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Lawsuit filed against ordinance, council waits on responding to referendum; commission kicks off development of commercial design guidelines


After a lawsuit was filed this week looking to invalidate a recently approved ordinance, City Council decided to wait on taking action in response to a referendum against the same ordinance until they can discuss the litigation in closed session. 

On Tuesday (Nov. 15), councilmembers voted 5-0 to receive and file a referendum against the city ordinance related to building height, mass, bulk and parking within commercial districts.

Initially, the council was scheduled to consider options and take action, either entirely repeal the ordinance or submit the ordinance to the voters, but a lawsuit filed on Monday changed the recommended course of action.

Mayor Pro Tem Bob Whalen emphasized he didn’t want to take action on Tuesday without more information. 

“We ought to go into closed session and learn about this litigation and see what our options are and what their concerns are,” Whalen said, referring to city staff’s updated recommendation. “Then we’ll make a more informed decision.”

The city attorney will likely have some communication with the plaintiff’s counsel before the closed session to provide clarification and more information, he noted. 

On September 26, the city clerk received signatures for the referendum petition against the ordinance. The Orange County Registrar of Voters verified a total of 2,613 valid signatures on the referendum petition. 

A lawsuit was filed on Monday, after the staff report was written and the agenda was posted, by the Laguna Beach Company, explained City Manager Shohreh Dupuis. Based on that, they changed the staff recommendation to just to receive and file the referendum.

On Tuesday, staff recommended holding a council closed session meeting in December to discuss the litigation with the city attorney. The item will return at the January 10, 2023 meeting and council can decide how to proceed with the referendum.

“I think it’s really important that we discuss with you the options that the city has in closed session regarding the litigation before you take action and determine what you want to do with the ordinance,” Dupuis said.

City Attorney Phil Kohn didn’t provide a full analysis of the litigation since he had just received a courtesy copy of the lawsuit the day before.

Essentially, the Laguna Beach Company asserted a number of grounds on which they claim that the ordinance violates either provisions of state law or the California constitution. They are seeking a determination by the court that the ordinance be invalidated, Kohn explained. 

An email from an attorney representing the company suggested that the lawsuit would be withdrawn if council opted to rescind the ordinance due to the referendum.

“The point being made was that in the event that city council determines to repeal the ordinance in response to the referendum petition, then it is the intention of the Laguna Beach Company to dismiss the litigation,” Kohn explained. 

Winston Stromberg, an attorney representing Laguna Beach Company, confirmed that the litigation would be dismissed if the ordinance was repealed. 

Kohn concurred with Dupuis’ recommendation to analyze the claims made in the lawsuit and be informed on their course of action during an upcoming closed session. 

Lawsuit filed against ordinance council waits downtown

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Photo by Mary Hurlbut

A lawsuit and referendum were filed recently against the city’s ordinance related to building height, mass and bulk

The ordinance was adopted by council on August 16. During a special meeting on July 26, a split 3-2 council approved the introduction and first reading of the ordinance, action on which was initially postponed from the July 12 meeting. During the special meeting vote, councilmembers Toni Iseman and George Weiss dissented. 

The item stemmed from proposed ballot initiatives tackling the same issues, both of which were strongly defeated in the November 8 election. 

The Planning Commission unanimously voted on June 15 to recommend that the City Council adopt the ordinance as staff recommended with some suggested modifications. 

This week’s discussion led to some arguing between Iseman and Councilmember Peter Blake on the issue. 

Iseman asked why it was so problematic that it brought about both a referendum and lawsuit.

“You robbed him of his property rights of course he’s going to sue. Is it that hard for you to understand that?” Blake responded.

Weiss speculated that it’s “pretty clear” that the Laguna Beach Company opposed the 500-foot limitation on 15,000 square feet within Downtown. That would impact some of their properties, he noted. 

Although Blake disagreed.

“Let’s face it, these negotiations took place as some way of getting you guys to take Q off the ballot. It failed. You gave no concessions. We, all of a sudden, gave more government regulation and the people said they didn’t want any more government regulations, both to Q and to this initiative that got all the signatures. This is the public telling us that they don’t want our government purview over more of the land here,” Blake said. 

Kohn deferred to the company’s attorney, while Stromberg said he couldn’t comment on the referendum, but noted several issues raised in the petition they filed. 

Stromberg claimed that the ordinance violated various planning and zoning laws. The assertions in the lawsuit are nearly identical to a letter they submitted to council prior to adopting the ordinance, he pointed out.

Answering the question from Iseman, City Clerk Ann Marie McKay clarified that there’s no context provided with the reason for the referendum. 

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“A referendum is simply a petition of signatures against an ordinance, there’s no substance as far as another ordinance or initiative. It’s simply enough signatures to force the council to make a decision to either repeal the ordinance or to submit it to the voters,” McKay explained. 

“So it took away the council’s ability to vote. If we want it, we have to go to the public,” Iseman said. 

Answering another question from Iseman about why they created the ordinance in the first place, Mayor Sue Kempf said it was in response to Measure Q.

“I think one of the hot buttons for the community is mass, height and scale,” Kempf said, but the rest of Measure Q didn’t resonate with the voters. 

What’s important to a lot of people is that they can control the pedestrian scale of the town the way they like it, she said. 

That was the genesis of the ordinance and what most people were concerned about, Kempf added, although she wasn’t personally concerned about it because she felt the current city regulations handled it quite well. But it was put into place as an added layer of protection, she said.

As part of the process, they also directed staff to work on commercial design guidelines.

“To give further embellishment and more direction for anybody who wants to do any development work in town,” Kempf said. 

Lawsuit filed against ordinance council waits design guidelines

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Photo by Mary Hurlbut

The Planning Commission this week kicked off the process to develop commercial design guidelines for the city

Later in the week, the Planning Commission kicked off the process to develop those guidelines. 

On Wednesday (Nov. 16), Community Development Director Marc Wiener confirmed that the referendum and lawsuit against the ordinance won’t impact their work on the guidelines. 

“It’s still pending as to what’s going to happen with this ordinance but that does not hold up the commercial design guidelines, we can still move forward with that,” Wiener said.

There might be some overlap with the ordinance, but it’s not “tangled up” with it, he added.

Wiener also noted that while someone could file a lawsuit or get a referendum against the design guidelines, once they are approved, it’s unlikely to happen. 

“The ordinance is very prescriptive – it says how big a lot can be and how long a building length can be – the guidelines are intended to be a little more flexible and really just help guide good design in terms of how the site’s developed – public way improvements, still breaking up the massing, but through materials or building forms – so I think there’s a lot of opportunity and need to work on this,” Wiener said. 

Council directed staff to work with the Planning Commission on developing commercial design guidelines that would supplement the ordinance. The city has a lot of regulations but there is a bit of a gap for the commercial districts outside of the Downtown, Wiener said.

The state is also passing a number of laws that essentially take away the city’s ability to apply subjective design standards to housing projects, Wiener said, so they can also use this as an opportunity to develop some objective criteria for the commercial districts. 

“The goal is to help ensure better commercial design, should we get more commercial projects,” Wiener said. 

It will be a working document that can be quickly updated, Wiener explained. It will have some teeth to it. This is also a good starting point to update the code, he added.

A lot of the guidelines are outdated, in terms of materials, lighting and defining village character, for example, commented Commission Chair Jorg Dubin. A lot of interesting stuff has happened in the last 10 to 15 years, he noted.

Dubin noted that “village character” is subjective and is up to individual interpretation. It’s an over-used term in all of the city’s guidelines, Dubin said. There might be a better way of describing it or removing it altogether, he said. 

“I feel like we look through the prism of a bygone era,” Dubin said. “I hate to see us put restrictions on things based on…what it was in the past.”

“(They should) try to see things through a new lens of what’s happening now and what potentially will happen in the future,” he added. 

While materials have changed over time, the idea for mass and scale hasn’t, noted Commission Chair Pro Tem Ken Sadler, so there could be some clear guidance on that. 

This will help articulate what the city is looking for in the current standards and fill in the gaps, Wiener said. That opened a wider discussion about what the community is looking for in general.

“What’s really lacking in these design guidelines is a vision about the city as a whole,” said Commissioner Susan McLintock Whitin. 

There’s a more concrete identity about the Downtown regarding the idea of village character, but otherwise, there isn’t really any clear vision for the town, she noted. 

“Is the architecture eclectic? Is it about architecture? Is it about transportation? Is it about the environment? What are we now? Do we have any sense of identity that’s emerging?” Whitin asked.

She feels there is an “emerging identity,” with a renewed focus on environment and “looking in the rearview mirror” with an energetic focus on the future, noting a newly elected 25-year-old city councilmember, Alex Rounaghi. It should be a place for people to live and work, a place where businesses want to come, where they have housing and transportation options, Whitin said. There are a lot of benefits to attract people to the city, she added. 

“It’s really invigorating, the whole scene here in the city,” Whitin said. “We’re just on the cusp of going to something, I think, exciting.”

It’s not about architecture, it’s about people and the way the buildings serve people, she said. 

“The big picture is creating a narrative about the place,” Whitin said.

Wednesday’s item also formed a subcommittee to work on the guidelines. 

The subcommittee could research other city’s guidelines, Wiener suggested. They don’t have to “reinvent the wheel,” he said. The subcommittee would also work on policies specific to Laguna Beach and report back to the full commission for feedback.

There was some concern that the work of the subcommittee and the overall process could balloon into a much larger project. Both staff and commissioners agreed it should be reasonable and not too ambitious, although it might lead to other planned work to modernize city code. 

Ultimately, Whitin and Dubin were selected for the subcommittee. 

Wiener and commissioners also emphasized getting community input during the process, including from local industry experts.

Dubin suggested a notice be mailed out to the wider community in order to be more inclusive in terms of public engagement and ensuring a wide variety of people contribute ideas.

Wiener agreed the city could do marketing to get more people excited about participating.

It will take approximately six to nine months to get through this, Wiener estimated.


Sara Hall covers City Hall and is a regular contributor to Stu News Laguna.

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