Lawsuit aims to revoke entitlements for 30 condos on downtown hotel site
By Mark Nielsen, former San Juan Capistrano City Councilman
In the wee hours of the morning in mid-November of 2014, a majority of the City Council who had just lost their re-election voted to approve a hotel and 30 three-story condos next to our Historic Town Center Park. The San Juan Capistrano General Plan, the constitution for development in the city, does not allow housing downtown, and the proposal to build condos directly adjacent to the park threatened the character of our town center. The city’s approval of this project came despite the city staff, city attorney and an independent attorney hired by the city telling the Council the approval conflicted with our General Plan. The developer had told the city that they could only build the hotel if they had 30 condos to make the project financially feasible. Urban Village threatened to continue suing the city for an illegal taking unless the City Council approved the project.
In an even more outrageous action, the Council approval was of a resolution that was written by the Urban Village attorneys (instead of city staff), crafted so it wouldn’t be a “legislative action” and thus avoid any threatened referendum. I consulted the attorneys I used for two previous successful referendums we ran to protect our open space, and they agreed a referendum would probably be overturned by the court. They counseled that a lawsuit be filed instead. Our public interest group, Save Our Historic Town Center, sued the city, developer and landowner to force a reversal of the 30 condo and hotel project. Former Mayor Ken Friess and former Council candidate and current Planning Commissioner Rob Williams joined me as plaintiffs since we all opposed the 30 condo project.
As predicted, when others ran a referendum to stop the project, it resulted in Urban Village filing a lawsuit against the city claiming the referendum was illegal. The court ruled as such a couple months ago, while it put our lawsuit on hold pending the referendum case. The irony is that our lawsuit is now a major barrier to Urban Village collecting any damages from the city since if we win, there cannot be damages for a project that never was properly approved.
After our lawsuit was filed, a hotel-only project was put forward without any of the condos. Miraculously, that hotel without condos became financially feasible where previously it was not. Now, landowner Steve Oedekerk is asking the city to approve his hotel-only project. I support building a hotel on this site. I originally urged him to pursue a hotel without condos, as I thought two downtown hotels would benefit our city. I still believe that and see no reason for people to support one hotel over the other since the Marriott by the Mission and Kimpton by our historic park will enhance our community if done right.
However, we have this little problem that the court ruling on the referendum means the original entitlements approved by the City Council in the wee hours with 30 condos could remain in place unless our lawsuit is successful. If Mr. Oedekerk has truly abandoned that old 30 condo project, why not just settle our case so it doesn’t appear he is trying to keep the right to build 30 condos? And now Urban Village is suing the city for not “cooperating” with them in defending the illegal hotel/condo project. I guess Urban Village’s attorney thinks he is going to lose our lawsuit and thus lose any payout by SJC taxpayers on his referendum case. So now he has to find another method to extract money from SJC taxpayers.
How about we focus on getting the Kimpton project properly approved through the process (while avoiding more lawsuits on either hotel) so we increase city revenue sooner? Let’s call off the dogs who are trying to decrease city revenue for a failed attempt to bypass the General Plan, our city’s constitution.
Mark Nielsen is a local business executive and resident of San Juan for over 25 years. He served on the City Council from 2006 to 2010 and was mayor in 2009. He also chaired the city’s Open Space Committee.