Tuesday, November 25, 2014

Sierra Madre: Answer The Call

City Hall: Tonight @ 6:30
(Mod: Tonight's City Council meetings is one of those big occasions in town that only happen every once in a long while. I think you'd need to go all the way back to Joe Mosca and his betrayal on the development issue - which led to Measure V and the eventual defeat of the DSP - to get to a moment quite this big. The stakes are incredibly high. Do Sierra Madre's elected representatives sell out to a full-scale McMansion invasion like their faithless equivalents in Arcadia have, or do they hold true to the many things that have made this little village the envy of the San Gabriel Valley? The good news is that the resident's case against the developer's ploy at 610 Baldwin Court has become quite strong over the last few weeks. In addition to the powerful arguments put forward last week by the Preserve Sierra Madre group, others have now spoken out as well. I am including two statements in particular today. The first is taken from an e-mail sent to a resident by former Councilmember Don Watts, who is currently working as a Peace Corps architect overseas. The second from a letter sent to the City Council by an informed Sierra Madre resident named John Hutt.) 

Don WattsMy biggest concern probably has more to do with the issue of available water for the project. Has anyone discussed this as an issue?  How long ago?

In light of the water shortage, has the EIR been re-evaluated or updated regarding water? Seeing that the dropping water table provides a finite supply, and one that is dwindling, will this limited supply last a decade or more? This needs to be studied.

Approving this project could put the entire town in jeopardy. Can the developers guarantee that they can find the necessary additional water resources? The city should be studying this problem with Arcadia. Arcadia's population is growing, and is drawing more and more from known supplies.

Remember paper water?

A comprehensive plan for what is seen as the maximum supply/demand capacity would be important. Knowing that the water table is dropping, the city would, I believe, open itself up to adverse legal action for approving projects that are being carefully so closely watched by both the residents as well as the developers. 

John HuttI write not to urge approval or denial of the above-reference project, but to recommend a methodology for your review. Namely: act reasonably, vote for what you believe is in the best interests of the town, and ignore the legal threats swirling about the project. As detailed below, I believe that the legal consequences feared by some are vastly overblown, and that the approval or denial of the project is well within your legal discretion provided that you ground your decision in the requirements of the General Plan, Hillside Management Zone Ordinance and Settlement Agreement.

The applicant has threatened litigation if you deny the project and its attorney, Mr. McDonald, has claimed that your doing so would be illegal. My impression of Mr. McDonald is that he is a skilled attorney doing his job. He is a zealous advocate for his client, as he should be in our legal system. By design he is not impartial in this matter. You should by all means carefully consider his testimony, but when you do so keep in mind his position and interests.

Doubtless the City Attorney has counseled you on the legal risks involved. I have high regard for the law firm the City employs as legal counsel. While they will act as the City's advocate if this matter does lead to litigation, I trust that in closed session they offer objective advice that you can rely upon. However, it is also important to keep their role in context. Their job is to warn you of legal risks. Weighing those risks against other concerns is your job, not theirs. As I discuss in more detail later, an action taken to avoid legal risk can often have serious other consequences. A business that backs down from all action because of risks highlighted by its attorneys will not long endure. Similarly, for the City to thrive its leaders must act in its best interests even when faced with legal risks.

By discussing the interests of others I don't intend by negative inference to pretend that I don't have an agenda as well. My views on this project are well known. I criticized the early iterations of this project in numerous public hearings. I met with the applicant's representatives, including Mr. McDonald, to offer advice on how to improve the project. The current project is much better, but it is still far from good. We shouldn't confuse progress with the end result. Doing so will only encourage future applicants to make their initial submissions to be as horrible as possible. As detailed below, I believe that the question of whether the project as currently configured meets the minimum requirements for approval is debatable.

Before offering my own legal advice I should give you some idea of my qualifications and experience. After graduating from Cornell undergrad and Michigan for law school, I have worked in California for 18 years as a real estate attorney and developer. I've worked at law firms big and small on a wide range of real estate projects with an aggregate value measured in the billions.

Aside from helping a few friends with Sierra Madre properties, I have made a point of focusing my professional activities outside of town. I have no financial interest in this project. So I speak to you in what I consider to be one of the highest capacities you will hear from: Sierra Madre resident.

I suspect that long after the applicant has liquidated this and all of its other properties in town, and after Colantuono, Highsmith & Whatley, PC no longer represents the City, you and I will still be living here dealing with the implications of your vote on this project. So with my background and agenda vetted, I now ask you to consider my opinion as a land use attorney and town resident.

First, let me start with the standard of review. As the Staff Report correctly states, your review of this project is de novo. In other words, you should review the project anew. The question before you is whether the project complies with applicable regulations, most notably the development standards set forth in the General Plan, HMZ and Settlement Agreement. Consider the Planning Commission's approval of the project as simply a recommendation to be weighed along with all other evidence you receive, including the testimony of the applicant and the town's residents.

If your decision were litigated, a judge would employ a different standard of review. Appeal of your approval or denial of the project is available to an aggrieved party by filing a Writ of Mandamus in accordance with California Code of Civil Procedure Section 1094.5. A judge will issue such writ (effectively overturning your decision) only if you abuse your discretion, or in layman's terms (and in a simplification that the City Attorney may wince at, but I believe to be fundamentally correct): only if you act unreasonably.

Before I discuss what constitutes abuse of discretion in more detail, let's pause to contrast the standards of review that you employ regarding the Planning Commission's decision and what a judge would employ regarding yours. Fundamentally, you are reviewing whether the Planning Commission got it right. They felt that the project did the minimum necessary to be approved, albeit just barely. If you feel the project comes even just a bit short, then you can deny it. On the other hand, a judge will overturn your decision only if he or she determines that you acted unreasonably, even if he or she thinks you got the ultimate decision wrong.

So what then constitutes acting unreasonably or an abuse of discretion? There are a number of ways you could be found to have abused your discretion (such as applying the wrong laws, failing to afford due process, or failing to make supportive findings) that I am confident that the City Attorney and staff will ensure that you don't run afoul of.

Of course denying the project because of the applicant's race, approving the project because of an undisclosed financial interest, or intentionally ignoring the General Plan, HMZ and Settlement Agreement could put the City in legal hot water despite the best efforts of those counseling you, but I have no concern that those types of actions will come to pass.

The most likely reason that a judge would determine that you abused your discretion is that your findings were not supported by substantial evidence in the light of the whole record. Code Civ. Proc., § 1094.5, subd. (c); American National Ins. Co. v. Fair Employment & Housing Com. (1982) 32 Cal.3d 603, 607.

Remember that your ultimate decision must be supported by findings, and those findings in turn must be supported by substantial evidence. The court must afford a strong presumption that your findings are correct. Fukuda v City of Angels (1999) 20 Cal.4th 805, 808. Further, “unless the finding, viewed in the light of the entire record, is so lacking in evidentiary support as to render it unreasonable, it may not be set aside." Northern Inyo Hosp. v. Fair Employment Practice Com. (1974) 38 Cal.App.3d 14, 24. Another way of viewing this is whether a reasonable person could come to the same decision based on the evidence presented, not necessarily whether a judge would agree with your decision.

One can imagine a scenario in which a project is so horrible that any reasonable person would deny it, or conversely a project so wonderful that it must be approved. Neither is the case with this project. In my opinion it has pros and cons that reasonable people could weigh differently and on balance vote for or against. There are a number of development standards that require a certain amount of reasonably-applied subjective interpretation, and I believe that approval or denial of the project lies within that reasonable range. I think the Planning Commission acted reasonably in approving the project. I also feel that many of those who spoke or wrote against the project over the course of multiple public hearings came to a reasonable conclusion that the project does not meet the minimum requirements of the applicable development standards.

It is also easy to imagine a case where, despite the intrinsic merits of a project, little useful evidence is provided. An applicant baldly demanding approval adds no real insight or supportive evidence, nor do naysayers fomenting against development in general. Here though there is ample evidence in the record to support findings approving or denying the project. The Staff Report runs 165 pages. The Planning Commission resolution ably lays forth the argument in support of the project. Preserve Sierra Madre's letter does the same for the argument against.

I will be out of town for your meeting so I will be unable to witness it firsthand, but I'm sure the applicant will offer additional evidence in support of the project. Although it hasn't happened yet to date, maybe a resident or two will also speak in favor of the project. Despite the upcoming holiday, I'm quite sure that there will be many speakers opposed to the project. Most of those will offer useful evidence to support their cause, and a fair number will even do so eloquently. In short, there already is substantial evidence in the record to support approval or denial of the project, and more will be offered before the public hearing is closed.

Therefore, I am quite confident that if you come to the public hearing with an open mind, consider all of the testimony and other substantial evidence presented to you in a fair and reasonable manner, and enumerate detailed findings to bridge the analytic gap between the raw evidence and your ultimate decision, that whether you approve or deny the project, your decision will successfully withstand legal challenge.

However, litigation can be time consuming and costly even if you win. Sometimes, but certainly not always, it is wise to settle or take other actions to avoid litigation even if you are confident that you will prevail. The costs and risks of litigation must be balanced against the non-legal implications of avoiding it. In performing this balancing act, you should consider not just the project at hand, but also the implications for future projects. While allowing one poor project to slip by to avoid a court battle may seem worthwhile at first blush, doing so only invites additional poor projects.

A number of years ago the City Council approved Tract Map 54016 and related entitlements (which subdivided the One Carter property) in large measure, if not exclusively, in order to save the City from the costs of litigation. Not only did that poorly configured map produce lots which will be a challenge to develop well (and which is the root cause of a number of the issues confronting the current project), but it also spawned many follow-on lawsuits and earned Sierra Madre a reputation in the development community as a jurisdiction that would knuckle under to threats of litigation. Rather than putting a problem to rest as hoped, approval of the One Carter map opened a can of worms that we are still dealing with today.

Similarly, the question before you now is not simply about one house. Whether you approve or deny this current iteration of this project, houses will be built in the near future on the One Carter and Stonehouse subdivisions. How these houses are designed, reviewed and approved will greatly impact Sierra Madre's future. Will we cower in the face of threatened litigation and allow profit-seeking developers to overrun the hillsides? Will we overcorrect in response to such threats and attempt to thwart even reasonable development?

I hope we chart a middle path. Hold firm to the General Plan and HMZ. Require strict compliance even in the face of saber-rattling attorneys. But continue to be mindful that these properties are privately owned and are approved for residential development. Whether proposed by a long-tenured local or an out-of-town developer seeking to make a quick buck, every hillside project that complies with General Plan and HMZ should be approved.

In summary, now is not the time to succumb to overblown threats and saber- rattling. Set aside unfounded fears of litigation, and vote purely on the merits of the project. Check your gut; look into your heart; cogitate on it. Consider all of the evidence and make your own personal judgment about what is in the best interests of the town.

Does the project “fit” in Sierra Madre as discussed in the General Plan? Is it sensitive to the unique characteristics of the hillside and surrounding context as required by the General Plan, HMZ and Settlement Agreement? Does it look more like the “THIS” rather than “NOT THIS” diagrams in the HMZ?

If you think so, approve the project. If not, deny it.

Thank you very much for your consideration. I hope you all have a blessed Thanksgiving.

http://sierramadretattler.blogspot.com

115 comments:

  1. I wish Don Watts and MaryAnn MacGillivray were still on our city council.

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    1. I do too, and Linda Thorton was still in town.

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  2. Can you imagine what it would be like now if Noah Green won? Like with Measure V we came within 100 or so votes of disaster.

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    1. Noah had grand visions for SM cause he's lived here so very long - another "lawyer" who jumps into SM politics

      One of his brilliant ideas was to move a Farmer's Market to Kersting Court and the other was for the city to promote Halloween to bring in tourists...he's lived here so so long he's never heard of Allegria on Halloween.

      Noah was endorsed by Nancy Walsh and mentored by her, that alone puts him in the cray cray category cause he sought out her support.

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    2. I also remember Noah extolling the wisdom of the likes of Glenn Lambdin and some of the other living artifacts of the DSP era. The only thing that stood between this town and its destruction were a handful of Facebook pictures. The underground saved Sierra Madre.

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    3. This is well known 7:18

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  3. John Hutt is nothing short of brilliant. That letter makes the case for the City Council having the discretion under our documents to approve or deny this project. As he states, the threat of a lawsuit is minimal because the courts give alot of deference to a City Council to determine the type and quality of development that a city will be saddled with for years to come. Besides, there is the threat of a lawsuit if you just walk down the street. There is always the threat of a lawsuit about anything you do or don't do. That should not be the reason to stop walking or to acquiesce to a very bad development project.

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  4. What a community we have here, when a developer and real estate attorney like John Hutt, will take a position against bad development. That's why he has so much credibility in this town. He's looking out for the interests of Sierra Madre first or foremost.

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  5. That is why 6:07 we work so hard for our candidates. If you haven't in the past, please consider what 6:07 said. What can we do to get John Hutt to run for City Council?

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    1. I still haven't gotten my head wrapped around the idea of a developer and realtors being opposed to development in this town. I certainly don't have a problem with, but I don't quite understand it. You're going to have to give me some time.

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    2. wait what? you want to elect a real estate lawyer and developer to the Council?

      thanks for his input, but I'm done voting in lawyers forever

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    3. I vote for bartenders. Especially the ones that give free drinks.

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  6. Don Watts may be onto something about the water issue. Certainly, the Settlement Agreement allows some type of project up there. But in light of the water emergency, that should also have an impact on what you can build and how big.

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    1. Don Watts is an honest man and he knows.

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  7. Hutt is right that those of us who plan on living in Sierra Madre long after the developer moves on to another project and long after the present City Attorney and their law firm are out of the picture, will have to deal with the implications of the decision that is made tonight by the City Council. Nothing can be more important to the future of this town than what happens tonight.

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    1. I thank him for what he's doing today

      but he was completely anti Measure V and spoke out against it as an attorney

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    2. Slow Growth in Sierra Madre is like the Church. We welcome back all sinners.

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    3. If he had it to do all over again he wouldn't be so opposed - ask him

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    4. One of the reasons Hutt is so well respected in the community is because of his integrity. He may take a position that you disagree with, but he won't lie about it.

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    5. The Measure V days were very different. The town came close to open warfare. I think we are all much wiser now. Besides, nobody gives a damn about CETT. Sierra Madre is completely frozen out of that one. Even our real estate people have been told to take a hike.

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    6. so if Mr Hutt has rethought Measure V and supports it in contrast to his original position then I'm open to what he has to say and contribute to putting the skids to development and water management for existing residents, not the interest of developers.

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    7. The Kensington showed that the voters couldn't handle the power Measure V gave them.

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  8. I can only hope that the whole town comes to this meeting tonight. Just because you may not live close to One Carter, it will set a powerful precident for future development in our city. We must stop it now and make developers play by our rules.

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  9. Everything is there for the City Council to do the right thing. The arguments are made, and they are good ones. If this project goes through tonight then there must be other reasons for it.

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  10. If the town shows up it will give the council the backbone they need. If it's only the usual 10 they'll think we don't care. Remember Rachelle can't vote.

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    1. It takes three votes.

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    2. I disagree with 7:29. In the end it is always a small band of dedicated and rugged individuals that carry the day. Once the victory is in place then the crowd shows up.

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  11. Will Nancy Walsh be speaking tonight? I know that she has resigned from the Chamber of Commerce and some other offices she held. Apparently that article her friend Susan Henderson wrote didn't sit well with her. It would be interesting to hear Nancy's side of the story.

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    1. Get ready to enter Alice's rabbit hole.

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    2. Oh, please! Nothing that Wacky Nancy says could possibly be of interest to anyone with an intellect. She's a sad, sad example of a less than mediocre small town politician carried along by a shadow group who would fill up her air bag with their ideas and squeeze hard to expel craziness. We're better off to hear the last of her. And Susan Henderson, whom I seldom agree with, did a first rate job in reporting on Nancy's final (let's hope) tirade.

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    3. For many human tragedy has great entertainment value.

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    4. Oh please to you 10:11! There's no way that article was written by Henderson!

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    5. The word I got is Harabedian was so angry over Nancy's walk on the wild side that he wrote most of that himself. That was as close to a public execution as this town will ever get. I hope.

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    6. The word around town was "Did you see the Councl meeting"?

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    7. A couple more videos like that one and we can start the Nancy Channel.

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  12. I didn't expect to wake this morning to find my little missive featured on the Tattler. Thank you very much.

    I hope everyone who can make it to the meeting tonight does so. Or if you're out of town for the holidays like me, send an email to the City Council. You don't have to be a bloviating lawyer either. A couple of sentences from everyone in town will speak volumes. Happy Thanksgiving.

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    1. You shouldn't read the Tattler, John. There are all kinds of bad things on it.

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    2. John your letter was very powerful. Thanks and have a great Turkey Day

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    3. Thank you for so generously sharing your time and expertise. I am grateful for you!

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  13. If they build up at one Carter,parking will be impossible downtown.

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  14. All local realtors and local developers are against One Carter and Stonehouse!
    Why? Because they are cut out of the Chinese pie. None of them will make a quarter out of this deal.
    Only officials that can be tempted with money or political power or both.

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    1. Wow. They have, to use Rodney King's timeless words, brought us together.

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    2. hmmmm cutting out the local realtors...I'm starting to like this Chinese developer....

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  15. The good news is the Chinese investors almost always get a bad deal. They pay through the nose for bad real estate deals.
    Look what's happened to their investments in Canada...almost all have been a bad deal for these people .
    Remember back in the 80s when the Japanese were buying up big expensive properties? Everyone was so afraid they were buying us out. Well.....look what happened.
    China has worse problems
    Hang tough Sierra Madre .
    Smart guys like Matt Bryant and John Hutt and the Tattler will prevail

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  16. Remember, this house has been approved by the planning commission. Three City Council members must vote to overturn the planning commission and Arizmendi (who opposes the project) lives across the street from it and can't vote on it.

    That means at least two of the three dudes must vote to overturn the planning commission. Cappocia will vote to overturn the planning commission because he is an engineer and they always think everyone other than themselves is wrong. That leaves Goss the Mysterious and Finger to the Wind Harabedian.

    Harabedian is the weak link here because he is running for re-election and doesn't want to earn the ire of the peasants with long memories.

    My suggestion is to 1) remind Gene Goss that he campaigned as anti-development and 2) tell Harabedian that he was elected to represent the RESIDENTS not developers.

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    1. We might be looking at something bigger here. I believe the mayor realizes where things are going politics-wise in this town, and doesn't see much future in being known as Mayor McMansion. My $2 prediction is this one is going back to the planning commission.

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    2. The Civility Party Era will officially be consigned to the dustheap of history this evening. Now try and figure out what is replacing it.

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    3. if Harabedian is running for reelection, will he dust off the photoshopped SMPD photo and use it as another endorsement of him?

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  17. The council will vote in our favor.

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    1. I'll tell you one thing. It will be a hell of a show. There is nothing on TV tonight that will be as entertaining as what is going down at city hall tonight. Trust me.

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  18. 12:13, Cappocia is going to be the first one to fold. You have not been learning about the man. You watch, he will fold because of the lawsuits and we the public deserve what we get because we voted down the UUT.

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    1. Capoccia does seem to have a talent for letting people down. Hopefully tonight that bad streak ends.

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  19. First shocking piece of information for the evening. Nancy Walsh is not present for public comment. At least so far.

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    1. Some good news. Adele Chang and Lawsuit Richie are here. Comedy is not dead in Sierra Madre. They are seated right behind the public comment podium, so they will be visible on SMTV3 all night long!

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  20. The room is mostly filled, but there are a few seats available. If you are coming down I would suggest you hurry. The seat next to Lawsuit Richie is empty. As hard as that is to believe.

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  21. Turf rebate program?

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  22. The main event has now begun. They are showing a picture of Adele's slanty shanty upside the hill now. The Interim Director of Community Preservation will now be instructing us on the issues at hand.

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  23. The slanty shanty is smaller, has added and lost things, is now an earth tone rather than creamy, all stuff we have heard before. Oh, and replacement trees. Like someone who would buy such a thing wouldn't hack them all down the first chance he gets.

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  24. The interim director of community preservation has gotten the dates wrong on her slides. They say 2014 when they should have said 2013. A good catch by the Mayor.

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  25. The interim director of whatever has given quite a sales pitch for approval.

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  26. Ooh, the new house will fit in design-wise with an existing barn!?

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  27. Lawsuit Richie has now ascended to the podium. He hasn't said "self-serving BS" yet, though the night is young. Perhaps Nancy Walsh will appear to help loosen him up on the language issue.

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    1. LR seems restrained this evening. At least so far.

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    2. Slipping away from restrained now...

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  28. Adele has now taken the podium. She seems especially well lacquered this evening. She has noted the length of this process, which has been two years.

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  29. Adele is showing pictures of big houses. She's has pulled out one of her favorite old tricks for the occasion.

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  30. Spanish style, Monterey style, Craftsman style, Adele is not afraid to bring us a variety of styles.

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  31. Adele's pictures of homes around town violate the owners's intellectual property rights. The owners can sue her for using the pictures for a for-profit enterprise.

    Who here really thinks she got a release from all those owners?

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    1. I agree. Who would give permission to have their house used to justify Adele's project?

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    2. Good point. She probably just drove around looking for big houses that would justify McMansions at One Carter. At least in her mind.

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    3. Big houses need big dogs to keep the McPaparazzi away.

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    4. "the owners intellectual property rights"? you're kidding, right?

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    5. Can I take a picture of your house to justify the building of a dog kennel?

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    6. Google it up, 8:08. Don't make yourself look stoopid

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    7. It's too late for 8:08.

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  32. Adele is very boring. Somebody give her a beer.

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    1. Santa Barbara style! Not to be confused with Monterey or French Colonial.

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  33. Micro adjustments

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  34. Adele has stopped talking. Uh oh, now she is back.

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  35. The mayor is cross examining Adele. He has scored a couple of points. I think he is going to play hero tonight.

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  36. Mayor Johnny vs. Lawsuit Richie. The battle has begun.

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  37. Mayor Johnny is nailing Lawsuit Richie, and he is starting to redden.

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  38. Steam is beginning to rise from Richie's tight white collar.

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  39. If I were on trial for murder, I would REALLY not want McDonald as my attorney.

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  40. McDonald is known as an expert on real estate development law but he is a goofy physical presence.

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    1. His movements are similar to those of Woody the puppet from Toy Story.

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  41. Screening trees will save the plan!

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    1. How many movies will you be showing on your screening tree?

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  42. McDonald is a goof in suits that are too tight but is a tiger in legal filings...which is where it counts.

    The silver tongued devils fool the clients but not the judges.

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  43. Lawsuit Richie and Adele are sending emails on their iPhones, not listening to the residents

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    1. Richie "Don't Call Me Ronald" McDonald & Adele are actually using their phones to check The Tattler's comments.

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    2. Yo, sup Delly Dell!

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  44. Heather's talk has turned Lawsuit Richie the color of a stop sign.

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  45. The developers are so clearly not willing to listen to feedback from OUR community

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  46. I wonder if Richie and Adele have begun to think that this abuse is not worth the money.

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  47. Aww, Richie is whining about the comments.

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  48. Richie has now stated that he never intended to sue Sierra Madre. Great! Then let's reject the house.

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  49. Richie McD: "Can't we all get along?"

    I won't sue you. No, really. I won't. You can trust me, I'm an attorney.

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  50. The house is going down tonight. Anybody surprised? I'm not.

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  51. The Mayor has asked the applicant if they want to continue trying. Richie says the client representative says CETT won't going to go along with this, so maybe the 8:59 comments are no longer operative? Or, maybe they are.

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  52. Harabedian and Capoccia are attempting to pull defeat from the jaws of victory. And (surprise!) the City Attorney has now jumped in.

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    1. Exactly. I totally agree.

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    2. That 1 1/2 hr closed session is paying off.

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  53. Perhaps John Harabedian is both a lawyer and an architect?

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  54. And now we get a City Council subcommittee to help save CETT's bacon. At least Denise Delmar is on it.

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  55. So all of this "process" comes to 20 square feet off of that house? Is that where we are going? Is that all there is?

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    1. One of the Council members should have moved to deny. WTH. Formally vote and see who really loves Sierra Madre.

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    2. Trench warfare. Huge battle, thousands die, 10 yards gained.

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    3. Well put, 9:44.

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  56. One more chance for CETT. "Significantly reduce the second story mass" and then it'll be good to go.
    So CETT will do that, and we'll have a "less bad" development in the hillsides.

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