The matter of an incorrectly drawn elevation line on El Toro
Mountain that caused grief last summer to the City Council,
developer Howard Vierra, attorney Bruce Tichinin and neighbors who
live on West Main Avenue will return to the council. Unable to
decide whether the original or a later corrected line would guide
how many houses Vierra could build on 4.5 acres on the lower slopes
of the town landmark, the council asked the courts for a
judgment.
The matter of an incorrectly drawn elevation line on El Toro Mountain that caused grief last summer to the City Council, developer Howard Vierra, attorney Bruce Tichinin and neighbors who live on West Main Avenue will return to the council.
Unable to decide whether the original or a later corrected line would guide how many houses Vierra could build on 4.5 acres on the lower slopes of the town landmark, the council asked the courts for a judgment.
But before the scheduled 2pm Thursday court date, William McClure, the city’s attorney for this case, tendered the council’s offer to hold another public hearing on Vierra’s original appeal, this time with legal advice from attorneys unconnected with City Attorney Helene Leichter.
Tichinin and Vierra agreed to accept the offer.
“I’m pleased that the city recognizes that it was unfair to Mr. Vierra and will be correcting that failing,” Tichinin said.
Leichter had first advised following the updated line, then changed her advice, Tichinin said, a position that he and Vierra held would make the West Main development almost impossible, causing Vierra a significant potential loss in income. He had asked to build five houses, in addition to one already there.
The council was further advised by McClure’s firm, Jorgenson, Siegel, McClure & Flegel, for which Leichter worked before she was hired in 2000 as city attorney.
McClure said the reason the case was not settled before Tuesday was that the rules of engagement changed abruptly.
“At 5pm Wednesday, Bruce Tichinin faxed the claim that they didn’t get a fair hearing to the city,” McClure said. “I got the papers at 9am Thursday (the morning of the trial).”
In previous pleadings, McClure said, Tichinin and Vierra had said they would not raise the fairness issue.
When they changed their minds, opinions at City Hall changed, too.
“We said, ‘If that’s the issue and they said here’s a way to deal with it, what’s the harm in going back’,” McClure asked. “If it wasn’t fair for them it wasn’t fair for anybody. It eliminates that as an issue in this litigation.
Tichinin explained the fairness claim.
“The city conceded that the hearing before the council violated Vierra’s due process rights by creating the appearance of unfairness involved with them being given legal advice by Helene Leichter about the correctness of her legal opinion.”
The case was scheduled to be heard by Santa Clara County Superior Court Judge William Elfving. However, because he discovered that his peer, Superior Court Judge Susan Bernardini said she would be effected the most by the Vierra development, he asked Santa Cruz County Superior Court Judge William Kelsay to take the case.
Bernardini lives on West Main closest to the proposed development. She also is Tichinin’s former wife.
“The council is showing the strength of character to make amends to Mr. Vierra,” Tichinin said. The public hearing on the Vierra development has not yet been scheduled.
Carol Holzgrafe covers City Hall for The Times. She can be reached by e-mail at ch********@*************es.com or phoning (408) 779-4106 Ext. 201.
