San Juan Capistrano

                            The Facts Regarding the Vermeulen Lawsuit

                                                By Kerry Ferguson, San Juan City Councilmember

SJC Councilmember Kerry Ferguson
You may have heard rumblings about the City being sued by the Vermeulen family and Troy Bourne of Spieker Development (“Plaintiffs”), over the unsuccessful development of the Vermeulen property. Some supporters of the development have gone so far as to predict that the lawsuit will bankrupt the City. Allow me to set the record straight.

 Here's what our critics haven't told you:

 The City strongly disagrees with the claims alleged in the lawsuit and on Friday, September 18, 2015, the City filed a motion challenging the lawsuit on many grounds.

It is the City's position that the lawsuit improperly seeks to usurp the City's broad police powers and to dictate how a City Council should exercise its discretionary legislative and zoning authority by effectively forcing the City to “up-zone” the property from Agricultural-Business uses to dense residential uses. This is contrary to California Law.

The Plaintiffs' position is also not supported by the facts. Although the Vermeulen property has been used for farming and other agricultural uses since 1938, Plaintiffs' claim that it can no longer be viably used for agricultural and other uses allowed by the Agri-Business General Plan designation of the property is patently false. The property has been leased to Armstrong nurseries since 1998, a T-Mobile facility provides extra beneficial use, and the Retail Center, which is part of the Vermeulen Ranch, continues in business to this day. 

The Agri-Business zoning allows many different types of uses, but the Plaintiffs never applied for any of those uses. A mere desire to up-zone and build a more lucrative project than historically existed or currently exists does not provide any basis, constitutional or otherwise, for forcing the City to change the General Plan designation.

 It is also the City's position that the lawsuit improperly seeks to undermine the will of the voters. Last November, well more than the required number of voters in the City exercised their inherent referendum powers by challenging the resolution that had approved a General Plan Amendment and Specific Plan for Spieker Development's Project.
Once the voters have spoken by referendum petition, the California Elections Code requires the City to repeal the resolution or hold a special election. The City Council voted to repeal it since the very recent election had yielded 60% of the votes cast rejecting candidates who favored the project, including two incumbents who had voted for it in a very unfairly conducted City Council Meeting that sought to ram it through - no matter what.

It should be noted that Spieker did not challenge the repeal of the Project approval and cannot do so now because the 90 days for filing a legal challenge has expired.

It is also important to keep in mind that the California Election Code prohibits the City from taking an action within 12 months contrary to the issue presented by a referendum.

The City has also challenged the Plaintiffs’ constitutional claims for regulatory taking, due process and equal protection on procedural and legal grounds. 

A substantial part of the lawsuit is based on complaints that the City treated the Plaintiffs unfairly by using Measure D and Measure Y funds to buy other properties, claiming the City should have bought the Vermeulen Ranch with those funds. Electing to acquire one property over another using Measure D or Measure Y funds that are designated for specific uses, such as open space and preserving the rural character of the City, does not violate Plaintiffs' equal protection rights nor provide any basis for trying to dictate how the City should use those funds. Again, this is an untimely attempt to challenge decades-old discretionary legislative actions by the City, including the City's decisions between 1990 and 2009 on how to spend bond funds that were approved by over two-thirds of the voters.

For all these reasons, the City looks forward to having the City's defense to this lawsuit heard by the court in November. We will keep you posted.

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