An Open Letter to Mayor Hupp, Members of Council and the People of Brea.

September 3, 2017

To: Mayor Cecilia Hupp

CC: Mayor Pro Tem Glenn Parker, Council members Marty Simonoff, Christine Marick, Steve Vargas, City Manager Bill Gallardo, City Attorney James Markman

Subject: Council Agenda Item 3 – Review Council Code of Conduct and Brea Municipal Code Regarding Removal of Commissioner

Mayor and Members of Council,

From the Staff Report’s first sentence under Background/Discussion, “It was brought to our attention there is a slight difference…” it was immediately obvious that the source of the information — ME — was being buried.

The fact that the report offers you and Council no options beyond doing nothing or modifying the Code of Conduct is a complete red herring designed to distract you from the information I originally provided regarding Constitutional violations of due process rights brought about by the Brea Municipal Code (BMC) Section 2.16.050.

It has been widely known by you, amongst Council and others that I brought the due process issues to your attention via the City Manager in November 2016. My request to meet with you, Mayor Pro Tem Parker and City Manager Gallardo was put off until January 9 due to heavy “holiday” commitments.

At that January meeting I clearly laid out the nature of the due process violations, both procedural and substantive. (For those encountering this issue for the first time I will clarify this in a moment.)

A few days later I was told by the City Manager that, after polling other Council members, the matter would be referred to the City Attorney to prepare amendments to the BMC as were necessary to remove the threat of further due process violations.

Procedural Due Process Violations.

The intent of procedural due process is to ensure that the government acts in a way that is fair and reasonable when making decisions that affect private individuals and that its actions are not arbitrary. Due process requires that an individual be given adequate notice and an opportunity for a hearing before an impartial authority.

  1. Brea Municipal Code Section 2.16.050 makes no provision for notice. Per email from City Attorney Markman (09/29/16) “No code section requires a specified type or level of notice to be provided to the removed commissioner.”
  2. Brea Municipal Code Section 2.16.050 makes no provision for hearing by a neutral, impartial body with the authority to sustain or revoke the dismissal of a Commissioner or Committee member.

Substantive Due Process Violations.

The Due Process Clause not only requires basic procedural rights, but it also protects substantive rights. Substantive due process is intended to protect the public from arbitrary governmental action, regardless of the procedures used to implement it. 

Additionally, a law is unconstitutionally vague if the statute fails to provide adequate notice of what conduct is prohibited. A regulation must be sufficiently clear to warn a party regarding what is expected of them, such that an ordinary person exercising common sense is able to understand and comply, before they can be sanctioned for failure to comply with the required regulation.

  1. Brea Municipal Code Section 2.16.050 offers no clear regulatory guidelines of what constitutes required duties and responsibilities or prohibited conduct sufficient to warrant dismissal.
  2. Brea Municipal Code Section 2.16.050 allows a commission member to be removed by unilateral declaration by the nominating Council member which opens the door to both arbitrary and discriminatory enforcement.

I feel it is important to remind you that while individual members of Council nominate candidates for Commission and Committee appointments… it is only with a majority of the full Council’s approval that the appointments are made official.

Guidelines/Policy vs. The Law (BMC).

The Council Code of Conduct (internal policy) was first adopted at a study session on October 1, 2002 and subsequently updated as Consent Calendar items (no discussion) on April 5, 2005 and November 18, 2014. As a policy document it does not carry the weight or authority of codified law.

On the other hand, the the BMC was originally codified (made law) on January 18, 1965 and the amendment to include the current provisions for dismissal of Commissioners and Committee members was added on December 15, 1992.

Please note that, though Mayor Pro Tem Parker was on Council in 1992 and voted in favor of the amendments, throughout this entire process he has never once volunteered an explanation, anecdotal or otherwise, of how and why things transpired as they did.

When is a “law” not a law?

When it is a Code of Conduct routinely updated without opportunity for debate by Council — as a Consent Item.

Updating the Council Code of Conduct as a “test” to determine if Council has any interest in amending the actual law (BMC) is ludicrous. The Staff Report is little more than a specious ploy designed to avoid addressing the original due process issues triggered by the BMC.

The long and winding road.

Following the January 9 meeting I was told that the City Attorney was instructed to prepare whatever amendments to the BMC as were necessary to remove the threat of further due process violations. There was an unmistakable, if unspoken, consensus that the due process issues posed sufficient problems as to warrant amending the BMC.

I checked back with the City Manager every couple of weeks to inquire about progress and, from January until July I was repeatedly given the same response. “Sorry, Rick, but Mr. Markman apologizes for the delay and will have this ready for Council within the next few weeks.” Never happened.

Suddenly, in August, I got a different answer, “Council is no longer interested in pursuing this.” When I pressed for “why” I was told that too much time had passed and the City Attorney had “lobbied” to drop the matter.

It was at that time I discovered the contradictions between the BMC and the Council Code of Conduct. When I brought that revelation to everyone’s attention… suddenly the matter was reignited.

Let me add a little perspective.

After failing to take any action on a request from the City Clerk, for almost a year, to review an important and long overdue update of the Records Retention Schedule, it took me rattling the cage when Planning Staff destroyed documents (in the Hines project) to get the review completed. Time lapse: 11 months.

When given clear instructions to resolve the due process issues generated by language within the BMC, the City Attorney drug his feet for six months. Only when the Code of Conduct contradiction complicated things was any attempt made to bring the matter to a close — sadly, with a bogus attempt to further hinder a legitimate legal solution. Time lapse: 9 months.

After reading “Corruptions Partner Is Our Own Indifference.” (Brea Matters – April 7, 2017) and without instruction from anyone, on April 13, City Attorneys Markman & Flower sent an unsolicited and widely circulated memorandum to the City Manager. They simultaneously issued a broad release via social media (Facebook, Nextdoor) refuting statements made in the blog. Yup, that’s right, without being officially tasked to do so, they knocked out the legal research, composition, revisions and distribution in just seven days.

I’ll leave it to you and members of Council to decide if there is any hidden agenda here. From where I sit, nothing is hidden very well. The City Attorney comes across as being perpetually irritated that I challenge him.

The City Attorney’s underlying defense.

Please come to whatever conclusion you feel best fits the facts at hand, but this smells a lot like the Four Dog Defense.

  1. My dog doesn’t bite. (The BMC is fine as it is.)
  2. My dog didn’t bite you. (Your rights were not violated.)
  3. My dog bit you but it didn’t hurt. (We violated your rights, but so what?)
  4. My dog bit you but it isn’t my fault. (We’ll need some time to look into this.)

Its time  to stop playing silly little bureaucratic games with this. I came to you in good faith with the express intent of “keeping this within the family” rather than suing the city. It appears that the City Attorney took note of my altruism and is banking on the fact that a 70 year old man on a very limited fixed income poses no legal threat. Unpardonable.

What now?

When you and the City Manager asked me, “What would you like to see happen?” my response was simple. “I’ve made you aware of a big pothole in the middle of Civic Center Drive, it’s not my job to fix it.”

The City Attorney’s creative solution is to plant trees in the medians on Birch Street during the peak of the worst drought in California history. Brilliant.

Okay… here are my suggestions:

  1. Edit the Council Code of Conduct to say,Regarding appointment and/or dismissal of Commissioners and Committee members, see: BMC Section 2.16.050.
  2. Remove the provision within the BMC for a single member of Council to unilaterally dismiss a Commissioner or Committee member. We have discussed the backstory of how this found it’s way into the BMC and what an abominable series of embarrassing and unprofessional events followed the one time in Brea’s history it was employed.
  3. Incorporate the new language from the Code of Conduct suggested by the City Attorney,Inappropriate behavior by a commission, committee or board member should be noted to the Mayor, and the Mayor should counsel the offending member. If inappropriate behavior continues, the Mayor should bring the situation to the attention of the Council and the individual may be subject to removal from the commission, committee or board.
  4. Further amend BMC Section 2.16.050 to include a clear statement of the Duties and Responsibilities of Commissioners and Committee members so there is no confusion as to what might constitute inappropriate behavior.

Once again I will reinforce the absolute necessity of removing the “unilateral dismissal” language from the BMC lest another loose canon goes off in the night bringing unprecedented harm and public embarrassment to the Council and the people you’ve been elected to serve.

The City Manager at the time (Tim O’Donnell) and the City Attorney (James Markman) were responsible for adding it to the BMC, without initial inquiry or instruction from Council 25 years ago. Allowing this to remain in the BMC sends a threatening message to anyone considering volunteering their time as a Commissioner or Committee member.

Why I know you’ll do the right thing.

It’s pretty straightforward really. I know a majority of you are very smart… and you know that I am right.

Regards.

Rick Clark

Markman & Flower

 

Hines: A Tale Of Two Cities.

HinesIt was the worst of times… period. We’re fighting a war on two fronts and threatened with losing both. On one side Breans are going head-to-head with Hines Properties, a megacorp hell bent on building a hulking monstrosity on St. College north of Birch. On the other we have a runaway Planning department who seems to consider themselves above the law, repeatedly overreaching their authority.

Neither situation bodes well for the people of Brea. The fact that both are connected makes the threat exponentially larger. As the policy and procedural issues can only be addressed by City Council I’ll leave that for another blog and focus on the development issues that need to be solved by the Planning Commission.

Reining in Hines.

At their April meeting, under the less than subtle steering of Chairman McGrade, the Planning Commission ended up desperately trying to patch one small element of the Brea Place project and calling it done.

Commissioner Schlotterbeck made the observation that the project fell short, by about 20%, of complying with our 14 year old General Plan’s maximum density guideline. Next thing you know the much larger southern building and the hotel were tucked aside, seemingly approved and focus was turned to the northern building… Building B.

In a miraculous demonstration of redesigning-on-the-fly, the Hines architect made most of the fourth floor disappear and reduced the building’s density by almost 20%. That’s 22 apartments for those who nitpick numbers. Commissioner Schlotterbeck was quick to point out that the disappearing act also removed parking for 38 units, throwing the building into noncompliance with the 1.78 spaces per unit parking requirement.

Maximum vs. minimum standards.

So, the push seems to be to stay within maximum allowed density while meeting a minimum parking standard. Ok, I’ll say what you’re thinking. What the hell? This is like getting open heart surgery done on a low bid basis.

Why do these city planners think the best policy is to always operate at the fringes of acceptability? Why is building as close as possible to the maximum allowable density the best idea? Why are parking conditions always targeting the fewest number of spaces that might accommodate the demand?

How about building comfortably below the maximum density and designing a parking plan that would actually meet peak demand? What a novel damned idea.

Speaking of minimum standards.

While we’re on the subject, it’s this same unsupportable mentality that led to adopting an addendum to a 14 year old General Plan EIR as the best way to comply with CEQA. Again, operating at the very fringe.

Going with the addendum is the weakest, least defensible means of minimizing or mitigating environmental impact. Hell, the addendum claims there isn’t sufficient environmental impact to warrant doing a new EIR. Circular logic. Inexcusable.

Once again staff dances on the edge of rational choices. Why? To cut public comment out of the conversation? To fast track the project and save Hines the $1.5 million cost of an EIR so staff could extort it later to help defray the cost of some politician’s pipe dream or rock garden?

Drawing a line in the sand.

HinesHey… Commissioners, Planners and Mr. Ninty-Five Billion Dollar Out-of-town Developer… we’re putting you on notice. Nothing less than a blanket 20% reduction in density across the entire project is acceptable. Nada. Nothing.

And that’s the starting line… not the finish line. We still need to talk traffic, parking, building mass and setbacks, in lieu fees and retail that won’t cannibalize local business.

You walked out of the April meeting fist bumping and trading high fives. Listen carefully, you never count your money when sitting’ at the table, there’ll be time enough for countin’ when the dealin’s done.

Markman & Flower

 

Planning Commission Blindsides Breans.

commission meetingI am still dumbfounded. With Chairman McGrade at the helm, carefully steering the Planning Commission towards an all too obvious destination, there was no hint of addressing the larger issues.

As people gathered for last night’s meeting, Director of Community Development David Crabtree was asked how he expected things would go. He smiled and responded, “It’s in the Commission’s hands now.”

Where did that confidence come from? What might he have known that the rest of us, on pins and needles, failed to understand?

My opinion? He knew the Commission had been prepped that process issues were not their responsibility, but Council’s. I think Commissioners realized that if they challenged process issues the City Attorney would have interjected and shut them down.

Consequently, there wasn’t a whisper about document destruction, the Records Retention schedule, arbitrary limitation of what the Commission was allowed to see or using an addendum to restrict public input.

Also my opinion, Chairman McGrade began his path to orchestrating the flow of discussion last night in January 2016, when he interjected himself into the selection process for Vice Chair.

Coincidently, this occurred at the exact same time that Planning Staff was rejecting the ICF proposal, deleting it from public record and moving forward with the addendum to the 2003 General Plan EIR.

Back to the meeting.

Dejected but still hopeful, a half dozen folks addressed the Commission during Matters from the Audience. They restated their concerns over density, building mass, traffic and parking — the big four.

The standout comments came from Dwight Manley. He shared a legal opinion from an environmental attorney clearly pointing out the gross error in using a General Plan EIR, which is a program level document, to assess a specific project… 14 years after the fact.

Right as rain, Dwight’s comments fell on deaf ears and Chairman McGrade moved on, without comment, and opened deliberation.

First to speak, Chairman McGrade set the tone by establishing his support for the project and his belief that everything was above board and legal.

Next up, Commissioner Schlotterbeck who went to great lengths to share the impressive extent of her due diligence. She reviewed thousands upon thousands of pages of highly technical and legal documents.

She also remarked that the public, whom she cared deeply about, had only a very limited understanding of CEQA. She cited specifics from the California Public Resource Code that proved there was nothing in the Hines project that violated law.

She also suggested that the project only complied with about 80% of the General Plan but failed to offer how to mitigate that shortfall. That’s like a transplant surgeon telling you that your new heart will work really well 80% of the time.

There are two solutions. Amend the General plan to accommodate the project so it is 100% in compliance or alter the project. Neither was done or even suggested last night.

Commissioner Schlotterbeck also raised the possibility that building “B” on the north lot might best be changed to condo/townhome product to lower density and add a very needed type of housing to Brea’s inventory. Other than weak applause from a few residents, the idea went nowhere. Why?

I’m wondering if changing from apartments to single family homes would trigger the need to change the zoning from Mixed Use to Residential. Such being the case, a new EIR would be automatically required. Not what Staff or Hines wanted.

Commission hits an impasse.

Chairman McGrade suggested a short break for Hines to discuss what options they were comfortable with moving forward. With Building “A” and the Hotel apparently in the bag, all that remained was to fix the density complaint for Building “B”.

Interjection: There is no way in hell Building “A” and the Hotel should have been given a free ride at this point! Everything should have remained on the table 

The likelihood that a creative solution could be instantly designed when it took the better part of a year and a half to get to this point was nonsense.

During the break I asked one Commissioner, if none of them cared about the breakdown in process and the look I received in return said it all. There was clearly the presence of a sad inevitability in their eyes. Their shoulders shrugged and they plodded, dejectedly, back to their seat.

For weeks, if not months… Hines, their attorneys, architects, engineers and consultant, John Koos, hunkered down in a conference room playing “what if” with every scenario Koos might imagine.

Over the break, all they did was find the right page in their playbook.

They didn’t even mention the condo/townhome option but jumped straight to a mashup of 3 and 4 stories reducing the density from 285 units to 228 units, leaving the total number of project units at 690.

This reduced the “B” building by this mystical magic number of 20% but something markedly less is true for the entire project. Neither the massive Building “A” on the corner or the Hotel across the street has been touched.

Back to deliberations.

As they did earlier, Vice Chair Willis and Commissioners Fox and Grosse added little to the discussion… all echoing concerns for density, building mass, traffic and parking — reaffirming their lack of support for the project as proposed.

Armed with this get-out-of-jail-free card, all that remained was to morph Brea Place into something different than what was currently proposed. The Commission moved on with a single minded determination.

I was reminded of the used car salesman eye-to-eye with the first prospect of the day… “What will it take for me to put you in this little jewel today?”

No interest in whether the heap of junk was even close to meeting the prospect’s needs, let alone their dream of a new car. No concern that the rattling valves and acrid smoke coming from the tailpipe were clear signs of a car on it’s last legs. Unworried that the greater expense of maintenance would likely crush the prospect later.

It was all about closing the sale.

The people of Brea got steamrolled last night. Staff knows it. The Commission knows it. Hines, their consultant, attorney, architect, traffic engineer… they know it.

The last to realize the unthinkable had occurred were the folks with the red buttons and the high hopes.

Will there be an appeal when, inevitably, the project with it’s crushing density, easily foreseeable flood of traffic and long list of overlooked negative impacts is approved?

Maybe, maybe not.

“Leadership is disappointing your constituents in increments they can absorb.”

This O’Donnellism, this longstanding municipal mantra, once again proved prophetic. I’m not fond at all of the fatalist’ mentality, but this feels a lot like, “Game over.” 

I’m unwilling to give up. How about you? Are you ready to roll over or will you take some time out of your busy day to become part of the solution?

Markman & Flower