City, Developer Lock Horns Over Improvement Projects

By Dave Roberts

City officials and a local developer engaged in verbal fisticuffs at Tuesday’s City Council meeting with charges and countercharges of injuring reputations, violation of the Brown Act, umbrage at being accused of violating the Brown Act and threats of lawsuits.

The dispute centers on Discovery Builders’ Black Diamond Ranch development at Somersville Road and James Donlon Boulevard. Conditions for allowing that development included construction of a culvert crossing at Markley Creek and the widening of Somersville Road in that area.

City officials contend that the developer is on the hook for obtaining the permits and construction of the $5 million projects. The developer believes it’s the city’s responsibility to get the permits and do the work, with the developer reimbursing the city’s costs.

City officials are eager to get started on the creek project, which must precede the road widening and which can only be done during the dry season from mid-April to October so as not to disrupt creek wildlife. Two weeks ago they agreed to take over the projects and get reimbursement from the developer.

Tuesday night the Council agreed 4-0 (Wade Harper recused himself due to having received developer campaign contributions) to seek construction bids, to pay $93,000 for a one-year creek permit extension and transferring $1 million from the city’s Capital Projects Fund or the Gas Tax Fund.

Meanwhile city officials have also sent Discovery Builders an official notice that the developer has defaulted on its agreements to take on these projects. That notice is a preliminary step in possible litigation by the city to force compliance. And that possibility has ratcheted up the tension considerably between the two sides.

However, a meeting on Monday between the two parties “seemed to have the possibility of an amicable resolution of the matter,” City Attorney Lynn Tracy Nerland told the council Tuesday night.

But that amicable possibility was scotched when Discovery Builders attorney James Colopy sent the city a letter on Tuesday accusing the council of violating the open meeting law known as the Brown Act. He based this on the fact that a resolution tentatively approved at the March 8 council meeting had changed by the time the council saw the final version on Tuesday.

“We were very disturbed to receive the final resolution from the City Council,” Colopy told the council. “Because that was not the resolution you adopted on March 8 at all. That is a clear violation, in my mind, of the California Brown Act, which only allows legislative entities like yourself to deliberate at a public meeting, and only allows public decisions to be made in public and not be changed in private.”

Colopy was cut off at that point by Mayor Jim Davis because his three-minute time limit had expired. But his letter states, “Discovery Builders does not know what happened behind closed doors during the time period of March 8 to March 17. Given the substantial changes, it is reasonable to assume the City Council met again in private and voted again in private to adopt a different Resolution than the one circulated for public review and public meeting.”

A clearly peeved Nerland disputed that charge, saying, “Mr. Colopy’s letter today alleging that the City Council is meeting in secret and violating the Brown Act is so absurd that one must question his motives. It is common, as the City Council knows, that staff will prepare a resolution and attach it to the staff report for the council’s consideration. And there may be changes to those resolutions. The agenda packet goes out Thursday. Situations may change.

“In this very case, Mr. Colopy came forward with new information to the city that his client now didn’t want to build the culvert and wanted the city to build it and that Discovery Builders would pay those costs. So, obviously in those situations, resolutions  are not going to be the same as what is ultimately adopted by the City Council. It’s somewhat spurious to suggest that the council has no authority to change the resolutions that staff presents to it.”

Colopy also charged that city officials have damaged his client’s reputation.

“Discovery Builders is very upset and concerned about the way that the city of Antioch has been handling this issue,” he told the council. “We have been attacked and our business reputation has been injured because the statements that are being made by the City Council and staff report are being portrayed in the media as Discovery Builders and affiliate entities are not abiding by their contractual entities. When nothing could be farther from the truth.”

Colopy then threatened to sue the city.

“By moving ahead with the culvert project this year, that is a breach of an agreement between the City of Antioch and Discovery Builders entities that was entered into in Sept 15, 2009. To the extent that the City of Antioch continues on its current course of action my client has advised that they are considering legal action to protect their rights under the contract. This is not a course of action that we want to do, but we feel like we have no choice.

“Yesterday’s meeting was productive. I made a request that we put off this agenda item to allow time for the two sides to continue talking and see if they can resolve it. I was told by the city attorney and outside counsel for the city that this matter would have to proceed on two tracks. That we would keep talking about a settlement to see if that would be productive, but otherwise the city was going to move forward with what it was going to do. If that’s what it’s going to do, fine. But we have to also do what we feel is necessary to protect our rights under the law.”

Nerland explained that the culvert work needs to get done in the next half-year during the dry season or be put off for another year. As for the other track of continuing to discuss the dispute with representatives of the Seeno-owned company, progress would depend on “if they continue to come to the table in good faith or whether they are simply going to continue to allege Brown Act violations and we don’t get any further,” she said.

The only council member to respond to Calopy’s charge of violating the Brown Act was Gary Agopian.  

“What really concerns me about this is that this City Council in open session (on March 8) had a discussion about this issue,” said Agopian. “I openly commented then and am openly commenting now. We did nothing in secret. I think it’s repugnant to accuse this council of acting in secret. If there’s concern about someone’s reputation being damaged, I’m concerned about the reputation of this city and its citizens, who by inference are entering into this contract. Because it’s a contract with all the citizens of Antioch. I’m very concerned about that.

“I think that we are being very prudent here by asking for the contract to be adhered to. I still believe that we can get an agreement that would be equitable if all parties are willing to talk.”

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