Appeal of Project May Have Broken State Law : Thousand Oaks: A judge says the council’s ’92 action on a Newbury Park development might have violated the open-meeting statute.

Stopping short of a final ruling, a Superior Court judge said Tuesday that the Thousand Oaks City Council may have violated state law when it appealed--and ultimately rejected--a controversial development.

Judge Melinda Johnson said the council might have broken the state’s open-meeting law when it voted in July to appeal the Planning Commission decision approving Nedjatollah Cohan’s plans to build a housing and shopping center complex in Newbury Park.

“I am concerned that the appropriate appellate process was not followed and that a vote was taken on a non-agenda item,” Johnson said during a four-hour hearing Tuesday on a lawsuit brought against the city by the developer.

Cohan sued the city after the council rejected his plans to build a shopping mall and 170 homes on his 47-acre parcel, situated on a flood plain at the southwest corner of Reino Road and Kimber Drive.

In his lawsuit, Cohan contends that there had been no appeals filed by residents and therefore the council had no right to appeal the Planning Commission’s decision. Cohan also charges that the council violated California’s Brown Act because the appeal issue was not on the council’s July 7 agenda.

The council actually voted July 29 to reject the Cohan project after a seven-hour public hearing.

The suit asks the court to rescind the council’s decision on the project.

But City Atty. Mark Sellers argued Tuesday that the City Council decided to appeal the Planning Commission decision out of a sense of urgency, and that this is permitted under the Brown Act. Sellers said dozens of people turned out at the July 7 council meeting to demand that Cohan’s project be denied because of environmental concerns.

Sellers said in court Tuesday that residents complained that the development would have destroyed sensitive wetlands. He said they also voiced concerns that the shopping center would have increased traffic and air pollution in their quiet, residential neighborhood.

“The council was responding to a group of citizens who said, ‘We want you to appeal this decision,’ ” Sellers said. “They specifically asked the council to add the item to the agenda and appeal the project.”

Johnson said she is not certain that city’s definition of urgency is valid.

“I don’t see anything in the Brown Act that supports the argument that when a large group shows up at a City Council meeting that changes the Brown Act,” she said.

R. David DiJulio, Cohan’s attorney, contended that the council’s action was a “political action” based solely on public testimony. He said former Mayor Robert E. Lewis and Councilman Frank Schillo were up for reelection at the time. Lewis lost his reelection bid.

“This was a political accommodation,” DiJulio said. “There is nothing wrong with this project. The Planning Commission went through the project with a fine-tooth comb, and they had 520 conditions of approval. It met all of the city’s requirements.”

Johnson said she needed more time to consider the case. She did not say when she would issue a ruling.

About a dozen Thousand Oaks residents attended Tuesday’s hearing. They said they are vehemently opposed to the project because it would change the character of their quiet neighborhood.

“I just don’t think a commercial development there makes sense,” resident Ricki Mikkelson said.

Both sides have said that if Cohan wins the lawsuit, he will be allowed to proceed with his development. If the city wins, the council is expected to attempt to rezone the property to block future commercial development.