Now that Prop H has been defeated and the zoning of the old golf course has been reaffirmed as 'Open Space. Golf or Park Use Only,' the question is "Where do we go from here?"
Regarding the Escondido Country Club, owner Michael Schlesinger says he will never sell the property. Period. He told the City Council he 'would fence the property off and let it rot for 300 years' at one point.
So that option is off the table. Or is it?
He says he will pursue his right to develop the property through the courts asking for relief and the restoration of the code he says always existed allowing for the building of 600 residential units on the 110 acre golf course.
If he was to prevail and a court validates his claim that the City of Escondido illegally rezoned the land to 'open space' only, then that would constitute an illegal 'taking' and the City would be faced with a compensatory judgement. They would be required to pay him for the loss of the ability to make the ' highest and best' use of the land. His advisors think this award could amount to as much as $75M.
So he will wait to see how that plays out, right? Wouldn't you? If you could collect an enormous award and still own the land, AND have the zoning restored, that would be the best case scenario, right?
Not so fast! Let's take a closer look at this set of circumstances, and where each outcome could end up....
The claim that the land was always zoned for 600 homes. Have you ever heard anyone except the Schlesinger Team validate that claim? I haven't. And the City hasn't said so either, at least in any formal way. That might explain the willingness of the City to face Mr. Schlesinger in court.
What is an illegal taking? How is that defined? It requires that the property be rendered 'useless' by an official action in order for it to have occurred. Since Mr. Schlesinger bought a golf course, and since he is the one who determined that the property could never be 'used' as a golf course again, the fact that he can't build houses on it doesn't in and of itself mean that the land is totally useless. It means he chooses to not keep it a golf course. Unless a Judge agrees that all golf courses are 'useless' that is not going to qualify as a reason to be awarded millions of dollars in damages.
That is the position of the City of Escondido. There is a lot of legal case history to back up that position. Enough to create a doubt as to the outcome of the court case anyway.
Finally, all of this will takes months, or more likely, years to play out.
My point is, wouldn't it make a lot more sense for all of the people, and institutions, involved to try to reach a mutually agreeable plan of action that would satisfy the needs and requirements of all?
What are those needs?
The Property Owner needs to recover his investment, and realize a profit from it. He needs to restore his image and credibility within the community he plans to operate in. He wants to have a positive impact, not be faced with constant acrimony and dissent. He is in it for money, but he also has a reputation in his industry, within his circle of influence, and within his own family to protect. This investment is not going to be the defining moment in Mr. Schlesinger's life; not the way it is playing out at this point anyway.
The City of Escondido is in this for the long haul. They face extensive costs just to litigate the lawsuit. It will take attention and funding away from many pressing issues the City has to face, including balancing the budget, and rebuilding aging infrastructure, all of which requires money from an already stretched thin General Fund.
But the attractive, iconic nature of the Country Club neighborhood has been an important part of the Escondido Brand.
It will be a difficult legal challenge for the City to unwind it's restrictive zoning if it is determined that returning the property to a golf course or public park is impossible. So that leaves them in an untenable bargaining position. Something Mr. Schlesinger knows full well.
The People in the Neighborhood are jubilant. They have defeated the Specific Plan building initiative, and at least temporarily stopped the process of turning the property into a high density housing tract. But they will now have to face an uncomfortable reality: If you don't own property, you can't dictate what the owner must do with it.
That leaves us with only a couple of realistic options:
A) Change of Ownership. No private party in their right mind wants to invest in quicksand. So selling the land to a private party is unlikely. If the City buys the property at or near what their legal experts say they will ultimately have to pay in damages to the owner, the owner gets what he wants, the City regains control of the property, and in return, the lawsuit is dropped. This only works if the owner agrees that the legal outcome is so risky to him, that this represents his best choice. Because should he lose the suit, he would simply own a golf course that is totally worthless due to his neglect.
B) The City could exercise Eminent Domain, declare the property 'blighted' by abandonment, and then pay the owner a 'fair market value' fee to be determined by an arbitrator. All of which implies the City ends up owning the property, at taxpayers expense. Just what the City said all along it would not allow to happen. But it could end up being the better of two bad options.
C) Mr. Schlesinger hangs on. And wins his lawsuit too. He has a pocketful of City money, and large tract of buildable land, in a very toxic and unfriendly environment. He starts the planning and entitlement process all over again, but this time in the traditional way. But there will be a large elephant in his way.
He will be faced with a mountain of difficulties in gaining any agreement on density, design, city services, and all of the other things a City can do to make it hard to build homes, such as connecting water lines.That is not a pretty picture for any builder. Mr. Schlesinger would find it hard to find builders interested in walking into building permit hell. Another dead end street.
All of these scenarios would take years to evolve. Times will change, the economy will change, and the market may or may not be receptive during the whole period. There will be an enormous number of variables to deal with. None of these would be good for the City, the Owner, or the Community, and would be a world of hurt with no end in sight.
So what would work?
Perhaps we could all take a step backwards, so that we could then take a positive step forwards. First, we all need to agree to set aside our anger and animosity. Take the negatives out of the room, at least until we sit down and talk. Obviously, the City will be key to any potential agreement, so a representative would have to be present. Each group would offer representatives who can act dispassionately, but with some element of authority.
At that point, a neutral party, someone who has no dog in the fight, could act as a mediator. A referee of sorts to keep the focus on the objective: look for the win-win-win solution. Someone with extensive experience in residential planning and design. This seems to have been the key element missing from Mr. Schlesinger's initial efforts. It may have been the most significant aspect of the complete lack of community involvement in The Lakes project proposals.
Meeting with representative of all four groups, an outline of what would accomplish the goals of making the owner a good ROI, creating a new community identity that would add value to the community and restore property values, and support and polish the City brand, could be hashed out.
Finally, a timeline for the process that would also spell out a mechanism to restore some quality to the property during the phasing of reconstruction. There would have to be some cost sharing to keep parts of the property healthy during those periods of inactivity. There may also need to be some discussions regarding a 'Special Assessment District,' or some other funding mechanism to secure the long term viability of the overall plan.
Goal: A Master Plan for the New Escondido Country Club and the surrounding neighborhoods. A plan to ending the uncertainty and the negative effect that uncertainty has been having on property values.
If we could just start with a gesture of good faith, I believe this effort could start immediately, and maybe allow everyone to avoid expensive litigation.
I think we can all agree that, in itself, would be the first big win!