Town Council ran afoul of open-meeting law, CNPA attorney saysEditor"s note: In an earlier version of this story, the Almanac incorrectly reported that former councilman Richard Merk ascribed the council's skittishness regarding below-market-rate housing to learning, 18 months ago, that Windmill School was interested in purchasing the property at 900 Portola Road, formerly Al's Nursery. In a subsequent interview, Mr. Merk did not back away from his opinion about the council's skittishness, but said that to his recollection, the council did not specifically discuss BMR housing in connection with Windmill School's interest in the nursery.
By Dave Boyce
The Portola Valley Town Council may have jumped into a briar patch on March 23. The council voted unanimously to adjourn to an urgent closed session at the end of its regular meeting so as to discuss 900 Portola Road, the former site of Al's Nursery that was sold recently.
Jim Ewert, legal counsel for the California Newspaper Publishers Association, told the Almanac that the council's actions appear to not have comported with the state's open-meeting law, the Ralph M. Brown Act.
By law, legislative bodies are allowed to go into closed session to discuss negotiations for the purchase, sale, exchange or lease of real property. As with meetings in open session, the public must be notified of the meeting's time and purpose 72 hours in advance.
To call an urgent closed session without advance notice, the regulations are much more restrictive. "An emergency closed session is very, very, very rare because the circumstances under which (it) can be held are so narrow and specific," Mr. Ewert told the Almanac.
Among the provisions in the Brown Act that cover this matter, one allows a legislative body to call an urgent closed session if three conditions are met: a majority approves of the idea, there is a need to take "immediate action," and the need arose after the posting of the regular agenda.
Mayor Ted Driscoll cited this provision as justifying the March 23 urgent closed session. Were the standards met?
"We believed there was new information that had come to our attention since the agenda had been published and that it could require immediate action, so we were legally justified in calling for that closed session," Mr. Driscoll said in an email. "After further discussion and consensus in the closed session, we concluded that it was in fact best at this time to take no action."
Urgent sessions are "in fact, rare" in Portola Valley, he added and cited a statement from the town clerk, who said that there has been only one other instance in the past 15 years.
The Brown Act requires that the council report on what happened in a closed session after the session is over. Asked for that report on the Al's Nursery matter, Mr. Driscoll said: "... I believe I can't comment except to say we took no formal action. It was intended to get the whole council up to date on an issue."
Did the Portola Valley council meet the standard for an urgent meeting that demanded "immediate action"?
It did not, Mr. Ewert said. Mr. Driscoll's statement about getting the whole council up to date on an issue "presumes or implies that no action was required but that it was an informational session," Mr. Ewert said. "If you're going to inform somebody, that's not a need for a closed session."
"They cannot interpret these sections broadly to limit the right of public access," Mr. Ewert added. "They can only interpret them narrowly. The Constitution prohibits (broad) interpretation."
What was it that interested the town in Al's Nursery? It was sold in mid-March to an "angel buyer" who stepped in and bought it from longtime owners John and Karin Wu after long-standing purchase plans by Windmill School, a private preschool, fell through, Mr. Wu said in an interview.
Since April 2010, Mr. Wu said, Windmill had been arranging the purchase as a permanent move from its current location at 4141 Alpine Road. The deal died March 15, just days before the transaction was to close. The Wus turned down the school's request for a six-month extension, Mr. Wu said.
In the summer of 2009, the town inquired about buying the property, Mr. Wu said. That conversation did not pan out, he said, after the town had the property appraised and then made an informal offer that was "way too low," Mr. Wu said.
Asked to confirm Mr. Wu's account, Mayor Driscoll called the talks "exploratory" and that the town tried to "accommodate his requests with our own budget." The Wus stipulated that they wanted to live on the property, Town Manager Angie Howard said in an email.
With the nursery property in hand, the town could have done a land swap to address part of its state mandate to provide below-market-rate (BMR) housing, former councilman Richard Merk said.
By selling two parcels in the wealthy Blue Oaks neighborhood, where BMR housing is not all that welcome but was part of the deal in creating the subdivision, the town could then have put the housing at 900 Portola Road instead, Mr. Merk said.
The town has a complicated problem in finding land for a multi-family housing: there is none now, if there were any it would follow a rezoning, and the last time such a thing was tried, a group of citizens rose up in protest.
The council in 2003 rezoned the Nathhorst Triangle, 3.6 acres near the corner of Alpine and Portola roads, to allow 15 to 20 free-standing houses, townhouses or condominiums. A group of residents angry about higher than normal housing densities and the effect on property values put a referendum on the ballot and a narrow majority reversed the zoning decision.
The will to build affordable housing is probably lacking, Mr. Merk said. "I think the council is very gun shy of those people," he added, referring to the residents behind the Nathhorst referendum.
The town pulled out of the Al's Nursery discussion because it did not want to compete with Windmill School, Mr. Driscoll said.
Mr. Wu said that since that time, he has not heard from the town. He would not reveal the actual purchase date of the property, leaving that to the new owner.
A rezoning from resident-commercial to straight commercial will be necessary if Al's Nursery becomes Windmill School — it is a distinct possibility as a lease arrangement, Mr. Wu said — but such a change is not expected to have problems in Town Hall, Mr. Driscoll said. Town Planner Tom Vlasic agreed.