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CC - Item 4F - Flournoy Request to Rescind Action Certificate of Occupancy for Wal-Mart0 E M F S O 9 C ROSEMEAD CITY COUNCIL STAFF REPORT TO: THE HONORABLE MAYOR AND CITY COUNCIL FROM: ANDREW C. LAZZARETTO, CITY MANAGER DATE: October 10, 2006 SUBJECT: Request by James Flournoy that City Council Rescind Action Taken September 12, 2006 Regarding Issuance of a Certificate of Occupancy for Wal- Mart Building SUMMARY On September 12, 2006, the City Council took action on an item of business not appearing on the Agenda after making a subsequent need finding. The action taken was to instruct staff to issue a certificate of occupancy for the Wal-Mart building notwithstanding some unfinished landscaping, and to not issue a certificate of occupancy for the Garden Center building until all items of landscaping were completed. Through a letter dated September 19, 2006, James Flournoy made a demand pursuant to Government Code Section 54960.1 that the Council rescind the action. Staff Recommendation Staff recommends that no action be taken on the demand. ANALYSIS Government Code §54954.2(b)(2) allows the City Council to "take action" on a matter not appearing on the Agenda: "Upon a determination by a two-thirds vote of the members... that there is a need to take immediate action and that the need for action came to the attention of the local agency subsequent to the Agenda being posted..." At the commencement of the council meeting the City Attorney advised the Council and the public that he had that day received notice that Garvey School District would be seeking a temporary restraining order to prevent the City from issuing a certificate of occupancy for the Wal-Mart building and that Wal-Mart had requested a certificate of occupancy. Both of these matters occurred after the posting of the Agenda. He explained that the matter was not on the Agenda and that if Council wished to give direction to staff on either of these matters it could only do so by treating it as an APPROVED FOR CITY COUNCIL AGENDA: • • City Council Meeting June 13, 2006 Page 2 of 3 emergency matter requiring four affirmative votes to place it on the Agenda Later in the meeting Councilmember Clark stated that she would like to discuss the Wal- Mart certificate of occupancy and Councilmember Tran moved to add it to the Agenda. It passed unanimously. Thereafter the matter was discussed. Mr. Johnson explained that the Wal-Mart building was completed and with the exception of some very minor labeling issues the deputy building official had no life/safety concerns with the building being occupied by the public. While certain items such as exterior landscaping had not been totally completed, their completion was bonded by a letter of credit. He stated that the normal practice under these circumstances would be that cities issue a temporary certificate of occupancy and allow the building to be occupied. He had not taken that action in this case but anticipated that the landscaping would be completed within the next couple of days and that he would then issue a certificate of occupancy. After some discussion, a motion was made to instruct staff to issue a certificate of occupancy on the store's main building and hold off issuing the certificate of occupancy for the garden center building until landscaping has been completed. A transcript of the City Attorney's opening remarks and the discussion on adding and acting on the matter are attached. FINANCIAL REVIEW If the action is not rescinded and Mr. Flournoy sues under the Brown Act, the City will incur costs of defense. If the action is rescinded, it will have no financial effect because Wal-Mart's certificate of occupancy would not be rescinded or otherwise affected as a result. Wal-Mart has completed the outstanding landscaping items for which Mr. Johnson had been holding up the certificate of occupancy. LEGAL REVIEW The City Attorney has reviewed the transcript and is comfortable that the Council action was taken in accordance with the dictates of the Brown Act. The City Attorney also notes that, with the completion of the outstanding landscaping items, rescission would be an idle act. Additionally on September 13, 2006 the Superior Court denied the School District's motion for a temporary injunction and on trial of the matter on September 21, 2006 denied the District's request for a writ of mandate and determined that the City had fully complied with CEQA. Accordingly, the direction given by the Council to the Planning Director has been rendered moot. 0 City Council Meeting June 13, 2006 Paae 3 of 3 Submitted by: ~ C~~/ C (erg. For Peter L. Wallin, City Attorney 0 Attachment A: Flournoy Letter Attachment B: Transcript of Relevant Portions of the Sept. 12, 2006 Council Meeting • September 19, 2006 Mr. Gary Taylor, Mayor Council Members: Mr. John Nunez, Mayor Pro Tern Ms. Margaret Clark, Jay Imperial, and John Tran Rosemead City Council 8838 E. Valley Boulevard Rosemead, California 91770 Dear Mayor Taylor, 16 SEP 2 1 20% CITY C BY This letter is to call your attention to what I believe was a substantial violation of a central provision of the Ralph M. Brown Act, one which may jeopardize the finality of the action taken by Rosemead City Council. The nature of the violation is as follows: In its meeting of September 12, 2006 the Rosemead City Council took action to direct the Planning Director, Brad Johnson to issue an early Certificate of Occupancy to the Wal-Mart Stores, Inc. by a formal 3 to 2 vote. The action taken was not in compliance with the Brown Act because there was no adequate notice to the public on the posted agenda for the meeting that the matter acted upon would be discussed, and there was no finding of fact made by the Rosemead City Council that urgent action was necessary on a matter unforeseen at the time the agenda was posted. In the event it appears to you that the conduct of the Rosemead City Council specified herein did not amount to the taking of action, I call your attention to Section 54952.6, which defines "action taken" for the purposes of the Act expansively, i.e. as "a collective decision made by a majority of the members of a legislative body, a collective commitment or promise by a majority of the members of a legislative body to make a positive or negative decision, or an actual vote by a majority of the members of a legislative body when sitting as a body or entity, upon a motion, proposal, resolution, order or ordinance." As you are aware, 1986 amendments to the Brown Act created specific agenda obligations for notifying the public with a "brief description" of each item to be discussed or acted upon, and also created a legal remedy for illegally take actions, namely the judicial invalidation of them upon proper findings of fact and conclusions of law. Pursuant to that provision (Government Code Section 54960. 1), I demand that the Rosemead City Council cure and correct the illegally taken action as follows: 1) the formal and explicit withdrawal of the Certificate of Occupancy, 2) rescind the decision to separate the Super Center and the Garden Center into two separate entities, 3) a disclosure at a subsequent meeting why Page 2 of 2 • • individual members of the legislative body voted as they did and, 4) the full opportunity for informed comment by members of the public at the same meeting. Informed comment to include the provision of any and all documents in the possession of the Rosemead City Council related to the action taken, with copies available to the public at the meeting which reconsideration of the matter is to occur, notice of which is properly included on the posted agenda. As provided by Section 54960.1 you have 30 days from the receipt of this demand to either cure or correct the challenged action or inform me of your decision not to do so. If you fail to cure or correct as demanded, such inaction may leave me no recourse but to seek a judicial invalidation of the challenged action pursuant to Section 54960. 1, in which case I would seek the award of court costs and reasonable attorney fees pursuant to Section 54960.5. Respectfully yours, S/ James cc: Peter Wallin, Rosemead City Attorney Wal-Mart Stores, Inc. Joseph T. Francke, Legal Counsel, CFAC i • OPENING REMARKS FROM THE CITY ATTORNEY (Verbatim) "I wanted to update both the audience and the City Council on the present status of pending litigation regarding the WalMart development. Today, it was scheduled for today, a hearing on Garvey School District's lawsuit to challenge the Council's approval of WalMart. The Court on its own motion continued that until the 21" and the Garvey School district called this morning, or their attorney called, and indicated that he would be going into court tomorrow to seek a temporary restraining order in hopes of enjoining the opening of the store until the September 21" hearing. So we will be in court tomorrow and the 21" in response to that motion for the injunction. The Wa1Mart development is close to being completed, having completed everything we need to obtain a certificate of occupancy; however, they probably won't be eligible to get one at least before Thursday, but we do anticipate that everything will be completed and they will be entitled to a certificate of occupancy by the end of the week and before the 21". If that is true, if they do complete all that stuff, the certificate of occupancy will be issued and they will be able to open by the end of the week." "There is nothing on tonight's agenda involving the Wa1Mart or its opening. Any member of the Council, if the Council wants to discuss this or give instruction to staff or anything like that, it will require four votes to put it on as an urgency item. Other than that it is not a matter to be considered by the Council tonight." DISCUSSION PORTION AND ACTION TAKEN BY COUNCIL (Verbatim) Councilmember Tran: "May I make a substitute motion on that? Just to understand your comment or motion, I'd like to make a substitute motion to just allow staff to go through the check-off list and allow him to make the determination to when"- Mayor Taylor: "I thought that was our intent. Was it not?" Councilmember Tran: "No, you're asking tomorrow for it." Mayor Taylor: "Alright, we can check it through"- Councilmember Clark: "My motion is to instruct the Planning Director to issue the certificate of occupancy tomorrow and that the garden building will be late October." City Attorney Wallin: "The remaining landscape improvements - no certificate of occupancy for the garden building until the remainder of the landscape improvements are complete." 0 r Mayor Taylor: "What did you say? Two and a half million? What do they have set aside?" Planning Director Johnson: "The letter of credit, I believe the latest letter of credit sets aside 5 million or approximately there." Mayor Taylor: "Alright." City Attorney Wallin: "Four hundred thousand for improvements." Mayor Taylor: "Alright, would you have roll call please, Nina." Councilmember Tran: "Action on the substitute motion." Councilmember Clark: "The substitution motion goes first." Councilmember Tran: "It was my substitute motion to authorize staff to their discretion after going through the checklist to see if when it would be appropriate for them to open the store." Mayor Pro Tern Nunez: "Second." Mayor Taylor: "Okay, but Mrs. Clark was to issue the certificate of occupancy. So you're saying hold off?" Councilmember Tran: "Handing off to staff and to the discretion of the Planning Director. At his discretion when he feels this is complete to allow them." Mayor Taylor: "So it's either your motion or Mrs. Clark's." Councilmember Imperial: "And my second to Mrs. Clark's." Mayor Taylor: "That's alright. Mr. Tran has made a motion. Would you vote on that? Roll call vote, please." Excuse me, Mr. Tran, Mr. Nunez?" Mayor Pro Tern Nunez: "No, I just think that the second motion goes more along the ways that the City has been running its business I think that we had the opportunity to make decisions like that for them, for the City... (inaudible section) Mayor Taylor: "Alright. Roll call please." City Clerk Castruita: "On the substitute motion?" Mayor Taylor: "Yes." 0 0 City Clerk Castruita: "Do you need that repeated?" Mayor Taylor: "Yeah." City Clerk Castruita. "The substitute motion is to allow staff to go through the check-off list and approve at their discretion of completion." Councilmember Imperial: "And what did the other motion read?" City Clerk Castruita: "Move to direct staff, the Planning Director in particular, to issue occupancy permits tomorrow and that the garden building is to take place when completed." City Attorney Wallin: (Inaudible) Councilmember Clark: "So we vote on the substitute first?" Mayor Taylor: "Yes. Mr. Tran's motion. Would you please roll call for Mr. Tran." City Clerk Castruita: "Councilmember Clark? No. Councilmember Imperial? No. Councilmember Tran? Yes. Mayor Pro Tem Nunez? Yes. Mayor Taylor? No." Mayor Taylor: "And now we have Mrs. Clark's motion." City Clerk Castruita: "Councilmember Clark? Yes. Councilmember Imperial? Absolutely. Councilmember Tran? No. Mayor Pro Tem Nunez? No, and my vote is no because I think we completely changed the way business is done in this City by making this motion. Mayor Taylor? Alright, and yes for Mrs. Clark's." Mayor Taylor: "And I would like to state for the record that this multi-million dollar building fully stocked meeting the safety requirements that we need for the building, fully stocked with perishable goods of meats, vegetables, produce, deli, milk. It is completely stocked and I don't want any chance of the City being sued for that."