Point of View

Confusion Reigns Supreme On The City Council

Murphy’s Variance Denial Appeal Continued For Two Weeks
By Fred H. Arm

Once again, confusion reigns supreme at the last City Council Meeting on February 10th, when Murphy attempted to appeal the Planning Commission’s denial of the creation of a new parcel map and a variance that would have permitted him to build three mega-houses on his five undersized lots on Pacific Avenue. The merits of the case became secondary to the fears generated by the not-so-wise counsel of deputy City Attorney Everett Jenkins. He suggested that to deny the appeal could result in the appellant winning a substantial judgment against the City in the “six figure range”. Either Jenkins was absent the day they taught appellate practice in Law School or he is deliberately misleading the Council. Jenkins’s obvious bias towards granting the appeal has generated an irrational fear on the part of many Council members.

Since the Council has been reeling under the enormous financial crisis facing the City of Richmond, any suggestion of further potential monetary obligations has struck terror into the hearts of some of the less enlightened members. The additional concern that the City had recently granted permission for another developer to build five houses on five other sub-standard lots has so panicked the Council that they voted to continue the hearing for two weeks to allow the matter to be adequately researched.

If there could be liability established for abuse of discretion by an appellate tribunal, which is the hat presently worn by the City Council in relation to the appeal by Murphy, half the nation’s appellate courts would be liable for billions of dollars in damages. For Jenkins to suggest that the City Council be responsible for damages and attorney fees in the six figure range is truly irresponsible and most likely has severely prejudiced the Council to rule in favor of the appellant. I cannot imagine a competent attorney making such a blatantly inaccurate assertion, particularly when he is supposed to be representing the interests of the City. (See California Government Code §818.4)

As to the five lots at the end of East Richmond Avenue, they are clearly incomparable to the Pacific Avenue lots. Firstly, the lots are on a wide boulevard that even has a substantial green island separating the east and westbound lanes. Secondly, the lots are not constructed on a hillside. The hillside was removed, making the land essentially flat as are the rest of the homes on that street. Third, the street is on a dead end without any vehicular traffic. Fourth, the land is essentially undesirable since it is adjacent to the local water purification plant and it has no view whatsoever. The lots were permitted by the Planning Department without going through the required variance process, obviously due to that earlier misguided letter of Everett Jenkins that the lots were “grandfathered in”, which Jenkins has subsequently repudiated. You really should sneak a look at this aberration being constructed at the end of East Richmond. How this ever got by the Planning Department and the Design Review Board is truly amazing. But, that is another story. (See Murphy’s Law Revisited, November 9th, 2003.)

I guess it is back to the drawing board for the litigants. Hopefully at this next hearing, the concerns plaguing the anxious members of the City Council will have been adequately addressed so that this bogus appeal can be finally put to rest.