In a court decision hailed as a victory by community activists, a Superior Court judge denied a request Tuesday by the city of Santa Ana to dismiss a lawsuit challenging an amendment to the development agreement for a 37-story office building known as One Broadway Plaza.

The case will now go to a full hearing set for May 12. Judge Derek Hunt said the lawsuit might present a “novel legal question” over what should — or should not — go to a vote of the people.

The tower was approved by voters in 2005 with the passing of Measure A.  However, property owner Michael Harrah has not yet been able to meet the requirements set forth in the original development agreement, most notably a requirement that he have 50 percent of the building pre-leased before building begins.

Last year, City Council approved an amendment to the development agreement that changed the requirement to 30 percent.

It was this amendment that spurred the group of activists, known as the Coalition for Accountable Government Ethics, to file the lawsuit.  The suit argues that because the tower was approved by a referendum, any changes to the development agreement must also go back to a vote, per the California Elections Code.

Daniel Wildish, attorney for the activists, said Tuesday’s decision is a game changer. “The judge realizes the significance of this case,” he said. “This is huge.”

The city argued that the development agreement was never part of Measure A, and that voters approved only the re-zoning ordinance, according to court documents.

The documents go on to assert that even if the development agreement had been part of the referendum, the California Elections Code would only require re-votes for amendments to initiatives, which are different than referendums in that they are usually grassroots ordinances proposed by residents. Measure A was approved via a referendum.

Assistant City Attorney Jose Sandoval said he was “testing the sufficiency of the complaint” when he filed a motion to dismiss the lawsuit. “The judge was not wanting to hear it,” he said. “I know when to back off.”

Hunt said he needed to see all the facts in the case to adjudicate it. He also chided attorneys on both sides for the quality of the records they submitted.

The city’s records weren’t certified copies and therefore couldn’t be accepted, while Wildish submitted a reprint of the city attorney’s impartial analysis of Measure A and ballot arguments by the League of Women’s Voters of California Education Fund.

Sandoval insisted they were the official records of the city clerk’s office, but Hunt said they looked like they had been “pulled from somebody’s desk.”

He added: “This is probably good enough for a newspaper, but this is a court of law.”


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