--Part 1--

louis martin
cns news & features

Mendocino County--

Last week the Mendocino County Board of Supervisors denied the appeal of Ted and Marjorie Belincourt of Virginia to override the county's Planning Department. The Planning Department had denied the Berlincourt's building project for a large, two-story house--what some had called a "retirement fortress"--in the last unencumbered viewshed to the south of the town of Elk. Most residents of the town, and most inn owners, had opposed the project.

During the appeal before the county board of supervisors, the two architects of the house--Michael Levanthal and Robert Schlosser--made vigorous and passionate appeals to the supervisors to allow the house to be built. This raised the question: Can an architect be sued for designing a house in an environmentally sensitive area on the coast where approval of the planning department is at best problematic?

Apparently there is little or no precedent for suing, but two attorneys who deal with building issues and property rights on the Mendocino coast found the question interesting.

Attorney Maggie O'Rourke of Mendocino said the answer depends on whether there is "discretion involved." In a sensitive area of the coast, the planning department does not follow a strict set of guidelines as it may elsewhere. Rather, there are a number of subjective factors involved in the decision-making process.

"Who knows what's going to fly with the planners?" asked O'Rourke.

This would appear to leave architects less subject to legal action by a property owner if a project is denied.

But attorney Jim Jackson of Mendocino said that if an architect can be shown as negligent, then a suit is possible. "Any professional," said Jackson, "who commits a negligent act can be held accountable."

The problem, said architect Michael Wike of Gualala, is proving negligence. (Wike is an independent architect who had no involvement in the Berlincourt project.)

Prior to designing a house for a particular piece of property, it is customary to apply for a special building permit in the coastal area, since the Coastal Zone Act applies. In addition, it is customary to check with the planning department if there are any particular restrictions that apply to the parcel.

According to Wike, either the architect or the property owner may do this. But Wike said that, in order to avoid problems, he always does this himself.

In addition, CalTrans must be notified and a geological report must be filed.

Negligence could be shown, according to Wike, if an architect told an owner that he was going to make these preliminary checks but failed to do it. But even so, it might be hard to prove it because, said Wike, the planning department writes few letters. An architect could say he had made preliminary calls.

He claimed planning department decisions are fairly subjective in the coastal area. Public opinion is "very powerful," he said, and objections to a project by one or two neighbors can sway the decision.



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