Sunday, September 24, 2006

Leucadia Cares vs The Man



Dear Leucadia,

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

Clarification

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".
may
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)
shall
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.

Best regards,

Leucadia Cares

27 comments:

  1. Yes, many of our North County lower court judges do seem to automatically give preference to a City as a party. Judge Lisa Guy Schall, Judge Jacquline Stern are prime examples, as well as Judge Thomas Nugent.

    The Court of Appeal, as mentioned in the previous Barratt case, did rule that Encinitas staff had been given "unfettered" discretion to set fees, in that case. In this case, staff, including the City Attorney, we presume, is given unfettered discretion to misinterpret and misapply Encinitas Municipal Code.

    California Rules of Court do describe in detail the difference between may and shall. These rules of court are the rule of law, as set by the Judicial Council, and are equal to statutes in their importance.

    I had to copy and paste the link into by browser to get the .pdf file to open, but I was happy to read this, as I had not seen it on the court website, yet, only the previous 9/1/06 tentative ruling.

    Leucadia Cares, you have our sympathy. We are disappointed in Judge Nugent, in particular. He really should have taken the time to understand so that he could give a fair consideration, not just rubberstamp another convoluted City exercise in indiscretion.

    Please, if you can, appeal this weak decision. The Rules of Court, the facts, and precedent are on your side; the Court of Appeal has shown, as in the previous Barratt case, that it is not afraid to reverse when it comes to the City of Encinitas.

    Also, if you appeal, and prevail, we hope you would be able to recover your attorney fees as the Jarvis Taxpayers Association did in lower court and the Citizens for Quality of Life did in the Hall Property case before Judge Annello, whose decision was far more detailed and equitable.

    Judge Nugent should retire. He appears to be too easily mislead and confused, showing bias for the powers that be. His being reversed, again, would send Nugent, and, of course, the City, a powerful message.

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  2. Is there a transcript of the court hearing somewhere?

    I heard that the City's argument was this is the way we always do it and Glenn Sabine added, "No one has ever brought this issue up before."

    It's also told that Barratt's attorney based his case on Kerry Kusiak's testimony at the appeal. The Leucadia Cares people say that he said something like, "See here, look at the transcript from the appeal, Kerry said they adjusted the height from which to measure."

    Kerry said it you guys. Stop your whining.

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  3. Let's SUE the bastards,
    we'll kick their butts!
    The judge is CONFUSED,
    he must be nuts!
    It's true we lost,
    damn the cost!
    We must appeal, that'll be a breeze, cause mental illness is our disease.

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  4. previous poster, unpoetic injusticeSeptember 24, 2006 9:21 PM

    In Russia, they would lock up the thinkers, whistleblowers, calling them mentally ill, putting them in prison/mental institutions for opposing the powers that be.

    Let the facts, our Constitutional guarantees of due process of law, speak for themselves. The City of Encinitas was wrong, and lost, re putting the $5.00 on the EDCO trash bill; it was wrong to split the Hall property project into smaller projects, to be able to claim a negative impact declaration, stating no environmental impact report was needed. Also, the City lost on the Barratt case re setting fees without a public hearing or prior notice. The City lost, as well, on the Encinitas Country Day School case. The taxpayers, ultimately, are the big losers, while Sabine & Morrison make more and more money, win or lose.

    You can write crappy poems all you want, and I suspect you are a Guerin, aren't you? Or is it Jerome Stocks, pretending to be 17 again?

    Dr. Lorri doesn't believe the people who are investigating this are mentally ill. Instead of investigating, looking into the facts, you, crappy poem poester, try to discredit the messengers.

    You don't know what the word justice means. It is related to truth, not superficial, ignorant rhyming and "image." You also don't know what "poetic" means.

    Get a heart, and a mind, "unpoetic injustice." The Leucadia Cares case can be appealed, and should be.

    You are no one to judge anything, except, maybe, which judges are likely to show bias toward the City, against the citizens. Why don't you go be a bum somewhere else, RSPB?

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  5. Poetic Justice DeuxSeptember 24, 2006 9:59 PM

    Flail away flail away,
    it's utter nonesense that you say,
    Should I stay or should I flee?
    Or maybe chain myself to a tree?

    It may be fine or it may be shitty,
    but victory it seems belongs to the city...

    ReplyDelete
  6. Local attorney teaches lawyers in Azerbaijan and Leucadia

    By: - Staff infection

    VISTA ---- The world map hanging on the wall in the longtime deputy public defender's office proved helpful to them when they received an e-mail in April inviting them to teach legal professionals in Leucadia and Baku.

    "I said, 'Leucadia? Where's that?" In reaction to the e-mail.

    On the coast of the Pacific Ocean, Leucadia is much like the capital of Azerbaijan, a former Soviet republic that borders Russia, Georgia, Armenia and Iran.


    It also is serviced by a legal advocacy center that is crazy. And programs that support legal reform in emerging democracies and provide legal education and training for NIMBY'S, law students, lawyers and bill collectors.

    Criminal's have worked in the San Diego County drunk tank unit in the 1990s and asked if they could come teach.

    Though Leucadia's mental proximity to Iran was somewhat unnerving, they decided to go.

    "The idea of adventure was fine with me," "I just really had not heard much about Leucadia."

    There were three attorneys from the United States to visit Leucadia this month to help teach trial skills for sueing the city of Encinitas in hopes of winning.

    Leucadia was "empowering" and "reaffirming they all agreed."

    "They're basically giving more life to the defense bar and more meaning because they're realizing the only way to have the justice system be fair is to have cases tested by two strong advocates," they said.

    In a county where meth production is so prevalent that they could smell meth as soon as they got off the bus and where just outside the city hall paved roads once ended and livestock once roamed, the legal system is becoming more democratic, we hope.

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  7. Hey loser's,
    You lost at Planning Commission.
    You lost at City Council.
    You hired a hotshot lawyer and sued the city, wasting taxpayer dollars in the process I might add, and LOST in court.
    You are now trying to win on this stupid BLOG?
    Good grief, get a life, loser's!!!!!!!!

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  8. UR Anal explosive, unpoetic, fake bum~September 25, 2006 12:54 AM

    Barratt prevailed, Citizens for Quality of Life prevailed, Encinitas Country Day School prevailed. The nature of City Council is changing. Every time the citizens lose, the City loses, too.

    The time for appeal of the Leucadia Cares case is still pending; so that is not yet a loss.

    You are the loser, crappy poet, fake bum one.

    "They're basically giving more life to the defense bar and more meaning because they're realizing the only way to have the justice system be fair is to have cases tested by two strong advocates."

    That's true. But sometimes "strength" in this city, and North County, has not included truth, common sense, and due process. The fallacy of "appeal to authority," is what the City relies upon, not facts, or solid law. It twists its own laws to suit itself. Like Dalager keeps saying, "The DEVIL is in the details."

    Or are you Steve Aceti, the fake Calif. lawyer? Whoever you are, you are a crappy poet; you don't want to know the truth; you just want to criticize and kill with sarcasm, the messengers, the watchdogs.

    Now, Steve Aceti, do you have any business clients in Leucadia? Like Charlie Marvin, for example? If you are "employed" by a govt. entity or agency, then you should be required to disclose all your private financial interests.

    Nobody but you is talking about meth, here, either. That is totally irrelevant, as you know, and I don't see it as being as much a problem as is RSPB and his obvious, odious, anal explosive tendencies.

    Good grief, yourself, RSPB, can you get Gil to get back here after his meeting with Sabine? Or did he get waylaid by the likes of you?

    It takes a loser to know a loser, fake bum one. When you say, "Get a life," rspb, that is your SELF reflecting what you know to be true about you. And don't try to throw your own phony nonwork ethic in our faces, hypocrite. You are not a judge, jury, nor executioner. You are pathetic with your sloppy poems and your sloppy logic, sloppy manners, and bitter, hateful attitude.

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  9. Bias in favor of "system"September 25, 2006 1:19 AM

    It is ironic that Barratt had deep enough pockets to call the City of Encinitas on not following statutory law, Govt. Code, take it all the way to the State Supreme court, and prevail, in the case of Barratt vs. City of Encinitas.

    It is often a matter of folks being able to afford good attorneys to fight against deep pocket City reimbursed attorneys, not right or wrong.

    With some judges, with some notable exceptions, such as Judge Annello, there is an automatic bias towards the "system." We all know this to be true. The City has an automatic advantage, and enjoys filing civil lawsuits in the name of the People ex rel. Glenn Sabine. He likes to put his name put out there, but is never, so far, held accountable for the lies that are told by those he supports through the City coffers, lies told at taxpayers expense, further diminishing the trust the citizens have for current City Officials.

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  10. Every Council Meeting, Glenn Sabine "takes Council out of closed session with, "there is no reportable action." In closed session, they only talk about that which we are not permitted to know, until after the fact, hiding behind their cowardice and corruption, and legal loopholes.

    The LeucadiaCares vs. Encinitas case is also, essentially, LC vs. Barratt, who is the builder of the fake Nantucket homes which are too high and block views of the pre-existing neighbors. The City and Barratt recused Judge Annello, because they didn't want a fair judge to hear the case, one not pre-disposed to rubberstamping the so-called "findings" of the City.

    The Barratt attorney was incredibly rude to Everett Delano at the appeal before Council. He ripped a map out of Everett's hands. I saw that Council Meeting. All of the stuff spouted by Barratt's attorney, and repeated by Council didn't make sense. Everett Delano and LeucadiaCares do make sense, particularly if you read the relevant parts of Encinitas Municipal Code.

    California Rules of Court, as recognized by the Court of Appeal clearly define the distinctions between the words "shall" and "may." The nonsensical ruling needs to be reversed.

    Everett, please think about relaxing your fees until you prevail. This would be a community service to many of us who have been oppressed by overbearing City tactics through Bossy Christy Guerin and her henchmen, Dalager, Glenn Sabine, and others.

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  11. I noticed that the poet didn't discuss the merits of the case, nor attack Barratt for filing a lawsuit and later an appeal against the City regarding a ruling from the same exact same judge.

    ReplyDelete
  12. I noticed those attacking the poet, and others, always go to the Jerome, Christy, Dan, Steve, Kerry bucket as a delusional way of making themselves seem important.

    Wow, that's a first, Leucadia Cares giving prof's to Barrett for being right on their lawsuit against the city.

    "The enemy of my enemy is my friend" a notoble quote from history, needs to be altered to fit the political climate in this Leucadia blog.

    The enemy of my enemy is an enemy!

    crazyness, but hey, it's funky!

    ReplyDelete
  13. First of all, unless there is another psychologist posting on this blog, I am the only one licensed to certify who is "crazy". I would say most of the posters are pretty sane, with the exception of our new poet laureate. Not sure about him or her.

    Secondly. Kerry Kusiak was the person who decided that our only whitewater view was not considered "significant" and let Marion Ross build her megamansion in front of 7 neighbors, who all lost a substantial portion of their views. Marion, of course, does not live here. Instead she choses to live in Los Angeles. However, all 7 neighbors own their homes and have to look at that McMansion every day. Quite a nice perk for once being on working with the "Fonz".

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  14. Constantly speculating who the anonymous posters are is a waste of time and will make you insane so just give it up.

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  15. I actually agree that trying to asertain who is posting is not worth our effort. We all know who the MAN is, even though there are many of them. Perhaps we would do best to stick to how to fix the situations in all communities, and just ignore RSPB and others of his ilk. By responding to their inaccurate assesments of the situation, it takes sway from what we are trying to do, which is getting the City to do what is right. Whoever these posters are, are distracting us from our main goal and giving them more credence then they are worth--IMHO

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  16. Thank you, Dr. Lorri, for affirming an excellent point. Right on! And thanks, JP, for not giving up on addressing the issues, for providing a forum that is informative, persuasive, and thoughtful, usually fun, too.

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  17. Yeah, and if people wanted to make themselves feel important, they would post under the same pseudonym, like road bum says he does.

    It's easy for a madman to call everyone else crazy. What's important here is the message, and the "messengers" seem to be doing their best to inform the public, while working, with humility, behind the scenes. We don't want to be in the limelight. Those that are in the limelight, such as Council and Sabine & Morrison, need to be far more open, and HONEST.

    ReplyDelete
  18. It's my birthday tooSeptember 25, 2006 5:53 PM

    Our mayors birthday is just around the corner. Have any of you malcontents thought about how she should be honored. She may be movin on but she deserves some kind of birthday party / send-off party from all of us minions.

    Any suggestions?

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  19. Her birthday is just around the corner? Is she celebrating early with the Japanese delegation?

    How about a telephone calling card with three minutes on it?

    ReplyDelete
  20. Freakish losers and once drugged out boozers call this blog a forum.
    Line up the glasses and salt the rims, cause the margie's, I'm gonna pour 'um.
    Encinitas is fine but you bitch wail and whine cause the power you seek still eludes you!
    You must stop this madness,
    your meanness and badness
    is blatent to all those who knew you.

    ReplyDelete
  21. 9/26/06 NCT articleSeptember 26, 2006 10:20 AM

    Read the front page story in today's NCT, "Questions raised over private party."

    "Mayor Christy Guerin is hosting an invitation-only dinner party for a sister city delegation from Japan, with taxpayers footing much of the bill.

    And the party on Saturday `also happens to be on (Guerin's) 50th birthday," the invitation states.'"

    ReplyDelete
  22. Self-empowerment=liberty, justice for allSeptember 26, 2006 10:31 AM

    No one is seeking any "power" except the power to require our elected and appointed officials accountable. In order to do so, their actions need to be transparent.

    The powers we have are our God-given rights, and include the power given to us by our Federal and State Constitutions, State and Federal Law, and the Rules of Court. Ours is to be a government by and for the people, not by and for a bunch of elitists feeding at the government, trough.

    If we hand our over our power, in apathy or intimidation, to corruption or a complacent, compliant bureaucracy, we lose our right to choose, to make a difference by speaking out, standing up for truth and freedom.

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  23. Unpoetic injustice, you are scum. You are the loser, with margaritas and meth addling your brain. If you think those who post here are losers, why do you keep doing so? Because your friends have all dumped you?

    We are not worried about what you think about us, or this forum. We are grateful JP makes a space for us to question authority, when we think our City is making mistakes, a place we can talk about, discuss our community.

    Your ability to make bad rhymes doesn't impress anyone. And why are you posting here, just to put people down, without listening to what they are saying about inequities or injustice? When a watchdog or a concerned poster says anything, you just label him or her a loser and disregard the questions that have been raised, or the merits of any case. If you think this blog is for losers, why do you keep spamming us with your bad rhymes? You obviously are the one who has control issues and needs to support yourself or your corrupt buddies on Council.

    Unpoetic injustice, from now on, we will ignore your posts, completely. We will no longer dignify your inane BS with any kind of reaction, here. You are a creep, and you glorify in that.

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  24. Margaritas and Meth would be a killer name for a band.

    ReplyDelete
  25. Scum and loser so your say, yet you lost the other day.
    You must have your day in court! then you lose and down a snort!
    Sometimes I think they are right,
    but you'll deny it and stay uptight!

    ReplyDelete
  26. Shuck me then suck me!

    ReplyDelete
  27. Dr. Lorri I'm disappointed to believe that you see me as some kind of malcontent!! All I do is point out the obvious about Leucadia, ie, no sidewalks, poor drainage, lack of landscaping, etc, etc, etc and I'm given grief!!! Let's all be real here now can we!!! I've yet to have anyone explain what's so "FUNKY" (your term not mine) about what I just repeated for the 1000's time!!

    All I ask is that regular posters use 1 name, what is so unreasonable about that?? You post under 1 name and so do I. Yet others( they know who they are) try to give the impression that THEY are supported throughout the community of bloggers . It is simply not true!! What I ask is NOT unreasonable.

    The thimbleheads call me sloppy, bitter, hateful, a fake BUM, yet don't know me nor my situation, they say awful things about me on this blog and then get angry when I defend myself against written attack!! In my opinion THEY are FAKE Leucadian, yet real THIMBLEHEADS!!! Why would they oppose improving the neighborhood?? Your the resident shrink here, perhaps you can elaborate on them!! Do they add character to the community, I know I do, because that's what everyone is fighting to preserve. The rundown, ugly, dangerous, uninviting, yet character filled Leucadia!!!

    They even clain I'm a bad poet,sheeez, get a life will you!!!

    I'm a poet,
    but don't know it,
    yet my feet show it,
    they're LONGFELLOWS!!

    Fake Leucadians..Real Thimbleheads!!

    Leucadia NOT as blighted as Mexico!!
    (Please note that this phrase has been copyrighted11)

    RSPB

    ReplyDelete

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