The city also says it will not pursue any further agreement with Trancas PCH that would expedite its permitting process.
By Jonathan Friedman / Assistant Editor
The City Council voted earlier this month not to petition the state Supreme Court to review the appellate court decision that the council had violated the Brown Act, the state’s open-meeting law for governments that requires most legislation to be conducted in public.
With the vote not to pursue the case further taking place during a City Council meeting’s closed session (the portion of a meeting during which legal and real estate issues are discussed, and from which items cannot be discussed outside of the session), the council members declined to discuss the decision.
A three-judge panel from the Court of Appeal’s 2nd District ruled in October, and affirmed its decision in March, that the council violated the Brown Act by approving a lawsuit settlement with developer Trancas PCH to change the zoning of the developer’s property (a 35-acre site located on Pacific Coast Highway just west of Trancas Canyon Road) in exchange for the donation of land, without public comment. The court said the agreement was invalid because of the Brown Act violation and because the deal violated environmental and municipal zoning laws.
“At this particular moment in history, the city’s feeling is we have exhausted our efforts to try and save the original deal and so many years have passed that the best course of action for the developer is to make an application for the normal course of development that it wants,” City Attorney Christi Hogin said this week.
Hogin signed a document on May 9 with a lawyer from the Trancas Property Owners Association-which represents property owners on Broad Beach and filed the lawsuit against the city and Trancas PCH-declaring the city would not seek Supreme Court review. According to the document, Trancas Property Owners agrees not to seek attorney fees from the city. Also, the city says it will not pursue any further agreement with Trancas PCH that would expedite its permitting process.
Despite the city’s actions, Trancas PCH has petitioned the Supreme Court to review the case. Trancas PCH attorney Alan Block said the city’s decision not to pursue the case further harms his client’s chance of being granted a hearing, although he added that the Supreme Court already only accepts a small percentage of the cases it is offered. Hogin said she believes it is unlikely the Supreme Court would hear the case with or without the city’s partnership.
Trancas PCH partner Dean Isaacson said he did not understand why the council would not want to clear its name.
“If I were accused of violating a law, I would defend myself to the end of the Earth,” Isaacson said. “But the council would prefer to pretend this never happened and sweep everything under the rug.”
When the appellate court ruled in October that the council had violated the Brown Act, Hogin said the decision was troublesome because it set a precedent that would require city governments to negotiate legal settlements in public, giving developers and other opponents the ability to listen in on strategy. Her statements garnered support from the San Francisco government and the League of California Cities, both of which sent letters to the court asking for a rehearing.
But Hogin said, in the March decision, the court changed some of the language so it would not create the precedent she feared. She said while the original ruling would have made all closed-session discussion on legal settlements impossible, the revised one only prevented city governments from granting development rights behind closed doors. However, Hogin said the court was mistaken by accusing the council of having done that, and that all it did was set up the process for Trancas PCH to pursue the permitting process by agreeing on a zoning for the property.
Barring a surprise decision by the Supreme Court to hear the lawsuit, the legal settlement between the city and Trancas PCH, which would have set the zoning of the developer’s property at 32 town homes, is dead. Trancas PCH has several options of what to do next. One of them is to renew its original lawsuit against the city seeking the right to build 52 town homes and 15 houses on the property. Another option is to pursue permits to build on the property under the current city zoning for the land, which calls for the construction of seven houses. A third possibility is that Trancas PCH could make a new offer to the city in exchange for developing rights beyond what the municipal code allows. However, Trancas Property Owners could sue the city again if the third option were pursued.
Isaacson said this week that the city was not being cooperative in discussing a new settlement agreement with him.