An Orange County Superior Court judge refused Monday to issue a temporary restraining order blocking the county from using a state and federal program to house transients infected with COVID-19 at a Laguna Hills hotel.

Orange County Superior Court Judge Thomas Delaney ruled that the state’s emergency declaration supersedes any covenants, conditions, restrictions and reservations of easements, or CC&Rs, that would bar a change in the use of the 76-bed Laguna Hills Inn at 23061 Avenida de la Carlota as part of Project Roomkey.

On Thursday, Delaney had indicated he was inclined to grant the city of Laguna Hills’ request for a TRO to prevent the county from using the hotel as a shelter for transients either showing coronavirus symptoms or who have tested positive for COVID-19.

Delaney had said he felt the city’s argument that the hotel would be a public nuisance fell short, but was leaning toward granting the TRO on the basis of the city’s argument that using the hotel for a quarantine shelter for transients was a change in the covenants, conditions and restrictions of the property, which would allow for neighboring property owners to object.

But on Monday, Delaney ruled that the county — as an “agent of the state under the governor’s declaration of emergency” — can use the hotel to house sick transients “to address this public health crisis.”

The judge noted in his ruling that governor can “commander or utilize” property in an emergency, “regardless of the CC&Rs,” and that “political subdivisions” such as the county can carry out those duties.

“The county is acting consistent with the governor’s orders in the context of this state of emergency,” Delaney said in his ruling.

Delaney set an April 30 date for a preliminary injunction hearing.

“We are disappointed by today’s ruling, and are considering our options going forward,” Laguna Hills Mayor Janine Heft said.

The city’s attorney, Kelly Richardson, argued in court Monday that the county “doesn’t have the power of the state of California to override CC&Rs.”

Richardson did not agree that the county had the authority to act as a political agent of the state.

“There is no law that a political subdivision like a county can usurp that state authority given only to the governor,” he said. “It’s not just a technicality. It’s a huge gap that no one addresses straight on.”

Richardson argued that Project Roomkey is an unconstitutional “taking of property rights” of neighboring lot owners, who could, under normal circumstances, object to a change in the hotel’s use.

“This is a blanket suspension of property rights … without identifying which property rights were being suspended,” Richardson said.

“The court doesn’t take this lightly, which is why we requested further briefing,” Delaney responded. “Even in an emergency people do not give up their constitutional rights.”

But the judge added that “careful balancing” is required to also address the emergency.

Attorney Kevin Dunn, who represents the county, said eight transients have been waiting to get into the hotel and noted Gov. Gavin Newsom made it clear on Saturday that the TRO should be denied. State Attorney General Xavier Becerra’s office filed a brief Sunday night arguing against the TRO.

“Without Project Roomkey, state and local officials will lose an important tool to combat the virus, and more Californians will suffer and die,” the brief reads.

“The state issued its orders, the county is required to carry out those orders,” Dunn said. “This is a public pandemic emergency on a different scale altogether… You can’t create a legal island that is immune to state authority.”

On Friday, the county’s attorneys argued in a brief that granting the TRO “would likely have a detrimental domino effect to encourage other cities and private parties to file similar suits. The proposed injunction has the effect of paralyzing the county, making it nearly impossible to respond to the governor’s state of emergency related to Project Roomkey.”

It is unlikely the county could find another hotel in south Orange County and could lose the two other hotels it has leases with if the TRO is granted, the attorneys said. They also argued that requiring consensus on a change in covenants, conditions and restrictions, or CC&Rs, during a state of emergency is “simply nonsense.”

“Must a fire or police department obtain HOA approval before cordoning off a neighborhood to fight a fire or for a crime scene?” the attorneys wrote in the county’s brief. “Must the federal government request a Plaza Pointe HOA waiver to position troops on the streets of Laguna Hills to defend an attack against the United States?”

Orange County CEO Frank Kim told City News Service late Monday morning that the judge’s ruling clears the way to move transients into the hotel right away.

Kim said in a declaration that he had to pick a hotel on a list given to him by state officials, and that the list “turned out to be very limited.” He said it is a “never-ending challenge” finding a hotel owner willing to do business with the county housing transients, noting that the operator of another hotel in Laguna Woods backed out of its lease following protests from the city and the retirement community neighboring it.

Kim also said that his staff has told him that a requirement to clear the CC&R conditions would “disrupt the whole program statewide and cause unnecessary delay and complications to this short-term emergency use of facilities, including hotels.”

There are three transients with COVID-19 from Mission Hospital who have been recommended to quarantine at the hotel, but they had not been able to check in because of the lawsuit, Kim said.

Kevin Akash, president of the Laguna Hills Inn’s owner, Elite Hospitality Inc., said in court papers that he is “proud to work with the county of Orange” on Project Roomkey.

“Elite agreed to participate in Project Roomkey because it was the right thing to do,” Akash said. “We want to do everything we can to help our community during this time of crisis. By providing temporary lodging to those in need, we will allow them to isolate, stem the spread of the COVID-19 and lessen the impact on local hospitals and on our community as a whole.”

Akash said the hotel is “uniquely well-situated” for the program because it is next to the freeway on a major thoroughfare, is in an industrial and commercial area far from homes and is close to four area hospitals. Most of the neighboring businesses are closed at this time, he noted.

County officials say the hotels, including one in Orange and another in Stanton, will be lockdown facilities with private security preventing the participants from coming and going. A fence has been erected around the property, as well.

Attorneys for the city contended that the workers hired to care for the guests could shop at area stores and get food at local restaurants, spreading the virus. They also questioned how the guests would be prevented from leaving the hotel.

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