Last week, Residocracy co-founder and City Council candidate Armen Melkonians finally released a letter with a legal analysis claiming to debunk the position of Measure LV opponents that the anti-development measure would require a city-wide vote before someone could rebuild a building higher than 32 feet after a natural disaster. The letter, written by Measure LV’s author, Beverly Grossman Palmer of Strumwasser and Woocher LLP, states strongly that any interpretation of the measure that states that LV would require such a vote is wrong. Later in the week, Santa Monica Forward released a legal analysis by local Santa Monica lawyer Gary Clouse that agreed with the city’s initial analysis of LV that the measure would indeed require a vote before rebuilding and fixing damaged buildings over 32 feet.
For anyone interested, we’ve saved both letters to scribd. You can read the Palmer letter here and the Clouse letter here.
Strumwasser and Woocher LLP is the same firm that Melkonians hired to draft the LV Initiative, so it would have been a bit of a shock if they admitted that the initiative did have a writing flaw. Nevertheless, Palmer defends the measure and mocks the very notion that the initiative would require a vote before a rebuild.
“Any other interpretation of the interplay between the LUVE Initiative and the existing municipal code provisions regarding reconstruction of damaged buildings would run afoul of a number of cannons of statutory interpretation. Voter initiatives are interpreted to apply to the will of the voters. There is no indication in the LUVE Initiative that it is intended to address or limit in any way the ability to reconstruct after a disaster.”
Palmer goes on to state that if LV did force city-wide elections on every damaged building more than 32′, it would be an “absurd result.”
That phrase was seized on by Clouse who responded to Palmer’s letter with an independent legal analysis for Santa Monica Forward. Clouse is a noted land use attorney with three decades of experience in Greater Los Angeles including serving as lead counsel in the case Coalition Advocating Legal Housing Options v. City of Santa Monica, 88 Cal.App 4th 451 (2001).
Clouse takes apart Palmer’s letter, including some high level trolling of Palmer’s analysis.
“As noted above, this rule is only triggered when the law in question is ambiguous. And Measure LV is not ambiguous with respect to the reconstruction and repair of casualty loss buildings. Nevertheless, it would indeed be an absurd result to require a MDRP and voter approval as prerequisites before repairing or rebuilding a building that falls victim to a casualty loss…But this is precisely what Measure LV’s plain meaning requires.
And moreover, this absurd result is compounded by Measure LV’s lack of other obvious exemptions that should have been included, such as exemptions for schools, non-profit buildings, houses of worship, libraries, hospitals, houses of worship, libraries, hospitals, police and fire stations and other essential buildings. Whether built as replacement buildings or new construction, such buildings should have been exempted in Measure LV to avoid such absurd results.”
Including such an exemption would have been easy, opponents of LV claim. All it would have taken was merely inserting a line into the measure that states, that exempts permits “to rebuild as a result of destruction by fire, earthquake or other natural disasters.” In fact, such a line appears in the anti-development initiative gaining ground in Los Angeles, the Neighborhood Integrity Initiative. NII contains an express exception for a building permit required “to rebuild as a result of destruction by fire, earthquake or other natural disasters.” (NII, Section 4.5.2)
To get clarification on why that line was included in the NII, if it’s not necessary as Palmer contends in her letter to Melkoninans, Next contacted the attorney who wrote the NII: Beverly Grossman Palmer of Strumwasser and Woocher LLP. Palmer refused to answer any question concerning drafting of the NII citing attorney-client privilege. Following her assertion of this privilege, an entirely meaningless answer given that I don’t have the power to compel her legally, Next sent the following email.
Thank you for the quick reply.
I am familiar with the letter you attached, it is actually one of the two letters that has caused some confusion. The reason I focused on that one section of Measure LV is because another legal opinion for Santa Monica Forward that came out earlier today states that the lack of an exemption for casualty loss says that the letter Yes on LV released earlier this month that you wrote is wrong.
To best figure out who is right, you or Mr. Clouse, I’m trying to figure out why this exemption wasn’t included. From the letter, I’m guessing that you don’t think it was needed, thus wasn’t included, but I’m asking because I don’t want to assume anything.<
In case you haven’t seen it, I’m attaching the release from Santa Monica Forward that came out today with a link to Mr. Clouse’s email.
But the question is the same as before, when you (or your firm) wrote Measure LV, why wasn’t a casualty loss exemption included? As before, any response should be considered on the record unless you state otherwise.
The letter was sent on October 27. We have yet to hear a response.
Which doesn’t leave us in a terribly different place than we were when this disagreement first surfaced. On one hand you have Melkonians, Residocracy and Strumwasser and Woocher LLP stating that it would be absurd to have a law that requires a vote of the public before a rebuild after a disaster. On the other hand you have pretty much everyone else (city staff, LV opponents, Rouse, police and fire unions, etc) saying that it doesn’t matter how absurd it is, that’s what the measure requires.
The saddest thing is that if LV passes, it won’t be the citizens who decide what new restrictions are placed on development in Santa Monica, which is the intent of the Residocracy movement. It will be a handful of judges. Like it or not, if LV isn’t defeated at the ballot box, it’ll be interpreted by judges.
And it’s anyone’s guess how that will go.
