December 22, 2022
Mayor Tom Butt and Members of the Richmond City Council
Dear Mayor Butt and Councilmembers,
This letter is to notify the Council that we and others who are concerned about the City’s handling of the former Terminal One Project, now called the “Latitude Project”, believe the City has violated key provisions of the Ralph M. Brown Act , and that such violations seem to jeopardize the legitimacy of various Council and other City actions.
For example, at its meeting of November 22, 2022 , t he Council purported to take various actions, including approving a Resolution authorizing the City Attorney and Staff to (themselves) take certain actions, including to amend an existing Land Disposition Agreement, and notify the Department of Housing and Community Development ( HCD) that the subject project/site is purportedly “exempt” from the Surplus Lands Act. At some earlier meeting, the Council apparently took actions that resulting in keeping key documents (foundational to Council actions and decisions regarding the subject project) confidential, and not available to the public. Examples include the Land Econ Group report and the project developer’s pro forma.
In so doing, the Council (and possibly other City bodies, or staff) took “action” as defined in the Brown Act, at Govt Code section 54952.6, since:
● A majority of the members made a collective decision
● A majority of the members took an actual vote when sitting as a body or entity, upon a motion, proposal, resolution, order, or ordinance.
Each of the above noted actions seems to have violated the Brown Act, including because:
● It was taken on a matter that was not properly described in the agenda for the open meeting at which the action was taken, and none of the exceptions specified in Gov. Code § 54954.2(b) was satisfied.
● It approved a Resolution that was not made available to the Public for comment before the vote occurred.
● If and to the extent that the purported action to keep the developer’s pro forma and/or the City’s economic consultant’s (Land Econ Group) report conf idential was made in closed session, it was taken on a matter the Brown Act does not permit to be discussed in closed session. The Land Econ Group report a nd the pro forma are key to the City Council’s decisions, but not made available to the public for review , evaluation, and comment. They were not even publicly mentioned as material in any Council reports or decisions, until the Land Econ Group analysis was referenced in the Agenda Report (for Agenda Item Q.3 ) in the Council’s November 22, 2022 meeting package . They were likewise only mentioned or referenced (including the purported confidentiality of the latter) in discussions between the Mayor and the Cit y Attorney at the Council’s meeting on November 22 , 2022 (see the video recording of said hearing, at time-stamps 20:08:07, to 20:10:14).
● Even if, for argument’s sake, the above-noted action to “keep the Land Econ Group report and developer’s pro forma confidential” could properly be discussed in closed session, it was never sufficiently described in any closed session agenda, nor was there any Brown Act-required “reporting out” (to the public) of any such closed session actions.
● Logically, keeping the Land Econ Group report and developer’s pro forma confidential violates the Brown Act’s central purposes to assure that the public is fully informed so that it may participate meaningfully in and retain control over its governance.
The above likewise seem to violate the Brown Act’s specific agenda obligations (also intended to properly notify the public) which include having a “brief description” of each item to be discussed or acted upon.
Fortunately, the Brown Act includes legal remedies to address alleged violations, including judicial invalidation of resulting, tainted actions. Thus, p ursuant to Gov t Code section 54960.1, we hereby respectfully request and demand that the Council take appropriate action to cure and correct its various violations, and in the interim immediately withdraw, rescind, and/or invalidate the subject, tainted, illegally-taken actions. Included in the above requests are that the Council:
1) Invalidate, rescind, or withdraw all votes, and reverse all actions, taken on 22 November 2022 regarding the Terminal One/Latitude project.
2) Immediately disclose the Land Econ Group report and Developer’s pro forma, and post said information on the Terminal One Planning Webpage.
3) Make all iterations of any amended Land Disposition Agreement (s) available to the public, including by posting them on the Terminal One /Latitude Planning Webpage at least 72 hours prior to any vote of the Council (or any other bodies), and ensure that any such voting is public, not in closed session. If there is to be no further vote on the amended Land Disposition Agreement before it is signed, make it available to the public by posting it to the Terminal One Planning Webpage 72 hours prior to its signing by any representative of the City of Richmond.
Per Govt Code section 54960.1, the City apparently has 30 days from the receipt of this demand letter to either cure or correct the challenged actions, or to inform us of any decisions not to do so. If the City fails to cure or correct as demanded, such inaction may leave us with no recourse but to seek judicial invalidation of the challenged actions, pursuant to Govt Code section 54960.1, in which case we would need to ask the Court to order the City to pay our costs, attorneys’ fees, etc., including pursuant to Govt Code section 54960.5, Code Civ. Proc. section 1021.5, etc.
Respectfully yours,
Brian Lewis, Brickyard Cove Alliance for Responsible Development
Jeff Shukis, Concerned Citizen
cc David Aleshire, Acting City Attorney
LAW OFFICE OF DANIEL BUTT
REAL ESTATE - BUSINESS - CONSTRUCTION
111 PARK PLACE, SUITE 204
RICHMOND, CA948Q.1.
WWW.BUTTLAW,COM
TEL: (510)25s-'t094
FAX: (510)a39-2710
January 4,2023
Tom Butt and Members of the Richmond City Council
Manager Shasa Curl
Attorney David Aleshire
of Richmond
Civic CenterPlaza
, cAg4g04
US MAIL AND EMAIL
Demand to Void Illegal Contracts and Rescind Deed.
Honorable Mayor, Members of the city council, city Manager, and city Attorney:
This office has been retained by taxpayers of the City of Richmond, including Mayor I Butt, to address and seek correction and redress of a troubling, illegal and ongoing of the City of Richmond violating its City Charter by directing city contracts to be uted by individuals other than the Charter-mandated Mayor of Richmond, or another person ifically authorized by the city council in an open, public meeting.
This issue is especially troubling because my office noticed the City of Richmond of thist same issue in February 2022,when the City Attomey's office wrongfully and illegally 'lared the Mayor o'absent" and directed the vice mayor to execute a contract. It seems thaticy and practice continues: to wit, it has come to my attention that the City Attorney,s officeonce advised and conspired to violate the City Charter by advising the vice mayor to executentract and deed which the vice mayor was not authorized to execute. In the prior case, the admitted its mistake and corrected the issue - which makes it all the more vexins and bling that this practice continues.
And February 2022 was not the first time the City has been made aware of this problem given demand to cease. My office gave formal notice to the City in October 202l,advising t the City had violated the City Charter by having the city manager execute anotarized croachment agreement in violation of the City Charter. My office filed for a writ of mandate behalf of concemed neighborsr, which suit was voluntarily stayed (but remains open) after the ty admitted its mistake and committed to addressing it. Frustratingly, the City has not even Iowed through on that commitment.
As my office understands it, the City Attorney's Office againunilaterally declared the yor absent, without even bothering to contact him, and directed Vice Mayor Eduardo to execute a contract and anotarized deed, based on this unilateral and unfounded ination. It would not have been difficult to simply call or text or email the Mayor -icularly given that City Hall was closed, and nobody there, between Christmas and the New I was shocked to learn that the first time the elected Mayor of the City of Richmond had heard of the issue was an email from the City Attorney to the City Council on December ,2022, stating it was a done deal: "I wonted you to be the first to know this evening we turned ned documents into escrow and the sale of Terminal I to Laconia will occur tomorrow, ting our deadlines".
Apparently and without explanation, the City Attorney had unilaterally made the nation that the elected Mayor of Richmond was no longer the Mayor, and that the City could simply be ignored when deadlines loom or when the City Attorney feels it)ssary' It is an absurd and illegal position, that puts both the City and the Vice Mayor in I jeopardy.
As clearly set forth below - and as my office communicated the last time this happened in ?::::?.,ln"t:
contracts.-:
loid 11
a matrer of law, the law is well_setrled, and rhe Ciryimmediately void and rescind these illegal agreements and convevance.
Richmond's City Charter is clear: ,,
s otherwise
Council ro u Ciry
ided in this charter and ordinances and resolutions of the city.,, vs. City of Richmond, Contra Costa County Case No. MSN21_2063 2 California law is likewise well-settled, and the issues clear. In Torres v. Citv of bello.234 CaLApp/n 382 (2015), the Second District Court of Appeals addressed this uestion directly.
The Torres Court admonished: "neither the Cify Attorney nor the Mayor Pro Tempore the authority to deem the Mayor "absent" under the Govemment Code". Id at 388. As a ult of this mistake by the City, "the Mayor Pro Tempore's signature was ineffective to enter contract on the City's behalf'. Id at 389.
But the issue here is even more egregious than in Torres, where the City Attorney ilaterally deemed the Mayor "absent" because he refused to execute the agreement. The s Court rejected that position as absurd, concluding that the resulting agreement was clearly nlawful and void" as a matter of law because it was not executed bv the Mavor. Id. at394. the City Attorney - or any other City employee - did not even bother to try to contact the or to have this executed. Instead,he assumed the Mayor might refuse to sign the agreement, on that basis did not even bother contacting him. Instead, he simply circumvented the City r by directing an individual who was not authorizedto sign for the City to execute the uments.
InSouth Bqt Senior Housing Corp. v. Ciqt o_f Hswthorne (.1997) 56 Cal. Np.4th1231, Court discussed the consequence of an illegal and void municipal agreement: it is void on its . Id. "lWlhen a statute limits a city's power to make certain contracts to a certain prescribed and impliedly prohibits any other method, a contract that does not conform to the scribed method is void and no implied liability can arise for benefits received by the city or damages caused by it to the other party to the void contract. (Miller v. McKinnon(1942)20 L2d 83, 9t-92 1124 p .2d 34, 140 A.L.R. 5701.) "
The Hawthorne Court continued: "It follows that, by the plain language of the statutes, City's power to make a contract is limited to the prescribed method and, by necessary lication, that any other method is prohibited
- which means that, unless it was signed by the
yor, the contract with South Bay is void and no implied liability can arise under that contract. iller v. McKinnon, supra, 20 Cal.2d at pp. 9l-92.)-. south Bay at 1235.
IT IS HEREBY DEMANDED that The City of Richmond immediately take action to are this illegally executed agreement and conveyance void, and provide proof of same to my ce on or before January 1512022.
If the city does not take immediate and appropriate action to rectifli what clearly appears a troubling and ongoing patten of fraud, and illegal contracting, and conveyances, my ice will file in superior court for a writ of mandate requesting the Court rescind this agreement I conveyance, as well as pursuing any other appropriate remedies, including requesting private y general fees from the City pursuant to Code of Civil Procedure section 1021.5.
Please do not hesitate to contact my office if you have any questions. It remains my hope the City will follow the law, consistent with its fiduciary duty to the taxpayers of Richmond, not require Court intervention.
LAW OFFICE OF DANIEL BUTT
REAL ESTATE - BUSINESS - CONSTRUCTION
111 PARK PLACE, SUITE 204
RICHMOND, CA 94801
WWW.BUTTLAW.COM
TEL: (510)255-10e4
FAX: (s10)a39-2710
January 3,2023
Mayor Tom Butt and Members of the Richmond ciw council
City Manager Shasa Curl
City Attomey David Aleshire
City of Richmond
450 Civic Center Plaza
Richmond, CA94804
BY US MAIL AND EMAIL
Re: Written Demand to Cure Brown Act Violation and Cease and Desist FurtherViolations Dear Honorable Mayor, Members of the City Council, City Manager, and City Attorney:
This office has been retained by concemed citizens of the city of Richmond, includingMayor Thomas Butt, to address and seek correction and redress of a troubling, illegal andongoing pattern of the city of Richmond violating the Brown Act by improperly noticing closedsession agenda items and improperly discussing in closed session issues outside the narrowpurview of the noticed exception, as follows:
L The City of Richmond has maintained a policy
closed session, purporting to be under the safe
and practice of discussing topics in
harbor heading "Conference with Real
Property Negotiator"l that go well outside the narrow scopg of providing direction toits negotiator prigr to the sale or lease of properry. 2' The city of Richmond actually discussed issues and made decisions in closed sessionrelating to the disposition of Terminal one, on Novemb er 22,2L22,December 6,2022, and Decembet 20,2022thatwere well outside of the nalrow scope of cAGov't code $ 54956'l,which only allows the city to discuss directions regardingprice and terms of payment to its negotiator prior to the sale of the property.
For example, at its meeting of Novemb er 22,2022,the council purported to take variousactions, including approving a Resolution authorizing the city Attorney and Staff to(themselves) take certain actions, including to amend an existing Land Disposition Agreement,and notify the Department of Housing and community Development (HCD) that the subjectproject/site is purportedly "exempt" from the Surplus Lands Act. At some earlier meeting, thecouncil apparently took actions that resulting in keeping key documents (foundational tocouncil actions and decisions regarding the subject project) confidential, and not available to thepublic' Examples include the Land Econ Group report and the project developer,s pro forma.
It is without any doubt or dispute that such discussion is well outside the very nanowpurview of cA Gov't code $ 54g56.8,which only allows discussion of price and terms ofpayment with the city's negotiator in closed session.
As held by the Court in ncil (2002) 117 Cat. Rptr. 2d 63 i,4r, r\PLl . z\I oJ f"t:"::j?-r::::::
forviolating rhe Browl Act is based on the complexitv or difficulty of thisLrre uurltlrlexlry or dllllculty ol thittransaction' ot need to balance what the public knows, will not be well received: .,This section :::::':tll::T:::1
t1: ttrr^touncil to hold a crosed session with its negotiator, prior to the l,:*:: :: ::t:: i:1T.1"1:l "1:.' lroPerty' to.the extent,il ;; ;; "rilffi ffi;;'* council in conducting such business, to determine what discussirons are germane to the particulartransaction in real property.,' IT Is HEREBY DEMANDED that The city of Richmond take action to cure andcorrect this violation by voiding any final decisions reached therein, and ail tainted actions thatfollowed those illegal discussions and by rescinding any agreements reached, within 30 days ofreceipt of this letter' It is further demanded tnat the city olRi.h-ond cease and desist fromfurther violations and city's patten and practice of violating the Brown Act by engaging indiscussion well outside the safe harbor purview of allowabie closed session discussion. 1 CA Gov't Code S 54956.g
l.
2. Specifically, it is demanded that Citv:
Invalidate, rescind or withdraw all votes, actions, or decisions relating to development of Terminal One made in closed sessions on Novemb er 22,Z022,December 6,2022. and December 20,2022.
Immediately disclose to the public all information, papers, reports, pro formas, discussions, communications, and decisions made or discussed on the dates set forth above, by publishing same on the city's webpage for the Terminal one project.
Disclose the nature of discussion and any votes or direction made by the council therein, including but not limited to the minutes of the closed session meeting.
Disclose to the public communications with the city Attorney and any council member, that were part of the closed session discussion of Terminal One under the purview of cA Gov't code $ 54956.9 and that are outside the narrow scope ofproviding direction to the City's negotiator regarding the price and terms of sale.
Attorney-client privilege does not apply to closed session discussion if it violates theBrown Act.
3. 4.
Please do not hesitate to contact my office
the City will abide by the Brown AcL and not
if you have any questions. It remains my hope
require Court intervention to force the issue.