EDITOR: The Times persists both in getting its facts wrong and
in attempting to confuse the issues concerning the lawsuit by my
client, Scott Lynch of Bob Lynch Ford in Gilroy, to force the City
of Morgan Hill to follow its own ordinances and state law before
approving a competitor
’s Ford dealership in Morgan Hill. So, I must again write to set
the record straight.
EDITOR:
The Times persists both in getting its facts wrong and in attempting to confuse the issues concerning the lawsuit by my client, Scott Lynch of Bob Lynch Ford in Gilroy, to force the City of Morgan Hill to follow its own ordinances and state law before approving a competitor’s Ford dealership in Morgan Hill. So, I must again write to set the record straight.
On the one hand, my client battles for the survival of the business his father founded, so that it may continue to feed, clothe and shelter his family and his widowed mother. On the other, the proposed new dealer in Morgan Hill battles to build an empire of dealerships, expanding on his existing one in Redwood City.
Having advised the City Council, without success, that in approving the proposed dealership it was violating its own General Plan Noise Element, Citywide Planned Unit Development Zoning Ordinance standards for commercial developments, and state law regarding environmental impact reporting and zoning variances, Scott Lynch has no other way protect his right to lawful competition than to go to court.
These violations of law harm Lynch’s legitimate business interest by giving the competitor the illegal advantage of establishing his business at a significantly lesser cost than he would incur by not being a law breaker – something which also carries incidental detriment to local public health, safety and environmental quality that would have been avoided had the city required the dealership to meet city standards for noise, traffic circulation and landscaping.
Stopping this kind of thing is precisely what we have our courts for, and Scott Lynch is as entitled as any person or governmental entity to utilize this governmental service when, after paying taxes for many years to support it as we all do, he has need of it and he will incidentally protect Morgan Hill residents if he succeeds.
The Times in an editorial Aug. 15 attempts to “smoke” the issues by suggesting that it should be able to choose which violations of his rights Scott Lynch sues over in the battle for survival of his business – saying that the Unfair Competition Law of California under which Lynch sues “would make more sense in the context of a franchise agreement with Ford.”
Ford may yet be sued for breaching the covenant of good faith and fair dealing in its franchise agreement with Lynch by allowing a dealership in Lynch’s region when there is not enough product demand for two dealerships to survive. However, there is plenty of time yet on the statute of limitations for that claim. More immediately, Lynch must stop the illegal grant of land use permits which will otherwise be used to construct and operate on the site.
It is easy to agree with The Times’ statement that the Unfair Competition Law would make more sense in the context of a franchise agreement with Ford. I suggest that The Times lobby the California Legislature to amend the Unfair Competition Law in exactly the fashion it would like to see someone in Mr. Lynch’s position empowered to take on big-business, true-villain franchisers – in this case, Ford, a Fortune 500 giant willing to force its franchisees to battle “to the death” for economic survival, apparently expecting larger profits for itself from the contest. As the attorney for a businessman functioning in the real world, I cannot sue on a law that has not yet been adopted, but must apply in Court for the remedies which the Unfair Competition Law actually provides.
The Times is entirely correct on principle, entirely wrong on its facts in its statement “it is not right for Morgan Hill taxpayers to have to foot the bill to fight this lawsuit.” Under its Standard Conditions for his permits, the city has required Paulus to foot the bill to fight the lawsuit once the city tenders the defense to him. May I suggest that The Times write an editorial, or just a sentence at the bottom of this letter requesting the City Council to tender the defense at its meeting this Wednesday, so that the taxpayers do not foot the bill?
While it is true that the proposed dealership site is a “appropriate commercial location with excellent freeway access,” it is far from true that “any environmental issues will be mitigated as much as possible.” If the city would budget more for its Business Assistance and Housing Service programs, it could have had a dealership more in keeping with Morgan Hill’s image, (such as Volvo, Mercedes, etc.), or in the less congested location of the Cochrane Road/101 freeway interchange. However, one of the grounds of the lawsuit is that the acoustical study required by the Noise Element of the Morgan Hill General Plan to determine whether exceeding maximum city noise levels could be avoided, and by what measures, was not conducted and will not be conducted unless the court orders otherwise.
Finally, the Times grasps at a straw in suggesting that “City Attorney Helene Leichter is correct to question whether Bob Lynch‘s Ford Gilroy auto dealership – has any legal standing to sue over a Morgan Hill land-use decision,” and that “in order to sue for these violations (of local and state land use law) you have to be directly affected.”
As pointed out above, Scott Lynch is “directly affected” by the city’s willingness to violate the law so that Paulus can compete for less capital investment. Lynch has standing under the Unfair Competition Law to challenge this violation of his rights as a competitor who is complying with state and local land-use regulations applicable to him in a different but nearby city.
Here is what is most interesting: neither The Times nor the city attorney has claimed that Lynch is wrong in saying the law has been violated. Now that I have pointed out this omission, I am sure they will correct it in any future debates, but I suggest it shows that if we obtain from the court a fair hearing and a judgment that cleaves to the law – as I believe we will – the approval of the dealership will be set aside.
Bruce Tichinin,
attorney for Bob Lynch Ford,
Morgan Hil
Editor’s note: The city on Thursday informed Paulus dealership representatives that they must hire an attorney to defend the city against the lawsuit. Paulus also will bear all costs associated with the defense.
