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Drag City project:
The bell tolled for good reasons
By Gail Paparian
For the Record Gazette
“The time has
come,” the Walrus said, “to talk of many things.” In this case, it
wasn't Alice Through the Looking Glass,
it was the Banning Planning Commission hearing a single item during
a specially called meeting: Whether to revoke an Unclassified Use
Permit for the project known as Drag City.
Banning assistant city attorney Eric S. Vail began with the
statement that it was the opinion of staff and the attorneys that
the permit had expired and was null and void. Vail continued to say
that there was an “inconsistency” and would err on the side of
caution, give the applicant due process and validate the revocation.
Vail went on to say that granting 3 extensions was the norm but in
this case 4 extensions had been permitted. When Commission
Chairperson Betty DeSantis asked why the 4th extension was granted
and wouldn't have made their permit expiration date 2004 and not
August 14, 2006, when the permit became null and void, Vail
responded that the people who granted the permit were not available.
Furthermore, the paperwork was lost for awhile or
mis-numbered, so for the sake of being
fair, the actual expiration date was August, 2006.
Whatever, the permit had expired and no construction had been done,
therefore there was no vesting. Further evidence in favor of
termination came in a letter from the City attorney's office that
offered evidence that BAA (Banning Airport Associates) failed to
meet terms of agreement including failure to meet grading permit
terms and failure to make a deposit into escrow in a timely manner,
and many more.
BAA attorney James DeAguilar began his
address to the commission with an apology that he had the flu and he
was in “fundamental disagreement with your city attorney.” He said
that the work his clients had done on “Bourbon” Street had gained
them vested status and invested $192,000 for offsite work done on
“Bourbon” Street.
A couple of things here Š Mr. DeAguilar
apologized to all for showing up when he was as ill as he said he
was. I'm sorry he was ill; so why didn't he stay home? Can I sue him
if my flu returns from his floating germs?
He repeatedly
referred to “Bourbon” Street when he meant Barbour Street. To quote
Robert Preston as the Music Man, “he didn't know the territory.”
What one does not want to acquire, is an advanced degree from the
“Andy Marocco School of Charm.” I have
watched Marocco testify time after time
before the planning commission and city council and tear the heads
off the people he is requesting to approve his project. He may have
the best facts in the world but somehow they are lost between the
vitriol he spews.
Then we had the battle of the barristers, where Vail and
DeAguilar have conflicting opinions. The
question is, which one does the jury, err, the commission believe?
DeAguilar had already pointed out that
if the law suit (what law suit?) proceeds, it would cost the city
about a half million dollars of the people's money to defend.
Well, I want to believe Eric Vail, Banning's
attorney. So if they go to court and Vail was incorrect about his
“assumptions” during the process and loses, who pays for the appeal?
Vail works for Burke, Williams and Sorenson. These are some of the
attorneys who recently lost a suit against the city and the
developers of the Black Bench project. While
SunCal companies consider their options, so I assume are
Banning's city attorneys. Since the
judge seemed to have ruled against some of Burke, Williams and
Sorenson's work product, would I be safe in assuming that the
lawyers will not charge the city for the appeal process as they, in
part, were responsible for the loss? This seems fair. The question
is, will it happen? Ha.
While you are pondering this, let's return to the recent hearing.
Andy Maracco gets up to testify and says
that “Vail's assumptions are not true.” On the issue of vesting,
Marocco said “we are moving stuff back
and forth so we are under construction and vested.” Vail later
countered with what was spent on Barbour Street was irrelevant, as
it was not construction.
Marocco was referring to the offsite
improves made to Barbour Street. I was uncertain about how much
Marocco and Company paid, but all seemed
to agree that checks in the amount of $62,500 and $25,000 was paid
by the Banning Redevelopment Agency to Marocco
for Barbour Street improvements.
Andy Marocco then presents the city
clerk with large books, “in case we have to go to litigation.”
The public hearing opened. I believe there wasn't a single person
from Banning speaking in favor of the project. The closest people
were from Beaumont. Others were from Joshua Tree and some came from
Orange County. The person who testified against the raceway was from
Banning.
Unfortunately, his comments included the less than brilliant
statement that these kinds of venues would attract “riff raff.” As
each person headed to the podium to comment, they were quick to
disavow themselves from the riff raff class. Again, a very bad
choice of words.
There is a huge difference between being “vested” and having
“invested.” Vail made a statement that I think sums it up: “A
developer has to spend money; it is the risk of private enterprise.”
To me, that's an investment to get vested.
After the public hearing finally closed, DeSantis said “I wish to
remind the commission that we are being asked to pass a resolution
to revoke a UUP which has terminated on its own.” Motion/second,
vote 4-0 to revoke the permit. (Commissioner Hawkins absent).
In almost seven years, this project has not gotten off the ground
(literally) or been able to come up with financing. While a friend
of mine thinks council/commission should have given them one more
extension to see if they would swim or sink, I think it was time to
end it.
At the very least, I do not have faith in an EIR that is nearly
seven years old. Another council passed this project. Had the
applicant moved in a timely manner, the place would have been built
and this column and the situation that promoted it would be
irrelevant.
For now, I hope the powers that be have something in the wings to
provide Banning with a solid economic base. We deserve it and we
could probably avoid any new taxes being levied on residents.
Gail and her husband Bill Paparian created a service called Writing
Solutions in 1996. Gail has also written for a number of local and
national magazines and newspapers over the years. Currently, she
provides public relations consulting services for the Banning
Unified School District. She can be reached at
info@WritingSolutions.com.
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