By Shawn Raymundo
The city council this week voted to move ahead with condemning land that Emergency Shelter Coalition (ESC) had recently purchased on which to develop a homeless shelter, paving the way for what could be a costly legal battle in the ensuing months.
In a 4-1 decision, with Mayor Pro Tem Laura Ferguson dissenting, the council, on Tuesday, April 21, approved the plan to acquire the nonprofit group’s land through eminent domain. The property is located in the open space off Avenida Pico, opposite Calle del Cerro.
“ESC is very disappointed that, for the umpteenth time over the past six years, the City Council has rejected ESC’s sincere offer to work together with the Council to address the City’s homeless problems,” ESC President Ed Connor said in an email to San Clemente Times on Thursday, April 23.
“Instead, at a time when the City’s coffers will be severely depleted by the COVID-19 crisis, the Council has chosen to go the litigation route, even though that will only serve to further line the pockets of the City Attorney’s law firm,” he continued.
Back in January, ESC finalized its sale agreement with the Rancho San Clemente Business Park Association to buy the parcels for $19,500. The sale came with the stipulation that ESC wouldn’t build a shelter within the main part of the business park.
The city, which had a chance to buy the land before ESC did, is now looking to convert the pair of parcels, comprising 10 acres, into a conservation easement, with the stated goal of preventing the Transportation Corridor Agencies from ever considering another extension of the 241 Toll Road through that part of San Clemente.
With Tuesday’s vote, eminent domain proceedings are likely to commence in Superior Court within six months, according to the city. At that time, the city has stated, “The court will determine the amount of compensation” to which ESC would be entitled.
City Attorney Scott Smith has estimated that the city is looking at paying $100,000 to acquire title for the property. That price tag includes $80,000 for litigation and about $20,000 for the value of the parcels.
Laura Lee Blake, the Emergency Shelter Coalition’s general counsel, however, said she believes Smith left out a zero in that estimate, claiming the lawsuit is instead likely to cost the city $800,000 to defend over the next two to three years because of courts being shut down during the public health crisis.
Blake also told the councilmembers that during litigation, their opinions and correspondence related to the homeless would be subject to discovery and that, no matter where they reside, they would be deposed.
Connor had made similar statements during the previous council meeting on April 7, when deliberations over the item initially had begun. He had contended that the city’s true intention behind condemning the property was to prevent a homeless shelter.
On Tuesday, he asked the council why they’ve been fighting ESC on getting a shelter built for the homeless.
“Why are you fighting us? What are you afraid of?” Connor asked. “You’ve been fighting us for years, and all we’re offering to do is what you should be doing as city councilmembers and human beings.”
Blake also had asked the councilors what they wanted their legacy to be.
“What do you want your history to be? Do you want your legacy to be known as the councilmember who fought a homeless shelter?” she asked. “We are not here to fight; we are here to help . . . our goal is get them homes, jobs, into rehab, get them education.”
Former Mayor Dan Bane, whose final day on the council was Tuesday, argued against ESC’s claim that the city is against a homeless shelter, stating that the Coalition can open one in the Rancho San Clemente Business Park.
“If ESC wanted to build a shelter, they can build one right this very second in the Rancho San Clemente Business Park, and they can put up to 70 beds. . . . We’re not in any way prohibiting them from doing that,” Bane said.
The business park lies within the city’s Emergency Shelter Overlay Zone—the area of the city where emergency shelters can operate.
To comply with the state’s mandate under Senate Bill 2 that requires local municipalities to come up with a plan for providing homeless shelter access, the city, back in 2016, identified the Business Park as a section in the Overlay. Commonly referred to as an SB2 zone, the Overlay allows as many as 70 shelter beds for the homeless.
ESC has been critical over the timing of the matter, accusing the city of rushing its eminent domain plan in the middle of a pandemic.
According to the city, it had submitted an offer to ESC on March 16 to purchase the land for $20,000. One week later, a public hearing notice was sent to the nonprofit group, informing the organization that the council would be considering a resolution of necessity to acquire the land.
The city stated that although Connor did contact the city regarding the proposition to buy the land, “The offer has not been accepted and agreement has not been reached with the Owner. Therefore, it is necessary to acquire the necessary interest by eminent domain.”
During the public-comment portion during Tuesday’s council meeting, former San Clemente resident Brad Malamud asked whether Smith and Best, Best & Krieger would be willing to cap their legal costs at $80,000. If they’re unwilling to make that promise, he said, “then his estimate is worthless.”
Ferguson, on Tuesday, pressed Smith on the subject, asking he was willing to cap the fees as Malamud had suggested. Smith and fellow BB&K attorney Jim Gilpin said they would not. Gilpin also called Blake’s $800,000 estimate “ridiculous” and said the city’s fees will not come anywhere near that.
At the previous council meeting, Ferguson had also raised concerns over the need to pursue eminent domain when there’s currently a lawsuit challenging the Business Park Association’s sale with the Coalition.
“I just don’t feel comfortable spending money with no end in sight,” Ferguson said. “This is premature, and if that private party lawsuit fails, then that would be the time to consider what to do next with this eminent domain process.”
This past February, Olen Commercial Properties, along with other business park tenants, sued their landlord and ESC over the sale of the property. The lawsuit contends the Association didn’t have the legal authority to sell the land without the support of its tenants.
Touching on Blake’s question about legacy, Bane said that’s something he had been thinking about leading up to his last day on the council. He noted that as a city official over the past few years, he had “devoted a ton of time to protecting this corridor from a toll road.”
Over the past few weeks, both Connor and Ferguson questioned the city’s urgency to condemn the land when the city’s Measure V ordinance is already meant to keep the property as open space.
Under San Clemente’s Measure V ordinance, any project proposing to develop on more than an acre of open space has to go to a vote of the people.
“Yeah, it’s open space right now, and yeah, Measure V protects open space, but there’s an exception in Measure V that allows for roads . . . to be built by public agencies, which is why Measure V doesn’t always provide the greatest protection,” Bane said.
According to the city, the acquisition of the land would provide the “last piece of the puzzle” to the city’s protected area, which includes the surrounding open space around ESC’s property.
That space consists of 287 acres of land the city was able to turn into a conservation easement following an environmental easement agreement the city had entered into with the Marblehead Community Association in September 2018.
Shawn Raymundo is the city editor for the San Clemente Times. He graduated from Arizona State University with a bachelor’s degree in Global Studies. Before joining Picket Fence Media, he worked as the government accountability reporter for the Pacific Daily News in the U.S. territory of Guam. Follow him on Twitter @ShawnzyTsunami and follow San Clemente Times @SCTimesNews.