Bay Drive project gets a split decision

Approval of a project proposed more than 10 years ago by Charles and Valerie Griswold for their property on Bay Drive in Three Arch Bay came down to one foot on Tuesday.

The City Council wrestled for more than an hour to determine whether the proposed eaves atop an elevator enclosure should be one-foot wide, six inches wide or be eliminated altogether before approving the wider width. The project has been in the works since 1997, a woeful history of reviews, revisions, a request for a rarely heard permit revocation hearing, acrimony, accusations of fraud and dishonest conduct and litigation.

“It has been an emotional and financial nightmare for the Griswolds,” said their attorney Gene Gratz, who represented the family at public hearings. “But as far as the city is concerned, as of Tuesday, the Griswolds will be allowed to proceed with construction.”

However, neighbors who have opposed the project have an appeal pending in the Fourth District Court of Appeals on a previous council approval of revisions made at the Dec. 5, 2006 meeting. The opponents firmly believe and have alleged publicly that measurements on plans were fudged and approvals were based on fraudulent information.

“That challenge was denied by the trial judge and city Attorney Philip Kohn’s motion to dismiss was granted,” Gratz said. “They have no case, but I wouldn’t be surprised if they appealed Tuesday’s decision in court.”

Sid and Lesley Danenhauer have been battling the project for about 10 years, Craig and Kathleen Miller for five years.

“We believe we are fighting for the right thing, accurate plans and following the rules,” Sid Danenhauer said.

The Griswolds hired local architect Jim Conrad in 1997 and the plans he prepared were approved in 1998.

Although the Danenhauers opposed the project at the Design Review Board hearings, they did not appeal the approval to the council.

Despite a delay in the Coastal Commission process, a building permit was issued, then revoked in 2003 by Community Development Director John Montgomery when he determined that the coastal development permit was not properly issued.

The Griswolds appealed the permit revocation to the council in June 2004 and the building permit was reinstated, bitterly opposed by the Danenhauers and the Millers, but not appealed to the court, which was their right.

Conrad submitted the council-approved plans that same year to the coastal commission, which requested some changes, including a reduction in the footprint of the proposed single-family home to bring it within the “string line” — the projection of adjacent homes along the bluff — and a new topographical map, which would reflect conditions of the parcel after repairs to the eroded slope.

“The city staff said the changes required design review and the board approved the changes which the Danenhauers appealed in March of 2005,” Gratz said.

Then-Councilwoman Toni Iseman indicated she thought the new topography made the whole project subject to review by the board and she felt the project should be re-staked for certification that the dimensions were accurate. The only time staking was certified was in 1998.

The council remanded the project to the design board and the Griswolds appealed the decision to the Orange County Superior Court

Before a court could render a decision, the Danenhauers requested a revocation of the building permit.

“The Griswolds’ suit was put on hold by mutual agreement with the city, the Griswolds and their attorneys,” Gratz said.

Permit revocation is a rare event in the city’s history, Kohn said at the time.

The hearing was held Dec. 5, 2006 and resulted in no revocation, but a modification to the elevator structure, reducing its width by 1 ½ feet.

“Council directed that a council sub-committee should review and confirm a subsequent staff determination that revised plans as submitted conformed to the approved modification,” Montgomery said.

The Council’s action was appealed to the Orange County Superior Court by the Danenhauers and the Millers.

“The council found in December that the approvals had been obtained by misrepresentation or fraud,” Danenhauer said. “The city attorney argued that the council has the unqualified discretion to revoke or modify the project.”

Kohn said the council’s findings were not explicitly stated but implied, and were fundamental to the city’s ability to order a modification of the project and therefore not an abuse of power.

“They chose to modify it,” Danenhauer said.

Revised plans, which included reducing the width of the elevator structure from 12 ½ feet to 11 feet, were submitted on behalf of the Griswolds.

City staff determined the revisions were consistent with the Dec. 5 council action, but not all members of the sub-committee agreed, according to Montgomery, and the revised plans were presented for review at the Aug. 7 meeting.

The council agreed with staff’s interpretation that the structural changes to the elevator complied with the council direction but asked for a further reduction to a nine-foot width, with which the Griswolds voluntarily complied.

Then at the Sept. 4 meeting the Danenhauers and the Millers questioned during a review of the minutes of the Aug. 7 meeting whether the council meant to include a reduction in the eaves atop the enclosure or just the structure. Council couldn’t decide and continued the discussion to the Sept. 18 meeting.

The minutes were approved at the Sept. 18 meeting, but the council voted 3-2 to hold a hearing on the staff’s interpretation of how the width of the elevator structure was measured — whether the nine foot-width included the eaves.

Mayor Toni Iseman said the reduction of the eaves should be in proportion to the reduction of the elevator enclosure.

Montgomery said eaves are an architectural feature generally consistent in size throughout a project. The eaves on the plans for Griswold home are all one-foot wide. He calculated that a proportionate reduction would make the eaves nine-elevenths of a foot.

“The minutes are accurate but I don’t recall hearing a word about eaves,” said Mayor Pro Tem Jane Egly, who voted on Tuesday with Mayor Toni Iseman against the approval of the one-foot width. “My intent is to reduce the structure and I would like it all to be nine feet. However, I would work with other council members and I would agree to 10 feet [eaves width].”

Councilwoman Cheryl Kinsman concurred.

“If the Griswolds would be willing to reduce the widest part to 10 feet, I’ll vote for it,” Kinsman said. “I am in the middle of a 2-2 council and believe me, it is not where I want to be.”

Griswolds’ attorney said they would have agree to six-inch eaves with some strings.

“If you [the council] tell the Griswolds that you will put this matter away tonight, and if the Danenhauers and Millers will agree to [withdraw] their appeal of the Superior Court decision — which is rock solid — or to the Coastal Commission, they will agree,” Gratz said.

Councilwoman Elizabeth Schneider said the only way she would agree to the narrower eaves was if the Danenhauers agreed to drop their suit.

At this point in the discussion, Kohn requested a closed session to discuss pending litigation.

When the council returned to the dais Kinsman, who had not considered the width of the eaves in previous discussions, posed the question to the Millers and the Danenhauers: Would they comply with Gratz’ offer?

“Asking me to waive my rights is pushing it,” Craig Miller said. “It’s absolutely out of the question.

Kinsman said “I’ll take that as a ‘no’.”

She opined that left the council two choices: approve the nine-foot structure with one-foot eaves on either side or accept the original reduction from 12 ½ feet to 11 feet with one-foot eaves, and moved approval of the one-foot eaves, seconded by Councilman Kelly Boyd.

The next move, if any, is up to the opponents of the Griswold project.

“We are keeping all legal options open, including the appeal already in the courts, as well as an appeal of Tuesday’s decision,” Danenhauer said.