Council déjà vu

Tradewinds vote leaves city exposed

RIGHTEOUSLY INDIGNANT<br>At Tuesday night’s meeting, City Councilmen Larry Wahl (left) and Steve Bertagna lamented the litigation Chico faces over a previous council’s decision. Wahl later made a motion approved 4-3—with Bertagna among the dissenters—that may have put the city in the same position again.

At Tuesday night’s meeting, City Councilmen Larry Wahl (left) and Steve Bertagna lamented the litigation Chico faces over a previous council’s decision. Wahl later made a motion approved 4-3—with Bertagna among the dissenters—that may have put the city in the same position again.

Photo By Meredith J. Cooper

Lori Barker has been Chico’s city attorney for less than three months, and already she’s had to ask the City Council twice for legal-defense funding. The second time came Tuesday night (Oct. 2), when Councilman Larry Wahl asked that a supplemental appropriation for $425,000 be pulled from the consent agenda.

“There needs to be some illumination on this,” Wahl said in explaining his request. The council previously approved $100,000 to fight litigation; why would Barker need $525,000?

Four lawsuits, she replied—all relating to the Humboldt Burn Dump, all coming to a head at roughly the same time.

Humboldt. Oak Valley. Tom Fogarty.


“The reason we’re here is a reversal by the majority of the previous council … against the advice of the city attorney who said it was illegal,” Wahl declared, revisiting a complaint he’d leveled a number of times before. “I believe Mr. Fogarty filed this lawsuit and the previous one [which got dismissed on a technicality] because of the run-around he’s gotten from the city for 14 years.”

Mayor Andy Holcombe called that an incorrect characterization, saying this suit relates to a different matter at the Humboldt dump. Steve Bertagna, the councilman closest to Wahl’s conservative bent, replied that, while Holcombe was technically correct, “at the time, statements were made by myself and others that ‘lawsuits are coming'—they are here.”

Bertagna said he’d reluctantly support the allocation “because the city has to defend itself.” He nevertheless wound up joining Wahl in opposition, changing his mind, he said afterward, because “Scott [Gruendl] blathering through that rhetoric again opened old wounds.” (Gruendl expressed pride in helping save taxpayers from subsidizing a profitable venture.) In the end, Gruendl, Holcombe and their progressive colleagues passed the appropriation, 5-2.

It didn’t seem significant at the time, but a remark from Barker during Wahl’s questioning—"I can’t predict if someone else will sue us"—proved stunningly prescient. One hour later, the council opened up the city to legal action on another matter by voting 4-3 to deny the abandonment of utility easements between two homes with the same owner.

Even more shocking was the councilmember who moved to do so: Wahl.

As reported in Newslines last week (”Trouble on Tradewinds Court"), Jessica Haggard received city approval to merge her two properties. The reason, she reiterated Tuesday night, is so she can build her dream home by connecting the two houses and remodeling inside. PG&E determined it did not and would not need the easements to provide power to her or other houses. The last step: City Council sign-off on the abandonment.

The council considered the matter a month earlier but voted 6-1 over Holcombe’s objection to examine it more closely Oct. 2. Neighbors had come forward Sept. 4 saying that was the first they’d heard of the project and had serious concerns.

Right off the bat, Holcombe tried to shape Tuesday’s deliberation. “The lot merger is done,” he began his question to Barker. “The agendized item is the abandonment of the easement[s]. What scope can we consider?”

The city attorney responded that the council could assess the factual findings as to the necessity of the easements and whether abandoning them would be in the “public interest.” That term proved the crux of the debate: Barker and Holcombe—also an attorney—said the scope of this agenda item was limited to the easements, while other councilmembers interpreted “public interest” more broadly, to include protecting residents’ collective interests.

“If this gets approved,” neighbor Randy Jamison told the council, “it will go down in Chico history as the great bamboozle.” Contrary to Haggard’s statement that she’d shared her plans with her neighbors, Jamison said he and others knew nothing of the merger until seeing notices of the Sept. 4 hearing affixed to light posts. He fears congestion in the cul-de-sac from construction crews’ vehicles, as well as potential damage to an elderly neighbor’s manicured yard.

Nancy von Moos and Robert Price talked about traffic related to Haggard’s home day-care business. Price, von Moos and Robert Noble discussed property values and questioned how this “monstrosity three times the size of the next-door neighbor” (Noble’s words) would fit in the neighborhood.

Von Moos listed some possible worst-case scenarios should Haggard sell the expanded home. It could become “Animal House” with rowdy students, or a halfway house with sex offenders. She concluded by spring-boarding off the published assessment of Associate City Planner Greg Redeker that there’s no precedent for the city to reverse course. “We’re asking the City Council to set a precedent to protect the residents of Chico,” von Moos said, to the applause of her neighbors.

Councilmembers were moved. They questioned how the merger could get so far through the permitting process without a chance for public input. They wanted their Internal Affairs Committee to look into the matter and close the loophole this project exposed.

Haggard’s lawyer expressed sympathy for their difficult position, then made his client’s position clear. “We’re not here to talk about use and what the property looks like,” Kevin Sweeney said. “The sole issue before you is the ministerial task of abandoning the easement…. I’m here as an attorney to tell you your job is to address the issue. If there’s a flaw in the process, fix it next time.”

Bertagna and Tom Nickell agreed with the attorneys. Gruendl and Mary Flynn had reservations. “It’s not in the public interest to change the rules halfway [in midstream],” Flynn said, “but it is in the public interest to question if the rules make sense.”

Then came the shocker.

Wahl routinely calls for consistency in city processes and for protecting the taxpayers from lawsuit-attracting decisions. Rarely does he vote in line with progressives in the majority.

Yet …

“I agree with Mary on this,” he said. “We got here because of the procedure, but we can decide if it’s in the public interest or not….” Vice Mayor Ann Schwab seconded his motion, and by one vote Haggard’s petition was denied and the merger process got referred to Internal Affairs.

Two hours later, after the meeting adjourned, Bertagna made his feelings clear. “I have to make legally defensible decisions for the city of Chico,” he said. “I did it with the Humboldt Burn Dump, and I did it again with this.”

Holcombe was disappointed, too: “I won’t lose sleep over it, but I’m concerned that there’s exposure to the city” for a legal challenge. And it’s not as if this was the last resort for the neighbors; they could sue to overturn a decision.

That’s just what Haggard might do.

Wednesday morning, Sweeney said by phone that he would be meeting with his client to discuss her options, and he would recommend litigation. He’d request in a lawsuit that a judge either order the city to abandon the easement or award damages to Haggard.

“Councilman Wahl took to task a prior council who in his estimation failed to follow the advice of the city attorney and reversed their prior decision on the Fogarty matter,” Sweeney said. “That’s exactly what they did last night to this young lady.”