Sunday, September 24, 2006
Leucadia Cares vs The Man
In a recent ruling Judge Nugent has denied our petition to overturn the City’s decision of approval for the Barratt project.
When Leucadia Cares initiated legal action against the City of Encinitas and Barratt American it sought a judicial review to determine whether the City had the authority to overstep the Encinitas building codes regulating building height measurement.
Instead of clarifying the matter, Judge Nugent only refers back to staff quotes in the staff reports - the very same staff decisions we (Leucadia Cares) are contesting. The Judge relied on that after the fact testimony, apparently without realizing that our petition was about having the staff decision verified.
The following key points exhibit why the Judge’s arguments are without merit and may invite further consideration by an Appeals Court panel. Please take a minute to review the Judge’s arguments to get a better understanding of the following clarifications.
pdf link www.citycouncilmonitor.com/downloads/NugentRuling906.pdf
The tentative subdivision map did establish the finished building pad elevation but did not automatically establish that the pad elevation would also be the reference from which building height is measured.
In order for the tentative map to designate the raised pad elevation as the building height reference it must be clearly documented on the map. There is not one printed note, comment, or remark on any of the tentative maps that would indicate that the pad elevation is used as the building height measurement reference. The grading elevation does not automatically imply the building height reference.
The Judge did not take the time to diligently understand the relevant code sections at hand. In his judgment he takes pieces of Encinitas Municipal Code 30.04 and 30.16, leaves out half of section 30.16 and lumps the language of these two code sections into one! The resulting word order is not only misleading but defies the true intention of the two original paragraphs, designed to prevent the "stadium seating" phenomenon widely seen in our beach communities.
The original sections of the code.
Municipal section 30.04 defines "building height" as follows:
BUILDING HEIGHT shall mean the vertical distance from the lower of the natural or finished grade adjacent to the structure, to the highest point of the structure immediately above.
Municipal section 30.16.010(B)(7)(d) provides as follows:
An approved subdivision map may establish the finished building pad elevation from which building height is measured with consideration given to on-site and surrounding uses and terrain.
An online inquiry at Merriam Webster yields the following results for "may" and "shall".
1 a archaic : have the ability to b : have permission to (you may go now) : be free to (a rug on which children may sprawl -- C. E. Silberman) -- used nearly interchangeably with can c -- used to indicate possibility or probability (you may be right) (things you may need) -- sometimes used interchangeably with can (one of those slipups that may happen from time to time -- Jessica Mitford)
2 a -- used to express a command or exhortation (you shall go) b -- used in laws, regulations, or directives to express what is mandatory (it shall be unlawful to carry firearms)
The Judge not only fails to recognize the implicit significance and meaning of the key words "may" and "shall" in these code sections but also overlooks the requirement for explicit notation of building height reference on the tentative map when "may" is considered in section 30.16.010
Even when erroneously referring to the staff reports, the Judge conveniently ignores a significant section of the Planning Commission resolution, which states: "Future construction of single family residences must comply with all applicable development standards, including but not limited to building height, setbacks, and lot coverage".
Nugent has not examined whether existing laws were overstepped or not and his argumentation pointing towards the after the fact staff report is worthless and without merit.
Judge Nugent recently ruled on another case involving Barratt and the City of Encinitas. In that case, Barratt was suing the City. Nugent ruled in favor of the City. After Nugent’s ruling against them, Barratt filed a successful appeal, showing that Nugent has a history of inappropriately giving deference to City officials over the law.
When Leucadia Cares initiated legal action against the City of Encinitas and Barratt American it sought a judicial review to determine if the City had once again overstepped its authority. Judge Nugent’s ruling does not provide that determination.
Please feel free to direct any questions or comments to Andree Pyfer and/or Ron Ranson.