Mea Culpa on Brown Act Allegation

by Neil Farrell ~

Accused of violating California’s open meetings law, the Morro Bay City Council passed a letter — a mea culpa of sorts — promising to obey the law and never to do it again.

The alleged infraction was actually committed during a planning commission hearing last October on a proposed, controversial new home at Toro Lane and Yerba Buena Street but wasn’t realized for some time.

Local activist Linda Stedjee told the City Clerk in a “cease and desist” demand letter that the error wasn’t detected for several months after the fact (in March) and the mistake means the commission’s approval for the permit should be rescinded and the application start over, as “ethics and honesty” would compel the City to do, if not the actual law.

In essence, the planning commission’s Oct. 6, 2015 meeting had an agenda item on the permit for the new home at 3420 Toro Ln. Stedjee claimed the staff report published the week before had a list of conditions that were modified and given to the commissioners at the hearing, but not the public.

The public did not have a chance to review those changes and Stedjee said the hearing should have been postponed. She and others who have been critical of the project would have attended had they known about it.

The heart of the issue for Stedjee is preservation of a trail down the bluff from Toro Lane to Morro Strand State Beach. She and others originally argued that the continuous public use of the pathway means it must be preserved as is, and the project changed. But the City and Coastal Commission as well, have said a condition to move and rebuild the path a little further north mitigates building over the top of the existing path.

The commission’s permit for the home was appealed by Stedjee and others to the City Council, which denied, and then the Coastal Commission, which found no substantial issue with the appeal.

Save the Park, a non-profit activist organization, stepped in on her behalf and sued over the project, seeking to overturn the approvals as violating the Coastal Act. The property owners have said publicly that the suit was “frivolous.”

Essentially, they believe that the owners will not make good on the promise to build a new path, though the permit would withhold an occupancy permit until it is built. It would intrude on “riparian habitat,” at the terminus of No Name Creek making permitting potentially problematic.

City Attorney Joe Pannone recommended the Council approve a letter he’d drafted that didn’t actually admit to doing anything wrong, but agreed not to do it again, “in order to avoid unnecessary litigation,” reads Pannone’s letter to Stedjee.

He commented to the Council that this wasn’t a “rampant” occurrence as if the City does this all the time. But to avoid being sued, the promise to never do it again satisfies the law.

Community Development Director, Scot Graham said they had actually made public copies of the changes for the planning commission meeting but they were not handed out.

It was the first of two issues Stedjee has raised recently with the Council, including filing of a complaint with the State Fair Political Practices Commission or FPPC against Mayor Jamie Irons. The claim is that he illegally lobbied the city staff and council regarding a proposed ban on using secondary units for vacation rentals.

Irons and his wife own a home with a “granny unit” that they have rented out as a short-term rental, and wish to build another on their property. They wanted council to leave open the options so people could supplement their incomes when family members or friends are not visiting.

The Planning Commission recommended a prohibition on vacation rentals among other restrictions. The commission sought to preserve the small apartments and homes as affordable rental housing.

The recommendation went to the City Council at its March 22 meeting, but after the agenda was released March 18, Graham put out a memo dated Monday, March 21, changing the staff recommendation on the ban.

“Staff’s revised recommendation,” Graham’s agenda addendum reads, “is to strike the vacation rental prohibition and to allow secondary dwelling units to be utilized as residential units and/or vacation rentals depending on the desire of the owner. This change in recommendation is derived from the fact that the Coastal Commission was not in favor of an outright ban on the use of secondary dwelling units as vacation rentals and the fact that the Planning Commission was not a staunch supporter of the prohibition, but instead was more ambivalent toward the issue.”

Also, on Tuesday, March 22, at 8:48 a.m. Mayor Irons emailed a letter addressed to City Manager, David Buckingham, Attorney Pannone, Graham and City Clerk Dana Swanson that requested several changes be made in the ordinance. Irons acknowledges that he was going to recuse himself from the item, but wanted to relay, “specific requests for you all to consider.”

Their experiences with building and operating a vacation rental, “offers a very unique perspective as neighbors, builders, and landlords,” he added.

The subsequent 6-page letter goes into details laying out a case for making some five changes to the ordinance, referring to an agriculture exception, the count of floor area including garage, a covenant agreement requirement, size restriction to 7,500 square feet, and “no separate rental,” as well as the vacation rental prohibition.

At the meeting, Irons stepped down and handed the gavel to Councilman Matt Makowetski, walked through the audience and “sat down in the front row” as public comment was taking place, according to a witness. He gave a 3-minute public comment and then left the room, as is custom.

Some are claiming that testimony, coupled with the letter adds up to illegal lobbying, the basis for Stedjee’s complaint to the state. She said the PFFC agreed to investigate the matter.

In a twist to the saga, the Council originally approved the change suggested by Graham, but reversed itself when the matter came back a second time on April 5. Several residents complained about what they feared would become an explosion of vacation rentals in neighborhoods. The Council overturned its original stance and put the vacation rental ban back in. Irons had again stepped down for that discussion, too.

So the ordinance will presumably be changed back to the planning commission’s original recommendation and come back for a first reading. Also, the council decided to start to address the overall issue of vacation rentals vs. long-term rentals.