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