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May 16, 2005
Court asked to nip San Jose's Strong Neighborhood Initiative
Silicon Valley/San Jose Business Journal
San Jose's wide-ranging Strong Neighborhoods Initiative continues to face legal challenge, this time from the San Jose attorneys who last month beat the city in a separate but related case, forcing it to relinquish redevelopment control over 31 downtown acres.
In a 22-page argument delivered May 6, San Jose attorneys William Brooks and Virginia Hess of Brooks & Hess P.C. are asking the California Supreme Court to overturn superior court and appellate court decisions against Elaine Evans.
Ms. Evans seeks to prevent the San Jose Redevelopment Agency from including in the Strong Neighborhoods' project area her roughly 8,000 square foot parcel and neighboring 21-unit apartment complex at Saint James and North Third streets.
The RDA has no specific plans for her site, Ms. Evans says and RDA staff confirm.
The lower courts' decisions largely turn on the city's argument that Ms. Evans failed to "exhaust" her "administrative remedies" by complaining loudly enough and specifically enough during public hearings before the San Jose City Council or in letters to the city before the project area was established.
The stakes in the case are large. If the court were to deny the San Jose Redevelopment Agency jurisdiction, it would have to give up its control over more than 10,000 acres -- about a tenth of San Jose's land mass -- and would not be allowed to spend money or collect taxes in the region.
The RDA has begun spending $69 million earmarked for the roughly two dozen neighborhoods covered by the initiative; it has plans to spend $120 million total.
Ms. Evans says the legal fight, which has cost her more than $100,000, has put her in the poor house. Indeed, in an odd bit of irony, she says if her financial situation doesn't improve, she may be forced to sell the apartment complex at the center of her dispute.
Ms. Evans says she has pursued the fight because she believes that her property rights are slowly but surely evaporating. The Strong Neighborhoods Initiative and the threat of losing her holdings to the RDA's power of eminent domain struck her as the final assault against which she had no choice but to react.
So strongly has she felt about the principles in the case that she rejected an offer from the city of San Jose about a year ago to relinquish its powers of eminent domain over her property if she would drop the suit, she says. There have been no other settlement offers since then.
"What I'm really disappointed about is that more people don't see that the city and the RDA haven't met the (state's) requirements to establish blight. I do not think we have prevalent blight in a tenth of San Jose's geographic area," she says.
Under state law, for the RDA to establish a project area, it must show that a region suffers from blight that is so pervasive and entrenched that it cannot be remedied by the private sector alone. The law lays out conditions that must be met to prove physical and economic blight exist.
The city has not yet received a copy of the document and cannot comment, says Nora Frimann, chief trial attorney in the city attorney's office.
Ms. Evans, through her attorneys, argues that a last-minute change to the downtown boundaries of the SNI project area allowed the city to exclude from its formal deliberations about SNI a nearly 50-page letter that challenged the lawfulness of a blight study completed by consultant Keyser Marston Associates of San Francisco on the city's behalf.
That letter, were the court to allow its inclusion as part of the administrative record in the SNI proceedings, would preserve Ms. Evans' right to challenge the city's actions in court, her lawyers argue. Without it, Ms. Evans' remedies through the courts are limited.
In particular, the letter would maintain her right to question the thoroughness of the Keyser Marston study. That study is crucial because it is the basis by which the city established the all-important blight finding for the Strong Neighborhoods' district.
Mr. Brooks and Ms. Hess' legal success in the related case, which involves the so-called Mitchell block and 27 surrounding acres downtown, turned on what Santa Clara County Superior Court Judge Joseph Huber ruled was the inadequacy of the Keyser Marston study in that case.
His ruling determined that Keyser Marston had not established blight, therefore undermining the legal rationale for making the 31 acres a redevelopment project area. The consultant used much the same methodology in its study of the Strong Neighborhoods project area, Mr. Brooks says.
Judge Huber, who initially issued a tentative decision in the Mitchell case, has now issued a final one. Ms. Frimann says that no resolution has been reached by the city whether to appeal.
The Supreme Court's decision whether to take the case likely won't be known before June or July, Mr. Brooks says.Posted by Coalition Webbies at May 16, 2005 06:19 PM