Loynes LLC/Sean Hitchcock Sue To Overturn Key Parts Of Coastal Comm'n Permit Conditions

(Feb. 11, 2011) -- In a story reported first by Heather Altman on EgretsNotRegrets.com, Loynes-South landowner Loynes, LLC and Sean Hitchcock have filed a Petition for Writ of Mandate seeking to overturn special condition and its subparts in a Nov. 2010 ruling by the Coastal Commission requiring as part of a Coastal Development Permit that the landowner construct an impermeable cap and seasonal pools on the property (south of Loynes Dr. just east of Studebaker Rd.) and basically restore the land to what it was before bulldozers cleared it in March 2009 without permits (responding to what Mr. Hitchcock said at the time and alleges in the Petition was an LBFD weed abatement directive).

EgretsNotRegrets.com notes that petition (filed on Jan. 18) states in part:

In imposing the condition, the Coastal Comission failed to proceed in the manner required by law. The condition lacks any nexus or rough proportionality with the impacts of the project authorized by the CDP and, therefore, results in a taking of Petitioners' property without compensation in violation of the Constitution of the United States and the State of California. Furthermore the Coastal Commission's decision to impose the Condition was arbitrary and capricious and was not supported by substantial evidence in the record.

To view the Petition (to which EgretsNotRegrets.com also links), click here.

As previously reported by LBReport.com -- and with LIVE VIDEO of the proceedings on LBReport.com -- on November 19, 2010 the CA Coastal Commission ordered plant restoration, land restoration and an impermeable landfill cap placed on the Loynes/South parcel (south of Loynes Dr. between Studebaker Rd. and the Mobile Home Estates).

Coastal Comm'n webcast screen save

The Coastal Commission action stemmed from an appeal by multiple LB residents (listed in full below, includes Ms. Altman) and the Los Cerritos Wetlands Land Trust, the El Dorado Audubon Society and Our Town -- Long Beach.

The hearing stemmed from a March 2009 land clearing with bulldozers and without required Coastal permits by landowner Sean Hitchcock (2H construction). The action angered wetlands advocates and a number of neighbors, amplified by City Hall's less than swift response and the reluctance of city staff and Planning Commission to flatly direct restoration of the land to its previous condition.

(LBReport.com March 2009 photo following land clearing; trucked-in asphalt pile was removed within a few days).

The Coastal Commission's action went beyond some aspects of restoration recommended by Coastal Commission staff; as amended on motion by Coastal Commissioner Sara Wan, the Commissioners voted unanimously to direct the land owner to:

• Contour the land to facilitate the creation of vernal pools that by most accounts were on the land prior to the illegal grading,

• Ensure that an impermeable cap be placed over the methane producing part of the land to avoid harmful gas ever being released again and to avoid the possible seepage of water into the dump,

• Replant the land with alkaline meadow and other native plants, with a robust monitoring plan to make sure those plants take hold and thrive.

Requiring an impermeable landfill cap could allow some water to collect on the parcel...which would arguably be more consistent with wetlands than uplands.

In March 2009, Mr. Hitchcock, a LB resident and Signal Hill officed contractor who'd recently acquired the roughly nine acre parcel from a Tom Dean-related LLC, responded to city weed abatement directive by using bulldozers which removed vegetation, changed the topography and disturbed the top layer of an old landfill causing elevated methane levels.

Mr. Hitchcock then sought and obtained a Coastal Commission Emergency Permit allowing use of imported fill dirt to create a six-inch thick dirt cap to cover exposed trash with a condition requiring a follow-up Coastal Permit from LB City Hall. A City Hall Zoning Administrator approved a Local Coastal Development Permit with no requirement to restore the land to its prior condition; a number of residents appealed that decision to LB's non-elected Planning Commission; the Planning Commission denied the appeals but added a Special Condition stating: "The applicant shall comply with a remediation plan to be prepared by staff and submitted to the Planning Commission for consideration within 90 days."

City Hall's response to the land clearing led the residents and environmental groups to appeal to the Coastal Commission, which scheduled a de novo (anew) hearing at its Nov. 19 meeting in Santa Monica at the Annenberg Community Beach House.

Photo credit: Gordana Kajer

The appellants in the Coastal Commission proceeding were the Los Cerritos Wetlands Trust (Elizabeth Lambe, Executive Director); Thomas Marchese; Heather Altman; Mary Suttie; David Robertson; El Dorado Audubon Society (Mary Parsell); and Our Town -- Long Beach (Joan Hawley McGrath, Sandie Van Horn, Pat Towner, Cindy Crawford, Tarin Olsen, Kerrie Aley, Allan Songer & Brenda McMillan).

Photo credit: Gordana Kajer

They were joined in their appeal by two Coastal Commissioners themselves: Mary Shallenberger and Sara Wan.

At the Coastal Commission hearing, Commissioner Ross Mirkarimi [a San Francisco City/County Supervisor] wondered aloud what actions by LB City Hall may have led the landowner to do what he did. He said it appeared that what had taken place was "another incident of government asking for forgiveness rather than permission" and asked if any representatives of the City of Long Beach, including a City Attorney representatives, were present. None were.

Commissioner Mirkarimi invited Mr. Hitchcock and his counsel to come to the microphone, and asked Mr. Hitchcock if the City of Long Beach had required him to have a permit for what was done. Mr. Hitchcock replied:

"There is no City permit required for the clearing work as done, and the City frankly didn't know that there was one needed and neither did I, and that was found out and I stepped up and took care of whatever needed to be taken care of afterwards, and the method used to clear is the method used to clear more than acre of land."

Landowner Sean Hitchcock. Coastal Comm'n webcast screen save

Later the proceeding, Commissioner Mirkarimi said:

I am not sold by the sort of fuzzy way this has sort of been illustrated to us, that a wink and a nod maybe by somebody in the City of Long Beach, maybe not, is what motivated the applicant for moving forward. If that is the case, sir [directing himself to Mr. Hitchcock], then you have been greatly disserviced then I think by the City of Long Beach, and that person should be exposed, quite frankly.

And if that's the case then I would seriously ratchet this up to the higher authorities for an investigation. This is the wrong way to go and this is what really taints confidence in government altogether...

Coastal Commissioner Ross Mirkarimi. Coastal Comm'n webcast screen save

For quick audio access to this exchange, click here.

The item opened with a presentation by Coastal Commission staff (for staff's materials, click here), followed by Attorney Tamar Stein for Mr. Hitchcock. Ms. Stein said evidence in the record doesn't support characterizing the land as wetlands, and regulatory officials had indicated that they don't support letting water collect above the landfill area.

Tamar Stein, Esq. attorney for landowner Sean Hitchcock.
Coastal Comm'n webcast screen save

Mr. Homrighausen disputed characterization of the property as wetlands.

Art Homrighausen, LSA Associates testifying for Mr. Hitchcock
Coastal Comm'n webcast screen save

The appellants then spoke. Tarin Olsen presented multiple photographs, including wildlife and before and after photographs. She was accompanied by biologist Brenda McMillan who stressed the relationship between the Loynes-South parcel and adjoining wetlands.

Appellant Tarin Olsen and biologist Brenda McMillan, Coastal Comm'n webcast screen save

Pat Towner, President of University Park Estates Homeowners Association, urged the Commission to restore, recontour and revegetate the parcel.

Appellant Pat Towner. Coastal Comm'n webcast screen save

In a voice at times approaching tears, 30-year neighboring resident Joan Hawley McGrath testified that she was awakened "by the crying of the birds. I went to my front window and saw the birds circling and heard the birds circling and crying and screaming...I saw the animals running. The little critters. The rabbits; the squirrels; it was a massacre..." She ended her testimony, a bit short of breath, urging the Commission to "do right by us."

Appellant Joan Hawley McGrath. Coastal Comm'n webcast screen save

Appellant Tom Marchese said he'd stood in front of the machinery and was told by workers on scene that what was taking place had been cleared with the City and if he [Marchese] didn't leave, they'd have him arrested.

Appellant Tom Marchese. Coastal Comm'n webcast screen save

Los Cerritos Wetlands Land Trust Exec. Dir. Elizabeth Lambe cited a report on the parcel by a UCLA professor, and added that the parcel meets the parameter for wetlands in the Coastal Act.

Los Cerritos Wetlands Land Trust Exec. Dir. Elizabeth Lambe.
Coastal Comm'n webcast screen save

Los Cerritos Wetlands Land Trust attorney Mel Nutter. Coastal Comm'n webcast screen save

Attorney Mel Nutter wrapped up testimony for the appellants.

Public testimony then followed...all of it in support of the appellants.

Photo credit: Gordana Kajer

Some Commissioners indicated that they found persuasive photographs taken by the appellants, showing bulldozers and uprooted trees, which contrasted with a description by representative of the landowner of the action as weed abatement. (One Commissioner called the "weed abatement" description an insult to the Commission). (Right: March 2009 LBReport.com photo)

Following the hearing, the Los Cerritos Wetlands Land Trust said in a mass emailing:

Three cheers to everyone who took a day off work to attend the hearing, to all those who testified so effectively, to our attorney Mel Nutter for making such a great presentation on our behalf, and to our esteemed biological consultant, Travis Longcore, whose thorough research and sound recommendations helped get us the outcome we were hoping for.

Follow LBReport.com w/

Twitter

RSS

Facebook