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.

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