Fighting grade deflation

Landowners sue Laguna Beach, alleging conflicts of interest and violations of state law in city’s effort to reduce steepness of new streets, driveways. A group of Arch Beach Heights property owners has filed a lawsuit against the city, alleging that changes in the general plan are a backhanded way of rendering hillside properties unbuildable.

The property owners object to a reduction in the allowable grade steepness for new streets, and they accuse some city officials -- elected and appointed -- of conflicts of interest in supporting the grade reduction.

The plaintiffs claim the reduction of allowable grades for new streets and driveways was approved without proper notification to property owners and voted on by officials who violated conflict of interest laws because they own properties that would be affected by the measure.

The complaint was filed Sept. 23 and followed up with a motion filed Nov. 10 asking the court to temporarily prohibit the city from enforcing the general plan amendment pending a final determination of its legality.

“We want the law voided,” said property owner Paul R. Allione, whose name appears on the complaint and the motion for a preliminary injunction.

In its response to the complaint, the city has denied any reversible wrongdoing.

“He [Allione] is asking the court to overturn the council decision, but nothing has occurred to justify granting that relief,” City Attorney Philip Kohn said.

No trial date has been set on the complaint.

“That likely will not happen until a case management conference is held, probably after the first of the year,” Kohn said.

The motion asks the court to prohibit the city from enforcing the new regulation pending a trial on the plaintiffs’ allegations of common-law conflicts of interest and violations of the state’s Political Reform Act and Brown Act.

The recently adopted measure reduces allowable grades for new streets or driveways to a standard of 12% and a variance maximum of 14%.

The previous maximum street grade was 15%.

The City Council approved the grade reduction after fire officials argued that overly steep streets present a safety hazard.

The complaint and the motion for a preliminary injunction were filed on behalf of property owners Merrick Leckey, Touraj Zal, Borzou Zal, Barbara Kallman, George Watson Jr., Richard L. Johnson, ABH Properties LLC and its principal, Allione.

“I take this personally,” Allione said. “And I am not the only one who takes it that way. I am the only one who is seeking a 15% grade road, but the [amendment] has adverse affects on other projects.”

The amendment is not specifically directed at Arch Beach Heights.

“They tried to make this [grade] change once before in 1991, and the planning commission and the council rejected it,” Allione said.

This year the commission and the council voted in favor of the change, supported by City Manager Ken Frank.

Allione charges that commissioners Norm Grossman and Bob Chapman, Councilwoman Toni Iseman, Fire Chief Mike Macey and Frank all own property within 500 feet of hillsides where some of the plaintiffs own properties and should not have voted on the amendment.

Allione’s property is not within 500 feet of any of the officials’ properties. “It is just outside,” he said.

However, Allione said access to his pending three-lot project would be via an extension to Cortez Avenue that would exit onto Balboa Avenue.

“Grossman’s home is one lot away from that intersection,” Allione said.

Allione also noted that Iseman recused herself from all council discussions and votes on the grade reduction, although she did vote to send the proposal to the planning commission for review.

The draft of the preliminary injunction motion cites a Californial law that stipulates that a public official shall not “participate in making or in any way attempt to use his official position to influence a governmental decision in which he knows or has reason to know he has a financial interest.”

According to Allione, the underlying issues, if proven true, could be the basis of criminal prosecution against the public officials involved.

However, City Attorney Philip Kohn said, “The complaint is not a criminal complaint, and the suit will not result in a judgment regarding any criminal activity,”

Allione further alleges the city did not properly notify the property owners affected by the change in grade standards, and that he was not informed of any proposed changes in the general plan when his company applied on Aug. 8, 2004, for a development permit.

He said City Manager Frank introduced the agenda bill at a regularly scheduled council meeting May 17, and he was not advised that the proposal would be made.

The city is required to post agendas outside City Hall 72 hours prior to a meeting. Bids and public hearings must be advertised in an adjudicated newspaper. Both requirements were met, although Allione criticized the placement of the ads.

Agendas also are posted on the city’s website, with links to backup materials.

Allione disputes the city’s contention that the grade change was a safety issue.

Included in the summary of the rough draft of the motion for a temporary injunction is the following statement: “Although promoted as a matter of safety, it is highly speculative that a street with a 12% gradient in fact provides more safety than one at 15%.”

The draft summary also stated that prior to the amendment the general plan was silent on the gradient and that the municipal code had permitted grades of up to 15% since 1991.

“The motion for a temporary injunction claims the city’s action is invalid because of alleged violations of the Political Reform Act by certain city officials who participated or voted in the decision making,” City Attorney Kohn said. “We will vigorously oppose the motion.”

The court hearing on the motion for the preliminary injunction is scheduled to take place Dec. 9.20051118iq2relknDON LEACH / COASTLINE PILOT(LA)Paul Allione has filed a lawsuit seeking to overturn a city ordinance that reduces the maximum grade of new streets.