Dacey

PATRICIA DACEY

23 April 2001

VIA FACSIMILE

Re: The Landmark Preservation Commission's

March 5, 2001 decision on the Napoleon

Bonaparte Byrne site (1301 Oxford St.)

Dear Mayor and Councilmembers:

I am the temporary Landmark Preservation Commissioner appointed by Vice Mayor Shirek to replace one of the commissioners forced by the City Attorney to recuse herself in the matter of the Napoleon Bonaparte Byrne site. I'd like to take this opportunity to comment on some remarks contained in a letter dated March 13, 2001, from the City Attorney to Antonio Rossman, Esq., that was also forwarded to Councilmembers. Ms. Albuquerque states, regarding the timing of the recusal of the commissioners in question, "it is truly unfortunate that the commissioners did not recuse themselves until minutes before the final hearing in the Beth El matter in March of this year. These actions have created severe problems with the record before the LPC in the Beth El quasi-judicial matter and will make a de novo hearing before the Council necessary, irrespective of how the Council views the merits of the LPC's actions." Later, she continues that the commissioners "had taken leaves of absence a few days before the final vote on the Beth El Alteration permit hearing . . . This placed the (replacement) commissioners. . . in a most untenable position; they had to review all the voluminous records and tapes on this matter over a weekend and, in one case, in a day. This further compromised the due process record of the proceedings before the LPC on the Beth El matter subjecting the City to the further risk that the proceedings will be attacked as a sham with pro forma uniformed (sic) votes."

I'll just point out that "minutes before the final hearing" on page two of the letter has been transformed into "a few days before the final vote" by page four. More seriously, the City Attorney asserts that a de novo hearing in this matter will be necessary because, I assume, "severe problems with the record" were caused by the "untenable position" in which the replacement commissioners were placed by being appointed only days before the hearing.

In matters such as this, the law presumes that public officials have performed their duties properly in the absence of a preponderance of EVIDENCE proving otherwise. If Ms. Albuquerque had reviewed the record of the March 5th hearing before forming her opinion, she would have realized that each commissioner had to attest in public that he or she had reviewed the entire record of this matter before voting on it. If I had found myself in an "untenable" position, incapable of reviewing the whole record adequately, I would have been guilty of lying when I attested that I had, indeed, reviewed the entire record. Ms. Albuquerque comes dangerously close to accusing me and the other replacement commissioners of malfeasance (without, I might add, even so much as speaking with us beforehand) with her unfortunate innuendo. The City Attorney ought to have presumed that the replacement commissioners had performed our duties lawfully in the absence of any evidence whatsoever to the contrary.

Some important points:

First, the bulk of the record consists of the Draft Environmental Impact Report and the Final Environmental Impact Report, both public records available at any time after their publication to anyone who desired to read them.

Second, the Commissioner appointed the day of the hearing abstained from voting on the Byrne site matter.

Third, as I detailed at the hearing, I (who was sworn in the previous Friday) took Friday and Monday off work (unpaid), staying up until 3:30 A.M. two nights running. I spent most waking moments immersed in the record, reading every single page, including every technical report, and listening to the recordings of every hearing in which the Byrne matter was discussed.

Fourth, using my own money, for which the city has never reimbursed me, I made copies of the tapes of the hearings for other replacement Commissioners, as the city did not provide us with those recordings.

Finally, I walked the property at 1301 Oxford.

In short, I was extremely diligent (as I believe the other replacement commissioners were) in preparing for the March 5th LPC hearing, as I took this duty very, very seriously.

The most the City Attorney can attest to is that she, or her staff, would be incapable of such concerted effort. I assure you that I most certainly was, and would be glad to swear to this under penalty of perjury. While I didn't expect the thanks of a grateful city when I undertook this rather arduous civic involvement, I certainly didn't expect that my reputation would be sullied by the City Attorney for my efforts.

I have only been recently informed that the City Council is considering appealing the LPC decision on the Byrne matter, as no one from the city has seen fit to keep me informed of the progress of this matter. Several substantive issues, rather than just "appearances," need to be addressed if this comes to pass, including: the assumptions made as to the honesty of the replacement commissioners; the woefully inadequate description of our Findings by staff, both in its report to the ZAB (which had to be corrected by the intervention of an alert citizen) and to the Council; the shockingly ignorant answer from current Planning Director Mark Rhoades to Councilmember Spring regarding the possibility that one of the existing buildings on the site could be the first known habitation of African Americans on the West Coast (one of the precise reasons we found the EIR inadequate); the unawareness of staff of the implications of the leading case on CEQA and historic resources (52Cal.App.4th896) for this matter (the main reason I found the EIR inadequate as a matter of law); the necessity of the Council members to listen to the tapes of the March 5th LPC meeting themselves before making any ruling, as staff seems incapable of fairly distilling the matter for them; and the questions that Councilmembers must answer to the entire community if they choose to ignore the LPC's considered opinion that the alteration permit must be denied in this matter.

I will address my reasons for voting that the EIR in the

Byrne site matter was inadequate as a matter of law more

fully if the Council chooses to rehear this matter.

Sincerely,

Patricia Dacey

cc: City Manager

City Attorney