City, Developer Sued Over Approval of Proposed Cerrito Peak Mansion
by Jack McCurdy
Synopsis: A suit has been filed against the city of Morro Bay and developer Dan Reddell to stop the construction of a 5,632-square foot mansion atop little Cerrito Peak based on claims the project’s approval violated a multitude of laws and that the city engaged in an “admitted pattern and practice of abuse of the law” and of excluding information from the public.
The city of Morro Bay and developer Dan Reddell, owner of Bayshore Realty in Morro Bay, have been sued over the City Council’s approval of the development of a 5,632-square-foot mansion atop little Cerrito Peak, a suit that was expected in light of the California Coastal Commission staff’s strong legal objections to the project. But the scope, depth, and ethical allegations of the charges in the suit go far beyond the question of whether the development meets legal requirements.
Besides the charges of violating a whole range of laws, codes, and statutes in approving the project, the suit accuses the city of:
—Engaging in an “admitted pattern and practice of abuse of the law.”
—Having “intentionally exclud(ed) information and data about the existence and location of public resources.”
—Doing so “with the explicit intention of benefiting the developer at the public’s expense.”
—Engaging in a “frank and explicit exclusion of data and the prioritization of economic benefit of the property owner to the detriment of the public” and “a pervasive disregard for the law and the city’s duties to protect public property and welfare.”
—Failing to recognize that “information is the heart of an accountable decision making process. To this end, the law requires that every decision must be based on conclusions, or findings, and findings must be supported by evidence — by data and information — in the record.” And the suit contends the city failed to reveal such information.
The suit, filed by Save the Park, a nonprofit local citizens organization, asks the San Luis Obispo Superior Court to issue an injunction to prevent any start on the development until the suit is settled. Most property owners surrounding Cerrito Peak reportedly support the suit. Contributions on the suit’s behalf can be made to Save the Park by contacting Nicole Dorfman.
Morro Bay city attorney Rob Schultz said he had read the suit and commented, “A standard condition of approval for any project in Morro Bay requires the applicant to defend, indemnify, and hold harmless the City from any claim, action, or proceeding against the City and that the City is under no obligation to defend any legal actions challenging the City’s actions with respect to the project. If the Petitioner (Save the Park) were to prevail, and the Court awarded attorney’s fees and costs, Reddell would have to pay.”
The suit claims approval of the development violated the California Constitution, the California Coastal Act, the California Environmental Quality Act, the California Streets and Highways Code, the California Government Code, the Morro Bay Local Coastal Program (LCP), the Morro Bay Municipal Code, and common law.
The suit describes Cerrito Peak as a scenic volcanic upwelling, covered with boulders, rock outcroppings, and over 300 trees that harbors archaeological artifacts and environmentally sensitive habitat for monarch butterflies, among other things. Located within 1,000 feet of the Morro Bay National Estuary, Cerrito Peak is encircled by public right-of-way used as open space, termed a paper street named Jordan Terrace. Alta Street, another undeveloped public right-of-way and used as open space, serves as access to Cerrito Peak and connects Jordan Terrace with paved Cerrito Place, according to the suit.
It charges that the city previously raised serious questions about such a development on Cerrito Peak, citing a May 10, 2006, letter from city staff to Reddell’s agent stating explicitly that “[T]he site may not be suitable for development, or may cause substantial environmental damage and needs a full Environmental Impact Report . . . ”
But in spite of the letter, the suit contends, the City Council, in approving the Reddell project last Dec. 13 failed to “provide an accurate project description, failed to gather information about the existence and precise locations of resources, disregarded information and comments provided by state agencies, expert opinion and the public, failed to undertake an adequate environmental analysis, failed to fully evaluate the project’s potential environmental effects, failed to apply mandatory policies and ordinances for protection of coastal public resources within the Morro Bay LCP and failed to support its actions to approve the project and its mitigated negative declaration with facts or evidence in the record.”
The Coastal Act and the city’s LCP, the suit said, protect public visual resources, archaeological and cultural resources, sensitive habitat, and the public health, safety and welfare from harmful development.
In spite of these and other laws, “the city acted to approve the project in accord with its admitted pattern and practice of abuse of the law by which it intentionally excluded information and data about the existence and location of public resources and approved a project as if those resources do not exist, with the explicit intention of benefiting the developer at the public’s expense,” the suit claims. “Not only did the city proactively exclude relevant evidence of the existence and locations of resources it is charged to protect, it disregarded significant evidence of those resources when it was introduced by public agencies, expert opinion, and the public as if it did not exist.”
“For example, the California Coastal Commission, in a December 13, 2011, letter to the City Council on the project, identified several ‘major inconsistencies’ with the requirements of the Morro Bay LCP. . . relating to biological, archeological, visual and public access resources,” the suit said, and “the letter notified (the city) of specific sections of the Morro Bay LCP with which the project failed to conform and asked the city to delay its action to allow time for the city to fully evaluate the project for consistency with the Morro Bay LCP.” But the city “disregarded this information.”
The suit also states that “documentary, photographic and testamentary evidence was provided to (the city) about the existence and location of overwintering habitat on the site for monarch butterflies by the Coastal Commission, expert opinion and the public,” and that “the Xerces Society informed (the city) that, in contradiction to what they had been told by the developer’s consultant, monarch butterflies on the site are listed (in) the Department of Fish and Game’s California Natural Diversity Data Base and have been monitored annually since 1987. Monitoring data were entered into the record along with evidence that the habitat was considered to be ESHA (environmentally sensitive habitat area) protected under the Coastal Act and the Morro Bay LCP.”
In addition, “on or about Dec. 13, 2011, Cal Poly’s Monarch Alert Coordinator surveyed the site and documented over-wintering Monarchs roosting in trees apparently marked for removal by the proposed Project . . . As if this information did not exist, the city failed to apply its LCP policies for protection of these resources as required by law.”
Following are other points made in the suit:
—”The city paid no heed to fervent concerns from downhill neighbors that the project was approved without plans for preventing erosion and without strategies for avoiding harm from the ‘real potential for rock-fall that would be detrimental to neighboring properties,’ as if this information did not exist, (and the city) failed to provide a full environmental review of this threat to human welfare as required by law.”
—”A representative of the Chumash Nation informed the city that, among other things, Cerrito Peak is a ceremonial site for the Chumash Nation, that the Chumash Nation, which ranges from Ragged Point to Malibu, has lived in the Morro Bay area for over 10,000 years.”
—”The city disregarded this and other testimony of Native Americans including, but not limited to, a representative of the Salinan Tribe who also informed the city that the site is sacred. The city did not apply legal requirements for analysis and protection of cultural historical resources as required by law.”
—”The city was informed that views of Cerrito Peak are enjoyed from Highway One, from Morro Bay’s Embarcadero and Harbor Walk, from the sand spit across the Estuary, and from Los Osos, but did not apply this information to the requirements of its LCP policies for protection of scenic resources to ensure their protection.”
—”The city made a formal finding that the project is consistent with its LCP, approved the coastal development permit for the project and approved the project . . . with its unsupported statements that the development would cause no significant harms to the environment or to humans.”
—”Losses to the public, in this case, include, illegal removal and destruction of public property trees, boulders and rock outcroppings, irrevocable destruction of public coastal resources, threats to public health, safety, and welfare, outright unconstitutional gifts of public right-of-way and public property to the property owner, unlawful vacation of public access to Cerrito Peak, and the denial of statutory due process rights.”
The suit asked the court to enjoin the city from approval of coastal development permits and environmental documents until it has “demonstrated to this court its capacity and willingness to properly implement and carry out the substantive and procedural requirements of the California Coastal Act, the Morro Bay Local Coastal Program, and the California Environmental Quality Act.”
It also contends that “no meaningful description of the site or the cultural or environmental setting was provided or considered. Data and graphics included in a full-sized site plan—not provided to the public—were essential to piece together a more complete project description . . . ” Ultimately, the city provided the public with a site plan “reduced to 8 ½ by 11 inch paper which is unreadable.”
Save the Park won a similar suit in 2010, defeating a proposed plan to build 16 two-story houses and a two-story duplex on three acres on Quintana Road just west of South Bay Boulevard adjacent to Morro Bay State Park (Slo Coast Journal / August 2010). Save the Park was awarded attorney’s fees from the developer and the Coastal Commission, which had approved the project. Its attorney then, as now, is Cynthia Hawley, whose practice is located in Cambria.