 54956.7 TO MEET WITH AN APPLICANT FOR A CITY LICENSE AND THE APPLICANTS ATTORNEY. 7. MOTION TO RECESS TO CLOSED SESSION PURSUANT TO GOVERNMENT CODE SECTION 54957 TO MEET WITH THE CHIEF OF POLICE REGARDING MATTERS OF PUBLIC SECURITY. VOTE: { • WCEIVED FROM CQs AND MADE A PART OF TAE RE ORD T TH COUNCIL MEETING OF OFFICE OF THE CI CLE K Ho. CONNIE BROCKWAY, CITY CLERK N3CITY OF HUNTINGTON BEACH Inter -Department Communication TO: Honorable Mayor and ]Members of the Cite Council FROM: Gail Hutton, City Attorney DATE: December 4, 2000 SUBJECT: Agenda Item F-1 for Council/Agency Meeting of December 4, 2000: Closed Session Action By City CouncilfRedevelopment Agency On November 20, 2000 BACKGROUND This memo is regarding Agenda Item F-I for the Council/Agency meeting of December 4, 2000. It is also in response to the memorandum to the Council/Agency from the City Clerk dated November 30, 2000, a copy of which was provided to me for review by the City Administrator. My conclusion, as more fully analyzed below, is that Item F-1 is legally unnecessary, since the closed session item at issue was correctly posted, agendized, voted upon, and reported out at the Council/Agency meeting of November 20, 2000. ANALYSIS The Closed Session Statement In the City Clerk's memo, it is incorrectly asserted that the "document on which Councilmembers rely to meet in closed session was incorrectly prepared for only the City Council to meet, and did not include the Councilmembers to meet in closed session in their capacity as Redevelopment Agency members. This caused the November 20, 2000 official agenda posting to be deficient and incorrect." Actually, the closed session document clearly indicates that both the Council/Agency were to meet in closed session. The title of the document is "STATEMENT FOR MAYOR/CHAIRMAN OF THE REDEVELOPMENT AGENCY PRIOR TO CLOSED SESSION OF CITY COUNCIL/REDEVELOPMENT AGENCY." This means that both agencies were to meet in closed session. If an error occurred on the posted agenda document, it was not substantive enough to violate the Brown Act notice requirements, since the overall closed sessions for both the Council and the Agency were noticed and voted upon by the Council/Agency prior to the closed session. (See attached copies of both documents.) 4-2000Nicmos:01y Council Q-04.2000 F The Closed Session Report Item F-1 also incorrectly states that the closed session vote was inaccurately reported. Actually, the vote was correctly reported to the City Clerk in writing as 5 in favor and 0 against (copy attached). Additionally, the videotape of the meeting confirms that after some discussion, the vote was orally reported by Councilmember Julien with my assent. In any event, a separate agenda item is not necessary to record a correction to a vote. The past practice of the City has been to merely correct the vote when the minutes are eventually prepared and presented to the Council/Agency for adoption. Tonight's Agenda Item F-I Item F-1 on tonight's City Council/Redevelopment Agency Agenda is legally unnecessary. As discussed above, the original action was properly posted, acted upon, and reported. (See Gov't Code Section 54957.1) Further, since the Council/Agency has already properly approved the agreement, and the Mayor/Chairman Pro Tern has executed the agreement on behalf of the Council/Agency, any contrary action by the Council/Agency may be viewed as a breach of contract. (See attached copy of executed agreement.) Recommendation Since the proposed action for Item F-1 is legally unnecessary, I recommend the following alternative action for the Council/Agency: CITY COUNCIL/REDEVELOPMENT AGENCY MOTION TO: 1. That the City° Council and Redevelopment Agency find that their closed session actions on November 20, 2000 regarding the Coastal Commission Suspension Letter related to CDP 97-15 were properly posted, acted upon, and reported; and 2. That the City Council and Redevelopment Agency hereby confirm said closed session actions as more fully described in the Report of Closed Session Action delivered to the City/Agency Clerk from the City Attorney/Agency General Counsel on November 20, 2000. Please contact me at your earliest convenience if there are any further questions regarding this matter. GAIL HUTTON City Attorney Copies: Connie Brockway, City Clerk Ray Silver, City Administrator William Workman, Asst. City Administrator Howard Zelefsky, Planning Director 4.2(WMcrnas-City Council 12-44.2000 Attachments: Statement for Mayor/Chairman prior to 11/20/2000 closed session Agenda page for November 20, 2000 meeting showing closed session items Settlement Agreement signed in counterpart by Mayor Pro Tern (without attachments) Report of Closed Session Action dated November 20, 2000 (without attachments) 4.2000Mems City Council 12-04-2000 . Approved asOxception to the Ralph M- Brown Act Coastal Commission Suspension Letter ' Subject: Related to CDP 97-15 dated 9/12100 P1__SL /✓ GAIL HUTTON, City Attorney/Agency Counsel STATEMENT FOR MAYOR/CHAIRMAN OF REDEVELOPMENT AGENCY PRIOR TO CLOSED SESSION OF CITY COUNCIUREDEVELOPMENT AGENCY Date- November 20, 2000 1. MOTION TO RECESS TO CLOSED SESSION PURSUANT TO GOVERNMENT CODE SECTION 54956.9(a) TO CONFER WITH ITS ATTORNEY REGARDING PENDING LITIGATION WHICH HAS BEEN INITIATED FORMALLY AND TO WHICH THE CITY IS A PARTY. (CHECK ONE-) ; The title of the litigation is Case No. - - Identification of such litigation would jeopardize the City's ability to effect service of process.upon one or more unserved parties: or = ,J Identification of such litigation would jeopardize the City's ability to conclude existing settlement negotiations to its advantage. 2. X MOTION TO RECESS TO CLOSED SESSION TO CONFER WITH ITS CITY ATTORNEY REGARDING PENDING LITIGATION PURSUANT TO GOVERNMENT CODE SECTION_ 54956.9(b)(2)(A) (Facts and circumstances that might result in litigation against the local agency but which the local agency believes are not yet known to a potential plaintiff or plaintiffs, which facts and circumstances need not be disclosed_) Number of Potential Cases 54956.9(b)(2)(B) (Facts and circumstances, including, but not limited to. an accident, disaster, incident, or transactional occurrence that might result in litigation against the agency and that are known to a potential plaintiff or plaintiffs, which facts or circumstances shall be publicly stated on the agenda or announced.) X 54956.9(c) (Based on existing facts and circumstances, the legislative body of the local agency has decided to initiate or is deciding whether to initiate litigation.) Number of Potential Cases One 3. MOTION TO RECESS TO CLOSED SESSION PURSUANT TO GOVERNMENT CODE SECTION 54956.8 TO GIVE INSTRUCTIONS TO THE CITi' S NEGOTIATOR, , REGARDING NEGOTIATIONS WITH CONCERNING THE PURCHASE I SALE 1 EXCHANGE 1 LEASE OF THE PROPERTY LOCATED AT Instruction will concern: Price Terms of Payment Both 4. MOTION TO RECESS TO CLOSED SESSION TO MEET WITH ITS DESIGNATED REPRESENTATIVES REGARDING LABOR RELATIONS MATTERS PURSUANT TO GOVERNMENT CODE SECTION 54957.6. Agency Negotiator: Name Employee Organizations Unrepresented Employees 5. MOTION TO RECESS TO CLOSED SESSION TO CONSIDER PERSONNEL MATTERS PURSUANT TO GOVERNMENT CODE SECTION 54957. 6. MOTION TO RECESS TO CLOSED SESSION PURSUANT TO GOVERNMENT CODE SECTION 54956.7 TO MEET WITH AN APPLICANT FOR A CITY LICENSE AND THE APPLICANTS ATTORNEY, 7. MOTION TO RECESS TO CLOSED SESSION PURSUANT TO GOVERNMENT CODE SECTION 54957 TO MEET WITH THE CHIEF OF POLICE REGARDING MATTERS OF PUBLIC SECURITY. VOTE: (3) • November 20, 2000 - Councildency Agenda - Page 3 Call Closed Session Of City Council/Redevelopment Agency Recommended Action: Motion to recess to Closed Session on the following items_ [Approved 6-0-9 (Harman absent)] sty Council) Closed Session — Pursuant to Government Code Section 54956.9(a) to confer with its attorney regarding pending litigation which has been initiated formally and to which the city is a party. The title of the litigation is Amwest Environmental Group, et al. v. City of Huntington Beach, et al., O. C. Superior Court Case No_ 00 CC 08364. (120.80) (City Council Closed Session — Pursuant to Government Code Section 54956.9(a) to confer with its attorney regarding pending litigation which has been initiated formally and to which the city is a party. The title of the litigation is Doherty v. City of Huntington Beach, O. C_ Superior Court Case No_ 00 CC00677. (120.80) (City Council,) Closed Session — Pursuant to Government Code Section 54956.9(a) to confer with its attorney regarding pending litigation which has been initiated formally and to which the city is a party. The title of the litigation is Bolsa Chica Land Trust v California Coastal Commission, O. C. Superior Court Case No. 00 CC005991. (120.80) /t, Cit Council Closed Session — Pursuant to Government Code Section 54956.9(c) to confer with its attorney regarding pending litigation based on existing facts and circumstances, the legislative body of the local agency has decided to initiate or is deciding whether to initiate litigation. One potential case: Coastal Commission Suspension Letter Related to CDP 97-15 dated September 12, 2000. (120.80) (City Council) Closed Session — Pursuant to Government Code Section 54956.8 to give instructions to the Agency's negotiators, Matt Lamb and Ron Hagan, regarding negotiations with Jack Clapp concerning the purchase of Dwight's Beach Concession located on the east side of the Huntington Beach Pier, on the south side of Pacific Coast Highway, and north of the sand line from the Pacific Ocean. Instruction will concern price and terms of payment. (120.80) 1 SETTLEMENT AGREEMENT 2 3 This Settlement Agreement ("Agreement") is entered into by and between 4 the California Coastal Commission ("Commission"), the City of Huntington Beach 5 ("City), the Huntington Beach Redevelopment Agency ("Agency"), and the Robert Mayer 6 i Corporation, Mayer Financial, L.P., and Robert L. Mayer Trust (collectively, "Mayer"). 7 The Commission, City, Agency and Mayer are sometimes collectively referred to in this 8 Agreement as "the Parties." 9 RECITALS 10 WHEREAS, the Agency is the owner in fee simple of certain real property 11 in the City of Huntington Beach, County of Orange, State of California, which is 12 described on Exhibit "A" attached hereto and incorporated herein by this reference (the 13 "Property"). 14 WHEREAS, Mayer Financial, L.P., is the Developer of the Property and the 15 assignee of all right, title and interest of the Robert L. Mayer Trust in the Property. The 16 Robert Mayer Corporation is, and at various times has been, the agent and representative 17 of Mayer Financial, L.P., and the Robert!— Mayer Trust. 18 WHEREAS, the Property includes an area (the "Degraded Wetland Area") 19 within which there is an existing .696-acre degraded wetland located generally 1000 feet 20 inland of the northwest corner of Pacific Coast Highway and Beach Boulevard. The 21 Degraded Wetland Area is delineated generally on Exhibit "B" attached hereto and 22 incorporated herein by this reference and described specifically on Exhibit "C" attached 23 hereto and incorporated herein by this reference. 24 WHEREAS, on April 11, 2000, the Commission approved, with conditions, 25 Coastal Development Permit No. A-5-HNB-99-275, an application filed by the Robert L. 26 Mayer Trust and the Agency to fill the Degraded Wetland Area in conjunction with the 27 implementation of a wetland and riparian woodland habitat restoration project at the 28 Shipley Nature Center in the City of Huntington Beach. RICHARDS W►7SOH O GCRSHOH Alloaneyf it La+. 1206310003\63 ] 622.4 1 • 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 WHEREAS, on September 13, 2000, the Commission adopted Revised Findings to support its decision to approve Coastal Development Permit No. A-5-HNB- 99-275, finding that the development, as conditioned, is consistent with the certified City of Huntington Beach Local Coastal Program. WHEREAS, on May 17, 2000, project opponents filed a lawsuit entitled Bolsa Chica Land Trust et al. v. California Coastal Commission, et al., Orange County Superior Court Case No. OOCCO5991, seeking to set aside the Commission's approval of Coastal Development Permit No. A-5-HNIB-99-275. WHEREAS, on September 14, 1998, the City of Huntington Beach City Council granted the separate application of the Robert Mayer Corporation and Mayer Financial, L.P., for Coastal Development Permit CDP 97-15, approving, inter alia, the construction of the Grand Coast Resort Hotel and Conference Center, located generally on the north side of Pacific Coast Highway, west of Beach Boulevard and east of Huntington Street, in the City of Huntington Beach. WHEREAS, on September 22, 1998, the Commission acknowledged receipt of the City's written Notice of Action on CDP 97-15, thereby commencing a 10 working day appeal period. WHEREAS, on October 7, 1998, the Commission wrote the Robert Mayer Corporation and City, informing them that the 10-day appeal period expired on October 6, 1998, that no appeals were received by the Commission, and that CDP 97-15 is therefore 21 11 final. 22 23 24 25 26 27 28 RICMAROS. WATSON a GERSHON Auorneys of %a - WHEREAS, pursuant to City of Huntington Beach CDP 97-15, Mayer has undertaken substantial site preparatory work and contends that it has incurred substantial liabilities in preparation for imminent construction of the Grand Coast Resort Hotel and Conference Center. WHEREAS, on September 12, 2000, the Staff of the Commission issued a written Notice of Suspension to the City, suspending CDP 97-15 pending a further review of the legal adequacy of the City's September 18, 1998 Notice of Action. The City, 12063\0003\631622.4 2 I Agency and Mayer contend that said Notice of Action was, and is, legally adequate and 2 no longer subject to challenge. 3 WHEREAS, the Parties have since conducted a thorough review of the 4 disputed matters, and have agreed to a full, final and complete settlement on the terms 5 and conditions set forth herein. 6 WHEREAS, this Agreement is entered into by the Commission, City, 7 Agency and Mayer, and each of them, without any admission of fault or liability of any 8 kind or of any contention of any of the Parties, but instead to avoid the costs and risks of 9 litigation and to resolve this matter in a matter mutually satisfactory to all of the Parties. 10 11 AGREEMENT 12 NOW, THEREFORE, in consideration of the mutual covenants and 13 promises contained herein, the Commission, City, Agency and Mayer agree to settle the 14 disputed matters upon the following terms and conditions: 15 1. Recordation of Open SpacefWetland Preservation and Restoration 16 Deed Restriction. The Agency shall execute and record a Deed Restriction over the 17 Degraded Wetland Area which limits, in perpetuity, the uses of the Degraded Wetland 18 area to natural open space for wetland preservation and restoration uses. The Deed 19 Restriction shall run with the land, binding all successors and assigns, and shall be 20 recorded free of prior liens that the Executive Director of the Commission determines 21 may affect the enforceability of the Deed Restriction. The Deed Restriction shall be 22 substantially in the form attached hereto as Exhibit "D," and shall not be removed or 23 changed without a coastal development permit issued by the Commission. The Deed 24 Restriction shall not become effective unless and until the Commission issues the Notice 25 required under Paragraph 2, below, and City of Huntington Beach CDP 97-15 is, and 26 remains, final and not subject to appeal to the Commission. 27 2. Withdrawal of Commission Suspension Notice. Within five (5) days 28 receipt of written proof that the Deed Restriction has been recorded consistent with the RCNwh Os, WwT son R GERs NON AtlWnfrf [ l.w 12063\0003\63 l 622.4 3 1 terms and conditions of Paragraph 1, above, the Commission, through its Executive 2 Director, shall issue a Notice of Withdrawal of Suspension Notice ("Notice") to the City, 3 with copies to the Agency and the Robert Mayer Corporation, formally withdrawing its 4 September 12, 2000 Notice of Suspension and advising that City of Huntington Beach 5 CDP 97-15 is final and not subject to appeal to the Commission. The Notice shall be 6 substantially in the form attached hereto as Exhibit "E." The Commission shall take no 7 action thereafter inconsistent or in conflict with that Notice. 8 3. Abandonment of Permit Approval. The Agency and Mayer agree to 9 abandon the Commission's approval of Coastal Development Permit A-5-HNB-99-275, 10 effective upon issuance by the Commission of the Notice required under Paragraph 2, 11 above; provided, however, that the Commission's approval of Coastal Development 12 Permit A-5-HNB-99-275 shall remain in full force and effect unless and until the 13 Commission issues the Notice required under Paragraph 2, above, and City of Huntington 14 Beach CDP 97-15 is, and remains, final and not subject to appeal to the Commission. 15 The Agency and Mayer shall confirm this abandonment of permit approval to the 16 Commission in writing within ten (10) days'receipt of the Notice. 17 4. No Restoration Obligation. When the Agency and Mayer abandon 18 the Commission's approval of Coastal Development Pen -nit A-5-HNB-99-275, said 19 Coastal Development Permit shall be of no force and effect, including but not limited to 20 any obligation by Mayer to undertake the wetland and riparian woodland habitat 21 restoration project at the Shipley Nature Center. Neither the Agency nor Mayer is under 22 any obligation to restore the Degraded Wetlands Area. 23 5. Future Conveyance of De aded Wetland Area. The Agency may at 24 any time convey the Degraded Wetland Area, separate and apart from balance of the 25 Property, to the City or any other public agency for wetland restoration and other 26 purposes subject to and consistent with the Deed Restriction. 27 Ill 28 Ill RICmARos, WATSON R GEJRSNON Attorneys allay 1206310403\63 1622.4 4 • 1 6, Obligation tQ Remove Trash and Debris from De aded Wetland 2 Area. The Agency and its successors and assigns shall maintain the Degraded Wetland 3 Area free of trash and debris. 4 7. Dujy to Cooperate. The parties agree to cooperate in effectuating 5 the terms and conditions of this Agreement. 6 8. Binding Effect. This Agreement shall inure to the benefit of and 7 shall be binding upon the heirs, successors, assigns, representatives, and beneficiaries of 8 the parties. 9 9. No Admission of Liability or Wrongdoing. This Agreement is solely 10 for the purpose of compromising doubtful and disputed claims and avoiding litigation. 11 The Agreement shall not be construed as an admission of liability or wrongdoing of any 12 party or of any contention of any party. 13 10. Paragraph Headings. The paragraph headings contained herein are 14 for descriptive purposes only and are not intended to convey or change the meaning of 15 any provision hereof. 16 11. inte retation. This Agreement shall be construed in accordance 17 with the laws of the State of California. 18 12. Legal Advice. Each party has received independent legal advice 19 from its attorneys with respect to the advisability of executing this Agreement and the 20 meaning of the provisions hereof. The provisions of this Agreement shall be construed as 21 to the fair meaning and not for or against any party based upon any attribution of such 22 party as the sole source of the language in question, it being expressly understood that the 23 parties hereto participated equally or had equal opportunity to participate in the drafting 24 thereof. 25 13. Execution in CounteLparts. This Agreement may be executed in 26 counterparts, and when each party has signed and delivered at least one such counterpart, 27 each counterpart shall be deemed an original and, when taken together with the other 28 counterparts, shall constitute the Settlement Agreement. RIGHAROS, WATSON d GERSHON Anprn�ys al Ls� 12063\0003\631622.4 5 0 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 21 RICHARDS, WATSON A GERSMON Aatoanars a1 La- IN WITNESS WHEREOF, the parties hereto have each approved and executed this Settlement Agreement on the date set forth below. DATED: CALIFORNIA COASTAL COMMISSION By: Its: DATED: II - Z 1 - 08 CITY O HUNT GTON BEACH By. Its: Z02 i DATED: 1!- 2 ° -Oct CITY OF HUNTINGTON BEACH REDMM�IJNT AGENCY By:7�VA41eri Its: 6bam&v P" DATED: ROBERT MAYER CORPORATION By: Its: DATED: MAYER FINANCIAL, L.P. By: Its: DATED: ROBERT MAYER TRUST By: Its: [Signatures Cont'd Next Page] 12063\00031631622.4 6 1 2 3 4 5 6 7 8 9 1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a RiC.G��Hon.=110,4 a Attorneys et law APPROVED AS TO FORM AND CONTENT: RALPH FAUST, JR., CHIEF COUNSEL By: Ralph Faust, Jr., Esq. Chief Counsel for CALIFORNIA COASTAL COMMISSION GAIL HUTTON, CITY ATTORNEY PAUL D. D'ALESSANDRO, DEPUTY CITY ATTORNEY «r p IBy. 1 1 a'.o+ 1 D. D'Alessandro " zap Attorneys for CITY OF HUNTINGTON BEACH and CITY OF HUNTINGTON BEACH REDEVELOPMENT AGENCY RICHARDS, WATSON & GERSHON By: Steven H. Kaufmann Attorneys for ROBERT MAYER CORPORATION, MAYER FINANCIAL, L.P. and ROBERT L. I✓AYER TRUST 12063\0003\631622.4 7 J. CITY OF HUNTINGTON BEACH Inter -Department Communication TO: Connie Brockway, City/Agency Clerk FROM: Gail Hutton, City Attorney/Agency General Counsel DATE: November 20, 2000 SUBJECT: Report of Closed Session Action By City CounciVRedevelopment Agency On November 20, 2000, the City Council and Redevelopment Agency met in closed session to consider whether to initiate litigation against the California Coastal Commission over a suspension letter issued by the Commission regarding the City's approval of Coastal Development Permit No. 97-15. A copy of the suspension letter is attached hereto as Attachment No. 1. Upon motion by Council/Agency Member &m y- , and second by Council/Agency Member 5H lleva h , and a vote of S— in favor and _ against, the City Council/ Redevelopment Agency adopted the following actions: 1. Approved the Settlement Agreement attached hereto as Attachment No. 2, and the Deed Restriction attached hereto as Attachment No. 3. 2. Authorized the Mayor Pro Tem/Chairman Pro Tem to execute the Settlement Agreement and Deed Restriction on behalf of the City/Agency. 3. Authorized the recordation of the Deed Restriction as set forth in the Settlement Agreement. Az�� GAEL HUTTON City Attorney/Agency General Counsel Attachments: 1. Suspension letter dated September 12, 2000 2. Settlement Agreement 3. Deed Restriction 4-2000Memos City Clerk —Report or Closed Session Action 11-20 • CITY OF HUNTINGTON BEACH INTER -DEPARTMENT COMMUNICATION Planning Department TO: Howard Zelefsky, Planning Director FROM: Robin Lugar, Administrative Assistant d4K SUBJECT: November 20, 2000 City Council Meeting DATE: December 1, 2000 r- I reviewed the opening segment of videotape for the November 20, 2000 City Council meeting, specifically the part when the City Attorney provides the public information on actions taken by the City Council / Redevelopment Agency during Closed Session. The following summarizes Item (3) related to Coastal Development Permit No. 97-15 (see attached): 1) The City Attorney repeated the information listed under Item (3) and informed the public • that Council/Agency Member Bauer made a motion to approve, with a second by Council/Agency Member Sullivan. Action approved by a 5-0 vote. 2) The City Attorney then made a statement that she believed the correct vote count should be 6-0 and looked toward the City Clerk to confirm. 3) I believe l heard Council Member Julien remind her that Mayor Garofalo was not present during this item and that the 5-0 vote count was correct. Although Council Member Julien was not seen on camera, the City Attorney turned towards Council Member Julien's direction and acknowledged her statement in agreement. Someone (maybe the City Clerk) mentioned Garofalo's abstention. Please let me know if you have any questions. Attachment is -1-ON V--, (4) — November 20, ZUUU - Gouncll[AgertL�Agenda =page 4 • �_— L J • Zr �l The City CdWI and the Redevelopment Agency of the =of Huntington Beach will regularly -Convene in joint session for the purpose of c idering the following City Council -Redevelopment Agency Agenda items. The Huntington Beach Parking Authority, Civic improvement Corporation, and the Huntington Beach Public Financing Authority are also agencies on which Council serves as members. On each Agenda these Agencies may have items scheduled. 7:00 P.M. - Council Chamber Reconvene City Council/Redevelopment Agency Meeting '* The City Attorney Shall Determine If Any Actions Taken By The City Council or Redevelopment Agency In Closed Session Shall Require A Reporting On Those Actions As Required By Law (Government Code §54957.1(a) (3) (B)). City Council City Attorne 's Report of Action Taken by the City Council in Closed Session on October 16, 2000 (Pursuant to Government Code§54957.1(a) (3) (Bf) -- Instructed City Attorney not to Request PUC (Public Utilities Commission) for Reconsideration of So Cal Water Company's Application to provide Water and Waste Water System Services to Hearthside Home's Bolsa Chica Mesa Pro•ect (120.80) The City Attorney will announce that Council voted on a closed session item: On Monday, October 16, 2000, the City Council convened in closed session to discuss the Matter of the Application of Southern California Water Company (U13314) for a Certificate of Public Convenience and Necessity Pursuant to California Public Utilities Code Section 1001 to extend its West Orange County System to the Bolsa Chica Planned Community, Application 98-11-003; and Related Waste Water System Application. City Council voted to instruct the City Attorney not to request the PUC (Public Utilities Commission) to reconsider its decision authorizing Southern California Water to provide water and waste service to Hearthside's Bolsa Chica Mesa project. The Council voted as follows - Ayes: Julien, Garofalo, Green, Dettloff, Bauer, Noes: Sullivan and Harman. (1) City Attorney announced above Report of Action Taken (2) City Attorney announced Action approving Amwest Settlement Agreement — Amwest v. City submitted on 11-06-00 (4-2-1 Bauer, Sullivan No; Harman absent) (3) ity Attorney announced Report of Action taken out of Closed Session: On Monday, 11120100 the City Council convened in Closed Session to consider whether to initiate litigation against the California Coastal Commission over a suspension letter issued by the Commission regarding the City's l ,approval of Coastal Development Permit No. 97-15. (1) Approved the �""�S,S Settlement Agreement (2) Authorized the Mayor Pro Tem/Chairman Pro i 4 Tem to execute the Settlement Agreement and Deed Restriction on behalf N of the City/Agency (3) Authorized the recordation of the Deed Restriction as set forth in the Settlement Agreement. (5-0-2 Harman, Garofalo absent) a "74 Roll Call Julien, Sullivan, Harman, Garofalo, Green, Dettloff, Sauer "• [Present— Harman absent] IkL Man Ceremony and Pledge of Allegiance — Maureen Rivers — H.B. Fourth of July C� Executive Board Invocation — Couneilmember Dave Sullivan 10 74