I participated in the hearing in the Adler-Chadwick matter last evening as a neighbor and friend of the Adler family.
I am always ashamed and disappointed when the law is unable to even come close to that which is just.
The law as written was not followed by the city. Real, tangible harm resulted to both the Adlers and Mr. Chadwick. Because of the importance to the whole community that the law be followed, however, a revocation of the illegal permit-which Councilperson [Pamela Conley] Ulich properly discerned was “void from its inception”-was the outcome prescribed by California precedent.
That said, I fully understand why the council would find it difficult to do its duty. After all, having created a mess that harmed two of its citizens directly, and the rest of us indirectly, it failed to perceive any genuine opportunity to do equity. Page Adler, however, gave us all in that room last night the opportunity to contemplate authentic neighborliness when she plaintively turned to the Chadwicks and again invited them-as the Adlers have throughout-to sit down and reason together.
Last night was an opportunity missed, but if Mr. Chadwick is listening to his heart-and not just what a mistake in the law now allows-he will seek it out still. The city could have facilitated this by following the case law, which anticipates revocation as the default rule to correct illegality. That in turn, would have required the city to work with both parties to at least partially undo the harm of that the city precipitated by, as the Superior Court found, misinterpreting its ordinance, and worse, denying the Adlers any early administrative opportunity to have it addressed.
This opportunity for genuine reconciliation sadly eluded the council. Indeed, some members of the council persons seemed to want to compound the illegality by inviting more – specifically, by simply assuming that if the council revoked the permit as the law required, they could just go around the law a different way by granting a hardship variance or modification to the Chadwicks. Variances for hardship are allowed only after petition and upon notice to all the neighbors and full consideration of the testimony at a public hearing, but what exactly is the point of a hearing, if the minds of the council is made up and announced in advance?
There was a lot of talk last evening whether what the council was doing would set a bad precedent. Unfortunately, I think it has. Error is inevitable, and there is now one large precedent being built on PCH that says when enough money is spent, the code and the harm to neighbors such causes can be disregarded.
But more profoundly, at Thanksgiving, it is worth contemplating exactly what kind of community we are becoming if our only standard for relating to one another is, can we do something and get away with it, rather than whether we should.
Douglas W. Kmiec
Caruso Chair & Professor of Constitutional Law