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Pacifica Developer Loses Yet Again

A state appellate court has upheld the Coastal Commission's handling of a housing project appeal. The court ruled that although the Commission did not comply precisely with the state open meeting law's requirements, the Commission came close enough and did not portray an intent to avoid the law.

The ruling is the latest setback for developers Keith Fromm and Robert Kalmbach, who propose a 43-unit housing development on about 6 acres in Pacifica's coastal zone. Last year, the Ninth U.S. Circuit Court of Appeals threw out an award of $665,000 to the developers for damages and legal fees in a suit alleging the City of Pacifica violated the developers' equal protection and due process rights (see CP&DR Legal Digest, July 2008).

In 2002, Pacifica approved a coastal development permit for the project proposed by Fromm and Kalmbach (operating as North Pacifica LLC). A resident appealed the decision to the Coastal Commission. Before the Commission could take action, North Pacifica filed lawsuits in state and federal courts. The state court lawsuit concerned one of the city's conditions of approval, which an appellate court upheld in an unpublished opinion.

Because of the litigation, the Coastal Commission delayed consideration of the appeal until December 2005. At that time, the Commission determined the appeal was within its jurisdiction. It followed up on December 20, 2005, by mailing a "Commission Notification of Appeal" to the city and North Pacifica setting a tentative hearing date of January 11-13 in San Pedro. The Commission posted an agenda for its January 2006 meeting on its website December 28, and posted a staff report on the appeal December 30. The Commission mailed formal hearing notices on January 3, 2006. On January 11, the commission decided the appeal presented a substantial issue but postponed a hearing until February 2006. North Pacifica did not attend the January 11 meeting but afterward requested the hearing be delayed until at least April. The Commission finally conducted its appeal hearing on May 11, 2006, during which the Commission overturned the coastal development permit because of potential impacts to wetlands, water quality and environmentally sensitive habitat. North Pacifica did not attend the May 11 meeting, either.

In the meantime, North Pacifica sued the Commission, arguing that its noticing of the January 11 meeting was deficient. Los Angeles County Superior Court Judge David Yaffe rejected the contentions, and a unanimous three-judge panel of the Second District, Division Five, upheld the ruling.

The Bagley-Keene Act (Government Code 11120 et seq.) requires state agencies to provide 10-day advance meeting notice to all interested parties. The law authorizes nullification of actions taken at improperly noticed meetings, which is what North Pacifica sought. The court conceded North Pacifica did not get the actual meeting notice until six days before the hearing, but the court found the Commission substantially complied with the law.

"When the Commission's efforts to provide notice of the January 11, 2006, meeting are viewed in the aggregate, they substantially comply with Government Code 11125," the court ruled. "Northing about those efforts suggests that the Commission was attempting to thwart the objectives of the Bagley-Keene Act by holding a meeting that was not fully disclosed or open to the public."

Even if the meeting notice was inadequate, North Pacifica was not harmed because the Commission at the January 11 meeting without debate or public comment merely set a date for a hearing on the merits, the court found. Thus, the Commission was authorized the act on the appeal at the May 2006 meeting.

The state Supreme Court on December 23 denied North Pacifica's request to consider the case.

The case is North Pacifica LLC v. California Coastal Commission, No. B199446, 08 C.D.O.S. 12419, 2008 DJDAR 14787. It was filed September 19, 2008.
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