MEETING DATE:
DECEMBER 9, 2014
SUBJECT:
Title
SETTLEMENT OF CEQA PETITION FOR WRIT OF MANDATE, SDSC CASE NO. 37-2013-00076859-CU-WM-NC (Cell No, et al. v. City, et. al)
Body
Recommendation
Recommendation
APPROVE proposed settlement of San Diego Superior Court Case No. 37-2013-00076859-CU-WM-NC, Cell No, an unincorporated association, and Elliot Herman, Petitioners vs. the City of San Marcos and New Singular Wireless PCS, LLC, Respondents, and AT&T Mobility, LLC as Real Party in Interest ("the Action").
Body
Relevant Council Strategic Theme
Not applicable
Relevant Department Goal
Not applicable
Introduction
In September of 2013, the Planning Commission approved a Conditional Use Permit and adopted a Mitigated Negative Declaration for a project consisting of an AT&T wireless telecommunications facility at 2080 Golden Eagle Trail in San Marcos ("the Approvals"). Petitioners appealed the Approvals to the City Council, which denied the appeal in October of 2014. Petitioners initiated the Action on November 22, 2013. Since that date, Petitioners and AT&T have engaged in settlement discussions, and have reached agreement upon the terms and conditions for dismissal of the Action in the draft document entitled Settlement Agreement and Release ("Settlement Agreement"), a copy of which is attached.
Discussion
Petitioners and AT&T have presented the Settlement Agreement to the City for its approval. It contains no obligations to be performed by the City, but does recognize the City's existing role as the entity which processes land use entitlements and associated approvals within its boundaries. With respect to the project represented by the Approvals, the City's discretion is not affected by the terms and provisions of the Settlement Agreement. Despite the fact that there are no obligations imposed on the City by the Settlement Agreement, the other parties wish to include the City in the mutual release and discharge of any and all claims relating to the events discussed and described in the Action.
The effect of City approval of the Settlement Agreement would be that it joins the other parties in waiving and releasing any and all claims or causes of action against the other parties arising from or relating to the Action and Approvals, whether known or unknown, other than for a breach of the Settlement Agreement.
As there are no obligations for the City to perform, and as the fees and costs incurred by the City have been or will be borne by AT&T pursuant to the indemnification and hold harmless provisions of the Approvals, staff recommends that the City Council authorize the City Manager and the City Attorney's Office to execute the finalized Settlement Agreement on behalf of the City, provided the terms and provisions are substantively those set forth in the proposed Settlement Agreement with respect to City rights and obligations.
A formal resolution of approval is not needed; City Council authorization can be documented through the minutes of this proceeding. All that is needed is approval of this consent calendar item.
Fiscal Impact
As noted above, there are no financial or other affirmative obligations to be undertaken by the City under the terms of the Settlement Agreement, and City's fees and costs in the matter have been or will be borne by AT&T.
Attachment(s)
Proposed Settlement Agreement and Release
Prepared by: Helen Holmes Peak, City Attorney
Reviewed by: Jack Griffin, City Manager