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Nipomo CSD accused of violating Brown Act 

If plans for development at Nipomo’s Blacklake Golf Resort weren’t already controversial enough, one local man is taking the small South County town’s Community Services District to court over it.

Nipomo resident Noel Heal filed a petition in SLO County Superior Court claiming that the CSD violated the state’s public meeting laws during a discussion about Blacklake at its Aug. 12 regular meeting.

At the crux of Heal’s petition is a question over whether the CSD’s manager and board of directors veered from the meeting’s published agenda during a discussion about the CSD’s intent-to-serve letter process, which the Blacklake development is currently in the midst of. 

Intent-to-serve letters are sent by the CSD when a new development is proposed. The letters promise that the CSD will provide water, sewer, and solid waste disposal services, but only if the developer meets a laundry list of conditions. If the applicant meets those conditions, they receive a will-serve letter, which solidifies the promise of service for the project. 

Seeking services from the CSD occurs parallel with seeking permits and an approval for development with San Luis Obispo County. According to a report attached to the CSD’s Aug. 12 meeting agenda item on the issue, both the district and county usually attempt to “mesh” a series of application steps and conditions. But one section of the CSD’s intent-to-serve policy can hamper larger development projects like Blacklake.

That policy states that once the applicant has the intent-to-serve letter, they have 240 calendar days to provide the CSD with written verification stating that the county deems the project application complete. If the time limit expires, and the applicant doesn’t provide the CSD with that verification from the county, the intent-to-serve letter is terminated.

“For larger and more complex projects, the process of development review and approval can take years,” the report noted.

The report stated that the CSD staff currently applies that 240-day termination as a “soft” deadline, as they recognize the length of time it actually takes to get such projects through the process at the county level.

The Blacklake Golf Resort development project is currently sitting square in the middle of that issue. The Nipomo CSD issued five such letters to Blacklake LLC on Oct. 22, 2014. Tentative plans for the project, headed by Blacklake owner and developer Rob Rossi, call for a 120-room hotel and as many as 100 new homes at Blacklake, while shrinking the golf course’s size from 58 to 35 acres.

But roughly one year later, the county has yet to sign off on the project, and the 240-day window has lapsed. The project last went before the county in March, when the Board of Supervisors considered authorizing the initial processing of a proposed specific plan, general plan, and land use ordinance amendments for the Blacklake project. The supervisors ultimately punted the issue to January of 2016, after hearing concerns from some Blacklake residents against the project, as well as a request from Rossi to delay the decision—allowing him to further discuss his development plans with homeowners and resolve other issues identified by supervisors at the meeting.

Such was the state of the Blacklake project when the CSD board took up a discussion of the intent-to-serve letters at the recent August meeting. The discussion of those issues was described on the district’s meeting agenda as “intent-to-serve letter policy discussion,” but didn’t mention Blacklake specifically. 

Heal’s petition not only claims that the CSD board went beyond general discussion of the policy—including action that impacted Blacklake directly in a subsequent direction to staff—the petition alleges that this violated California’s public meeting laws, known as the Brown Act, which in part states that “no action” can be undertaken taken by a governing body like the CSD board on any item not appearing on the agenda. 

The board ended up passing a motion directing staff to review the current intent-to-serve letter policy and develop a proposal for review at a future staff meeting. However, the motion also included direction to the district staff to schedule a “discussion” of Blacklake intent-to-serve letters for January. 

“There wasn’t anything on the agenda about [the specific] letters,” Heal said. “If you are going to talk about something and take action, it needs to be on the agenda.”

Heal also claimed that the board’s direction to staff on the Blacklake letters in effect extended the intent-to-serve past the expiration date, constituting an “action” by the board that wasn’t on the agenda. Not properly agendizing such an item is problematic, Heal said. 

“Because the board didn’t describe this issue in the agenda of their  [Aug 12] meeting, the topic was discussed and decided with very little public input,” he wrote in a letter to Nipomo CSD board president on Sept. 9.

Michael LeBrun, Nipomo CSD’s general manager, said he wasn’t able to comment on the issue because of the ongoing litigation. The district’s legal counsel, Michael Seitz, didn’t respond to request for comment. In a Sept. 18 letter sent in response to Heal, Seitz argued that the board’s motion to direct staff didn’t constitute taking action, and therefore didn’t violate the Brown Act. While Heal demanded the board take steps to correct the alleged violation, Seitz said he couldn’t recommend such action to his clients “simply because there was no Brown Act violation, and the board took no action.” 

In his court petition, Heal asked the judge to order the CSD to essentially void any actions the board made on the item at the Aug. 12 meeting, and rule that the intent-to-serve letters discussed at the meeting which include the five from the Blacklake project and five others not associated with the project, be declared expired under the CSD’s current policies. Neal said he wants the CSD to hold a new meeting with the item properly agendized.

“Holding a new meeting in full compliance with the Brown Act is still my No. 1 goal,” Heal said. “But so long as the board continues to deny that their was any violation of the Brown Act, I plan to stay the course and let the judge decide who is right.” 

Staff Writer Chris McGuinness can be reached at cmcguinness@newtimesslo.com, or on Twitter at @CWMcGuinness. 

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