Here's the latest -- We Won and No More Appeals
PVE's Parklands are Now Protected from Sale Forever!
Thanks to All Our Supporters (over 450 have signed petitions in Support of Our Efforts to Reverse the Illegal Sale of Parkland) who have Helped us these Past Five Years!
The Key Decisions by the Courts:
June 29, 2015: Superior Court Ruling in Favor of Parklands -- For the Ruling, click here. For CEPC Press Release, click here
September 24, 2015: Final Judgment from Superior Court -- For the judgment, click here
January 30, 2018: Appeals Court Issues Ruling in favor of Parklands -- For the ruling, click here. For CEPC's Press Release on the Ruling, click here
February 27, 2018: Appelate Court Denies PVHA Petition for Rehearing. For the ruling, click here.
April 11, 2018: Petition for Review by Supreme Court of California Denied. This officially ends the appeals process for the PVHA and Lugliani. For the notice, click here.
We care about preserving Palos Verdes Estates parkland as Open Space. The genesis for this website was a transaction in 2012 wherein the City of Palos Verdes Estates City Council (PVECC) and the Palos Verdes Homes Association (PVHA) unanimously approved the sale of 1.7 acres of parkland to a homeowner to expand their private property at 900 Via Panorama. This was accomplished despite a clear and irrefutable prohibition in the underlying deed against selling such land to a non-public entity. It was part of a broader Memorandum of Understanding (MOU) that provided some significant benefits to the community. However, the sale of City/PVHA owned parkland to a private individual without appropriate consent of PVE residents was unprecedented, and the sale violates the deeds and Conditions, Covenants and Restrictions established at the formation of Palos Verdes Estates in 1923 and confirmed with even stronger language in 1939 when PVE was incorporated and parkland was transferred to PVE. Ninety years ago (1923), 849 acres of 3200 acres were set aside to be parkland/open space; in the relevant 1939 deed when PVHA transferred the property to the City of PVE, these restrictions were strengthened to keep it parkland "forever" and prohibit sale other than to a public entity duly empowered with maintaining the land for public use. Further, these deed restrictions explicitly bind all future owners of the property.
Citizens for Enforcement of Parkland Covenants (CEPC) was formed in 2013 to advocate the reversal of this illegal sale. Having tried unsuccessfully for several months to convince the PVHA and PVECC to “do the right thing,” CEPC filed suit in LA Superior Court in May 2013. In the following 20 months, the defendants have tried to have the case dismissed by delaying court dates and filing demurrers and motions to strike. On November 4, 2014, Judge Barbara Meiers denied these challenges and ruled that our lawsuit had sufficient merit to move forward to a trial. In June 2015, she ruled in favor of our case, and ordered nullification of the sale of parkland and removal of all encroachments. However, in November 2015, all three Defendants filed for an appeal, thus suspending implementation of the Ruling for another 2 years.
If you are interested in the details, here is the chronology:
In early February 2013, neighbors on Via Panorama and Via Mirada first became aware of the sale of parkland to a private owner when the private owner applied for rezoning from OS (Open Space) to R1 (Single-Family Residential); this triggered a grass-roots mobilization in which 100 residents submitted letters in opposition to the re-zoning.
At a hearing of the PVE Planning Commission on February 19th, 2013, the Commission voted unanimously to recommend against the re-zoning. However, the issue was revisited and voted upon at a PVE City Council meeting on March 12th, at which time the Council decided to create a new zoning category to specifically address conditions within the MOU for "open space owned by private owners." This former City-owned Parkland property would be the only property currently covered by this new zoning category; in addition, the City drafted codes that would allow the City to permit the construction of structures such as gazeboes, barbecue, walls and a sports field on the property as was promised in 2012's MOU between Palos Verdes Estates City Council, Palos Verdes Homes Association, Palos Verdes Unified School District and a representative of the owner of 900 Via Panorama.
A group of concerned members of our community called the Citizens for Enforcement of Parkland Covenants (CEPC) believes the sale of parkland is inappropriate and illegal since 1) parkland should not have been sold in the first place, and 2) the sale of parkland to a private individual is a dangerous precedent that needs to be reversed. CEPC asked the City and Homes Association to reconcile their actions with the legal requirements of the restrictive covenants and 1939 deed, but the City and Association did not provide any explanation to justify how the covenants could simply be disregarded.
The new zoning category was scheduled for the May 21, 2013 Planning Commission Meeting. However, the matter was pulled and instead the City met in closed session on May 14th to review the legality of their past actions. CEPC members were hopeful that the City and Association would ultimately do the right thing and unwind this ill-conceived arrangement with the owners of 900 Via Panorama. However since they did not do so, CEPC filed a petition for writ of mandate and complaint for injunctive relief in Los Angeles Superior Court to have the transaction reversed.
The defendants filed "demurrer" responses that were accepted by the Court on October 28th with "leave to amend." CEPC filed an amended petition on November 7, 2013, with subsequent “demurrer” responses by the defendants. For details and links to the legal documents and arguments, see "Recent Updates" below and the Documents tab. The PVHA argued that they have the "right but not the duty" to enforce the restrictive covenants, thus transforming what we believe is their obligation to maintain all parkland for public use "forever" to a matter of discretion; they stated that the sale of parkland to private owners fell under this “discretionary” power. The City has argued that they have no duty to enforce the restrictions, even though the PVECC passed a resolution in 2005 indicating otherwise (see below); in addition, the City argues that it has full "police power" and hence has no obligation to be bound by the deed restrictions that they freely and openly accepted when they received the property in 1939/1940. We of course disagree with these arguments, and further find it disturbing that the City of PVE and the PVHA are embracing such disregard for the public interest by selectively enforcing the law -- thus signaling that no parkland is safe from being sold. The encroachments built on this property over the past 38 years by the resident who was allowed to purchase the parkland are also clearly in violation of PVE Municipal Code (see Photos). Please refer to their court filings below for their full arguments, which should enable you to come to your own conclusions.
The hearing on the amended demurrer in our writ of mandate case was held on Friday January 3rd, 2014. The scope of the hearing was very narrow: Judge O’Brien only ruled on one of several legal theories and did not, for example, rule on whether the sale of public parkland to a private person constitutes an "ultra vires" act in violation of the law. The Judge announced that he intended to sustain the demurrer on the writ of mandamus claim because he “did not see evidence of a ministerial duty” which required PVE City and PVHA to follow the protective restrictions. The PVHA had argued that they had the "right but not the duty" to follow the CC&Rs, and they based this on the word “shall” in the CC&Rs claiming that it actually means “may” and hence is optional. The Judge apparently accepted that argument, much to our surprise and amazement. Really? Merriam Webster dictionary says “shall” is “used in laws, regulations, or directives to express what is mandatory.” Contrary to the belief held by many members of our community, the PVHA and City have now gone on record as stating the enforcement of land use restrictions is now a matter of discretion, and they have no obligation to follow the law. It remains to be seen what problems this may cause the PVHA and City when they later attempt to enforce the same restrictions at issue here.
On January 8th, 2014 Judge O’Brien issued a written ruling in favor of the defendants, with no leave to amend. We were disappointed by the outcome but resolved to see this case through on the remaining claims.
Meanwhile, the Palos Verdes Homes Association held their annual meeting on January 14th, 2014. The agenda of that meeting was to vote in their Board of Directors. Since the five board members on the ballot were all in their positions at the time of the decision to sell this parkland on Via Panorama to the Luglianis, many of us voted against the current slate. As a further signal that many owners do not agree with the PVHA decision to interpret their mandate as one that can selectively enforce the protective restrictions on parkland, several dozen people attended the annual meeting to express their concerns, and several gave speeches. However, since a quorum was not established, the Board of Directors assumed another year of service.
A new Judge (Barbara A. Meiers) was assigned to hear the rest of the case, and on April 1, 2014 the first court session was held. Judge Meiers said she thought it most appropriate to focus on the underlying deeds, and not on whether the acts by defendants were consistent with past enforcement activities. She also thought it best to tighten up the arguments and asked for a fresh Second Amended Petition which would reflect all that had been revealed in the discovery process and also eliminated past enforcement descriptions. CEPC complied and on June 17, 2014 CEPC filed the Second Amended Petition.
Since that time, the City of Palos Verdes Estates, the Palos Verdes Homeowners Association and the Luglianis have filed a series of legal challenges to our lawsuit asking that the case be dismissed without a trial. On November 4, 2014, Judge Barbara Meiers denied these challenges and ruled that our lawsuit has sufficient merit to move forward to a trial.
The specific arguments from the defendants that were rejected by the Judge when she denied their demurrer included:
Severance and Bifurcation Would Violate the Single Judgment Rule: Defendants argued that the earlier “writ mandamus” ruling in favor of the defendants somehow created “the law of the case” and was grounds for preventing the court from allowing the rest of the action from continuing. Judge Meiers disagreed, finding that the earlier ruling was limited to the question of whether there was clear evidence of a ministerial duty, which is a much narrower question. It did not affect the court’s ability to proceed.
Public Trust Doctrine is Inapplicable as a Matter of Law: Defendants argued that the parklands were held for a defined, narrow population of only PVE residents, and hence the deed did not create a public trust. Judge Meiers rejected this argument, asking in the court session “Are there signs posted stating that anyone not a PVE resident could not access or use the parklands?”
PVE City Can Dispose of Parkland Because It is not Using It: The City argued that it is authorized by law to control and dispose of real property for the common benefit, and since the City has determined they are not using the parkland, there is no problem selling it. Unfortunately, this ignores the stipulation against sale in the underlying deed, and hence Judge Meiers rejected this argument during her verbal comments in the hearing.
PVE Has “Police Powers” and Hence Is Not Bound by Private Contracts Such as Deeds: Again, Judge Meiers seemed to reject this argument during her verbal comments in the hearing, although she did not specifically comment in the ruling.
The next step in the litigation was to get a trial date; given the court’s backlog, that likely was not likely to be before fall 2015. So on December 5, 2014 we took the offensive and filed a Motion for Summary Judgement, which should accelerate the process; March 25, 2015 was set as the date the motion would be heard.. The Defendants responded by filing an ex-Parte motion to delay the process by six months to allow the Defendants more time for discovery. The Judge rejected most of their arguments, but nevertheless reset the date for the hearing on the Motion for Summary Judgement to May 29, 2015 at 9:30 am. In her comments, the judge made the following observations:
The Defendants did not need more time to do discovery on standing of all members of CEPC, since standing of one (Harbison) was sufficient and that should take "seconds" to confirm.
The Defendants did not need more time to engage an expert witness to evaluate all the relevant deeds and give guidance to the court on which deeds should prevail because the Judge said that she could read the documents herself and it was her role to apply the law including the determination of which deeds should prevail
The Defendants had 2 years to complete discovery, and that giving them more time because they had done little other than file motions to delay taking this to trial was not warranted
On May 29, 2015 the case was finally heard, and the Judge issued a tentative ruling in our favor. On June 29th, the court issued its ruling -- accepting our Motion for Summary Judgement and finding in favor of CEPC as Plaintiffs. The ruling affirms that the City and Association did not have the power to give away public parklands and that they were in violation of deed restrictions that specify our parks remain public parks “forever.” The transfer of parkland is to be rescinded, and the "illegal encroachments" removed.
In November 2015, all three Defendants filed to appeal the ruling, and suspend implementation of the Ruling. Nine months later, in September 2016 the Defendants petitioned the Appeals Court for more time to prepare their initial brief in the appeal. These delays mean that a decision from the Appeals Court is unlikely before the fall of 2017.
We are disappointed that the PVHA and City chose to drag this out to further waste taxpayer money and postpone the inevitable. The discovery process has produced much documentation that makes our case even stronger, and for examples of this correspondence see Smoking Guns tab. The most important excerpt of the underlying legal documents is on the Quotes tab. At some point we hope they realize that we are not going to back down and they need to face the consequences of their actions and follow the law like everyone else.
This website will keep concerned residents informed of the facts and coordinate a response. If you would be interested in signing a letter, and/or adding your name to our email list so you can be notified of future developments, you can do so on the How You Can Help tab.. You can also use this website to download documents about the transaction and rezoning request as well as read relevant Press articles.. Finally, if you would like to make a contribution to CEPC, please email us at email@example.com.
4/24/18 City of PVE Sends Letter Rejecting the Comprehensive Settlement Proposal. For the letter from City Attorney Christi Hogin, click here. For John Harbison's response on 4/27/18, pointing out and clarifying various points that were inaccurate in the City's rejection letter, click here.
4/12/18 Parklands Case transferred from Court of Appeal back to Superior Court for Final Judgment. For the Remittitur notice, click here. For notice of receipt by the Superior Court on April 13, 2018, click here. The revised judgement was filed on April 16, 2018.
4/11/18 Petition for Review by Supreme Court of California Denied. The Supreme Court of California denied the PVHA’s petition for review, thus making the 2015 Ruling in favor of CEPC and the 2018 Appellate Ruling which affirms that both stand. For the denial order, click here. Next Steps:
- PVHA: This officially ends the appeals process for the PVHA and Lugliani. This protects parkland in Palos Verdes Estates from ever being illegally sold again! The last step is to go back to the Superior Court to amend the September 2015 Judgment to narrow the scope as the Appellate Court directed. We believe that should occur in the next month. For the notice, click here. Next Steps:
City of PVE: The Appellate Court ruled that CEPC and the City need to proceed to a trial in order to establish “proof” that the City of PVE had full knowledge at the time of the MOU and deed transfer to the PVHA that the PVHA intended to immediately sell the transferred parkland property to a private resident, which has been established as illegal. Since the City of PVE in fact “spearheaded” the MOU (as per Mayor Bird’s quote in the May 8, 2012 City Council meeting – for the transcript, click here and for the audio, click here), the trial should be a straight forward process since all parties signed the MOU which clearly stated that intent. Additionally, email documentation obtained through the discovery process shows the City Attorney’s role as leading the MOU drafting process; the MOU and email documentation combined with anticipated depositions will be irrefutable. The City can end the waste of public resources by admitting their obvious complicity rather than moving forward with a trial. Their celebratory announcement and statement by the Mayor after the Appellate Ruling was misleading and will be short-lived (click here).
4/9/18 Comprehensive Settlement Proposal on Panorama Parklands Case Mutually Agreed Upon by Harbison and Lugliani Sent to PVHA and the City of PVE. Over the past month, John Harbison was asked by the PVHA and the City to speak with members of the Lugliani family to discuss the pending litigation regarding the Panorama Parkland and how this matter could be resolved since the Superior Court and Appellate Courts rendered their respective decisions in favor of Plaintiffs (Harbison/CEPC). More recently -- on April 11th-- we received notice that the California Supreme Court denied the PVHA petition for review and therefore the Superior Court decision is final, with final judgment to be rewritten per Appellate Court directive. After several meetings (plus various phone calls) with Robert and David Lugliani, the Harbisons and Luglianis have negotiated terms of a comprehensive settlement that, if accepted by the City, PVHA and PVPUSD, would conclude all aspects of the litigation. For the proposed settlement, click here. The Harbisons and Luglianis fully support these terms in their entirety, even though it represents significant compromises by both parties. The Harbison’s goal is to stay true to CEPC’s objectives of 1) To realize no net decrease in deed restricted parkland, 2) To affirm the validity of the deed restrictions that prevent sale of parkland to private individuals and 3) To minimize the potentially negative financial impact on the PVHA and the City that could result from further litigation due to PVHA representations in the MOU that they had the power to sell parkland and the City’s complicity in this transaction. Dr. Lugliani relied on those representations. Four Judges have now concluded that the PVHA does not have such power to sell parkland, as CEPC has claimed since 2013. If the PVHA and the City of PVE accept the Proposed Comprehensive Settlement, there are significant benefits to the public that go well beyond the original 2012 MOU. The settlement:
- Provides enhancements over the 2012 MOU
- The 2012 MOU decreased the total number of deed restricted parkland acreage in PVE by 1.7 acres (on Via Panorama) since the underlying deeds on Lots C & D in Lunada Bay were confirmed by the Court in 2012 as parkland forever so designated when the property was originally transferred to PVPUSD. Therefore, there was a net loss of PVE parkland on Via Panorama of 1.7 acres.
- Once this settlement is implemented, 0.7 acres on Via Panorama will be returned to parkland and 3 acres in Bluff Cove will be rezoned as deed-restricted parkland which provide a net increase of 3.7 acres of restricted parkland over the 2012 MOU.
- Protects the recently cleared “Bluff Cove Park” (at 1009-1105 Palos Verdes Dr West) permanently from development by re-zoning it to OS (Open Space) and by placing the same “parkland forever” deed restrictions on the property as exist in the original PVE Parkland deeds. Given its location on the bluffs which overlook the ocean, this three-acre scenic park can give PVE residents (and others) much enjoyment for generations to come. While Bluff Cove Park is currently designated as a “Park,” the area continues to be zoned as R-1 (residential) which means that the property could potentially be sold and developed whenever the City decides to do so
- Restores the part of Panorama Parkland closest to Via Panorama that is of greatest interest to the public and removes all encroachments from that area. In addition, the settlement creates a view corridor that nearly doubles the field of view to city lights and the ocean from the street, thereby increasing public enjoyment of one of the best views in PVE (hence the name “Via Panorama”)
- Returns this 0.7 acre portion of the Panorama Parklands to the City since the PVHA would have to pay taxes on it if it were retained by PVHA
- Preserves other beneficial aspects of the 2012 MOU which include the PVPUSD. The proposed settlement includes PVPUSD’s explicit acceptance of the legal precedent of the PVPUSD vs PVHA court case which validated the deed restrictions as well as thecommitment of the PVPUSD to never sell school properties in PVE for development. It also preserves the prohibition of lights over the PV High football field and the beloved “dark skies “character of Lunada Bay
- Allows the PVHA and City (net of the transactions contemplated) to retain the $500,000 they received in the MOU. Without settlement, the PVHA and City of PVE would be required to return the $400,000 and $100,000 (respectively) payments made by Dr. Lugliani since the sale was reversed by the court
- Removes the threat of additional liability issues since both the PVHA and City of PVE violated the representation that they had the power to sell parkland, which could result in additional legal fees from further litigation
- Resolves current court decisions and pending litigation with a full settlement and release for all parties
- Installs new Directors of the PVHA in accordance with the recent election, whereby the bottom four candidates (all incumbents) resign and the remaining incumbent Director appoints the top four elected candidates (all petition candidates) thus installing the top five candidates and reflecting the wishes of members for democratic elections; this would be achieved without violating the By-Laws. The resulting five Directors would serve until the next election in January 2019. In effect, this would clear the decks for new PVHA Board members to re-focus the PVHA on its core mission and implement the reforms ROBE Candidates have contemplated
- Constrains further expenditures by all parties: no one spends additional cash other than:
- Dr. Lugliani for encroachment removal
- The PVHA and the City (if not covered by insurance) to pay the Plaintiff’s legal fees and court costs of $406,000
Some people will perhaps perceive this settlement as inappropriate because Lugliani "gets to keep some of his encroachments”, and they might believe he "should be duly punished for his flagrant disregard of the law over 40 years.” It’s hard to blame anyone for feeling this way, since theHarbisons share those same hesitations. Some might see this as “Harbison selling out” — especially if they don’t realize the financial duress to which the PVHA and the City might be exposed if we let this play out in the courts. If that happens, we expect that the PVHA and City have to return $500k to Lugliani as the sale gets reversed, pay $406k in CEPC legal fees, and also pay court costs and potential damages to Dr. Lugliani stemming from potential litigation from Lugliani for breach of representation by the PVHA that the transaction was totally legal in the first place. The Harbisons have put the public’s interest above their own and are accepting less than a full reversion to parkland on their street in order to create more parkland elsewhere that will provide additional public benefit. While Dr. Lugliani keeps many of his encroachments and avoids some of the cost of removal, the public receives benefits that go well beyond the original MOU. In addition, we would all be able to move beyond the distractions of this litigation and begin the healing process— knowing that parkland has truly been protected forever. The Harbisons have always said they were fighting for the principle of validating the deed restrictions and this settlement does that. It also uses an established process for swapping buildable lots for parkland as has been done before, which will involve obtaining consent (as stipulated by the protective restrictions) of residents within 300 feet of land to be swapped.
Both the PVE City Council and the PVHA Board of Directors will be meeting separately on or before April 24th to discuss this Comprehensive Settlement Proposal. The Harbisons have told both groups that this is a "take it or leave it" offer; we will not contemplate any negotiation since the outcome of the legal case is in favor of CEPC with regard to the PVHA and potentially also the City; at this point we have been advised that the City would like to avoid going to trial (as directed by the Appellate Court) for their complicity in the illegal sale of parkland. The Harbisons are willing to make the compromises in this Comprehensive Settlement in the spirit of preventing further harm to the City of PVE and the PVHA that has been a consequence of their bad decisions when they developed and signed the MOU. But Harbison and CEPC will not negotiate any terms, other than to consider modifications to address any procedural flaw that may not have been contemplated — and thus ensure that the steps in the proposal can proceed with full transparency and full compliance with all the processes identified in the 1923 Protective Restrictions, the Parkland deed restrictions and PVE City Municipal Code.
3/27/18 Thirty Residents Challenge PVHA Board at Director's Meeting but Board Ignores Them and Board Members Re-appoint Themselves for Another Year. About 20 residents (all members) attended the regularly scheduled monthly meeting of the PVHA Board of Directors to ask questions. At the start of the meeting, the Board voted to re-appoint themselves for another year; despite a request, no public input was allowed on this vote. The Board then voted to re-appoint Phil Frengs as President; no public input was allowed on this vote. After these votes, several residents asked the Board questions about posting the recent voting results, why the Homes Association used the word bankruptcy in their recent Supreme Court filing and about the parklands case. The Board refused to publicly release the recent voting results. In addition, at the conclusion of the meeting, Board Candidates Mike Moody and Ried Schott as well as ROBE's counsel Jeff Lewis had a closed-door settlement meeting with the Board about reducing the quorum. Ried Schott and Jeff Lewis asked that the public be permitted to attend, but the Board refused. The meeting lasted for over an hour. No settlement was reached.
3/9/18 PVHA Files Appeal to Supreme Court of California. Having been told their actions were illegal by one Superior Court Judge, and then 3 Superior Court Appellate Judges, and then having the motion for a rehearing by the Appellate Court, the PVHA Directors today filed an appeal with the California Supreme Court. When will they accept the ruling and stop wasting the PVHA member's money on pointless legal actions to exonerate their own tarnished reputations? For the brief, which continues to assert their right to sell parkland despite deed restrictions, click here.
3/2/18 Article in EasyReader News on "Judge orders count of disputed votes in Homes Association suit" -- click here.
2/27/18 Appelate Court Denies PVHA Petition for Rehearing. For the ruling, click here.
2/15/18 Court Hearing in Petition to Lower the Quorum for Board of Directors Election. PVHA revealed that the extended election (that ended February 8) yielded a total of 2,194 returned ballots, but 47 were disqualified (for unstated reasons); the 2,147 "valid" ballots were 39.6% of the members. As such the 50% quorum was still not achieved. The Judge directed the PVHA to count the ballots (which PVHA has refused to do) because she wanted to know whether the group of dissident members was as insignificant as the PVHA has represented. The count was instructed to be completed before the next Court hearing at 9:30am on March 15, 2018. For the transcript of the hearing on February 15, click here.
2/14/18 Special Meeting of the PVHA to disclose Vote Count in Extended Election. Moss Adams reported that the second mailing due on 2/8 had returned 765 ballots bringing the toal returned to 2,194 – still below the 2,711 needed for a quorum. There had been an approximate 2% return rate of rejected addresses on this mailing. Since the total return was still below the quorum Moss Adams did not attempt to validate the signatures or address of these 765 returned ballots.
2/14/18 PVHA and Lugliani Petition the Appellate Court for a rehearing. PVHA once again is wasting the PVHA's money by continuing to fight the unanimous determination of four Superior Court Justices that their actions selling parkland were illegal. To be successful, they need to show that the Appellate Court did not address an important argument they had previously raised. Yet this brief just rehashes all the same arguments that were individually addressed in the Appellate Court Ruling. As such, it is an abuse of the legal system, and serves no purpose but to incur more legal expense and delay the inevitable voiding of the land transfer and restoring the parkland to its original state. For the PVHA brief, click here. For the Lugliani Brief, click here.
2/12/18 CEPC Comments on City of PVE Statement on the Appellate Ruling. On January 31, the City of Palos Verdes Estates posted on its website and Nextdoor a statement from the Mayor about the Court's decision in the Panorama Parklands Ruling -- for the statement, click here. Some members of the community have found the statement confusing, and others know it to be misleading. Therefore to set the record straight, here are some comments from John Harbison of CEPC -- click here.
1/30/18 Appeals Court Issues Ruling on CEPC Panorama Parklands Case: The Appeals court unanimously found in favor of the Trial Court’s decision that the PHVA had violated deed restrictions by selling Parkland to a private individual – ordering the sale reversed and encroachments removed. The Appeals Court rejected all the arguments made by the PVHA in the appeal. However, the Appeals Court concluded that the decision was “overly broad” in extending it explicitly to all such deed restricted parkland in PVE, and remanded the matter back to the Trial Judge to narrow the decision to the Panorama Parklands. It also concluded that the City of Palos Verdes had the right to transfer the property to the PVHA, unless it was aware of the PVHA’s intent to sell the parkland to a private party and thereby violate deed restrictions; that matter is sent back to the Trial court to ascertain whether the City was aware of that. We are confident that the Trial court will conclude that the City was aware of the issue since the MOU signed by all Parties specifies that the PVHA would immediately sell the parkland to Lugliani once it received the Parcel A Parkland from the City. For the ruling, click here. For CEPC's Press Release on the Ruling, click here.
12/18/17 Fact Checking the Letter from Phil Frengs, PVHA President. If are a homeowner in Palos Verdes Estates or Miraleste, you are a member of Palos Verdes Homes Association. As such, you probably received over the weekend a letter from PVHA President Phil Frengs urging you to vote for the incumbents in the current PVHA Director election. Mr. Frengs is certainly entitled to his opinions, but there were numerous inaccuracies, falsehoods and misleading statements in his letter, so in the interest of facts and clarity, you can find an annotated letter with source links to fact-check his letter by clicking here.
12/14/17 Appeal Court Hears CEPC’s Panorama Parkland’s case -- The three justices who are handling the appeal are Judith Anderson-Gerst, Victoria Chavez and Allan Goodman; oral arguments were heard on December 14. At the hearing, they only asked a few questions of the appellate lawyers (representing the City of PVE, the PVHA and the Lieb Trust/Lugliani Family) and none of the respondent. I am told that in Appellate hearings a lack of questions sometimes suggests that the three justices may have already made up their minds. A written opinion will be issued within 90 days, although our district Appellate Court often responds within 45 days. For audio of the arguments in court. click here. The ruling will be posted at pveopenspace.com as soon as it is available.
11/15/17 Appeal Court sets hearing date on December 14, 2017 for oral arguments. A bit more than two years since the Defendants in the CEPC Panorama Parklands appealed the ruling against them, a court date is set. For the notice, click here.
11/15/17 Court Accepts California Association Realtors Amicus Brief. For the notice, click here.
9/21/17 California Association Realtors files Amicus Brief in Support of Ruling in Panorama Parkland Case. Significantly, the CAR supported the Judge's conclusion that the sale of Panorama Parkland violated CC&Rs and deed restrictions and should be voided. Further, CAR pointed out that overturning the ruling on appeal would set a dangerous precedent that could have far reaching negative impact on communities and HOA's across California that rely to adherence to the CC&Rs and governing documents pertaining to each entity. Finally, they were critical of the PVHA's arguments that the Business Judgment rule exempted the PVHA from following their own rules. For CAR's full amicus brief, click here.
7/31/17 PVHA files "Appellant's Reply and Cross Respondent's Brief" in the Panorama Parklands Case. For the 76 page document, click here
7/10/17 City of PVE files "Appellant's Reply and Cross Respondent's Brief" in the Panorama Parklands Case. For the 77 page document, click here. For a Motion to Augment the Record on Appeal, click here.
5/25/17 Article in Peninsula News on "Group files suit over Homes Association election" -- click here
5/21/17 Article in Daily Breeze on "Lawsuit against Palos Verdes Homes Association seeks changes to election practices" -- click here
5/17/17 ROBE Files Lawsuit to Compel PVHA to Count January 2017 Ballots, Accept Result, and Lower Quorum in Future Elections. After trying for four months to convince the Palos Verdes Homes Association Directors to act responsibly and to extend the January election, ROBE drafted a petition in April to ask the courts to lower the quorum and gave the petition to PVHA with the suggestion that they file the petition themselves; ROBE offered to contribute $1500 to cover court filing fees. For that letter and draft petition, click here. PVHA’s attorney Sid Croft responded that they would not file a petition, and for this response, click here.
Having exhausted the avenue of seeking PVHA’s cooperation in the matter, and the PVHA Board voting to do nothing about the election and quorum, Ried Schott and ROBE (as named plaintiffs) have filed a lawsuit to compel the PVHA to:
Open the ballots, count them, and accept the top five candidates as Directors
Lower the quorum on future elections to 25% from 50%
Lower the quorum on changing the By-Laws from 67% to 40%
Require all candidates (including incumbents) to comply with the process for collecting nominating signatures
Require PVHA to do three mailings (unless a quorum has been reached with less than 3 mailings)
Allow for proxies, drop-off of ballots, and cumulative voting (which means if there are 5 positions, the voter can allocate 5 votes however the voter wants, such as on vote for each for 5 candidates or 5 votes for one candidate)
For the court filing. click here.
4/25/17 New PVE City Councilmember Sandy Davidson Calls for Dropping the Appeal. At the PVE City Council Meeting on April 25th, recently elected City Councilmember Sandy Davidson proposed that City Council drop the appeal on the Panorama Parkland ruling. Mayor Jim Vandever and Jennifer King both pushed back and rejected the idea, Betty Lin Peterson tried to change the subject, Kenny Kao did not comment, and the matter was not brought to a vote. Here are their comments at 3 hours 18 minutes into the meeting (click here):
Sandy Davidson: “I think we should cancel the appeal of the sale of the City land. I think that will make us some money. I really do. I would like to hear what the other council people say about it, because we have three councilmembers who voted for it.”
Jennifer King: “The only money that will be spent now is on the reply brief and oral argument, and that is a very small portion of the appeal compared to the initial work of getting the record ready and writing the opening brief. No, I don’t think it would be a large savings at all. “
Betty Lin Peterson: “Whether or not we decide that now, this is what we are focusing on.”
Jim Vandever: “Part of the issue with that appeal. I really don’t want to go down that rabbit hole. But understand that if we did not appeal we would be on the hook for a couple hundred thousand dollars of legal fees and we’ve spent $15 or $20 thousand instead. If you are a poker player we are pot-committed to that.”
4/24/17 CEPC files Combined Respondents' Brief and Cross-Appellants' Brief in the Panorama Parklands Case. Citizens for Enforcing Parklands Covenants filed a 117 page brief to respond the Defendants' November briefs. ROBE supporters CEPC in that case, which was ruled in favor of CEPC in 2015 and called for the reversal of the illegal sale of parkland by the PVHA to a private resident and the removal of encroachments on the 1.7 acre of property. PVHA and the City of PVE appealed that ruling. For CEPCs first filing in the Appeal, click here. CEPC also filed a Motion to Augment Record on Appeal which included 295 pages of documents related to the earlier 2010 case of Palos Verdes Peninsula Unified School District vs Palos Verdes Homes Association over Lots C & D; this allows the Judges to see the arguments that PVHA made in that case, and show that PVHA is contradicting themselves in the current CEPC Panorama Parklands case. For the supplemental file with those additional exhibits, click here. For the Court’s acceptance of that Motion, click here.
4/13/17 ROBE Drafts Court Petition for PVHA to File to Ask for Lower Quorum. ROBE prepared a draft petition and sent it to PVHA attorney Sid Croft suggesting they file it to lower the quorum. In the letter, ROBE offered to contribute up to $1500 to defray the PVHA's court costs if PVHA files and supports the petition. For the letter and petition, click here. For Sid Croft's response rejecting the suggestion, click here.
3/17/17 Feedback Poll on the Palos Verdes Homes Association Election. A poll of PVHA members was conducted by Palos Verdes Residents for Responsible Government (PVrrg) to shed some light on public sentiment on the recent election, since the PVHA has refused to open the ballots received and refused to disclose to the public how those voting feel about who should be their representatives. There were 88 respondents. Topics covered including views of the current Board's performance, helpfulness of sources of information, votes by candidate, and suggestions on what the PHVA should do next. Detailed written comments were also captured. For the results, click here.
2/2/17 Guest Commentary by PVHA Board in Peninsula News on "PVHA members content with organization’s direction" -- click here
1/31/17 Potential Conflict of Interest for City Councilmember John Rea: It has come to our attention that PVE City Councilmember John Rea is a partner in the law firm which represents co-defendant Palos Verdes Homes Association in the CEPC (Panorama Parklands) case. In the closed session on November 10, 2015 at which the City Council voted to pursue an appeal, Joh Rea did not recuse himself and voted in the affirmative to approve the appeal. This would appear to be a direct conflict, since his law firm is being paid substantial sums to continue the case on appeal; if the City of PVE had not voted to appeal, it may have caused the other defendants to withdraw thus doing harm to his law firm. For screenshots and links to the evidence in this matter, click here. Councilmember Rea spoke multiple times on the record in City Council meetings about this case, and never disclosed to the public that he was a partner in the firm being paid by the Palos Verdes Homes Association. Several of his colleagues on the City Council are also lawyers and would know that he works for that firm, so to some extent their behavior (and that of the City Attorney as well) in the matter is also suspect by not calling out the obvious conflict of interest. Councilmember Rea is concluding his term this spring, but is running currently for Palos Verdes Estates City Treasurer in the election that will be held on March 7.
1/26/17 Guest Commentary by John Harbison in Peninsula News on "PVHA should change election procedures" -- click here
1/12/17 Article in Peninsula News on "Without Election Quorum. Homes Association board members keep seats" -- click here
1/11/17 Article in Daily Breeze on "Palos Verdes Homes Association election moot, board members reappointed" -- click here
1/10/17 Summary of PVHA Annual Meeting Announcement of Election Results. It was very sad night for democracy and for our community. The City Council Chamber was nearly full, with the largest turnout in four years. However, only 1589 ballots were returned out of 5420 members, well short of the quorum of 2711 required, and less than the 2101 returned last year or the 1772 that were determined to be “valid” last year. The efforts of the current Board to minimize the likelihood for reaching a quorum were successful:
- Sending one mailing not three as in some previous years
- Refusing to accept ballots returned by fax, email, hand delivery to PVHA, as well as by bringing the ballot or proxies to the annual meeting – all of which were allowed in previous years
- Establishing a difficult process to acquire signatures - 100 with affidavits and notary required (PVE City Council nominations are 30 signatures and no affidavit/notary required)
- Allowing address errors on the return envelope
- Closing the office Dec 23 to Jan 4 effectively making it impossible to get a replacement ballot after Dec 22nd
- Failing to list a return address on their original mailed envelope and using the returns to update the PVHA address database. Many people claimed they never received a ballot and others received ballots for homes/condos sold many years ago.
- Sending ballots out on 11/21 (just before Thanksgiving) -- thus increasing the likelihood they might go unnoticed
The Board did not acknowledge any responsibility for any of their actions in this regard, and basically rejected all criticism.
- They are thus not resending ballots to the members that did not vote.
- They are not counting the results of the ballots received, even though members have volunteered to help under their supervision.
- They are not even opening the envelopes received, logging them in, and posting a list so that members can verify if the ballot they sent was received.
- They are not petitioning a judge to have the quorum threshold reduced.
- They did not follow their own Resolution #177 which requires all candidates to gather 100 signatures and comply with the complicated affidavit and notarization process. They did not do that for any of the incumbents, even though three have never been elected and the other two have not been elected since 2009.
Finally, President Frengs stated that in lieu of a quorum being reached, they would continue to serve as directors for another year. We pointed out that the PVHA By-Laws state that in the absence of a quorum, they must “adjourn day-to-day” until a quorum is accomplished. “Day-to-day” does not mean “until a year from now”. The language means PVHA should extend the election long enough to establish a quorum. However, they’ve rejected that -- showing once again that they feel they are above the law (by violating deed restrictions), and can ignore their bylaws and their own resolutions. Finally, by not following their by-laws and continuing to transact business during the year, they are acting illegally because they have not been legitimately elected and hence are not empowered to transact business. For a full report on the meeting, click here.
1/3/17 Powerful Precedent for Rejecting Sale of Parkland. The central argument that the PVHA makes in its Appellant’s Opening Brief (AOB) in defense of the sale of CEPC/Panorama Parklands is that the PVHA is not bound by the underlying deed restrictions that state the parklands “shall not be sold or conveyed, in whole or in part, by the Grantee … except to a body suitably constituted by law to take, hold, maintain and regulate public parks.”This clause was in the deed the PVHA wrote when it transferred the parkland to The City of PVE in 1940 (click here), and in the deed whereby the PVHA received the parkland from the Trustee of the Palos Verdes Project in 1931 (click here). The AOB states (click here) that the PVHA had the right to sell property in the original 1923 Protective Restrictions, and that that right has precedence over the deed restrictions. This argument centers on the intent of the PVHA when it transferred the Parkland to the City in June 1940.
The PVHA does not acknowledge that in March 1940 (just months before that transfer), Pierre Lamure (a prominent resident who was chairman of the committee to incorporate the City of PVE) petitioned the PVHA Board to purchase for his own use parkland where he had illegally built encroachments adjacent to his property. Sound familiar? But unlike the situation in 2012 when the PVHA Board voted unanimously to sell parkland to an encroaching resident, the 1940 Board flatly rejected the proposal and moreover the minutes of the meeting acknowledged that the Board had previously rejected all similar proposals, citing the deed restrictions that prevented them from doing so. Per the article in the Palos Verde News (which was published by the PVHA at the time), here was the Board’s response: “It was explained to him [Lamure} that the Homes Association, under the terms of its tenure of park properties, could not convey them to a private individual.” The PVHA’s legal argument on appeal that it never intended to bind itself to the “no sale” of parkland deed restrictions is flatly refuted by the PVHA’s Board’s decision in 1940. For a copy of the two articles in the Palos Verdes News on March 15, 1940 on this topic, click here and here.
12/30/16 Letter from ROBE to Judge Latin: ROBE’s attorney sent a letter to Judge Latin, who is overseeing the PVHA Election. The letter 1) asks why Judge Latin has not responded to ROBE's 12/9/16 letter; 2) suggests that ballots be allowed to be returned at the 1/10 Annual Meeting because there are many reports of members not receiving ballots and PVHA has closed its office from 12/23 - 1/4 yet the ballots must be mailed back by 1/4; 3) asks for verification that the incumbents collected at least 100 signatures as required in PVHA's Resolution #177 and 4) states if quorum is not met that ROBE will ask Judge Latin to hold the election open as required in PVHA By-Laws. For the letter, click here.
12/29/16 Article in Peninsula News on "Association faces contested election" as part of "Year in Review" -- click here
12/22/16 Letter to the Editor in Peninsula News from ROBE candidate Dick Fay on the PVHA Election -- click here
12/12/16 Questions Submitted for the LWV/LBHOA Candidates Forum which will be held at PVE City Hall Council Chambers at 7pm tonight. For a list of questions submitted to be asked of the candidates, click here.
12/9/16 History of PVHA and Background for the Current Litigation: Joe Ryan has written an excellent blog that explains the context for the current controversy over Parklands that is a key issue in the current PVHA Board Election. For those of us without legal training, Joe has researched the topic and applied his legal mind in a way understandable by us non-lawyers. For the blog, click here.
12/9/16 Letter sent by ROBE to Judge Latin: ROBE’s attorney sent a letter to Judge Latin, who is overseeing the PVHA Election, pointing out the above errors and asking for a method for members to verify receipt, as well as asking for PVHA to follow their By-Laws and to extend the election should there be no quorum. The By-Laws stipulate PVHA’s by-laws state in Article V on page 51:
…“at such annual meeting of the members, directors for the ensuing year shall be elected by secret ballot, to serve as herein provided and until their successors are elected. If, however, for want of a quorum or other cause, a member's meeting shall not be held on the day above named, or should the members fail to complete their elections, or such other business as may be presented for their consideration, those present may adjourn from day to day until the same shall be accomplished.”
“Day to day” does not mean “until a year from now”. The language means PVHA should extend the election long enough to establish a quorum. For the letter, click here.
12/8/16 Article in Peninsula News on "Address Error: No effect on Election". This article incorrectly leaves the impression the address error is a non-issue by quoting Kim Robinson (manager for PVHA) as saying that "so far all but one person has been comfortable with the Homes Association's handling of the issue." This statement is far from the truth. Dozens of residents have contacted the PVHA, written emails to PVHA, or posted comments expressing concern on NextDoor (click here for a sample). For the article, click here.
12/4/16 LMV/LBHOA Announces Candidate Forum on Dec 12th: The League of Women’s Voters in collaboration with the Lunada Bay Homeowners Association are hosting a Candidates Forum for the PVHA Board of Directors. It will be from 7 – 9 pm on Monday December 12th at Palos Verdes Estates City Council Chambers (340 Palos Verdes Drive West, PVE). In accordance with LMV rules, all 8 candidates have been invited to the forum. Questions for candidates will be collected ahead of time and provision will be made for audience questions to be collected at the forum as well. LBHOA is requesting anyone interested in attending to register here. Seating is limited, so please sign up if you expect to attend. Please check the Lunada Bay Homeowner’s Association website for updates or other information.
12/4/16 John Harbison sends PVHA email with suggestion for addressing resident concerns over the mailing address error. With over 60 comments on NextDoor with residents expressing concern over whether their ballot would arrive to be counted, John Harbison proposed to the PVHA Board of Directors that they ask Moss Adams to post online a list of ballots received so that people can overcome their distrust and each confirm that their ballot has been received. PVHA President Phil Frengs responded they did not take responsibility for the address error or their failure to answer members’ concerns posted on NextDoor, and that they would not allow members to verify if their ballots were received and counted. John Harbison responded saying that he had already been encouraging members to send ballots in using the envelopes provided, and it was not his responsibility to clarify the PVHA process or to make representations/assurances that it would work. For this email interchange, click here.
11/30/16 Error Discovered in Address of PVHA Return Envelope. On the pre-paid return envelope, the street address is in error – showing “11960 Wilshire Boulevard” not “10960 Wilshire Boulevard.” Click here for a sample. This caused some people to wonder why the zip code was confusingly not the same as the Moss Adams address listed on the ballot itself (“90099-9811” on the outside envelope instead of “90024”). The incorrect house number was reported to Kim Robinson at PVHA, but PHVA took no action to explain this to the public. However, we have been told that the bar code contains the correct information and that the envelopes will be delivered correctly to Moss Adams, the CPA firm that is doing the counting. Nonetheless, the mistake and the slowness of the PVHA to respond with specifics on why letters should get through caused much discussion on NextDoor -- click here.
11/26/16 Mailer with letter from Phil Frengs arrives in mailboxes of all PVHA members. For the letter and John Harbison's comments on the many erroneous statements made by Mr. Frengs, click here.
11/25/16 ROBE Mailer arrives in mailboxes of all PVHA members -- click here
11/23/16 Letter from PVHA President Phil Frengs Posted on Nextdoor on 11/22/16 Taking Issue with Statements made on this Website and John Harbison's Comments in Response -- click here.
11/23/16 Excerpts from the 1924 Protective Provisions that Articulate the PVHA's Role in Enforcing the Protective Provisions. The PVHA's role includes enforcing the Protective Restrictions, and recent statements from PVHA Board suggest they do not view that as part of their role. Further, the PVHA is given powers to exercise a "Reversion of Title" if there are "Violations of Conditions" and the "Violation Constitutes Nuisance." For the specific language in these clauses, click here.
11/20/16 Article in Daily Breeze on "Opposition regroups for new Palos Verdes Homes Association election" -- click here
11/11/16 Letter sent to PVHA President Phil Frengs Taking Issue with Assertions he made at the Meet The Candidates Night on 11/10/16. Mr. Frengs accused ROBE of misrepresenting aspects of 5 issues, and this letter goes through each of those assertions and fact-checks to show that the accusations were inappropriate and unfounded -- click here
11/10/16 PVHA Applies for Permission to file an Oversized brief. Permission to file this 133 page brief was granted -- click here
11/10/16 Article in Peninsula News on "Candidate Forum set for Tonight" -- click here
11/9/16 Palos Verdes Homes Association files Appellant's Opening Brief. Eleven months after appealing the Judge's Ruling in the Panorama Parkland case, the PVHA files a 133 page opening brief. I guess "brief" is not a literal term. For the full AOB, click here.
11/7/16 City of Palos Verdes Estates files Appellant's Opening Brief. Eleven months after appealing the Judge's Ruling in the Panorama Parkland case, the City of PVE files its opening brief -- click here.
10/6/16 Defendants file for Another Extension of Time to file Opening Briefs. This latest request for an extension makes in eleven months and counting -- for their stated reasons, click here
9/8/16 Defendants Delay Appeal Process Further: After nine months to submit their brief on why they are appealing the 2015 Ruling, the Defendants have petitioned the Court of Appeals for an extension. Obviously, their intent is to drag this out as long as possible, allowing Mr. Lugliani to continue to use the private playground he constructed illegally on the former parkland that he acquired in this illegal transaction. For the petition, click here.
6/16/16 Article in Peninsula News on "Coastal Commission could fine City over Lunada Bay" -- click here
6/10/16 Article in Orange County Register on "City says it won't meet deadline on surf gang's illegal fort" -- click here
6/9/16 Article in Los Angeles Times on "Surfer gang's beach 'fort' must be torn down or get a permit, state says, but city slow to act" -- click here
6/8/16 Article in Daily Breeze on "State tells Palos Verdes Estates to make Lunada Bay more welcoming" -- click here
6/7/16 City of PVE responds to the California Coastal Commission -- click here
6/6/16 California Coastal Commission sends letter to PVE demanding encroachments in Lunada Bay be addressed -- click here
3/16/16 Guest Commentary in Peninsula News by Former Mayor Jim Nyman -- click here
2/29/16 Letter sent to PVHA Board of Directors with Suggestions for defining the Election Process -- click here
2/12/16 Article in Peninsula News on "Reformers Dispute PVHA vote totals" -- click here
2/12/16 Article in Peninsula News on "PV Homes Association vote totals disputed" -- click here
1/30/16 Minute Order from the Court Awarding Attorney Fees to Plaintiff CEPC. The ruling is significant because the only basis to award an attorney such fees is if the court finds that the case vindicated an important public interest -- click here
1/14/16 Article in Peninsula News on "Lower Voter Turnout nixes PV Homes Election" -- click here
1/14/16 Article in Daily Breeze on "Lower Voter Turnout nixes PV Homes Election" -- click here
1/7/16 Letter to the Editor in Peninsula News from Ann Hinchliffe, former PVHA Director -- click here
1/1/16 Article in Daily Breeze on "Challengers in PV Homes Association election to host open forum" -- click here
12/31/15 Letters to the Editor in Peninsula News from Barbara Culver and Renata Harbison -- click here
12/31/15 Year in Review in Peninsula News on "Parklands ruling appeal spurs candidates" -- click here
12/29/15 Article in Daily Breeze on "New ballots cannot be recast for P.V. Homes Association board, attorney says" -- click here
12/26/15 Article in Daily Breeze on "4 challenge incumbents for Palos Verdes Home Association seats" -- click here
12/24/15 Letter to the Editor in Peninsula News: For letter from Dave Kleinman -- click here
12/17/15 Article in Peninsula News on "Four Challengers Running for Seats on PV Homes Association-Peninsula News" --click here
12/17/15 Letters to the Editor in Peninsula News: For letters from Dick Fay and George Winston -- click here
12/17/15 Article in Peninsula News on "Four Challengers Running for Seats on PV Homes Association-Peninsula News" click here
12/17/15 Letters to the Editor in Peninsula News: For letters from Dick Fay and George Winston, click here
12/17/15 Two Page Flyer on ROBE Initiative to Share with Your Friends -- click here
12/7/15 ROBE Delivers Over 150 Signatures on Petition to Nominate Slate of 4 New Directors: For the letter sent to PVHA President Mark Paullin, click here. For the proposed amended ballot, click here.
11/17/15 PVE City Council Posts Q & A on Their Website Explaining Reasons for Appealing the Ruling: For the Legal Matters page of the PVE website, click here. For CEPC's response to those arguments, click here.
11/15/15 Timeline and Summary of the Issue: For a five-page summary of this issue with a timeline of events over the past 40 years, as well as one page of photos of the property in question and the encroachments on that property -- click here
11/12/15 Article in Peninsula News on " All Defendants to Appeal June Land Swap Deal" -- click here
11/11/15 Article in Daily Breeze on "Palos Verdes Estates to Appeal Parkland Ruling" -- click here
11/10/15 PVE City Counsel Announces Unanimous Decision to Appeal
11/5/15 Guest Commentary by John Harbison in Peninsula News on "City, PVHA Should Listen to Residents": The article takes issue with the stated concern (by PVE City Attorney Christi Hogin, CIty Manager Tony Dahlerbruch and City Councilmember John Rea) that the CEPC Panorama Parkland Ruling interferes with the City’s ability to make choices on how the City will enforce deed restrictions on parkland -- click here
10/29/15 Article in Peninsula News on "Peninsula News - City PVHA Weigh Appeal" -- click here
10/28/15 Article in Daily Breeze on "Palos Verdes Estates residents urge council, homes association not to appeal parkland ruling" -- click here
10/28/15 Article in JD Supra Business Advisor on "Think Legal, Act Local: How One Attorney Gave Back to the Community In Which He Lives and Works": For an article on the lawyer who successfully represented CEPC in this case, click here.
10/27/15 PVE City Council Again Considers Appeal and Takes no Action: PVE City Council met once again in closed session. About 20 people attended and 12 spoke -- all were urging that the City Council accept the ruling and not appeal. For John Harbison's comments, click here. The Council went into closed session after the public was heard, and when they appeared again in open session, the city attorney announced, “No action was taken.” No information on voting was disclosed.
10/27/15 PVHA Board Considers Appeal and Takes no Action: PVHA Board met again in closed session. About 30 people attended and 13 spoke -- all were urging that the PVHA accept the ruling and not appeal.
10/27/15 Article in Daily Breeze on "Council, PVHA to Weight Parkland Ruling Appeal" -- click here
10/19/15 PVHA Board Contradicts Its Court Declaration and Issues Letter Saying it Has not Voted on Appeal: In a stunning contradiction, PVHA claims that its Declaration to the Court filed by its attorney was incorrect, and that they had not voted to appeal the case. They announce an opportunity for the public to express their concerns on 10/27. Here is a link to the letter.
10/13/15 PVE City Council Considers Appeal and Takes no Action: PVE City Council met in closed session at 6:00 pm to discuss the CEPC litigation and possibility of appeal. About 20 residents attended, 12 of whom spoke; all speakers urged the City Councilmembers not to appeal; in addition, there were about 20 letters that had been submitted to the council members also urging them not to appeal. The Council went into closed session after the public was heard, and when they appeared again in open session, the city attorney announced, “No action was taken.” No information on voting was disclosed.
10/13/15 PVHA Files Declaration with Court that Board has Voted to Appeal: PVHA’s in-house attorney, Sid Croft, filed a declaration by the PVHA with the court. That declaration revealed that a special meeting of the PVHA Board had been held on Friday, October 9th and that “the Board decided to appeal the Judgment, and also to pursue a stay of enforcement of the Judgment pending appeal from the trial court" and "and “I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.” Here is a link to that document. It is not yet the official “Notice of Appeal,” and until that is filed, the Board could theoretically change its mind. The next scheduled PVHA Board Meeting is October 27th. Defendants have until November 30th to file an appeal.
10/13/15 PVHA Board Holds Special Meeting to Discuss CEPC Case: This meeting was not noticed to the public, as required by the Davis Stirling Act.
9/24/15 Final Judgment. Official registered judgment of the Court including descriptions of actions that need to be taken to nullify deed and remove encroachments -- click here
9/17/15 Article on Peninsula News on "Fire trail plan doused" -- click here
9/10/15 Letter to Parklands Committee from John and Renata Harbison on Paseo Del Sol Fire Road closure/re-routing -- click here
9/9/15 Final Hearing on Final Judgment: For transcript of the hearing, click here.
8/27/15 Article on Peninsula News on "Proposal to re-route fire trail has some residents steaming" -- click here
7/23/15 Blog entry in PV Patch -- click here
7/14/15 Comments from the public and City Council on CEPC case. There were two speeches made by members of the public -- for Dick Fay's remarks, click here; for Renata Harbison's remarks, click here. Three Council members (JIm Goodhart, Jim Vandever, and John Rea) then then responded quite negatively, and those comments are transcribed here. If you'd like to listen to the audio of the whole session, click here. We found the comments by the three Council members inaccurate, so on July 22nd Renata and John Harbison sent a letter to City Council to point out and correct those inaccuracies and misleading statements; that letter can be found here.
7/9/15 Harbison Letter to PVE City Council. For letter sent to PVE City Council members to correct inaccuracies in the statements of the City Attorney in the Peninsula News article published today, click here.
7/9/15 Article in Peninsula News on "Judge Rules Land Swap Deal Illegal". For this front page article, click here.
7/6/15 Harbison Letters to PVE City Council and PV Homes Association. For letter sent to PVE City Council members encouraging them to be well informed before deciding on whether to appeal, click here. For a similar letter send to the Directors of the PV Homes Association, click here.
7/2/15 Article in Daily Breeze on "Judge Rules Palos Verdes Estates Land Swap With Wealthy Homeowner Was Illegal", click here. For comments from the public on this article, click here and scroll to the bottom of the web page and click the box "view comments".
6/4/15 PVHA Intent Clarified. The Defendants have argued that PVHA has full authority to interpret the intent of PVHA when it transferred parklands to PVE in 1940 including the "forever parklands' clauses those deeds. The Judge stated that she did not think they have that latitude. Today we obtained from a public records request a letter in August 2010 from Sid Croft, the attorney for PVHA, in which he stated the PVHA was strongly opposed to re-zoning Lots C & D. In his letter, Croft quoted and attached a letter written in 1940 by Charles Henry Cheney, one of the original architects for the Palos Verdes Project tin the 1920s. In that letter, Cheney speaks passionately that "our park system is the central feature and most distinguishing feature of the city plan." To read the whole letter, click here. Why the radical reversal by PVHA since 2010?
5/29/15 Court Hearing on Motion for Summary Judgment. Judge Barbara Meiers indicated a tentative ruling in favor of CEPC. We will post the final ruling as soon as those documents are received, but for highlights, click here. For the full transcript, click here.
5/26/15 Defendants Objected to Facts Introduced by Plaintiffs, by filing three additional documents. For Defendants' Joint Evidentiary Objections to Reply Declaration of John Harbison and Motion to Strike, click here. For Defendants' Joint Reply to Plaintiffs' Opposition to Motion for Judgment on the Pleadings, click here. For Order Granting Motion for Judgment on the Pleadings, click here.
5/22/15 CEPC Reply to Defendants Arguments. For the narrative in support of MSJ, click here. For John Harbison's Declarations in Support of MSJ, click here. For CEPC's Response to Declarations of Lore Tilburg and Sid Croft, click here. For CEPC's Response to Defendants' Joint Evidentiary Objections, click here. For CEPC's Reply to the Separate Statements of Undisputed Material Facts in Support of MSJ, click here. For CEPC's Opposition to the Defendants' Joinder, click here. For CEPC's Memorandum in Opposition to the Defendant City of PVE Cross-Motion for Summary Judgment, click here. For CEPC's Evidence in Opposition to the Defendant City of PVE Cross-Motion for Summary Judgment, click here. For CEPC's Separate Statement of Undisputed Material Facts in Opposition to Defendanat CIty of PVE's Cross-Motion for Summary Judgement, click here.
5/22/15 Defendant City of PVE Reply in support of their MSJ. For the reply, click here.
5/15/15 Defendants submit their responses to our MSJ. For the Joint Opposition Narrative, click here. For the Declaration of attorney Lore Hilburg (expert witness), click here. For Declaration of Sid Croft (Attorney for PVHA), click here. For the Declaration of Dan Bolton (engineer for the Luglianis), click here. For the Declaration of Sherri Repp-Loadsman (Planning and Building Director of PVE), click here. For the Declaration of Brant Dverin (attorney for PVHA), click here. For the Defendants' Joint Evidentiary Objections, click here. For the Separate Statement of Material Facts in Opposition to MSJ, click here. For the Compendium of Non-California Authorities in Support of Defendants' Opposition to MSJ, click here. For PVE City's Opposition to the MSJ, where they asked to be excused, click here.
3/13/15 Defendant City of PVE Files Cross-Motion for MSJ to be removed from the case. For the narrative cross-motion for MSJ, click here. For the Volume of Evidence in support of their MSJ, click here. For the Separate Statement of Undisputed Material Facts, click here. For the Proposed Order, click here.
3/5/15 Second Ex Parte Application to Set Briefing Schedule and Single Hearing Date for Motion for Summary Judgment: This second filing by defendants was submitted again to delay the next stage in trial. For the Defendants' application, click here. For the Plaintiff's response, click here. For the transcript of the hearing including the Judge's responses, click here. For the Order setting up the next hearing on May 29 at 9:30am, click here.
2/26/15 Ex Parte Application to Set Briefing Schedule and Single Hearing Date for Motion for Summary Judgement: This filing by defendants was submitted to delay the next stage in trial. For the Defendants' application, click here. For the Plaintiff's response, click here. For the Judge's denial, click here.
12/16/2014 Defendants send letter indicating they plan on citing the Marketable Title Act as justification that they do not need to honor and follow deeds. What is interesting about this strategy is that PVHA (with the same Board Members) successfully won a suit wherein they argued that the Marketable Title Act does not apply. Now PVHA is arguing that they should be allowed to sell under the Marketable Title Act. This reversal flies in the face of the doctrine of judicial estoppel (which means that once you have taken a position in litigation and prevailed you may not thereafter take the opposite position). You can read more about that doctrine in a case -- click here. For the PVHA's attorney's letter stating this new strategy, click here.
12/5/2014 CEPC Files Motion for Summary Judgment: The purpose of the motion is ask Judge Meiers to rule on the central legal question of our lawsuit: does the City of Palos Verdes Estates have the power to sell public parkland to a private party? The motion is scheduled to be heard in February. For Memorandum in Support of Motion click here; for Separate Statement of Undisputed Material Facts in Support of Motion click here; For Evidence in Support of Motion for Summary Judgment click here; For Proposed Order click here
11/20/14 Article in Palos Verdes Peninsula News on "Judge Denies Challenge to PVE Parklands Suit" -- click here
11/4/14 Favorable Court Ruling on Defendants' Demurrers and Motions to Strike. Since June 2014, the City of Palos Verdes Estates, the Palos Verdes Homeowners Association and the Luglianis have filed a series of legal challenges to our lawsuit asking that the case be dismissed without a trial. On November 4, 2014, Judge Barbara Meiers denied these challenges and ruled that our lawsuit has sufficient merit to move forward to a trial. For Judge Meiers' decision, click here.
11/4/14 Defendant Responses to Special Interrogatories, Requests for Production and Requests for Admission. As we proceed to the next stage of preparing for trial, CEPC has asked defendants to confirm certain "facts" so that the trial process is more efficient. This summary presents the response fo the three defendants to each of the requests. We found the degree of denial of the obvious somewhat shocking, but you should form your own conclusions. -- click here
6/23/14 Los Angeles Times Article "Crossing the Line" about PVE's Initiative in 2005 to Enforce Parkland Encroachment -- click here
6/17/14 Second Amended Petition: This condensed document restates and clarifies the multiple legal documents previously filed by CEPC and included in this website. The Judge asked us to condense our arguments and focus on the legal basis of the sale of parklands based on the written restrictions in the deeds and Protective Restrictions, and we have complied. It is simpler to follow, and will be the basis upon which the Court rules. click here
6/4/14 Letters to PVHA and PVE City Council about "Open Space Action Article in 1969 -- click here for a very relevant article published in 1969 on PVE Open Space and the intentions behind the Protective Restrictions. Click here for a letter referring to this article sent to PVHA Directors and click here for a similar letter sent to the PVE City Council
5/14/14 PVE City Supplemental Brief to Support Demurrer -- click here
4/11/14 Tentative Ruling by Court on Defendants' Demurrers and Motions to Strike. This tentative ruling reflects Judge Meiers' first impressions on the case, and the merits of the arguments presented. -- click here.
4/9/14 Article in Daily Breeze on "Palos Verdes Estates adopts parklands policy for first time in its history" -- click here
3/28/14 Letter to PVHA Board clarifying the legal basis for the CEPC lawsuit, and pointing out that the information in the 1940 deeds (that had been illegally withheld from the discovery process by the PVHA and PVE CIty) clearly proved that PVHA had to abide by the stronger restrictions it placed on the property when it wrote those restrictions into the 1940 deed transferring the Via Panorama Parkland to the City of PVE. Under those more stringent restrictions, the property must "be used and administered forever for park and/or recreation purposes only" and "shall not be sold or conveyed, in whole or in part, ... except to a body suitably constituted by law to take, hold, maintain and regulate public parks." Further, it binds all future owners (including PVHA) of the property to those restrictions. Therefore, PVHA clearly acted illegally by selling the property to a private individual for his own private use. -- click here
3/15/14 Correspondence Notices from City of PVE Citing Encroachments and Demanding Remediation 2003 - 2011: This file contains letters during the period 2003 - 2011 from the City of PVE Code Enforcement Officer and Public Works Director citing illegal encroachments by the Luglianis and demanding they be removed. When the MOU was developed in 2012 and the City of PVE, PVHA and the Palos Verdes Unified School Districts together were paid $2 million by the Luglianis, enforcement efforts were dropped. The City now has asserted in Court Filings in our case that the City has no obligation to enforce its Municipal Code in this matter, even though its own Code specifies that "shall" is "mandatory". For the letters, click here.
3/13/14 Article in Palos Verdes Peninsula News: "Draft Parklands Use Policy Still Deficient" -- click here
3/11/14 Deeds and Resolution transferring Tract Containing Panorama Parkland from PVHA to City of PVE in 1940: These documents impose more stringent conditions on the parklands, including "parkland forever" language and "prohibition on sale of parklands. For Deed of portion of Lot A in Tract 8652, click here. For Deed of portion of Lot A in Tract 7540, click here. For the Resolution 12 in City Council Minutes accepting the parklands from PVHA, click here.
3/10/14 CEPC Files Appeal on Writ of Mandate: Click here for the brief. For the attachments mentioned in the brief, click here for volume 1 and click here for volume 2. (The attachments are large files so please be patient)
1/2/14 Article in Palos Verdes Peninsula News: "2013 Year in Review" -- click here
1/8/13 Status Update on the Court Case: The Court issued a ruling on the demurrer motion, and we responded by filing an amended petition. The court then issued a similar ruling without leave to amend on the amended petition. We have decided to seek appellate review of this decision. Here are the documents and a brief summary of each:
- 7/15/13 Lugliani et al file briefing to support demurrer (click here). Lawyers representing the Luglianis argued that the Palos Verdes Homes Association has a right but not a duty to enforce the parkland restrictions; therefore they don’t need to pay any heed to the restrictions whenever they decide to ignore them. This is a creative argument, but it falls apart because PVHA’s bylaws written in 1923 specifically say they have a duty to enforce. The lawyers also argued that we did not have any standing to sue because we did not participate in the MOU. This is also incorrect, because as a taxpayer and resident we are a party to the protective restrictions that we seek to see followed and enforced. They also claimed that it was an issue of one neighbor disgruntled with the actions of another neighbor, which is also incorrect since 121 residents from many areas across PVE have signed letters objecting to the sale of parkland.
- 7/16/13 PVE City files briefing to support demurrer (click here). The City Attorney argued that any municipality has full “Police Power” and cannot be bound by any private contract, even one to which they were a signed party and specifically accepted the “forever parkland” clauses.
- 10/11/13 CEPC flies its response to demurrer by Lugliani et al (click here) and demurrer by PVE City (click here). Our briefing refutes these arguments, and makes some additional ones. For instance, we cited a staff report and Resolution passed in 2005 that specifically states that the City will enforce removal of all encroachments and defend the Protective Restrictions; those documents are also available on the website for your reference. We also cite a case where the City tried to build a maintenance facility on parkland and the courts enforced the parkland covenants over the City’s objections; thus they cannot remake claims that have already been decided by the courts. For supporting exhibits for the response to Lugliani et al demurrer, click here. For supporting exhibits for the response to PVE City demurrer, click here.
- 10/18/13 PVE City and Lugliani et al file their replies to CEPC response. For PVE City reply, click here. For Lugliani et al reply, click here.
- 10/28/13 Court Ruling on the Demurrer (click here). In favor of the defendants: “The demurrers to the third cause of action for writ of mandate are sustained with leave to amend on the ground that there is no ministerial duty shown in the pleading.” Note that this ruling only affected one of our three legal theories in the petition.
- 11/7/13 Amended Petition by CEPC (click here). We filed an amended petition (First Amended Petition for Writ of Mandate and Complaint for Injunctive Relief) with the court. It addresses the issue of ministerial duty more specifically than the original petition filed last May and removed the PVPUSD as a party to the suit. Through the discovery process, we were able to obtain information that supported our contention that the City and Homes Association have a duty to enforce the CC&Rs and deed restrictions that govern us.
- 12/5/13 Lugliani et al files briefing to support demurrer on First Amended Petition (click here for demurrer, and click here for motion to strike portions of the First Amended Petition).
- 12/5/13 PVHA changes laws firm (click here) and files briefing to support demurrer (click here). Their new argument is that "shall" in the Protective Provisions really means "may", and thus they have a "right but not a duty" to enforce the restrictions and protect parkland from sale or encroachments.
- 12/6/13 PVE City files briefing to support demurrer on First Amended Petition (click here).
- 12/19/13 CEPC files Responses to Defendants' briefings. For opposition to Lugliani click here. For opposition to PVHA, click here. For opposition to PVE City click here. Other documents filed include Opposition to Lugiani Motion to Strike (click here), Request for Judicial Notice on Lugliani Demurrer (click here), Request for Judicial Notice on PVHA Demurrer (click here).
- 1/7/14 Judge O'Brien ruled in favor of the defendants in the writ mandamus part of the case saying he saw "no ministerial duty" that requires the CIty and PVHA to abide by the deed restrictions. We have decided to seek appellate review of this decision
11/19/13 PVE submitted a draft of a new Housing Element plan to the state that asserted that parkland CC&Rs would not allow other uses of that land (including low income housing). So the City is using the CC&Rs when it suits them, and then ignoring them when it does not suit them. Click here for the two-page excerpt from the Housing Element plan that refers to CC&Rs. For the entire document in the “full packet” (it is a large file so please be patient), click here.
10/13/13 PVE Staff Memo and Resolution passed in 2005 on parkland encroachments: We just uncovered this PVE staff report from 2005 which articulates a clear policy by the City of PVE for removal of unauthorized encroachments in the City's parklands. Contrary to what our City has said this past year defending its decision to sell parkland, the memo says "The City wholeheartedly accepted" the deed restrictions in the Protective Covenants. Further the City passed a Resolution R05-32 on removing encroachments that it is clearly now violating in this illegal sale of the Via Panorama parkland. -- click here
10/2/13 Letter to PVE City Council about 900 Via Panorama owners blocking fireroad access with a storage container, in violation of deed restrictions (photos included) -- click here
9/17/13 Blog entry in PV Patch -- click here
8/15/13, 8/22/13, and 8/29/13 Letters to the Editor, Palos Verdes Peninsula News: We believe municipal codes, as well as the covenants and restrictions that guide our City should be applied equally to all residents, without prejudice. As such, John Harbison submitted a Letter to the Editor of the Peninsula News, and the letter asked why all City Councilmembers sought prosecution of a group of people that had cleared brush from the Douglas Trail (a neglected responsibility of the City) while ignoring 38 years of extensive digging and grading on the parkland adjacent to 900 Via Panorama. This letter was published on August 15, and one resident (Catherine White) published a response the following week. Concerned that she had missed John’s point, he wrote a follow-up letter to set the record straight, and that was published on August 22nd. All three letters are attached -- click here
8/20/13 PVE Planning Commission Meeting: John brought up the issue of encroachments on public pathways and pointed out that there was an encroachment next to a residence seeking approval for revisions on Via Guadalana. While the Planning Director indicated that the Planning Commission normally addresses encroachments when applications are submitted, the lack of a policy addressing these issues made it beyond the Planning Commission’s purview to deny the revisions in this case. The Planning Commission thanked John for his comments and indicated they wanted to be involved in the policy discussion -- click here
7/23/13 City Council Meeting on "Determination of the Scope and Process to Develop a Parklands and Trails Policy": Both John & Renata Harbison made presentations, along with a few other residents in support of maintaining access to parkland, trails and paths. However, there were speeches by residents living next to trails and/or the Del Sol fire road who were very vocal in their desire to shut down trails and access to parkland. Comments by the City Councilmembers seemed to signal they are moving towards reducing or closing access to the parklands around the Del Sol Fire Road and the “Douglas Trail” (originally called the Paseo Del Sol Trail on the 1926 City Map. Since those two tracts of parkland combine to represent about 30% of all parkland in PVE, and some of the other parkland tracks have no public access, we find this disregard for public parkland access very disturbing. Parkland and trail policy and will likely be an agenda item for a City Council Meeting this fall, so stay tuned. -- click here
7/17/13 Letter to PVE City Council in response to inaccuracies in the "legal matters' page of their website -- click here
7/8/13 Comments delivered by Jeffrey Lewis to the PVE Parklands Committee Meeting: In the public comment portion of the agenda, Jeff Lewis (attorney for CEPC) asked why the Parkland Committee was not involved in any way in the 2012 MOU involving the sale of parkland at 900 Via Panorama, despite their charter at the time which was to make “discretionary decisions regarding the maintenance, development and preservation of the City's 500 acres of Parkland and unimproved right-of-way....”. Jeff also pointed out that the PVE City website had re-written the Parkland Committee charter in August 2012 to exclude all references to parkland. He based this on a screenshot of the older website obtained at the “wayback machine” website. Interestingly, the following morning, PVE City’s webmaster added code to their website to disable compatibility with the wayback machine. Was this an attempt to evade scrutiny and destroy evidence? While this behavior by our City seems shocking, it was ineffective since we have screen captures of the earlier charter before the website code modifications were made. -- click here
7/5/13 Letter to PVE City Council with photos of the Via Panorama parkland property being enjoyed by over 200 residents for July 4th fireworks -- click here
7/4/13 Ad in Peninsula News for CEPC -- click here
6/27/13 Article in Palos Verdes Peninsula News: "Citizens’ group files suit against PVE, PVPUSD and PVHA" -- click here
6/25/13 Article in Daily Breeze Article: "Palos Verdes Estates Residents Sue Over Land Swap" -- click here
6/24/13 Press Release about CEPC petition to Los Angeles Superior Court -- click here.
5/20/13 Wall Street Journal Article on "Why Homes With Open Space Command Big Bucks" -- click here
5/17/13 Public Service Announcement from PVP Watch Newsletter -- click here
5/13/13 CEPC petition to Los Angeles Superior Court for writ of mandate and complaint for injunctive relief -- click here.
5/14/13 Agenda for Palos Verdes Estates City Council Meeting references the closed session discussion of CEPC letter. After the closed session, the Mayor or City Attorney will give an oral report in the public session -- click here
This issue was added to PVE Planning Commission Agenda for May 21, 2013. However, it was pulled from the agenda. Instead the PVE City Council met in closed session on May 14, 2013
- Notice as sent to nearby residents -- click here
- Notice published in PV News, in which the City's plan to create a separate zoning for privately-owned Open Space is described -- click here
4/12/13 Public Service Announcement from PVP Watch Newsletter -- click here
Letters to the Editor Palos Verdes Peninsula News on this Issue
- Renata Harbison's Response to Robert Calvert's Letter 4/4/13 -- click here
- Robert Calvert's Letter 3/28/13 -- click here
3/22/13 Letter sent to Palos Verdes Homes Association: Articulates why the transaction is illegal and provides all the supporting deeds and documentation to support that -- click here
3/16/13 Article in PalosVerdesPatch: "PVE Council Denies Zoning Change" -- click here
3/13/13 Article in Palos Verdes Peninsula News: "Controversy regarding privately owned parkland is far from over" -- click here
3/12/13 PVE City Council Hearing was held on Tuesday March 12, 2013. For press coverage:
- 3/15/13 Article in PalosVerdesPatch: "PVE Council Denies Zoning Change" -- click here
- 3/13/13 Article in Palos Verdes Peninsula News: "Controversy regarding privately owned parkland is far from over" -- click here
3/12/13 Four page summary of the legal aspects of the issue -- click here
Tract 8652 Protective Restrictions Palos Verdes Estates Excerpts (these pages are the definitive restrictions, and show the sale of this parkland was illegal) -- click here
3/12/13 100 Residents have sent letters opposing this! Sign and return the Statement via fax (310) 349-3381 or email (firstname.lastname@example.org) to be counted!
- Notice of City Council Meeting on March 12th, 2013 -- click here
- Detailed Statement by John & Renata Harbison about 900 Via Panorama Rezoning Application for PVE City Council Meeting 3/12/13 -- click here
- Statement signed by 50 PVE Residents about the 900 Via Panorama Application for PVE City Council Meeting 3/12/13 (which you can download and sign) -- click here
3/8/13 Public Service Announcement from PVP Watch Newsletter -- click here
1940 Deed and PVE City Council Resolution #12 specifying parkland use "forever" -- click here
Deed - Sale of Area A from PVHA to Via Panorama Trust -- click here
2/21/13 Article in Palos Verdes Peninsula News:"Commission Recommends Denial of Zone Change for Private Parkland" -- click here
2/18/13 Article in Palos Verdes Peninsula News: "PVE Commission to Consider Zoning Change for Controversial Open-Space Land" -- click here
2/17/13 Article in Daily Breeze: "Palos Verdes Estates Commission to Consider Zoning Change for Controversial Open-Space Land" -- click here