Councilmember Greenwald Conflicted Out Retroactively

Will Council have to revisit November Vote on B Street Project Based on FIVE Feet?

On November 5, the City Council heard an appeal of an application to develop four detached residences on the parcel at 233 B Street. The Planning Commission back in July denied the applications by a 5-2 vote based on inconsistencies with the Design Guidelines. All but one neighbor strongly opposed the design modification. Simply put it was a very innovative design and project that did not belong in the middle of an existing neighborhood.

The city council by a strange 2-2-1 vote where Councilmembers Greenwald and Heystek opposed the appeal and Councilmember Stephen Souza abstained. That vote gave the applicant, Maria Ogrydziak one year to work with her neighbors to come up with a more suitable project for that location. Following abstention, Mayor Pro Tem Don Saylor was not happy and provoked an angry exchange with his colleague and frequent ally on the council. He informed Councilmember Souza that due to his vote the project would be killed. The councilmember was well aware of the implications of his actions.

The councilmember said:

"I have a major conflict here trying to pit history against the environment."

Mr. Saylor responded:

"So you deny the project by not doing either."

That was clearly the intention of Mr. Souza's vote. What has now happened is that instead of working with her neighbors, Ms. Ogrydziak is working with Mayor Pro Tem Saylor to find a backdoor around the original vote.

Staff report attaches a January 4 letter from Ms. Ogrydziak to City Manager Bill Emlen.



In it she claims that they check and found that Councilmember Greenwald's property was 470 feet from the project and therefore she should be conflicted out.

"If Sue Greenwald had been recused, we would not have lost various votes (with Stephen's abstentions), and the project would still be alive. Therefore, I am requesting a re-consideration for the 233 B Street Project, without added City of Davis or Planning Department fees."

During that meeting, there was considerable question as to whether Councilmember Greenwald could vote on the project. As the staff report reads:

"ownership of property within 500 feet of a proposed development creates a rebuttal presumption of a conflict of interest for a public official."

In other words, anyone within 500 feet of a property is conflicted out from participating.

"Prior to the meeting, Councilmember Greenwald was advised that she did not own property within 500 feet of 233 B Street, and therefore did not have a conflict."

In fact, Councilmember Greenwald did not stop there, twice during the meeting prior to participation she specifically asked City Attorney Harriet Steiner if she had a conflict and was twice told that she did not. Based on that advice, she participated in the vote and discussion of this matter.

Now, nearly three months later, the city attorney is claiming there was an error and she is conflicted.

"This advice was incorrect, however, due to a drafting error in preparing the maps."

I am as concerned about process and conflicts of interest as anyone, perhaps more so. However, I have been told that she is 495 feet from the property. So somehow if she is 495 from the property she is conflicted out, but can vote if she is 500 feet or 501 feet. From a practical standpoint that does not make a lot of sense.

But just because she lives within 500 feet, does not necessarily mean she is conflicted out. She can show that she would not stand to benefit from the proposed development or lack thereof.

Here again we get into utter illogical advice from the City Attorney.

"It is possible that Councilmember Greenwald will seek a determination from a real estate professional, such as an appraiser or broker, that, notwithstanding the fact that her property is within 500 feet of the proposed development, the proposed development will have no impact on her property. If she obtains such an opinion, then she would not have a conflict on this matter. At this time, we do not know if Councilmember Greenwald will seek this further opinion."

This makes even less sense than ruling her conflicted out based on five feet. Councilmember Greenwald was basically told to hire a real estate agent to assess the impact of her property which is on Rice Lane, a side street nowhere in the vicinity of 233 B Street. The likelihood of an impact is extraordinarily remote. And yet, by asking her to obtain the opinion, you risk having an interested party making a ruling rather than the city hiring an expert who is impartial do the assessment. Talk about conflict of interest. Who would find such an expert's view compelling under those circumstances.

Apparently the mere fact of her participation does not negate the action taken by the Council in November.

"Councilmember Greenwald’s participation does not negate the action that was taken by the Council in November. The denial stands. The applicant has asked that the matter be reconsidered to allow a different vote on the applications.

Staff and the City Attorney agree that it is fair to provide the applicant with a new hearing."

Really fair to whom? To the neighbors? To the taxpayers of Davis? To the voters of Davis? To the process of democracy?

Fortunately, there is no guarantee that there will be three votes to have a new hearing. Mr. Souza specifically voted, albeit by abstention, to delay the project because he felt it ill-suited for the neighborhood. It seems unlikely he would change his mind, especially with this procedural nightmare.

To make matters worse, this item was place on CONSENT AGENDA, where it could have easily be hidden from the public and perhaps the council.

"Staff recommends the following approach:

- The applicant to re-submit applications for the project presented to the Council in
November;
- The City to waive processing fees;
- The applications to be scheduled before the Council expeditiously, with no further
Planning Commission review;
- Minimal additional staff work or analysis, but reliance on the previous staff report."

This entire situation is appalling. Ms. Ogrydziak's project was strongly and vociferously opposed by every neighbor except for one. The planning commission denied it. The city council by a strange vote denied it. And instead of coming back and working with her neighbors, she has tried an end-run around the process seizing on an error and a technicality to try to invalidate the vote of one of the councilmembers.

To make matters worse, the city attorney, city manager, and city staff have bought into this.

All of this based on 5 feet (or even 30 feet as the applicant claims)? There have been some baffling things I have seen this city do, this one may take the cake. She presumes Councilmember Souza will still abstain--I think that is rather presumptuous of her given his expressed desire at that meeting and his likely reaction to this kind of maneuver. The Vanguard certainly hopes Mr. Souza does the right thing here and we have faith that he will.

---David M. Greenwald reporting

Commentary: Davis Residents Should Demand Accountability From City Government

Humorist P.J. O'Rourke once wrote:

"The Republicans are the party that says government doesn't work and then get elected and prove it."

In fact, the chief problem is that people in general are complicit in the failure of government at all levels. They are willing to accept mediocrity. They fail to hold their public officials accountable and demand more from their elected leaders and their unelected civil servants.

I bring this up in part due to the response, by some, to the lack preparation and leadership from the city government during the latest emergency. And as I suggested yesterday, a low-level emergency at that.

But if we cannot properly handle a low-level emergency, how will we handle the big one?

I received a large volume of emails yesterday from residents and public officials. There were points made that I think need to be posted in public. I shall excerpt a few while protecting the identity of the guilty parties.

This one in particular gives me great pause:

"The bottom line is we all knew this was coming. Citizens made plans. Did the City? Does it have a plan? Was it executed properly? Is there a plan to review what happened and revise the plan and execution for the next emergency? This is a great opportunity to improve. I hope we don't miss it. I'd hate to see what happens to us if there were a levee break at the Yolo bypass, or a problem with the Monticello dam. (BTW, I hear there is a map at public works that shows what happens in the event of a Monticello dam failure. Davis has approximately two-four hours between the break and various levels of inundation. I'm curious to see if there is a City plan for that event.)"

If we had two hours to get people out of the city, especially elderly and disabled, would we be able to do so?

I grew up in San Luis Obispo, as I have mentioned many times before on this blog. PG&E in all of their great wisdom decided to build a nuclear power plant on an earthquake fault. Now they claim it could withstand an earthquake, but at one point in time they also built the darn thing backwards and had to start over from scratch.

San Luis Obispo in response to public outcry developed an evacuation plan that basically put everyone on the two-lane (at the time) Highway 101 North to Atascadero. This is basically a town of 44,000 where all would be evacuating into one outlet in the event of an emergency. School children first. We actually practiced these evacuations during school.

It was a lousy plan and if it ever had to go to fruition it would have been fraught with problems, but at least they had a plan. As a result, San Luis Obispo County also has a much more sophisticated emergency response plan than we do in Yolo County.

Art Shapiro posted a great comment on the Davis Enterprise site yesterday:

"People who follow the weather or even pay close attention to the news knew this was coming and could take appropriate precautions, though some thought the Weather Service was crying wolf and didn't. You can't force people to exercise good judgment. But the vast majority - alas - don't keep up, so many were caught flat-footed and didn't have the opportunity to act prudently. This, for most of us, was merely a nasty nuisance. But it was immensely valuable in that it showcased how grossly inadequate our emergency planning actually is; it is laughable to rely on radio broadcasts when the power is out and only those with battery-operated radios can get them. Major power outages take down Web sites and kill computer-based information delivery. (Those with campus connections had Web access this time, but we cannot count on that--it was luck of the draw.) Phone lines can go down too, and many people no longer have land lines at all, but reverse-911 systems may be the most effective means of communication when there are extensive power outages. We (and others nationwide--our situation should be a trigger for such review elsewhere) need to rethink these issues; the next time may be a lot more than a nasty nuisance."

The Mayor, Sue Greenwald, followed it up with:

"At our council meeting this Tuesday, I plan to ask that our winter storm and power outage procedures be reviewed. As Mayor, I talked with the City Manager numerous times before and during the storm about our procedures. Even before the storm hit, I asked if we had a process for assuring that citizens, and particularly the elderly, had access to warm shelter in the case of major power outages. As the extent of outages became apparent, I continued to press the City manager. When the shelter was belatedly set up, I suggested to the City Manager that we start a door-to-door outreach, looking especially for the elderly. When I received no reply, I drove over to the shelter and then to emergency headquarters. Temperatures were falling rapidly. I asked which areas were still out of electricity. Most of Central Davis bounded by Russell, Covell, 113 and F street were still without heat. I pointed out that this older area of Davis was home to a lot of senior citizens. I was told that we would not be doing a door to door outreach. I returned to the emergency shelter, and one of the Red Cross volunteers told me that Woodland was undertaking a house to house outreach. Again, I will ask the council to look into this on Tuesday night."

Getting back to my original point. In many ways this was a dry-run for us. For most resident this was a pain rather than a serious danger. But next time we may not be so lucky.

The key question I have is whether we are willing to accept the level of governance we have, accept mediocrity, or will we demand accountability from our elected officials. Will we demand accountability from our unelected officials who apparently run this town?

---Doug Paul Davis reporting

Storm and Outages Demonstrate Need for Greater Emergency Preparedness

At one point large sections of the City of Davis remained without power for close to two days. For those of us who are able-bodied and have relative means, it meant the inconvenience of going to a friend's house or a hotel room to wait until the power came back on. For those who are not so lucky, because they lack the financial resources, or are elderly it could very well have meant something very, very serious.

One of the biggest problems, as we sat in the lobby of a local hotel, was that there was an utter lack of information being disseminated. PG&E had a generic message that you could reach after about 10 minutes of shuffling through their switch board, but few updates and new information.

The City of Davis had, up until yesterday evening, virtually no information available. The city webpage had no content on it about the emergency. In fact, if you clicked on emergency information, it said that the city of Davis had no emergencies at this time. Let me tell you, that caused quite a chuckle from nervous and tired "refugees." Channel 16 (the City of Davis Government Channel) had no information either.

Finally, late last night, after checking multiple times, the city webpage had a link to clink on for emergency information. And even that, did not provide a lot of information.

Channel Sixteen finally began broadcasting emergency information sometime late on Saturday. At midday we looked and there was no such information available. The message that played last night only provided generic information which had been recorded at 7:30 pm. This information was still playing at nearly 10 pm last night, which meant that it was information that was two and a half hours old and needed to be updated.

Getting shelter information to the elderly and disabled needed to be a top priority and that could not have occurred by TV or internet and had to occur via word of mouth.

The two best sources for information were on the Davis Wiki and the Davis Enterprise Websites. (Again you had to be mobile enough to get to a place with power for that to be helpful).

Even then there was not a lot of information. That is by no means a criticism of either the Wiki or the Enterprise. They did the best they could. The information was just not available and that falls squarely on the city of Davis and PG&E.

As the Enterprise wrote:

"At 3 p.m. Saturday, PG&E spokesman Keely Wachs from San Francisco said nearly 10,000 people in Davis were still without power as a result of Friday's severe storm.

...

Several people complained that PG&E was not updating phone or Web page information about outages.

'We're swamped but that's not an excuse,' said Wachs on Saturday. 'I'll call our customer care team and see what they can do.'"

In fact it was completely inadequate.

As Supervisor Matt Rexroad pointed out on his blog, SMUD had their power on much faster and provided far better information for their customers.

This prompted him to remark:

"Personally, I would have liked the 30% rate reduction and the more complete information."

As one of our officials pointed out to me on the phone as I was driving around town yesterday to get a sense of the situation, we knew this storm was coming and we knew it would be bad.

Shelters were up last night, I'm not sure that they were up on Friday night. That's not acceptable. We knew that given the early predictions many would be without power Friday night.

The information infrastructure was slow. They did not utilize Channel 16 or the Internet until it was too late.

The final and most concerning point, is that the most vulnerable people would not have had access to either the internet or a TV, so how was information to get to them?

I was told by a reliable source that there were no plans to go door to door in Davis. However, we did hear the city of Woodland was doing exactly that--going door to door.

We need to get this right for the next emergency that is likely to be far more dangerous and life-threatening than this one was.

---Doug Paul Davis reporting

Portion of Controversial Agenda Item Pulled From Tonight's Council Agenda

The Vanguard has learned that part of item 11 on tonight's agenda has been pulled. This item contained two separate but very important issues that generated concern from the community about the timing and the manner in which they came forward.

The first part of the item is a public hearing on an ordinance which would allow renters to display political campaign signs. According to city manager, this item will likely remain on the agenda despite student complaints about the timing of this hearing because students have largely left town this week at the conclusion of finals. According to our sources.

This is an item that first came before the UC Davis-City of Davis Student Liaison Commission. The issue came to the commission's attention after the ASUCD Senate passed a resolution in September, authored by Sen. Michael Lay, calling for an ordinance ensuring the right of Davis renters to post political signs. Several renters had complained to City and ASUCD officials that landlords were not allowing them to put up signs in support of certain candidates for public office.

The second and more controversial portion of the agenda item relates to an increase in the campaign finance limits for council elections. This would increase the limit from $100 to $250.

"Campaign Contribution Limits

The current campaign contribution limit of $100 was set by ordinance 1624 on November 20, 1991. With the increase in costs to run a simple campaign over the past sixteen years, it is being recommended that consideration be given to increasing the individual limit from the current $100 to $250."

However, the item caught many by complete surprise including apparently the City Manager and members of the council who were apparently unaware that the item was on the agenda.

Yesterday, Mayor Sue Greenwald posted the following on the Vanguard:

"I was unaware that changes in the campaign contribution limits were under consideration until I received my packet this weekend. (I go over the agenda items, but don’t see the staff reports in advance).

I had expressed reservations to the City Manager about this item, since Ruth was to be out of town. He assured me that the item was not substantive, but involved moving the ordinance to a more logical chapter in the City code.

When I saw the $250 surprise item, I called the City Manager to ask him why the changes in the campaign contribution limits materialized at this time and in this manner, he said that it was a surprise to him."

According to City Clerk, Margaret Roberts, she was asked to streamline the section of the city ordinance dealing with these campaign regulations. During the course of her inquiry, she discovered that Davis' regulation was out of step with other municipalities and therefore, according to her, she made the change on her own without any direction from anyone else.

In a conversation this morning with City Manager Bill Emlen, he acknowledged errors on his part for failing to properly scrutinize the council agenda. He saw the portion of the agenda on the political signage but missed the change in the campaign finance limitations. This is the same sort of error that I made when I initially missed this item as well.

He felt like this item was too controversial in this community to bring forth in this manner and will pull it back for re-examination. One possibility would be to have it before an ad-hoc committee to examine what other communities are doing and what this community wants.

He stressed that this error occurred not due to some untoward influence on the process but was rather an oversight and a misunderstanding by staff as to the nature of the topic being proposed.

The Vanguard will continue following this story in the near future. Stay tuned for new updates and commentary.

---Doug Paul Davis reporting

Quietly... Council Looks to Change City's Campaign Finance Ordinance

You had to be very alert to notice it, but on the agenda for Tuesday night's council meeting, as the last part of the last item, buried at the end of the council agenda, reads the following:

Missed it the first time? I did. I wasn't the only one.

The item seeks to put three separate aspects of election law into a single section of the election code.

These ordinances will remove all political campaign sign regulations from Chapters 3 and 40 of the Municipal Code and include them in Chapter 12 (Elections). This will put all regulations related to elections in one chapter making it convenient for the public to look an election related question up. They will also increase the allowable campaign contribution per person to $250 from the current $100 and impose a $25 removal fee for signs placed on public property.

The guise of this move is stated as "convenience." But it also has the advantage of enabling the item to be slipped through in relative obscurity, buried at the end where few are looking for it.

The first part of the item is a public hearing on an ordinance which would allow renters to display political campaign signs. This is an item that we discussed in October that came before the UC Davis-City of Davis Student Liaison Commission.

It has full backing of ASUCD (Associated Students of UC Davis). The issue came to the commission's attention after the ASUCD Senate passed a resolution in September, authored by Sen. Michael Lay, calling for an ordinance ensuring the right of Davis renters to post political signs. Several renters had complained to City and ASUCD officials that landlords were not allowing them to put up signs in support of certain candidates for public office.

ASUCD Sen. Andrew Peake:

"The right to free speech is a right guaranteed to everyone, not just to those who own property. When it comes to political participation, it shouldn't matter whether you own your home or not. When certain members of the community aren't allowed to participate in the democratic process in this way, it's a form of disenfranchisement."

City staff circulated a legal memorandum stating that landlords who prohibited their tenants from posting political signs were most likely out of step with the law.

Staff has now however taken the rather unusual step of putting together two relatively distinct ordinances into the same item. Therefore, having read the first part of the item, one might not notice that there is a second very distinct ordinance carried within it.

Adding to the confusion, is the fact that the second portion of the item has received little discussion leading up to its placement on the agenda. To the point where one wonders where it came from and under whose direction it was placed there.

Even in the agenda packet, the ordinance is buried and extremely brief. Unlike the political sign ordinance, the ordinance to change campaign finance laws has no background or discussion. It was a very simple single paragraph description.

It simply reads:

Campaign Contribution Limits

The current campaign contribution limit of $100 was set by ordinance 1624 on November 20, 1991. With the increase in costs to run a simple campaign over the past sixteen years, it is being recommended that consideration be given to increasing the individual limit from the current $100 to $250.

The merits of the increase aside, the fact that this was done in such a quiet manner, is of grave concern. Councilmember Lamar Heystek expressed similar concerns to me. This was the first he had heard of any proposed changes and he was unclear as to how the issue came about.

As Liaison the UC Davis-City of Davis Student Liaison Commission, he was very familiar with the political sign ordinance. The issue of renters having the same rights to place political signs around their rental units is an issue at the very basic levels of free speech.

However, the issue of campaign finance laws is a separate matter and needed to be brought up separately.

One can make arguments on both sides of the issue of increasing the amount an individual can donate in a city council race. However, that is not the point here. The point here is about open government, transparency, and having a full public discussion of this item. The item did not make the Davis Enterprise. It did not have any sort of prior discussion in a commission, and apparently even members of the council had no idea it was even being considered.

That is very alarming to me, again regardless of whether you think this is a good idea or a bad idea. What does seem clear is that three of the members of council are running for reelection. It takes thirty days for an ordinance to take effect after it's second reading which would be the first council meeting in January, meaning that by early February, candidates facing reelection can suddenly experience a 250% increase in their available campaign funds. And let me go out on a limb and suggest that this idea did not come from the Mayor. That leaves two likely culprits who would personally benefit from changing this ordinance.

To make things even more interesting is the fact that the Mayor Pro Tem, Ruth Asmundson, will not be at the meeting on Tuesday as she is out of town. That will leave open the strong possibility that this will not pass and perhaps it will leave open the possibility that this would be delayed until January or even after the current election.

Regardless of one's feelings on the current law or the proposed changes, the public must be heard on this issue and weigh in. Attempting to close off public input, scrutiny or debate, is a very dangerous precedent in my view. Let us have this debate with full notice in January and if the public wants to see these changes, then at least there will have been a chance for people to weigh in. My guess however is that is exactly what the timing and secretive nature of this ordinance attempted to avoid.

---Doug Paul Davis reporting

Planning Commission Nixes City Staff Supported Project

As I sat in to listen and observe the City Of Davis Planning Commission meeting, the thought repeatedly ran through my mind as to exactly what I was doing here. This was after all, a design review and approval for a minor modification to a private resident on J St in Old East Davis. What possible interest would people who are not neighbors have in the approval of an addition to a home?

As the evening went on, I think the same question must have occurred to each of the seven people who sit on the Planning Commission itself, but it would have taken the form of, how exactly did this project come forward to this point. However, bear with me here, because what you are about to see is shear incompetence on the part of city staff, yet again, in allowing a project to go forward without proper vetting by the City Attorney and despite serious concerns from neighbors.

The applicant in this case proposed constructing a 1,469 square-foot, two-story rear addition to an existing one-story residence in the Old East Davis Neighborhood. The proposed addition would be substantial and more than double the size of the residence. The addition would result in a floor area ratio of 43.4%.

One of the key factors here was a large 32” diameter Chinese hackberry that is located in the rear yard. The tree constrains development. To minimize potential impacts to the tree, the addition is pushed back 12 feet from the tree and results in a proposal to reduce the north side yard setback to 1’-8” for both stories. A new front porch would also replace the existing porch and new landscaping installed. A small second-story deck would be located on the south side elevation.

In other words, the applicant claimed that in order not to kill the tree, the addition had to be a certain distance away, this forced it to almost abut the south side of the property line. Only 20 inches would separate the northern edge of the home from a fence. Now think about 20 inches for a second and how narrow that is. City ordinance requires a five foot setback for the first floor and 10 feet for the second floor. The applicant in this case is asking for 20 inches on both floors and what is essentially for all intents and purposes a 20 foot high wall to be only 20 inches from the property line.

The staff report suggests as follows:

"Staff recognizes that the addition is sizeable and that the 1’-8” side setback is a substantial reduction in the setback requirements. Although it reduces the sense of openness on the north side, it preserves other useable areas in the yard and does not significantly impact the adjacent parking area. The Zoning Code gives the Planning Commission the discretion to reduce the side setback in the R-2 CD district in order to protect significant landscaping. The Planning Commission has discretionary approval over the project and may deny the project or request changes that it deems appropriate."

The staff report acknowledged that concerns were raised, and I focus on two of these concerns.

First:

"Concerns were raised that the reduced side setback would have visual impacts; that it would not be consistent with side yard setback generally found in the neighborhood; and that it could set a precedent for future projects. Additionally, concerns for maintenance, drainage, and fire issues in the side yard were mentioned. It was noted that other buildings in neighborhood had zero setbacks though they were generally accessory structures and/or single-story. The question was asked whether the addition could be placed further to the rear instead of the side."

This is a key point because the answer we are given is that the reason that it cannot be moved closer to the rear of the lot rather than the side is the tree and concerns that it will encroach on the tree.

"The R-2 CD zoning provides flexibility allowing the Planning Commission to reduce the side setback to protect historic landscaping."

The staff is claiming that the tree, a mature Chinese hackberry, represents historic landscaping and that building near the back could endanger the tree. The owner had an arborist testify to this effect, although it was unclear from that testimony how close they could actually get to the tree, the arborist appeared to suggest that it would be considerably closer than the current design.

The other complaint that was registered had to do with the size of the addition. For me, the tree issue was only part of the concern here, the other was, why they had to build such a large addition to begin with.

"There was concern that the addition was too large and that the mass and scale of the new structure would be out of proportion for the lot and the neighborhood and would have insufficient open space. Particularly, there was concern that it would overwhelm the nearby historic Tufts House.

The proposed addition is substantial and results in a FAR of 43.4% that exceeds the allowable FAR of 40% by approximately 200 square feet. The zoning allows an increase in the FAR with Design Review."

In the end, despite strong objections from neighbors, the staff recommended approval for this project:

"Staff believes the project is consistent with the DDTRN Design Guidelines and that the proposed design is compatible with the neighborhood and surrounding structures and would not adversely impact the integrity of the adjacent historic resource. Staff therefore recommends that the Planning Commission approve the project based on the findings and conditions of approval."

Immediately to the north is a newly built complex of two town homes and two single family detached homes that are at this point unsold. The real estate company, Coldwell Banker and Doug Arnold, claim that this project would devalue adjacent property.

"As currently proposed, the set back for the addition at 425 J Street is only 18 inches for both the first and second story. This will create a 20-foot vertical wall that will radically change the appearance and character of the backyard area and will devalue the four properties affected.

In particular, 437 J Street will immediately lose both light and openness due to the blockage of the sky and sun. The massive and imposing new addition closing off the sky and sun will dramatically alter both the appearance and usage of the side yard and patio and will seriously devalue this property."

Bill Kopper, represented the owner of the adjacent property, Mr. Frank Skover before the Planning Commission. He presented key testimony arguing that the city had three criteria with which to grant an exception to the zoning ordinance that requires a five foot setback. The only one of these three criteria that was applicable without either a zoning change or a general Variance, was if the tree was part of an historic landscape. Mr. Kopper then went on to argue that this did not fall within the normal definition for historic landscape of which there are very few such designations in the city. Mr. Kopper successfully argued that a mature tree is not necessarily historic, nor could a tree in and of itself, be part of an historic landscape without some accompanying structure.

At this point, Mike Levy, one of the planning commissioners, asked City Planning Staffer Mike Webb point blank whether Mr. Kopper's interpretation was correct that this needed to be designated an historic landscape. Mr. Webb acknowledged that Mr. Kopper was correct. And when pressed, Mr. Webb acknowledged that unless it was deemed an historic landscape, they would have to rely on Variance procedures in order to grant such a setback.

Here is where this gets interesting. Mike Webb and Eric Lee, the planning staff, argued for approval of this project. They did so without getting a legal opinion from the City Attorney as to whether this could even be designated an historic landscape. This fact was brought up by Mr. Levy at this time and several other members of the commission wondered out loud how the planning staff would go forward with such a recommendation and more importantly how this process got this far.

Amazingly, for the next two hours, the meeting would continue with a variety of members of the public coming forward. One of the neighbors openly acknowledged that the reason for the addition was retribution for Mr. Skover building the "condos" that overlooked her property--from roughly 50 feet away.

In the end, staff worked very diligently in order to rescue this project giving the planning commissioners a number of different avenues short of outright denial. Even without the issue of the historic status of the tree which was by this point in severe doubt, the planning commission in general felt that this project was too large and the lack of setback very intrusive.

You see a very rare thing occur, by a unanimous 7-0, the Planning Commission voted down the proposal but instructed the city attorney to weigh in on this issue about the determination of the historic status, as much for future interest as for determining this project.

The question on many people's mind after the decision was finally reached late into the evening, is why the city's planning staff not only pushed for approval of this project but when it became clear that the Commission was opposed to it, continued to try to wear down the Commission into making a weaker ruling, a tactic that was actually partially successful and would have been more successful were it not for the resolve of several of the commissioners including Mr. Levy who caught on immediately that there was a legal problem and that Mr. Kopper's opinion had serous merit.

For the staff to knowingly recommend approval of this project, knowing the ordinance rules as Mr. Webb appeared to acknowledge, without seeking the opinion of the City Attorney is blatant incompetence. At the very least he wasted the time of the commissioners by failing to even check to see if this could be done in the first place and in fact if he had his druthers, the planning commission would have sent it back to the City Attorney and then possibly revisit this issue in the near future. Staff should never have come up with such a recommendation without checking on its legality and whether this tree fit the definition of an historic landscape.

In fact the suggestion at one point was that the owner could simply cut down the tree. The applicant claimed that city planner Eric Lee had told her that if she did, she could face a $40,000 fine--a preposterous claim that in fact, Mr. Lee though he hedged, never disputed.

For those wondering in the end, why this issue comes before us, it is because this is yet another example of the sheer incompetence of city staff. I have never seen a proposal that staff itself recommends be voted down unanimously but that is what happened here. You have staff failing to check to see if their recommendation was legal. You have staff pushing and carrying the water for a proposal despite strong and legitimate objections from neighbors. It was not even known whether the Planning Commission had the ability to weigh in on the judgment of the historic nature of the tree and the landscape.

In the end, the question from all involved is how this got to this point. It was a question openly asked by those on the Planning Commission. It was a question wondered through out the proceedings. While for most this is a small issue, this was extremely costly to the owner of the adjacent property who had representatives there to protect his investment in his project. And you have once again, city staff, failing to do their job in a thorough and proper manner, which ended up wasting the time of the Planning Commission and those who came before the commission. Something needs to be done about this issue in the future or the city will end up setting itself up for a very serious and expensive law suit.

---Doug Paul Davis reporting