Borchard Road Suit Appears Dead

Trial lawyer Ed Masry, who is running for a City Council seat, couldn’t block the extension of Borchard Road, and it now appears he and a group of neighbors and environmentalists also have hit a dead end in their efforts to sue developers for $661 million over the project.

In a decision handed down last week, the state Court of Appeal ruled Masry and his clients “do not have a probability of success” and therefore should not be able to take their case against Miller Bros. Investments to trial. Miller Bros. extended the road as part of its Dos Vientos housing project.

Masry had argued that developers and engineers lied to the city about the safety of the project, which included a 12% grade--steeper than city standards allows.

Lawyers for the developers argued that Masry’s allegations were without merit; that he had missed the statute of limitations; and that the suit was an attempt to interfere with their client’s right to free speech.

“The battle over Borchard Road has always been about politics and not the safety of the road,” said Steve Weston, a lawyer for Miller Bros. “The road is safe. It was designed safely. If you drive on that road, you wonder what all the fuss was about.”

Masry denied the suggestion he had gone forward with the case for political gain. “When I started this [in 1998], the last thing I ever thought of was to run for office,” he said. “I only decided to run for office in the late spring of this year, when [Councilwoman] Linda Parks came to me and said, ‘Ed, we need you on the council because the developers have taken over control of this city.’ ”

Masry said he is looking for a way to appeal to the California Supreme Court but acknowledged his chances there are slim. Since opposition to the project began, the Legislature changed state law in a way that provides developers with additional protections. Also, control of the road was transferred from the developers to the city after it was opened Sept. 6.

“When the city accepted the land over our strenuous objections, they wiped away my jurisdiction over these developers and left me hanging,” Masry said.

Masry said he could be on the hook for hundreds of thousands of dollars in attorneys’ fees to the developers and engineers, but an exact amount has not been set.