City moves forward with Lehigh amicus brief

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The Los Altos City Council agreed to join the legal filing over Lehigh Southwest Cement Co.'s vested mining rights.

The Los Altos City Council last week reaffirmed its participation in an amicus brief that supports the appeal of a court decision over vested mining rights by Lehigh Southwest Cement Co.

The 5-0 vote Sept. 24 upholds the council’s unanimous decision two weeks earlier to join the legal filing by the Midpeninsula Regional Open Space District, known as a “friend of the court” filing. The brief supports Bay Area for Clean Environment’s (BACE) appeal of a Superior Court ruling earlier this year that upheld a decision by the Santa Clara County Board of Supervisors to grant vested rights – and expanded operations – on unused land purchased by Lehigh in 1948.

The council reviewed the issue Sept. 24 after attorneys representing Lehigh sent correspondence to the city alleging, among other things, misrepresentation by Cupertino City Councilman Barry Chang. At earlier public meetings, Chang had urged Los Altos and Los Altos Hills to join the filing.

The council voted to participate after Councilwoman Megan Satterlee said the city received information that clarified claims by Lehigh representatives. Satterlee didn’t offer specifics, but the council agreed to match the contributions of Los Altos Hills and other participating cities, not to exceed $7,500.

“Between our last motion and now, there were some allegations made by attorneys representing the respondent (Lehigh), and I think we have subsequently gotten the information we need to address those (allegations),” Satterlee said.

Los Altos Hills Mayor Gary Waldeck, whose city is also participating in the filing, urged his counterparts in Los Altos to continue their support despite Lehigh’s allegations.

“The real thing we’re trying to accomplish, I think, is to send a message to the people who make decisions about this stuff that says, ‘You know, you’ve got an awful lot of people lined up, and they’re all in a line looking at you.’ That’s the real message we’re trying to give here,” he said.

Lehigh’s allegations

In its correspondence to Los Altos – which included a copy of a letter to the city of Cupertino and other documentation – Lehigh’s legal team stated that Chang attempted to garner support without properly disclosing his position as a member of BACE’s board of directors.

Lehigh representatives also alleged that the IRS suspended BACE’s nonprofit status for failure to file tax returns for three years. It added that Chang failed to disclose that he and his wife started a small Cupertino business on his Form 700 Statement of Economic Interest filing. The Cupertino City Council subsequently discontinued discussions on joining the amicus brief filing until a later date.

“Given BACE’s failure to disclose its financial information to the Internal Revenue Service and the public – a basic obligation of a nonprofit – it is impossible for the public to know whether, and to what extent, Chang is compensated by BACE,” the letter stated.

BACE attorney responds

Reached by the Town Crier, attorney Stuart Flashman, representing BACE, said Lehigh’s allegations were based on outdated information and that the organization’s problems with the IRS have since been resolved.

“The (California) Franchise Tax Board is happy. … BACE’s status has been reinstated as a corporation in good standing,” he said.

Flashman said BACE’s tax problems came about after the organization originally filed taxes using the employer ID number of its original name – No Toxic Air. The IRS assigned a second employer ID when the organization changed its name to BACE. Flashman added that BACE’s accountant filed the missing state tax returns in May.

Flashman labeled Lehigh’s allegations against Chang “another tempest in a teapot,” noting that the councilman recently filed new 700 forms disclosing his economic interests. He added that board directors like Chang are not paid by BACE.

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