CITY OF LA HABRA HEIGHTS
MINUTES OF A SPECIAL MEETING OF THE LA HABRA HEIGHTS
CITY COUNCIL
OPENING CEREMONIES
1. CALL MEETING TO ORDER
Mayor Stan Carroll called the Special Meeting of the La Habra Heights City Council to order at 7:04 p. m. at the Community Center, 1245 N. Hacienda Road, La Habra Heights, California.
2. ROLL CALL
Those present: Mayor Stan Carroll, Mayor Pro Tem Ed Borrowe, Councilmember Bruce Douglas, Councilmember Fred Klein, and Councilmember Tela Millsap. Also present City Manager, John Hendrickson; Fire Chief, John Nielsen; Director of Planning Sheryl Brady; Planning Technician Barbara Doppieri; City Attorney Michael Colantuono and General Plan Consultant Marc Blodgett.
3. FLAG SALUTE
Freddie Vernon led the flag salute.
4. PRESENTATION
Judge Cowell presented Carol Engelhardt a County commendation.
PUBLIC COMMENTS ON MATTERS ON THE AGENDA AND NOT ON AGENDA
Bob Karman, Encanada – asked that the City Council consider adding the survey as an appendix to the General Plan.
John Smith, Shawnan Lane – spoke regarding property rights; the GPAC appointment was not balanced, it had a one sided agenda; people like him feel shut out; did not have the opportunity to express his opinions; this General Plan is tainted; District Attorneys letter says the General Plan violates the Brown Act; the wrong doing need to be fixed or you will have wasted all of the time and efforts that have gone into it.
John Beau, Casalero – felt the earliest City Councils were looking out for his interests; doesnÕt have that same feeling today; feels the playing field is tilted with Bruce Douglas; spoke regarding the General Plan process; suggested reforming a new committee of 50-60 people to go back and rework the General Plan.
Eloise Phillips, Hacienda Rd – spoke regarding the General Plan process.
Marguerite Smith, Shawnan Lane – spoke regarding the survey; it was sent out at a touchy time for the City; many didnÕt respond, many didnÕt receive it; no one knew that survey would be used as a guideline for the General Plan; suggested redoing the survey and again send to everyone, let them know it will be used as a guide so you wonÕt have just 29% of the City speaking, you can have a full representation of the City speaking.
Georgia Drakos, Avocado Crest – spoke regarding the 25th Anniversary; Parade and Picnic on September 20, 2003; Dinner Dance on November 7, 2003.
Linda Smith, Hacienda Rd – spoke regarding a neighbor blocking Gladys Smith view; spoke regarding the community.
Pam McVickers, Hillside Court – spoke regarding the survey; stated it was not a random sampling.
SCHEDULED MATTERS
5. APPROVAL OF WARRANTS – JULY 2003
Councilmember Klein moved to approve the warrants; seconded by Mayor Pro Tem Borrowe. Ayes: 5 Noes: 0.
6. TREASURERÕS REPORT – JUNE 30, 2003
Councilmember Klein moved to receive and file the TreasurerÕs Report; seconded by Councilmember Douglas. Ayes: 5 Noes: 0.
7. APPROVAL OF MINUTES:
Minutes of Special City Council Meetings of July 17, 2003, July 21, 2003 and July 24, 2003.
Councilmember Klein moved to approve the minutes July 17, 2003, July 21, 2003 and July 24, 2003; seconded by Mayor Pro Tem Borrowe. Ayes: 5 Noes: 0.
8. BROWN ACT DISCUSSION
Mayor Carroll stated as a former Deputy District Attorney, an officer of the court, and a professor of government and one who has always advocated adherence to the rule of law, he was shocked and dumbfounded to have received this letter from the Deputy DA; invited the Daily New, La Habra Journal and Katie Martin to this meeting.
Mr. Colantuono summarized the issued raised by Deputy District Attorney Susan Chasworth; he stated there are three issues to be thought about here; (1) what ought the land use policies of this City be; (2) what is a fair way for democracy to allow elected representatives to hear from their constituents before they make policy; (3) what does the law require the minimum of those procedures be; the Brown Act is the governments in the sunshine law; it is a law that has been with use since the 1950s; has been amended and re-amended and is not always simple and transparent; there are things in it that lawyers argue about; this is a sad and regrettable event; he hopes as a community that we can find some value in re-examining our principals on how we conduct a democratic society; the first issue the DA raises is that she was provided with a bunch of E-Mails to and from the Planning Commission, City Council and City Staff discussing issues with respect to the General Plan in advance of those matters appearing before the Planning Commission in a public meeting; if 3 members of the PC, CC use e-mail for the purpose of structuring a vote you are violating the law; Ms. Chasworth acknowledges that when one Planning Commission member sends an e-mail to all Planning Commission members saying ÒI found out this information about the County SEA I think it is really important that we ought to talk about it on TuesdayÓ, that nothing has occurred; one way provisions of information striker is in troubling; She and Mr. Colantuono agreed that if you got responses from two other Commissioners ÒI agree too, the three of us should form a majority to go do thatÓ that clearly violates the Brown Act; much harder is the real cases that lie between those two extreme cases; the advice he has routinely give to Planning Commissions and City Councils is those discussions are fine up to the point that there is a third voice from among the Commissioners or third voice from among the City Council; he invited Ms. Chasworth to a City AttorneyÕs educational conference to have a discussion about how the law is enforced and what it means; she did not join us; there were other district attorneys from other counties who did attend and they understood the law in the same way; Ms. Chasworth believes the law is that if the proposal is more than simple information, if it is persuasive and marshals arguments that a mer one way communication from one person to five persons is a illegal use by the majority of the medium to develop a collective concurrence; so the mer fact that five of you got it, if one of you used persuasive argument in your view the institution violated the law; felt that was in impractical standard and did not feel that was a correct interpretation of the law and he will be discussing this further with her; it is true we have had e-mail discussions that she feels are inappropriate; he thinks it is true that there has been an occasion where we have had that third voice; when that happens and he is in the chat, he immediately says now that we have three voices lets get this on the agenda; there will be mistakes and there is a remedy for those mistakes; did we create this illegal serial meeting by using e-mail by the way that we did; he stated the answer to that questions is plainly no; felt Ms. Chasworth simply got it wrong; hopes to have further discussion with her on this subject; if a writing goes to a majority of the Commission or Council when it is disclosed to the majority it becomes a disclosable public record; there is a technical reasons here that Ms. Chasworth just got this one wrong; the second issue she raises with us is the questionnaire; and the questionnaire, if you strip all the law away from this and look at it from a common sense way, you have a General Plan with literally hundreds of policies in it, and you have all speakers from all points of views saying most of those policies arenÕt worth discussing; they are self evident truths they are obvious or unimportant or consensus based; there are more than a few policies in there that had been hotly debated and will continue to be hotly debated; so your staff prepared a questionnaire asking the commissioners to say which ones do you want to discuss and which ones do you not want to discuss, so we can list those on the agenda and not get bogged down with the manuisha; GPAC spent 18 months and probably at least 18 meetings preparing the draft and the Commission spent a great deal more than that trying to focus on the policies the bore discussion; it was innocent enough to prepare the questionnaire and people can understand in a common sense way why you would do it; it was a mistake and had he known about it when it was prepared he would have told you it was a mistake; the reason it was a mistake is you have 5 people expressing views on public business and as soon as they exchange those questionnaires, which he understands they never did, had they exchanged those questionnaires then you would have had the Commissioners speaking to each other outside this room, which is what we are trying to avoid; the questionnaire wasnÕt illegal it just is not a very good idea and it creates information that will lead to the opportunity to make tentative decisions outside the public room; the questionnaire became a controversy, we received a request for a cure, and we made the questionnaire public and fixed the controversy; her letter criticizes the City without ever acknowledging that we had already made the cure; the third issue the DAs office raises is simply a mistake; the District Attorney says your General Plan Advisory Committee was a Brown Act body and she implies that the City did not treat it as one and that the City violated the law; she is wrong; we always treated the GPAC body as a Brown Act body; it is clearly stated in the General Plan Advisory Committee orientation meeting and the tape is available at City Hall for inspection; there was a controversy about the GPAC and the controversy was that they created temporary sub committees; these committees prepared draft language for the Committee as a whole to look at; there is a provision of the Brown Act that says when you create a committee that is made up of only members of the body that is less than half of them, that is temporary in advisory, the Brown Act does not apply to that group; it is fair to debate whether those temporary bodies were a good idea or not, because that is part of your community discussion; there is no doubt that it is legal; and Susan Chasworth admits that it is legal; she is accusing you of something you simply did not do and the record plainly demonstrates you did not do; the last item is the public comments procedures and the minutes; apologized to Barbara Doppieri who prepared the minutes in good faith and never expected lawyers to be pouring though her minutes with an magnifying glass; each set of minutes in questioned end with a summary of the meetings; because that summary wasnÕt a separate page but immediately before the adjournment, if you read those minutes to get the impression that all of those policies were re-discussed; that was an honest mistake and it has been given overwhelming significance and it pains him to see a civil servant who does not live in this community and quiet frankly has never wanted to participate in this fight over your land use policies attacked in the way Barbara has been attacked as though this were part of some malicious conspiracy; we should correct the minutes, formally amend them to separate that out as an appendix to make it clear; but to suggest that we were somehow hiding something by adopting those minutes is ludicrous; there was nothing to hide; you video tape your meetings, you broadcast your meetings and you save the videotapes; at a certain level your minutes become obsolete; there is a technical issue; there is a provision of the Brown Act that says every agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative bodyÕs consideration of the item; specifically it says you have to take public comment before or during your consideration; Ms. Chasworthy believes in meeting 24 of 55 the Planning Commission went through some land use policies then took a break and allowed public comment and then reacted to the public comment that that was not before or during deliberation; Ms. Chasworthy believes that the first discussion was the only discussion that mattered and everything afterwards was for show; this community tends to revisit subjects now and again; we are almost 3 three years into this General Plan process and he hoped it would be done soon because there is important legal work that needs to be done; he believed there was important meaningful comment during those hearings; until March of this year the Planning Commission had not rendered any decisions; what do we make of all of this; technical issues and factual issues on Ms. Chasworthy part; first we need to recommit ourselves to the basic principles; leaders of this City will continue to avoid e-mail exchanges in which 3 or more Commissioners or Council members express their views; continue to make public copies of all writings that we know went to a majority of the Commission or Council or a matter of public business; we recommit to maintain our practice of promptly curing upon request any violation of the Brown Act that may credibly claimed; maintain the CityÕs practice forbidding the use of questionnaires; continue to treat advisory committees like GPAC, subject to the Brown Act unless the exception for less than a quorum advisory temporary committee applies; and maintain the Councils practice and regularize the Commissions practice of allowing some opportunity for public comment on, on agendized items; he also thought the City should make the following request of the District Attorney; asked them to withdraw their letter; ask them to provide the City the meaningful opportunity for input before they write any future such letter; they need to acknowledge that the two points of law they have been debating are fairly debatable and not act as if they are so patiently true in her interpretation; she should correct the factual errors in her letter; she should acknowledge that the City voluntarily cured the Brown Act problems with the questionnaire when we were asked too; she should tell us if she thinks there is something else we should be doing; she should work with us.
Mayor Carroll opened the public hearing.
Pam McVickers, Hillside Court – stated she feels personally wronged; feels property rights have been violated; asked the City Council to work towards property values.
Linda Smith, Hacienda Road – stated Mr. Colantuono was hired to defend the City; why would a district attorney who is held to the law write such a letter if there wasnÕt something that they were concerned about.
Jessica Windship, Cypress - felt this City is a magical land; spoke regarding the formation of the City; it is a volunteer City; asked everyone to stop and get back to where we used to be; we need to be neighbors helping neighbors.
Katie Martin, 557 Reposado – thanked Mr. Colantuono for starting to bend a little bit; previous cure was inadequate because the Council has not taken personal responsibility for their actions; you have placed yourself above the law believing that you have not done anything wrong; now the Planning Commission is at it again, deliberating on policy and instructing staff on how to write a policy without any public comment; this last offense occurred on July 22, 2003; the District Attorney spent 7 months on this investigation; evidence is substantial; the District Attorney let the City off easy by only giving you a strong warning; Mr. Colantuono does not have a clear grasps of the facts; Mr. Colantuono letter is full of holes and inadequacies; General Plan is tainted and will not hold up in court; wants a clean government; asked for Bruce Douglas to resign.
Norm Zezula, Canonita – asked the residents to take a step back and remember we all share a deep belief; Ms. Martin has made her accusations everywhere but in court; it takes more time to correct a lie than to tell the lie in the first place; named as a victim in DAs letter; stated his rights were never violated by the City; Katie Martin violated his rights.
Rick Martin, Reposado – stated Mr. Colantuono is engaged to explain away problems; compared him to Johnny Cochran; special interest group resided with the City Council and Planning Commission; spoke regarding threats, insults and intimidation; concerns have merit; disappointment outrage; corrupt process; if the General Plan is adopted it will immediately become the target of a lawsuit; it is tainted by the corrupt process undertaken by the City; he demanded the Council stop all General Plan process; start over and be fair.
Jill Kowalik, El Cajonita – spoke regarding the cost to the City for all of these charges; charges frivolous; stated the District Attorneys response should be sent to everyone in the Heights; spoke on the validity of the survey.
Clair Spothelfer, West Road – thanked Jessica for her comments; sad for this community; these are only allegations, hopes we can cure them; letter tarnished the CityÕs reputation.
Alan Boege, 1892 Cypress – stated the GPAC, Planning Commission and City Council are doing an excellent job; General Plan should go forward; felt what is going on right now is animus and hate; asked the City Council to get past this.
John Daniel, Le Flore – stated the CityÕs letter questions the District Attorneys integrity; suggested the City Council seek an independent counsel; General Plan needs to be held up to a high standard; Katie Martin is not to blame.
Joyce Jenson, Carrie Hills Lane – stated she has lost confidence in the City Council; wants the best for the City; asked for everyone to heal the riff.
Jean Good Lietzau, Virazon – stated she was the founding mayor of this City; on the Council 12 years; commended Jessica for her comments; these are serious issues; disappointed in the Council; broken hearted; Mr. Klein is the honest one, she depends on him; Mr. Carroll is the shining neutral candidate; Tela was a good mayor; disappointed in Mr. Douglas.
Eloise Phillips, Hacienda Road – spoke regarding volunteerism and the General Plan; asked the City to move forward.
Mayor Carroll seeing no one else come forward closed the public hearing.
Mr. Colantuono clarified the remedial provisions of the Brown Act; there are three remedies; an action taken by a body could be voided by a court for a Brown Act violation; to accomplish that someone has to allege a violation and then challenge your cure; we have had a demand for a cure and we have generated a cure, the time to challenge that cure has run; a judge can restrain future violations of the act if there is reason to believe they will reoccur; the criminal remedy only applies when an action is taken in an illegal closed session with a specific intent to deprive the public of information that they are entitled; not aware that anyone in California has ever been convicted under that standard; didnÕt think a judge would interfere in your ability to govern yourself.
Councilmember Klein stated he personally found the District AttorneyÕs letter offensive; the City was denied due process; state he has worked very hard to keep his reputation good; expects more of the District AttorneyÕs office; wants his name cleared; asked for a second letter be sent by the Mayor to the District Attorney expressing the CouncilÕs concern and what to expect of the District AttorneyÕs office; greatly disappointed in the District AttorneyÕs letter.
Councilmember Millsap asked if this was common that the District Attorney would render a decision of guilt without speaking to the accused.
Mr. Colantuono spoke regarding the ethical obligation of the District Attorney.
Mayor Pro Tem Borrowe asked what country are we living in when your guilty before your tried and proven guilty; look at the agendas and objectives of those complaining; stated he is interested in all of the community; if the community want ridgeline protection and they say it that is what he represents; the special interest groups are vicious and vial; here to serve the people; stated the MartinÕs should grow up; creating division in the City; told them to come forward and amend things.
Councilmember Douglas voiced his dismay; the General Plan is a public document; Martins want the General Plan thrown out because it is written by the other side; how could anyone say there has been a secret meeting; stated the City should hire whatever it takes to ensure Michael Colantuono knows what he is doing.
Councilmember Millsap asked when did the division start and why.
Mayor Carroll reopened the public hearing for more public comment.
John Beau, Casalero – stated he would draft a letter to the City Council with the details of why he is involved.
Joyce Jenson, Carrie Hills Lane – stated the trouble is disrespect; opinions are disrespected; disappointed with the City Council.
Stan Quade, Encanada – stated he is not a member of any group; leaders are heavy on attitude and short on common sense; spoke regarding his garage; paper tiger and runaway gazelle; asked the leaders to get off their high horse and ride with the citizens.
Rick Martin, Reposado – stated he volunteered for this community; his wife paid attention after the election; respect of community by leaders or things wouldnÕt be the way they are.
Nita Newbre, Canada Sombre - stated her husband study the new General Plan for a year before he passed away, he felt it was too one sided; recommended the City seek an independent counsel; poor taste for Mr. Douglas to call Ms. Martin vial; asked if it was a conflict of interest for Mr. Douglas to be on the GPAC Committee, the Planning Commission and the City Council.
Mr. Colantuono stated no, when legislating the due process is in the ballet box.
Ms. Newbre asked for everyone to keep the campaigns clean and dignified.
Pam McVickers, Hillside Court – stated she wanted to respond to Ms. Millsap and Mr. BorroweÕs statements; you need to be treating all of us with disrespect.
John Smith, Shawnan Lane – spoke regarding his project on El Travesia; he has been labeled a developer when he is not; the lot he bought on Casalero he wants to build a home for his daughter; loves this community.
Alan Boege, Cypress – stated there will always be two sides; asked everyone not to be mean.
Katie Martin, Reposado – stated she had complained to Ray Diaz and John Hendrickson about the way people were treated and nothing was done; this wasnÕt a political thing; she complained how people are treated.
Julia Higgs, El Cajonita – stated Katie Martin stands up here and acts like she hasnÕt done anything wrong; doesnÕt know how John Smith got away with some of the stuff he did on his property; the system broke down.
Marguerite Smith, Shawnan Lane - stated she takes exception to people accusing them of lying; Mr. Borrowe needs to have his facts accurate; this City needs to grow up.
Ann Eaton, Hacienda Road – stated she has worked hard to live up here and is concerned about the General Plan.
Mayor Carroll seeing no one else come forward closed the public hearing.
Mayor Carroll stated he shared the concern regarding hurt feelings; this action has damaged his reputation; this letter is disappointing; felt the City must go forward with the response.
Councilmember Douglas asked Mr. Colantuono if he was too close to give good legal advice.
Mr. Colantuono stated he does want to take responsibility for the legal advice the City has been given; apologized for the questionnaire; it is the clientÕs judgment to determine if they need additional legal advice; he stated if he couldnÕt be objective he wouldnÕt be there; the District AttorneyÕs analysis is a mistake; advised the City Council to send the letter, an open letter to your community should also be sent.
Councilmember Klein stated he supports the City Attorney on this issue.
Councilmember Douglas asked what would the District Attorney do when they get the letter.
Mr. Colantuono hopes the District Attorney would fix the factual errors in her letter.
Councilmember Klein moved to instruct the City Attorney to send the letter as written. Mayor Pro Tem Borrowe seconded the motion. Ayes 5-0.
Councilmember Klein moved to delegate the Mayor to write an official letter of disappointment and lack of investigation. Mayor Pro Tem Borrowe seconded the motion. Ayes 5-0. Councilmember Klein requested the letter be sent Friday, August 29, 2003.
Councilmember Klein suggested waiting until there is a response from the District Attorney to send a Community Letter.
Councilmember Millsap asked Katie Martin which meetings she viciously attacked her.
Response not audible.
Break taken at 10:10 to change the audio and videotapes. Meeting reconvened at 10:20 pm.
PUBLIC HEARINGS
9. GENERAL PLAN ENVIRONMENTAL IMPACT REPORT
Mr. Blodgett gave a report on the Draft Environmental Impact Report for the General Plan; the original DEIR was circulated in September 2002 and re-circulated in early 2003 based on the changes that had been made; he stated they are working on the final preparation of the EIR and this will be ongoing as long as the City Council continues their work on the General Plan; the EIR consists of the DEIR, with any changes or modifications the City Council may elect to make along with comments that were made on that DEIR and the CityÕs responses to those comments; the EIR cannot be completed until the Council is done; within 10 days of the final approval of the General Plan, staff would complete the final EIR and prepare the responses; suggested the City Council continue with their review of the General Plan and the policies.
Mr. Colantuono stated until you are done, you are not done.
Mayor Carroll opened the Public Comment.
Katie Martin, Reposado - stated she was concerned about the restriction of development on less than ½ acres.
Mayor Carroll seeing no one else come forward closed the public comment.
Councilmember Douglas asked staff to find out how many undeveloped lots are less than ½ acres in size.
Councilmember Klein moved to continue this item to the September 11, 2003 meeting. Mayor Pro Tem Borrowe seconded the motion. Ayes: 5-0.
10. CONTINUE COUNCIL DISCUSSION REGARDING THE GENERAL PLAN BEGINNING WITH CIRCULATION ELEMENT NUMBER 55.
Councilmember Douglas moved to continue the General Plan discussion to the September 11, 2003 meeting. Councilmember Klein seconded the motion. Ayes: 5-0.
11. PUBLIC COMMENTS.
None
ADJOURNMENT
Councilmember Klein moved to adjourn the meeting in the memory of Captain Mike OÕBrien and Artist Pat Combs at 10:30 p.m. to the regular City Council Meeting of September 11, 2003. Seconded by Councilmember Millsap and approved as follows:
ATTEST: