By Meghann M. Cuniff, Special to the Independent
A longtime Laguna Beach resident is taking his legal challenge of a home demolition to California’s highest court, extending a three-year fight recently decided by a state appellate court.
Though the home in question already has been rebuilt, Mark Fudge is asking the state Supreme Court to review the 4th District Court of Appeal’s determination that the state Coastal Commission was the rightful place to air his grievances, instead of civil court as Fudge contends.
Laguna Beach City Attorney Phil Kohn said Wednesday that the city opposes the request.
“We’re working with the property owner to submit a joint response just to reduce the amount of paperwork for the court,” Kohn said, referring to resident Hany Dimitry.
The saga began in 2016, when Dimitry bought a house on Pacific Coast Highway, next to Thousand Steps Beach, with plans to replace it with a three-story home. He faced swift opposition from Fudge, a neighbor who argued the house was a historic example of Spanish Colonial Revival Design, and that Dimity’s new home would obstruct views.
A veteran of legal challenges against the city, Fudge took his concerns to the Design Review Board and City Council, then appealed the city’s issuance of a CD permit to the California Coastal Commission.
At the same time, Fudge filed a legal action in Orange County Superior Court seeking to vacate the permit. That’s where the thorny legal issues addressed in the recent appellate decision emerged.
Working together, Dimitry and City Hall argued Fudge’s Superior Court action should be dismissed because the Coastal Commission was already lawfully considering the issue.
A judge agreed, and Fudge challenged that ruling to the 4th District. He argued the Coastal Commission’s review was improper because it didn’t follow the city’s review process as legally required.
However, the appellate justices who reviewed the case said the differences in the city’s review process and the Coastal Commission process are irrelevant. They were sympathetic, writing that the city’s reliance on the California Environmental Quality Act and the commission’s reliance on the Coastal Act “might seem anomalous.”
“That’s not usually the way hierarchies of review work,” according to the opinion, written by Justice William W. Bedsworth.
Still, the court determined the state Legislature intentionally allowed the differences, and the choice “was entirely rational,” according to the opinion, which was issued Feb. 13. The court also denied Fudge’s request for attorney fees, calling his argument that he’d essentially won at the trial court “an argument of impressive agility, but little convincing force.”
“The very fact Fudge is sufficiently aggrieved by the trial court’s dismissal of the case to bring this appeal militates against characterizing the result…as a victory,” Bedsworth wrote.
Represented by a team of lawyers from the international firm King & Spalding LLP, Fudge filed a petition for review with the state Supreme Court on March 26. The court has not yet considered it, and Kohn believes the petition will be rejected.
“There’s very limited grounds on which they can exercise their grounds to review a case,” Kohn said. A case must involve an important public interest or involve a conflict within case law and, “needless to say, our opinion will be that neither of those grounds are satisfied.”
Fudge is experienced in environmental and developmental challenges in the city, having bought the historic Halliburton House in South Laguna in 2011 and fought the City Council over renovation. He also has challenged renovations at The Ranch resort hotel, most recently losing an appeal to the City Council of a creek vegetation restoration plan.
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