State Attorney General Opposes North Cliff (Apr. 21, 1999)

The City of Fort Bragg, the Coastal Commission and the State Attorney General’s office have combined to answer Dominic Affinito’s suit against Fort Bragg alleging that Fort Bragg has arbitrarily refused to allow Affinito to open his North Cliff Motel. Fort Bragg, the Coastal Commission and the Attorney General, acting on behalf of the Coastal Commission, filed an answer in Mendocino County Superior Court to Affinito’s Ukiah attorney Jared Carter’s “Petition for Writ of Mandate and Damages” which says, in essence, that Affinito deliberately ignored state and local building codes regarding the height of structures erected in the Coastal Zone and put up the North Cliff in flagrant disregard of the rules.

Carter’s brief on behalf of Affinito claims Affinito’s property has been confiscated by the government and that Affinito has been robbed of the motel bookings the North Cliff would have generated had Fort Bragg permitted him to open it for business. 

Another attorney from the Carter firm, John  Behnke, is defending Affinito against felony assault charges Affinito incurred in a November attack on Fort Bragg councilman-elect, Dan Gjerde. Affinito assaulted Gjerde in Fort Bragg’s City Hall. 

Jared Carter is an architect of the fanciful rightwing theory that regulatory interference with the enterprises of the wealthy amounts to public seizure of their property, an argument he has unsuccessfully made for a roster of clients which include Charles Hurwitz and the Louisiana-Pacific corporation. Carter claims the Fort Bragg City Council’s refusal to issue an occupancy permit for Affinito’s one-story-too-tall North Cliff represents a “taking” from Mr. Affinito. 

The City, in a petition filed under the names of all five Council members (including carryover councilmembers Jere Melo and Lindy Peters who had previously favored giving Affinito the occupancy permit) denied all allegations in Carter’s petition except Carter/Affinito’s simplest statements of the legal boilerplate clogging legal briefs on the simplest matters these days; for example the city “admits that a hotel was built on the property.”

Specifically, the City denied “any inference that it was established that the highway was the proper benchmark for measuring the height of the building,” and “any inference that [Affinito’s 1992] permits authorize the structure which Petitioners actually built on the property.” 

Translation: The proposed structure’s dimensions were illegally calculated from Highway One rather than the ground on which it now stands. Additionally,  the plans Affinito submitted for the motel bear little relation to the structure that eventually appeared on the site.

The City Council adds that “Respondents [the City Council] lack sufficient information to determine the truth of the Respondents’ allegation that ‘because of the substantial size of their investment and because of their claim of a vested right to maintain the improvements substantially in the condition they are in, Petitioners declined to submit a new Coastal Development Permit Application’ and on that basis deny this allegation.”

Translation: The North Cliff is up and Affinito won’t apply for the required permit from the state to build his motel because it already stands in all its blue tin glory on the north cliff of the Noyo River.

City Councilmembers also “allege that [Affinito was himself] careless and negligent in the matters alleged,” and that Affinito “fail[ed] to obtain a Coastal Development Permit.”

Obviously. 

Deputy State Attorney General Joseph Rusconi, in his accompanying motion to support the intervention of the Coastal Commission, puts the case against Affinito even more bluntly.

“The Affinitos constructed the hotel in violation of the terms of their coastal permit,” and “The Affinitos also allege that they are entitled to occupy the hotel even though, by their own admission, they have not complied with the terms of the scenic corridor review permit.” The (Coastal) Commission has a direct interest in whether a local government properly implements its local coastal program” and may “bring an action … to restrain the Affinitos’ violation of the Coastal Act and to collect civil penalties.” 

In his description of the case’s background, Rusconi says, “The project approved in Corridor Permit 2-96 was significantly different from that approved in Coastal Permit 10-92 and Corridor Permit 2-92,” which resulted in a much higher building, particularly on its southern end. “No amended coastal development permit for the changes in the project was sought by the Affinitos or approved by the City,” Rusconi notes. 

The Attorney General continues his bluntly accurate assessment of Affinito’s strategy for putting up a structure he obviously knew was not permitted.

“No amendment of Coastal Permit 10-92 to authorize a change in the approved building height of building was sought by the Affinitos or approved by the City” — a blatant failure on the part of the Affinitos, since an application of that type would have been denied on its face, and they had to have known it because they didn’t apply for it. Moreover Rusconi observes, “No amendment of Coastal Permit 10-92 to authorize a change in the approved building height or building footprint was sought.” 

Translation: Affinito misrepresented the project to obtain his first permits, but now that the North Cliff is up, he’s hired Carter to try to bully the City into letting him open for business in violation of state and local laws regulating the height of structures in the Coastal Zone.

After a detailed legal argument clearly giving the Coastal Commission the right and obligation to intervene in the Cliff House issue, Rusconi concludes, “The Affinitos in this action seek a writ from this Court directing the City to issue them an occupancy permit for the hotel without an amendment of Coastal Permit 10-2. In so doing, the Affinitos seek to operate a hotel that has not been constructed consistent with the City Local Coastal Plan and as approved in Coastal Permit 10-92. The Commission’s direct interest in the continued integrity of the LCP process is evidenced in the Coastal Act in a number of ways.”

In explaining the Coastal Commission’s interest in the case Rusconi says, “The plaintiff [Affinito] has raised numerous issues of potential statewide significance, such as whether the city was required to issue an occupancy permit for a development without a valid coastal permit… and forego any discretionary review of the project under the Coastal Act; whether the City’s delay in processing the application effected a regulatory taking…” 

If Affinito gets away with the North Cliff, cities up and down the Coast could find themselves being forced to sign off on all kinds of permit waivers and non-compliant changes which show up in buildings when they appear, making a mockery of the Coastal Act.

Rusconi adds, “I spoke to the petitioner’s attorney, Jared Carter, on April 7, 1999, and asked if the petitioners would consent to intervention. Mr. Carter told me that a motion to intervene by the Commission would be necessary. As a result, it was necessary to file this motion for intervention.” 

Carter, true to form, is forcing the state to jump through an unnecessary legal hoop; these interventions by the state are clearly legal, and are routinely approved by the courts. 

It’s clear that Affinito, and his blustery attorney, have angered the Coastal Commission and the State. By refusing to accept a generous compromise from the City of Fort Bragg which would have allowed him to operate the North Cliff while his grotesque flouting of the state and local building codes were sorted out, Affinito has forced intervention by the Coastal Commission, which now asserts that it has no other “adequate remedy at law to require the Affinitos and cross-defendants to reverse the consequences of their unlawful activity and, therefore, civil fines alone will not remedy the wrong…” 

The Attorney General repeats the obvious precedent represented by Affinito’s scofflaw structure if it is unchallenged. 

“Other persons along California’s 1000-mile coastline who are unwilling to abide by the provisions of the Coastal Act will be encouraged to commence, maintain and/or continue activities similar to those described herein.” Rusconi also reminds Affinito that “The Coastal Act provides that the Court may grant injunctive relief to restrain and remediate violations of the Coastal Act.” Affinito is thus liable for a one-time fine of up to $30,000 and daily fines up to $15,000 from the first day of the violation. The fines are applicable because “the Affinitos and cross-defendants knowingly and intentionally violated the Coastal Act,” concludes Rusconi. 

Summary: Carter claims a taking. Rusconi replies “Oh yeah? Take this, scofflaw.” 

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