Would-be East Orange developer reprises court claim filed in 2011
By Tina Richards
Milan Capital, the developer who lost its bid to build houses on the former Ridgeline Golf Course when a contentious five-year legal battle with East Orange residents was ultimately decided by the California Supreme Court, is back in the halls of justice again.
The developer that now hopes to develop the Sully-Miller property is resurrecting legal questions it raised in 2011 that, it says, were never resolved, and that the Supreme Court decision didn’t address. The real party of interest is Orange Citizens for Parks and Recreation, (Orange Citizens) a community group composed of Orange Park Acres and Orange residents.
The logic behind the developer’s position is so nebulous that even the Superior Court judge hearing the case was skeptical of Milan’s claims. In a Sept. 15 minute order, Judge Derek Hunt wrote, “This court finds it impossible to envision a trial on those now-obsolete questions... it hereby sets an order to show cause why it should not dismiss... Milan’s amended petition.”
The “now obsolete, amended petition,” filed in July 2011, claimed that a citizens’ referendum opposing its Ridgeline development violated the Elections Code and should be nullified. The referendum, spearheaded by Orange Citizens, challenged an amendment to the city’s general plan that would have allowed a housing project to be built on the golf course property. The citizens’ referendum asked that the general plan amendment be placed on the ballot to enable voters to decide whether it should stand or not.
It was successful, and the resulting Measure FF appeared on the November 2012 ballot. Voters rejected the general plan amendment and, thus, the housing development.
Long before that election, however, Milan attempted to nullify the referendum, claiming it did not meet the requirements of a valid petition. That July 2011 legal filing was followed by several more alleging irregularities in the referendum petition, improper circulation, misrepresentation and other Elections Code violations. In December 2011, Milan asked the court to declare the referendum invalid due to those code violations.
The legal challenge to the referendum was subsequently put aside as the combatants litigated the bigger-picture issue: Orange Citizens’ argument that the city approval of the Ridgeline development—despite the Measure FF defeat--violated state planning and zoning laws. Milan agreed to dismiss its Elections Code claims once the judgment concerning the city’s approval of the general plan amendment was final.
Winners and losers
The Superior Court found in favor of Milan and the City of Orange in July 2012 and the appellate court affirmed that decision in July 2013. Orange Citizens appealed to the State Supreme Court and were granted a hearing. The Supreme Court overturned the lower courts’ rulings in December 2016.
Milan now says it did not agree to dismiss its Elections Code violation claims. It further asserts that the Supreme Court decision referred only to land use issues, and did not address the purported Elections Code violations.
Milan is now attempting to reassert its 2011 challenge to the referendum. “In this court’s analysis,” Judge Hunt wrote, “Milan seeks relief that has been mooted by the passage of time. In that document (December 2011), it asked the court to take specific actions in respect to a specific referendum petition scheduled for November 2012 – then 11 months in the future, but today almost five years ago.”
Much ado about what thing?
In reviewing the Supreme Court decision however, Judge Hunt noted, “This court has been unable to find reference of any sort to either the Elections Code or the stipulation discussed.” Hence his order for Milan to “show cause,” that he will hear on Nov. 14. In pre-hearing briefings, Orange Citizens’ attorneys will demonstrate that Milan repeatedly agreed to the dismissal. Moreover, the Court of Appeal, in an opinion published after the Supreme Court’s decision, ruled that nothing further remained to be decided by the trial court, other than Orange Citizens’ claim for fees and costs.
It is not clear to anyone associated with the case, other than perhaps Milan’s attorneys, what the company hopes to gain from this litigation. The referendum is over, the election is over, and the Supreme Court has spoken. It ruled that the Ridgeline development was not consistent with the city’s general plan, that the document would have to be amended to allow it. The Orange City Council tried to amend the general plan five years ago and the voters rejected it.
Figuring out Milan’s game plan is, according to one long-time participant in the proceedings, “the $64,000 question.”