City Attorney Out of Control
Guest Article by David Pahnos
Pahnos & Stephens are a married gay couple who have lived in Laguna Beach for over 30 years. They live in an old cottage, situated on a water course, on a steep slope, in a high-risk landslide/mudslide area of South Laguna. The previous owners of the property and neighbors have stabilized the soil using trees and shrubs since the 1920s. Most of the trees are now well over 80 years old. They and their neighbors have had repeated mudslides, sink holes, and water spouts. Water spouts even occur on the city street.
New upslope neighbors (Mr. and Mrs. Phelps) demanded, from the day they moved in, (2004) that Pahnos & Stephens trim trees to enhance their ocean view, Pahnos & Stephens did so multiple times to accommodate them, until their demands threatened the health of the trees and thus the soil stability. Since 2004 Pahnos & Stephens have spent close to $30,000 on tree trimming.
The Administrative Process
- The Phelpses filed a “hedge height claim,” in 2010 demanding a panoramic ocean view, although Pahnos & Stephens had no hedges in the Phelpses view.
- A city hearing officer ordered Pahnos & Stephens to perform a little more modest trimming. Pahnos & Stephens complied. Their property was inspected and found to be in compliance.
- The Phelpses appealed the decision to the Design Review Board.
- Design Review Boards have no jurisdiction, under state law, to hear ordinance enforcement cases. Pahnos & Stephens pointed this out to the city and pointed out that they did not have any hedges blocking the Phelpses view.
- While the claim was in process, Council amended the Hedge Height Ordinance to define all trees as hedges, since the city’s tree ordinance had no enforcement provisions. They also removed the Design Review Board from the process.
- Also, while the “claim” was in process, the Department of Community Development, as policy, declared that claimants do not have to address safety issues under the ordinance, and that the city would not take safety issues into account. Pahnos & Stephens asserted that their safety and that of their downslope neighbors was paramount and presented the Department with a soils safety engineering report done for their property by a nationally known expert. The Department said that, under its new policy, the report was irrelevant. Thus, the city amended the law and policy, tailoring them to the Phelpses claim against Pahnos & Stephens, while the claim was in process.
- The DRB held a hearing on the claim one week after the changes in the ordinance took effect, without acknowledging they had been removed from the process, but retroactively applying the new definition of “hedge” and new policy on safety to Pahnos & Stephens property, ordering the topping and removal of trees. [Topping is illegal under state law: Ca Gov Code Section 53067(a)(4)] None of the Pahnos/Stephens landslide/mudslide exhibits/photos or engineer report were deemed admissible under the new policy.
- At the DRB hearing (video recorded) the Phelpses presented a landscaping plan for the Pahnos & Stephens property. The DRB barred Pahnos & Stephens from speaking at the hearing, reasoning that the Phelpses were permit applicants, even though it was not their property. (The Phelpses were applying for a permit to landscape property that they did not own, to their specifications, and making Pahnos & Stephens pay for it.)
- Pahnos & Stephens complained to the City Manager that the DRB had acted improperly in several ways. The City Manager scheduled a de novo appeal to the City Council. He then issued a staff recommendation that the Council uphold the DRB decision, which obviated the hearing as de novo. The staff report made no mention of the legality or morality of the new policy and definition, or the extra-jurisdictional, post-removal reach of the DRB.
- The City Council held an appeal hearing, (video recorded) giving Pahnos five minutes to speak and Mr. and Mrs. Phelps each five minutes to speak. Council refused to address the safety issue, the topping issue, or that the Phelpses were not asking for view restoration, but view creation, and voted 3 to 2 to uphold the DRB decision.
- Pahnos & Stephens subsequently received a “Final Determination” letter from the Zoning Administrator, detailing the original hearing officers decision. They were visited twice by ordinance enforcement officers who declared the property to be in compliance with the ordinance both times.
- A month later, Pahnos & Stephens received a second “Final Determination” letter that stated they must comply with the DRB decision.
- An ordinance enforcement officer then issued citations
- Pahnos & Stephens appealed to a state certified hearing officer who dismissed the citations, ruling that the DRB had acted improperly and had no jurisdiction to hear an ordinance enforcement case.
- Laguna Beach Municipal Code 1.15.110 (a) states that “The decision of the hearing officer shall be final.” This is a state mandated section of the code for General Law cities, using state certified hearing officers, so that cities cannot harass defendants with repeated citations.
- The city then filed criminal charges against Pahnos & Stephens for disobeying the City Council, which upheld the DRB decision that had been ruled to be illegal, even though the case had received a final ruling. The criminal prosecution was based on the citations that had already been ruled to be invalid. The city ignored its own municipal code, asked the Court for $1,000 per day fines for Pahnos & Stephens each, retroactive to the city council hearing, and six months in jail for both.
- A Superior Court Judge dismissed the city’s case, ruling that the citations were “totally invalid.” The judge also stated that not all trees are hedges and that she could give many more reasons for dismissal, but invalid citations were sufficient.
- Within two weeks the city filed the same charges again, based on the same DRB/Council ruling and the same invalid citations, now having been invalidated by the state hearing officer and Superior Court. The City began judge shopping, an unethical practice not condoned by the Court.
- The charges languished for four years, while complaints against the city were being heard in civil court, becoming the oldest case on the criminal court’s docket. The city asked the Court again for $1,000 per day fines for Pahnos & Stephens each, retroactive to the city council hearing and six months in jail for both. (Millions of dollars by this time)
- During the civil procedures, the city attorney maintained that there is no evidence that Pahnos & Stephens live in a landslide/mudslide area, even though they and their neighbors have had multiple landslide/mudslides. The city withheld voluminous evidence of landslide risk in its possession during the discovery process, and presented a city street map, saying that the map was all it possessed. A city official also admitted in a sworn deposition to destroying internal emails during litigation before they could be subpoenaed, and the Director of Community Development, in a email to the Phelpses and in a sworn deposition, said that the city filed criminal charges in order to prevent Pahnos & Stephens from using the administrative process again to invalidate new citations.
- The civil procedures ended in a muddled ruling without a jury trial, which Stephens and Pahnos had asked for: nevertheless, the Court ruled that Pahnos/Stephens could “keep what they had” when the Hedge Height Ordinance was passed, which is considerably more than they currently have.
City Attorney Continues With Criminal Charges
- The city attorney, ignoring the civil decision, continued with the criminal charges. By this time, Pahnos & Stephens had spent hundreds of thousands of dollars fighting for their basic rights and safety against the improper and unethical actions by the city and the city attorney. The Court suggested a civil agreement to end it. Deputy City Attorney Noam Duzman, told Pahnos and his lawyer that no matter how many times the charges were dismissed that the city would keep filing them and make Pahnos & Stephens spend money to defend themselves. Deputy City Attorney, Ajit Thind had previously told Pahnos & Stephens attorney that they, “must learn to obey.” Among the charges, Pahnos & and Stephens were prosecuted for refusing to trim trees that were on another neighbor’s property, which they did not own, even though Pahnos/Stephens told the enforcement officer that they did not own the trees – the DRB had ordered it, and ownership fell on deaf ears.
- Pahnos & Stephens had never had a dispute with neighbors or the city before in their lives. Neither of them have ever before been charged with a misdemeanor or even an infraction; yet, on the face of it, the city was maliciously pursuing these gay senior citizens. Several neighbors had written to the city, attesting to the fact that Pahnos & Stephens were good neighbors, that there is, indeed, a mudslide problem on the north side of 10th Avenue, and that the Phelpses had lied about the trees and vegetation. These neighbors also spoke out at city hearings, and were prepared to testify in court. The neighbors were ignored.
Laguna Beach is a Landslide/Liquefaction Area
During the city’s administrative process, through the policy decision, city officials refused to acknowledged, admit, or discuss evidence of a risk to public safety occurring as a result of its actions. This is at best malfeasance, since the health, safety, and welfare of residents is the highest priority of every city under California and Federal law. The California Geological Survey has designated the entire city as a landslide/liquefaction area. The city has gotten money from FEMA. In 2005, over 20 homes fell down a hill in Bluebird Canyon. Residents have lost their lives in mudslides in Laguna Canyon. The city’s only response throughout is that it does not believe that trees hold soil. Science denial is not a defense for violating state and federal environmental laws or the withholding of official documents. The Safety Element of the City’s General Plan, (page 69) a mandatory section, requires the Department of Community Development to perform a detailed geological hazard survey of the entire city by 1998 and requires the City Council to monitor the progress. It was never done.
The Civil Agreement
Pahnos & Stephens decided to enter into a civil agreement with the city believing it would stop the city attorney from filing the same dismissed charges over and over again, and the judge had assured them of that. Deputy City Attorney, Noam Duzman, drew up an elaborate agreement in collaboration with the Phelpses, using their arborist. The Phelpses arborist, who the city paid for, informed Duzman, in front of two witnesses, that it was illegal in California to top healthy trees, even though that’s what the Phelpses want. The court had ruled twice that the Phelpses could not be a party to either the criminal or civil proceedings and that they had no legal claim against Pahnos & Stephens because they had suffered no harm. Duzman, however, asserted that the civil agreement was for the purpose of satisfying the Phelpses, who he repeatedly referred to in multiple meetings as his “clients.” He also asserted multiple times, in writing, that he would file criminal charges again, until the Phelpses interpretation of the agreement was satisfied. Conversely, Duzman never asserted that there was a public interest served by this agreement, or by prosecuting Pahnos & Stephens, but he asserted repeatedly, in front of multiple witnesses, that he was serving the Phelpses. Unfortunately, he was using the prosecution powers of the city to do it, and the taxpayers were paying his fees for the Phelpses sole benefit. The agreement, in the end, did not resemble any Laguna Beach ordinance.
Fair and Equal Treatment
The ethics section of the Laguna Beach Municipal Code:
“Section 2.14.040 Fair and equal treatment.
Preferential consideration of the request or petition of any individual citizen or group of citizens shall not be given. No person shall receive special advantages beyond that which are available to any other citizen. (Ord. 738 § 1, 1973).”
Nevertheless, Pahnos & Stephens wanted to end the dispute, and signed a civil agreement.
- The Phelpses immediately began to interpret the civil agreement in ways to get more trimming. Their interpretation, via Duzman, became the official city interpretation – whatever the Phelpses wanted. Even two years after the agreement was signed, Duzman continues to meet with the Phelpses.
- Under the agreement, Pahnos & Stephens are required to trim epicormic branches on their stone pine tree (new branches below the crown that sprout from the trunk.) The Phelpses complained that there was epicormic growth. Pahnos and his attorney met with Duzman and Tony Farr, enforcement officer, who said that he had seen it. Pahnos explained to them that stone pine trees do not have epicormic growth, as most species of pine trees do not. Pahnos & his attorney suggested that Duzman spend 10 minutes on the Internet to read about pine trees.
- Several months later, Duzman demanded that an arborist climb the tree and measure all the branches to certify that there were none under five inches in diameter (epicormic branches). Pahnos & Stephens paid a certified arborist, one used by the city for its trees, to spend two days in the tree measuring branches, and to write a report to the city. The report stated that he measured all the branches, none were smaller than five inches in diameter, and that stone pine trees don’t have epicormic branches. It cost Pahnos & Stephens $3,000.00 for this useless exercise.
- Duzman continued to send demanding letters about various trees and shrubs, continued to demand that trees be topped so severely as to kill them, (against state law) and continued to demand that trees be trimmed to meet the Phelpses interpretations down to the inch. Pahnos & Stephens stopped responding to Duzman’s demands and threats of prosecution.
- Duzman notified Pahnos & Stephens that they are to be arraigned again on August 18, 2017 in criminal court for violating the municipal code, without any mention of which ordinance and without the issuance of a citation, knowing full well that previous citations were invalid.
The city and its attorney have been improperly, unethically, and illegally harassing Pahnos & Stephens for a full seven years. Members of City Council must put a stop to this shameful travesty and investigate how this could have happened; otherwise, it would appear that Council members have colluded in this harassment of senior citizens who happen to be gay and do not receive the same political favoritism in the city as their next door neighbor.
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