VOL.24 NO. 2 Jan. 27 - Feb. 9, 2000

Appeals Court Says Hold the Tuna!

By Michele Johnson

The California Court of Appeal ruled on January 5 that the Coastal Commission erred in approving permits to build on properties owned by Marian Olson and Gerald and Shirley Sayles in Tuna Canyon's "Significant Watershed." The ruling does not affect the permit of Mark Jason, who stands alone, still intent on building the first breakthrough home of a potential 21 homes in that fragile area.

Specifically the Appeals Court found, "The Commission violated CEQA [California Environmental Quality Act] by failing to respond in writing to written comments on each application and by failing to consider alternatives in its report on each application." Frank Angel, the lawyer representing the appellants TASC (Topanga Association For a Scenic Community) and TUNA (Tuna United Neighborhood Association), said he will return to the lower court that originally upheld the permits and "request them to issue a writ of mandate that the permits be voided." According to Angel, this is just a formality. "The trial court must order Coastal to set aside approvals of permit and reconsider the case in light of the Court of Appeals opinion." Angel says the owners have 14 days to appeal the decision. They can ask to go back to the first court of appeal or bring the case to the California Supreme Court.


Although not every issue raised by TUNA and TASC won the day, two key points struck home with the appellate court. First, the court agreed with TASC and TUNA that the Coastal Commission had not given the requisite written response to their public comments. TASC and TUNA had raised the concern that the new paved roads (substantially wider than the existing dirt roads) and a new extension to the dirt roads proposed by Olson would cause an unacceptable loss of animal habitat. The Commission had failed to respond. The Commission also failed to address the concern that the discharge of chemically treated swimming pool water would harm the watershed. According to Angel, the septic "would not have the capacity to absorb gray water, so it would simply be dumped into the drainage area." And, he went on, "The Coastal Act specifically required protection of biological streams."

The court agreed, ruling, "The staff reports issued on the Olson and Sayles projects do not ensure that the environmental consequences raised by appellants were taken into account." Attorney Angel says the Commission could come up with several mitigations to the concerns raised. They could ask that the homes be built without swimming pools, for instance, or demand that the access road be made narrower.

The court also found that the Commission did not look into "feasible alternatives" to the permits as is required by CEQA, including the alternative of issuing no permit at all. They could also consider a payoff to owners, or having them participate in a transfer development program where they basically swap land and build in another, less fragile area.


It was not an unqualified win for TASC and TUNA, but a mixed decision, affirmed in part and reversed in part. For example, the court did not agree with the appellants that the Coastal Commission did not properly consider the cumulative impacts of more than one home being built in the area on drainage, erosion, and wildlife habitat. But the bottom line is that it's back to the drawing board for owners and the Coastal Commission. If the owners want their permits they need to go back to Coastal, and the Commission must comply with the court's ruling.


Of course, leaders of TASC and TUNA are delighted with the ruling. Kay Austen of TUNA said, "It couldn't have come at a better time. I think we're going to save this watershed." Faced with months of delays or possible denial of their permits, she is hopeful that the owners may consider anew the alternative of selling their land to the Santa Monica Mountains Conservancy. And if Proposition 12 passes on March 7, the Conservancy will be flush.

Proposition 12 would provide $2.1 billion in bond money to acquire, preserve, protect and restore parkland. And for a change, a large chunk of that money--60%--is slated to be spent in Southern California, with $35 million going to the Conservancy. Of course the inner cities are understandably clamoring for parks as well, but for once there may be enough money to go around. Austen suggests, "All those who care about preserving the environment should start a phone tree with friends and relatives," encouraging everyone to vote for the measure.

Topanga's first priority for new parkland, according to the Conservancy, is the lower Topanga watershed, now owned by the Los Angeles Athletic Club. But TASC's Roger Pugliese says that huge acreage backs up to Tuna Canyon, making acquisition of those parcels even more important.


Though the ruling may change attitudes, at a recent meeting of the Conservancy several owners banded together stating their intent not to sell to that agency. And even if Olson, the Sayles, and the owners of the other parcels agreed to sell to the Conservancy, Mark Jason may continue to hold out.

After all, he's won his battles all the way to the California Supreme Court. This recent decision will most likely not affect his permit. "I've done most of the road asphalt; put in the first culvert," said Jason. He says he will receive grading permits for his pad next week and hopes to build by spring. Jason recently came back from yet another foray with the Coastal Commission. Over TASC and TUNA's objections, Jason says the Commission approved minor changes that he claims make his project "less invasive."

"I explained to the Commission that this is a difference between neighbors," said Jason.

When asked if he will live in the house once its built, he replied, "I may or may not. I'm not crazy about the neighbors up there, honestly." Would he ever be willing to sell to the Conservancy? "I've never turned down a conversation with anyone," he answered. But his feelings run deep and bitter against that agency. He says that in 1986 he went before the Coastal Commission "after months of preparing." They suggested he talk to the Conservancy about buying the land. He did, but was angered when the Conservancy offered him only $20,000 for his land, less than he had paid for it. "I don't think they negotiate in good faith. I have a road. I have my grading in. I want to build my house. I feel strongly about my rights as a human being and about property rights."

Says Roger Pugliese of Mark Jason's troubles, "I feel sorry for the guy." Pugliese believes the fair thing for all involved is a buyout by the Conservancy. As for the decision? "I'm very, very pleased with the way things are developing, and maybe we have a chance to save these pristine acres in Tuna Canyon.

"The lesson I'm learning is that you never give up. There's always a chance for things to turn in a different direction from moment to moment. Once again, our beloved Topanga community may benefit from this. Stay tuned."]


Defense Loses Motion at Hancock Hearing

By Michele Johnson

James Hancock, Sr., accused of possession of methamphetamines for sale and possession of a weapon and ammunition by a felon, appeared at a hearing held on January 13 at Malibu Superior Court. A tall slim man with ramrod posture and a flowing white beard, Hancock, age 65, arrived with his attorney, public defender Richard Hertzog.

Hertzog had filed two motions. The first was a motion to quash the search warrant used to justify a raid on Hancock's home on September 30, 1999. According to the charging documents, that raid turned up 10 grams of meth--the equivalent of 500 doses--a scale, an antique weapon, some ammunition and $2,500 in small bills.

But because Hertzog had received an opposition to the motion filed by prosecutor Michael Wilson immediately before court convened at 9:00 a.m., he requested the hearing be continued to a future date. The judge, stating the filing of opposition was standard, denied Hertzog's request, but continued the case for several hours to give the defense time to martial its arguments.

When the court reconvened in the afternoon, Judge James Albracht denied the motion to quash the search warrant, finding the warrant good.

The second motion filed by the defense--to disclose the informant(s) who had led the police to Hancock--was also denied by Judge Albracht. As Deputy District Attorney Martin Herscowitz later explained, "The burden is on the defense to show why an informant must be revealed.

"It's a recognized privilege for police to work with informants," he went on. But, he temporized, "You must balance that against the right of a defendant for a fair trial." He said the rules to decide this point are firmly established. The informant does not have to be disclosed if he or she would have no information that would go to the innocence of the defendant. If the informant only has information supporting guilt, his name does not have to be revealed. The defense was unable to demonstrate to the judge's satisfaction that the informant in this case could add any support to the defense's case.

Robert Carlat, a friend of a Topanga couple, who went to the police to complain about Hancock, insists he couldn't have been the informant who led to the raid on Hancock's home since he had no intimate knowledge of a crime. Tui Wright, the Narcotics detective in charge of the case, would only say Carlat was one of several who called to complain that Hancock was selling drugs. He also pointed out that the standards for being granted a search warrant are high, and insisted those standards had been met.

The date for James Hancock's trial was set for January 25 at Malibu Superior Court.


A Conversation with Sheila Kuehl 

By Tony Morris

As part of our continuing coverage of Campaign 2000, the Messenger conducted a personal interview with Assemblywoman Sheila Kuehl, who is pitted in a tough Democratic primary against Wally Knox for Tom Hayden's Senate seat.

With Tom Hayden "termed out" as State Senator for the 23rd Senatorial District, the Democratic primary set for March 7 is a key contest. Barred by term limits from running for the Assembly, Kuehl and Knox are in a critical primary contest for the 23rd Senatorial District which includes 500,000 registered voters. Kuehl needs to raise more than a million dollars by March 7. Even with the endorsement of Governor Gray Davis, Senator Barbara Boxer and a large majority of local officials in the District, Kuehl's opposition has been able to raise more funds as of this date.

Kuehl's primary campaign contest for the state's 23rd Senatorial District is the most important race of her career. Representing the 41st Assembly District, Kuehl was the first woman in California history to be named Speaker Pro Tempore of the Assembly and is chair of the Assembly Judiciary Committee. A former law professor at Loyola, UCLA and USC Law schools , Kuehl co-founded the California Women's Law Center.

Now in her third legislative term in the Assembly, Kuehl authored 53 bills which have been signed into law. AB 537, authored by Kuehl, was passed during the current Assembly session and prohibits discrimination based on "race, color, religion, ancestry, national origin, disability, gender, or sexual orientation" at all institutions that receive state funding. Other Kuehl authored bills overhaul California's child support services system, establish nurse/patient ratios in all hospitals, make HMO's legally accountable for denying treatment and safeguard the environment.

When asked what distinguishes her from her opponent, Kuehl cites such achievements as the Community Center in the West Valley, $35 million for the Santa Monica Mountains and $25 million to clean up Santa Monica Bay. Kuehl sees her opponent as a "single issue legislator" and "not part of the larger issues" facing the state.


Kuehl views work on the environment as a priority and says that she has found working on such issues as clean water and storm water run-off as critical problems facing the state.

She supports the work of Topangans who have made a major commitment to researching and drafting a Floodway Plan. Topanga activist Rosi Dagit cites Kuehl's help preparing grants and dealing with Caltrans management regarding proper road shoulder clearance and slope failure in Topanga which have a major impact on Santa Monica Bay.

Kuehl is a member of the PCH (Pacific Coast Highway) Task Force, which includes city, county, state agencies, homeowner associations from Pacific Palisades, Santa Monica and Malibu, Chambers of Commerce, and utilities working on the perennial problems facing PCH. PCH Task Force members meet monthly to work on traffic, safety, aesthetics and geology issues relating to PCH. Kuehl says the problems of dealing with a major roadway located above an active fault will require the cooperation of municipal, county, state and federal agencies. Topanga's Dagit observes that Kuehl "is masterful in taking a room full of people with opposing positions and reducing the tension so that they can listen to one another and produce results."


Looking to the future, Kuehl views the interplay of water and growth as critical issues affecting the state's future. Viewing "smart growth" as a requirement for California, Kuehl works on the Water Committee, examining growth on the fringe areas of major cities which "must be carefully done so as not to impact the city."

AB 1219, authored by Kuehl, provides that a city or county will not approve a final map for a development project of 200 or more residential units "unless it is determined that the existing water supplies, and any new water supplies currently being developed will be sufficient to satisfy existing agricultural, residential and business needs during a multiyear drought in addition to the needs of the development project." The bill will be heard in the Assembly appropriations committee on January 19.


In addition to a leadership role in recently passed HMO legislation providing more effective patients' rights, Kuehl says that major issues covering patients rights in hospitals and nursing homes need to be addressed. Of particular concern to Kuehl is legislation which would assure members of HMOs the right to a court hearing in disputes with their providers. AB 1751, The Patients' Right To Trial Act, proposed by Kuehl, would end the practice of HMOs which requires new patients to agree to arbitration instead of a court hearing.


As for her early endorsement by Governor Gray Davis in the Democratic primary, Kuehl says that her working relationship with the Governor goes back to the time that Davis was State Controller. This January Kuehl expects to introduce legislation which would require banks to receive written permission from their customers before disclosing private bank information to the bank's affiliates or to third parties. If the bill is passed it would provide California with consumer privacy protection more effective than federal law now in effect.

Emily Gold, campaign manager for Kuehl, said, "Though she has the endorsements of Governor Davis, Senator Barbara Boxer and a large majority of local officials in the District, Sheila's opposition has been able to raise more funds as of this date and promises to wage a major battle in his attempt to win the Democratic candidacy in the March 7 primary. The campaign needs your help to win this crucial election. Join our wonderful group of volunteers to offer some of your precious time between now and March 7, either on an occasional or regular basis. We need people to make phone calls, help with mailings and office work, and assist with other activities."

Those interested can call the Kuehl For Senate Campaign office at (310) 479-9044 for more information.



Close Shave for Teens

By Tony Morris

Once again Fernwood Pacific Drive was the scene of an automobile accident involving poor road conditions and an inexperienced driver. At 11:15 p.m. on Saturday night, January 15, residents in the 600 block of Fernwood Pacific heard the all too familiar sound of a vehicle going off the road and down the hillside. Los Angeles County Fire Department's Station 69 paramedics were at the accident site within minutes. The model 2000 Explorer Sport, driven by an 18-year-old Santa Monica College student, turned over and rolled 75 feet down the hillside, coming to rest on its roof. The driver and the vehicle's three other passengers--16- and 17-year-old students--received minor bruises. The accident could have resulted in major injury had the car's occupants not been wearing seat belts.

The Los Angeles County Sheriff's Department and the California Highway Patrol responded to the accident. The Explorer's driver told authorities that as his vehicle started to skid on wet pavement he applied the brakes, causing the vehicle to spin out of control, crash through an eight-foot wooden fence and roll down the hillside.

Residents living on Fernwood Pacific Drive say that drivers in their neighborhood routinely ignore posted speed signs, with some vehicles traveling at speeds up to 40 mph. While speed does not appear to be the cause of this recent accident, the inability of an inexperienced driver to handle dangerous road conditions with appropriate driving skills is a factor which has contributed to numerous accidents in the area.


Overview of the Overlook

By Tony Morris

In the 1920s Topanga Summit was a popular scenic overlook, complete with a viewing stand and restaurant. During the intervening decades the unpaved overlook on Topanga Canyon Boulevard has attracted Angelenos and tourists with its panoramic view of the San Fernando Valley. The overlook has always been a nighttime attraction, but according to the Los Angeles County Sheriff's department it has also been the scene of criminal activity, including drug dealing and assaults.

Topanga Summit is currently being transformed through the efforts of the Santa Monica Mountains Conservancy (SMMC) which is building a new park on the site. With $350,000 in a Transportation Enhancement Activities grant by Caltrans using federal funding, the SMMC expects to complete construction of the two-acre park by early March of this year. The Top of Topanga Scenic Overlook will be open from sunrise to 9 p.m. with 16 parking spaces, handicapped accessible restrooms and picnic benches. Park facilities were designed by V2C Group Inc., with construction by G2000 of Agoura Hills.

According to Walt Young of the Mountain Recreation and Conservation Authority MRCA rangers will patrol the park nightly. Paul Edelman of the SMMC said that a final decision on the installation of security gates at the park entrance will be made at a later date. Dedication ceremonies at the park are scheduled for early March.