After months of secrecy complaints against Mission Viejo city officials, one property owner has filed a lawsuit against the city council’s lack of transparency.
Six alleged violations of the state’s open meetings law, called the Ralph M. Brown Act, concern closed session property negotiations and possible illegitimate agenda notices when presenting plans for the redevelopment and extending negotiation rights.
The action comes during negotiations between the Kinstler Family Trust — the owners of the Stein Mart building on Marguerite Parkway — and Mission Viejo officials who want to acquire the property to connect the downtown area to Oso Creek and take a first step toward a redevelopment plan that began in 2007.
Jann Kronick-Gath is listed as the plaintiff and the owner of the Michaels’ property on Marguerite Parkway in the Mission Viejo Village Center in the lawsuit. Kronick-Gath is represented by Ervin Cohen & Jessup, a law firm based in Beverly Hills.
Mission Viejo City Attorney Bill Curley added a discussion of the lawsuit as a last-minute closed session item during the May 25 council meeting.
Curley explained that he believes the filing is inaccurate, saying the lawsuit left out the critical fact that the city manager has the authority to enter into contracts without prior approval from the city council.
“I have seen the filing and believe it omits very critical facts, misunderstands and misapplies much applicable law and has serious legal defects,” Curley told Voice of OC.
Curley reported that the city council unanimously directed to defend against the lawsuit during the May 25 closed session.
The filing alleges that various actions from the council violated the Brown Act and perpetuated secrecy.
Firstly, the Mission Viejo City Council voted to begin exclusive negotiations with Kinstler on Feb. 23. This was the first time that the negotiation was mentioned in a public meeting, the filing alleges.
The council voted to commence the negotiations at the beginning of the meeting and then adjourned to its first closed session with Kinstler. The council then came back to a public hearing later in the meeting to approve the 60-day negotiating rights agreement, although the process already started, court filings allege.
The legal filing describes potential evidence that consideration of acquiring the Stein Mart property occurred before this Feb. 23 action.
Study sketches of design themes incorporate the Stein Mart building acquisition date before Feb. 23 when the council first mentioned the property. One sketch from October 2020 highlights details that would require the city owning a building near the location of the Stein Mart. These sketches were also commissioned without public disclosure, according to the lawsuit filing.
The next five violations detailed in the lawsuit discuss the April 13 city council meeting.
The Mission Viejo City Council was agendized to discuss extending the negotiation period with Kinstler for 60 days since the initial agreement had ended. However, the council discussed this topic for approximately three minutes before moving onto matters not listed on the agenda: a 35-minute slideshow presentation about the downtown revitalization plan that included new information not previously discussed in public.
Because the April 13 discussion was not properly agendized, the public was not made aware of the meeting’s discussion and could not prepare any public comment before a vote was made.
“Without any reference to the Vision Plan in the title, no reasonable person would know that it would be a topic of consideration by the Council,” Jeffery Harlan, an attorney in the firm, wrote in a letter to Curley April 22. “Not surprisingly, Ms. Kronick-Gath — whose property is near the Stein Mart property and part of the focus area of the Core Area Vision Plan — only learned of the City’s update on the Vision Plan after the fact.”
In response, Curley argued that since no action was taken on the revitalization plans, no legal argument supports the need for corrective action.
“The entire April 13, 2021 City Council meeting is available for online review on the City’s website,” Curley wrote in response to Harlan’s letter. “A review of the meeting … will demonstrate the City’s efforts to be transparent, while concurrently preserving all fiduciary, legal and good stewardship practices, none of which violate the Brown Act.”
Additionally, the lawsuit notes that the city of Mission Viejo paid $30,000 of taxpayer funds every month — for at least four months — to the Kinstler Trust in order to continue negotiations, a stipulation that was not been made public during the council meetings and did not face formal council approval.
Kronick-Gath is requesting that the city declare the closed session Feb. 23 as a violation and for the city council to record future closed session meetings and preserve the audio. Kronick-Gath further requests that the council’s April 13 approval and the filing and discussion of the renovation presentation be declared null and void.
Additionally, Kronick-Gath requests a declaration that the council failed to substantially discuss extending the agendized item and a court order to prevent the Mission Viejo City Council from further Brown Act violations when discussing the downtown development plan.
After being made aware of the potential Brown Act violations, Curley denied a request to correct the cited Brown Act violations, instead responding that the city’s efforts have been transparent and did not require any corrective action.
“The complaint ignores existing law, that its claimed facts and law contradict clear facts and law that are in the record and that are in the municipal code,” Curley said during the May 25 council meeting. “Its erroneous claims reflect the same baseless and irrelevant issues that Cathy Schlicht has claimed previously such as CC&Rs in the center.”
This lawsuit has drawn supportive comments in public from former Mission Viejo Mayor Cathy Schlicht, who has been critical of the current council and questioned several actions.
Schlicht gave a public comment to the council May 25 discussing the legal action against the city.
“As a community watchdog, I am grateful for a village center property owner to bring forward a lawsuit,” Schlicht said during the meeting. “I have little doubt that all of us find it regrettable that this step had to be taken to preserve our rights as citizens as well reveal blatant Brown Act violations committed by the members of this city council.”
This is not the first lawsuit involving Kinstler, whose trust owns the Stein Mart building, and Kronick-Gath, whose trust owns the former Michaels’ building, in the area.
In 2014, Kinstler took legal action against the other property owners in the shopping center in order to build an additional structure in the parking lot, an action which would invalidate the binding regulations for this area. Yet, after a trial, a local court upheld the CC&R regulations, prohibiting Kinstler from adding another structure in this area.
The CC&Rs in the downtown area are still relevant to Schlicht, who worries that the redevelopment plan contains changes that violate the CC&R regulations.
“From my recollection when I was on the council, the CC&R’s do not allow what the city is proposing,” Schlicht said. “If the city acquires the property, and ignores the CC&R’s, what does that mean for the other property owners? Do they have to sue to protect their rights or will they be cowed into submission?”
During the meeting, Curley responded by challenging public comments.
“This city, this city council, my office staff, we are very, very concerned about strict compliance with the law, particularly the Brown Act, and you are in compliance with it,” Curley said during the meeting. “The issues that are raised — like CC&Rs on the property or there’s another project being applied for — they have nothing to do with public hearings or agendas.”
Mission Viejo City Council Member Ed Sachs also emphasized his disappointment regarding critical public comments at the meeting.
“I get tired of negativity and sadness that people bring,” Sachs said at the meeting on May 25. “The ideas and made up hallucinatory accusations … I would hope that they find the right side of their heart and understand that what this council is trying to do and what staff and the planning commission and everybody that works for the city and volunteers for the city is doing is only to make this city greater and better than it currently is.”
Angelina Hicks is a reporting fellow at Voice of OC and can be reached at ahicks@voiceofoc.org.