HomeMy WebLinkAboutCC_2021_06_09_Supplemental ReportITEM NUMBER: 1 (Suppl)
DATE: 06/09/21
Atascadero City Council
Staff Report - City Attorney
SUPPLEMENTAL STAFF REPORT REGARDING
DOVE CREEK MINI-STORAGE PROJECT
(DEV20-0076)
RECOMMENDATION
All Members of the City Council should participate in the hearing on the Appeal of the
Dove Creek Mini-Storage Project (DEV20-0076).
DISCUSSION
This is a Supplemental Staff Report (“Report”) to the Staff Report which was included with
the Agenda Packet posted on June 4, 2021. The purpose of this Report is to address the
points raised in a June 1, 2021 letter (“Letter”) from Kate Neiswender (attorney for Scott
Newton) to City Attorney Brian Pierik (Attachment A) requesting recusal of Mayor Pro
Tem Heather Newsom and Council Member Susan Funk on the grounds of alleged bias
against the Dove Creek Mini-Storage Project (DEV20-0076).
On September 10, 2019, the City Council voted to overturn the action of the Planning
Commission in regard to a proposed mini-storage project at Dove Creek by Scott Newton
(“Prior Project”). The three votes in favor of overturning the Planning Commission action
were by Mayor Heather Moreno, Susan Funk and Roberta Fonzi and the vote to not
overturn the Planning Commission action was by Mayor Pro Tem Charles Bourbeau.
Council Member Heather Newsom was absent.
On December 10, 2019, there was a City Council meeting and the Council voted to
introduce an ordinance for a first reading of the Title 9 amendments where mini-storage
was proposed to be removed from the public zone. There was no second reading on that
ordinance.
On January 28, 2020, there was a City Council Meeting and a motion to introduce the
ordinance and remove the proposed change to the public zone and continue to allow mini
storage by Conditional Use Permit that was made by Council Member Susan Funk and
seconded by Council Member Heather Newsom. The motion was passed by a vote of
three in favor (Heather Moreno, Heather Newsom and Susan Funk) and two opposed
(Charles Bourbeau and Roberta Fonzi). See Minutes for January 28, 2020, Attachment
B
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In 2020, Scott Newton submitted a revised project with a reduced development footprint
and enhanced creek restoration and landscaping designated DEV20-0076 (“Current
Project)
On November 18, 2020, the Design Review Committee (DRC) discussed the Current
Project. There was a Motion by Committee member Duane Anderson and seconded by
Committee member Emily Baranek to approve the project concept design to include
public assembly (community room) and mini-storage and that the committee is in
agreement that the design and land use is compatible with the General Plan Policy. The
Motion passed by with three affirmative votes (Duane Anderson, Emily Baranek and
Council Member Mark Dariz and one no vote (Mayor Pro Tem Heather Newsom). See
Minutes from DRC Meeting of November 18, 2020, Attachment C.
On May 4, 2021, the Planning Commission voted 4 to 3 to approve a Conditional Use
Permit for the Current Project.
On May 6, 2021, there was an appeal filed by Mayor Pro Tem Heather Newsom of the
Planning Commission action which stated that she does not feel the project meets the
fourth finding: the proposed project or use will not be inconsistent with the character of
the immediate neighborhood or contrary to its orderly development. See Attachment 5 to
the Staff Report.
On May 7, 2021, there was an appeal filed by Council Member Susan Funk which
explains why she filed an appeal of the Planning Commission action. See Attachment 6
to the Staff Report.
Thus, all of the current City Council Members have previously taken positions in regard
to the Prior Project or Current Project or both.
JUNE 1, 2021 LETTER FROM KATE NEISWENDER
The Appeals by Heather Newsom and Susan Funk Are Authorized by the
Atascadero Municipal Code
The Letter (page 1, paragraph 3) has a statement that the Mayor Pro Tem Heather
Newsom and Council Member Susan Funk “did not appeal as the City Council, as the
Council never met to discuss this.” However, the appeals filed by Heather Newsom and
Susan Funk do not purport to be filed as the City Council. Heather Newsom and Susan
Funk are entitled by Atascadero Municipal Code Section 9-1.111 to file an appeal as
individual members of the City Council and are not required to pay an appeal fee.
Claims of Bias
The Letter provides what it claims are examples of bias against the project by Mayor Pro
Tem Newsom and Council Member Funk. Each of these claims of bias are without merit
for the reasons stated below.
A. Heather Newsom
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1. Claimed Bias Based on Vote at DRC Meeting on November 18, 2020
a. Argument in Letter (page 2):
At the DRC Meeting on November 18, 2020 Heather Newsom voted against the
motion to approve the project concept design to include public assembly
(community room) and mini-storage and that the committee is in agreement that
the design and land use is compatible with the General Plan Policy.
b. Response:
(1) Based upon the legal authorities set forth later in this Report, the
fact that Heather Newsom voted no on the Motion at the DRC meeting on
November 18, 2020 does not require her to recuse herself from participating in
the hearing on the appeal on June 9, 2021.
(2) Furthermore, to follow the logic of the Letter, Council Member Mark
Dariz would be required to recuse himself from participating in the hearing on the
appeal on June 9, 2021 because he voted in favor of the Motion. Notably, the
Letter fails to ask that Mark Dariz be recused from participating on June 9, 2021.
In addition, Council Member Charles Bourbeau voted at the September 10, 2019
City Council meeting to affirm the action of the Planning Commission which
approved the Prior Project. Thus, the Letter itself is bias in that the Letter only
seeks the recusal of Council Members who have not taken a position in favor of
the project.
(3) The Letter fails to mention the vote by Heather Newsom at the City
Council Meeting on January 28, 2020 mentioned above in which Heather
Newsom voted in favor of the motion to introduce the ordinance and remove the
proposed change to the public zone and continue to allow mini storage by
Conditional Use Permit.
2. Claimed Bias Based on Appeal of Planning Commission Action
a. Argument in Letter (page 2):
In the appeal by Heather Newsom of the Planning Commission action she
stated: “I feel that it does not meet the fourth finding; the proposed project or use
will not be inconsistent with the character of the immediate neighborhood or
contrary to orderly development.”
b. Response:
Based upon the legal authorities set forth later in this Report the fact that Heather
Newsom made this statement in her appeal of the Planning Commission action
does not require her to recuse herself from participating in the hearing on the
appeal on June 9, 2021.
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B. Susan Funk
1. Claim Bias Base on Statement in Public Forum in September of 2019
a. Argument in Letter (page 2):
Council Member Funk said in public forum that “one more unit of self storage in
the city is too many.”
b. Response:
(1) The Letter does not identify in what “public forum” this statement
was allegedly made by Council Member Funk. However, Ms. Neiswender has
subsequently indicated that this “public forum” was on September 26, 2019 at the
Tolosa Winery, the Home Builders Association Public Officials Night. Council
Member Funk denies making any such statement at this event on September 26,
2019, or at any other time, and further that this alleged statement is not
consistent with her opinion, then or now.
(2) The Home Builders Association Public Officials Night was not a
“public forum” as it was not open to the public.
(3) September 2019 would have been the Prior Project, not the
Current Project which was not submitted by the applicant until 2020.
2. Claim of Bias Based on Statements Made in January 2020 Council Meeting
a. Argument in Letter (pages 2-3):
In January 2020, there was a text amendment before the City Council which
would have banned self-storage in the P zone and Council Member Funk made
statements at that meeting about a self-storage project at Dove Creek.
b. Response:
(1) The City Council meeting to which Letter apparently refers took
place on January 28, 2020. The Applicant had not even submitted an application
for the Current Project (which is the subject of appeal hearing on June 9, 2021)
by January 28, 2020.
(2) In addition, based upon the legal authorities set forth later in this
Report, even assuming Council Member Funk made a statement that was critical
of mini-storage in this area of the City on January 28, 2020, such statements
would not require Council Member Funk to recuse herself from participating in
the hearing on the appeal on June 9, 2021.
(3) The Letter fails to mention the vote by Susan Funk at the City
Council Meeting on January 28, 2020 mentioned above in which Susan Funk
voted in favor of the motion to introduce the ordinance and remove the proposed
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change to the public zone and continue to allow mini storage by Conditional
Use Permit.
3. Claim of Bias Based on Appeal and Facebook Posting
a. Argument in Letter (page 3):
Susan Funk presented her appeal in two ways: there was a written appeal and
then she posted a very similar statement on Facebook. Since that posting, Funk
has gone on to “like” only those comments to her Facebook post which are
critical of the Project.
b. Response:
(1) The appeal by Susan Funk (Attachment 6 to Staff Report) does not
take a position on the merits of the Current Project.
(2) The claim that Susan Funk “liked” only comments on her Facebook
post that are critical of the Project is false. A screenshot of the Facebook pages
of Susan Funk regarding her appeal of the Project is Attachment D. There are
two “likes” (thumbs up) by Susan Funk which are for the comments by Amoreena
Bremgartner Anker (“Thank you Susan Funk!”), see red star, and by Marcia
Beckley-Kane (“Thanks Susan for taking action!), see yellow star. Neither of
these two comments are critical of the Project.
(3) The Letter fails to mention that the Facebook page of Susa Funk
(https://www.youtube.com/watch?v=TkQ7cSVKhwc) includes a video she posted
on May 7, 2021 in which she read from her appeal (Attachment 6 to Staff Report)
than then she made the following statement:
“There’s a, there’s al…there was also previously a, an appeal filed by Mayor Pro
Tem Newsom that happened well before I, after I had drafted mine but before I
delivered it. So I decided to go ahead and deliver mine just so that there’s no
question about a physical letter signed, being an authentic appeal. And, and
also be…and I’m sharing it and filing it because I want the applicant and
supporters and opponents of the project all to know that I’m requesting
additional information in order to help me be able to visualize this project and its
impact. As council members we are required to be open to all matters, and
not to make our decision before we have heard the full hearing and have
everybody’s comment. That’s what the public process of public hearings
is for so that we can have all that information and everybody gets to have
their say before the council makes a decision. And I very definitely am
honoring that commitment and look forward to getting a picture that’ll
help…maybe it’ll help some of the rest of you but certainly it will help me
in understanding this project. There’s, you know, I don’t…it’s not clear to me
how high it is with the filter and how that changes the topography of the site, to
what, you know, the vertical and horizontal displacement on that fa…that south-
facing thing. And I just think it will help us all to be working on the same page,
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or at least a little closer as we consider this particular decision. Thanks.”
(Emphasis Added)
4. Claim of Bias Regarding Lack of “Southern View” Elevation
a. Argument in Letter (page 3):
The Funk appeal criticized the lack of a “southern view” elevation for the Project,
which was already in the material submitted to the City. The City requires four-
sided architecture along with a landscape plan, and it was provided.
b. Response:
(1) A two dimensional view (2D) is “flat” as compared to a three
dimensional view (3D) which provides a superior visual concept of the project
from that view. The Applicant provided a 3D view from the north, east and west,
but did not provide a 3D view from the south. Thus, Susan Funk was correct
about the lack of a southern view from the standpoint of the lack of a 3D southern
view as compared to the views from the other three directions.
(2) Even if Susan Funk were incorrect about the lack of a southern
view (which she described as the longest face), that is not evidence of bias. At
most, it would show she was not correct about the lack of a southern view.
However, as noted, she was correct about the lack of a southern view from the
standpoint of the lack of a 3D southern view
5. Claim of Bias Regarding Statement About Confusion of Planning Commission
a. Argument in Letter (page 3):
Ms. Funk also claimed that the Planning Commission was confused, despite the
fact that they voted twice to approve the Project, once 3- to-2 and once 4-to-3,
after hours of deliberation.
b. Response:
Susan Funk apparently perceived some confusion on the part of the Planning
Commission in regard to the Project based on her viewing of the Planning
Commission meetings. However, even if the perception by Council Member
Funk about some confusion by the Planning Commission is not correct, this
would not show bias.
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Legal Analysis of Cases Cited in Letter
The Letter cites a number of cases which shall be addressed here.
1. Petrovich Development v. City of Sacramento (2020) 48 Cal. App. 5th 963
The Letter cites the Petrovich case for the proposition that there is a biased decision
maker because the Council Member not only voiced opposition at a local neighborhood
association meeting, but then also organized an opposition to the vote and provided
talking points to other councilmembers in advance of the meeting.
However, the Petrovich case would support a position that there is no bias in the current
situation. The Petrovich Court states that “concrete facts” are needed to establish bias,
such as whether the councilmember “assisted opponents,” “organized the opposition at
the hearing,” or “acted as an advocate”. In fact, the Petrovich court explicitly stated that
making a statement that a project “does not fit … [does] not disqualify [the official] from
voting on the issue” and is not a “concrete fact” supporting bias. (Petrovich, at 974.)
There are no concrete facts indicating that any Atascadero Council Member is actively
organizing or coordinating with an opposition group to defeat the project, to support a
claim of bias, and therefore, the Petrovich case does not support the contentions in the
Letter.
2. Woody’s Group, Inc. v. City of Newport Beach (2015) 233 Cal. App. 4th 1012
The Letter also cites the Woody’s Group case for the proposition that filing an appeal
and stating an opposition to the project demonstrates bias.
However, Woody’s Group explicitly states how the “mere fact the councilmember had
filed an appeal was itself not enough to show an unacceptable probability of bias”
(emphasis added) and there, the issue was allowing the Council Member to appeal,
without following the Municipal Code requirements. There were also facts that showed
that any Council Member “strongly believed” that the operations and the decision was
inconsistent with the residential character of the area and the general plan, and
therefore there was an unacceptable probability of bias. In fact, the Woody’s Group
case discussed how appeals may be taken from decisions of subordinate agencies if it
is allowed under the Municipal Code. (See Woody’s Group, at 1022-1024.)
Here, the appeal procedures are permitted by Atascadero Municipal Code Section 9.1-
111 and there was no explicit statement indicating that the Councilmembers have
“strong” oppositions to the project, in contrast to the Woody’s Group case. As a result,
the Woody’s Group case does not support the contentions in the Letter.
3. Nasha v. City of Los Angeles (2004) 125 Cal. App. 4th 470
The Letter also cites the Nasha case and explained how there is bias where an official
published an article in favor of a local homeowner’s group and called the project a
threat.
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However, the Letter does not allege that any of the Councilmembers were involved any
written or published articles against the projects, and the allegations involving
comments in an unidentified public forum and Facebook have been addressed above,
where Council Member Susan Funk does not take any position on the project. As a
result, the Nasha case does not support the contentions in the Letter.
4. Cohan v. City of Thousand Oaks (1994) 30 Cal. App. 4th 547
The Letter also cites the Cohan case and claims that: (a) as appellants, the Council
Members must present the appeal; (b) the description for the appeal is not clear enough
to provide notice; and (c) cumulative procedural errors may result in an inadequate
hearing.
However, Cohan does state that Council Members must individually present the appeal.
With respect to the description not being clear, later cases indicate that appeals from
the Planning Commission to the City Council are “de novo” and a simple description
such as the appeal being ”Based upon Police Department recommendation…” is
sufficient to give adequate notice. (See Breakzone Billiards v. City of Torrance (2000)
81 Cal. App. 4th 1205, 1221-1222.) Lastly, the comment about cumulative procedural
errors is not applicable, where, as noted above, there have been no procedural errors,
much less a string of procedural errors. As a result, the Cohan case does not support
the contentions in the Letter.
CONCLUSION
For the reasons stated above, there is no merit to the claims in the Letter of bias on the
part of Mayor Pro Tem Heather Newsom or Council Member Susan Funk. Therefore,
Pro Tem Heather Newsom and Council Member Susan Funk, as well as the rest of the
City Council Members, may participate in the hearing on the appeal of the Current
Project set for June 9, 2021.
ATTACHMENTS:
A. June 1, 2021 letter from Kate Neiswender
B. January 28, 2020 Minutes for City Council Meeting
C. November 18, 2020 Minutes for Design Review Committee Meeting
D. Screenshot of the Facebook pages of Susan Funk
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LAW OFFICE OF K.M. NEISWENDER
Land Use ! Business ! Environmental
Phone: 909.744.9723
Cel: 805.320.2520
Mailing Address:
Post Office Box 1225
Email: KateLawVentura@gmail.com Blue Jay, California 92317
June 1, 2021
Brian Pierik
Burke, Williams & Sorensen
2310 E Ponderosa Drive # 25
Camarillo, CA 93010
Re: Dove Creek Self Storage -- Request for Recusal of
Councilmembers Newson and Funk in Connection with the
Hearing on the Newsom/Funk Appeal of the Planning Commission Approval
Dear Mr. Pierek:
I write to you in your capacity as City Attorney for the City of Atascadero. This office
represents Scott Newton, project applicant for the Dove Creek Self Storage facility located at the
intersection of 11450 Viejo Camino and 11505 El Camino Real (th e”Project”).
In April 2021, the Planning Commission held the first of two hearings on this Project.
After a lengthy hearing and deliberation, the Commission voted 3-to-2 in favor of the Project.
On your advice, that vote was voided, on grounds there had to be a minimum of four votes in
favor of the Project. That has not been the City’s practice in the past; in fact, in 2019 the
Planning Commission voted 3-to-2 in favor of a prior version of the Project and that vote was
never challenged. As you are aware, an appeal was filed against the 3-to-2 approval in 2019, and
the applicant incurred significant expenses as a result. We have determined there have been
other votes of the Planning Commission that have been approved on a 3-to-2 vote, without a
problem.
Regardless, the matter was re-set for May 4, 2021. After three hours of discussion, the
Commissioners voted 4-to-3 to approve the Project. Shortly thereafter, two persons appealed the
Commission decision: Heather Newsom and Susan Funk. They did not appeal as the City
Council, as the Council never met to discuss this. Therefore, these are appeals by “aggrieved
persons” as stated in Section 9-1.111 of the City ordinances. They did not, however, pay a fee,
which is required of any appellant under the ordinance. For the City to permit an appeal by an
aggrieved person (not the City Council or a councilmember on behalf of the public) is a gift of
public funds, and improper.
We write to request that both Newsom and Funk recuse themselves, or be recused, from
the hearing on the appeal. Their actions and statements have made it very clear that they are
biased against the Project.
ITEM NUMBER 1 (Suppl)
DATE 06/09/2021
ATTACHMENT A
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Brian Pierik
June 1, 2021
Page Two
The First Dove Creek Project: In 2019, the Dove Creek Self Storage project was
presented to the Commission and then to the Council. It was a very different project than the one
currently at issue. The first project included 81,000 sf of self-storage in eight buildings and a
carertaker’s residence. After a full hydrologic study, it was determined there would be .74 ac of
basin/wetland restoration.
The Current Project: After the first project was turned down in late 2019, the Project
was completely re-worked and revised. After months of meetings with City staff, the new
Project downsized the self-storage by 32% and multiple changes were made to the appearance of
the Project to make it more aesthetically pleasing. A workshop was added for the owner.
Underground stormwater storage was added. An acre and-a-half (the “triangle” area) was not
part of the project, but during hearings, the Planning Commission opted to put an Open Space
easement over the triangle, despite the fact that it was not needed for the Project.
The current Project is visually different than the first proposal, and one-third smaller.
The Newson Criticism Of The Project: Heather Newsom is clearly biased against the
project. Councilmember Newsom was the only member of the DRC who voted against the
Project, saying the City Council had already made a determination that the Project was
incompatible with the area. The DRC is only to consider aesthetics and did not opine on the
compatibility of the use as it is outside of their purview. Newsom’s vote about compatibility not
aesthetics shows she pre-judged the Project and is not a fair, unbiased decision-maker.
She repeated that criticism of the Project in her written appeal, stating:
“I feel that it does not meet the fourth finding; the proposed project or use will not
be inconsistent with the character of the immediate neighborhood or contrary to
orderly development.”
By clearly stating her bias, at the DRC meeting and in her appeal letter, she must be recused.
The case law (discussed in detail below) confirm this.
The Funk Criticism Of The Project: In September of 2019, Councilmember Funk said
in public forum that “one more unit of self storage in the city is too many.”
In January of 2020, a text amendment was before the Council, which would have banned
self-storage in the P zone. After Phil Dunsmore criticized the idea of any self-storage in a P
zone, Funk agreed saying this:
“What we do with these plans is to provide clarity ... [we don’t want a developer
to say] ‘Hey, we can stuff these full of storage units’ only to find that’s not what
we mean by this ....
“So they bring us stuff we can say ‘yes’ to, with regard to mini-storage in Public.
We are looking at a situation if the project we saw and reviewed before [the first
Dove Creek self storage project] is one that cannot meet the findings, it’s
ITEM NUMBER 1 (Suppl)
DATE 06/09/2021
ATTACHMENT A
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Brian Pierik
June 1, 2021
Page Three
difficult to envision any project that would. So to make the [text amendment]
change does create greater clarity for people who are looking to see what they can
do with those properties, so they are not putting money where it is ultimately
not going to be supportable.”
Therefore, she had decided that no self-storage project would be “supportable” in the P zone, and
she made that statement with a direct reference to the first Dove Creek project. She has not even
considered the current Project, because – as she has already said – “one more unit of self storage
in the city is too many.”
Just as with Councilmember Newsom, Funk appealed the Planning Commission decision
as a private citizen, and like Newsom, failed to pay the fee required under 9-1.111. She
presented her appeal in two ways: there was a written appeal and then she posted a very similar
statement on Facebook. Since that posting, Funk has gone on to “like” only those comments to
her Facebook post which are critical of the Project.
The Funk appeal criticized the lack of a “southern view” elevation for the Project, which
was already in the material submitted to the City. The City requires four-sided architecture along
with a landscape plan, and it was provided. Ms. Funk also claimed that the Planning
Commission was confused, despite the fact that they voted twice to approve the Project, once 3-
to-2 and once 4-to-3, after hours of deliberation.
The Funk appeal provides the applicant little to go on as to why the appeal was filed,
despite the requirement for specifics in 9-1.111. Funk claims there was no southern elevation,
but there was. Funk claims the Commissioners were “confused” but that does not provide a basis
for the appeal. She also states that this decision should rest with the City Council, however
based on the City’s own codes, a Conditional Use Permit is clearly the responsibility of the
Planning Commission. She reiterates her comments from the January 2020 Text Amendment
hearing, saying the Project is:
“ ... a revised version of a land use for this specific property that the Council
previously determined by a majority vote to be inconsistent with the surrounding
neighborhood and its orderly development.”
As she said in January of 2020, she does not think that any self-storage project would be
“supportable.” She repeats that in her appeal, which echoes her comments in September of 2019
that one more self-storage unit in Atascadero is “too many.” This is clearly bias and Funk must
be recused.
Both Councilmembers Must Be Recused: The case law shows what constitutes bias,
sufficient to require a decision-maker to recuse herself (or be recused). The cases are clear that
pre-judging a project (Newsom and Funk) and speaking publicly against a project before the
Council hearing (Funk) are sufficient grounds for recusal.
There are some very recent cases that must be taken into consideration.
ITEM NUMBER 1 (Suppl)
DATE 06/09/2021
ATTACHMENT A
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Brian Pierik
June 1, 2021
Page Four
In 2020, the Court of Appeal held in Petrovich Development v. City of Sacramento 48
Cal, App. 5th 963 that:
“A decisionmaker must be unbiased (meaning that the decisionmaker has no
conflict of interest, has not prejudged the specific facts of the case, and is free of
prejudice against or in favor of any party). Allowing a biased decision maker to
participate in the decision is enough to invalidate the decision.” (Woody’s, supra,
at p. 1022; Nasha, supra,125 Cal.App.4th at p. 484; Clark, supra, 48 Cal.App.4th
at p. 1171.)”
The Petrovich case involved a large multi-use development, including commercial and
residential, that had been approved by the city in 2010. In 2014, the developer applied for a CUP
to put in a gas station as an adjunct to the grocery store on the site. Like the situation here, the
zoning was proper if a CUP was obtained. The Planning Commission approved the CUP, and
certain neighbors appealed to the City Council.
The facts in Petrovich are eerily familiar to the situation in Atascadero. Like appellant
Newsom, the persons objecting to the CUP said the zoning was irrelevant, and that it was all
about compatibility. One councilmember was very vocal in his opposition. The councilmember
said at a local neighborhood association meeting: “I don’t think a gas station fits in with what
was originally proposed.” He then organized opposition to the vote, and provided “talking
points” to other councilmembers in advance of the meeting, saying he thought he had the votes to
strike down the Planning Commission approval.
The Court of Appeal said this was bias, requiring recusal. It was not just the statement to
the neighborhood association, but it was that in combination with the “talking points” provided
to the other councilmembers. The Court reminded the parties that the law does not require the
disappointed applicant to prove “actual bias. Rather, there must not be an unacceptable
probability of actual bias on the part of a municipal decision maker.” Here, for both Newsom
and Funk, we have facts sufficient to show an unacceptable probability of actual bias.
In 2015, the Court of Appeal decided Woody’s Group v. City of Newport Beach 233 Cal
App. 4th 1012. In Woody’s, the City Council overturned an approval by the Planning
Commission, in which one of the councilmembers filed the appeal, and stated his strong
opposition to the project. The Court of Appeal wrote;
“You cannot be a judge in your own case. In this case Councilmember Mike Henn,
having already voiced his strong opposition to Woody's Group, Inc.'s application, was
allowed to appeal the approval of Woody's application to the very body on which he sits,
where he did his best to convince his colleagues to vote with him against the application.”
The Woody’s court was unhappy with the idea that any councilmember can be assumed to be
acting on behalf of the public:
“We note in passing the obvious ipse dixit nature of the language in
Resolution 2013-75. The assumption that by definition a city council member
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DATE 06/09/2021
ATTACHMENT A
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Brian Pierik
June 1, 2021
Page Five
who appeals is doing so ‘for the benefit’ of the residents, as distinct from
some personal bias, is certainly not based in logic.”
Funk did not give any substantive for her appeal, other than her “concerns” that the Planning
Commission was confused, or that she didn’t think the information presented was clear enough
for her. This was not an appeal for the benefit of the public. This was an appeal due to Funk’s
stated bias that “one more unit of self storage in the city is too many.” She posted her appeal on
Facebook, and then proceeded to “like” only those comments that criticized or opposed the
Project.
In 2004, the Second District published Nasha v. City of Los Angeles 125 Cal. App. 4th
480. In that matter, a Planning Commissioner wrote a little article for the local homeowners
group, calling the Project a “threat” to a wildlife corridor. The same Commissioner introduced
the appellant to speak against the project at a neighborhood meeting.
The trial court held the article, the introduction and the Commissioner’s obvious
opposition was not enough to force the recusal. But the appellate court overturned the trial court
and held that the Commissioner’s authorship of the newsletter article gave rise to an
unacceptable probability of actual bias and was sufficient to preclude him from serving as a
"reasonably impartial, noninvolved reviewer.” The appellate court held the Commissioner
should have been recused, and that the Planning Commission decision had to be vacated.
Compare this to Funk’s comment that one more storage unit is one too many, that no
self-storage project can be “supportable” in P zoning, and her Facebook “likes” of comments
critical of the Project. That clearly indicates bias. As for the Newsom comments, she stated at
the DRC that the compatibility issue has already been decided and repeated that in her appeal
letter. She has already pre-judged the Project; it is incontrovertible.
In Cohan v. City of Thousand Oaks (1994) 30 Cal. App. 4th 547, the issues involved a
City Council appeal from a Planning Commission decision. In Cohan, the developer had been
trying to get approval for a mixed use (condos and retail) project for 15 years. The appellate
court noted a number of procedural violations, including waiving the mandatory 72 hour notice
and putting the appeal on the agenda as an “urgency matter.”
I would like you to read Cohan in light of the fact that the two appellant-councilmembers
should be the ones who present the appeal. The appellants – not the applicant – must present
their reasons why the decision should be overturned. The burden is on appellants, not the
applicant, to show the appeal should be granted, and the Commission decision over-turned. The
Atascadero appeal ordinance requires stated reasons for the appeal. The same requirement
existed in the Cohan case. Because Newsom and Funk (not the Council as a whole) are the
appellants, they should and must present the appeal and make the presentation and rebuttal.
Neither woman can make the presentation against the Project, and then assume the dais and vote
against the Project. Recusal is mandatory. If another person in the community had appealed the
Commission’s decision, that is the way it would be heard.
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Brian Pierik
June 1, 2021
Page Six
"We presume that the City's ordinance requiring that the notice of appeal contain a
statement of grounds was enacted for a purpose. The notice gives direction to both
the adjudicatory body that has to decide the issues and those who may have to
respond to the challenges to the ruling appealed .... The Cohans had submitted,
and the planning commission approved, at least six separate applications, asking
for such varied approvals as a subdivision lot map, development allotments, and
two oak tree permits. As applicants, they had a right to know what they
needed to prove to satisfy their burden of proof at the hearing on the
appeal."
Funk's appeal letter states that she had trouble visualizing the project; she observed the PC
members were "confused." Newsom claims the Council has already determined that the
proposed land use was inconsistent with the surrounding neighborhood. On this last point, we
must remind you that the Council had the opportunity to strip self storage from the "P" zoning,
and refused to do so.
Based on the Cohan language, it would appear the applicant does not have any advance
notice of what is wrong with the project, other than the need to provide a better visual, as stated
in Funk's second paragraph; again, that visual is already in the record.
The Atascadero ordinance states that an appellant must pay fees; the fees are waived only
if the City Council is the appellant. The Council is not the appellant, Funk and Newsom are,
acting alone. But neither woman paid fees. The cumulative effect of multiple procedural errors
were important in Cohan, and important as well in the other cases cited. The Cohan Court stated:
"We agree that a trier of fact does not have to be completely indifferent to the
general subject matter of the claim presented to be impartial. ... Nonetheless, a fair
trial in a fair tribunal is a basic requirement of due process .... A biased
decisionmaker is constitutionally unacceptable. The right to a fair procedure
includes the right to impartial adjudicators."
Again, both Susan Funk and Heather Newsom must recuse themselves.
As for the format of the appeal hearing: There is no format stated in City ordinances. It
appears obvious that the applicant should get the same time to present the opposition to the
appeal as Funk and Newsom have to present their appeal. If the two appellants have City staff
present their appeal, then the applicant should have the same amount of time as staff to present
the opposition. Last time, the appellant was given only three minutes; this is hardly fair.
Please call me to discuss this matter before the hearing is held on the appeal.
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Sweet Success: aSweet Success: a
Presentation on SugarPresentation on Sugar
FFeb. 14 (FRI) @ 11:00 AMeb. 14 (FRI) @ 11:00 AM
LeLearn the differarn the difference betence between naturween natural and pral and process suocess suggars,ars,
discodiscovver hidden suer hidden suggars in yars in your food, and the deour food, and the deal withal with
artificial sweetartificial sweeteners.eners.And morAnd more!e!
All ages welcome!
Atascadero Library
6555 Capistrano Ave.
Atascadero, California 93422 | 805-461-6161
slolibrary.org/
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FFebruary 15th (SAebruary 15th (SATT.) @ 11AM.) @ 11AM
Beekeeper, Erin Holder, will discuss the
basics of keeping bees.
Bee Keeping 101Bee Keeping 101
Atascadero Library
6555 Capistrano Ave.
Atascadero, California 93422 | 805-461-6161
slolibrary.org/
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Turtle & Tortoise Rescue
Saturday, February 22, 2:00
Learn about the care and conservation of turtles
from the Turtle & Tortoise Rescue of Arroyo
Grande. They will bring turtle visitors!
All ages.
Atascadero Library
6555 Capistrano Ave.
Atascadero, California 93422 | 805-461-6161
slolibrary.org/
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Meetings on every 3rd Friday of the month at 3:30pm
at Atascadero Library
Interested in joining?
Email <carthur@slolibrary.org>OR ask the Circulation Desk for the sign up sheet!
TEENTEEN
ADVISORY BOARDADVISORY BOARD
Want to have a say?Want to
volunteer for the library?
Join us as we discuss teen
programs, space, and collection.
Atascadero Library
6555 Capistrano Ave.
Atascadero, California 93422 | 805-461-6161
slolibrary.org/
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E-device Training
10:00 - 11:00 FRIDAYS
For help using your tablet or
smartphone to download
library eBooks.
Call 805-461-6161/Donna
to sign up or drop in.
Please come prepared with
your passwords and bring
your device.E-device TrainingAtascadero Library
6555 Capistrano Ave.
Atascadero, California 93422 | 805-461-6161
slolibrary.org/
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