Mountain View's city attorney and the California Fair Political Practices Commission are busy hashing out whether council member John Inks can vote on developer Merlone Geier's controversial redevelopment proposal for San Antonio shopping center.
Inks has been recusing himself from participating in meetings on the project over the last few years because he owns property nearby, but a last-minute technical change proposed by the developer could allow him to be a swing vote in favor of the project, if the FPPC and the city attorney give it the green light.
The potential last-minute change is an unpleasant surprise for opponents of the project. Inks' recusals have left the council deadlocked 3-3 on several occasions regarding design issues with the project.
Inks is well-known for his libertarian views. Over the years he has often voted to approve other development projects as they are proposed, and has consistently opposed requiring public benefits and special agreements from developers.
In this case, it could include requiring that Merlone Geier lease parking spaces to the Milk Pail Market. According to a city staff report released last Thursday, staff members were preparing a condition of approval regarding parking for the Milk Pail that wasn't yet complete. Requiring some sort of accommodation for the Milk Pail's lack of parking would represent a complete change in direction for city staff.
At the heart of whether Inks can vote on the project is a state law that prohibits council members from voting on projects within 500 feet of property they own. The idea is that a council member could become biased because such a project could have a financial impact, for instance if improvements to the neighborhood increase nearby property values.
Inks has not been recusing himself from meetings because he lives within 500 feet of the Merlone Geier project at 405 San Antonio Road -- his Showers Drive condo is more than 500 feet away. It is because he lives within 500 feet of the larger "precise plan" for the San Antonio area, of which the project has been an integral part. The last-minute change proposed by Merlone Geier would remove the project from the San Antonio precise plan. If council approves the change, Inks might then be able to participate.
Inks' potential participation is a concern to Mountain View resident Serge Bonte, who has been following Inks' potential participation closely. It's also being closely watched by members of the Campaign for a Balanced Mountain View, who promise a referendum if the project is approved ahead of the San Antonio precise plan, due for completion in December.
"I'm no zoning expert but from the outside, the only material difference in zoning is that John Inks takes part in the decision," Bonte said of removing the project from the precise plan. "And given his well-publicized libertarian views, it's very clear which way he will vote... and the developer has worked long enough with Mountain View to know that."
In a letter requesting the advisement of the FPPC obtained by the Voice, City Attorney Jannie Quinn has laid out a case for allowing Inks to vote to remove the project from the precise plan and to then be able to vote on the project itself. It appears that his participation hinges on the FPPC's response, which may not be available until Tuesday, Quinn said in an email.
In May, Inks outlined his view in an email.
"I recuse myself (from) items related to the San Antonio Precise Plan because I own property within 500 feet of the Precise Plan area (the whole center)." Inks said. "However, I'm not recused from projects within the Precise Plan area more than 500 feet from my property. If a project involves a Precise Plan change or precise plan land use action that applies to the entire center, I'm recused. If there was a project on the Buck property (Kohl's), I'm recused because that is within 500 feet of 49 Showers Drive ... However, for project study sessions such as Placemaking for Phase II (more than 500 feet away) or project design (more than 500 feet away and not involving precise plan policy), there is no conflict under state laws so I participate in those meetings."
Bonte says the switch appears to violate "sound policies" to prevent the appearance of a conflict of interest.
"Since nothing and nobody moved prior to Council Member Ink's volte-face, I fail to understand how that appearance might have changed," Bonte said.
Update: City attorney Jannie Quinn says the FPPC changed its rules in May regarding conflicts of interest and property ownership. An April 7 memo indicates that the FPPC found the 500 foot rule "overly simplistic" and the changed ordinance appears to have modified the rule and made it more complex, hence the need for the city attorney to seek the FPPC's advice in the matter.
Quinn said in an email that "the FPPC is the authority on conflict of interest regulations. While a City Attorney is often asked for advice, the council members may not rely on the advice of the City Attorney."