To allow the Affinitos temporary occupancy under these circumstances would be to reward the wrongdoer, punish the Commission and the public, and send a message that one can profit from their wrongdoing.”— Joseph C. Rusconi, Deputy Attorney General for the State
After nearly a year of being bound and gagged by legal constraints arising from a multi-million dollar lawsuit filed against the City of Fort Bragg by Dominic Affinito, the developer of the one-story-too-tall North Cliff Hotel, the Fort Bragg City Council finally had the opportunity to release its legal defense arguments to the public last Friday.
Mendocino County Superior Court Judge Conrad Cox presided over the afternoon court hearing on a Motion by Dominic Affinito for the court to order the City to give him an occupancy permit to open his hotel while his remaining Takings and Damages claims in his lawsuit against the City are adjudicated.
Early last year, when Dominic Affinito was just starting to build the North Cliff Hotel, located just north of the Noyo River bridge overlooking the harbor and ocean, it became obvious to the predominately working class residents of Fort Bragg that when the hotel was completed, it decimated their cherished ocean view. In so doing, the building would violate the state's voter approved law, the California Coastal Act, as well as additional City's laws which were in place to protect this specific view.
While the view has given many pleasure, it has also been an integral part of the Fort Bragg community. It is the spot where retired fishermen, fishermen's wives and many others have watched (either by driving by or parked) and alerted the Coast Guard when there is trouble for boats coming in on the many times dangerous harbor break. There is no other spot like this in Fort Bragg.
At the time the hotel was being constructed, the entire Fort Bragg City Council (save one councilmember, Darrell Galli), and the City staff manager (Jim Murphey), attorney (Tom Lonergan), building inspector (Jim Spence), city financial officer (Roy Mitchell, brother of the contractor for the hotel), and planner (Scott Cochran) did everything possible to assist the wealthy developer in circumventing the building laws that everyone else has to abide by.
Each and every one of this crew claims to be an American patriot. Yet, every single one aggressively thwarted residents' every effort to get the City to uphold law and order by enforcing its codes and state law on the blatantly illegal structure. At City Council meetings they all regularly pledge allegiance to the flag.
But the good citizens of Fort Bragg did not back down. Through their sheer tenacity, the City's manager finally broke rank and attempted to halt construction, but this act of responsibility was then quickly overridden by the City's then-attorney. A letter was, however, sent to Dominic Affinito by the city manager informing him that his partially constructed hotel was not in compliance with his permits, and if he continued to build in this manner he did so at his own risk.
Affinito finished his hotel anyway. The City's Planning Commission identified the many areas where the building was not in compliance with its permits, or with local and state laws. Primarily, the height was at least 30 feet higher than the City code allowed. The permitted roof was supposed to be gray hardislate or copper; instead, it was shiny blue. The building color was to be olive green to blend the building into the dark brown and green of the surrounding topography; instead, it was painted light beige. A river rock fascia to blend the building into the rock cliff at its base was missing.
The Planning Commission made a decision that the building must be brought into compliance with its building permit and height code, at the very least. Affinito appealed this decision to the City Council.
Under then Mayor Lindy Peters, the City Council voted 4-1 to approve changes to the permits to make the permits match the already constructed building. Peters was insistent that the most egregious problem with the hotel (that it was at least one-story taller than the city codes and state law allowed) was not on the table for discussion or decision.
Just before Peters brought down the gavel to end the appeal hearing, the City's attorney, Tom Lonergan, asked if the council wanted staff to further investigate the laws surrounding the entire matter (including the height) before their 4-1 vote was finalized with “findings” (into a legally binding decision). The council directed staff to do the research. So while there was a vote, there was not a “decision.” The public's appeal period to sue or appeal to the Coastal Commission never started. This vote would later become the sole basis of Affinito's later claim in court that he had received full City Council approval for the building as it now stands.
In November, one month after this City Council vote, the town overwhelmingly elected three new City Council members (a majority of the five member council) who had campaigned on “honestly and fairness in government, for a change.” The old council voted unanimously to leave any further decisions on the hotel to the new council. (Upon hearing this news, Dominic Affinito attacked and threatened council member elect Dan Gjerde in City Hall. The newly elected councilmembers had not participated in the old council's decision.)
In December, just after the new councilmembers took office, the City Council voted unanimously (that's right, leftover council members Jere Melo and Lindy Peters, too) to rescind the previous council's vote to make the permit match the building and to uphold the city Planning Commission's decision to bring the building into compliance with the permit and laws.
By January, the new City Council had replaced Tom Lonergan with new legal counsel. The City then determined that the primary procedural and legal problem with the hotel was that the required permits did not match each other, much less the building as now stands.
It was also determined that Affinito did not have the most important permit of all, a coastal development permit, the primary permit necessary to build anything in the coastal zone. The City informed Affinito that if he applied for one (and this application reflected the hotel as it now stands) the city would issue an occupancy permit (so he could open for business) while the coastal permit was going through the necessary planning and hearing processes.
Affinito's response, in February, was to sue the City, and the new council members personally, for several million dollars.
By mid-Spring, the City's manager and building inspector had taken early retirement. The planner was finally let go mid-summer. (The financial officer had quit just prior to the election.) For a while, the City was winging it with only one member of management staff, DeeLyn Carpenter, trying to oversee the entire operation.
The new Mayor, Michele White (a very wise and experienced business owner unanimously appointed Mayor by her fellow council members) rolled up her sleeves and went to work in City Hall for at least 60 hours a week. For nearly ten months now she has guided and kept the City functioning while an interim city manager looked for a permanent manager, and the new financial officer familiarized herself with the City's books and unraveled the huge mess created by her predecessor.
Commendably, the only serious accounting mistake was in the Police Department portion of the City's annual budget. It was caught by council member Dan Gjerde just before the entire budget was to be approved. This caused a big flap with the Police Chief who claimed Gjerde had questioned his integrity, but who's department budget had also not been fully submitted at earlier hearings or completely checked before the final hearing.
“Planning” was nearly chaotic due to the convoluted machinations of Wendy Squires on behalf of her employer, Charlie Baxman and his proposed motel project, but the quality and experience of some of the majority of Planning Commissioners saw the City through until a planner was hired. The new (and very experienced) planner, Linda Ruffing, is to start this week.
I have never seen “government” go through such an enormous transition so quickly and efficiently while competently delivering basic services, instituting new broader citizen participation and open government protocols, and generally pulling itself together without missing a step or hiring a consultant. Outstanding!
But once the bulk of the work was done, Lindy Peters outdid his usual pathological need to degrade others' accomplishments to make himself feel important (so prevalent in his demeanor at council meetings) when he placed “discussion of the Mayor's duties” on the City Council agenda Monday before last. The Affinito/Baxman gang, aka “The Friends of Fort Bragg's Future,” asked him to provide them a special opportunity to ask questions of Mayor White. Peters knew what was coming, facilitated it, and then tried deny his role in it.
Around midnight, Wendy Squires, Baxman's employee, presented the Mayor with a list of questions all framed in the “how long has it been since you've stopped beating your dog” format. Horace Mann, from the Retired Corps of Executives, advised White to put the nasty questions where he thought they belonged — in the toilet.
All eleven of the small gang of Fort Bargg serial bullies Paula Donovan, Heather Drum, Kim Baxman, Jack Azevedo, Lyla Hayter, Jerry Matson, and Century 21 Realtors Elaine Tucker, and Paul and Barbara Clark, along with Dominic Affinito himself were Present And Accounted For at this City Council meeting held just before Affinito's court hearing. Most took turns personally attacking council members Gjerde and White throughout the long night.
Affinito's attorney, Brian Momson, also spent nearly two hours trying his client's case before the public and a City Council that could not legally reply to the many outright falsehoods he asserted. His main nasal-toned whine was that the City had reneged on its settlement offer.
The City's attorney, John Truxlaw did a good job of not becoming embroiled in the orchestrated event, but he did clearly outline the reasons he was now convinced that Affinito himself never had any intention of settling the lawsuit, including the fact Affinito had fired his previous attorney for designing a lawsuit settlement offer which the City agreed to. “I believe Jared Carter (Affinito's second attorney) and I could have reached settlement, but his client kept Carter on very short leash,” explained Truxlaw.
The vote on the North Cliff resolution was 3-2 with Melo and Peters reversing themselves on their months earlier vote to uphold the Planning Commission decision and require Affinito to apply for a coastal development permit before he could occupy his hotel, contrary to the City's legal defense and attorney’s advice. Peters had the abject gall to publically complain afterwards that the City Council was not working as a “team.”
The big showdown at the yo-kay-o (Ukiah) courthouse four days later, was an hour and a half of oral arguments which formally concluded several months of firing off an exchange of legal briefs (written arguments) between the law slingers from all three sides in Affinito's lawsuit against the City. Dominic Affinito was represented by attorneys Frank Basic and Brian Momson from Jared Carter's law firm. “The people” of California were represented by Joe Rusconi, Deputy Attorney General for the Coastal Commission. “The people” of Fort Bragg were represented attorney Ben Fay from the San Leandro law firm hired by the City of Fort Bragg.
Until the oral arguments, the City of Fort Bragg has been self-restrained in debating the details of the issues surrounding Dominic Affinito's one-story-too-tall motel. City Attorney Truxlaw stated that he would not try his case in the newspaper by issuing press releases as Affinito has done, but has been available to answer questions from reporters.
Affinito and his attorney Jared Carter have spent the ensuing months routinely issuing false allegations against the City and its council members through a series of inflammatory “press releases” that the Fort Bragg Advocate News and Santa Rosa Press Democrat advertising conglomerates have just as routinely published and quoted from verbatim. City Attorney Truxlaw, spokesman for the City on the matter, has seldom been contacted by the media.
Never once has either so-called newspaper contacted the Commission's attorney Joe Rusconi who is more than willing to discuss Affinito's lawsuit with anyone who calls him. I found his position and information very illuminating when I called a few weeks ago just after the City went into settlement talks with Affinito and Carter.
In essence, Rusconi wanted to go to trial. He strongly believed Affinito did not have a case and the Commission and the City would win on the merits. As an intervener and third party in the lawsuit, the City could not settle with Affinito without the Commission also agreeing to settle. But Carter did not include the Commission in the settlement negotiations.
“Settlement” was all a sham on Affinito's part from the get go.
The most recent press release go round which earned the Advocate News and Mendocino Beacon very lucrative half-page ads from Affinito just before the court hearing, was Affinito's repeated accusation that the City is wasting several hundred thousand in legal fees in not letting him open the motel, especially when Affinito was trying so hard to “settle” the case. The ads urged citizens to contact the council members. In checking in with White, Gejrde and Benedetti, they each had received from four to six calls, half of them expressing support for these councilmembers' leadership.
The City of Fort Bragg has publically stated before and been able to publically state many times since Affinito filed his lawsuit, that on a unanimous decision by the City Council, the City would issue Affinito an occupancy permit if he would apply for a coastal development permit with the application for such reflecting the building as it now actually stands. Simple, straightforward, clarifying procedure for a building and a series of permits that do not match in any way. The City has never deviated from this offer.
Contrary to Affinito's prior claims, his attorney's legal briefs submitted to Judge Cox reveal that Affinito never had any intention of settling. Stated very clearly in the Carter/Momson brief is their contention that if Affinito did apply for a coastal development permit that reflected the motel as it is actually built, then Affinito would lose his “vested rights” to the “project as it currently stands.”
This legal position makes perfect sense. While it can't ultimately prevail on the law in the end, it is a legally sound argument to advance from Affinito's standpoint. But it takes a sociopath of the highest order to systematically engage in the long drawn-out series of immoral and unethical attempts to convince the public that he has been trying to settle and place blame for high legal fees on the City Council because it allegedly won't settle.
The oral argument portion of a “judicial” hearing (before a judge only) is a rather esoteric part of a civil lawsuit. Those, including clients, familiar only with the jury trial proceedings made popular by TV and moviemakers would naturally assume that the oral arguments are where the attorneys verbally duke it out with others before a judge, who then decides who won based on the verbal repartee. Not so. Judge Cox gave each side 30 minutes to speak.
All of the arguments were written out in advance, with each side getting an opportunity to respond to the other side's arguments. If the judge has done his homework and read the briefs before the oral argument hearing, the judge will often interrupt one side or the other with questions rendering the hearing uninformative to the audience unless one has read the legal briefs and has a basic understanding of the cited law and case law. This was the case at the Friday hearing.
I headed over the hill early in the morning in order to catch the morning session of criminal cases in Judge Ron Brown's court. It is of great interest to me how “breaking the law” is treated in Mendocino County. The bulk of what constitutes “crime” in the county revolves around the “punishment” of the poor who are obviously suffering under the economic cruelties of poverty and are mentally or physically ill. Generally, their “crimes” only harm themselves.
The afternoon in Cox's courtroom was striking in what special privilege money can buy in a wealthy developer's attempt to steal a long treasured ocean and harbor view from the working class of Fort Bragg. Mike Gienella, lead reporter for the Press Democrat, showed up for the Affinito attorneys' presentation and left after the first three minutes of the Coastal Commission attorney's presentation.
Geniella's PD article the following day was a regurgitation of Affinito's spurious press releases accusing the City of wasting money on legal fees, which was not a topic discussed by either side before the judge.
Neil Boyle, reporter for the Advocate News, was also on hand. This was Neil's first visit to a courthouse, ever. His articles have also consistently focused on and reflected the anti-American corporate agenda, i.e., that if large amounts of money are involved, democratic law making, and the interests of the general public who make them through their elected representatives, should be sacrificed to accommodate the desires of the wealthy.
In Neil's defense, I think he’s basically a good guy struggling with his conscience and who is suffering mightily from an economic version of “Stockholm Syndrome” (identifying with those ideologues in a position of financial power because they hold him totally economically captive).
In the City's corner, councilmember Vince Benedetti and I were seated several chairs apart in the back of Cox's second floor court room. In Affinito's corner, only members of his “A” list entourage were on hand: Ed Taubold, the one-story-too-tall hotel architect; spokesperson Paula Donovan, who failed once again to disguise her insanity with her sad attempts to “dress for success.” This time her face make-up made her look like a cadaver garishly prepared for an open casket funeral; and Robert Affinito, Dominic's son, who giggled throughout at proceedings he obviously did not understand. Mark Mitchell, the builder and his new wife (who fastidiously identified and pulled her split ends in the bored affectation common to much younger high-school girls) arrived late and left early.
Affinito had almost every member of the Carter law firm on hand, sans Jared (who really has moved on to devote full-time to help pillaging the redwoods for Hurwitz’s Pacific Lumber Company in Humboldt County). We were almost subject to another tedious round (so prevalent in the many City hearings) of phony charts and plans drawn by Donovan and the North Cliff Hotel's architect Ed Taubold, but Rusconi put a stop to that in three seconds flat — thank god.
The City's young attorney Ben Fay started the ball rolling by outlining the only issue Judge Cox ordered to be briefed and argued out of Affinito's stew of fake private property rights abuse allegations: Why has the City of Fort Bragg not issued Affinito an occupancy permit for the hotel?
Fay explained that the standard for issuance of an occupancy permit has not been met because the building does not comply with the existing Scenic Corridor Permit and the City's zoning codes.
Cox interrupted Fay and asked if the issues surrounding the color of the building, lack of rock fascia, and blue roof were resolved would the City then issue an occupancy permit? Fay responded, No, because the building's height was not in compliance with the city zoning code and the project did not have a coastal development permit.
Cox asked if the benchmark for measuring the height of the building from Highway One was approved by the planning commission in 1992 (when it approved the first motel). Fay seemingly faltered here answering, “I don't know.” The Affinito crowd giggled.
The City's position, however, is thoroughly detailed in its brief. It's clear Fay did not want to be forced into making a “judgement” the City was not going to make because it wasn't time to make it. The City believes the only issue before the court is Affinito's motion to cause the city to issue an occupancy permit which the City cannot do, its attorneys say, because Affinito “has not applied for one.” The City also states it has made no determination regarding the “benchmark” and height of the building because a coastal development permit (CDP) for the project as it was actually built does not exist and has not been applied for. “I don't know” was an appropriate answer.
Judge Cox then zeroed in on the premise that if the 1992 process (review and approval by the city’s then Planning Commission) which approved a building that was higher than the city zoning code allowed was appropriate (i.e., not legally challenged at the time to prove otherwise) then, what effect would this have on subsequent actions by the City and Affinito?
Fay explained (per the City's brief), “While as a matter of law, Petitioners (and, specifically, their architect) cannot be excused from failure to comply with state law, the City acknowledges that its Community Development Director [planner Scott Cochran] incorrectly informed them at the time that a new or amended CDP was not required. Nonetheless, the law requires that Petitioners apply for and obtain a new or amended CDP for the hotel before it can be deemed legal.”
Fay also explained that Ed Taubold, the architect and agent for the second redesigned hotel, knew this to be true. Per the City's brief: “Mr. Affinito relied on this architect to know all of the zoning and building codes of the City of Fort Bragg, and the architect has admitted under oath that he knew that this Hotel violated those limits.”
Affinito's attorneys gave him his money's worth in performance before the judge. Without reading the briefs, anyone unfamiliar with the case and law could easily assume Affinito had a cohesive and logical legal argument. But I have complete confidence in Judge Cox's ability to see they were lying through their teeth and misrepresenting the facts on almost every point.
The City and Commission attorneys did not orally rebut, for to do so would have taken several weeks. The City relied on its legal briefs submitted to Cox. The City attorneys devoted a considerable amount of ink to numerous paragraphs beginning with “Petitioners repeatedly misrepresent the facts of this case” … “While it is unclear from their moving papers exactly what Petitioners are arguing” … “Although Petitioners argue, they have not introduced evidence” … “Petitioners want to ignore” … and so forth.
Deputy Attorney General Joe Rusconi's oral presentation and legal briefs were things of beauty in their clarity and simplicity. Just what a judge likes to see. Some examples from Rusconi's briefs:
“…no matter how may times the Affinitos repeat the claim that the City adopted ‘Highway One as the benchmark’ to measure a project's height, and that ‘the Commission had knowledge of the adoption,’ the facts do not indicate any such action…”
“Left unstated by the Affinitos, however, is the fact that height of the 1992 project stepped down the slope so that it never was over 35 feet high as measured from the average ground slope… The 1996 project, however, stayed at constant height as the slope fell away so it was as much as 60 feet above grade… If the City wished to allow the Affinitos to build a 60 foot tall building, it had to [go through normal and legal procedures]…”
“Mr. Affinito, however [admitted in deposition that he] never reviewed any documents, never consulted the Coastal Act or provisions of the LCP, never consulted with anyone save his architect, in short [the Commission concludes that Affinito] made no effort to determine what permits were needed for a four million dollar motel.” (!)
“…the entire set of checks and balances set up in the Coastal Act to ensure that local governments do not [violate] the LCP was circumvented.”
“…the City's ex-planning director freely admitted [in deposition] that the [maximum building height of 35 feet and height measurement from average grade] were not applied when the project was reviewed by the City in 1996…”
Of interest to Affinito hotel watchers is that Affinito and Taubold hung Scott Cochran out to dry, with Taubold claiming in deposition that it was Cochran who first introduced him to the idea of the “benchmark” (that was used to circumvent the height codes).
So Dominic Affinito, a very experienced developer who has built many buildings in the coastal zone of Fort Bragg, built what he claims to be a $4 million hotel based solely on “vague hearsay assertions that at some undisclosed point in time somebody from the City told somebody else that the height of a building on the lot would be measured from Highway One,” according to the Deputy Attorney General.
Rusconi said after the hearing that Judge Cox would probably toss Affinito a few legal points but would find for the City and the Coastal Commission by ordering Affinito to apply for the coastal development permit and the occupancy permit.
If this happens, it is likely that the City will not issue the occupancy permit until Affinito first changes the building and roof colors and add the rock fascia in order to bring the building into conformance with his building permit (as well as the Planning Commission decision upheld by the City Council). Rusconi did not reveal what the Coastal Commission would do in such a case.
Once Affinito occupies the building (with approval by the City) his vested interest argument holds more water which would somewhat affect the ability of the City or Commission to cause the building to come into compliance on height (by cutting off one story).
Will Affinito apply for the permits? I doubt it. He will probably appeal Cox's ruling. So the people's battle to uphold democracy in the little town of Fort Bragg will continue for some time.