After three years of planning to renovate a 1950s-era Laguna Beach resort, developer Mark Christy obtained Coastal Commission approval in early 2015 to allow the project in scenic Aliso Canyon to go forward.
This month, the powerful land use agency will have to defend that decision in Los Angeles County Superior Court.
“The Yosemite of Laguna Beach is too important to leave to developers and commissioners behind close doors,” said Mark Fudge, a Laguna resident who has accused a panel member of having illegal, behind-the-scenes communications with Christy before approval was granted. “Public officials should be open and impartial, and not just open for business.”
The lawsuit is one of at least four heading through California courts this summer that challenge Coastal Commission decisions partly on the grounds that its members have had improper private contacts with permit applicants — so called ex-parte communications.
If successful, the cases could overturn development permits for the Laguna Beach resort, the South Silver Shoals housing project in Pismo Beach and a storage facility for high-level radioactive waste at the deactivated San Onofre nuclear power plant.
The public cannot be well served if the decision-makers are saying: ‘Just trust me.’
Ex-partes are verbal or written communications between one or more commissioners and interested parties that could influence decisions by the agency that oversees development and the use of marine resources along 1,100 miles of coastline.
Legal experts say such contacts threaten the fairness of the agency’s decision-making process and expose it to lawsuits.
The state attorney general’s office over the years has warned coastal commissioners not to participate in private communications with builders, lobbyists, environmentalists and others with a stake in business before the panel.
By law, commissioners must disclose any communications with interested parties that occur outside of an official public meeting within days. Those who fail to do so face fines of up to $7,500 and may be prohibited from voting on the matter that was discussed.
Fudge’s lawsuit alleges, among other things, that commissioner Wendy Mitchell participated in several undisclosed ex-parte communications with the developer of the Laguna Beach resort. Those supposedly included a coaching session by Christy or one of his representatives.
At the public hearing, Mitchell made the motion to approve the project and remove various conditions recommended by staff but opposed by the builder.
The lawsuit also points to three e-mails between Mitchell and Christy in which they discussed the project. He alleges that no ex-parte disclosure forms were filed.
Coastal Commission attorneys deny the allegations. Specifically, they said, copies of the e-mails were forwarded by Mitchell to staff and other commissioners, which satisfied the reporting requirements.
“All three were properly disclosed, and we see no violation of the Coastal Act’s … rules,” said Louise Warren, the panel’s deputy chief counsel.
Commissioner Erik Howell has also been accused of failing to report ex-parte contacts — with the builders of a proposed 19-unit housing project in Pismo Beach.
That case, brought by Marilyn E.S. Hansen in San Luis Obispo County Superior Court, seeks to overturn the permit granted in November 2015 to the South Silver Shoals development.
During the commission hearing, Howell — who also is a Pismo Beach councilman — made a motion to drop conditions related to view protection and public access that the developer had opposed.
Hansen’s attorney, Robert Gundert, contends that three e-mails between the builder, the project’s architect and a Coastal Commission staff member indicate Howell may have had several contacts that he did not report.
According to Warren, however, Howell has asserted that no undisclosed communications took place. A hearing in the case is scheduled for August.
Similar allegations are pending in an Orange County Superior Court case that challenges a January 2015 decision by the commission to approve construction of 30 work-live rental units for artists off Laguna Canyon Road in Laguna Beach.
Friends of the Canyon, an environmental group, accuses six commissioners--Greg Cox, Erik Howell, chairman Steve Kinsey, Martha McClure, Effie Turnbull-Sanders and Mark Vargas--of failing to properly disclose ex-parte communications they had in December 2014 with a representative of the developer.
The lawsuit alleges that the disclosures were incomplete, unsigned, undated, late or in the case of Kinsey’s and McClure’s written reports missing entirely.
Commission attorneys contend the alleged “technical deficiencies” and untimely disclosures of ex-parte communications do not justify overturning the project’s approval because there is no indication they affected the commission’s decision. They note that commissioners reported their ex-parte contacts in writing or verbally.
A hearing is set for July 12.
The San Onofre lawsuit involves a unanimous commission decision in October 2015 that allowed Southern California Edison to build a facility — about 100 feet from the ocean — designed to store assemblies of spent radioactive fuel pellets.
Citizens Oversight, a nonprofit watchdog organization, has alleged in San Diego County Superior Court that the commissioners violated state open meetings laws by participating in 15 ex-parte communications with Edison officials during a two-month period before the decision.
Michael J. Aguirre, a former San Diego city attorney who represents Citizens Oversight, contends the contacts prevented a fair hearing on the project because commissioners allegedly committed their support for the storage area in secret.
Commission attorneys have yet to file a response to the allegations, they said, due to a pending motion by Southern California Edison to dismiss the case.
Ex-parte communications have become a hotly debated issue following the Coastal Commission’s firing in February of executive director Charles Lester amid concerns that some panel members were becoming too close to developers.
Then in early June, commission chairman Steve Kinsey — who had failed to disclose two ex-parte contacts with developers— recused himself from voting on the controversial Newport Banning Ranch project.
The residential and commercial development, which will come before the panel later this year, is located on the largest remaining parcel of undeveloped coastal land in Southern California.
“There are real risks to this commission for those who don’t pay attention to that law,” Kinsey said in explaining his decision.
A bill to prohibit ex-parte communications is making its way through the Legislature.
Attorney Steven Weissman, a lecturer at UC Berkeley’s Goldman School of Public Policy, said the Coastal Commission was not alone in being dogged by such issues of transparency.
Along with lawyer Deborah Behles, Weissman has examined the use of ex-parte communications at the California Public Utilities Commission. E-mails showing that CPUC officials had improper contacts with utility operators whom they oversee are at the center of a controversy at that agency.
If a culture of sanctioning private meetings is maintained, Weissman said, it leaves the judgment up to the individuals involved as to whether an ex-parte communication is going to sway them.
“That is not how an adjudicative process is supposed to work,” Weissman said. “The public cannot be well served if the decision-makers are saying: ‘Just trust me.’ ”
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