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New Lawsuits in C.V. Dispute

Voting Rights Act violation among allegations raised by plaintiffs



By LAITH AGHA
Herald Staff Writer
Posted: 02/02/2009 01:31:35 AM PST

After running the gauntlet of lawsuits, deferred decision-making and heated diatribes among rivals on its nine-year journey to getting on the ballot, Carmel Valley incorporation has hit another snag.

Franklin Lunding, a Carmel Valley resident and outspoken opponent of the proposed town, has filed two lawsuits against local government agencies.

And the same Southern California law firm representing Lunding in those suits has sent a letter to the U.S. Department of Justice seeking to block the incorporation process on grounds that the proposed town would violate the Voting Rights Act.

In one of the lawsuits, Lunding says the Board of Supervisors' approval of putting incorporation to a public vote was based on a flawed fiscal analysis of the proposed town's viability. In the other lawsuit, Lunding says the Local Agency Formation Commission wrongfully dismissed the California Environmental Quality Act when it approved the incorporation ballot.

"If they proceed ahead and an election is held, sooner or later the taxpayers of Monterey County will have to pick up the problems," Lunding said. Or there will need to be more development in Carmel Valley to generate more tax revenue, Lunding said. That would go against the motive for incorporating, which is primarily to grab local control to limit growth, he said.

The commission, which in December approved putting incorporation on the ballot, settled on a boundary of the proposed town that excludes Tehama, Clint Eastwood's luxury community that can be entered from Carmel Valley Road.

Lunding, who was against the proposed town before the final map was drawn, said excluding Tehama was a major blow to the proposed town's fiscal viability.

Lunding is founder and president of Planning 2020 Inc., a group he said is involved in planning issues throughout the state. Protect Carmel Valley is a new group headed by David Churchill, a Carmel Valley resident and attorney in Monterey, Lunding said.

Two battles

The Carmel Valley Forum, the nonprofit organization that has worked to get incorporation on the ballot, is named as a defendant in both lawsuits. Planning 2020 Inc., is listed as a plaintiff in both cases, and Protect Carmel Valley is listed as a plaintiff in the suit against LAFCO.

Supporters of the incorporation movement say the lawsuits are a last ditch effort by opponents to derail the process that was approved for a public vote nearly nine years after it began.

"Mr. Lunding is afraid of the vote," said Michael Stamp, attorney for the Forum. "He is afraid to let the people of Carmel Valley decide for themselves. He is throwing everything he can, including the kitchen sink, in order to stop it."

While creation of a town is the central matter being contended, the two sides have generally been fighting two battles. Opponents have routinely argued against the viability of the town, while proponents have pushed for the right to vote on the matter.

A long process

"They seem to be pulling out all the stops and are willing to use any and all legal means," said Mike McMillan, the Forum's secretary. "Whoever is behind it is very concerned because they are willing to spend tens or hundreds of thousands of dollars to slow, delay or kill the whole process."
LAFCO commissioners have discussed the lawsuit in a closed-door session. Salinas Mayor Dennis Donohue, LAFCO's chairman, said he was not surprised by the court action.

Since a small group of Carmel Valley residents first met in 2000 to discuss incorporation, getting the issue to the ballot has been an arduous process.

After determining in late 2005 that an environmental review was not necessary, LAFCO appeared to be on the verge of approving the incorporation vote in October 2006. Instead the commission ordered the forum to produce an environmental impact report, which would have cost the group more than $300,000.

Ruling reversed

The Carmel Valley Forum answered by filing suit against the commission. A May 2008 court ruling determined that the commission's request was unsubstantiated, and included a mandate that the commission decide by December 1 whether to allow incorporation to be voted on by Carmel Valley residents.

The commission voted 6 to 1 in favor of placing it on the ballot, possibly by November.
Orange County attorney John Ramirez is representing the plaintiffs in both cases. Ramirez, who did not return a message from The Herald on Friday, also sent a letter last week to the Department of Justice on behalf of three people, saying "each of whom is a Latino resident of Monterey County who is opposed to the proposed incorporation of the Town of Carmel Valley."

Monterey is one of four counties in California determined to have a history of discriminatory voting practices. Any jurisdiction with this distinction must receive pre-clearance from the federal government for any proposed changes to voting procedure.

Revenue neutral

According to the letter, "the effect of the proposed incorporation will be to carve a wealthy white, English-speaking enclave out of a county in which a majority of residents are currently Latino."
This would shift political power from the county's minority residents to white residents of the proposed town, because Carmel Valley residents "would have control over a significant amount of tax revenue which is currently under the control of the county."

The letter also states that the proposed town would strip the county's Latino population of its influence over land issues in Carmel Valley.

Before LAFCO approved incorporation for a vote, it negotiated a revenue neutrality agreement with proponents to offset monetary losses the county would incur if Carmel Valley's 12,000 residents and its businesses incorporate.

While the lawsuits question the town's fiscal viability, Monterey County Counsel Charles McKee said LAFCO and the supervisors allowed incorporation to proceed to the ballot with the county financial interests considered.

The county's "obligation is to make sure that if an incorporation occurs, it is revenue neutral to the county, at the same time not allowing to move forward a town that is not financially viable," McKee said. "That wouldn't be in anyone's interest."

Laith Agha can be reached at 646-4358 or lagha@montereyherald.com.



Last Updated: Feb 03, 09

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