Albert Bernal is a member of the Clearlake Planning Commission, but he says that he's speaking only as a concerned citizen in the memo to councilmembers dated April 20 that explores the Lake Glenn Subdivision.
Santa Cruz developer Robert Adelman went to the council April 12 to ask for the final map of the subdivision's second phase to be approved. That would allow him to move forward with building the next phase of 32 homes in an area along Rumsey Road.
The subdivision was first approved by the council in 1991. Neighbors who spoke at the April 12 meeting voiced concerns that the map had expired.
But City Administrator Dale Neiman suggested approving the map, citing a city staff error. The error was attributed to former Community Development Director Angela Basch, who sent a letter to Adelman in March of 2006 that appeared to give him the go-ahead for the project.
Bernal also spoke at the April 12 meeting, where he expressed the belief that the city would be setting a dangerous precedent in accepting the map.
Following the meeting, Bernal undertook what he called a “tedious but informative” review of all the available files on the subdivision, then summarized his findings in a five-page memo to the council.
In the memo, Bernal writes, “I make no judgment on the specifics of the project either pro or con as it would be inappropriate to do so.”
Responding to Bernal's memo, Neiman said this week that while he agrees with some parts of it, he disagrees with others.
Neiman, who said he hasn't done the same kind of file review that Bernal undertook, believes the city bears some responsibility in the matter. Ultimately, he said, the council needs to seek an equitable solution for both Adelman and the subdivision's current residents.
“There's problems on both sides,” he said.
In specific detail, Bernal's memo addresses each of the important points about the subdivision, beginning with Basch's letter.
Bernal said he doesn't interpret Basch's letter as saying that the subdivision's tentative map had not expired.
What the letter did say, Bernal said, was that conditions existed that had to be met before Adelman could proceed without further environmental review. Those conditions, Bernal said, required that the final map conform to the tentative map, there be no substantial changes to the project or the project site, and that the tentative map had not expired.
Bernal said the conditions laid out in Basch's letter were “consistent with state law and city ordinance.”
“It would seem reasonable that if the applicant misinterpreted this document, which is quite clear, he would have a very poor basis on which to base a lawsuit,” he wrote.
Bernal said Adelman's proposal for a final map fails all of the conditions laid out in Basch's letter; specifically, he points out that the map Adelman submitted as the final map is different from the original.
The point about Basch's letter is one area where Neiman said he disagrees with Bernal.
“There's absolutely no question the map expired,” Neiman said.
However, he added, “There's no question in my mind that staff concluded the approval was still valid.”
Neiman said it's also important to look at the actions that resulted from Basch's letter. While it can be interpreted in different ways, he said Basch also told City Engineer Bob Galusha that the project was approved.
Further, Adelman interpreted it as approval, moving forward with his plans and spending considerable time and money to do so, said Neiman.
“That's how we got to where we are,” Neiman said.
Bernal also suggests that the City Council is not the correct authority to consider the final map, citing city ordinances which state, “The Planning Commission shall have all the powers and duties with respect to tentative maps and final subdivision maps, and the procedure relative thereto, which are specified in law and in this chapter.”
Bernal writes, “By considering the Final Map the City Council is violating the City’s own ordinance. The correct role for the City Council as an appellate body. It has authority to hear appeals of Planning Commission decisions. By violating its own ordinance the City is putting itself in legal jeopardy if any citizen, or group of citizens, chose to take legal action. If any proceedings on the Final Map are to take place, notwithstanding the reasons that further proceedings should not take place, it should be with the Planning Commission.”
After reviewing the files, said Bernal, he concluded, “the process that the City has been following is illegal. Further, because of illegality of the proceedings to date, serious legal risk could be incurred unless the process changes. That legal risk could be from both the applicant and citizens.”
He continued, “In addition to the legal risks there is the risk of negative perception of the competence of our local government. It is my belief that the City cannot afford neither legal risk nor negative public perception.”
Bernal recommends the city notify Adelman that all proceedings are halted due to the violations of state law and city ordinances that have occurred since he initiated his request for a final map last year; notify him that he must submit a new tentative map; send the new tentative map through the staff and Planning Commission; and offer any assistance the city can legally offer to expedite the process of considering a new map in order to “mitigate any impacts of delay on the project.”
Finally, Bernal asks the city to remove the issue from the council agenda and remove the council from any decision making responsibility on the issue.
Neiman said his final report to the council has some minor changes, mostly points suggested by City Attorney Tom Gibson. But otherwise he said his recommendation will remain the same, that the council should approve the subdivision map because of the error by city staff.
“The bottom line is, this thing's an absolute mess,” Neiman said.
The item will be discussed at this evening's City Council meeting, which begins at 6 p.m. at City Hall, 14050 Olympic Drive.
E-mail Elizabeth Larson at
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