Judge Conrad Cox’s long awaited decision on the North Cliff Motel in Fort Bragg mostly favored the “one-story-too-tall” motel developer, Dominic Affinito. The Mendocino County Superior Court Judge pointedly thumbed his nose at the California Coastal Commission in his 20 page opinion issued on January 6th.
Cox also blasted the City of Fort Bragg right out of the legal boxing match by prohibiting it from addressing the height issue in any way, shape, or form. He ordered the City to inspect the motel, pronto. If all goes okay with inspection, the City is to let the motel open, as soon as next week. The Coastal Commission, however, will have its appeal submitted in time to halt the opening of the motel. Affinito’s attorney, Frank Basik, says the Commission has no grounds for appeal.
Almost a year ago to the day, Dominic Affinito sued the City of Fort Bragg for several million dollars when the City refused to allow him to open his newly constructed motel perched on the hillside overlooking Noyo Harbor. After countless hearings, a suburb Grand Jury investigation/determination, an election that replaced an out-law city council with a majority of three “clean slate” council members, followed by a general house cleaning that jettisoned the City’s manager, attorney and planner out of City Hall, the new City Council concluded that the motel did not have a Coastal Development Permit that matched the motel as it was built.
The primary results of this “mismatch” (from a technical standpoint) was a building that violated the City’s Municipal Code on height limitation — by one full story — along with a blue roof instead of copper or slate, no rock fascia to blend the motel into the cliff, and whiteish paint instead of a dark color that would have blended the motel with the hillside.
There were many other conflicts with the motel, its permit, and City Codes, but these were to have all been sorted out when Affinito came back before the City in a new permit application per the City’s reasonable resolution to unraveling the mess. The City promised to allow the motel to open if Affinito applied for the new permit. But Affinito refused to apply for the new permit and sued the City instead. Aside from the primary conflicts, all of the other problems with the motel (lack of parking, lot-line set back, landscaping, cracking foundation, and so on) were ignored by Judge Cox in his ruling. Cox left it up to the City to try and sort these details out when it inspects the building.
The extra story gave Affinito another floor of high priced ocean view rooms that he would not legally be entitled to if the fundamental City and state laws had been adhered to by the City’s now former planner and then Planning Commission. Situated just about anywhere else in town, the motel with its “extra” floor would not have caused such a big flap in the town of 6,000. Situated where it is, however, this extra floor blocks the town’s treasured view of the entrance into Noyo Harbor.
For as long as anyone in Fort Bragg can remember, this spot was where fishermens’ wives and friends watched the salmon boats negotiate the most perilous break (waves) in all of California’s fishing ports during stormy weather. Those who watched the North Cliff motel hearings will never forget the elderly gentleman, a retired fisherman I suspect, who came to tears as he tried to speak about how he regularly looked out at the harbor from this spot.
God-damn-it, he’s right! It hurts. Hurts like the death of a loved one, to glance out of custom for a look at the harbor and see that garishly cheap looking building. It especially hurts because this Fort Bragg place-of-heart was protected by law, and was unjustly taken from this community, stolen by handful of barbaric, calloused out-laws for one man’s profit.
What is the price of peace-filled, sometimes urgent, watchful moments shared for a generation between people and a unique ocean estuary view that would have been the source for more of this communion in the future? Judge Cox has ruled that the people’s loss, and the ignoring of their laws that forced this loss, are of no consequence as compared to one man who claims (with no proof what-so-ever) that he spent $4 million dollars building his motel. Affinito, a sophisticated experienced Sacramento and coastal Mendocino county developer, and now Judge Cox would like us all to believe Affinito was an innocent bystander in his motel project.
In the property rights vs environment legal battles occurring all over America, many cases come down to the seminal question “what is the price of a song bird’s song in the morning?” Those who believe money is the most important thing in this life insist that a dollar value be placed on the bird’s song so they can pay for it and then get on with destroying it. The environmentalists say the bird’s song is priceless and must not be destroyed, for to do so forever diminishes humanity itself.
Judicial bias in these cases must fall in one camp or the other <dash> the money or the people’s quality of life. In Affinito’s case, he didn’t have to pay one dime in exchange for being allowed to destroy this town’s song bird. Philosophically speaking, didn’t a well known guy throw some moneychangers out of a temple a long time ago over this very issue?
Judge Cox found that since it was “the custom” of the City’s planning director (Scott Cochran) to measure the height of a building on Hwy 1 by using the highway as a benchmark the motel’s height was fine. Cox opines, “Although the [customary] use of the benchmark’ of the Noyo Bridge is contrary to the Municipal Code, the action of the City in permitting such use amounts to no more that the granting of a variance.”
All sentimentality and philosophy aside, this finding is a both a factual and legal hog wash. It has never been the City’s “custom” to measure buildings that would block an ocean view on the Coastal Act protected area west of Hwy 1 from the Noyo Bridge/Hwy 1 benchmark, contrary to its Municipal Code. There simply is no evidence in the court record, or otherwise, that supports Cox’s finding of “custom”.
Custom means more than once and on other similarly situated projects. To support his reasoning, Cox uses the Harbor Light motel across the Hwy from Affinito’s North Cliff motel. The Harbor Light is located on the <i> east <i> side of Hwy 1, was not in the coastal zone when it was built, and does not block an ocean view.
In fact, all the ocean view blocking motels on the west side of Hwy 1 (those north of town) were measured by the same planner and reviewed by the same decision makers per the Municipal Code (by average land grade, that would have not allowed for the extra story on Affinito’s motel).
Second, Cox concludes that some of the City’s Municipal Codes that implement state law are “less” law than other parts of its Code. He opines that the City’s Code requirements for public notice of “a variance” does not carry the same legal weight as its same public noticing requirements for other deviations from its laws (like zoning changes, for example). If one were to follow this reasoning on through, Cox says that some laws must be abided by and it’s okay to ignore others. If this is so, the Coastal Act and local regulations that seek to implement it are worthless and cannot be enforced. Take that, Coastal Commission!
Cox found the motel project itself was properly publicly noticed, but the deviation from the City height regulation ( variance) wasn’t. In Cox’s opinion, the variance didn’t need to be publicly noticed despite the City law saying it did. Cox did find that the motel’s architect and agent, Ed Taubold, knew what the City’s code stated on measuring height, but since the one-time “custom” supersedes the law, in Cox’s opinion, nothing was wrong with Taubold not abiding by his legal obligation as a state licensed architect to follow the law.
Cox does say that the decision makers, ( the three times the motel was originally reviewed) are at fault for not doing their jobs properly and catching the lack of the public notice on the variance. (Gary Milliman was the City Manager, Jere Melo was chair of the Planning Commission, and Patti Campbell was Mayor of the City, at the time.)
The Coastal Commission is charged by the state legislature to enforce the provisions of the Coastal Act, including Cox’s imagined “little laws” like publicly noticing that a variance from the code that protects ocean views is proposed. Even though this particular “variance” was hidden from the Coastal Commission and the public, Cox asserts that the Coastal Commission and the public had an opportunity to discover this because all were properly notified about the motel “project” itself.
Since the Coastal Commission and the public didn’t discover that an improper variance was going to occur, by default, the height variance is okay per Cox’s reasoning. Cox invents a brand new planning and legal concept on the spot, calling it “a de facto variance”.
Judge Cox’s logic falls apart here. Cox found that the height variance wasn’t publicly noticed. This variance notice is the public’s special “trigger” that informs all a project is proposed to deviate from the law. Some such deviations are okay, others are not. The deviation alone, however, legally requires a higher level of public scrutiny. So, how could the Coastal Commission or the public be aware when they weren’t properly (and legally) noticed of the variance?
According to Cox’s reasoning, all local government planning decisions are to be considered potentially illegal, all checks and balances will fail to work, so it is the Commission’s and the public’s responsibility to scrutinize every single permit. If the public does not, according to Cox, then the public must suffer the consequences.
However, the truth of the matter is the City’s law and “custom” was (and is) to publicly notice variances. In the case of Affinito’s motel it did not. Therefore, the public (and the Commission) were, in fact, deliberately misled, my friends. The Coastal Act mandates the “widest opportunity for public participation” i.e., all those who can and do read the public notices in the Advocate News. Not noticing the variance is against the law. The motel itself stands as a clear indiction of why a variance is legally required to be publicly noticed everywhere in California.
Cox has clearly misinterpreted a basic and simple law. This gives the City and Coastal Commission solid grounds for appeal. I think Cox was very clever, all in all. He superficially pandered to Affinito in his ruling, but he also deliberately left the door wide open for appeal with an in-your-face challenge to the Coastal Commission. Cox cut the City loose from defending itself further from Affinito’s multi-million dollar lawsuit. Cox also gave the City an assurance that it would be let off the hook from Affinito’s damages claims, no matter what happens, when he ruled that the new City Council tried to follow its laws, and this was “understandable” even if a bit too zealous.
The City is ordered by Judge Cox to not “enforce any height limitation on the premises” and to issue a coastal development permit that conforms the permit with the height as it is. Cox has also ordered the City to inspect the motel and allow it to open.
Affinito is required to apply for an amendment to his permit for his blue roof, lack of rock fascia, and wrong color violations by March 1. The City may approve or disapprove these changes in his permits. Affinito has until June 30 to comply with the City’s decision on these three items.
It’s up to the Coastal Commission now. I took a chance and called the Coastal Commission’s attorney, Joe Ruscone last Monday, even though it was Martin Luther King’s birthday. There he was in the Oakland Attorney General’s office working on the appeal. Ruscone just laughed and said Judge Cox made so many errors, not just in substance, but in technical ways that the Appellate Court will really sit up and take notice. Ruscone must file the appeal in the next week or so in order to bind the City from following Cox’s orders and allow Affinito to open for business. Affinito’s attorneys are preparing to argue that the motel be allowed to open while the Appellate Court decides the matter. This will be the first, crucial skirmish.
Once Affinito opens for business he immediately reaches a legal threshold where he has “vested” in the project. While courts routinely order buildings down, or significant changes made, they almost never to do so if the building reaches the threshold of being occupied or open for business. Fines, not building changes, would be the remedy if the motel was allowed to open and the Appellate Court found in favor of the Coastal Commission. How zealously Ruscone argues for keeping the motel closed will be very telling on which way the Coastal Commission is leaning building changes or fines.
So, it isn’t over, yet, folks.
Afterward: No matter what happens, the North Cliff motel stands as a costly reminder of “the bad old secret government days” in Fort Bragg. Ask yourself this, has Patti Campbell (who was the Mayor of Fort Bragg when this whole North Cliff mess occurred) during her three years on the Board of Supervisors helped you stay informed about what county government is doing? Or have county government activities simply slipped off your radar screen?
Those handful of us who do monitor county government know there are some very serious problems over there in the Supes’ chambers in Ukiah. You are not aware of them (unless you read Jim Shield’s or Mark Scaramella’s articles) because Supervisor Campbell chooses to keep you in the dark, spinning what she does report to hide the truth, just like she did in Fort Bragg.
Pay attention during the supervisors debates. I guarantee you that you’ll be shocked and angered, at what you didn’t know. Get the word out. Open government serves us all, no matter what our personal political biases may be.
[Ed note, the Appellate court denied the appeal.]