Council accused of Brown Act violations

The 10-year battle over Bay Drive continues.

Opponents of the South Laguna project have accused the Laguna Beach City Council of violations of the Brown Act, which lays out how the public’s business can be conducted.

A letter from an attorney representing Sid and Lesley Danenhauer, and Kathleen and Craig Miller alleges the council exceeded limitations set by the act on its discussions of the project at 29 Bay Drive in Three Arch Bay at three separate meetings. The allegations will be reviewed as pending litigation by the council in closed session prior to the Nov. 6 meeting.

“In my opinion the council did not exceed its authority,” City Attorney Philip Kohn said.

Attorney Randall S. Waier contended in his letter that the council had conducted discussions prohibited by the Brown Act at hearings on Aug. 7, Sept. 18 and Oct. 2, improperly conducted a closed session at the Sept. 18 meeting and taken action beyond the scope of the agenda.

The Danenhauers and the Millers are demanding the actions taken at those meetings be nullified.

A revised plan that reduced the size of an elevator structure — one of the bones of contention raised by the Danenhauers and the Millers — was approved on a 3-2 vote at the Oct. 2 council meeting.

If the council nullifies its actions, as requested, Kohn said he could see no reason why the project proposed by Charles and Valerie Griswold could not proceed as approved Dec. 5, 2006.

The Aug. 7 hearing was held at the request of the Danenhauers and Millers, who asked for a clarification of the conditions of the Dec. 5 approval. Waier said the council went beyond the request for clarification, and discussed, considered and approved changes in the plan.

Further, Waier said, the council erred at the Sept. 18 meeting by discussing issues relative to the width of the elevator shaft on the project and seeking from the Griswolds approval of trimming the shaft even more than they had already agreed. A discussion of the width of the eaves on the elevator was cited.

Waier also contended the council violated Brown Act requirements for a closed session, which was held during the public hearing at the Sept. 18 meeting to discuss pending litigation, Miller v. the city of Laguna Beach, by failing to report on the discussion.

The Brown Act permits a body to meet in closed session to receive advice from its legal council concerning existing litigation, initiating litigation or situations involving a significant exposure to litigation. Final action, if taken in the session, must be reported when the public hearing resumes.

Waier objected to the council’s public discussion at the Oct. 2 meeting, which included consideration of a further revision to the Dec. 5 approved plans. Waier stated the council was only supposed to discuss the “staff interpretation” of the council’s former directives but went beyond that consideration when it agreed the staff interpretation was correct, and “with the concurrence on the part of the applicant to reduce the elevator to nine feet in width.” Nor should the council have suggested more reductions if the Danenhauers and Millers would drop their appeal — also not agendized, Waier said.

“The council can discuss issues as long as they pertain to the subject matter on the agenda,” Kohn said.

The Oct. 2 agenda item 16 read “Elevator Shaft Width at 29 Bay Drive. Determination as to whether the elevator structure should be measured from the exterior walls of the structure or from the edges of the roof eaves on top of the structure.” The motion, which carried 3-2, Mayor Toni Iseman and Mayor Pro Tem Jane Egly opposed, was that the elevator shaft shall not exceed an external width of nine feet and that the eaves may extend up to one foot beyond the shaft on each side for a total eave-to-eave width of 11 feet, including any gutters.

Kohn opined that the scope of public discussion is often dictated by the public.

Councilwoman accused of conflicts

Waier’s letter was hand-delivered to the City Clerk’s office two days after the council’s Oct. 16 meeting, at which Sid Danenhauer and Kathleen Miller raked Councilwoman Elizabeth Schneider over the coals for, among other things, not recusing herself from voting on the project because her husband works for a firm employed by them.

Schneider had cleared her participation with Kohn when she learned the project opponents had hired Hunsaker and Associates to review the Griswold project.

The project opponents also accuse Schneider of having a bias toward Jim Conrad, the Bay Drive architect.

Kohn said all claims raised at the meeting and all evidence supporting those claims were afforded an opportunity to be heard in a court of law and each and every one was rejected and that judgment entered in favor of the city on all counts.

The Griswolds’ attorney, Eugene Gratz, called the comments about Schneider vicious, scurrilous and untrue.

Gratz acknowledged he is not an objective observer, but he said his involvement for the past three years as the Griswolds’ legal advisor puts him in the best position to comment.

“If anyone would have had cause to complain about Schneider’s participation, it would not be the people who had hired the company where her husband worked,” Gratz said Tuesday.

Danenhauer on Tuesday denied his comments were a vicious attack.

“It was not,” Danenhauer said. “I made three points. First, her [Schneider’s] husband is an officer of the firm we consulted. Second, the close relationship between Schneider and [Griswold project architect Jim] Conrad is documented in a story on the MTV show about Laguna in which she said she had asked Conrad’s daughter and another cast member to launch a young voters’ registration drive as part of her reelection campaign, and she listed the Conrads as supporters.

“Third, people have told me she expressed personal animosity toward me because of a flier about the election and the Bay Drive project.”

Danenhauer said he could not recall if the question of Schneider’s conflict of interest was raised in the suit against the city.

“Our City Council members work long and hard for the benefit of the city — and for money that, as Cheryl Kinsman put it, is not enough to pay their phone bills for returning calls — and the council members have worked particularly long and hard on this project, as the Danenhauers and Millers have forced hearing after hearing over the years,” Gratz said, affirming comments he made in a letter he wrote to newspapers. “All that Elizabeth did was to consider the facts, and vote her conscience and reasonable belief. She should not have to be subject to such vicious attacks merely because she, along with a majority of the City Council, has finally voted to allow the Griswolds to proceed with the project they are legally and morally entitled to build.”

Danenhauer said opponents of the Bay Drive project do not believe anyone has the right to an approval gained by fraud or misrepresentation, accusations they have publicly made about the project.