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What Did the City Council Do?
On April 30, the City Council voted unanimously to give Sunroad the 9-foot easement it had requested on both sides of Centrum Park, built as part of the project before becoming city property.
Doing so required waiving Council policy 700-06, which was written in 1999 specifically to guide the Council on how to enforce its property rights when encroachments are discovered, or ones that could benefit the public and generate revenue for the city are proposed.
But granting the Sunroad easement didn’t include securing any new revenue for the city. The Council was opting to simply give away its right to build anything on 18 feet of its own public park.
That seemingly flies in the face of a specific guideline in policy 700-06 that says, “permission for encroachment on dedicated or designated parkland and open space that would benefit only a private party shall not be granted.”
The City Council has every right to waive its own guidelines, however. And it also could have determined the project benefited the public in some way, not just the private interests of Sunroad.
The council vote also went forward
without a staff report from Park and Recreation, Development Services or the city’s real estate assets division on what the city was giving up. Can the Donation Be Considered a Fee for Development?
As a general tenet of planning, public agencies can ask for a fee in exchange for approving a project. It’s called an exaction.
But the exaction needs to pass a two-pronged test outlined by the Supreme Court.
First, the exaction needs to have a nexus, or relationship, to the project itself. It also needs to be proportional to the impact the development will have.
“You can’t say, ‘There’s going to be air pollution, pay to throw us a parade,'” said Felix Tinkov, a land use attorney.
The Sunroad donation likely fails on the nexus test: The Kearny Mesa community sees nothing of the $100,000, but based on how the donation played out, that might not matter anyway.
As part of a normal development process, which includes staff reports on the effects of a project and a series of approvals at different levels of government, exactions are clearly defined along with everything else associated with the project.
In this case, the City Council approved millions in fees to be paid by Sunroad at the time it approved the original project.
“I don’t see the connection between the donation and fees to mitigate the project,” said Andrea Johnson, a professor at California Western School of Law. “I see the donations as something totally separate.”
If a new issue arises, however — such as a needed easement of city parkland — during the course of the development, the city could try to impose a new exaction, Tinkov said.
But that’s not what the City Council did. Instead, the Council determined that there was no need for a new fee or any other type of compensation, and approved the easement anyway.
Filner’s former deputy chief of staff, Allen Jones,
explained why he stands by the $100,000 donation he proposed to Sunroad.
The city gave up property rights that have monetary value, and he made sure it received monetary compensation for doing so, he said.
So, Does That Mean It’s Extortion?
If federal authorities do in fact proceed with an investigation, they’d be looking to prosecute under the
Hobbs Act, a federal statute meant to combat racketeering and public corruption, to determine if a public official used the weight of his office to collect money for performing his official duties.
The donation in question went to the city, not to Filner himself. But it was being diverted to specific pet projects that Filner could have used to raise his profile in the affected certain communities.
Johnson pointed out another reason why the Hobbs Act might not ensnare Filner: He didn’t have a formal vote on the project.
“He vetoed, but they overrode the veto, so it wasn’t as though his ‘vote’ was necessary or critical, which would cut against any claim of abuse of official authority, because the project could have gone forward by override without him doing anything,” she said.
“It sounds to me like he vetoed it because there was no input from city staff, and there should have been some input,” Johnson said. “He has the authority to veto and there’s no problem to doing that.”
A possible extortion case could also hinge on who initiated the donation request.
Jones says he proposed the donation when Tom Story of Sunroad brought the problem to the mayor’s office. Filner said Story proposed the donation. And in a
voicemail Story left for Councilman Kevin Faulconer, obtained by U-T San Diego, Story said he had “paid the money that was requested.”
“If Story had come in and said, ‘How ’bout we just give you the $100,000 and you rescind your veto?’ that wouldn’t be extortion,” Tinkov said. “That would’ve been the normal course of politics. Do a dance, get your veto.”
Does It Matter That Filner Gave the Money Back?
Filner said he returned the donation once he was made aware of a memo from Story to Jones that drew an explicit connection between the donation and the mayor’s willingness to drop his opposition to the easement.
“In consideration for this payment, the mayor will direct city staff to record the building restricted easements … such that construction inspections on the project … shall continue without interruption,” the memo reads.
Johnson said the prompt return of the funds could be relevant.
“If you were not aware at the time you received something that the intent of the person was a quid pro quo, then giving it back at the time you realize it is really the only option you have,” she said.
Jones said he requested the payment at the mayor’s direction, and that the mayor “is aware of and makes all decisions.”
Tinkov said the returned payment matters only to the extent that Filner can prove when he learned of the agreement.
“What saves him isn’t giving the money back, it’s that he didn’t know what was going on,” he said. “He needs to make Jones fall underneath an avalanche.”
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