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Proposed Emergency Ordinance Is "Impermissible"

October 22, 2012

Dear Mayor Bloom and Members of the City Council:

This office represents the Briles Culotti Trust Partnership and its principals Greg Briles and Elaine Culotti, the owners ("Owners") of 2009 La Mesa Drive (the "Property") in the City of Santa Monica ("City"). This letter follows our October 17, 2012 letter regarding your consideration of an illegal emergency ordinance targeting our clients and the Property. The released draft ordinance suffers from a number of fatal deficiencies, including: (1) it fails the basic requirements of an emergency ordinance, both under state law and the City charter, and (2) it is replete with Constitutional violations, including Equal Protection and Due Process violations and substantial and impermissible restrictions on freedom of association.


A. The Ordinance Does Not Comply With the Government Code

The City's emergency ordinance is subject to the requirements of Government Code section 65858', which provides for the adoption of an urgency ordinance by "the legislative body of a county, [or] city, including a charter city[.]" [Emphasis added.] Notably, Section All further code citations refer to the Government Code unless otherwise stated.

65858(c) permits an emergency ordinance only where two sets of findings can be made: (1) "that there is a current and immediate threat to the public health, safety, or welfare", and (2) "that the approval of additional subdivisions, use permits, variances, building permits, or any other applicable entitlement for use which is required in order to comply with a zoning ordinance would result in that threat to public health, safety, or welfare." In other words, Section 65858 contemplates approval of an emergency ordinance to halt the issuance of "entitlement[s] for use" while a municipality crafts legislation to modify the requirements of the particular use, but does not grant the City a shortcut to outlaw currently existing and permitted uses, as the City purports to do in the draft of the emergency ordinance under consideration.' The draft ordinance seeks to regulate alleged activity for which no permits are required (nor does the draft ordinance require the issuance of any permits). It is therefore outside of the bounds of section 65858 and not permissible under state law.

B. The Ordinance Does Not Contain Proper Findings

The ordinance fails to justify the need for its adoption as an urgency ordinance as required by section 65858(c). Section 65858(c) does not permit the adoption of an emergency ordinance to prevent mere inconvenience, or to prospectively ban events or uses of property that the City speculates may occur, despite no evidence that they will. A "current and immediate threat to the public health, safety, or welfare" must exist. To support the notion that such an immediate threat exists, the draft ordinance uses (disputed) testimony of a few residents on La Mesa Drive that refers to at most two charitable events held at the Property, and from that concocts an alleged parade of horribles contradicted by the City's own observations and determinations. For example, the draft ordinance findings refer to "significant" impacts on the surrounding neighborhood and repeatedly cite "light and noise" and "extreme nuisance conditions", yet the City admits no event or activity on the Property has violated the City's noise or exterior lighting restrictions. Indeed, no activity on the Property has violated any city code.'

The staff report and draft ordinance also rely heavily on the false contention that the Property serves as some sort of a furniture showroom and operates as a commercial use in a residential zone. In fact, none of the Property's furniture is for sale, nor are any commercial activities conducted on the Property. The ordinance's continual misstatements regarding commercial activity on the Property are of great importance, because they form the basis to assert that the Property and its use are somehow fundamentally different than other similarly situated residential property.

Even if one believes that one or two charitable events at the Property generated brief periods when shuttles or limousines partially blocked street access, this problem was completely alleviated at the Owners' October 18, 2012 City of Hope charitable event, during which all shuttles loaded and unloaded on the Property, as detailed in this office's October 19, 2012 letter to City Council.

The sum total of the City's "evidence" of an immediate emergency that justifies circumventing the normal legislative process is an alleged instance of a vehicle associated with an event at the Property damaging a street tree and alleged noise and light nuisances, which, as detailed above, were in fact not nuisances at all. This is a far cry from the evidence that must be marshaled to support an urgency ordinance. As detailed in our October 17, 2012 letter, courts look closely at the proffered justification for urgency ordinances, and will not hesitate to invalidate ordinances unsupported by facts indicating a true immediate threat to public health.

C. The Ordinance Will Not Prevent the Impacts It Details

Most notably, the proposed ordinance will do nothing to prevent the very impacts it purports are the impetus for its drafting. The ordinance explicitly notes that it will not "preclude large social gatherings, charitable events or political fundraisers in residential neighborhoods" as long as said events are not held "for the commercial purpose of selling the property". Thus, as long as a house next door to the Property is not for sale, it may host the exact same events hosted at the Property, with shuttle buses, limousines, lighting, music, etc. The ordinance is not merely silent on such events; it affirmatively reiterates the rights of all residential property owners to host large-scale events on their properties. Any home on La Mesa Drive could host a event with 300 or 400 people at any time, provided such an event did not run afoul of the City's noise, exterior lighting, or other thresholds. This fact completely undercuts the (already weak) required justification for the urgency ordinance.

Given that the ordinance will actually not prohibit or even regulate the very types of events it states constitute an emergency, it is apparent that the ordinance, rather than addressing an actual emergency, is in fact solely targeted toward the Property. California law prohibits such sham attempts at disguising legislation aimed at one property under the guise of an urgency ordinance of general applicability. Sunset View Cemetery As.s'n v. Kraintz (1961) 196 Cal.App. 2nd 115, 123 [County urgency ordinance prohibiting mortuaries in cemeteries was unsupported by any factual showing of immediate need to protect public health or welfare and was clearly enacted to target one particular cemetery].


A. The Proposed Ordinance Violates Equal Protection

As detailed above, the proposed ordinance singles out for punishment persons hosting a gathering of more than 150 persons on a residential property "for the commercial purpose of selling a single-family residential property".' It also distinguishes between homeowners hosting such gatherings and prohibits only those gatherings that occur for the purpose of selling the home. In other words, the ordinance takes no issue with homeowners who host large gatherings so long as the gathering is not "for the commercial purpose of selling" the home.

The distinction drawn by the ordinance is arbitrary and irrational and thereby violates the Constitutional requirement of Equal Protection. Distinctions drawn in legislation must be rationally related to a legitimate government purpose to withstand constitutional scrutiny. The rational relation test will not sustain conduct by state officials that is malicious, irrational or plainly arbitrary. See Sinaloa Lake Owners Assoc. v. City of Simi Valley, 882 F.2d 1398, 1409 (9th Cir. 1989). The test is whether disparate treatment of two properties is rational given the identified differences, or merely arbitrary or unreasonable. See, e.g. Del Monte Dunes, 920 F.2d at 1508-09 (1990) (question is whether City's development limitation was justifiable in light of allowing development on nearby properties); see also Elysium Institute, Inc. v. County of Los Angeles, 232 Cal.App.3d 408, 429-432 (1991) (County zoning not based upon rational distinctions).

There is no rational argument the City can offer to explain why prohibiting social, charitable, or political gatherings of a certain size at one residence while permitting them next door, simply by virtue of the fact that one house is for sale and one is not, is a proper use of the City's police power. The draft ordinance purports to take issue with traffic, noise and other impacts allegedly generated by large gatherings in residential neighborhoods, but then singles out and outlaws gatherings occurring only in connection with the sale of a house. The distinction is wholly unrelated to the impacts about which the draft ordinance is purportedly concerned, and thus is irrational and plainly arbitrary.

B. Void for Vagueness

In addition, the proposed ordinance, as currently drafted, is susceptible to challenge for being void for vagueness. Inherent in the right to Due Process is the requirement that laws that would impose criminal sanction must be clear enough to provide adequate notice to the average person as to what conduct the law prohibits. The draft ordinance fails this test.

First, the draft ordinance would prohibit gatherings in residential neighborhoods where such gathering occur for a "commercial purpose" of "selling a single-family residence". What the ordinance means by such "commercial purpose" is not indicated by the text. Presumably, as written, the draft ordinance would not prohibit all large residential gatherings occurring in connection with a charitable or political event, but what would happen in the event the gathering was taking place at a home that was then being marketed for sale? Would the ordinance reach charitable or political events where the event raised the profile of a home that was listed for sale on the MLS? The draft ordinance raises more questions than it answers.

This problem is only further exacerbated by the lengthy preamble. The ordinance purports to take issue with "design houses" as they are described therein. But the text of the ordinance makes no mention of "design houses" and instead seems to prohibit large gatherings for the purpose of selling a home -- e.g., realtor "open houses" and like events.

In short, the draft ordinance fails to apprise persons of reasonable intelligence what is supposedly prohibited by it. It may also invite abuse by enforcement officials or police officers who exploit the ambiguities to interfere with lawful gatherings on the basis of a conclusion that the gathering has a "commercial purpose".

C. The Ordinance Infringes on a Homeowner's Freedom of Association

For many of these same reasons, and as we discussed in our prior correspondence, the draft ordinance would cause a substantial and unlawful impingement upon rights of association. There can be little question that political and charitable gatherings are entitled to constitutional protection and that any impingement upon those rights can only be justified in the most narrow of circumstances plainly not present here. The ambiguities of the draft ordinance, its uncertain reach and potential for abuses only underscore and magnify the potential infringement of the rights of association of our clients and the residents of the City generally.

For these reasons, we urge the City Council to reject the draft urgency ordinance presented for Council's consideration.


Benjamin Reznik

Alex DeGood of

Jeffer Mangels Butler & Mitchell LLP

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