Monterey County Herald

7/18/03

Lawsuit says land-use attorneys wrote city of Monterey planning documents

By DAN LAIDMAN

Three years ago, activist Patricia Bernardi and lawyer Michael Stamp scored a legal coup by showing that Monterey County planning documents had actually been written by a law firm representing some of the area's biggest developers.

For their work, Bernardi and Stamp won a $270,000 settlement from the county and helped demonstrate development lawyer Tony Lombardo's remarkable influence over county government.

Thursday, Bernardi and Stamp initiated a similar legal action against the city of Monterey. The Monterey County Court action alleges that the law firm of Lombardo & Gilles appears to have ghostwritten key city documents pertaining to a lawsuit aimed at blocking the proposed Ocean View Plaza project.

City officials flatly deny the allegation. They say that while Lombardo did review city documents on behalf of his client, the developers of the Cannery Row project, there is an innocent explanation for how his law firm's billing code ended up on the paperwork.

City Manager Fred Meurer and City Attorney Bill Conners, in separate interviews, both called the ghostwriting allegation "baloney."

Assistant City Attorney Deborah Mall, who is handling the city's defense in the Ocean View Plaza lawsuit, also denied that the Lombardo firm had written any of the city documents.

Thursday's legal filing contends that city officials "failed to understand that there is a deep public interest involved when private law firms ghostwrite public documents without that fact being disclosed."

The case traces back to the city's approval of Ocean View Plaza. The large retail-condominium project underwent numerous revisions over seven years before finally being approved by a 3-2 vote of the Monterey council last October.

A month later, Stamp and another attorney sued the city on behalf of several local activists. The lawsuit, scheduled for trial next month, alleges that the city had violated state environmental law by not fully examining Ocean View Plaza's impacts on water, traffic, parking, historical preservation and growth.

In response to the lawsuit, the City Attorney's Office asked the City Council to approve new documents clarifying its October vote. City officials said they were merely clearing up legal technicalities.

While reviewing the documents, Stamp and Bernardi noticed that some had a "footer" at the bottom, a line of text showing where the file had been located on a computer. The footer includes a billing code used by Lombardo & Gilles, which represents Ocean View Plaza developers Chris Treble and Phil Taylor.

During the earlier case against Monterey County, Stamp demonstrated that similar coding on county documents showed that they were prepared by Lombardo's law firm and not county officials as the documents indicated.

In connection with the lawsuit, Bernardi and Stamp filed a public records request with the city of Monterey on June 23. They asked for documents related to the Ocean View Plaza lawsuit, and all correspondence in any format between the city and Lombardo & Gilles.

City officials responded that such a large request could take up to a month and that some documents are exempt from disclosure.

Bernardi and Stamp responded Thursday with the lawsuit, which accuses the city of failing to follow the California Public Records Act. The ghostwriting allegation is contained in the complaint.

"I consider this a case of abuse," Bernardi said. "Not only the fact that the records were not forthcoming, but then to discover that embedded into that little footer was a billing code from a law firm that has been known for ghostwriting documents in the past."

Mall, one of the city's lawyers, said the documents were written by Monterey city planners and there is an innocent explanation for the footers: Before presenting the documents to the City Council, she sent them to Lombardo & Gilles for review.

"Lombardo's office corrected an error and then e-mailed it back to us," she said. "There's nothing wrong with that; we're co-counsels in a lawsuit."

Lombardo added, "We didn't produce it. We didn't draft it for them."

"The city of Monterey has always prepared its own documents," Lombardo said, suggesting Stamp had missed his calling as a "fiction writer."

Stamp said he was skeptical of the city's explanation.

"When I see a private law firm's billing code on a public document, it's hard for me to blindly say, 'Sure, I trust you,'" he said.

Some of the documents look like the footer has been cropped out or covered in white correction fluid, Stamp said.

"It's not just a matter that they didn't disclose it," he said. "But it appears they set out to hide it."

Mall denied the city tried to hide the fact that Lombardo reviewed the document.

"I'm not certain if any of it was whited-out or not," she said.

The county ghostwriting lawsuit exposed the fact that numerous county planning documents were generated by Lombardo & Gilles. Monterey County Judge Richard Silver wrote at the time that the case brought into question "the integrity of the land-use process."

While Bernardi and Stamp said the current case parallels the earlier lawsuit, Monterey officials rejected that.

City Attorney Conners said that even if Lombardo had written the city legal documents related to the Ocean View Plaza lawsuit, it would not necessarily be illegal.

"This isn't a planning document that is relied upon by planners like in the famous ghostwriting lawsuit," Conners said. "This is a lawsuit where I can hire outside lawyers if I so choose. There's nothing wrong with that. Mr. Stamp is barking up the wrong tree."

Lombardo, who has tussled with Stamp and Bernardi for years over growth and development issues, accused them of just trying to find new tactics to block the Cannery Row project.

"He and his clients have been against the completion of the development on Cannery Row for years," Lombardo said. "And this is consistent with that."

Stamp said the new lawsuit is about open government, not Ocean View Plaza.

"There's no excuse for having a private attorney's private billing code on a document without disclosing it," he said. "It's not just this project and this approval. It's about the integrity of government itself."