By Joe Taglieri
The Arcadia city attorney on Tuesday rebutted critics who denounced the City Council’s decisions to shelve a zoning code update and exclude the Highlands neighborhood from forthcoming historical preservation policies.
“I’d like to address some erroneous conclusions and opinions which I found in a newspaper article [May 15],” City Attorney Stephen Deitsch said at the request of Mayor Gary Kovacic. “In particular the article in my view incorrectly asserted … ‘Arcadia officials violated California’s open meetings law.’ … That simply is not true.”
Deitsch went on to contend that officials “even exceeded the requirements of the Brown Act, which is the open meetings law of California, and the city, in my view at least, acted transparently under the circumstances.”
On May 5 the council convened in a meeting that was closed to the public, ostensibly to discuss its positioning regarding a lawsuit filed against the city by Highlands residents in an attempt to block two council-approved residential construction projects that will replace mid-20th century homes with significantly larger houses. This closed session was continued from April 7, when it was publicly posted on the council’s meeting agenda and included a public comments segment before council members met privately.
However, after Deitsch’s May 5 public announcement which detailed the council’s 3-2 votes on postponing the zoning revamp and corresponding residents committee as well as excluding the Highlands from an in-the-works historical preservation ordinance until the litigation finishes, a number of critics responded with charges of violating government transparency laws.
He provided several examples of public notices and announcements of the April 7 closed session’s continuance to May 5.
“Ample notice was provided and more notice than the Ralph M. Brown Act requires,” Deitsch said.
David Arvizu, who heads the group of residents called Save the Arcadia Highlands that is suing the council, outlined opposition to the back-room maneuvering.
“The policy decisions made by City Council did not qualify as subject matter which can be discussed in a closed session meeting,” Arvizu wrote in a letter to Deitsch and council members dated May 18. “There was no opportunity for public comment regarding these items. Resident April Verlato brought this to the attention of Attorney Stephen Deitsch on May 5 and was told that public comment had been closed on April 7 and there was not an opportunity on May 5 to have any public comment.”
Arvisu’s letter also contends that zoning update and historical preservation action are not related to his lawsuit, and therefore shouldn’t have been used as an excuse to decide on these issues in private.
He further pointed out, “The discussion of zoning updates, historical survey or Neighborhoods Impact Committee were never identified in any notice of closed session from April 2015.”
Arvizu requested that the council set aside their May 5 decisions and move forward with the zoning revamp, a historical survey of the entire city and hold meetings of the Neighborhood Impacts Committee.
“Or … make the recordings of the closed session meeting of May 5 available to the public,” Arvizu wrote, also noting his possible intentions of filing a complaint with the District Attorney or a lawsuit based on alleged violations of California law governing recordings of closed-session activity.
“The city hopes not to have to expend taxpayer funds to defend a lawsuit the city believes has no merit,” Deitsch said. “If necessary as city attorney I am quite prepared to discuss this matter with the Los Angeles County District Attorney.”
Deitsch also responded to criticisms from government transparency activists featured in a recent press report.
“You can’t make decisions that are tangential to the lawsuit because you happen to be in litigation, and you cannot do an end-run around the public’s right to comment or be involved in policy changes just because they relate to the litigation,” attorney Kelly Aviles said as quoted in the Pasadena Star-News.
“The problem you have is that they effectively made three important policy decisions that affect the community, and yet the community was excluded from ever having an opportunity to address these officials before the decision was made,” open-government advocate Gil Aguirre told the newspaper.
Deitsch claimed the council’s closed-session actions weren’t formal policy mandates, but rather “procedural decisions” providing direction for the city’s near-term legislative agenda.
“The most significant error in the article, in my opinion, was the portrayal of the city council’s actions as the adoption of ‘policies,'” Deitsch said.
“The city council merely made procedural decisions concerning the timing of bringing forward to the city council future policy decisions concerning zoning and historical preservation, all in light of the pending litigation,” Deitsch said.
Jessica Levinson, a governance attorney and professor at Loyola University Law School, took issue with Deitsch’s policy versus procedural distinction.
“That’s not the distinction that we make to determine a Brown Act exception,” she said in an interview.
“‘In light of pending litigation’ is the hook as to why they should go into closed session, but it strikes me that the decisions they made, whether structural or procedural seem to be attenuated enough from the lawsuit that they could be discussed in a regular open session,” Levinson said. “The purpose [of exceptions] is to allow for a government agency to make litigation decisions in private so that they don’t have to tip their hand to other side, so that all of the normal evidentiary confidentialities can be maintained.”
The Highlands lawsuit was filed in March, and both sides have pledged to see it through to trial indicating little chance of an out-of-court settlement.