Poway’s city attorney is advising City Council members and June 8 recall election candidates not to express opinions on the proposed expansion of the city’s Walmart store.

Lisa A. Foster is also recommending that council members not meet with individuals regarding the land-use matter.

“In order to safeguard the City Council’s ultimate decision in a controversial land use matter from due process challenges,” Foster wrote in a memo this week, “it is recommended that City Councilmembers avoid meeting with interested parties prior to the public hearing, avoid committing to a decision prior to the public hearing, and provide all documents and other evidence that they receive to the City Clerk so that it can be made part of the record for the public hearing.

“Additionally, it should be noted that in an election year, City Council candidates who take a strong public position regarding a particular land use matter are at risk for being disqualified from participating in that matter if elected to the City Council,” Foster wrote.

The memo, requested by City Manager Penny Riley, was e-mailed Wednesday to council members and declared council candidates.

In recent months members of “NO-WE,” a citizens’ group in opposition to the proposed expansion, have appeared at council meetings and have expressed displeasure that city leaders have not expressed their preliminary opinions on the plans. The group last fall met with council members Jim Cunningham and Betty Rexford and reportedly invited other council members to participate in one-on-one meetings. Those invitations were turned down at Foster’s suggestion.

The leader of the “NO-WE” group, Dave Grosch, has taken out papers to run as a June 8 replacement candidate in the event voters recall Councilwoman Betty Rexford from office.

Late Wednesday, Grosch said "The last I heard we live in a representative Democracy – that should mean that people who run for public office express their views on various subjects and you vote the person who best represents your opinion.    It makes no sense to exclude an elected representative from any vote solely because he expressed his opinion on an issue when running for office." Grosh added he will be a June 8 candidate.
 
Howard Collins, another potential candidate, was an outspoken critic of the expansion during the November 2008 election, when he ran unsuccessfully for a council seat.

A third candidate, Roger Willoughby, has said he opposes the expansion. He said he is willing to read the a city-commissioned environmental impact report once it is published, but doubts that his position will change, especially since Walmart is paying for the report. On Friday Willoughby said he felt that council candidates were not decision-makers and should not be restricted from commenting on land-use issues.

The draft of the EIR is tentatively scheduled to be ready for public review in early April. There will be a state-required public meeting on the document in early May before a final report is released in late-June. A public hearing before the City Council is tentatively planned for mid-July.

Foster’s six-page memo cites a number of legal cases regarding due process and an applicant’s rights to be able to review and comment on all evidence collected in land use matters such as the proposed expansion.

“The WalMart expansion decision is a quasi-judicial decision involving an applicant with due process rights, because it involves City Council approval of a revision to WalMart’s existing Development Review,” Foster wrote.

Foster’s memo points out that the state attorney general’s office has taken a differing view on such matters, noting that a 1995 opinion concluded that a city council member in another city could vote on a land use item even though he had earlier signed a petition in opposition to the matter.

“This opinion illustrates the fine line that exists between conduct that will be deemed to present an ‘unacceptable probability of bias,’ and conduct that does not, she wrote. “ ... Therefore, it is best to avoid the appearance of bias and the risk of a challenge by  remaining neutral regarding the matter until all of the evidence has been presented.”

Mayor Don Higginson on Wednesday said Foster’s opinion is very similar to “for or five” opinions he has seen over the past 20 years. He said he has a long-standing policy against meeting with proponents or opponents of an issue prior to a public hearing.

Deputy Mayor Carl Kruse said he felt the memo “is in response to the pressures we have been getting” by expansion opponents to make public statements.

“They seem to constantly want us to make a decision without any supporting data,” Kruse said. “It’s all about due process. You’ve got to give everyone fair treatment.”