Macy v. City of Fontana

VIRGINIA MACY et al.,

Plaintiffs and Appellants,

v.

THE CITY OF FONTANA,

Defendant and Respondent;

TEN-NINETY, LTD.,

Real Party in Interest and Respondent.

No. D068508

(Super. Ct. No. CIVDS1107686)

California Courts of Appeal

Fourth Appellate District

Division One

Filed March 23, 2016

ORDER MODIFYING OPINION

[NO CHANGE IN JUDGMENT]

THE COURT

     It is ordered that the opinion filed herein on February 23, 2016 be modified as follows:

     On page 14, the first paragraph of section III, beginning with "Finally, we must reject plaintiffs' contention," is replaced with the following paragraph:

Finally, we must reject plaintiffs' contention the city's role as a party to the OPA and, under its terms, a recipient of tax increment funds, makes the city responsible for the agency's past failures to meet its low- and moderate-income housing obligations.  As plaintiffs point out, under the 1992 amendment to the OPA, which made the city a party to the OPA, the city warranted and covenanted that the agency had met its low- and moderate-income housing obligations under the CRL, and the parties agreed that an amount equal to 35 percent of the agency's tax increment revenues pledged and payable to Ten-Ninety would be paid into a fiscal agent account owned and controlled by Ten-Ninety and thence to the city as compensation for negative fiscal impacts which development by Ten-Ninety had on the city.  As we have indicated, these provisions were the subject of a successful validation proceeding under Code of Civil Procedure section 860.

     THERE IS NO CHANGE IN JUDGMENT

BENKE, Acting P. J.

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