Ruling Favors Housing Developer : Thousand Oaks: State appellate court says the city wrongly denied Nedjatollah Cohan the right to build project that planners had approved.

In a stinging rebuke to the Thousand Oaks City Council, a state appellate court Monday ruled that the city wrongly denied embattled developer Nedjatollah Cohan the right to build a 47-acre housing and commercial development in Newbury Park.

Deciding that the council “simply submitted to the roar of the crowd,” the three-judge panel unanimously declared that the city erroneously overturned the Planning Commission’s approval of the $26.5-million project in 1992 amid complaints from community and environmental groups.

Cohan and his son, Albert, had met about 500 conditions imposed during a 15-year battle with the city, only to watch the costs of their stalled development at Reino Road and Kimber Drive push them to the brink of bankruptcy.

The ruling, which attorneys said could alter the way cities review construction projects statewide, was seen by Albert Cohan as a “victory of the righteous over the wrong-doer, even though the wrong-doer is a million-dollar entity.”

His lawyer, Wendy Lascher, said: “One thing that’s clear from this is you can’t evade due process just because a lot of citizens demand that you do it.”

City Atty. Mark Sellers said he was disappointed with the ruling and was concerned that it could force the city to revamp the procedures it uses in development cases.

“Sure we’re upset about this,” Sellers said. “The Cohans had a fair hearing. They had more than 20 minutes to argue their case. How can that be unfair?”

*

As approved by the city Planning Commission on June 29, 1992, the development would transform a rolling brushland into a tract of 26 homes, 144 townhouses and 117,600 square feet of commercial property, including a supermarket.

But the City Council, at the urging of about 200 opponents on July 28, 1992, rejected the project amid protests about traffic, housing density, noise and the threat to two creek beds.

The elder Cohan, who collapsed after the 3-2 council decision at about 3 a.m., later contended in a Superior Court suit in Ventura that the city in effect appealed the Planning Commission’s decision to itself.

On May 28, 1993, Superior Court Judge Melinda Johnson agreed with the Cohans, ruling that it was improper for the city of Thousand Oaks to appeal its own planners’ decision, rather than act on an appeal by an interested party. She also concurred that the city had violated laws on notification procedures.

But she ultimately held that the city’s actions did not change the final outcome of the case, since other parties likely would have appealed anyway. The Cohans appealed her decision the same day.

In his written opinion Monday morning, Presiding Judge Steven Stone of the state Court of Appeal, stated: “Can we permit the council as ‘appellate’ to prove to itself . . . that the Planning Commission was in error? To ask the question demonstrates the absurdity of permitting the council to appeal to itself. Fairness and due process vanish.”

Sellers said the city now must weigh several options, including appealing the ruling to the California Supreme Court or settling the matter with the Cohans.

Times correspondent Matthew Mosk contributed to this story.