Two Lake Forest City Council members on opposing sides of a controversial plan to transform an aging auto mall into a lucrative housing development are questioning whether the public was adequately informed about a vote that helped pave the way for the project.

Their concern comes just as the council prepared to discuss increased transparency measures Tuesday.

“I am upset,” Councilman Adam Nick said in an interview Monday when told that the item was listed on the agenda as only for discussion. “It was surely not the correct timing for the action. I am just puzzled and upset as to why the city attorney did not intervene.”

During the Feb. 5 discussion item, council members voted 3-2, with Peter Herzog and Kathryn McCullough opposing, to cancel an independent review of the developers’ feasibility studies.

Herzog said most residents reading the agenda wouldn’t have known that any action would be taken.

“I knew in my head that they wanted to do something that night,” said Herzog, “but the public wouldn’t have that same situation in their head that I did.”

City Attorney Scott Smith said he is confident that the council’s action was allowable because their discussion centered on a letter that requested action and was under the discussion-action items section of the meeting.

“I think that was properly noticed,” said Smith, a member of the law firm Best Best & Krieger.

But open-government expert Terry Francke, whom Voice of OC consults on transparency issues, saw it differently. He said the city is not on solid legal footing.

“The council’s action was not foreseeable from anything stated either on the agenda or in the staff’s agenda report, which framed the item as one for discussion,” said Francke. “I believe a court would find the action subject to nullification for want of legally adequate notice should someone seek that remedy.”

The Feb. 5 decision helped pave the way for plans by two developers to build about 220 homes in an abandoned auto mall on the city’s northern edge. Because Lake Forest recently approved more than 4,000 homes for the area, city staff had advised council members to do an independent review of the developers’ market studies to see whether that area should indeed be changed to housing or remain commercial.

The previous council felt the review “was an important component in verifying the developers assertion that residential development is the best (and potentially the only) viable use for the subject properties,” City Manager Robert Dunek wrote in last month’s staff report.

But the developers thought otherwise. After steering nearly $50,000 to Nick’s and Councilman Dwight Robinson’s election campaigns, the companies sent letters to City Hall asking that a review of their study not be required.

“More reports on top of reports are not needed to make an informed decision,” wrote developer Brookfield Residential.

The council majority of Robinson, Nick and Scott Voigts then “directed staff to include the letters as a discussion item” on the Feb. 5 council agenda, according to a city staff report.

That agenda item was titled “Discussion of letters submitted by Brookfield Residential and Trumark Homes regarding proposed residential development in the Foothill Ranch Auto Centre.”

The only recommended action was, “Discuss at the discretion of the City Council.”

At the end of their discussion, the council majority voted to cancel the independent review.

Nick said that while he still supports his vote, the public should have been given “the proper due notice.”

“I am very uncomfortable with that,” he said. “It’s very upsetting.”

Nick, a new council member, ran on a platform of transparency in City Hall. He said his interest in transparency is rooted in his own experience of City Hall withholding information and documents concerning the approval of a liquor license for a 7-Eleven business that competes with the gas station he owns.

Nick’s lawsuit against the city over that approval was rejected by a Superior Court judge but continues at the appellate level.

The issue in Lake Forest in some ways is similar to Anaheim’s decision last year to grant a $158-million subsidy to hotel developers, which was later overthrown by a judge.

Anaheim’s meeting agenda had listed the item as a “discussion to consider an amendment to an existing economic assistance agreement and provide direction to staff to develop an agreement with the developer.”

But Anaheim council members voted 3-2 to approve the subsidy, prompting an outcry from residents and a judge’s ruling that it violated California’s open meetings law.

When city councils take action without proper notice, they expose themselves to lawsuits asking a judge to void the vote, as was the case in Anaheim. If a council wants to revote, it must give notice of the agenda item.

Smith took issue with comparisons to the Anaheim case, saying that Anaheim was approving an entire project while Lake Forest was not. In Lake Forest’s case, however, the vote did help pave the way for construction to begin.

The debate comes as Lake Forest plans to discuss enhanced transparency measures at Nick’s request.

Up for a discussion tonight are a list of options, including speeding up response times to public records requests, requiring department heads to discuss records responses with requesters and posting campaign contribution disclosures online.

Herzog questioned this approach, saying the city should first determine where the problems are.

“Has there been a problem where the public feels it hasn’t been getting a timely response [to records requests]?” he asked.

Nick, meanwhile, said there are improvements the city can make to ease access to information.

“Anything and everything that is not by law explicitly and specifically privileged, then it should not only be available, it should be readily available to people,” he said.

You can reach Nick Gerda at, and follow him on Twitter: @nicholasgerda.

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