Tag: Legal

At Defendants City of Redlands’ and LAFCO’s insistence that the Attorney General prosecute the action or grant leave for COMET to continue to do so, its lawyer sent an Application and proposed First Amended Complaint to the Attorney General’s Los Angeles office. 

On the last day to do so, Defendants – both represented by the same Best, Best and Krieger office – served and filed their opposition. It contained several arguments, one misstating the actual allegations of the complaint, but provided very little or no legal support of its positions that COMET’s lawsuit is either too late or too early, that the “quo warranto” (“by whose authority?”) cause of action is not the proper remedy. Quo warranto actions do not have a statute of limitations, by which the lawsuit could otherwise be too late. COMET’s response: it is proper because Mentonites did not know that Redlands took to itself the “authority” to demand annexation by enacting its 1997 “Measure U” or that it has taken much territory to itself by presenting its “Annexation Agreement” to developers, demanding annexation to its city limits in exchange for water service to new developments.

COMET also replied that the “Agreement” contains eight other demands that COMET deems to be overreaching. Redlands’ demand avoids Mentone’s vote whether to be annexed or not (which is authorized by Government Code section 57075 and following sections). Because the quo warranto procedure is most often used to challenge someone holding an office without authority (but still available in the manner that COMET is using it), defendants also argue that it would “disrupt governmental operations” and therefore not be in the public interest. COMET’s response states that no disruption would be caused by Redlands’ being ordered to cease using its Annexation “Agreement,” demanding annexation and the eight other offending parts, and that the relief it seeks is of importance to every unincorporated area that is in the sphere of influence of a city which provides utility services. To COMET’s knowledge, there is no other such situation existing or which has existed in California.            

Defendants also argue that there is no “substantial question of law or fact.” COMET countered that Redlands’ alleged illegal extortion of Mentone territory in exchange for water, and LAFCO’s ratification of that illegal action, is indeed a substantial question of law or fact. Defendants also argued that the same facts are alleged in other causes of action and therefore the quo warranto is unnecessary and that “extortion” is not a proper basis for a quo warranto action. COMET replied that it is required to plead all available causes of action on the facts. 

Defendants next argued that COMET shouldn’t receive water service without being a part of the City and its regulations, to which COMET replied that Redlands had applied to LAFCO to do so many years ago and actually provided water for many years without demanding annexation, beginning in 1997. Defendants also argued that COMET hasn’t proven its case in its Complaint; COMET replied that it need not do so.  Defendants also argued that COMET hasn’t provided any facts showing that the annexations were completed, and admit that “in the future, should the City complete any additional annexation of portions of Mentone, COMET would be on much firmer ground to challenge such annexations” by the quo warranto procedure. COMET’s reply quoted portions of the Complaint and its Application stating that it has lost territory by Redlands’ demanded annexations. 

Defendants’ opposition did not oppose the other cause of action – “Unfair Business Practices” – that COMET requested leave to continue prosecuting. Nor did it address COMET’s allegations of unlawful and exorbitant fees that Redlands charges developers – for fire, police, library, parks, City buildings, and so on, that do not benefit Mentone in any way and are probably passed along to the next owners. 

The Application, Opposition and Reply will be looked over by Los Angeles’ Deputy Attorney General, who will make their recommendation; then it will be forwarded to Sacramento for Attorney General Xavier Becerra to make the final determination. The Los Angeles Deputy Attorney General could not give a time estimate for this decision to take place. COMET has granted defendants 30 days to answer after COMET files its First Amended Complaint. 

In the meantime, COMET presented a claim for damages to the City of Redlands, which had 45 days to respond. It responded within three days that COMET’s claim was late and invited COMET to file an application for leave to file a late claim, which COMET’s attorney did. After 45 days, whether Redlands allows the late claim or not, COMET may add Mentone’s money damages to its suit. 

Also, Tom’s Burgers is proceeding toward completion; however, there is no estimated timeline.

Mentone Matters will continue to keep you up to date on the progress of the lawsuit.

Redlands was served at its City Council meeting on March 5; it had 30 days in which to respond.  COMET’s attorney received a phone call from Redlands’ litigation counsel at Best, Best &  Krieger, regarding a required “meet and confer” before it files its demurrer, giving the attorney who filed the Complaint an opportunity to correct it. When sued, Redlands can either file an Answer or Demurrer. A demurrer is a document filed in Court for a hearing, at which the parties’ attorneys appear and argue, if necessary. The demurrer tests whether the Complaint states facts sufficient to satisfy the requirements of the causes of action (the actual requests for relief, which appear after the “Statement of Facts” in the last MM issue).  BB&K followed up the phone call with a letter outlining its reasons for demurring. The letter addressed all of the seven causes of action, suggesting various defects in each. 

For various reasons, COMET’s attorney stated she could not “meet and confer” on April 8, the suggested date, and gave Redlands extra time, during which COMET’s attorney will address the points in the letter one by one and take whatever steps might be necessary to ensure the lawsuit goes forward. 
LAFCO was served with the Complaint at its last meeting, March 20. Another litigation attorney from BB&K, but in another location, is representing LAFCO; he also called COMET’s attorney and stated his intention to go with whatever Redlands’ counsel wrote. COMET’s attorney granted them the same extension of time, although its response is not due for two to three more weeks. He did not appear to recognize any “conflict of interest” between the same firm representing both Redlands and LAFCO, who is included in the lawsuit because of what Redlands has done. Some law firms get around conflicts of interest by having different locations handle each case. 

If a demurrer is “sustained” in a court hearing, the Court may allow the Complaint to be amended – rewritten – to conform to the requirements of any of the causes of action. The defendants, Redlands and LAFCO, then have the opportunity to respond again. If, instead, the demurrer is overruled at the hearing, the Complaint stands as it is and the case continues. There is the off chance of  the Complaint being thrown out without allowing amendment, but that is rare; the Courts prefer to allow litigants time to make such corrections as are necessary to state their case, usually up to two or three times. 
If the Complaint is thrown out, the “losing” attorney may appeal to the Fourth District Court of Appeal in Riverside if there are sufficient grounds. 

MM will keep you posted on developments.

Vol. 2, No. 2 – MARCH 2019

At the Redlands City council meeting, Tuesday evening, March 5, Raul Madrid, who has been trying to develop property in Mentone for several years, gave a 3 1⁄2 minute speech and handed a copy of the lawsuit, titled “C.O.M.E.T. v. City of Redlands,” etc., to the City Clerk. The text of Madrid’s prepared speech reads:

“Hello, Mayor, City Council. During the last City Council meeting, Council considered a pre-annexation agreement so the Dollar General store planned in Mentone could receive City water. The City Attorney made comments regarding measure U and the necessity of the pre- annexation agreements. I want to clarify for the record how Measure U and the pre- annexation agreements effect Mentone property owners.

“In 1987 pursuant to State assembly Bill AB 1600, known as the Mitigation fee act, cities and municipalities were allowed to adopt and assess on new development, impact fees to fund for city facilities and infrastructure. These fees were to be adopted thru a set procedure stated in the act. The act was clear to restrict cities and municipalities to imposing the new development impact fees, only on developments that lie within their own jurisdiction.

“Since then Redlands has adopted impact fees for transportation, police facilities, fire protection,
parks, community centers, libraries, general government and has properly assessed them to projects within city limits.

“In the mid 1990’s the city of Redlands contacted an Orange county Law firm to look into ways the city could assess their developer impact fees to projects located outside, city limits in adjacent Mentone and county areas. The law firm created an initiative called ‘establishing principles of managed development’. The document contained provisions requiring nearby Mentone property owners who desire to hook up to city water to sign pre annexation agreements, and agree that in addition to paying a water connection fee, they pay fees for other city infrastructure although they are located outside city limits. That document, is known as measure U and was adopted and made effective in
December 1997.

“In summary: when the Mentone property owner applies for a water connection to the city of Redlands, they are told they must sign a pre annexation agreement which strips them of the right to vote in the annexation process. They are also told they must pay fees for other facilities In addition to the water connection fee. The applicant is told if they do not comply and pay the extra fees and sign the pre annexation agreement they will be denied water service.

“California Penal Code states in part, instilling fear upon one to promote some monetary gain is extortion. Civil extortion is exactly what the city of Redlands does to the nearby Mentone property owner applying for water service. The assessment of these unlawful fees amounts to an overreach by Redlands government and are unlawful per the California government code. Redlands’ assessment of these unlawful development fees exist today because nobody has challenged them or pursued any judicial action to overturn them. You have given us no choice: consider
yourself served on behalf of Mentone. Thank you.”

The Statement of Facts in the seven-count Complaint (initial document in the lawsuit), which was filed last week, gives the history of how Redlands has been forcibly taking Mentone territory into its city limits in exchange for water and – where available – sewer service to new developments since at least since 1997, when Redlands enacted its Measure U, which became part of the City’s General Plan and Municipal Code. Measure U requires annexation or “pre- annexation” into its city limits if a developer wants water and sewer service, which has been eroding Mentone’s borders for many years, with the assistance of a local or two. The Complaint charges Redlands with civil extortion, and seeks a court order prohibiting Redlands from continuing to force annexation to it in exchange for water and sewer and to nullify all previous such “agreements,” returning the areas to Mentone territory.

As further alleged in the Complaint, Redlands also charges developers for fire, police, library and other services it doesn’t provide but which are provided by the County. Additionally, it requires developers to reimburse it for legal fees and costs incurred in a lawsuit, even if that lawsuit is instituted by a third party – over whom the signer has no control.

The Complaint also details that Redlands charges other fees, such as for “traffic” studies for leaving and entering on the State Highway (see the 2009 list of fees charged to Tom’s Burgers in the August 2018 issue), and fees for necessary improvements that are in excess of the actual estimated costs. Other allegations include that it does not require Environmental Impact Reports when agricultural land is converted to residences or hazardous waste exists on developments, as in the recent Wabash annexation which contained leaky underground fuel storage tanks (see MM’s September issue II), among other allegations contained in the Complaint’s paragraph 17 below.

All of Redlands’ demanded fees are passed along to the subsequent buyers of the development, raising housing prices and impeding commercial development, the suit charges. The lawsuit also seeks a court order that Redlands only charge the actual cost of improvements and require Environmental Impact Reports in appropriate situations, such as when agricultural land is converted to residential.

MM recently met with a developer of part of the vacant lot on the corner of Crafton and the Boulevard; he plans to build a Western-style carwash and gas station. His project may or may not be within the 200-foot distance (excluding the Boulevard and Crafton roads) from the Boulder Creek residential section on Crafton; that distance would be considered “contiguous,” or next-door, as legally required for full annexation now. That is, if Boulder Creek and the carwash/gas station were “contiguous,” it would put at least some part – if not all – of Mentone’s “downtown” into Redlands city limits. The other neighborhoods would then follow by the same tactics.

The Dollar General store is planned for just west of the Dodge House on the Boulevard between Crafton and Agate. There are four parcels in that vacant area, each consisting of several lots. Although the annexation “Agreement” was signed by the seller, Mayer Bassirat, the County gave the Dollar General parcel a new Assessor’s Parcel Number so Redlands decided that the purchasers of the parcels needed to sign a new annexation “Agreement.” As of the February 19, 2019 City Council meeting, the Dollar General developer apparently had not signed the “Agreement.”

The lawsuit seeks the Court’s order that it nullify all “Agreements” that have been previously signed.

For those who are interested, the full history in the Complaint’s Statement of Facts reads as follows (after identification of the parties):

“7. Over the years, Redlands purchased all of the water companies located in Mentone; additionally, it diverts Mill Creek and the Santa Ana River water a mile above Mentone’s former diversion point. Thus, Mentone is dependent on Redlands for all of its potable water; its remaining agricultural land receives only non-potable water from the Bear Valley Water District.

“8. Redlands’ water department is not governed by the California Public Utilities Commission; Plaintiff has no recourse other than to this Court in order to protect their rights set forth herein below.

Demanded Annexations in Exchange for Water and Sewer
“9. In or about the 1970s, LAFCO placed Mentone in Redlands’ “sphere of influence,” pursuant to state statute.

“10. At all times, Redlands had provided the requested water service outside its city limits, with the only requirement that recipients pay for the water and sewer service. However, in November 1997 Redlands’ voters enacted its Measure U, effective in December 1997 (hereinafter ‘Measure U’) incorporated into its general plan, which reads, in pertinent part, as follows: ‘1A.20 PRINCIPLE TWO – . . . (a) Development Agreements- All development agreements entered into by the City and developers pursuant to California Government Code sections 65864 et seq. after the Effective Date of this initiative measure as defined in Section 3 hereof, shall conform to the policies contained in The City General Plan. (b) Extension of Public Utilities Outside the City Limits- No extension of City-provided utility services to areas outside the City limits shall occur until such areas are properly annexed to the City, except that utility services may be extended to areas outside the City limits without prior annexation if all of the following conditions are met: ‘1. The area to be served is not contiguous to the City of Redlands; and, ‘2. The City and the land owner have entered into a properly recorded and binding pre-annexation agreement establishing covenants running with the land that assure full compliance with all development standards of the City of Redlands, payment of all capital improvement and other development fees which would be applicable to the property if it were within the City limits at the time of extension of such services, and immediate processing of annexation to the City at the City’s request. . . .’ ” [Emphasis is added.]

“11. Thus, without the developer’s written ‘agreement’ to said annexation or pre-annexation, (hereinafter ‘Agreement,’ a copy of which is attached hereto as Ex. A), Redlands will not provide those services to Mentone; its demand violates California Penal Code §§ 518, et seq., and case law thereon; and is exactly opposite of the Legislature’s intent in enacting Government Code section 65864, invoked in said ‘Agreement.’

“12. California’s Government Code § 56133(b) provides for annexation in anticipation of a later change of organization. However, annexation is not automatic; nor is it required by other any law. Indeed, Plaintiff should have other options: detach from Redlands’ Sphere of Influence through LAFCO, then incorporate as a city; form their own special water district; or dig a well. Plaintiff does not presently possess any of these capabilities.

“13. In contrast to Redlands’ Measure U demand, annexation elsewhere is usually requested by the property owner, not demanded by the providing city.

“14. Plaintiff is informed and thereupon allege that they legally possess the right to vote whether or not they wish their property to be included within Redlands’ city limits. Redlands bypasses Mentone’s options and rights by demanding such ‘Agreements’ without Plaintiff’s vote and over plaintiff’s objections and its ‘Agreement’ provides that said annexation is binding on ‘any and all successors in interest, assigns, heirs and executors.’

“15. Plaintiff is informed and believe and thereupon alleges that Redlands’ demanded annexations or pre-annexations has created islands of less than 150 acres, a process known as ‘piecemealing,’ which it intends to use forcibly to annex Mentone to itself; Plaintiff would have no votes against such process.

“16. Thus, Redlands’ extortionate demand to annex Mentone is also a taking, in violation of the U.S. Constitution and Article XI, §7 of the California Constitution, under economic duress.

“17. Additionally, the ‘Agreement,’ provides that – even if the property is not yet located within the City limits and may never be so located: a) the property must be developed in accordance with Redlands’ General Plan and the development standards of its Municipal Code, which may or may not approve the ‘Western’ style favored by Mentonites; b) if the developer challenges this ‘agreement’ the City will cease to provide water and sewer services; c) the developer must hold the City harmless for any and damages arising out of the development, even if the City supplied the plans; d) if any third party, challenges the ‘Agreement’s’ Redlands’ [extortionate] demands, based on Measure U, a signatory thereof will indemnify Redlands from any and all lawsuits, etc.; e) a waiver of any claims pursuant to Civil Code §1542; f) said ‘agreement’ is binding on all successors in interest, assigns, heirs and executors, even though they may not wish the property to be in Redlands’ city limits; g) any ambiguities not be resolved against the drafter of the agreement; and h) the City’s attorney fees include in-house counsel fees, which is otherwise unsupported by California case law.

“18. Plaintiff is informed and believes that all of Redlands’ said acts have impeded Mentone’s commercial and other progress, raised its housing costs as well as depriving it of territory and potential revenue, should it incorporate.

“19. All of Redlands’ said Agreements and other acts have been ratified by LAFCO.

“20. Plaintiff needs this Court’s order preliminarily and permanently enjoining Redlands from further requiring and/or enforcing said ‘Agreements,’ or any other such demands, and also enjoining any of LAFCO’s further approval of said provisions.

“21. Redlands now surrounds Mentone on 3.5 sides. Redlands City officials have publicly stated their intention to take over Mentone, which wishes to remain outside Redlands’ city limits and possibly incorporate as a city; however, in order to do so it is required to be detached from Redlands’ sphere of influence. Plaintiff is informed and believes and thereon alleges that Redlands would not agree to, nor cooperate with, detachment of Mentone from its sphere of influence. Thus, plaintiff needs this Court’s order so detaching it.

“22. In 1959, Redlands annexed the northernmost part of Mentone’s territory, beginning at its westerly point at Wabash, eastward through the Santa Ana Riverbed and Mill Creek to a point just west of Bryant in Yucaipa (hereinafter ‘the Strip’), under questionable circumstances such that Redlands now surrounds Mentone on 3 1⁄2 sides. The Court is requested to order Redlands to provide any and all authority for, and records of, said annexation.

“23. Plaintiff also requests an order of this Court returning to Mentone territory any and all properties taken from it by Redlands, beginning in 1959, by any means and at any time.

REDLANDS’ “DEVELOPMENT IMPACT FEES”

“24. Redlands demands payment of ‘development impact fees,’ e.g. for its police, fire and library service before it will provide water or sewer service; however, according to its own General Plan and Municipal Codes, Redlands does not provide said services, which are actually are provided by San Bernardino County, thus subjecting Mentone to double fees. Further, said fees are passed along to future homeowners, thus raising the cost of housing in Mentone.

“25. Government Code § 66001 provides that ‘(a) In any action establishing, increasing, or imposing a fee as a condition of approval of a development project by a local agency, the local agency shall do all of the following: (1) Identify the purpose of the fee. (2) the use to which the fee is to be put. . . (3) Determine how there is a reasonable relationship between the fee’s use and the type of development project on which the fee is imposed.’ Redlands’ fees violate this section.

“26. Thus, this Court is requested to issue a preliminary and permanent injunction against any further requirement of payment of fees for services that Redlands does not provide, as further set forth in § 66001.

“27. Further, Plaintiff is informed and believes and thereupon alleges that Redlands’ other development fees greatly exceed the actual costs and impacts to Redlands, in violation of the Mitigation Fee Act, Government Code § 66000, et seq., particularly §66013.

“28. Government Code § 66001(d) further provides: ‘ (1) For the fifth fiscal year following the first deposit into the account or fund, and every five years thereafter, the local agency shall make all of the following findings with respect to that portion of the account or fund remaining unexpended, whether committed or uncommitted: (A) Identify the purpose to which the fee is to be put. (B) Demonstrate a reasonable relationship between the fee and the purpose for which it is charged.’

“29. The Court is further requested to order that any development impact fees Redlands further imposes must constitute the estimated reasonable cost of providing the service for which the fee or charge is imposed and further that Redlands demonstrate the reasonable relationship for each development in Mentone territory since its 1997 enaction of Measure U and account for all fees demanded and collected in said violation of the Mitigation Fee Act, and based thereon to order a refund of all such fees collected.

“30. Plaintiff is further informed and believes and thereupon alleges that Redlands has treated developers disparately, in the amounts it has required of different developers for the same fees, for its own purposes and for no demonstrable need, further impeding Mentone’s commercial and other development, raising the cost of housing in Mentone and depriving it of revenue should it incorporate. CEQA Violations

“31. LAFCO was formed ‘to encourage “ ‘planned, well-ordered, efficient urban development patterns with appropriate consideration of preserving open-space [and agricultural] lands within those patterns’ [citation], and to discourage urban sprawl” ’: Community Water Coalition v. Santa Cruz County Local Agency Formation Comm., 200 Cal. App. 4th 1317, 1133-1134. (6th App. Dist. 2011). Much of Mentone was agricultural but now is developed into residential neighborhoods and other developments and forcibly included in Redlands’ residential urban sprawl, in violation of the Legislature’s intent. Said developments were approved by LAFCO.

“32. Additionally, plaintiff is informed and believes and thereupon alleges that the required amount of similar land is purchased in other Counties, in further violation of the spirit and intent of the law to preserve San Bernardino County land from urban sprawl.

“33. Finally, Redlands fails and refuses to prepare or require Environmental Impact Reports (EIRs) for Mentone’s agricultural land converted to residential or commercial use; instead Redlands submits ‘Mitigated Negative Declarations,’ (‘MNDs’), which do not satisfy its legal responsibilities. In particular, it does not require, nor provide
any details of, the cleaning up of hazardous waste sites; instead, more than one of the sites which have been annexed to Redlands were located adjacent to a schools, residences and a water supply, in violation of law and its own general plan, at least one of which was required to clean up the hazardous waste and pay a fine. Nor do such MNDs address this County’s considerable loss of agricultural land.

“34. Over residents’ objections, LAFCO has endorsed, and will continue to endorse, such MNDs.

“35. Plaintiff is informed and believes and thereupon alleges that Redlands and LAFCO will continue to approve such projects without a proper EIR, unless and until enjoined by this Court.”

The Complaint concludes with the details of the seven causes of action and a “prayer,” listing C.O.M.ET’s requests for Court relief.

Please scroll down for the scanned-in copy of the annexation “agreement” forced on property developers. MM is sorry about the line; it’s not in the original and we don’t know where it came from. If this software allowed it, MM would detail all of the problematic paragraphs developers are required to “agree” to.