October 1, 2020 Breaking News, Latest News, and Videos

415 PCH: Anatomy of a Settlement:

Just after the Mirror went to press with the news of the settlement involving the public beach club project at the Marion Davies Estate at 415 Pacific Coast Highway, the press releases came flowing in – from the City of Santa Monica, from those neighbors who had brought the lawsuit and from the Friends of 415 PCH citizens group that supported the project. A copy of the Settlement Agreement itself flowed in from the City as well.

Everybody has their own spin on something like this. City Manager P. Lamont Ewell said, “The settlement reflects the City’s commitment to providing exciting recreational opportunities at the beach while also being sensitive to the impacts these facilities have on neighbors.” Plaintiff neighbor Jonathan Ornstein said that “the settlement accomplishes” plaintiffs’ goals of “public safety and assurance of quality of life for everyone.” Friends of 415 PCH Chair Joel Brand said that “cooler heads have prevailed” and, “The city has done more to accommodate the concerns of neighbors on this project than any other city development in recent history, perhaps ever,” probably referring to the conditions that the City placed on the beach club operation even before the lawsuit, as well as the settlement agreement itself.

Everyone was happy: Ewell and Ornstein both used the word “delighted”; Brand said “elated.”

But what was it that was settled? What was the lawsuit really about? And who was really involved?

The named plaintiffs on the Verified Petition and Complaint for Writ of Mandate, etc. filed in the superior court on June 23, 2006, which started the legal proceedings, were the Palisades Beach Property Owners Assn., Inc. and Ornstein. The Settlement Agreement bears the signatures of those parties, as one would expect, and it also provides that the Association will deliver separate “releases of claims and covenants of non-opposition and not to sue” to be signed by Charles M. Levy, John Law, Carl Robertson and George Rosenthal, presumably the persons who, together with Ornstein, make up “the Association.”

The plaintiffs’ original court filing complained that the City “(i) failed to address or analyze a number of environmental impacts” in its Environmental Impact Report (EIR) “as required by the California Environmental Quality Act (CEQA); (ii) omitted important issues and impacts from the EIR; (iii) failed to include feasible mitigation measures”; and (iv) violated its Municipal Code regarding food service facilities at the beach (Proposition S).

The Settlement Agreement does not appear to address any of these complaints. Rather, the heart of the settlement looks to be: (a) a stated duration of 7.5 and 10 years regarding certain separately listed mitigation measures, all of which measures the City had imposed on the project even before the lawsuit was filed (albeit without a stated duration); (b) a “best efforts” pledge to seek a traffic signal on PCH, which everyone had wanted all along; and (c) a mutual release of claims, dismissal of the lawsuit and agreement by the parties to bear their own attorneys fees, none of which provisions would ever have been necessary if the lawsuit had not been filed in the first place.

(The listed “mitigation measures” are conditions of public use, including security staffing, alcohol limitation to beer and wine only, limits on amplified music and other noise restrictions, hours of operation, lighting regulations, and the like.)

Nothing is said at all in the Settlement Agreement about any environmental impacts that had not been addressed or analyzed, or that were omitted from the EIR; there is nothing about feasible mitigation measures that were ignored. Judging from a review of the agreement, the negotiations were likely all about: how many years for each condition, and what mechanism could be employed to give some teeth to the guarantee of years.

Whatever the motives of those who initiated the lawsuit, it seems to have quickly devolved to duration of the conditions on the public use of the property – conditions that the City had adopted after listening to its citizens, neighbors included, well before the lawsuit was filed.

Within a week of the filing, William Delvac, a Latham & Watkins lawyer representing the plaintiffs, said that the only issue was the durability of the conditions. Nearly three months later, when settlement negotiations were completed and just before City Council approval, Mayor Holbrook said that the duration of the conditions was the focus of settlement discussions.

Karen Ginsberg, Assistant Director of Community and Cultural Services for the city, confirmed that all of the conditions on the 7.5 and 10 year lists in the Settlement Agreement were conditions imposed by the City before the lawsuit was ever filed, and that which conditions were on the 7.5 or 10 year lists was simply the product of negotiation rather than the application of a governing standard. So the settlement resolved on an issue never mentioned in the court papers that started it all.

It is said that the two happiest days in a yachtsman’s life are the day he buys the boat and the day he sells it. It might also be said that the two most thrilling days in a litigant’s life are the day he files the suit (“Justice will be mine!”) and the day he settles it (“Thank God that’s over!”). If “delighted” and “elated” were in all the press releases, relief was also a theme: the plaintiffs said that Ornstein “expressed relief that the litigation had drawn to a close,” and Friends of 415 PCH quoted Susan Cloke, Chair of the City Recreation and Parks Commission, as saying she was “relieved that we were able to come to an agreement by working together.”

On the one hand, the plaintiffs’ lawyers said that the Settlement Agreement delivered “all our clients ever asked for.” On the other hand, Mayor Holbrook, when asked what the City gave up to reach the settlement, said, “Nothing.” Go figure. But still, there is a settlement.

Lawyers often say that “a good settlement” is one which leaves none of the litigants satisfied. In this case, the plaintiffs said that the settlement “is a victory for all the people of Santa Monica”; the City said it could “move forward” with “the once-in-a-lifetime project at 415 PCH”; and Friends of 415 PCH called the settlement “a giant step forward.” However it may have come about, and whatever the separate parties’ separate motives, this seems more than just “a good settlement.”

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