Orange Land-Grab: Developer’s dirty tricks are illegal. UPDATE: Enough referendum sigs collected!!!

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You may have heard, if you’ve been following what we call the “Land Grab” in the City of Orange and the citizen referendum against it, of one of the favored tactics the developer, John Martin’s Ridgeline group, has been using to fight back against Orange’s citizens – circulating a fraudulent, toothless petition which attempts to deceive the signer into thinking they are signing the real deal.  And you may have thought to yourself, “Why, that sounds like a dirty trick.”

Turns out, as you’ll see in the elections code referenced in the letter below, that it is also a misdemeanor punishable by fines and/or prison time.  And now our dear Secretary of State is aware of Martin’s shenanigans, and Martin is on notice as well.  From today’s Orange Juice inbox:

August 9, 2011

Via E-Mail and U.S. Mail

Debra Bowen
Secretary of State
1500 11th Street
Sacramento, CA 95814
secretary.bowen@sos.ca.gov

Re:  Fraudulent Petition Currently Circulating in Orange, CA

Dear Secretary Bowen:

This firm represents the Orange Citizens For Parks and Recreation (“OCFPR”) on referendum matters related to the Ridgeline Equestrian Estates project (“Project”), located in the City of Orange.  OCFPR is currently circulating two referendum petitions in the City of Orange, opposing development approvals granted to the Project.  However, OCFPR members and petition circulators have found that the Project developer, Milan REI IV, LLC (“Milan”), is circulating a fraudulent petition that is designed to confuse voters and deter them from supporting the legitimate petitions.  OCFPR has only until August 11, 2011 to submit signatures on its legitimate petitions, and so it is urgently concerned that the developer’s actions—which appear to violate criminal provisions of the Elections Code—will prevent it from completing its constitutionally protected task.  As a result, OCFPR asks that you immediately investigate these illegal activities.

Factual Background

The Project will develop the site of the former Ridgeline Country Club, including a golf course, tennis court, and swimming pool, into a residential subdivision.  The Project has generated significant controversy in the community, centered on the Project’s elimination of recreational activities without assuring sufficient dedication of open space.  Nonetheless, and in the face of specific objections, the City Council approved an amendment to the General Plan on June 14, 2011, and a zone change and development agreement on July 12, 2011.

In response, OCFPR sponsored referendum petitions protesting each of the City Council’s approvals.  On July 12, 2011, OCFPR submitted 11,865 signatures—more than 4,700 in excess of those needed to qualify for filing—to the City Clerk to challenge the Council’s adoption of the General Plan amendment.  On August 2, 2011, the City Clerk notified OCFPR that this petition qualified.

OCFPR is now in the final few days of gathering signatures for its referendum petitions challenging the zone change and development agreement, both of which are attached to this letter (without exhibits).  The signatures on these two petitions are due on August 11, 2011.

The developer’s fraudulent petition, which is also attached, does not challenge any real act by the City Council, as required for a legitimate referendum petition.  Instead, it misleadingly suggests that it supports saving parks and open space in the City of Orange.  Thus, it appears that the developer is circulating this petition to confuse voters and dissuade them from signing OCFPR’s legitimate petitions.

Elections Code Violations

Three provisions of the Elections Code would appear to prohibit—and make it a misdemeanor to engage in—the kind of misleading behavior evidenced by the fraudulent petition.  Section 18600 makes it a misdemeanor to circulate or direct the circulation of a petition, the circulators of which “intentionally misrepresent[] or intentionally make[] any false statement concerning the contents, purport or effect of the petition to any person who signs, or who desires to sign, or who is requested to sign, or who makes inquiries with reference to it, or to whom it is presented for his or her signature.”  Thus, both circulators and those who hire them are guilty of a misdemeanor based on circulation of a fraudulent petition that circulators represent as a legitimate petition that seeks to protect the Ridgeline property as open space.

Section 18620 provides fines or prison time for anyone who “seeks . . . or obtains” payment for “fraudulently inducing, persuading, or seeking” to induce the proponent of a referendum to (a) abandon the petition, (b) fail to file it within the time required, (c) stop circulating it, or (d) “perform any act that will prevent” the referendum from qualifying.  By circulating the fraudulent petition, the developer is seeking to impede collection of signatures for the legitimate petition and, by extension, is seeking to prevent OCFPR from filing the two legitimate petitions now out for circulation in the time required.  They are due on August 11, and OCFPR’s circulators are encountering voters who are confused and refuse to sign any more petitions after being presented with the fraudulent petition.

Section 18650 makes it a misdemeanor “to permit” the signatures and related information provided when signing a petition from being “used for any purpose other than qualification of the initiative or referendum measure or recall question for the ballot.”   It thus prohibits the use of petitions for anything other than qualifying the described initiative or referendum, including to confuse voters and deter them from signing a competing, legitimate petition.

Request for Relief

OCFPR obtained a copy of the fraudulent petition only last week, and then immediately notified the City Attorney, the Orange Police, and the Orange County District Attorney.  The City Attorney informs us that the City lacks the authority to prosecute criminal violations of the Elections Code.  In the absence of investigation or enforcement action by any of these authorities, OCFPR now asks you to step in to protect its constitutional right of  referendum.

Milan’s agent and applicant for the Project is John Martin.  The development agreement for the Ridgeline project requests that notices be sent to:

Milan REI IV, LLC

10632 S. Meads Avenue

Orange, CA 92869

Facsimile: (714) 288-9407

Attention: John Martin

Our clients have only until August 11 to submit the signatures on their legitimate petitions.  Thank you for your prompt consideration of this matter.

Very truly yours,
SHUTE, MIHALY & WEINBERGER LLP
Rachel B. Hooper

UPDATE:  Great News, Enough Signatures Gathered!

COMMUNITY GROUP GATHERS SUFFICIENT SIGNATURES TO SUBMIT TO CITY CLERK FOR REFERENDA AGAINST RIDGELINE DEVELOPMENT IN CITY OF ORANGE

Orange Citizens for Parks and Recreation collected more than 9,000 signatures on each of two petitions aimed at reversing City Council approval of the controversial housing development

City of Orange – Late this afternoon the Orange Citizens for Parks and Recreation (OCFPR) submitted signatures to the City Clerk of the City of Orange to qualify public referenda of a controversial development project in the City of Orange. The signatures gathered are aimed at stopping the Ridgeline Equestrian Estates housing project from moving forward in the City. The community group challenges the City Council’s two latest approvals for the project.

At least 7,144 signatures must be validated by the City’s elections official to place the issues before the voters. OCFPR submitted more than 9,000 signatures for each referendum, leaving organizers hopeful that both issues will qualify.  If the referenda qualify, the City Council must choose either (1) to rescind the approvals, or (2) to put them to a vote of the people at an upcoming election.

“Orange is greatly lacking in public open and recreational space,” said Kelly Carlberg, a member of OCFPR and a key organizer of the referendum petitions. “The people who live here value open space, and they don’t want to see the City’s limited recreational areas lost. The City Council had a chance to side with local residents instead of developers who contributed heavily to their campaigns, but they chose the developers. In the face of the Council ignoring the will of their constituents, the voters are banding together in order to stop the project.”

Orange City Council members have now passed a total of three enactments to allow the Ridgeline project. The first enactment, a General Plan Amendment, was approved by the City Council on June 14^th. OCFPR  immediately launched a referendum campaign to challenge this action, and the City’s elections official has already certified that sufficient signatures were submitted to qualify it. The City Council has yet to decide whether to rescind the General Plan Amendment or to submit it to a vote of the people.

On July 12, the City Council gave final approval to two further enactments needed for the development: an amendment to the City’s Zoning Code and a Development Agreement. The Development Agreement spells out the specific terms of the Ridgeline Equestrian Estates project.

California law grants citizens up to 30 days after a legislative enactment is attested by the City Clerk, to gather signatures on a referendum petition challenging the enactment. Today was the deadline for opponents to the Ridgeline Project to submit signatures to qualify their referenda on the Zoning Amendment and the Development Agreement.

A spokesperson for the developer recently admitted to the Orange County Register that they were circulating a petition within the City of Orange at the same time OCFPR was gathering signatures for these referenda. The spokesperson confirmed that the developer’s petition was never intended to be submitted to the Registrar or any official body. This admission reinforced concerns within OCFPR that the developer was attempting to confuse the public and thwart the legitimate signature collection effort by circulating its competing petition.

An official complaint against the developer has been filed with California Secretary of State Deborah Bowen, requesting an investigation to determine if such activities violate state criminal laws protecting the right of referendum.

“Our community is shocked by the disingenuous tactics used by the proponents of the Ridgeline development throughout this process,” said Tom Davidson, a representative of OCFPR. “These tactics designed to confuse voters reveal how little regard these developers have for Orange residents. Clearly, investors in this project care only about maximizing profits, rather than creating a balanced project that would promote public access to open space and recreation.”

“The City Council should do the right thing and send the developer back to the drawing board,” continued Mr. Carlberg. “When a group of volunteers succeeds in gathering this many signatures in such a short period, it’s a sign that there is real concern throughout our community about this deal.”

About Orange Citizens for Parks and Recreation

OCFPR is a broad-based bipartisan coalition with members from all parts of Orange. The group’s central goal is to protect recreational open space within the City. For more information, see www.Orange-Needs-Parks.org.