Councilman, City in ‘Friendly’ Suit Over Garage Site

Three years ago, after discovering that he had unwittingly built a customized carport on city property, Ventura Councilman John McWherter faced a dilemma.

Under state law, elected officials cannot enter into contracts with the cities they represent, so McWherter cannot buy the land under his carport or accept it as a gift from the city.

This left McWherter with the prospect of tearing down his garage or resigning from office--all for a clump of land that is of no use to the city and that was recently appraised at a mere $500.

Neither idea appealed to him, so the councilman came up with an original solution--he asked the city to sue him, in hopes that a judge would decide the matter.

“I asked them to sue me; it’s the only way we could do it,” McWherter said. “Then I had to countersue to give my side of the story.

“Actually, the countersuit was the other attorney’s idea,” he said, referring to the special counsel appointed by the city attorney to handle the case on behalf of the city.

“What he’s trying to do is to get an equitable resolution not by contract but through a court order, which would have the same effect as a contract,” said Alan Ashby, a spokesman for the state attorney general’s office. He would not comment on the appropriateness of such actions. “The problem arises rarely enough that there is no normal way to deal with it.”

Since neither McWherter nor the city could be properly represented through the city attorney’s office, both sides hired private firms to represent them. For the past year, the dispute has been quietly and slowly working its way through the legal process. By the time it is over, it will have cost each side about $9,000, the councilman estimates.

“The City Council is our boss,” said Assistant City Atty. Mike Dougherty, explaining why he hired outside counsel. “It isn’t appropriate that we go against them.”

The issue will be decided by a Superior Court judge in a non-jury trial scheduled to begin July 30. If he loses, McWherter said, he will tear down his $1,000 garage and park his 21-foot-long recreational vehicle on the driveway. Resigning his council seat is out of the question, McWherter said. “I’ve been there for 17 years and loved every minute of it. I’ve got two more years left and I plan to run again.”

McWherter’s problem was discovered in October, 1987, when a city crew surveying the adjacent property discovered that Mint Lane, which leads directly into McWherter’s garage, was about 12 yards north of where it should have been, according to city maps.

McWherter, who bought his three-bedroom house in 1966, thought the surveyors had made a mistake and asked for a remeasurement, which eventually showed that Mint Lane had been laid down improperly when the land was subdivided in the 1920s.

The suit, filed last September, accuses McWherter of trespassing on city property and seeks a restraining order to keep McWherter out of his garage.

“The defendants’ interference, occupancy, possession and use of the disputed property will continue, causing great and irreparable injury to the plaintiff,” the suit alleges. It also demands payments from McWherter “for damages in an amount to be determined.”

Standing at the entrance of his hillside chalet one recent day, enjoying his spectacular view of the Pacific Ocean, McWherter seemed hardly affected by the allegations against him.

“That’s how lawsuits work!” he cried, throwing up his hands, bursting into laughter. “You can’t go to court as a sham and tell the court ‘we’re buddies.’

“Besides, the suit didn’t say how much the damages are worth, did they? That’s because the damages are zero!”

Dougherty seems to agree. “We’re trying to work it out so the public is protected and Mr. McWherter is protected,” he said.

McWherter’s countersuit asks the city to deed the land to his name or place it in a trust until he retires from the council and seeks payment of his attorney’s fees.

Not surprisingly, the councilman is anything but troubled by the thought of suing the city he serves. “This is a friendly lawsuit,” he said. “The lawsuits say a lot of things, but what really matters are the memos the attorneys exchange.”

Meanwhile, the legal proceedings continue at a less than hectic pace. A court-mandated settlement hearing scheduled for April 19 was postponed indefinitely. That is because the attorney for the city could not fit it in his schedule, McWherter said.

“The attorneys don’t work long hours on this case,” he said. “That’s why it’s taking so long.”

Moreover, there is no point to the settlement hearing because both McWherter and Dougherty confirmed that no settlement will be reached because it is illegal for the parties to enter an agreement.

“Nobody understands why we have to go through this,” McWherter said. “The only reason I’m in this predicament is because the city built the road in the wrong place.”