1 Diane Farley 1330 Ocean Boulevard Shell Beach, CA March 23, 2015 City of Pismo Beach 760 Mattie Road Pismo Beach, CA Re: Public Hearing; Chapman Estate Dear Council Members and Commissioners: I write this letter in an effort to extend to you what I believe to be the Shell Beach neighborhood efforts to find a compromise regarding the utilization of the Chapman Estate with minimal disturbance to the surrounding neighborhood. We do so by taking a different path than the one you are taking. I also believe you have lost all sense of objectivity dealing with this matter. You rushed into transferring title to this property to the City without considering the ramifications, including the financial liability to the City s residents. You have exposed the City and its residents to liability for upkeep, maintenance, insurance, and City staff time and, at the same time, lost property tax revenues. As evidenced by the very fact we are here today to modify the CUP, it is clear that the City has no plan and is barreling blindly forward without any plan in the hopes that it can implement modifications and conditions without resistance from the community. The City is attempting to convince you and its citizens that you must approve additional events and modifications to the current CUP events that will neither benefit the City nor its residents but that will impose additional expenses - and you must do so now. A perfect example of this is the flyer that the City mailed out on March 17, As one astute interested party put it, this flyer was like a shot of Valium the City s intent was to lull the property owners into believing that the requested modifications are not important and that there is no need to be interested in the upcoming hearing. Responses to the alleged frequently asked questions addressed the conditions of the current CUP, not the proposed modifications. For example, in response to the question if weddings or concerts are allowed, the City answers No. The more relevant questions would be Will weddings be allowed and How many events will be held at the property?
2 In reality, you have placed yourselves in the middle of a legal fiction. We know you are in a serious conflict of interest and you know that as well. In BreakZone Billiards v. City of Torrance [81 Cal.App. 4 th 1205, 1234 (2000)], the Court noted that the basis for challenging fairness and impartiality of decision makers in quasi-judicial proceedings relates to having strong personal opinions or loyalties relating to the parties in the hearing or merits of the decision. The contention that a fair hearing requires a neutral unbiased decision maker is a fundamental component of fair adjudication and the principle that no person can be a judge in his own case, is a fundamental tenet of natural law. We are here today for the purpose of considering modification to the CUP to permit a 100% increase to the number of approved participants of the CASPLO event. This increase is requested by the event sponsor for the sole purpose of allowing CAPSLO to increase its revenue. When CAPSLO held its 2014 event, it violated at least one condition of the CUP. In addition, it was not able to control traffic. No punitive action was taken, Instead, you are now being asked by that very entity that violated the CUP to reward it by approving an increase in the number of approved participants. My first question to you is What has changed between the time you approved 300 participants to now, other than CAPSLO s wishes? You approved the current number of 300 after being told that the prior numbers, including vendors, were 450. Now you are being told that there were really 600 attendees, including vendors and musicians, based on the fact that 437 tickets were sold. The only alleged fact we have been given, without any supporting evidence, is that CAPSLO sold 437 tickets last year. Do we actually know how many people attended? Do we have any idea as to how CAPLSO, or anyone else, will determine many people are on the Estate grounds? A local government s primary function is to provide services to its residents. A local government s purpose can never be as a participant in the private sector for purposes of generating revenue or to compete with local private business. A local government should never be in competition with private enterprise. Likewise, local government should not compromise its responsibilities by participating in a business relationship with a non-public entity (the Chapman Trust), especially when that non-public entity can dictate to that government what it can and cannot do with the government s asset. While title to this property may be in the City s name, it is the Chapman Trust that is dictating the terms. Who really owns the property? Who should be liable for the related expenses? Why is this obvious conflict of interest so significant in this case? Notwithstanding the fact that the City has discretion to, and did, grant itself the 2
3 CUP, the City oversees its own CUP, and the City has discretion to dole out any punishment related to violations of the CUP, the reason is simple. You are considering putting an event center, which is a commercial venture, in the middle of a residential area. In order to accomplish that, you must make a finding that the use you are being asked to approve is compatible with a residential life style. You are also being asked to determine how this event center can generate revenue for the City. In order to generate revenue for an event center, you must, by simple definition, compete with private enterprise. Abuse of discretion is present when you decide your own fate. The City allocated tens of thousands of dollars in January 2014, over fourteen months ago, to come up with a plan. There is still no plan. The very fact that the City has been in talks with Mr. Chapman and or his Estate since 2010 is clear and convincing proof that there are serious issues related to this project, including but not limited to the amount of revenue required to maintain the property, the amount of revenue required to make necessary repairs now and in the future and the amount of revenue that can be generated. How can you expect anyone to blindly support a project without that project having a solid business plan? As to the offered Staff Report and proposed amendments: 1.The Staff Report, at page 1, notes, For the CAPSLO Epicurean Event to proceed with its historic number of attendees, the Planning Commission must approve modifications to the CUP to provide for a 600 person attendance cap. For the Opera by the Sea Event August 16, 2015 event (sic), an extension of the life of the CUP past June 24, 2015 is required. As offered above, the modification regarding the number of attendees is requested for the benefit of CAPSLO only, and not the City. There has been no evidence presented to support this request, other than numbers tossed out by various CAPSLO representatives, numbers that have changed over the course of this debate. The more troubling request is the extension of the life of the CUP as that issue was NOT included in the notice of this public hearing and, as such, cannot be a subject of this hearing. 2. The Staff Report, at page 2, notes: Staff emphasizes here that each of these events (annual Chapman fundraiser, annual June CAPSLO fundraiser, annual August SLO Opera Saturday Fundraiser, annual September San Luis Obispo Symphony fundraiser, up to three free Community Events, and up to six Gatherings) will be subject to any and all conditions of the CUP. Contrary to this 3
4 statement, page 7 of the Report states These Community Events are not subject to the parking requirements specified in Condition Page 3 of the Report indicates that special events of over 49 persons will be required to go through the Special Events process each year. Will all events of over 49 persons also be required to go through an annual process? If the answer is negative, why not? 4. The Report, on page 3, is inaccurate and misleading as follows: At the February 10, 2015 Planning Commission meeting the Planning Commission reviewed and arrived at consensus for each proposed modification. I attended this meeting. There was no consensus for each proposed modification. The Commissioners could not even agree as to which streets were the widest or the narrowest. In fact, they identified Boeker Street as being both one of the widest AND one of the narrowest streets. 5. Under Conditions of the CUP, at page 3, the Report states: Upon any sale, division or lease of real property, this permit shall be null and void. [Emphasis in original.] Conditional use permits run with the land not the applicant (Cohn v. County Board of Supervisors (1955) 135 Cal.App.2d 180). That is, where conditional use permits are concerned, all related property and personal rights are freely transferable, unless expressly prohibited by law (Anza Parking Corporation v. City of Burlinghame (1988) 195 Cal.App.3d 855). Inversely, a conditional use permit may not lawfully limit the permittee from transferring it with the land since such a condition is beyond the power of the zoning authority (Anza, supra.). As such, this Commission does not have the authority to approve this condition. The same paragraph states that this permit shall run with the real property or any portion thereof [Emphasis added]. In other words, by this language, the City could divide the Estate into any number of portions and each of those portions could hold events with various numbers of attendees. More troubling, is the fact that a City representative told me, when I questioned her about this language in an earlier version of the proposed amended CUP, that the City would not divide the property and that this language would be stricken from the second proposed amendment. When I asked her why the language was in there in the first place she responded that it was boilerplate language and that all other CUPs she had reviewed included those provisions. How many other boilerplate provisions are included in the second proposed amendment and how many of those provisions do not apply in this instance? Finally, why is there a reference to applicant and developer being bound by the conditions of the 4
5 CUP? We have been told that you (the City) were the applicant. How can a developer apply for a CUP on property supposedly owned by the City? 6. Contrary to the statement on page 4 that the generation of funds will support City efforts to maintain and manage the integrity of the Estate in a manner consistent with its Shell Beach neighborhood setting, turning the Estate into an event center is a direct affront to the current Shell Beach environment. 7. The Report, at page 7, misleads the reader into believing that the Commission, at its meting on February 10, 2015, reached a consensus on the expiration date of the CUP. Again, there was no consensus. While there was a discussion regarding extending it for 18 months, there was disagreement as to a December 24, 2016 expiration, as I recall, because the Commission did not want to burden the residents with a hearing on this issue during the holiday season. I can only surmise that this is the very reason why the date was chosen for the proposed second amendment. 8. As to Attendance Conditions on page 5 that vendors and staff will not park on the narrower streets, how will that be policed? 9. Page 6 states that the [shuttle] bus will not be parked out front [of the Chapman Estate?] except when delivering or picking up event attendees. However, that same page notes that The Shuttle bus will deliver and pick-up guests at Wawona or Esparto Streets. The delivery and pick up spots must be more clearly identified. Also, why is one of the narrower streets, as identified in this Report (Esparto) being considered? 10. During a prior meeting, it was suggested that tickets be picked up at the shuttle locations or printed online to avoid the need for and thus the back up at the ticket tables. Is that still in the plan? 11. How, as noted on page 6, can you section off three to five feet between the curb and cones [on Ocean Blvd] and still insure that Ocean Blvd vehicular access shall remain open to the public at all times, as noted on page 7? 12. Page 6 of the document identifies Shell Beach neighborhood yet fails to identity members of the neighboring community in which the Chapman Estate is located. At one meeting I attended, a City representative stated that the free community events were intended to be for the Shell Beach neighborhood. Has the City s position changed? Did the City intend that the Shell Beach neighborhood and the members of the neighboring community in which the Chapman Estate is located are one and the same? 5
6 13. Why are written assessments only solicited from event attendees (page 7) and not the Shell Beach neighborhood? Why are the assessments only available to the Commission if a CUP extension is requested? Will the written assessments be available to the public? Without assessments from the neighborhood, how can the Commission get a fair and balanced assessment of the event? 14. How many parking passes will be allowed for the one Community Event, other than the two events being allowed no more than 30 passes (page 7)? 15. As to Gatherings, page 8, Gatherings are defined as groups of 49 or fewer persons at one time on the Chapman estate grounds [Emphasis added.] Will the number of approved total participants exceed 49, with the admonition that no more than 49 people will be allowed on the grounds at one time? If so, this appears to be a creative way to circumvent the requirements of events with over 49 participants. 16. How can you, on one hand, admit that you need a Coastal Development Permit due to an intensification of use of the property yet insist at the same time that CEQA is not required? 17. Will the Coastal Development Permit be appealable to the Coastal Commission? 18. Once again, if the Strategic Master Plan will be underway in the summer of 2015 as stated on page 9, why the rush to get an amended CUP approved immediately? I am sure that the Master Plan, which hopefully includes financial documentation and assures that this commercial venture is a viable one without adversely impacting the Shell Beach neighborhood, will give direction and assist in the drafting of an amended CUP. 19. The statement on page 9 If the Estate grounds cannot be used in the manner intended in Clifford Chapman s Trust, the City will have to evaluate whether the Estate should be retained or sold is an especially telling one. Don t you think that this should have been evaluated BEFORE the City rushed into taking title of the Estate? Don t you think this should have been evaluated BEFORE the City spent precious City funds and manpower on a project that they do not even know will be viable let alone successful? The previous statement is also contradictory to the provision of the Trust that states The city shall retain the property in perpetuity and not sell or give away any portion thereof. This is another example of the Trust dictating what 6
7 the City can do with its (the City s) asset. If the Trust wanted to control the asset, why did it not wait to transfer title until it no longer wanted to control the property? The answer is clear. It no longer wanted to pay for the costs associated with the property. We want to support the Chapmen Estate but cannot do so without a plan. We have been told, but never provided with any supporting documentation, that there is an endowment to cover maintenance for the Estate. Once again, what is the rush? It appears that the only entity receiving any benefit from the City s asset is the Trust itself. It no longer has to pay taxes, it no longer has to pay for repairs and maintenance and it gets to dictate the terms of the City s use. There is something wrong with this picture. Respectfully submitted, Diane Farley 7