One Year Later.
Martin Jones made local history when he single-handedly took on the City of Oxnard in his full-frontal attack against the manner and method in which the City negotiated the New Downtown Theater.
We learned recently, that Judge O'Neill found the City of Oxnard at fault and basically warned the City to Never Ever Do IT Again. But long time city-watchers know that Oxnard has a long history of Brown Act ignorance of the Law and this was not the first, but hopefully the last. Oxnard will elect a new council this November and ALL NEW COUNCIL MEMBERS need to be onboard.
Here is some background provided to the Ox Jo by one of our leading and
distinguished citizens.....Martin D. Jones:
One year later I won the case but failed to stop the project. The theater
project moves forward and it is clearly a greater drain on the taxpayer than I
had originaly thought. Experts in the law and economics of redevelopment are
adamant in that a city never guarantee profit to a developer in a
Tom Holden and the rest of the Oxnard City Council with the exception of Mayor Lopez voted for this sweetheart deal of a project.
It is time for a change.
/s/ Martin Jones
Activist tells why he's suing for Brown Act breach
OXNARD (10/13/03) -- A citizen with extensive experience monitoring affairs of the City of Oxnard recently explained to a local group why he's suing for a Brown Act violation.
The case, Jones v. City Council of the City of Oxnard, alleges a variety of unlawful maneuvers to keep secret the city's negotiation of a complex business deal under the guise of a sale of real property.
Martin Jones delivered the following report to the Democratic Club on Wednesday, October 8, in connection with his litigation, set to go to trial on November 17:
"As many of you may already know, I have asked to speak about a lawsuit I filed earlier this year in which I allege that the city of Oxnard violated certain laws generally known by all of us as the Brown Act. I have made those allegations in the context of the process through which the city entered into a Development and Disposition Agreement on November 26 of last year with a developer to build retail stores and a 12 screen theatre in downtown Oxnard. While I know all of you have heard of the Brown Act, I thought I would first give you a little background on that law.
"The actual name of the law that most of us know as the Brown Act is the Ralph M. Brown Act. This open meeting law prescribes exactly how local agencies in California are to conduct their decision making process with the entire emphasis of the law being focused on the need for legislative bodies to give adequate notice of matters they are deciding and include the public in its deliberative process. This is what most of us believe the democratic process should be.
"Let me tell you how I believe the open meeting law applies to my case which I hope many of you will see as really an action brought on behalf of all the taxpayers and not myself as regardless of the outcome, it will result in no financial gain on my part. A successful party to a Brown Act lawsuit receives no compensation.
"I think most of you know Oxnard has made several efforts to build a theater project in the downtown area centered on the block bordered by "A" and "B" Streets and Fourth and Fifth Street. They have been so focused on building a theater in the downtown that they have turned down attempts by developers to build theaters in any other part of the city. These efforts to build this project in downtown have not been successful
"After the last unsuccessful effort the city repeatedly stated in several agendas it was meeting in "closed session" for the purposes of negotiating a "sale" of the property on which it had hoped to build a movie theater. Let me emphasize that these agenda items specifically stated over and over that a "sale" was being discussed. Not a development agreement, not a city subsidized project, not eminent domain to take the real estate of private property holders to be given to a developer.
"On November 26, 2002, however, the city announced what it actually intended to do with that property in the form of a very lengthy and technical Development and Disposition Agreement which includes, among several other things, the following:
1. In exchange for building a 12 screen theater to be rented and operated by an independent theater operator, the city will guarantee the developer up to 1.6 million dollars a year for any rental payments the theater operator fails to make for a period of 25 years. This means if the 12 screen theater dos not survive more than one year, the taxpayers will pay 1.6 million a year for 24 years for what would likely be an empty building. As a specially designed building such as this is not going to have any other use.
2. The city would condemn and take from other taxpayers any downtown property the developer wants for his project and in fact the city, against the desire of the owner, is taking the former Bank of America building on the corner of Fifth and "A" Street.
3. The city guaranteed it would build a parking structure on the corner of Third and B Street which is another huge public subsidy giving the developer free parking.
4. The developer was given, free, a 90 day option to buy any city owned land in the entire downtown Oxnard area bordered by Wooley Road, Second Street, "C" Street, and the railroad tracks. In other words, at no cost to the developer, they were given a free option to buy property worth literally millions of dollars. This option has since been extended at least 3 times at no cost to the developer and many of you may know this has become a major public issue when the city has refused to sell such land to other property owners citing that that they can only sell to the developer. While that is outrageous in and of itself, this of course means that the developer is handed a fully taxpayer subsidized theater project and then at no cost, is given, to the exclusion of anyone else, the right to buy any nearby city property that might suddenly become more valuable solely because of the construction of the project paid for by the city's taxpayers and not the developer. That is an unbelievable giveaway on top of the 1.6 million annual subsidy.
5. The developer puts up virtually no money of his own or take any personal risk. The developer formed a limited liability corporation for this project and with the 1.6 million a year guarantee, can of course walk to any bank and get free financing without risking any money of his own.
"These are just a few of the items contained in the DDA which is an extremely complex document and not a sale of anything. In response to a Public Records Act request, we have learned that the city spent nearly $70,000.00 on an outside law firm to negotiate this complicated agreement which is again nothing close to a sale. Moreover, no notice was given that the city was offering these subsidies which might have resulted in competitive and better bids from other developers who would have flocked to an offer such as guaranteed rent of 1.6 million a year and what has now become a one year free option to buy any city owned property that the developer would believe is going to be more valuable because of the very theater project the city is paying for.
"I also want to mention at this point that much of the foregoing in the DDA reminds me of findings made by the Ventura County Grand Jury concerning Oxnard's agreement with the operator of that city owned land. One finding states:
"That the city immediately retain outside counsel expert in government contracting and procurement to assist it in reforming and renegotiating the present agreement to ensure it is in conformity with California law and good business practice."
"Another finding by the Grand Jury states the city should only proceed with expansion of its golf course "after full disclosure to the public of the probable true cost of the venture including consideration of the increased local competition and falling public participation in the sport."
"These comments about Oxnard's business practices relative to its golf course are very similar to what I think anyone with good sense would think about this theater DDA. First, we are subsidizing a form of entertainment with "falling participation" to quote the grand jury as DVD's and other media reduce attendance at movie theaters. Next, the city chose to do this in a dishonest fashion by concealing the fact that it was not selling its property but had decided, without outside public scrutiny, to hide how much the public will spend on this venture and so, as the Grand Jury observed with the golf course, fails to disclose to the public the true probable cost of the project.
"In any event, once this DDA was revealed to the public, I think I can say it came as a great surprise to anyone following the issues involving downtown Oxnard. Most of us following this project were led to believe that the city had abandoned its efforts to build a theater project. That is basically what they told us publicly after their last unsuccessful effort to build a theater and we believed the city council when it said it was selling the land to someone who might take the risk of building a movie theater in downtown. The agendas said they were continually meeting in closed sessions to discuss a "sale" of the property and not a publicly subsidized project which benefits one particular developer who I believe continually receives favored treatment by the city. No one was given the opportunity to say whether or not tax dollars potentially exceeding 40 million dollars should be spent to insure that a theater would be built in downtown Oxnard. And, it is my guess that no one was given that opportunity because the public would say there are plenty of other and more worthwhile ways to spend that money throughout the city or that someone other than the favored developer might have come along with a better offer.
"Once I became aware of this DDA, I did some research and found a very similar case, known as the Shapiro case, had recently been decided by a California Court of Appeals involving an attempt in San Diego to build a sports facility. Mr. Shapiro alleged that the San Diego city council had repeatedly met in closed sessions and that their agenda notices similarly stated the city was considering the sale of public property. They then suddenly announced they had entered into an agreement which provided a huge public subsidy for the construction of a sports arena. The court found that the city acted in violation of the Brown Act by intentionally trying to hide from the public that the few members of the council had decided, without public input, that it would be in the best interests of the city to spend millions of dollars in taxpayer money to subsidize a for profit venture. The court stopped the project.
"I have the same set of facts in my lawsuit. Everything in the DDA was negotiated and agreed upon without any notice to or input from the public which was led to believe that only a relatively small empty lot in downtown Oxnard was being sold to someone. And I might add that someone was never specifically identified This is contrary to the Brown Act and what everyone would agree is contrary to how we believe government should work.
"After discovering the Shapiro case, I met with a local attorney by the name of Fred Rosenmund. He pointed out that the Brown Act requires, prior to filing suit, that the city has to be put on notice that a taxpayer believes a Brown Act violation has occurred to give the city the opportunity to rectify the violation. In a lengthy letter he helped me to prepare, we outlined all of the foregoing and delivered our notice to the city. The city still refused to act according to law which would have meant properly noticing as an agenda item that the city was negotiating a publicly subsidized theater project and invite proposals from developers showing, to me, that they did not want to have to publicly offer the same subsidies to any other developer. Or let the public know just how much they were willing to give away. I filed suit and am represented by an attorney by the name of Richard Tentler who I was fortunate enough to find shares my views on how the democratic process should work in local government. We made a good faith offer to the city to settle my lawsuit to spare the taxpayers money. The offer was ignored.
"I also want to add that in order to try to discredit me with personal attacks over this lawsuit, some staff and council members have tried to paint me as someone who is against the theater project and looking for financial gain. Whether or not a theater is built in downtown Oxnard is irrelevant to me and the lawsuit. My objective is to stop Oxnard from making decisions in this secret manner. Which they consistently do. I will not gain a penny if my lawsuit is successful. The most I would receive would be reimbursement for my attorneys fees.
"I would also like to share with you my view that what I have described here in terms of how this theater project was secretly negotiated is consistent with a pattern how city government works in Oxnard. I believe the city's golf course, which coincidentally loses about 1.6 million a year which is the potential annual loss by the theater project, has received favored status in the form of secret deals and misinformation on the part of the city. For instance, for years they have claimed the golf course makes money and they have made a big public production of presenting a check supposedly representing the annual profit from the golf course. Only after I initiated a grand jury investigation which confirmed that I was accurate in my view that the city is dishonest in making these representations has a city official, for the first time in 10 years, admitted the golf course loses money. We are now told, for the first time since it was built, that this loss is justified because it creates a "recreational opportunity" for the public but the public was never allowed to give any input and decide if millions of dollars should be spent in this fashion versus recreational opportunities for children or the larger portion of the pubic that cannot afford to play golf. Now the same thing has been done secretly in deciding this huge potential outflow of tax dollars for a theater has been made without any input from the public.
"In closing, I have sensed an overall dissatisfaction by the public in how Oxnard operates. Taking on a governmental agency, however, is not easy nor pleasant. I appreciated the opportunity to speak here with the hope that you will see that my actions are not motivated by self-gain and that my claims are legitimate and that for the benefit of all of us, we need a more open government process in Oxnard. In that regard, let me make a last prediction about the theater project.
"We have been told the focus of the project is to be "A" Street which in a historical sense is Oxnard's downtown main street. I believe we will next see that the project will instead be focused in a different direction to favor property owned in the downtown by the developer. This will come about not by open public discussion but simply something decided upon and final as the city will do almost anything for the developer. If you do not believe this, ask for a copy of the current design plans and you will be told you cannot see them even though you are paying for the project. And to show just how far the city is willing to go for this one particular developer, one downtown landowner asked in a recent meeting with city staff if he could use his building for a particular use. In front of him, the staff called a representative of the developer and asked if he objected to that use. The developer did object and staff told the owner he could not use his building for that particular use. That is how government operates in Oxnard and we need to stop this.
"Some members of the City Council and senior staff may say that I simply do not understand Redevelopment law and that these things I and others complain about can happen because downtown has been declared blighted by the council and therefore subject to Redevelopment law. With due respect, I do not think that is how Redevelopment law works and even if we believed that, I do not think any of us wants government to be run in the fashion I have described tonight and use redevelopment law as a justification. The fundamental question is: why was such an expensive project secretly negotiated behind closed doors and kept from the public?"
"Again, thank you for this opportunity to express my views
on this matter."