Witt Warns City Council on Development Accords

City Atty. John Witt cautioned a startled San Diego City Council on Monday about rushing into special last-minute agreements with residential developers because, he said, a court might later rule that such contracts are tools to undermine two slow-growth measures on this fall’s ballot.

Witt also said that, if the council ignores his advice, his office may be unable to act as the council’s lawyer in a lawsuit, forcing the council to find other legal representation in court.

The agreements are proposed contracts between builders and the city in which the developer agrees to trade construction of schools, parks, roads and other public facilities worth millions of dollars for the guaranteed right to build several thousand homes over an extended period. The importance of such agreements is that they would allow a developer to build homes even if voters approve either of the two slow-growth plans on the ballot this November--although the number of homes allowed each year would be limited by the terms of any voter-approved measure.

15 Agreements at Issue

Specifically at issue are 15 of the so-called “development agreements,” principally for the facilities-starved and traffic-choked northern part of the city. The council will continue to discuss the proposed agreements today.

Witt said the problem is that developers disagree with the wording in the agreements as proposed by his office, and have substituted their own versions, which, Witt says, his office can’t live with.

The main stumbling block has to do with the timing of the developments and the public facilities that would have to be built by the developers, Assistant City Atty. Curtis Fitzpatrick said.

Both Fitzpatrick and Witt said that, among other things, the agreements as proposed by developers could be attacked in court as simply ways to circumvent the building caps in the two slow-growth initiatives.

“They keep bringing back a different form . . . in effect putting back all the things we don’t like,” Witt said. “We don’t see how the council can go forward without knowing what’s in them.”

Later, when pushed for a better explanation by some skeptical council members, such as Ed Struiksma and Judy McCarty, Witt replied: “There are extreme problems with this. The question is trying to beat the election, and that’s why we are here tonight.”

When pressed by Struiksma about whether his position was based on law or his own political preference regarding the slow-growth ballot measures, Witt answered: “I’ve never put politics above the law or politics above the professionalism of this office.”

Several council members such as Wes Pratt, who said he was of a mind to favorably consider some of the agreements, said that Witt’s assessment made them uncomfortable. “I’m not going to place myself at risk,” Pratt said. “I don’t mind serving (in public office) but I’m not going to serve myself into bankruptcy.”

Council Opposition

Both McCarty and Struiksma, who represent council districts that would receive much of the new housing and facilities, criticized the city attorney for taking too long to come up with agreements acceptable to both the city and developers. And both took exception to Witt’s comment that the City Council is considering the agreements only to beat the election.

Struiksma said that, as an elected official, he would be “foolish” to pass up the opportunity to move up by years the construction of needed roads, parks and other public facilities offered by the development agreements.

But Councilman Bob Filner, sounding a note of caution, said that, if the council ignores Witt’s advice and the proposed agreements can be adequately revised, the council risks giving the impression that it is rushing to accommodate developers and could thereby “severely undermine our political position and weaken our position in terms of the election.”

Jim Milch, attorney for one of the developers, told the council that, despite Witt’s “conservative opinion,” the agreements proposed by the builders were close to what the city attorney had originally drafted. He told the council that the developers will offer the council and the city “complete indemnification” if the agreements should be overthrown by a court.