No conflict of interest in commissioner's live-work vote

Laguna Beach Planning Commissioner Linda Dietrich's comments during a public hearing on a proposed artist live-work project in September did not constitute a conflict of interest, according to a memo sent by City Atty. Phil Kohn to city staff and the council Wednesday.

Resident Roger Butow, writing on behalf of the Laguna Canyon Property Owners Assn., claimed a statement by Dietrich indicated she could have a bias toward a 30-unit artist live-work project, which the council approved last week on a 3-2 vote that denied an appeal by the association.

"I have to state that I have a prejudice from the beginning because I was on the Arts Commission before I was on the Planning Commission," Dietrich said at the Sept. 25 hearing.

Commissioners took no action on the project at the meeting and held an additional public hearing in November. They approved the Laguna Canyon project by a vote of 3 to 2 on Jan. 8, with Dietrich, Ken Sadler and Anne Johnson voting in favor.

"We believe that it should never have gone before the City Council on April 1," stated an email the association sent to city staff and council members on Saturday. An association representative brought up the conflict of interest claim during the public comment portion of Tuesday's meeting, but didn't identify Dietrich as the specific commissioner.

In the email, the association argued that "Dietrich should have never taken part in [live-work] deliberations nor had the chance to influence other commissioners," and that a vote taken with her presumed recusal on Jan. 8 would have produced a 2-2 vote, in essence killing the project.

After researching court cases, Kohn determined Wednesday that Dietrich's comments did not constitute a conflict of interest, and even if they did, the council's April 1 vote renders any previous Planning Commission vote moot.

"We carefully investigated the allegations" of Roger Butow, founder and executive director of Clean Water Now, a company that develops safe and sustainable water supplies, Kohn's memo said. "The alleged statements attributed to Commissioner Dietrich are not accurate as a factual matter."

The city's municipal code says a conflict of interest exists when "the public official, because of bias or prejudice, or because he [or she] has prejudged a matter set for public hearing is incapable because of such bias, prejudge or prejudgment of granting to the matter before him [or her] a fair and impartial hearing."

But public officials are not barred from having opinions and airing those views on city matters, Kohn wrote.

In his memo, Kohn said Dietrich's comments were more general regarding artist live-work.

"Her actual remarks made no reference to the project whatsoever, much less the specifics of its location or design," Kohn wrote. "Based on remarks she made at that meeting and at other Planning Commission meetings on the project, it is apparent that Commissioner Dietrich was intending to say simply that she was very supportive of the artists' [live-work] concept and the regulations in the city's zoning ordinances that permitted such projects."

Butow, who could not attend Tuesday's council meeting, acknowledged in an email Thursday that since Dietrich was not specifically identified during the hearing, staff and council members could not effectively discuss the conflict-of-interest concern.

"I don't 100% agree with [Kohn's] analysis or conclusions," Butow wrote. "I still think that it could be pursued successfully by a good civil rights firm, but without too much of a brain strain, it was patently obvious that a great deal of his rebuttal was based upon one simple fact: No name was specifically offered."

John Hamil, the association's vice president, indicated in a phone interview Tuesday that he intended to appeal the council's decision to the California Coastal Commission.

The association claims the project at 20412 and 20432 Laguna Canyon Road violates parts of the Laguna Canyon Annexation Area Specific Plan and should have required an environmental impact report.

"We feel that the [mitigated negative declaration] inadequately addressed water quality and hydrology impacts," Hamil wrote in an email.

Peer-reviewed studies from geologists, biologists and water-quality engineers — filed with the city — show that the project meets environmental requirements and does not need an EIR, former city planner Carolyn Martin said.

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