National City Violated Open Meetings Law

J. Justin Wilson
J. Justin Wilson · July 29, 2011

Arlington, Va.—Today, the Institute for Justice (IJ) and its clients, Victor Nuñez and the Community Youth Athletic Center (CYAC), filed suit in California Superior Court challenging the National City Planning Commission’s efforts to implement new planning and zoning rules that will have far-reaching effects on residents and businesses in National City without notifying the public in advance. These rules, if allowed to stand, could become the basis for a “blight” designation of a large number of properties in National City, which would allow the City to condemn and transfer private homes and businesses to developers.

“The law requires National City to provide us with complete and accurate information about what they’re doing so that we have an opportunity to protect our rights and our property,” said IJ client Victor Nuñez.

Under California’s open meeting law, called the Brown Act, local legislative bodies are required to post an agenda with a brief description of each item of business they plan to discuss and act on at the meeting. This law is intended to ensure that interested members of the public who may be impacted by decisions have an opportunity to adequately prepare and comment at public meetings in order to protect their rights.

The National City Planning Commission violated the Brown Act when it failed to describe on the agenda for its May 16, 2011 meeting all the documents it intended to discuss and pass. These documents form the basis for future blight designations and redevelopment plans. Among them are a new “general plan” that directs National City development over many years and a new “land use code” that makes nearly all of downtown National City “nonconforming” and allows the city to use “amortization” to kick an owner out because of how the property is being used or because of the physical characteristics of the property itself—without providing any compensation.

For example, under the new zoning code the CYAC’s building is nonconforming because it is only one story high and the new code requires buildings in that part of downtown to be multiple stories. Because the agenda for the meeting did not provide adequate notice to the public that these documents would be discussed and voted on, Nuñez and other members of the CYAC board were unable to adequately prepare and oppose them.

IJ Attorney Bill Maurer said, “When the Supreme Court issued its infamous decision in Kelo v. New London, it conditioned the government’s use of eminent domain for economic development on the government’s use of an open process that complies with the requirements of state law and due process. Public scrutiny is essential to give property owners the ability to protect their interests in the political process. National City’s actions clearly deprived the people who live and work there of their right to fully participate in that process.”

“National City has a pattern of inadequate notice,” said Dana Berliner, an IJ senior attorney. “Major decisions affecting people’s lives and property should not be made under the cover of darkness.”

If a court finds that the Planning Commission violated the Brown Act, it may nullify the Planning Commission’s vote, as well as any subsequent action taken by the Planning Commission or the City of National City based on that vote. “In essence,” Maurer concluded, “the City will have to start their entire process all over again but this time actually tell the people of National City about what they are planning to do beforehand.”

Nuñez and the CYAC are also represented by Richard M. Segal, Brian D. Martin and Nathaniel R. Smith of Pillsbury Winthrop Shaw Pittman LLP. IJ and Pillsbury successfully represented the CYAC in its suit to invalidate National City’s attempt to reauthorize eminent domain.