ABUSE OF POWER AND AUTHORITY by Mayor Sue McCloud

ABSTRACT: At issue is the conduct of Mayor Sue McCloud in the case of the Forest and Beach Commission’s unanimous approval of the removal of her neighbor’s black acacia tree (April 3, 2008) and the City Council’s majority vote denying Sue McCloud’s appeal and upholding the Forest and Beach Commission’s decision (September 9, 2008). On or about September 9, 2008, the appellant Sue McCloud submitted supplemental information to the City Council Members, which was not part of the original AGENDA PACKET, about her appeal of the Forest and Beach Commission’s unanimous decision, including six conditions if the City Council denied her appeal and upheld the Forest and Beach Commission’s decision. In the City Council’s motion, and accepted by the applicant/neighbor Susan Page, were six conditions, including Condition 6 “that all of the above steps is adopted take place in a tight time frame.” Moreover, Clayton Berling, representing his sister-in-law Sue McCloud, stated that the removal of the acacia tree be done is a “timely manner.” And, Margi Perotti wrote in an attached letter to the TREE REMOVAL PERMIT “The above steps are to be taken in a ‘tight time frame.’” A day after the issuance of the TREE REMOVAL PERMIT, the City voided the TREE REMOVAL PERMIT. A second TREE REMOVAL PERMIT was issued with an attached six conditions, including a revised Condition 6, “The above steps shall take place in a continuous manner and shall be completed no later than 30 days from the issuance date of this permit.” It appears Sue McCloud abused her power and authority as mayor of Carmel-by-the-Sea by instigating and/or allowing the voiding of Susan Page’s TREE REMOVAL PERMIT after it was issued and revising Condition 6 to reflect “no later than 30 days” as opposed to “tight time frame,” as approved by the City Council. In a September 30, 2008 letter from Susan Page’s attorney, Stephen J. Beals, to City Attorney Don Freeman, Attorney Stephen J. Beals requested that the permit be reissued as originally done on September 17, 2008. Accordingly, City Attorney Don Freeman, as the citizen’s attorney, should intervene immediately and order the City to reissue a TREE REMOVAL PERMIT as a final resolution of this troublesome matter. The DEFINITION of ABUSE OF POWER, A CHRONOLOGY OF EVENTS and COMMENTS are presented.

DEFINITION: ABUSE OF POWER is that situation that exists whenever someone who has POWER over others, (that is, the capacity to impose her will on those others) for example, by virtue of her political/governmental position and the trust that others have in her, unjustifiably uses that power to EXPLOIT or HARM those others.

CHRONOLOGY OF EVENTS:
• April 3, 2008: UNANIMOUS DECISION (4-0) OF FOREST AND BEACH COMMISSION TO APPROVE REMOVAL OF SUSAN PAGE’S BLACK ACACIA TREE
CITY OF CARMEL-BY-THE-SEA
FOREST AND BEACH COMMISSION
REGULAR MEETING AGENDA
Thursday, April 3, 2008

VI. APPLICATIONS/PUBLIC HEARINGS

IF YOU CHALLENGE THE NATURE OF THE PROPOSED ACTION IN COURT, YOU MAY BE LIMITED TO RAISING ONLY THOSE ISSUES YOU OR SOMEONE ELSE RAISED AT THE PUBLIC HEARING DESCRIBED IN THIS NOTICE, OR IN WRITTEN CORRESPONDENCE DELIVERED TO THE FOREST AND BEACH COMMISSION, OR PRIOR TO DELIBERATION OF THE ITEMS ON THE TOUR OF INSPECTION/PUBLIC HEARING.

1. Consideration of an application to remove one 30” dbh acacia tree due to its declining condition. The site is located on south side of Santa Lucia 3 east of Dolores. The applicant/owner is Susan Page.

A Commissioner moved to approve the removal of the acacia tree with the recommendation that a 24” box fruitless olive trees be planted in the vicinity for screening purposes, seconded, and carried by the following roll call vote:

AYES: COSS, FORD, PRITCHETT, JOHN
NOES: NONE
ABSENT: NONE
ABSTAIN: NONE

• September, 9, 2008: MAJORITY DECISION (3-1) OF THE CITY COUNCIL TO DENY SUE MCCLOUD’S APPEAL AND UPHOLD THE FOREST AND BEACH COMMISSION’S DECISION APPROVING THE REMOVAL OF SUSAN PAGE’S BLACK ACACIA TREE
MINUTES
SPECIAL CITY COUNCIL MEETING
CITY OF CARMEL-BY-THE-SEA
September 9, 2008

VIII. PUBLIC HEARINGS

B. Consideration of an appeal of a decision by the Forest and Beach Commission approving the removal of a 30-inch diameter black acacia at a property at 2922 Santa Lucia Avenue. The appellant is Sue McCloud, property owner of the home next door, on the east side.

Mayor McCloud recused herself from the proceedings citing a conflict of interest, being the appellant. Mayor Pro Tem Hazdovac chaired the proceedings.

City Attorney Don Freeman made some introductory remarks, highlighting the appeal process in this particular case, emphasizing that all possible steps were taken to ensure a fair and impartial hearing for all parties concerned.

City Forester Mike Branson presented the staff report and answered Council questions.

Clayton Berling read a statement on behalf of the appellant. Included in this statement were six conditions that he said would be acceptable to the appellant, should Council vote to deny the appeal. These included: complete stump grinding of the removed tree; proper irrigation for the new trees; full repair of any damage to the fence; substitution of bamboo or planting of two (not one) 24-inch box olive trees to replace the acacia; 24-hour notification before tree removal; and the work to remove the acacia tree done is a timely manner.

Mayor Pro Tem Hazdovac opened the hearing to public comment at 6:25 p.m.

Stephen Beals, attorney for Susan Page, addressed Council.

Mayor Pro Tem Hazdovac closed the hearing to public comment at 6:27 p.m.

Stephen Beals agreed to accept the six conditions proposed by the appellant.

City Forester Mike Branson answered Council questions.

Clayton Berling requested pruning of the acacia tree be considered.

Council Member ROSE moved to overturn a decision by the Forest and Beach Commission approving the removal of a 30-inch diameter black acacia at a property at 2922 Santa Lucia Avenue on the condition that it be pruned. The appellant is Sue McCloud, property owner of the home next door, on the east side. The motion failed for lack of a second.

A motion was made by Council Member TALMAGE to deny the appeal, but to institute the six conditions requested by the appellant (noted above) and have the parties work with City Forester to find two mutually acceptable 24-inch replacement trees (or proceed with planting two 24-inch fruitless olive trees if no agreement can be reached), seconded by Council Member SHARP and carried by the following roll call:

AYES: COUNCIL MEMBERS: HAZDOVAC, SHARP & TALMAGE
NOES: COUNCIL MEMBERS: ROSE
ABSENT: COUNCIL MEMBERS: NONE
ABSTAIN: COUNCIL MEMBERS: McCLOUD

NOTE: Supplemental information from Sue McCloud was apparently distributed to City Council Members on the day of the City Council Meeting, including, as follows:

If the Council denies this appeal, please consider incorporating the following 6 points in your motion to deny:

1. The stump must be ground out so that the new tree or trees can go in the same area. Mike had said that acacia roots extend 30 feet. Without removal of the stump/roots, there is no viable space for a new 24” box tree/trees in that same area.

2. Irrigation must be provided to ensure the new tree/trees survive, as there are no permanent residents in the Page home to nurture them.

3. Fence: any damage to the McCloud fence must be repaired so it is secure for dogs and children on both properties.

4. If the tree is to come down, Sue would ask Council to seriously consider substituting bamboo (which Page has on the west side of her property) that can be contained as it will be fast growing and if not, require two 24” box olive trees be planted. This was proposed by the Forest and Beach Commission, but was not in the final motion. The reason for two is that the olive trees are very vertical and one is not likely to ever come close to filling the space occupied by the acacia. Mike has said that the two examples of olives he cited on the NW corner of 8th and San Carols have taken about 5 years to be the size they are today.

The replacement tree should go on a vertical line with the only clear glass window on the west side of the McCloud home. The second tree if approved should go between the acacia and the most southern of the 2 McCloud oaks on the west side.

5. Tree removal: page should give McCloud 24 hours notice when it is to take place so the McCloud dog is not outside in the yard.

6. Pls require that all of the above steps if adopted take place in a tight time frame.

• September 17, 2008: TREE REMOVAL/PRUNING PERMIT ISSUED
Selected excerpts, as follows:
Date: 9/17/08
Exact location of property: 2922 Santa Lucia Avenue
Name of Property Owner: Susan Page
Remove one 30” dbh acacia tree
Conditions/Requirements: 1-10
REPLANT: lower canopy trees/species: olive size: 24” box size

ADDITIONAL CONDITIONS: see attached letter
Approved by: City Council Meeting 9 September 2008

Attached Letter, as follows:

17 September 2008

Ms. Susan Page
Post Office Box 6521
Carmel, CA. 93921

SUBJECT:
TREE REMOVAL
SANTA LUCIA 3 SE OF DOLORES
CARMEL-BY-THE-SEA, CA.


Dear Ms. Page:

In a majority vote, the City Council denied the appeal from Ms. McCloud and upheld the Forest and Beach Commission decision to remove the tree with the following conditions:

1. Following tree removal the stump must be ground down/out so new trees may be planted in the same area.
2. Irrigation must be provided to ensure the survival of the new tree/trees.
3. Any damage to the McCloud fence must be repaired so it is secure for dogs and children on both properties.
4. Two 24” boxed size olive trees or mutually acceptable 24” replacement trees must be planted as replacements. The replacement tree should go on a vertical line with the only clear window on the west side of the McCloud home. The second tree should be planted between the acacia and the most southern of the two McCloud oaks on the west side. The trees must be planted within 30 days of the removal of the acacia.
5. A 24-hours notice is to be given to McCloud prior to tree removal.
6. The about steps are to be taken in a “tight time frame.”

Please come to the Planning and Building office and pick up a copy of the permit. The permit must be on site when the work is being performed.

If you have any question or require additional information, please phone my office at (831) 620-2010.

Sincerely,

Margi Perotti
Secretary to the Forest and Beach Commission

• September 18, 2008: PERMIT VOIDED AFER ISSUANCE
Selected excerpt from Letter to Susan Page from City Clerk Heidi Burch, dated September 18, 2008, as follows:

RE: Tree Removal Permit

Your tree permit has been revised to more accurately reflect Council action taken on September 9, 2008. Your prior permit has been voided.

In correspondence from Susan Page’s attorney, Stephen J. Beals, to City Attorney Donald G. Freeman, Attorney Stephen J. Beals wrote that he was “advised by Rich Guillen that the reason for voiding the permit related to a minor change in the conditions of the approval that resulted after further review of the hearing minutes.”

The “new conditions of approval” deal with Condition 6; Condition 6 was modified from “tight time frame” to requiring completion by “no later than thirty days from the issuance date of the permit.”

(2nd) TREE REMOVAL/PRUNING PERMIT
Selected excerpts, as follows:
Undated
ADDITIONAL CONDITIONS: see attached letter, as follows:

CONDITIONS OF TREE PERMIT APPROVAL:
(Per City Council action at their September 9, 2008 meeting, both parties shall work with the City Forester to find two mutually acceptable 24’inch replacement trees. If an agreement on the tree species can’t be reached then two fruitless olive trees shall be the replacement trees.)

1. The stump shall be ground out and appropriate roots removed, so that the new trees can go in the same area.

2. An irrigation system shall be provided to ensure the new trees survive.

3. Any damage to the McCloud fence shall be repaired, so it is secure for dogs and children on both properties.

4. The replacement trees shall go on a vertical line with the only clear glass window on the west side of the McCloud home. A second tree shall be planted between the acacia and the most southern of the two (2) McCloud oaks on the west side.

5. Page shall give McCloud 24 hours notice when tree removal is to take place, so the McCloud dog is not outside in the year.

6. The above steps shall take place in a continuous manner and shall be completed no late than 30 days from the issuance date of this permit.

COMMENTS:
During this protracted process, appellant Sue McCloud abused her power and authority as mayor of Carmel-by-the-Sea by:
• Submitting supplemental information with highlighted sections favorable to her, the appellant, to the City and City Council Members after the original Agenda Packet was issued.

• Instigating and/or allowing the City to void Susan Page’s TREE REMOVAL PERMIT without cause.

• After the voiding of Susan Page’s TREE REMOVAL PERMIT, instigating and/or allowing the attachment, including revisions to Condition 6, revisions which were not approved by the City Council at their September 9, 2008 Meeting.

• Compromising City Administrator Rich Guillen by having him inform Susan Page’s attorney, Stephen J. Beals, that the “reason for voiding the permit related to a minor change in the conditions of the approval that resulted after further review of the hearing minutes.” In fact, the Minutes, as presented in the Agenda Packet, do not support Rich Guillen’s assertion of a minor change in the conditions of the approval after a review of the Minutes, rather the Minutes support no changes at all. Moreover, the Minutes must accurately reflect actual events and not be arbitrarily altered to reflect the desires of anyone after the fact.

• In closing, City Attorney Don Freeman must therefore act as the citizen’s attorney and immediately order the City to reissue a TREE REMOVAL PERMIT to Susan Page, as originally issued on September 17, 2008, as a final resolution to this needlessly protracted and troublesome matter.