|Back in 2014 there was this. It is now coming back.|
There will be a public hearing on June 12 at 6:30, during which the City Council will decide whether or not to rescind its denial of the Planning Commission approved house on Lot 24 of One Carter/Stonegate.
If the council allows for this house to be built, the lawsuit will be settled. This is the only lawsuit the city has with CETT, and it concerns just this lot. If the city settles, each house that follows will have to be custom built and go through the planning commission. If the lawsuit is lost, a judge would decide what could be built.
Nothing in the plans for the house has changed since the Planning Commission approved it on 10/16/2014. The details are found in Exhibit B of the archived staff report (link).
Mod: Back in 2014, when all of this was going down for the first time, John Hutt wrote a very eloquent letter on the topic, which I then posted here. Since we're now in deja vu mode on this one, here it is again. Not all that much has changed, except perhaps the City Council's willingness to give in.
John Hutt: I 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.
|CETT Attorney Richard McDonald on the drought (link).|
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.
|CETT Attorney Richard McDonald speaks to the Planning Commission (link)|
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.
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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.
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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.
Mod: Sadly, John Hutt's methodology doesn't seem to be in play with the City Council as much as in 2014. Rather we're hearing that the project is moving forward to avoid a lawsuit. But isn't that how Sierra Madre got into its One Carter mess in the first place? And if one lot falls, what about the others?