Is Leo Mullen agreement legal?

Is Leo Mullen agreement legal?
An agreement to bring back the use of portable lighting at Leo Mullen Sports Park could be illegal, as the city works its way through the process of amending the Encinitas Ranch specific plan to allow for permanent lights. File photo

ENCINITAS — A proposed agreement between Encinitas and a local soccer club that would allow the club to resume using portable lights at Leo Mullen Sports Park — which are currently not allowed under the city rules that govern the community — is illegal, a legal expert said.

The City Council at tonight’s council meeting is considering what they are calling a compliance agreement between the city and the Encinitas Express. The agreement would authorize the club to use portable lights to light the soccer field at the sports park for 18 months as the city works its way through the process of amending the Encinitas Ranch specific plan, which currently prohibits lighting at the park.

The soccer club would assume all liability and risk and pay for the lights under the proposed arrangement.

The soccer club had used gas-powered portable lights at the field for more than 13 years before the city — which learned about the temporary lighting after the soccer club requested permanent lights be installed — told the club earlier this year they had to remove them because they were not permitted.

City officials have said that the agreement was a nod to the club’s need for lights as the city works its way through the process of changing the plan, which could take anywhere from one to two years depending on the type of environmental review the change requires.

The Coast News reached out to two municipal law experts after receiving several emails from neighbors who questioned whether the agreement was legal.

Both experts, including one who spoke on background, said they believed the proposal was illegal.

Susan Brandt-Hawley an environmental preservation attorney who frequently represents public-interest groups in preservation issues statewide, said the agreement would be unlawful on two grounds: first, it violates state environmental quality laws by allowing for field lights without an environmental review, and second because it allows a practice that is explicitly prohibited under current city law.

In regards to California environmental laws, Brandt-Hawley said the fact that the city is anticipating the process of amending the specific plan will take up to two years is likely an acknowledgment that installing permanent field lights will require environmental scrutiny. Putting up temporary lights without the same review would run afoul of those laws.

Brandt-Hawley also said the city has put itself in a precarious legal position when it originally pulled the plug on the lights earlier this year. By doing that, it tacitly acknowledged that the lights were illegal. Without a change to the specific plan, the city with the proposed agreement would be knowingly violating the specific plan.

“All I can say is that what the city is proposing to do is unlawful,” Brandt-Hawley said. “If the city hadn’t done anything, perhaps it would be different, but when they stopped (the portable lights) they conceded there was a problem. By formally reinstating the use, they are being up front, but what they are proposing is illegal.”

The second attorney said the city, if it approves the pact, exposes itself to lawsuits by the neighbors or environmental groups.

An attorney representing the soccer club said that compliance agreements like this one are not uncommon, likening it to a code-enforcement violation that the city allows to continue until the violation is rectified.

“We feel the compliance agreement is legal, because it is commonly used when you have a situation that acknowledges that you don’t necessarily have the right to do what is currently in place, but rather than make the use stop, they will hold in place the status quo until the specific plan can be amended,” said Cynthia Morgan-Reed, who represents the soccer club. “You see this in code enforcement cases where a violator has agreed to correct a violation and wants to continue to operate, and the city will allow them to continue as long as there is not a public safety hazard.”

Morgan-Reed said she believed the city’s recent prohibition of the temporary lights doesn’t change the fact the city allowed the lights to stay in place for 10 years.

“I’m not going to make the city’s argument for them, but if they believed something was legal, and then discover that it is not, the best scenario is to have a compliance agreement in place while the city approves the legal agreement to allow the lights,” she said.

The Coast News reached out to city risk management analyst Jace Schwarm for comment on the findings and will update the story once we receive a response.

9 Comments
  1. Rick Lochner 10 months ago

    The article implies that the city had no idea that Express had been using lights. In reality, Parks had developed and published the rules for putting temporary lights on the field.

    We have been working closely with the Cambria HOA to allay their concerns and resolve issues. Any environmental issues are speculative in nature. The only major concern suggested at this point is in regard to breeding/nesting season, but there would be little if any light use during the previously suggested nesting season dates (late-Feb to mid-Sept) and those dates were essentially an educated guess.

    We remain dedicated to serving the Encinitas community and being good neighbors.

  2. joe public 10 months ago

    kids playing and adult helping that sounds like a pretty good situation to me. HOAs and lawyers get involved and there ya go

  3. Joe Public2 10 months ago

    The HOA and the soccer club agree to terms and are in sync now. What are you talking about Joe Public?

  4. Jess 10 months ago

    The city absolutely knew the soccer club had been using lights. The parks department also knew from day one, 13 years ago, that lights were not allowed at Leo Mullen. This is why the parks department instructed the soccer club to get permission from the nearby HOA every year. The nearby homeowners would be the ones to sue over this so parks dept. figured they could skirt the issue by getting permission. They correctly assumed the Encinitas Ranch homeowners had no idea the Encinitas Ranch Specific Plan forbade lighting at Leo Mullen Park.

  5. Bill D. 10 months ago

    Let’s not forget the fields are directly adjacent to protected wetlands and there is no way the parks department did not know this and know that you cannot approve anything that would impact wetlands in any way without very clear lengthy processes.

  6. Jake 10 months ago

    The soccer league supports the requests by the nearby homeowners to take steps to minimize impact of lights. The tree wall was a great idea suggested by the soccer people. Whether the city can issue a compliance agree or if an environmental review must be done are city issues and have nothing to do with the affected HOA or the soccer people.

  7. Anna 10 months ago

    I wonder what else besides lighting the field the city is interested in seeing amended in the Plan? They repeatedly denied plans to light the field before. Is this really just about one field and it’s lighting for the city or is this a mechanism to change policy on a broader scale?

  8. Lynn Marr 10 months ago

    I feel that the temporary lights were probably being used before the Specific Plan, which regulates them? I’m not certain on that, but it seems as though the temporary lights should be “grandfathered” as legal, non-conforming, according to the City’s own nomenclature? It seems this controversy was set off by the request for permanent lights? If they are to be erected on over 30 feet light poles, that would require a public vote, according to Prop A. But the City should not, in my opinion, have said the temporary lights were illegal to begin with. Not if they pre-existed regulations requiring environmental review, or a public vote.

  9. Jeff 10 months ago

    Lynn,

    Temporary lights were implemented long after the Encinitas Plan was created that forbids use of field lights of any kind at Leo Mullen. Plan was created in 1990s and temp light usage began around 2003.

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