Viewpoint - July 28, 2010

Editorial: Anonymous plaintiffs in lawsuit get their way

It may have been legal, but that didn't make Menlo Park City Council members feel any better about approving a deal last week with a mostly anonymous group that will substantially alter the design of the recently approved office and retail project at 1300 El Camino Real.

Using the state's private attorney general statute, the "Concerned Citizens of Menlo Park" sued the city and the developer, challenging the project's environmental impact review, which the city approved last year. The individual plaintiffs were not named, although one name emerged July 15 after a tentative settlement was reached. Such lawsuits are perfectly legal, and are designed to give cover to groups of private individuals who fear retribution if they challenge large projects.

Nevertheless, we wholeheartedly agree with Mayor Rich Cline, who said: "It sets a real wicked precedent. If I had my druthers, I would get in the ring" and fight the lawsuit, even though he said he felt compelled to support his colleagues, as well as the developer, and approve the deal.

The reason: Before last week's vote, developer representative Jeff Warmoth told the council his company had agreed to settle the case, scaling back the size of a planned grocery store at the site and paying $38,000 to the plaintiff's attorneys. He urged the council members to agree. Without the city's approval, the project would have faced even more delays while litigation continued.

The man who was finally named two weeks ago as a member of the plaintiffs' group is Tony Alexander of San Jose, the political director of the San Jose-based United Food and Commercial Workers Union, whose members apparently did not want a non-union grocery store at 1300 El Camino, the site of a former Cadillac dealership. In the settlement, Mr. Warmoth's company agreed to reduce the size of any grocery store from 51,000 to 32,000 square feet, and restrict the sale of food items by other tenants and the use of an automated checkout for alcoholic beverages.

Beyond whether these changes will be beneficial for the citizens of Menlo Park, the council and other city officials should be concerned about special interest groups using this statute to change the design of other projects after final city review. In our opinion, there was no reason for the Concerned Citizens of Menlo Park to operate in secret. Mr. Alexander and the others did not need anonymity. They should have testified before the Planning Commission and City Council like everyone else, and if they were not satisfied, challenged the EIR in a public court case.

What if a similar — after-approval — challenge was filed against the hotly contested environmental review of the Menlo Gateway project, before it was decided to give voters the final say, or the sure-to-be-controversial decision that could rezone much of El Camino Real and the downtown area?

In this case, the developer apparently was willing, though not happily, to accept demands from the anonymous challengers that could seriously damage the viability of the project, which had the full approval of the City Council and Planning Commission. Litigators may look on these tactics as perfectly acceptable, but we see what could be a dangerous precedent that gives special interest groups a way to make an end run around a city's regulatory processes.

As Mr. Cline said, "It sets a real wicked precedent."


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