HomeMy WebLinkAbout24 - Report Regarding Council Member Nichols Testimony at the 5-22-03 Planning Commission MeetingCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 24
June 10, 2003
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: City Attorneys Office
Robert Burnham; City Attorney; rbumham(ci_)city.newport- beach.ca.us
SUBJECT: Report from City Attorney on testimony given by Council Member
Nichols at the Planning Commission meeting of May 22, 2003
ISSUE:
Did Council Member Nichols, during his testimony before the Planning Commission on
May 22, 2003, allege or imply that one or more members of the Planning Commission
had accepted a bribe with respect to the Ciraulo variance application?
Assuming that the City Council concludes that Council Member Nichols did allege or
imply that one or more members of the Planning Commission accepted a bribe and did
so without any factual basis, what action can the City Council take in response to these
comments and what, if any, steps can the City Council take to prevent similar comments
from being made in the future?
RECOMMENDATION
If desired, direct staff to (a) prepare and agendize for City Council consideration a
resolution disapproving comments made by Council Member Nichols during testimony
at the Planning Commission on May 22, 2003; (b) prepare and agendize for City
Council consideration a code of conduct as well as enforcement mechanisms and
procedures; and/or (b) evaluate methods to require City officials and/or employees to
disclose information regarding possible violations of law to appropriate
persons /departments.
BACKGROUND:
On May 22, 2003, the Planning Commission considered a variance application submitted
by Joseph and Carole Ciraulo, the owners of the property located at 202 South Bayfront.
The staff report recommended denial of the variance on the basis that they could not
identify facts sufficient to support the findings for approval required by our Zoning Code.
To approve a variance, the Planning Commission (or City Council on review or appeal)
must find facts sufficient to make specific findings. In summary, the findings required to
approve a variance are: (1) there are "exceptional or extraordinary circumstances"
applicable to the land, building or use; (2) the variance is necessary to preserve
substantial property rights; (3) the variance "will not constitute a special privilege
inconsistent with the limitations on other properties... in the same zoning district; and (4)
approval of the variance will not adversely impact the neighborhood. The concept of a
zoning variance recognizes that "within a zone, there will be individual lots or tracts that,
because of peculiar shape, unusual topography, or some similar peculiarity, cannot be put
to productive use if all the detailed requirements for that zone are to be strictly applied.
(Hamilton v. Board of Supervisors 269 CA2d 64).
According to the transcript of the tape recording made of the proceedings, the public
hearing on the Ciraulo variance application began with the testimony of the applicant
(Joseph Ciraulo), a presentation by the applicant's attorney and the testimony of a
Michael Smith who is a friend and neighbor of the applicants. The presentation by the
applicant's attorney included an extensive discussion /interaction with Commissioners
Tucker and Kiser relative to the facts and findings necessary to approve a variance and
the extent of any Planning Commission authority to grant a variance based solely on
"equity." After Mr. Smith's testimony, Commissioner Tucker asked the Assistant City
Attorney if the applicant acquired a right to build a structure at variance with the Zoning
Code because the property once was improved with a "three story structure" that was
removed. The Assistant City Attorney said "no" and Commissioner Tucker then remarked
that he thought the Ciraulo home was "a beautiful residence and a great improvement"
but questioned whether the Planning Commission had the authority to approve the
variance. As Council Member Nichols stepped to the podium, Commissioner Tucker said
"here's a man who may have more authority (than the Planning Commission) to do
something about it." In response to Commissioner Tucker's comment, Council Member
Nichols said: "I just would like to review a fact that you apparently have authority."
Council Member Nichols' testimony began with comments about a property on Little
Balboa Island (he was apparently referring to Eckert variance that was approved by the
City Council on December 17, 2002 but at no time did Council Member Nichols or
Commissioner Tucker refer to the Eckert property or variance by name). In commenting
on the Eckert variance, Council Member Nichols testified that the Eckerts were granted
"an FAR 1.15...a three story with a upper point" that was "over and above any allowable
variances" all of which constituted "special things done by the Planning Commission." Mr.
Nichols also testified that the Ciraulos built a home that was "closer to zoning" than the
previous structure and it seemed to him that approval of the variance was a "no- brainer."
Council Member Nichols and Commissioner Tucker then discussed, and disagreed about,
whether there was any similarity between the Ciraulo property and the Eckert property.
During this exchange, Commissioner Tucker said that the Eckert Variance did not involve
a request to exceed the height limit and that strict application of the Zoning Code would
have resulted in "five or 600 square feet" of buildable area. Council Member Nichols
argued that the Eckert variance involved an elevator that "was fully enclosed on the third
floor' and that "the third floor elevator exceeded the height variance." The Eckert
residence does have a three -story component and an elevator but does not exceed the
height limit and the buildable area of the parcel was 550 square feet due to lot size and
orientation. Council Member Nichols, after referring to the unique orientation of the
Eckert property, said that the owner (Eckert) came to the Planning Commission "politically
attuned" and "got all the FAR's ... the third story structure ... (and) a deck up there." As
Commissioner Tucker again tried to explain that the Ciraulo and Eckert properties
involved different facts, Council Member Nichols' final words were:
"Now, I understand that one and the other are not the same, but it sure doesn't
look good. It looks like you're taking money for this one."
After this comment by Council Member Nichols, Chairperson Kiser said the remarks were
"completely uncalled for." Commission Tucker then said "that was beyond uncalled for"
but tried to explain to Council Member Nichols the requirements of the Zoning Code and
remarked that "nobody hired us to be the policy maker, so we attempt to enforce the
code ... we do it in good faith, and none of us are for sale." At the conclusion of the
hearing, the Planning Commission voted unanimously to deny the Ciraulo application.
After the Planning Commission hearing, Council Member Nichols wrote a letter (wrongly
dated March 23, 2003) that contained the following text:
"I am afraid my frustrations showed, in the Planning Commission Meeting of May
22, 2003, to the point of my stating that, The inequity of our zoning results look to
the casual observer, like someone is getting paid off? I am sorry that my remarks
may have implied improper behavior; I truly do not believe any zoning
commissioner is being bribed. I truly respect individually each of the zoning
commissioners and believe that each of them is trying to do a good and honest job.
My remark was meant to ask: Can the planning Commission, reach equity in their
decisions: Do the findings the Planning Commission must make to give a variance
prevent equity ?"
On May 28, 2003, the Daily Pilot published a "Community Commentary" authored by
Council Member Nichols that contained text similar to the "March 23, 2003" letter in the
third paragraph. The first two paragraphs expressed Council Member Nichols' frustration
by what he "perceive(s) as a lack of equal treatment of residents by the city government"
and a summary of the decision to deny the Ciraulo variance application.
DISCUSSION
(A) FACTUAL ANALYSIS Based on my review of the transcript of the Ciraulo
variance hearing, Council Member Nichols' remarks clearly implied that Commissioner
Tucker's apparent opposition to this application was based on the receipt of money since,
in the mind of Mr. Nichols, approval of the application was a "no- brainer." The comment
regarding "taking money" came after statements suggesting that those who are "politically
attuned" receive more favorable treatment than those who are not. Mr. Nichols also said
that the Planning Commission had granted entitlement (referring to the Eckert Variance)
"over and above any allowable variances" that were "all special things done by the
Planning Commission." In the "March 23" letter and the May 28th "Community
Commentary", Council. Member Nichols apologized for "remarks that may have implied
improper behavior" and confirms he "truly" doesn't "believe any Planning Commissioner is
being bribed" but both communications contain references to "examples" of what he
perceives as "lack of equal treatment."
(B) LEGAL ANALYSIS As you might expect, we have found no statutory or
decision law that provides clear direction on the options available to the City Council in
this matter. However, the research we have conducted provides some guidance. As a
general rule, each member of the City Council has a First Amendment right to testify or
speak on any matter. The California Supreme Court has acknowledged that elected
officials and candidates for elective office have "not only a right but an obligation to
discuss issues of vital concern with his constituents and to state his views on matters of
public importance." (City of Fairfield v. Sup. Ct, 14 Cal.3d 768). Public employees have a
constitutionally protected right to speak out on matters of interest to the public if, on
balance, the speech relates to matters of public interests and those interests outweigh the
employer's interest in efficient administration.
However, we have found no case that suggests a public employee or public official has a
right to testify falsely or in reckless disregard of the truth. Council Member Nichols
admittedly had no factual basis to support his comment regarding "taking money for this
one." He also testified, without factual support, that Planning Commissioners gave
special treatment to another person who was "politically attuned" (referring to the Eckert
Variance). Finally, Council Member Nichols testimony asked (some might say
pressured) the Planning Commission to assume "equitable" powers that exceed the
authority granted to them by the Zoning Code.
(C) IMPACT OF COMMENTS The comments made by Mr. Nichols prompted a
negative response from Planning Commissioners and media coverage in the form of
articles and editorials. I am not in a position to determine if, or to what extent, Council
Member Nichols' allegations adversely impacted the reputation of Planning
Commissioners or the image of the City. However, his testimony and /or subsequent
media coverage spawned two letters to the editor — one suggesting impropriety in the
recent Planning Commission decision on the Mormon Church steeple and the other
asking him to continue to turn "over the rocks" and keep "things in the sunlight for all to
see." These letters suggest that some citizens did not read, or chose to ignore, Council
Member Nichols' apology and admission that truly didn't believe that Planning
Commissioners took money to vote against the Ciraulo Variance application.
(D) OPTIONS In my opinion, the only immediate option the City Council has
to address Council Member Nichols' testimony is to place a resolution of censure (or
other form of disapproval) on a future agenda. Council Member Nichols would, at that
time, have an opportunity to present evidence or information in opposition to the proposed
resolution. The City Council does not have the legal authority to prevent members from
attending meetings of various City boards or commissions, from testifying at those
meetings or to control the content of the testimony.
The City Council does have the authority to adopt a code of conduct for Council members
that is consistent with constitutional and statutory law but enforcement would be limited to
some form of censure (an option the Council already has) and possibly removal of the
member from committee appointments (an option available to the Mayor since all
members serve on committees at the pleasure of the Mayor). The City Council may wish
to direct staff to prepare a policy that includes a code of conduct as well as enforcement
mechanisms and procedures. The City Council may also wish to direct staff to evaluate
ways that the City can require appropriate disclosure of information regarding wrongdoing
to eliminate the potential for, or impact of, public comments suggesting a violation of law.
Environmental Review: None Required
SIGNATURE
Burnham, City Attorney