JUDGE REJECTS OK OF LAGUNA PROJECT
Jurist cites in part California coastal commissioners’ lack of transparency on ex parte meetings.
An Orange County Superior Court judge Thursday threw out the California Coastal Commission’s approval of a Laguna Beach apartment building, citing in part commissioners’ violation of public disclosure laws.
The decision again casts a spotlight on some commissioners’ haphazard adherence to Coastal Act requirements that they promptly report contacts with developers, environmentalists and others that occur outside official proceedings.
Judge Kim Dunning found that six commissioners who voted on the apartment project in January 2015 should not have done so because they had not properly disclosed so called ex parte meetings involving the proposal.
“When commissioners do not satisfy the statutory requisites, they lose the right to participate in the hearing and the vote. These consequences are not to be dismissed as technicalities, they strike at the fundamental fairness and integrity of the process,” Dunning wrote.
The judge also found that the Laguna Canyon proposal did not conform to local coastal plans that call for small-scale development and maintenance of the canyon’s rural character.
“With 30 residential units, plus work space, plus retail space, plus a 47-stall parking garage, all on a parcel smaller than one acre, the Project does not qualify as small-scale or rural. It would be a stretch to label the project suburban, but easy to label it urban,” Dunning stated in the 19-page ruling.
Commission spokeswoman Noaki Schwartz said her agency was reviewing the order and did not have
further comment.
Commissioners are required to file disclosure forms within a week of an ex parte contact. If meetings occur within seven days of a hearing on the matter, commissioners must report them orally at the hearing.
The judge devoted five pages to the various ways commissioners had not followed the rules in the Laguna Canyon case: Disclosure forms were not in the commission’s official files before the hearing, were signed and dated more than a week after the contact or were nowhere to be found in the administrative record.
If that were the only issue, Dunning would have revoked the development permit and ordered the commission to rehear the project, according to the decision.
But in light of the finding that the project violated local coastal standards, the proposal is dead, said attorney Julie Hamilton, who represents Friends of the Canyon, the group that challenged the project.
The developer’s attorney could not be reached for comment.
Ralph Faust, the commission’s general counsel from 1986 to 2006, said that to his knowledge Thursday’s ruling was the first to cite ex parte violations as a basis for overturning a commission decision.
Hamilton, who worked as a commission planner years ago, said the ex parte problems became apparent at the project’s 2015 hearing.
A member of Friends of the Canyon had checked commission files a week before the hearing to see which commissioners were being lobbied on behalf of the development — so the group could contact them and urge a no vote.
Only one disclosure was in the file. But at the hearing, commissioners reported a number of meetings that should have been disclosed earlier.
“Little did I know that disclosures were going to be the thing,” said Hamilton, who filed the court petition in early 2015, nearly a year before commissioners’ dismissal of Executive Director Charles Lester heightened public and media scrutiny of the powerful coastal panel.
That attention has led to allegations of extensive ex parte violations. A lawsuit served this month against five commissioners accuses them of violating disclosure requirements a total of 590 times during the last two years.
If courts uphold those allegations, individual commissioners could face civil penalties that, in two cases, could total more than $5 million.
Several other lawsuits are challenging coastal development permits partly on the grounds that commissioners improperly disclosed their ex parte contacts.
“They’ve gotten a lot of heat lately,” Hamilton said. “Hopefully it will change the approach they take.”