Taking a leak

While it may not rank up there with the outing of CIA agent Valerie Plame or the revelation that the Bush administration ordered the NSA to conduct wiretaps without warrants, the mystery of who leaked a confidential city attorney memo is deepening. This week the Enterprise-Record, the paper that took the leak, reported that the Butte County Grand Jury has contacted two Chico City Councilmembers to inquire about the leaker. The Sept. 16 memo from City Attorney Dave Frank to the seven councilmembers—it’s been posted online by the E-R—basically advises that if the council votes to not allow developer Tom Fogarty to build 80 houses on an 80-care parcel of property in the foothills east of town, Fogarty might sue, which he did in December.

A few weeks ago the E-R ran a story that suggested that because the council did not heed the advice Frank gave in that memo, the four councilmembers who voted against Fogarty’s wishes to build houses in the foothills could have opened themselves to personal lawsuits and had better hire their own attorneys. My question is: How did the E-R receive the leaked memo? Was it, as we say in the business, tossed over the transom by persons unknown? Or was it handed to reporter Ari Cohn on a dark moonless midnight on the top floor of the downtown parking structure? (Cohn told me right before deadline that he was obligated not to reveal his source until that source released him from that obligation. In theory Cohn could wind up in jail, which is usually a great career move for a reporter.) Only the seven councilmembers and the city clerk, presumably, received the memo. The memo, as posted by the ER, does not carry Frank’s initials, which is the norm. This means either that he didn’t initial it or that the copy received by the ER did not come from a councilmember.

Was the memo leaked by the liberal “anti-housing advocates” as local housing lobbyist Jim Mann calls them in a letter to the city? (Apparently those folks advocate living in caves.) Some, including E-R editor David Little, are working on the theory that someone caught wind of the Frank’s warning of possible litigation three months before the Sept. 16 memo was leaked to his paper. The theory is based on the words of some local attorneys who spoke to the council just before it voted to eliminate the 80 houses. Those attorneys, anticipating a possible Fogarty court action, said such a suit would have no merit. There is some suggestion that Friends of the Foothills, the group for whom the attorneys spoke, might sue the city if the houses were approved. And the city did receive communication from a San Francisco law firm dated June 3 that “respectfully” asked the council not to approve the houses in question. Three days later Fogarty’s own attorney, Doug Aikins, wrote a letter to the city that said, “Litigation threats, however insubstantial, in our view must be vigorously defended, in order to protect the integrity of Chico’s planning process …” In other words, the city was most likely going to get sued no matter which way the council voted. Pick your poison.

Here’s the time line: A little less than a year ago the Planning Commission approved the idea of allowing Fogarty to build up to 180 houses on the 80-acre Lot Q. Then in May, the council, considering an appeal from Friends of the Foothills, lowered that number to 80. When that decision came back in September for final approval, a majority of the council—made up of its more progressive thinkers—voted to not allow even 80 houses to be built in the hills. The property is zoned very-low density, meaning Fogarty could, in theory, have constructed up to 180 houses. But at this point there is no “specific vesting tentative subdivision map,” which would show street alignment and unit locations. It’s all still conceptual. In fact, the only parcel of Fogarty’s land that has such a map is 43-acre chunk that Fogarty sold in December to an out-of-town house building company. Aikins argues that the council violated the state Subdivision Map Act by not acting within 10 days of its May vote to lower the number of houses. But since there was no vesting subdivision map, the argument against Fogarty goes, there was no violation of state law. OK, it’s not as sexy as warrantless wiretaps or outing female CIA agents, but it’s our scandal and we plan to beat it to death. The suit is scheduled to go to trial in June.