continued Why did Stebbins finally get a go-ahead?
"Good question, and I haven't quite figured it out," says Berkman. "You can only speculate. But when we present our appeal to the city council, all I will have to do is quote. The best comments about why this project shouldn't go forward have already come from the applicant and city staff. Our appeal now says, 'It is not understood why they changed their minds from a formerly valid assessment of the situation.' " Berkman wants to ask Iskandar, "Why are you now disagreeing with yourself?"
The City may even have attempted to mislead the Planning Commission regarding Federal Emergency Management Agency requirements. In her presentation to the commission, Iskandar cited the agency's Technical Bulletin 3-93 in support of Stebbins's project. The same bulletin is mentioned in the project permits and environmental document. "But the City never mentioned the bulletin's title," says Berkman. "When I tracked it down I saw why. The bulletin is called 'Non-Residential Floodproofing -- Requirements and Certification for Buildings Located in Special Flood Hazard Areas.' It allows for some commercial underground parking in floodplains but doesn't say anything about residential. Then you find Bulletin 6-93, which explicitly says that FEMA prohibits underground parking at a residence in a floodplain.
"In addition, FEMA requires that a project not be a public nuisance. Well, the geotechnical consultant is saying that when they dewater -- take the water out from underneath the site to build the underground parking -- that it is likely to cause settling of the adjacent residences." Berkman admits that the federal agency does allow certain deviations from its code, but they are so strict he does not see how Stebbins would qualify. "One deviation would be for extreme hardship," says Berkman. "I don't see Stebbins's complaint that he would have to move if he can't build his dream house as an 'extreme' situation."
Then there is the matter of blocking other residents' ocean views. Berkman wonders if the City could be opening itself to an inverse condemnation lawsuit if it approves a project that causes neighbors to sustain property value losses. He asks, "What if a lawyer could say, 'Look, you're going against the municipal code and the community plan. As a result, you're diminishing property values across the street, and we have a real estate appraiser willing to put that in writing'?"
And Stebbins has already acknowledged that the neighbors on the block want to follow him if he proves his project is "doable." "I am the first," he said. How many lawsuits might he trigger in the process?